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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`CCR INTERNATIONAL, INC.
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`v.
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`THE ELIAS GROUP, LLC ,
`COCO RICO, LLC
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`Plaintiffs,
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`No. 15 Cv. 6563
`Declaratory Judgment
`Illegal Appropriation of
`Trademark
`Breach of Contract
`Injunction
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`Defendants.
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`COMPLAINT
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`INTRODUCTION
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`Defendant has obligated plaintiff to file this Complaint rather than
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`complying with the Lanham Act and defendant’s straightforward contractual
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`obligations. The Elias Group anticipated this situation with a Guaranty Agreement
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`that instead of being self-executing, requires CCR International, Inc. to occupy this
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`Honorable Court’s time with defendant’s breach.
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`CCR International, Inc. is a successor corporation to Coco Rico, Inc , a
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`Puerto Rico corporation, established in 1949 to manufacture a natural coconut base
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 2 of 18
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`concentrate used in the manufacturing of the internationally known carbonated soft
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`drink Coco Rico. After its success, Coco Rico’s business, under CCR International,
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`Inc. suffered serious reverses with the recession in Puerto Rico, which began in
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`2006.
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`In March 2008, CCR Development Group, Inc. agreed to buy the Coco Rico
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`Assets pursuant to an Asset Purchase Agreement from CCR International, Inc. for
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`Twelve Million Eight Hundred Thousand Dollars ($12,800,000). Of that amount,
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`CCR Development eventually paid only a small percentage and then defaulted on
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`its payments, although CCR Development continued to produce and sell Coco
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`Rico. Desperate because of CCR Development Group’s breach of contract, the
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`principals of CCR International approached a long term business distributor of
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`Coco Rico Richard Hahn, principal of GoodO Beverage an affiliate company of
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`the Honickman Group. GoodO Beverage has been manufacturing and distributing
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`Coco Rico for more than 30 years.
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`Believing in the good faith and trusting due to long time business and
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`personal relationships with the principals of the Honickman group, especially
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`Richard Hahn and Harold Honickman, the principals of CCR International engaged
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`in extended negotiations with Richard Hahn of defendant Elias Group for a period
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`approximately (5) five years looking to stabilize CCR International and maintain
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`its cash flow. CCR International agreed to assign the Nine Million Dollar
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 3 of 18
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`($9,000,000 USD) debt from CCR Development Group, Inc. to the Elias Group at
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`a discount, under an Assignment Agreement. CCR International gave Elias Group a
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`four million dollar ($4,000,000 USD) benefit to facilitate Elias Group’s purchase
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`of the Coco Rico assets, which are currently valued at Fourteen Million Four
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`Hundred Thousand ($14,400,000 USD).
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`Elias Group finally agreed to Purchase the Coco Assets pursuant to an Asset
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`Purchase Agreement, in which it discounted Eight Million Five Hundred Thousand
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`Dollars ($8,500,000 USD) from the value of the Coco Rico Assets of $14,400,00
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`Million, CCR Development Group’s obligations and the Assignment note value
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`given by CCR International to Elias Group. Under the Assignment Agreement,
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`Elias Group agreed to pay CCR International $37,500 monthly for a total of
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`$450,000 a year until the Elias Group was able to paid plaintiff $4,700,000 in a
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`lump sum. Instead, the defendant liquidated the CCR Development Group’s
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`obligations and discounted the Assignment Agreement value and made payments
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`of $6,041,000, for the benefit of CCR Development Group, Inc., not CCR
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`International, Inc.
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`At the closing, CCR International transferred all of its intellectual property
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`worldwide to Coco Rico, LLC, a Puerto Rico limited liability corporation that the
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`principals of Elias Group had created to take advantage of tax exemptions in
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`Puerto Rico. CCR International did so because the Elias group informed CRR’s
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 4 of 18
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`principal that the Elias Group had opted to pay the monthly payments for a period
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`of time before making the complete buyout with the $5,000,000 payment the
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`Assignment Agreement provided. Instead, on June 9, 2015, Elias Group announced
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`that it would pay none of its obligation to CCR International. Once the Elias Group
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`made that announcement, CCR International asked for the closing documents,
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`which the Elias Group did not produce until recently.
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`Since April, defendants have been using plaintiff’s trademarks valued at
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`Fourteen Million Four Hundred Thousand Dollars ($14, 400,000 USD) worldwide
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`without having paid for them. Because of defendants’ actions in bad faith, plaintiff
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`seeks to be compensated in the amount of $8,359,000 million dollars [the
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`remainder of the $14.4 million was paid or discounted] and for a preliminary
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`injunction ordering defendants to cease and desist from using the Coco Rico
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`trademarks and formula that belong to CCR International, Inc.
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`JURISDICTION AND VENUE
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`1.
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`The Court has jurisdiction of this case under the Trademark Act of
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`1946, 15 U.S.C. §§ 1501 et seq., as amended by the Prioritizing
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`Resources and Organization for Intellectual Property Act of 2007,
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`H.R. 4279 (October 13, 2008) (the “Lanham Act”) and for unlawful
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`and deceptive acts and practices under the laws of the State of New
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 5 of 18
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`York.
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`2.
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`This Court has original jurisdiction over this action pursuant to 28
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`U.S.C. §§ 1331, and 1338 (a) and (b); and 15 U.S.C. §§ 1116 and
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`1121. This Court also has supplemental jurisdiction under 28 U.S.C. §
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`1367 over Plaintiff’s claims for unlawful and deceptive acts and
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`practices and breach of contract under the laws of the State of New
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`York.
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`3.
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`Venue is proper in the Southern District of New York under 28 U.S.C.
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`§ 1391, because defendants do business there and a substantial part of
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`the transactions at issue occurred there. Moreover, the different
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`agreements among the parties specify that New York law shall apply
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`and that the parties agree to submit to the jurisdiction of this
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`Honorable Court.
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`THE PARTIES
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`Plaintiff
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`4.
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`Plaintiff, CCR INTERNATIONAL, INC. is a corporation organized
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`under laws of the Commonwealth of Puerto Rico.
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`5.
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`Defendant, Elias Group, LLC, is a limited liability corporation, on
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`information and belief organized under the laws of the State of Delaware, which
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`breached its agreements with CCR International so that it could appropriate the
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 6 of 18
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`Coco Rico assets, as defined herein, for its benefit and for the benefit of its
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`affiliated corporation, Coco Rico, LLC, without paying plaintiffs the consideration
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`it had agreed to pay.
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`6.
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`Coco Rico, LLC is a Puerto Rico limited liability corporation which
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`the Elias Group set up in Puerto Rico to take advantage of Puerto Rico’s tax
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`exemptions. Coco Rico, LLC received CCR International’s intellectual property,
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`including the trademarks without paying any consideration.
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`FACTUAL ALLEGATIONS
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`Coco Rico’s Early Years
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`7.
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`Coco Rico was founded as a soft drink company catering to the tastes
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`of its customers in Puerto Rico and throughout the Caribbean in 1949. Since its
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`origin, Coco Rico grew steadily, expanding worldwide, with particular success in
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`Hispanic and Asian markets in the US.
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`8.
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`CCR International, Inc. is the owner or holder of certain registered
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`trademarks and service marks, in each case related to the development,
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`manufacture, and sale of proprietary soft drinks that are registered in the United
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`States, Puerto Rico, the U.S. Virgin Islands, the British Virgin Islands, Trinidad and
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`Tobago, Aruba, Dominican Republic, Curacao, Bonaire, St. Martin,
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`the
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`Netherlands, and Hong Kong. Coco Rico International’s trademarks include, but
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`are not limited to, Coco Rico.
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`9.
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`CCR International, Inc. is a family owned company. Jose and Roberto
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`Fuertes took over the operations from their father, while their grandfather had
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`founded the company.
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`10. Coco Rico, Inc. and CCR International’s principals worked in the
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`company their entire lives and met Richard Hahn and Harold Honickman when
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`they began to take positions of authority in the business.
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`11.
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`In addition to the distribution of Pepsi in the Northeast, the Elias
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`Group, Mr. Honickman owns Canada Dry, as well as a number of commercial juice
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`and tea companies.
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`12. Over the years, the Fuertes met with Honickman and Richard Hahn
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`over business matters and developed professional and personal relationships with
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`them. Jose Fuertes has visited Honickman and Hahn in their respective residences
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`in Philadelphia and California.
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`13. As Puerto Rico entered into a recession in 2006, Coco Rico began
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`searching for a white knight because it was saddled with high operating costs and a
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`shrinking base in its original market of Puerto Rico.
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` The March 2008 Sale to CCR Development
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`14. On March 31, 2008, CCR International entered into an Asset Purchase
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 8 of 18
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`Agreement, wherein CCR International sold the formula to its soft drink, its
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`trademarks, and its manufacturing facilities to CCR Development Group, Inc. for
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`Twelve Million Eight Hundred Thousand Dollars ($12,800,000 USD). CCR
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`Development was to place one million five hundred thousand dollars ($1,500,000)
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`in escrow and make monthly payments of $50,000.
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`15. Over time, two significant developments occurred.
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`16. First, CCR Development Group failed to pay the $1,500,000 into an
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`escrow account and started defaulting on its monthly payments.
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`17. Second, things coconut became enormously popular, and Coco Rico’s
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`sales increased substantially.
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`18. Given CCR’s repeated breaches and its own improved prospects, CCR
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`International, Inc. began looking for other purchasers.
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`19. Coca Cola of Puerto Rico was interested in buying the Coco Rico
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`Assets, as was the Honickman affiliate, defendant Elias Group.
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`20. Plaintiff chose the Elias Group because of CCR International’s
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`principals’ positive relationship with Harold Honickman, dating back decades.
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`The 2013 Assignment Agreement to the Elias Group
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`21.
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`In January 2013, CCR International agreed to assign its rights under
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`the 2008 Agreement to the Elias Group, LLC, a company created by an affiliate of
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`the Honickman Group for this transaction in exchange for an initial payment of
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`Three Hundred Thousand dollars ($300,000 USD) and the Elias Group’s
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`conditional agreement to purchase the Coco Rico assets after conducting due
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`diligence to determine whether to execute an Asset Purchase Agreement for those
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`assets.
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`22. During the due diligence, the Elias Group agreed to pay CCR
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`International $50,000 a month the Elias Group received from CCR Development
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`from Coco Rico’s sales up to a yearly maximum of $400,000.
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`23. Once the Elias Group completed its due diligence to its satisfaction, it
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`agreed to purchase the Coco Rico trademark and formula from CCR International
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`for thirty seven thousand five hundred dollars ($37,500) monthly up to four
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`hundred and fifty thousand dollars ($450,000) a year and a buyout amount paid to
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`CCR International of five million dollars ($5,000,000) less the initial payment of
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`three hundred thousand ($300,000).
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`24. Because Hahn and Honickman were personally involved in the
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`negotiations over this transaction, the Fuertes trusted that defendants would
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`comply with their agreement.
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`25. The conditional payments were contingent upon the Elias Group
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`acquiring the rights, title, and interests in all of the Coco Rico assets.
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`26. The value of Coco Rico, as determined by the Elias Group in January
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`2013, was fourteen million dollars $14,000,000 (the nine million dollars
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`($9,000,000) that CCR Development owed to CCR International and CCR
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`International assigned to the Elias Group plus the five million dollars ($5,000,000)
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`the Elias Group agreed to pay to CCR International) plus the annual payments to
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`which the Elias Group also committed to make.
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`27. The parties subsequently entered into a Guaranty Agreement in which
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`the parties agreed that the amount CCR Development owed CCR International at
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`the time CCR International assigned its rights under the 2008 agreement to the
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`Elias Group was eight million five hundred thousand dollars ($8.5 million), thus
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`reducing the purchase price from $14.4 million to $13.9 million.
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`The 2015 Acquisition
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`28.
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` On May 22, 2015, the Elias Group cancelled CCR Development
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`Group’s debt and paid six million forty one thousand dollars ($6,041,000) to CCR
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`Development and third parties, none of which was paid to CCR International, Inc.
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`29. For example, defendants paid Raul Camara $325,000. This amount
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`did not benefit plaintiff.
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`30. Defendants also paid $866,000 to or as directed by Buyer’s Affiliate
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`Good-O Beverage Company. This amount did not benefit plaintiff.
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`31. Defendants paid $3,259,000
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`to Banco Cooperativo de Puerto
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`(Bancoop). This amount did not benefit plaintiff.
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`32. Defendants made a promissory note in the amount of $1,000,000 to
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`Bancoop as well. This amount did not benefit plaintiff.
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`33. Without any consideration being paid from Coco Rico, LLC, in
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`violation of the Assignment Agreement, to plaintiff as part of the Acquisition, Coco
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`Rico, LLC purported to acquire the Coco Rico assets, CCR International’s
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`intellectual property, including the trademarks and their corresponding goodwill of
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`over eighty years in the marketplace.
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`34. Given that the Elias Group had to make both monthly payments and a
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`buyout amount, the principals of CCR International expected that the first payment
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`in exchange for the assignment agreement would be paid 30 days after the closing.
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`35.
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`Instead, after 30 days, defendants paid nothing.
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`36. While Jose Fuertes demonstrated his consent to the transfer of the
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`Coco Rico intellectual property assets to Coco Rico LLC, such consent was
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`obtained by the Elias Group’s fraudulent averments that it intended to abide by the
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`2013 Assignment Agreement, under which CCR International would receive
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`monthly payments of $50,000 up to $400,000 and a buy out amount of four million
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`seven hundred thousand dollars ($4.7 million) at the time the Elias Group acquired
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`the Coco Rico assets.
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`CLAIMS FOR RELIEF
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`The allegations of the preceding paragraphs are re-alleged in each of the
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`subsequent claims:
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 12 of 18
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`CLAIMS FOR RELIEF
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`FIRST CLAIM
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`FEDERAL TRADEMARK INFRINGEMENT
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`(15 U.S.C. 1114)
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`37. Plaintiff hereby realleges and incorporates by reference the preceding
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`allegations of the Complaint as if fully set forth herein.
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`38. Without plaintiff’s valid authorization or consent, and having
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`knowledge of both plaintiff’s well-known and prior rights in Plaintiff’s COCO
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`RICO Marks and that defendants’ products bear marks which are intentionally
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`identical to the COCO RICO marks. Defendants have manufactured, distributed,
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`offered for sale and sold the infringing products to the consuming public in or
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`affecting interstate commerce, intentionally taking advantage of the goodwill of
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`plaintiff’s mark for defendants’ profit.
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`39. Defendants’ use of the COCO RICO mark is causing deception among
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`the consuming public as to the origin of the products, and is likely to deceive the
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`public into believing the products are authorized by COCO RICO, all to the
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`damage and detriment of CCR International’s reputation, goodwill, and sales.
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`40. Plaintiff has no adequate remedy at law, and, if Defendants’ activities
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`are not enjoined, Plaintiff will continue to suffer irreparable harm and injury to its
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`goodwill and reputation.
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`CLAIM TWO
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`UNFAIR COMPETITION
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`15 U.S.C. 1125 (a)
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`41. Plaintiff hereby realleges and incorporates by reference the preceding
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`allegations of the Complaint as if fully set forth herein.
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`42. By misappropriating and using the PlaintIff’s COCO RICO mark and
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`trade name, Defendants misrepresent the mark and falsely describe it to the general
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`public.
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`43. Defendants’ unlawful, unauthorized, and unlicensed manufacture,
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`distribution, offer for sale and/or sale of the Products creates express and implied
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`misrepresentations that the Products were created, authorized, or approved by
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`Plaintiff, all to Defendants’ profit and Plaintiff’s great damage and injury.
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`44. Defendants’ aforesaid acts are in violation of Section 43(a) of the
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`Lanham Act, 15 U.S.C. 1125(a), in that Defendants’ use of the Plaintiff’s COCO
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`RICO mark in connection with their goods and services, in interstate commerce
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`constitutes a false designation of origin.
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`45. Plaintiff has no adequate remedy at law, and if Defendants’ activities
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`are not enjoined, Plaintiff will continue to suffer irreparable harm and injury to its
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`good will and reputation
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`CLAIM THREE
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`COMMON LAW TRADEMARK AND TRADE NAME
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`INFRINGEMENT
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`46. Plaintiff hereby realleges and incorporates by reference the preceding
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`allegations of this Complaint as if fully set forth herein.
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`47. Plaintiff has built up valuable goodwill in Plaintiff’s COCO RICO
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`Mark and trade name.
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`48. With full knowledge of the fame of Plaintiff’s COCO RICO Mark and
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`trade name, Defendants have traded and continue to trade, on the goodwill
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`associated with Plaintiff’s COCO RICO Mark and trade name and mislead the
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`public into assuming a connection between the Product and Plaintiff.
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`49. Defendants’ acts of trademark and/or trade name infringement cause
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`confusion, mislead and deceive the public and falsely suggest a connection
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`between the Defendants and Plaintiff, and Defendants will continue to do so in
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`violation of the common law of the State of New York and to the detriment of
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`Plaintiff and the unjust enrichment of Defendants.
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`50. Defendants’ acts of trademark and/or trade name infringement have
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`caused and will continue to cause Plaintiff irreparable harm unless restrained by
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`this Court. Plaintiff has no adequate remedy at law.
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`CLAIM FOUR
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`(BREACH OF CONTRACT DIVERSITY)
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`51. Plaintiff hereby realleges and incorporates by reference the preceding
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`allegations of this Complaint as if fully set forth herein.
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`52. Defendants agreed to pay plaintiff $450,000 annually in consideration
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`of the Coco Rico Assets and a Buyout Amount of $5,000,000 less the $300,000
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`down payment.
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`53.
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`Instead of paying the $4,700,000 to plaintiff, defendants made
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`payments to third parties.
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`54. The payments defendants made to third parties unrelated to plaintiff
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`did not benefit plaintiff.
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`55. By such conduct, Defendants have knowingly taken possession and
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`control of property and money away from its lawfully agreed beneficiaries,
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`plaintiff herein, without plaintiff’s consent.
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`56. By such conduct, the Defendants are liable to Plaintiff in the amount
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`of 4,700,000, plus the $50,000 monthly until the buyout occurs as agreed.
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`CLAIM FIVE
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`FRAUD IN THE INDUCEMENT TRANSFER OF WORLDWIDE
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`TRADEMARKS
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`57. Plaintiff hereby realleges and incorporates by reference the preceding
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`allegations of this Complaint as if fully set forth herein.
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`58. Based on defendants’ assertions that they would comply with the
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`Assignment Agreement, plaintiff herein assigned all of Coco Rico’s trademarks
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`worldwide to defendants.
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`59. Plaintiff transferred its trademarks in the United States, Hong Kong,
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`and throughout Latin America based on defendants’ false assertions that defendants
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`would comply with the Assignment Agreement.
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`60. Based on Defendants’ fraudulent acts, Plaintiff is entitled to be
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`compensated in the amount of $4,700,000 plus $50,000 monthly, or, in the
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`alternative, $8,359,000, the value of the trademarks transferred as a result of
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`defendants’ fraudulent conduct.
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`CLAIM SIX
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`QUANTUM MERUIT
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`61. Plaintiff hereby reallege and incorporate by reference the preceding
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`allegations of this Complaint as if fully set forth herein.
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`62. Plaintiff is entitled to receive the full benefit of the bargain, that is, the
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`$37,500 monthly and the 4,700,000 Defendants agreed to pay.
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`CLAIM SEVEN
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`UNJUST ENRICHMENT
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`63. Plaintiff hereby reallege and incorporate by reference the preceding
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`allegations of this Complaint as if fully set forth herein.
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`64. Defendants have been unjustly enriched in the amount of four million
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`seven hundred thousand dollars ($4,700,000) plus thirty seven thousand five
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`hundred dollars ($37,500) monthly, and plaintiff has been impoverished in an equal
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`amount.
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`REQUEST FOR RELIEF
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`WHEREFORE, plaintiff requests that judgment be entered as follows:
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`A. On the First, Second and Third Claims, enter an order that the cease and
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`desist from using Plaintiff’s Trademarks, for costs, including attorneys’ fees.
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`B. On the Fourth Claim, enter an order requiring defendants to pay plaintiff
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`four million seven hundred thousand dollars ($4,700,000) plus the monthly
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`payments of thirty seven thousand five hundred ($37,500) until the buyout
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`amount.
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`C. On the Fifth Claim, enter an order requiring defendants to pay plaintiff four
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`million seven hundred thousand dollars ($4,700,000) plus the thirty seven
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`thousand five hundred ($37,500) or in the alternative, eight million three
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`hundred fifty nine thousand dollars ($8,359,000.00) for the Coco Rico
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`assets, which consist primarily of the value of Coco Rico’s intellectual
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`property and the formula.
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`D. On the Sixth Claim, enter an order requiring defendants to pay plaintiff four
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`Case 1:15-cv-06563-PAE-KNF Document 4 Filed 08/25/15 Page 18 of 18
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`million seven hundred thousand dollars ($4,700,000) plus thirty seven
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`thousand five hundred dollars monthly ($37,500) monthly for the Coco
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`Rico assets, which consist primarily of the value of Coco Rico’s intellectual
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`property.
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`E. On the Seventh Claim, enter an order requiring defendants to pay plaintiff
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`four million seven hundred thousand dollars ($4,700,000) plus thirty seven
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`thousand five hundred ($37,500) monthly for unjust enrichment.
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`F. Enter an order under plus judgment for costs, including attorneys’ fees, due to
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`defendants’ temerity.
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`^. Grant such order or further relief as to this Court may seem just and proper
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`for the redress of the CCR International, Inc., Jose Fuertes and Roberto
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`Fuertes.
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`San Juan, Puerto Rico
`August 19, 2015
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`LAW OFFICES OF
`JANE BECKER
`P.O. Box 9023914
`San Juan, Puerto Rico 00902-3914
`Tel. 787 754-9191
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`Fax 787 764-3101
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` /s/ JANE BECKER
`JANE BECKER (JB6155)
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