Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 1 of 35 PageID: 1
`
`Maria R. Sinatra
`mrsinatra@venable.com
`Marcella Ballard (Pro Hac Vice Pending)
`mballard@venable.com
`VENABLE LLP
`1270 Avenue of the Americas, 24th Floor
`New York, NY 10020
`Phone: (212) 307-5500
`Fax: 212-307-5598
`
`Attorneys for Plaintiff Tri-Union Seafoods, LLC
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`TRI-UNION SEAFOODS, LLC, a
`California limited liability company,
`
`Plaintiff,
`
`v.
`
`MEGA PRODUCTS LLC, a New Jersey
`limited liability company;
`ECUATORIANITA IMPORT &
`EXPORT CORP, a New Jersey
`corporation; and MI TIERRA FOODS,
`LLC, a New Jersey limited liability
`company,
`
`Defendants.
`
`CIVIL ACTION NO. ___________
`
`COMPLAINT FOR
`PERMANENT INJUNCTION
`AND OTHER EQUITABLE
`AND MONETARY RELIEF
`
`DEMAND FOR JURY TRIAL
`
`COMPLAINT
`Plaintiff Tri-Union Seafoods, LLC (“Tri-Union”) located at 2150 E. Grand
`
`Avenue, El Segundo, California 90245 through its undersigned attorneys brings
`
`this action against Defendants Mega Products LLC (“Mega”), located at 399
`
`1
`
`
`
`Maria R. Sinatra
`mrsinatra@venable.com
`Marcella Ballard (Pro Hac Vice Pending)
`mballard@venable.com
`VENABLE LLP
`1270 Avenue of the Americas, 24th Floor
`New York, NY 10020
`Phone: (212) 307-5500
`Fax: 212-307-5598
`
`Attorneys for Plaintiff Tri-Union Seafoods, LLC
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`TRI-UNION SEAFOODS, LLC, a
`California limited liability company,
`
`Plaintiff,
`
`v.
`
`MEGA PRODUCTS LLC, a New Jersey
`limited liability company;
`ECUATORIANITA IMPORT &
`EXPORT CORP, a New Jersey
`corporation; and MI TIERRA FOODS,
`LLC, a New Jersey limited liability
`company,
`
`Defendants.
`
`CIVIL ACTION NO. ___________
`
`COMPLAINT FOR
`PERMANENT INJUNCTION
`AND OTHER EQUITABLE
`AND MONETARY RELIEF
`
`DEMAND FOR JURY TRIAL
`
`COMPLAINT
`Plaintiff Tri-Union Seafoods, LLC (“Tri-Union”) located at 2150 E. Grand
`
`Avenue, El Segundo, California 90245 through its undersigned attorneys brings
`
`this action against Defendants Mega Products LLC (“Mega”), located at 399
`
`1
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 2 of 35 PageID: 2
`
`Mulberry Street, Newark, New Jersey 07102; Ecuatorianita Import & Export Corp.
`
`(“Ecuatorianita”), located at 408 Keswick Drive, Piscataway, New Jersey 08855;
`
`and Mi Tierra Foods, LLC (“Mi Tierra”), located at 14 Libella Ct., Newark, New
`
`Jersey 07105-4633 (all together, “Defendants”), and alleges as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a trademark infringement and unfair competition action against
`
`importers, purchasers, distributors and sellers of infringing VAN CAMP’S® tuna
`
`products arising from Defendants’ unauthorized importation, distribution and sale
`
`of VAN CAMP’S® Tuna from Ecuador that is not intended or approved for sale in
`
`the United States.
`
`2.
`
`Tri-Union sells its VAN CAMP’S® Tuna in the United States through
`
`its exclusive distributor, which is invested in developing and safeguarding the
`
`goodwill associated with the VAN CAMP’S® Tuna product.
`
`3.
`
`Defendants are a group of distributors and retailers acquiring, buying,
`
`re-selling and otherwise distributing infringing VAN CAMP’S® Tuna from
`
`Ecuador in packaging bearing infringing versions of the VAN CAMP’S®
`
`Trademarks (“Infringing Tuna”).
`
`4.
`
`The manufacturer of Defendants’ Infringing Tuna is not authorized
`
`by, or associated with Tri-Union. Tri-Union has not authorized Defendants to
`
`import, distribute, or sell the Infringing VAN CAMP’S® Tuna.
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`2
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`5.
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`Defendants have willfully sold the Infringing Tuna because: (i)
`
`Defendants are professional distributors of tuna products such that they have
`
`knowledge of the supply chains for the product; (ii) the Infringing Tuna depicts
`
`multiple languages on the packaging; (iii) the Defendants have stickered over the
`
`nutritional content panel on the Infringing Tuna; and (iv) the Infringing Tuna is
`
`being sold next to Tri-Union’s VAN CAMP’s® Tuna in an effort to confuse
`
`consumers.
`
`6.
`
`Tri-Union sent multiple cease and desist letters in an effort to stop
`
`Defendants from importing, distributing and selling the Infringing VAN
`
`CAMP’S® Tuna and, despite Tri-Union’s repeated requests, sales of the Infringing
`
`VAN CAMP’S® Tuna have continued.
`
`7.
`
`Defendants’ Infringing Tuna also bears misleading statements, namely
`
`alleging that the Infringing Tuna is canned tuna, which is false because
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`Defendants’ Infringing Tuna does not contain enough dry-weight tuna fish to meet
`
`the standard of identity for “canned tuna” as set forth by the United States Food
`
`and Drug Administration (“FDA”).
`
`8.
`
`Tri-Union cannot verify the conditions under which Defendants’
`
`Infringing Tuna is manufactured, stored, and sold, meaning Tri-Union has lost the
`
`power to control the quality and relative safety of products sold under its VAN
`
`CAMP’S® Trademark in the United States, causing irreparable harm.
`
`3
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`9.
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`Because of Defendants’ infringement, Tri-Union has irretrievably lost
`
`the ability to control the quality of products sold under its VAN-CAMP’S®
`
`Trademark, and VAN CAMP’S® brand.
`
`10.
`
`Accordingly, Tri-Union brings this lawsuit for (1) federal
`
`trademark counterfeiting (15 U.S.C. § 1114); (2) trademark infringement, in
`
`violation of Section 32 of the Lanham Act (15 U.S.C. § 1114); (3) false
`
`advertising, in violation of the Lanham Act (15 U.S.C. § 1125(a)); (4) trademark,
`
`false designation of origin, and unfair competition, in violation of Section 43(a) of
`
`the Lanham Act (15 U.S.C. § 1125(a)); (5) trademark infringement under the New
`
`Jersey Trademark Act (N.J.S.A. 56:3-13a, et seq.); (6) unfair competition under
`
`New Jersey Unfair Competition Act (N.J.S.A. 56:4-1, et seq.); and (7) trademark
`
`infringement under New Jersey common law.
`
`THE PARTIES
`
`Plaintiff
`
`11.
`
`Tri-Union Seafoods, LLC is a California limited liability company
`
`with an address at 2150 E. Grand Avenue, El Segundo, CA 90245.
`
`12.
`
`Tri-Union owns and exclusively distributes VAN CAMP’S® canned
`
`fish products in the United States, including tuna; is the owner of the VAN
`
`CAMP’S® Trademark; and has the right to sue civilly to protect its rights.
`
`4
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`Defendants
`
`13. Mega Products LLC is a New Jersey limited liability company with an
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`address and principal place of business at 399 Mulberry Street, Newark, New
`
`Jersey 07102.
`
`14. Mega is involved in the intentional purchase, sale, and/or other
`
`distribution of Infringing Tuna in the District of New Jersey and nationwide.
`
`15.
`
`Ecuatorianita Import & Export Corp. is a New Jersey corporation with
`
`an address and principal place of business at 408 Keswick Drive, Piscataway, New
`
`Jersey 08855.
`
`16.
`
`Ecuatorianita is involved in the intentional purchase, sale, and/or other
`
`distribution of Infringing Tuna in the District of New Jersey and nationwide.
`
`17. Mi Tierra Foods, LLC is a New Jersey limited liability company with
`
`an address and place of business at 14 Libella Ct., Newark, New Jersey 07105-
`
`4633.
`
`18. Mi Tierra is involved in the intentional purchase, sale, and/or other
`
`distribution of Infringing Tuna in the District of New Jersey and nationwide.
`
`19. Upon information and belief, Defendants are a part of the same supply
`
`and distribution chain involving the Infringing Tuna, and acted to intentionally
`
`buy, sell, and/or otherwise distribute the Infringing Tuna in the District of New
`
`Jersey and nationwide.
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`5
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`JURISDICTION AND VENUE
`
`20.
`
`This Court has subject matter jurisdiction over Tri-Union’s Lanham
`
`Act and claims under 15 U.S.C. § 1121, and 28 U.S.C. §§ 1331 and 1338.
`
`21.
`
`Personal jurisdiction is proper in this judicial district because each
`
`Defendant has had substantial contacts within the State of New Jersey, including
`
`doing business in New Jersey and directing sales in the State of New Jersey, as
`
`well as being registered to do business in New Jersey with the New Jersey
`
`Secretary of State, and operating their principal place of business within New
`
`Jersey. Additionally, Defendants sold and/or distributed Infringing Tuna in New
`
`Jersey, within this judicial district.
`
`22. Venue is proper in the District of New Jersey under 28 U.S.C. §
`
`1391(b) because a substantial portion of the events and/or omissions giving rise to
`
`Tri-Union’s claims occurred here, namely, Defendants’ intentional purchases,
`
`sales, and/or other distributions of Infringing Tuna.
`
`FACTS COMMON TO ALL CLAIMS
`
`VAN CAMP’S® CANNED FISH AND TUNA PRODUCTS
`
`23.
`
`Tri-Union manufactures, imports, markets, and sells “VAN CAMP’S”
`
`brand canned fish products, including VAN CAMP’S® canned tuna (“VAN
`
`CAMP’S® Tuna”), among other products, in the United States.
`
`6
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`24.
`
`Tri-Union’s VAN CAMP’S® Tuna is exclusively manufactured and
`
`imported into the United States after which Tri-Union subjects it to quality control
`
`standards.
`
`25.
`
`For over fifty years Tri-Union (and its predecessor in interest) has
`
`manufactured, sold, marketed, promoted and distributed high-quality VAN
`
`CAMP’S® canned fish, including tuna, in the United States.
`
`26.
`
`If authentic VAN CAMP’S® Tuna meet with Tri-Union’s high
`
`standards, then Tri-Union, through its exclusive U.S. distributor, distributes them
`
`to wholesale stores and retailers throughout the United States.
`
`27.
`
`The retail stores, in turn, sell VAN CAMP’S® Tuna to consumers.
`
`THE VAN CAMP’S® TRADEMARK
`
`28.
`
`The following registered “VAN CAMP’S® Trademark” appears on
`
`the Principal Register in the United States Patent and Trademark Office
`
`(“USPTO”) and appears alone or in combination on all authentic VAN CAMP’S®
`
`canned fish distributed by Tri-Union in the United States: U.S. Registration No.
`
`674288 for VAN CAMP’S (word mark). A true and accurate copy of the VAN
`
`CAMP’S® Trademark registration certificate issued by the USPTO is included as
`
`Exhibit A.
`
`29.
`
`The VAN CAMP’S® Trademark has been continuously and
`
`exclusively used by Tri-Union, and its predecessor in interest, on, and in
`
`7
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`connection with, superior quality canned fish, including tuna, in the United States.
`
`30. Because of the sales history of VAN CAMP’S® Tuna, and the
`
`longevity of the brand, among other factors, Tri-Union has developed substantial
`
`goodwill and a reputation among U.S. consumers as the exclusive original source
`
`of all high-quality VAN CAMP’S® canned fish, including tuna, in the United
`
`States, and Tri-Union has become known, nationwide, as the exclusive and only
`
`source of authentic VAN CAMP’S® Tuna in the United States.
`
`31.
`
`Example photographs of Tri-Union’s VAN CAMP’S® Tuna bearing
`
`the VAN CAMP’S Trademark are depicted below.
`
`DEFENDANTS’ WILLFUL INFRINGEMENT OF TRI-UNION’S VAN
`CAMP’S® TUNA
`
`32. Defendants are engaged in acquiring and selling, or otherwise
`
`distributing infringing and counterfeit VAN CAMP’S® Tuna.
`
`8
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`33. Defendants buy and sell Infringing Tuna in look-alike packaging
`
`containing infringing and counterfeit versions of the VAN CAMP’S® Trademark
`
`creating the false commercial impression that the Infringing Tuna is Tri-Union’s
`
`VAN CAMP’S® Tuna, when it is not.
`
`34. Defendants’ Infringing Tuna does not originate with Tri-Union; is not
`
`made with Tri-Union’s permission, or under any license(s) from Tri-Union; and is
`
`not made with any authority to use Tri-Union’s VAN CAMP’S® Trademark.
`
`35. Defendants’ Infringing Tuna differs from Tri-Union’s authentic VAN
`
`CAMP’S® Tuna in material ways, including and without limitation:
`
`a. It contains different ingredients;
`
`b. The nutrition fact panel is in Spanish;
`
`c. The Infringing Tuna net weight and drain weight declared on the label
`
`deviates from the standard of identify for canned tuna under FDA
`
`regulations;
`
`d. The Infringing Tuna omits Vitamin D and Potassium nutrient values;
`
`e. The Infringing Tuna has a different serving size in grams; and
`
`f. The Infringing Tuna is packaged, processed, and caught differently
`
`than Tri-Union’s VAN CAMP’S® Tuna;
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`36.
`
` Tri-Union’s authentic VAN CAMP’S® Tuna is subject to strict and
`
`exacting quality control standards and are stored and sold under known and
`
`verifiable conditions.
`
`37. By contrast, Defendants’ Infringing Tuna is not subject to any known
`
`quality control standards, and Tri-Union cannot tell what conditions the Infringing
`
`Tuna has been subjected to.
`
`38.
`
`Tri-Union, therefore, cannot confirm the quality or ingredients used to
`
`manufacture the Infringing Tuna, and consumers likewise cannot verify that the
`
`particular products they purchase meet with their high expectations for Tri-Union’s
`
`authentic VAN CAMP’S® Tuna.
`
`39. Upon information and belief, Defendants’ Infringing Tuna is
`
`manufactured in Ecuador by Inepaca Industria, outside of Tri-Union’s care,
`
`control, and authorized manufacturing and distribution channels.
`
`40. Upon information and belief, Defendants’ misconduct in engaging in
`
`this counterfeiting is willful.
`
`41. Recently, Tri-Union became aware that Defendants were offering the
`
`Infringing Tuna for sale at their distribution and retail locations in New Jersey
`
`(hereafter referred to as “Stores”).
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`42. At their Stores, Defendants intentionally presented the Infringing
`
`Tuna next to, and/or adjacent to Tri-Union’s authentic VAN CAMP’S® Tuna on
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`10
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`shelves to consumers.
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`43. While on the shelves at Defendants’ Stores, the Infringing Tuna bears
`
`counterfeit versions of the VAN CAMP’S® Trademark.
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`44. Additionally, the Infringing Tuna at Defendants’ Stores bears Spanish
`
`text, including Spanish text in the Nutritional Fact Panel for the products.
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`Defendants’ then stickered over the Spanish language Nutritional Fact Panel with
`
`one that was not printed on the packaging bearing English text.
`
`45.
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`Photographs depicting the Infringing Tuna at Defendants’ Stores
`
`bearing counterfeit versions of the VAN CAMP’S® Trademark, a Spanish
`
`language Nutritional Fact Panel, and a stickered over Nutritional Fact Panel, are
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`below:
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`11
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`46. On the stickered Nutritional Fact Panel, the packaging of the
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`Infringing Tuna also states that it is “IMPORTED & DISTRIBUTED BY: Mega
`
`Products LLC”. Defendant Mega is not an authorized importer of Tri-Union’s
`
`VAN CAMP’S® Tuna.
`
`47. An example of the above language concerning importation on the
`
`Infringing Tuna is below:
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`12
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`48. Defendants’ Infringing Tuna also directs consumers to a phone
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`number and email address as a contact number concerning the product, which are
`
`not owned, operated, or controlled by Tri-Union.
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`49. An example of the phone number and email contact information
`
`depicted on Defendant’s Infringing Tuna is below:
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`Defendants’ Counterfeiting Is Intentional and Willful
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`50. Upon information and belief, Defendants are professional sellers of
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`various food products including canned tuna.
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`13
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`51. As professional sellers of various food products including canned
`
`tuna, Defendants should have been aware of the labeling requirements for said
`
`products in the United States. The labels on the Infringing Tuna are not compliant
`
`with United States labeling regulations.
`
`52. Among other issues, the nutrition label of the Infringing Tuna sold by
`
`Defendants does not list the correct serving size for the product; does not list the
`
`correct nutritional values based upon 120-gram (“g”) serving size; and does not
`
`include Vitamin D & Potassium nutrient values.
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`53. Additionally, the net weight and drain weight of the Infringing Tuna
`
`declared on the label deviates from the standard of identity for canned tuna and
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`temporary marketing permit (“TMP”) issued by the Food and Drug Administration
`
`(21 C.F.R. § 161.190). The declared net weight of the product does not comply
`
`with the TMP as it does not include enough tuna fish. The net contents of the
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`Infringing Tuna should also be shown in both metric system (grams, kilograms,
`
`etc.) and U.S. Customary System (ounces, pounds, fluid ounces, etc.) terms.
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`54. Accordingly, the packaging of Defendants’ products alleging that it is
`
`“canned tuna” is false as it false to meet the standard of identity for canned tuna set
`
`by the FDA.
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`55.
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`Such false statement is likely to deceive consumers, and to be material
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`to consumer purchasing decisions as consumers are obtaining less tuna fish if
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`14
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`purchasing Defendants’ Infringing Tuna then they could have obtained if they had
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`purchased Tri-Union’s authentic VAN CAMP’S® Tuna.
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`56.
`
`The listed nutrients of the Infringing Tuna deviate from those of
`
`authentic VAN CAMP’S® Tuna in multiple respects including but not limited to
`
`listing an amount of 10g of added sugar on the Infringing Tuna label when
`
`authentic VAN CAMP’S® Tuna does not reference 10g of added sugar.
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`57. At all relevant times, Defendants knew, or should have known, Tri-
`
`Union was the exclusive source and a distributor of VAN CAMP’S® Tuna in the
`
`United States.
`
`58. Defendants did not obtain the Infringing Tuna from Tri-Union or any
`
`other authorized source as the label of the Infringing Tuna indicates that the
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`15
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`products were manufactured in Ecuador by Inepaca Industria, not Tri-Union:
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`59. Upon information and belief, Defendants recognized that the
`
`Infringing Tuna did not originate with Tri-Union.
`
`60. Defendants recognized indicators on the Infringing Tuna they bought,
`
`sold, or otherwise distributed (e.g., labeling differences, distribution differences,
`
`etc.) demonstrating that the Infringing Tuna was not authentic or authorized by
`
`Tri-Union.
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`61. Defendants are aware that the Infringing Tuna does not originate from
`
`Tri-Union, and are aware that the Infringing Tuna is not affiliated with or approved
`
`by Tri-Union.
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`16
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`62. Defendants’ purchase, sale, and other distribution of the Infringing
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`Tuna is with knowledge of Tri-Union’s rights in and to the VAN CAMP’S® Tuna;
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`of the Infringing Tuna’s counterfeit status; and of the damage and harm caused by
`
`the Infringing Tuna to Tri-Union and in the marketplace.
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`Damages and Irreparable Harm to Tri-Union
`
`63. As alleged above, Defendants’ Infringing Tuna has distinct quality
`
`differences from Tri-Union’s authentic VAN CAMP’S® Tuna, namely, it is not
`
`subjected to any known quality control standards, it displays a different language
`
`on the label then Tri-Union’s VAN CAMP’S® Tuna, it displays different
`
`nutritional information then VAN CAMP’S® Tuna, and it does not meet FDA
`
`labeling requirements for canned tuna products in the United States.
`
`64. When consumers purchase Defendants’ Infringing Tuna, they are less
`
`likely to think favorably of Tri-Union than they would if they had purchased Tri-
`
`Union’s authentic VAN CAMP’S® Tuna.
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`65.
`
`If a consumer has a negative experience with Defendants’ Infringing
`
`Tuna, and wrongfully attributes defects in the Infringing Tuna to Tri-Union, the
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`consumer may decide not to use Tri-Union’s authentic VAN CAMP’S® Tuna in
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`the future and may switch to another tuna brand. If that happens, it may never be
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`possible for Tri-Union to regain the consumers’ lost trust in the VAN CAMP’S®
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`brand, and VAN CAMP’S® Tuna.
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`17
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`66. Defendants’ purchase, sale, and other distribution of Infringing Tuna
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`thus deprives Tri-Union of its absolute right to control the quality and relative
`
`safety of the products that appear to be sold under its VAN CAMP’S® brand, and
`
`the VAN CAMP’S® Trademark.
`
`67. As a direct and proximate result of the foregoing, Tri-Union has
`
`suffered, and unless Defendants’ conduct is enjoined by this Court, will continue to
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`suffer, actual economic damages in the form of lost sales, revenues, and profits,
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`and irreparable harm to Tri-Union’s VAN CAMP’S® brand value, reputation, and
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`goodwill, for which Tri-Union has no adequate legal remedy.
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`FIRST CLAIM FOR RELIEF
`
`Federal Trademark Counterfeiting (15 U.S.C. § 1114)
`
`68.
`
`Tri-Union realleges and incorporates by reference each of the above
`
`paragraphs as though fully set forth herein.
`
`69.
`
`In violation of 15 U.S.C. § 1114, Defendants have used spurious
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`designations that are identical with, or substantially indistinguishable from, Tri-
`
`Union’s VAN CAMP’S® Trademark in connection with canned tuna goods, which
`
`are covered by the VAN CAMP’S® Trademark.
`
`70. Defendants have used the spurious designations knowing that they are
`
`counterfeit in connection with the advertisement, promotion, sale, offering for sale
`
`and distribution of goods.
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`18
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`71. Defendants’ use of the VAN CAMP’S® Trademark to advertise,
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`promote, offer for sale, distribute and sell Defendants’ Infringing Tuna, was and is
`
`without Tri-Union’s consent.
`
`72. Defendants’ unauthorized use of the VAN CAMP’s® Trademark on
`
`and in connection with Defendants’ advertisement, promotion, sale, offering for
`
`sale, and distribution of Infringing Tuna constitutes Defendants’ use of the VAN
`
`CAMP’S® Trademark in commerce.
`
`73. Defendants’ unauthorized use of the VAN CAMP’S® Trademark is
`
`likely to cause confusion, or to cause mistake, or to deceive consumers.
`
`74. Defendants’ unauthorized use of the VAN CAMP’S® Trademark is
`
`likely to cause the public to believe that Defendants’ Infringing Tuna is the same
`
`as Tri-Union’s VAN CAMP’S® tuna, or that it is authorized, sponsored, or
`
`approved by Tri-Union, when it is not.
`
`75. As a direct and proximate result of Defendants’ willful misconduct,
`
`Tri-Union has suffered economic damages and irreparable harm to the value and
`
`goodwill associated with the registered VAN CAMP’S® Trademark, and
`
`irreparable harm to Tri-Union’s reputation in the industry.
`
`76. Unless Defendants are restrained and enjoined from buying, selling,
`
`or otherwise distributing Infringing Tuna, or counterfeiting or infringing the VAN
`
`CAMP’S® Trademark, Tri-Union will continue to be economically damaged and
`
`19
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 20 of 35 PageID: 20
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`irreparably harmed.
`
`77. Defendants’ acts constitute trademark counterfeiting in violation of
`
`Section 32 of the Lanham Act, 15 U.S.C. § 1114.
`
`78. Defendants’ actions constitute willful counterfeiting of Tri-Union’s
`
`exclusive rights in and to the VAN CAMP’S® Trademark, which is registered on
`
`the Principal Register, and which Tri-Union respectively owns/has the exclusive
`
`right to use/enforce for canned fish, including canned tuna, in the United States.
`
`79.
`
`Tri-Union is also entitled to relief under 15 U.S.C. § 1117(b)
`
`including but not limited to, statutory damages, enhanced damages, and/or
`
`reasonable attorneys’ fees and/or investigative fees, in amounts not yet known, but
`
`to be determined at trial.
`
`SECOND CLAIM FOR RELIEF
`
`Federal Trademark Infringement (15 U.S.C. § 1114)
`
`80.
`
`Tri-Union realleges and incorporates by reference each of the above
`
`paragraphs as though fully set forth herein.
`
`81.
`
`In violation of 15 U.S.C. § 1114, Defendants used in commerce,
`
`without Tri-Union’s consent, either a reproduction, counterfeit, copy, or colorable
`
`imitation of the registered VAN CAMP’S® Trademark, on and in connection with
`
`the sale, offering for sale, distribution, or advertising of counterfeit Infringing
`
`Tuna, which is likely to cause confusion, or to cause mistake, or to
`
`20
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 21 of 35 PageID: 21
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`deceive consumers.
`
`82. Defendants’ actions constitute willful infringement of Tri-Union’s
`
`exclusive rights in and to the VAN CAMP’S® Trademark, which is registered on
`
`the Principal Register, and which Tri-Union respectively owns/has the exclusive
`
`right to use/enforce for canned fish, including canned tuna, in the United States.
`
`83. As a direct and proximate result of Defendants’ willful misconduct,
`
`Tri-Union has suffered economic damages and irreparable harm to the value and
`
`goodwill associated with the registered VAN CAMP’S® Trademark, and
`
`irreparable harm to Tri-Union’s reputation in the industry. Unless Defendants are
`
`restrained and enjoined from buying, selling, or otherwise distributing Infringing
`
`Tuna, or counterfeiting or infringing the VAN CAMP’S® Trademark, Tri-Union
`
`will continue to be economically damaged and irreparably harmed.
`
`84. As a direct and proximate result of Defendants’ willful misconduct,
`
`Defendants have earned illicit profits, and Tri-Union has suffered lost profits from
`
`lost sales, in amounts not yet known but to be determined at trial.
`
`85.
`
`Tri-Union has no remedy at law that could compensate it for the
`
`continued, irreparable harm caused by Defendants’ purchase, sale, and other
`
`distribution of Infringing Tuna, and counterfeiting and infringement of the VAN
`
`CAMP’S® Trademark. Accordingly, Tri-Union seeks, and is entitled to,
`
`preliminary and permanent injunctive relief.
`
`21
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 22 of 35 PageID: 22
`
`86.
`
`Tri-Union is also entitled to statutory damages, enhanced damages,
`
`and/or reasonable attorneys’ fees, in amounts not yet known, but to be determined
`
`at trial.
`
`THIRD CLAIM FOR RELIEF
`
`False Advertising (15 U.S.C. § 1125(a))
`
`87.
`
`Tri-Union realleges and incorporates by reference each of the above
`
`paragraphs as though fully set forth herein.
`
`88.
`
`In violation of 15 U.S.C. § 1125(a), Defendants in connection with
`
`their purchase, sale, and other distribution of Infringing Tuna, used in commerce a
`
`slogan, trade dress, word, term, name, symbol, or device, or a combination thereof,
`
`or a false designation of origin, false or misleading description of fact, or false or
`
`misleading representation of fact, which was and is likely to cause confusion or to
`
`cause mistake, or to deceive consumers as to an affiliation, connection, or
`
`association with Tri-Union.
`
`89. Without limitation Defendants’ falsely asserted that their Infringing
`
`Tuna was “canned tuna”, which is false, and misbranded, as Defendants’
`
`Infringing Tuna does not meet the standard of identity for “canned tuna” set by the
`
`Food and Drug Administration.
`
`90.
`
`Such false statement is material to consumers as consumers are being
`
`deceived into believing that Defendants’ Infringing Tuna contains more dry weight
`
`22
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 23 of 35 PageID: 23
`
`tuna fish than it actually does. If Defendants’ Infringing Tuna is purchased by
`
`consumers, consumers would get less tuna then if they were to buy Tri-Union’s
`
`authentic VAN CAMP’S® Tuna in the same size can.
`
`91. As a direct and proximate result of Defendants’ false statements, Tri-
`
`Union has suffered, and is suffering, economic damages and irreparable harm to
`
`the value and goodwill associated with their common-law trademarks, including
`
`the VAN CAMP’S® Trademark, and associated reputations, brand values, and
`
`goodwill.
`
`92. Unless Defendants are restrained and enjoined from falsely
`
`advertising the Infringing Tuna, Tri-Union will continue to be economically
`
`damaged and irreparably harmed.
`
`93.
`
`Tri-Union has no adequate remedy at law that could compensate it for
`
`the continued and irreparable harm it has suffered, and will continue to suffer, if
`
`Defendants’ purchase, sale, and other distribution of Infringing Tuna is allowed to
`
`continue. Thus, Tri-Union seeks, and is entitled to, preliminary and permanent
`
`injunctive relief.
`
`94. As a direct and proximate result of Defendants’ willful misconduct,
`
`Defendants have earned illicit profits, and Tri-Union has suffered lost profits from
`
`lost sales, in amounts not yet known but to be determined at trial.
`
`95.
`
`Tri-Union is entitled to damages, trebled damages, and/or reasonable
`
`23
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 24 of 35 PageID: 24
`
`attorneys’ fees, in amounts not yet known, but to be determined at trial.
`
`FOURTH CLAIM FOR RELIEF
`
`False Designation of Origin, Unfair Competition, and Trademark
`Infringement (15 U.S.C. § 1125(a))
`
`96.
`
`Tri-Union realleges and incorporates by reference each of the above
`
`paragraphs as though fully set forth herein.
`
`97.
`
`In violation of 15 U.S.C. § 1125(a), Defendants, in connection with
`
`their purchase, sale, and other distribution of Infringing Tuna, used in commerce a
`
`slogan, trade dress, word, term, name, symbol, or device, or a combination thereof,
`
`or a false designation of origin, false or misleading description of fact, or false or
`
`misleading representation of fact, which was and is likely to cause confusion or to
`
`cause mistake, or to deceive consumers as to an affiliation, connection, or
`
`association with Tri-Union.
`
`98. Without limitation, Defendants willfully sold Infringing Tuna bearing
`
`counterfeit and infringing versions of the VAN CAMP’S® Trademark, and
`
`infringed Tri-Union’s nationwide common-law rights therein.
`
`99. As a direct and proximate result of Defendants’ willful misconduct,
`
`Tri-Union has suffered, and is suffering, economic damages and irreparable harm
`
`to the value and goodwill associated with their common-law trademarks and trade
`
`dresses, including the VAN CAMP’S® Trademark, and associated reputations,
`
`brand values, and goodwill.
`
`24
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 25 of 35 PageID: 25
`
`100. Unless Defendants are restrained and enjoined from further
`
`infringement of the VAN CAMP’S® Trademark, and from falsely designating the
`
`Infringing Tuna’s origin as originating with Tri-Union, Tri-Union will continue to
`
`be economically damaged and irreparably harmed.
`
`101. Tri-Union has no adequate remedy at law that could compensate it for
`
`the continued and irreparable harm it has suffered, and will continue to suffer, if
`
`Defendants’ purchase, sale, and other distribution of Infringing Tuna is allowed to
`
`continue. Thus, Tri-Union seeks, and is entitled to, preliminary and permanent
`
`injunctive relief.
`
`102. As a direct and proximate result of Defendants’ willful misconduct,
`
`Defendants have earned illicit profits, and Tri-Union has suffered lost profits from
`
`lost sales, in amounts not yet known but to be determined at trial.
`
`103. Tri-Union is entitled to damages, trebled damages, and/or reasonable
`
`attorneys’ fees, in amounts not yet known, but to be determined at trial.
`
`FIFTH CLAIM FOR RELIEF
`
`Trademark Infringement Under the New Jersey Trademark Act (N.J.S.A.
`56:3-13a, et seq.)
`
`104.
`
` Tri-Union realleges and incorporates by reference each of the above
`
`paragraphs as though fully set forth herein.
`
`105.
`
` In violation of the New Jersey Trademark Act (N.J.S.A. 56:3-13a, et
`
`seq.), Defendants used, without the consent of Tri-Union, a reproduction,
`
`25
`
`
`
`Case 2:20-cv-09537-JMV-MF Document 1 Filed 07/28/20 Page 26 of 35 PageID: 26
`
`counterfeit, copy, or colorable imitation of the VAN CAMP’S® Trademark in
`
`connection with the sale, distribution, offering for sale, or advertising in New
`
`Jersey of the Infringing Tuna which is likely to cause confusion, or to cause
`
`mistake, or to deceive consumers as to the source of the origin of the goods or
`
`services.
`
`106. Defendants’ actions constitute willful infringement of Tri-Union’s
`
`exclusive rights in and to the VAN CAMP’S® Trademark, which is registered on
`
`the Principal Register, and which Tri-Union respectively owns/has the exclusive
`
`right to use/enforce for canned fish, including canned tuna, in the United States.
`
`107. As a direct and proximate result of Defendants’ willful misconduct,
`
`Tri-Union has suffered economic damages and irreparable harm to the value and
`
`goodwill associated with the registered VAN CAMP’S® Trademark, and
`
`irreparable harm to Tri-Union’s reputation in the industry. Unless Defendants are
`
`restrained and enjoined from buying, selling, or otherwise distributing Infringing
`
`Tuna, or counterfeiting or infringing the VAN CAMP’S® Trademark, Tri-Union
`
`will continue to be economically damaged and irreparably harmed.
`
`108. As a direct and proximate result of Defendants’ willful misconduct,
`
`Defendants have earned illicit profits, and Tri-Union has suffered lost profits from
`
`lost sales, in amounts not yet known but to be determine
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