throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA332609
`ESTTA Tracking number:
`02/17/2010
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`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91162414
`Plaintiff
`BUILD-A-BEAR WORKSHOP, INC.
`ANTHONY MARTIN
`BLACKWELL SANDERS PEPER MARTIN LLP
`720 OLIVE ST STE 2400
`ST. LOUIS, MO 63101-2338
`UNITED STATES
`anthony.martin@huschblackwell.com
`Other Motions/Papers
`Gary A. Pierson
`gary.pierson@huschblackwell.com, jamie.diener@huschblackwell.com
`/Gary A. Pierson/
`02/17/2010
`SLD-#1564276-v1-Notice_of_Civil_Action.pdf ( 18 pages )(105063 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`CERTIFICATE OF FILING
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`I hereby certify that this correspondence is being filed with the United States Patent and
`Trademark Office via the Electronic System for Trademark Trials and Appeals on February 17, 2010.
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`/s/ Gary A. Pierson
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Opposition No. 91162414
`Application No. 76/530,408
`Mark: BUILD A BASKET
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`BUILD-A-BEAR WORKSHOP, INC.
`Opposer,
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`BABASKET, INC.
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`Applicant.
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`NOTICE OF CIVIL ACTION
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`COMES NOW Opposer Build-A-Bear Workshop, Inc., (“Build-A-Bear”), by and
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`through its counsel of records, and hereby gives notice to the Board, pursuant to 37 C.F.R. §
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`2.145(c)(4) and Trademark Rule of Practice 903.01, that on February 16, 2010, Build-A-Bear
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`filed a civil action against Applicant Babasket, Inc., in the United States District Court of the
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`Eastern District of Missouri, Eastern Division, to review the decision of the United States Patent
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`and Trademark Office, Trademark Trial and Appeal Board, dated December 18, 2009,
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`dismissing Opposition No. 91162414. A copy of the complaint is attached hereto as Exhibit A.
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`Dated: February 17, 2010
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`Respectfully Submitted,
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`/s/ Gary A. Pierson
`Gary A. Pierson
`190 Carondelet Plaza, Suite 600
`St. Louis, MO 63105
`Phone: 314-480-1500
`Fax: 314-480-1505
`gary.pierson@huschblackwell.com
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`By:
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`Attorney for Opposer Build-A-Bear Workshop, Inc.
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`CERTIFICATE OF SERVICE
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`A copy of the foregoing NOTICE OF CIVIL ACTION was sent via First Class mail,
`postage prepaid on this 17th day of February, 2010, to the following:
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`Mark P. Stone
`50 Broadway
`Hawthorne, NY 10532
`stone92349@msn.com
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`/s/ Gary A. Pierson
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`EXHIBIT A
`EXHIBIT A
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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`BUILD-A-BEAR RETAIL MANAGEMENT, INC. and
`BUILD-A-BEAR WORKSHOP, INC.,
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`Plaintiffs,
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`BABASKET, INC.,
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`Defendant.
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`COMPLAINT
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`Cause No.
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`JURY TRIAL DEMANDED
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`Plaintiffs Build-A-Bear Retail Management, Inc. and Build-A-Bear Workshop, Inc.
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`(collectively “Build-A-Bear Workshop” or “Plaintiffs”) for their Complaint against Defendant
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`Babasket, Inc. (“Defendant” or "Babasket”) allege and aver as follows:
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`JURISDICTION AND VENUE
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`1. This is an action for trademark infringement and unfair competition under the Lanham Act,
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`15 U.S.C. § 1051 et seq., common law unfair competition and trademark infringement,
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`dilution under MO. REV. STAT. § 417.061(1), and appeal from a decision of the Trademark
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`Trial and Appeal Board pursuant to 15 U.S.C. 1071(b)(1). Jurisdiction is proper under 15
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`U.S.C. § 1121, 28 U.S.C. §§ 1331, 1332, 1367(a), 1338(a) and 1338(b). Venue is proper
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`under 28 U.S.C. §1391(b) and (c).
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`SLD-1563262-2
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 2 of 15
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`PARTIES
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`2. Plaintiff Build-A-Bear Retail Management, Inc is a Delaware corporation doing business at
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`1954 Innerbelt Business Center Drive, St. Louis, Missouri 63114.
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`3.
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` Plaintiff Build-A-Bear Workshop, Inc. is a Delaware corporation with offices at 1954
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`Innerbelt Business Center Drive, St. Louis, Missouri 63114.
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`4. Upon information and belief, Defendant Babasket, Inc. is a New Jersey corporation with its
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`principal place of business at 781 Route 22 West, North Plainfield, New Jersey. Defendant
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`sells its goods throughout the United States via its stores and web site, including in this
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`judicial district.
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`PLAINTIFFS' RIGHTS
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`5. Build-A-Bear Workshop operates BUILD-A-BEAR WORKSHOP retail stores and a website
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`located at www.buildabear.com. Through these stores and its website, as well as through its
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`licensees, Plaintiff offers for sale and sells a wide variety of consumer goods, including but
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`not limited to plush and stuffed toy animals, other toys and accessories and gift baskets
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`(“Build-A-Bear Workshop’s Merchandise and Services”) in various locations throughout the
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`United States, including this judicial district.
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`6. For years, Build-A-Bear Workshop’s aforesaid stores have been operated under the name and
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`trademark BUILD-A-BEAR WORKSHOP and a logo consisting of BUILD-A-BEAR
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`WORKSHOP and Design, and there are now over 250 stores throughout the United States
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`including stores in this judicial district.
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`7. Build-A-Bear Workshop has expended considerable resources creating, developing,
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`advertising and promoting numerous distinctive trademarks and has used those trademarks in
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`connection with the operation of Build-A-Bear Workshop's stores and the sale of Build-A-
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`STLD01-911270-
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`2
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 3 of 15
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`Bear Workshop's Merchandise and Services. Build-A-Bear Workshop owns numerous
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`trademark registrations pertaining to these trademarks, including but not limited to those
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`specifically identified herein. All of the trademarks owned by Build-A-Bear Workshop
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`along with the common law rights associated therewith are hereinafter collectively referred to
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`as “The Build-A-Bear Workshop Marks.”
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`8. Build-A-Bear Workshop owns United States Trademark Registration No. 2,598,778 for
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`BUILD-A-BEAR WORKSHOP & Design for a wide variety of goods and services,
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`including retail store services and retail services via a global computer network, in the field
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`of stuffed toy animals and plush toy animals and accessories therefor.
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`9. Build-A-Bear Workshop owns United States Trademark Registration No. 2,553,748 for
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`BUILD-A-BEAR WORKSHOP, for a wide variety of goods and services, including retail
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`store services and retail services via a global computer network in the fields of stuffed toy
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`animals and plush toy animals and accessories, therefor.
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`10. Build-A-Bear Workshop owns United States Trademark Registration No. 2,756,424 for
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`BUILD-A-BEAR WORKSHOP, for stationery products, namely, printed invitations and
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`publications, namely, posters.
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`11. Build-A-Bear Workshop owns United States Trademark Registration No. 2,884,223 for
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`BUILDABEAR.COM, for retail store services via a global communications network in the
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`field of stuffed and plush toy animals and accessories therefor.
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`12. Build-A-Bear Workshop owns United States Trademark Registration No. 2,411,678 for
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`BUILD-A-PARTY, for entertainment services in the nature of parties for creating stuffed toy
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`animals and plush toy animals.
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`STLD01-911270-
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`3
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 4 of 15
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`13. Build-A-Bear Workshop owns United States Trademark Registration No. 2,745,130 for
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`BUILD-A-SONG, for entertainment services, namely providing an on-line computer game.
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`14. Build-A-Bear Workshop owns United States Trademark Registration No. 3,213,733 for
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`BUILD-A-BUG, for retail services via a global computer network in the fields of stuffed toy
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`animals and plush toy animals, dolls and accessories therefor, greeting cards, and carrying
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`cases for plush toy animals, stuffed toy animals and accessories therefor.
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`15. Build-A-Bear Workshop owns United States Trademark Registration No. 2,750,746 for
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`BUILD-A-SOUND, for a variety of services including retail store services featuring music or
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`songs prerecorded on sound recording discs for placement in stuffed and plush toy animals;
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`on-line retail store services via a global computer network featuring music or songs
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`prerecorded on sound recording discs for placement in stuffed and plush toy animals.
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`16. Build-A-Bear Workshop owns United States Trademark Registration No. 2,987,962 for
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`BUILD-A-CARD, for providing on-line electronic greeting cards via a global computer
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`network.
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`17. Build-A-Bear Workshop owns United States Trademark Registration No. 2,430,233 for
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`BUILD-A-GRAM, for mail order services, telephone order services, and electronic
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`computerized on-line retail services, all featuring stuffed and plush toy animals and dolls and
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`accessories therefore.
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`18. Build-A-Bear Workshop owns United States Trademark Registration No. 2,690,978 for
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`BUILD-A-MONSTER, for entertainment services, namely providing an on-line computer
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`game.
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`STLD01-911270-
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`4
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 5 of 15
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`19. Build-A-Bear Workshop owns United States Trademark Registration No. 2,786,503 for
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`BUILD-A-WISH, for Retail store services via a global communications network in the field
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`of stuffed and plush toy animals and accessories.
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`20. Build-A-Bear Workshop owns the common law mark BUILD-A-BASKET for gift baskets
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`and services related to the sale of gift baskets.
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`21. Due to substantial advertising, promotional and sales efforts, Build-A-Bear Workshop has
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`achieved widespread consumer recognition and acceptance of The Build-A-Bear Workshop
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`Marks.
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`22. Long prior to the acts of Defendant complained of herein and continuously since, Build-A-
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`Bear Workshop and/or its licensees have adopted, used, and spent substantial sums of money
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`to advertise, publicize, and promote The Build-A-Bear Workshop Marks in connection with
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`Build-A-Bear Workshop’s Merchandise and Services. Plaintiff has sold Build-A-Bear
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`Workshop’s Merchandise and Services in connection with its Marks in ever-increasing
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`quantities in this judicial district and throughout the United States.
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`23. Due to Build-A-Bear Workshop’s extensive sales, The Build-A-Bear Workshop Marks are
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`recognized as emanating from, or being associated with, Build-A-Bear Workshop.
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`24. The Build-A-Bear Workshop Marks are each inherently distinctive and are recognized by the
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`consuming public as indicators of high quality products associated with Build-A-Bear
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`Workshop.
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`25. Since Build-A-Bear Workshop opened its first store in October 1997, Build-A-Bear
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`Workshop has sold in excess of seventy-million plush, stuffed toys animals. Moreover,
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`Build-A-Bear Workshop has sold its merchandise and services and promoted its marks in
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`every state via its website.
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`STLD01-911270-
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`5
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 6 of 15
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`DEFENDANT’S INFRINGING ACTS
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`26. On information and belief, after Build-A-Bear Workshop’s extensive sales of its
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`Merchandise and Services, Defendant began using the BUILD-A-BASKET mark in
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`connection with the sale of various goods and services, including gift baskets and stuffed and
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`plush animals (the "Infringing Products") in retail stores and via a website located at
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`www.buildabasket.com.
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`27. On July 9, 2003, Defendant filed a United States Trademark Application No. 76/530,408 for
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`the mark BUILD A BASKET for retail store services featuring custom designed gift baskets
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`and gifts and accessories.
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`28. Upon information and belief, Defendant’s aforesaid use of and application for the BUILD-A-
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`BASKET mark was done willfully in an effort to trade on the goodwill Build-A-Bear
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`Workshop has created in The Build-A-Bear Workshop Marks, and to further mislead
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`customers into believing an association exists between Defendant and Build-A-Bear
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`Workshop.
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`29. Defendant’s appropriation of The Build-A-Bear Workshop Marks is likely to cause
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`confusion, mistake, or deception as to the source or origin of Defendant’s merchandise and
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`services because of the relatedness of such merchandise and services to Build-A-Bear
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`Workshop’s Merchandise and Services.
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`30. Defendant’s infringing activities substantially affect interstate commerce because they
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`damage Build-A-Bear Workshop’s interstate goodwill and reputation, substantially deprive
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`Build-A-Bear Workshop of control over Build-A-Bear Workshop’s own interstate reputation,
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`STLD01-911270-
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`6
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 7 of 15
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`damage The Build-A-Bear Workshop Marks, and dilute the distinctiveness of The Build-A-
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`Bear Workshop Marks.
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`31. By reason of Defendant’s aforesaid conduct, Build-A-Bear Workshop has suffered and will
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`continue to suffer damage and injury to its business, reputation and goodwill, and will sustain
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`serious loss of revenues and profits in an undetermined amount.
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`32. Unless Defendant is enjoined by this Court, Build-A-Bear Workshop will suffer, as a result
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`of Defendant’s acts complained of herein, immediate and irreparable harm. Therefore,
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`Build-A-Bear Workshop has no adequate remedy at law.
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`COUNT I
` TRADEMARK INFRINGEMENT
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`33. Build-A-Bear Workshop repeats and incorporates the allegations set forth in all preceding
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`paragraphs as if set forth in full herein.
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`34. By engaging in the acts described above, Defendant has introduced and marketed the
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`Infringing Products in interstate commerce using designations and representations that are
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`confusingly similar to The Build-A-Bear Workshop Marks.
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`35. Defendant’s actions are likely to cause confusion, to cause mistake, and to deceive
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`purchasers, prospective purchasers, and the public.
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`36. Defendant’s actions demonstrate an intentional, willful, and malicious intent to trade upon
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`the goodwill associated with the The Build-A-Bear Workshop Marks.
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`37. Defendant’s actions constitute trademark infringement in violation of Section 32 of the
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`Lanham Act, 15 U.S.C. § 1114, and Build-A-Bear Workshop has no adequate remedy at law.
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`38. Build-A-Bear Workshop is being and will continue to be damaged by Defendant’s infringing
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`activities, which cause a likelihood of confusion and actual confusion among the purchasing
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`public as to the true identity, source, sponsorship or affiliation of the Defendant's goods.
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`STLD01-911270-
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`7
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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 8 of 15
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`39. Because of Defendant’s infringing activities, Build-A-Bear Workshop has suffered and will
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`continue to suffer damage to its business reputation, and goodwill, and the loss of sales and
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`profits it would have made but for the improper acts of Defendant.
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`40. Because of Defendant’s infringing activities, Build-A-Bear Workshop is entitled to
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`injunctive relief, an accounting for profits, damages, costs, and reasonable attorneys’ fees
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`pursuant to 15 U.S.C. §§ 1114, 1116 and 1117. Build-A-Bear Workshop is further entitled to
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`have its profits award enhanced and its damages award trebled pursuant to 15 U.S.C. § 1117.
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`COUNT II
`FEDERAL UNFAIR COMPETITION
`(15 U.S.C. § 1125(a))
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`41. Build-A-Bear Workshop realleges and incorporates by reference the allegations set forth in
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`all preceding paragraphs.
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`42. Defendant’s advertising, marketing, offering for sale, and sale of goods with false
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`designations and representations identical or closely similar to The Build-A-Bear Workshop
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`Marks is likely to cause confusion, or to cause mistake, or to deceive purchasers and
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`potential purchasers and members of the public as to the affiliation, connection or association
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`between Defendant and its Infringing Products and Build-A-Bear Workshop and its products,
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`and/or as to the origin, sponsorship, authorization, or approval of Defendant’s goods by
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`Build-A-Bear Workshop.
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`43. Defendant’s use and marketing of colorable imitations of The Build-A-Bear Workshop
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`Marks has not been authorized by Build-A-Bear Workshop.
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`44. Defendant’s actions demonstrate an intentional, willful, and malicious intent to trade upon
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`the goodwill associated with The Build-A-Bear Workshop Marks.
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`STLD01-911270-
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`8
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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 9 of 15
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`45. Build-A-Bear Workshop is being and will continue to be damaged by Defendant’s false
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`designations and representations because they are resulting in and, unless enjoined by this
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`Court, will continue to result in confusion among the purchasing public and the trade as to
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`the true affiliation, connection, association, origin, sponsorship, or approval of Defendant’s
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`goods.
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`46. Because of Defendant’s false designations and representations, Build-A-Bear Workshop has
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`suffered and will suffer damage to its business reputation and goodwill, and the loss of sales
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`and profits that Build-A-Bear Workshop would have made but for Defendant’s acts.
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`47. Defendant’s false and deceptive designations and representations violate Section 43(a) of the
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`Lanham Act, 15 U.S.C. §1125(a), and Build-A-Bear Workshop has no adequate remedy at
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`law.
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`48. Because of Defendant’s infringing activities, Build-A-Bear Workshop is entitled to
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`injunctive relief, an accounting for profits, damages, costs, and reasonable attorneys’ fees,
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`pursuant to 15 U.S.C. §§ 1125, 1116 and 1117. Build-A-Bear Workshop is further entitled to
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`have its profits award enhanced and its damages award trebled as authorized by 15 U.S.C. §
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`1117.
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`COUNT III
`COMMON LAW UNFAIR COMPETITION AND
`TRADEMARK INFRINGEMENT
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`49. Build-A-Bear Workshop realleges and incorporates by reference the allegations set forth in
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`all preceding paragraphs. This claim is a substantial and related claim.
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`50. Defendant’s acts constitute common law trademark infringement and unfair competition in
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`violation of the common law of several states including the State of Missouri.
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`STLD01-911270-
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`9
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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 10 of 15
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`51. Defendant’s acts have created, and unless restrained by this Court will continue to create, a
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`likelihood of confusion and deception of the consuming public, causing irreparable injury to
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`Build-A-Bear Workshop for which Build-A-Bear Workshop has no adequate remedy at law.
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`52. On information and belief, Defendant acted with full knowledge of Build-A-Bear
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`Workshop's use of, and statutory and common law rights to, Plaintiff's Marks, and without
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`regard to the likelihood of confusion and deception of the public created by those activities.
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`53. Defendant’s actions demonstrate an intentional, willful, and malicious intent to trade on the
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`goodwill associated with The Build-A-Bear Workshop Marks to the great and irreparable
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`injury of Plaintiff.
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`54. As a result of Defendant’s acts, Build-A-Bear Workshop has been damaged in an amount not
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`as yet determined or ascertainable. At a minimum, however, Build-A-Bear Workshop is
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`entitled to injunctive relief, to an accounting of Defendant’s profits, and damages.
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`COUNT IV
`MISSOURI STATE TRADEMARK DILUTION
`(MO. REV. STAT. § 417.061)
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`55. Build-A-Bear Workshop realleges and incorporates by reference the allegations set forth in
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`all preceding paragraphs. This claim is a substantial and related claim to Build-A-Bear
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`Workshop’s federal claims.
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`56. Build-A-Bear Workshop has extensively and continuously promoted and used The Build-A-
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`Bear Workshop Marks both in the United States and throughout the world, and those marks
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`have become distinctive, well-known, and famous symbols of Build-A-Bear Workshop’s
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`goods and services well before Defendant offered for sale the Infringing Products
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`complained of in this Complaint.
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`STLD01-911270-
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`10
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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 11 of 15
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`57. Defendant’s unauthorized use of The Build-A-Bear Workshop Marks dilutes and is likely to
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`dilute the distinctiveness of these marks by eroding the public’s exclusive identification of
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`these marks with Build-A-Bear Workshop, tarnishing and degrading the positive associations
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`and prestigious connotations of the The Build-A-Bear Workshop Marks, and otherwise
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`lessening the capacity of the marks to identify and distinguish Plaintiff’s goods and services.
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`58. Defendant’s actions are likely to cause injury to the business reputation of Build-A-Bear
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`Workshop.
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`59. Defendant’s actions demonstrate an intentional, willful, and malicious intent to trade on the
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`goodwill associated with The Build-A-Bear Workshop Marks, or to cause dilution of The
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`Build-A-Bear Workshop Marks, to the great and irreparable injury of Build-A-Bear
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`Workshop.
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`60. Defendant is causing and will continue to cause irreparable injury to Plaintiff’s goodwill and
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`business reputation, and dilution of the distinctiveness and value of Build-A-Bear
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`Workshop's famous and distinctive marks, in violation of Missouri anti-dilution statute, MO.
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`REV. STAT. § 417.061(1). Build-A-Bear Workshop is, therefore, entitled to injunctive relief,
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`damages and costs, as well as, if appropriate, enhanced damages and reasonable attorneys
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`fees.
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`COUNT IV
`REVIEW OF TRADEMARK TRIAL AND APPEAL BOARD DECISION
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`61. Build-A-Bear Workshop realleges and incorporates by reference the allegations set forth in
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`all preceding paragraphs.
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`62. On July 9, 2003, Defendant filed a United States Trademark Application No. 76/530,408 for
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`the mark BUILD A BASKET for retail store services featuring custom designed gift baskets
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`and gifts and accessories. This application was based on an alleged intent-to-use the mark.
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`STLD01-911270-
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`11
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`

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`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 12 of 15
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`63. On October 6, 2004, Build-A-Bear Workshop filed a Notice of Opposition with the
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`Trademark Trial and Appeal Board ("TTAB") of the U.S. Patent and Trademark Office,
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`contesting Defendant's right to registration of the BUILD A BASKET mark ("Opposition No.
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`91,162,414").
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`64. The mark BUILD A BASKET for which Defendant seeks registration in Application No.
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`76/530,408 so resembles The Build-A-Bear Workshop Marks as to be likely, when used in
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`conjunction with Defendant's goods, to cause confusion and mistake, and to deceive
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`consumers.
`
`65. The mark BUILD A BASKET is confusingly and deceptively similar to The Build-A-Bear
`
`Workshop Marks when used in conjunction with Defendant's goods and services.
`
`66. Defendant's goods and services offered in connection with the BUILD A BASKET mark are
`
`directed to the same or related class of consumers as Build-A-Bear Workshop's goods and
`
`services and are sold in the same channels of trade. Accordingly, Defendant's goods and
`
`Build-A-Bear Workshop's goods are so commercially related that the mark sought to be
`
`registered and Build-A-Bear Workshop's marks are confusingly similar.
`
`67. Defendant's use of its mark, which so resembles and is imitative of Build-A-Bear Workshop's
`
`marks, is likely to cause confusion, mistake or deception of purchasers as to the source of
`
`Defendant's goods, and will inevitably falsely suggest a trade connection between Build-A-
`
`Bear Workshop and Defendant.
`
`68. The application, registration and/or use of the mark BUILD A BASKET by Defendant will
`
`cause dilution of the distinctiveness of The Build-A-Bear Workshop Marks, and otherwise
`
`injure Build-A-Bear Workshop's reputation and unique identity in the minds of consumers.
`
`69. On December 18, 2009, the TTAB issued an order dismissing the opposition with prejudice.
`
`STLD01-911270-
`
`12
`
`

`
`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 13 of 15
`
`70. Build-A-Bear Workshop is dissatisfied with the decision of the TTAB regarding Opposition
`
`No. 91,162,414.
`
`71. Pursuant to 15 U.S.C. § 1071(b)(1), Build-A-Bear Workshop requests that the Court
`
`determine that Defendant is not entitled to registration of Application No. 76/530,408.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Build-A-Bear Retail Management, Inc. and Build-A-Bear Workshop,
`
`Inc. respectfully request that this Court:
`
`1.
`
`Order that Defendant and its principals, officers, employees, servants, agents,
`
`representatives, distributors, attorneys and persons, firms or corporations under its control or in
`
`active concert or participation with Defendant be permanently enjoined and restrained from:
`
`(a)
`
`displaying, advertising, promoting, selling or offering for sale, or otherwise
`
`distributing any goods or services, including but not limited to gift baskets, plush and stuffed toy
`
`animals, and other toys and accessories of any kind using the name or mark BUILD-A-
`
`BASKET;
`
`(b)
`
`engaging in any conduct that tends to falsely represent that, or is likely to confuse,
`
`mislead, or deceive purchasers, Defendant’s customers and/or members of the public to believe
`
`that the actions of Defendant are sponsored by, licensed by, or in any way affiliated or connected
`
`with Build-A-Bear Workshop;
`
`2.
`
`Order the impounding for destruction of all copies or reproductions of any and all
`
`stationery, circulars, catalogs, charts, brochures, advertising materials, labels, packages, signs,
`
`and all materials in Defendant’s possession or under its control that contain the Infringing Names
`
`and Marks or that contain other marks confusingly similar to any of The Build-A-Bear
`
`Workshop Marks;
`
`STLD01-911270-
`
`13
`
`

`
`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 14 of 15
`
`3.
`
`Order an accounting of Defendant’s profits and award Build-A-Bear Workshop its
`
`actual and/or statutory damages including increased damages for willful violation;
`
`4.
`
`Award Build-A-Bear Workshop monetary relief in an amount to be fixed by the
`
`Court in its discretion as just, including:
`
`(a)
`
`All profits received by Defendant from sales and revenues of any kind made as a
`
`result of its infringing actions; and
`
`(b)
`
`All damages sustained by Build-A-Bear Workshop as a result of Defendant’s acts
`
`of infringement, and that such damages be trebled.
`
`5.
`
`Award Build-A-Bear Workshop punitive damages for the intentional, willful and
`
`wanton nature of Defendant’s acts;
`
`6.
`
`Award Build-A-Bear Workshop interest, costs and attorneys fees pursuant to the
`
`applicable statutes;
`
`7.
`
`Award Build-A-Bear Workshop three times the amount of compensatory
`
`damages, pursuant to 15 U.S.C. §1117;
`
`8.
`
`Order that Defendant file with this Court and serve upon Build-A-Bear Workshop
`
`within ten (10) days following this Court’s injunction issued in this action, a written report,
`
`under oath, setting forth in detail the manner and form in which Defendant has complied with
`
`such injunction;
`
`9.
`
`Order that the decision of the Trademark Trial and Appeal Board in Opposition
`
`No. 91,162,414 be reversed and direct the Trademark Trial and Appeal Board to sustain
`
`Opposition No. 91,162,414 to the registration of Application No. 76/530,408 for the mark
`
`BUILD A BASKET for the goods and services specified therein; and
`
`STLD01-911270-
`
`14
`
`

`
`Case 4:10-cv-00276 Document 1 Filed 02/16/2010 Page 15 of 15
`
`10.
`
`Award Build-A-Bear Workshop such other and further relief as the Court deems
`
`just and appropriate.
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`By: /Gary A. Pierson/
`Michelle W. Alvey
`Gary A. Pierson
`Alan S. Nemes
`Husch, Blackwell, Sanders LLP
`190 Carondelet Plaza, Suite 600
`St. Louis, Missouri 63105
`(314) 480-1500
`
`Attorneys for Plaintiffs Build-A-Bear Retail
`Management, Inc. and Build-A-Bear Workshop, Inc.
`
`STLD01-911270-
`
`15

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