Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.564 Filed 09/07/21 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`BREEZE SMOKE LLC,
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`Civil Action No. 3:21-cv-11835
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`Plaintiff/Counter-Defendant, Hon. Robert H. Cleland
`Magistrate Judge Curtis Ivy, Jr.
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`JURY TRIAL DEMANDED
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`vs.
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`TRUCENTA HOLDINGS LLC,
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`
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`Defendant/Counter-Plaintiff.
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`DECLARATION OF NOWFAL AKASH
`IN SUPPORT OF DEFENDANT TRUCENTA HOLDINGS LLC'S
`RESPONSE IN OPPOSITION TO PLAINTIFF BREEZE SMOKE LLC’S
`MOTION FOR PRELIMINARY INJUNCTION
`
`
`
`I, Nowfal Akash, declare as follows:
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`1.
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`I am a member and owner of Trucenta Holdings LLC (“Trucenta”). I
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`am over 18 years of age, have personal knowledge of the facts set forth herein, and
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`am competent to testify on the matters stated herein. I submit this declaration in
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`support of Trucenta’s Response in Opposition to Breeze Smoke LLC’s (“Breeze
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`Smoke”) Motion for Preliminary Injunction.
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`2.
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` At least as early as April 25, 2019, Trucenta created and posted
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`multiple social media posts on Instagram promoting its BREEZE-branded CBD
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`products. Screenshots of some of these Instagram posts are attached hereto as
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`
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`BREEZE SMOKE LLC,
`
`
`Civil Action No. 3:21-cv-11835
`
`Plaintiff/Counter-Defendant, Hon. Robert H. Cleland
`Magistrate Judge Curtis Ivy, Jr.
`
`JURY TRIAL DEMANDED
`
`vs.
`
`TRUCENTA HOLDINGS LLC,
`
`
`
`
`Defendant/Counter-Plaintiff.
`
`
`
`
`
`
`DECLARATION OF NOWFAL AKASH
`IN SUPPORT OF DEFENDANT TRUCENTA HOLDINGS LLC'S
`RESPONSE IN OPPOSITION TO PLAINTIFF BREEZE SMOKE LLC’S
`MOTION FOR PRELIMINARY INJUNCTION
`
`
`
`I, Nowfal Akash, declare as follows:
`
`1.
`
`I am a member and owner of Trucenta Holdings LLC (“Trucenta”). I
`
`am over 18 years of age, have personal knowledge of the facts set forth herein, and
`
`am competent to testify on the matters stated herein. I submit this declaration in
`
`support of Trucenta’s Response in Opposition to Breeze Smoke LLC’s (“Breeze
`
`Smoke”) Motion for Preliminary Injunction.
`
`2.
`
` At least as early as April 25, 2019, Trucenta created and posted
`
`multiple social media posts on Instagram promoting its BREEZE-branded CBD
`
`products. Screenshots of some of these Instagram posts are attached hereto as
`
`
`
`
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.565 Filed 09/07/21 Page 2 of 7
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`Exhibit A. As can be seen in the screenshots, each post was made at least as early
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`as April 25, 2019.
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`3.
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`As depicted on the product labeling of each of the CBD products that
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`are shown in Exhibit A, each of these CBD products were branded with Trucenta’s
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`BREEZE marks.
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`4.
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`As indicated on the product labeling of each of the CBD products
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`depicted in Exhibit A, each of these CBD products were THC free—i.e., each CBD
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`product had
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`less
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`than 0.3 percent on a dry weight basis of delta-9
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`tetrahydrocannabinol (THC).
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`5.
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`At least as early as April of 2019, Trucenta has continuously advertised,
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`offered for sale, and sold cannabidiol (“CBD”) products under its BREEZE
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`trademarks. Attached hereto as Exhibit B are pictures of one of Trucenta’s
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`BREEZE-branded bath bombs and its packaging, which is one example of
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`Trucenta’s present use of its BREEZE mark in connection with CBD products. This
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`bath bomb CBD product contains less than 0.3% tetrahydrocannabinol (“THC”) on
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`a dry weight basis and therefore is not marijuana.
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`6.
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`On July 2, 2019, Steven Haddad and I exchanged text and multimedia
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`messages (referred to herein as the “text messaging thread”) in which Mr. Haddad
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`expressed that he would like a “tour of breeze” while referencing that all he gets is
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`a “view of a billboard posting for jobs when [he] comes in and out of Motas.” As I
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`2
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.566 Filed 09/07/21 Page 3 of 7
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`understand it, Mr. Haddad is the President and Director of Motas Transportation. As
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`a part of the text messaging thread, I sent pictures of the Breeze Cannabis
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`Provisioning Center, including pictures having the stylized BREEZE mark, to Mr.
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`Haddad. This text messaging thread is attached as Exhibit C. Motas Transportation
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`has operated out of a building that is close in physical proximity to Breeze Cannabis
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`Provisioning Center and, as I understand it, Mr. Haddad’s comment that all he gets
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`is a “view of a billboard posting for jobs when [he] comes in and out of Motas” refers
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`to the fact that Mr. Haddad could see the stylized BREEZE mark on a billboard
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`outside of Motas Transportation.
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`7. Mr. Haddad sent another message as a part of the above-referenced text
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`messaging thread that said, “I have Instagram my boy I can see that [stuff]! I want
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`the tour . . . .” As this text message was sent on July 2, 2019, the Instagram posts of
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`Trucenta’s BREEZE-branded CBD products (Exhibit A) were live and viewable by
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`Mr. Haddad at that time.
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`8.
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`On November 21, 2019, I attended the Cannabis Industry Summit held
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`at the Townsend Hotel in Birmingham, Michigan. Trucenta was a sponsor of the
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`Cannabis Industry Summit and had its BREEZE stylized logo printed on a brochure
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`for the event, which is attached hereto as Exhibit D.
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`9.
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`Steven Haddad, President and Director at Motas Transportation, was a
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`panelist for one of the discussions at the Cannabis Industry Summit, as is shown
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`3
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.567 Filed 09/07/21 Page 4 of 7
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`under the header “4:20 PM Compliance & Business Practices” in the attached
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`brochure, Exhibit D. Motas Transportation was also a sponsor for the Cannabis
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`Industry Summit, whose sponsorship appears in the same panel as Trucenta’s
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`BREEZE logo.
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`10. At least as of January 2020, Steven Haddad was transporting products
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`to a Breeze store. Specifically, on January 24, 2020, Steven Haddad notified me and
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`others at Trucenta via email that “Guys will arrive today around 3:30pm to pick up
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`for Breeze.” This email correspondence is attached as Exhibit E. Mr. Haddad is
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`referring to the Breeze store in this email correspondence and, at least as of that time,
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`Mr. Haddad clearly knew of Trucenta’s use of its BREEZE brand.
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`11. Trucenta has filed nine trademark applications for our BREEZE word
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`mark and our BREEZE stylized mark
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`, with the United States Patent
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`& Trademark Office (“USPTO”) in connection with its goods and services. These
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`nine trademark applications are identified in the following table.
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`U.S. App. Serial No.
`88/462,141
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`88/462,147
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`90/256,675
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`90/292,552
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`Status
`Registered under
`Reg. No. 6296004
`Registered under
`Reg. No. 6296005
`Pending/Suspended
`Due to Opposition
`Pending/Suspended
`Due to Opposition
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`Exhibit
`F
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`G
`
`H
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`I
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`4
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.568 Filed 09/07/21 Page 5 of 7
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`90/292,558
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`90/292,568
`90/292,573
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`90/292,579
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`90/292,582
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`Pending/Suspended
`Due to Opposition
`Pending
`Pending
`Pending/Suspended
`Due to Opposition
`Pending/Suspended
`Due to Opposition
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`J
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`K
`L
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`M
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`N
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`12. To the best of my knowledge, none of Trucenta’s nine trademark
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`applications has been denied registration on the grounds that the listed goods or
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`services contain products that are illegal.
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`13. As noted in the table above, five of the seven pending trademark
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`applications are suspended in view of an opposition Trucenta filed with the USPTO
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`(the “Opposition”) in which Trucenta opposes Breeze Smoke’s trademark
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`application having U.S. Serial No. 91/267,970.
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`14. The Opposition includes determining whether Trucenta or Breeze
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`Smoke have priority with respect to a mark containing a “Breeze” component.
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`15. Trucenta’s
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`trademark applications mentioned above
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`include
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`applications covering its BREEZE mark in standard character form, U.S. Serial No.
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`90/292,582 (“the ’582 application), and its stylized version (shown below), U.S.
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`Serial No. 90/292,579 (“the ’579 application”). The ’579 application recognizes the
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`word equivalent of this stylized version is BREEZE.
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`5
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.569 Filed 09/07/21 Page 6 of 7
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`16. The ’582 application and the ’579 application each list goods including:
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`“Electronic cigarette liquid comprised of essential
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`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”;
`for pharmaceutical purposes,
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`“Plant extracts
`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”; and
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`“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.”
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`17. Trucenta has spent considerable money, effort, and time promoting its
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`BREEZE brand such that consumers understand that BREEZE-branded CBD
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`products are of the highest quality and originate from Trucenta.
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`18. Trucenta was awarded the “Best CBD Store” under the category
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`“Beauty & Health” by the Detroit Free Press as a part of their 2020 Best of the
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`6
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`Case 3:21-cv-11835-RHC-CI ECF No. 13, PageID.570 Filed 09/07/21 Page 7 of 7
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`Best Awards. A link to this award can be found at
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`https://freep.secondstreetapp.com/2020-Best-of-Detroit-Winners/.
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`19.
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`In November of 2020, Mr. Haddad and I spoke about BREEZE marks.
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`From time to time thereafter, Mr. Haddad and I had conversations in an attempt to
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`resolve the parties’ uses of marks having a “Breeze” component. Our efforts to
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`resolve the matter occurred only intermittently from November of 2020 to May of
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`2021.
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`20.
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`In May of 2021, Mr. Haddad terminated all settlement discussions
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`between Breeze Smoke and Trucenta by texting and informing me that Mr. Haddad
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`was going to handle the matter in court. A screenshot of some of the relevant text
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`messages is attached hereto as Exhibit O.
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`21.
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`In July of 2021, I attempted to restart settlement negotiations by holding
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`a discussion between Trucenta and Breeze Smoke; however no efforts to resolve the
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`matter resumed up to the date Breeze Smoke filed and served its Complaint.
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`I declare under penalty of perjury of the laws of the United States that the
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`foregoing is true and correct.
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`Dated: September 7, 2021
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`7
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`Nowfal Akash
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