WILDSEED FARMS, INC.,
`
`Plaintiff,
`
`
`v.
`
`WILDSEED HEMP, LLC,
`
`and
`
`TEXAS CANNAFARMS, LLC,
`
`Defendants.
`
`
`
`
`
`
`CIVIL ACTION NO. ____________
`
` Demand for Jury Trial
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 1 of 29
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`
`COMPLAINT
`
`Plaintiff Wildseed Farms, Inc. brings this Complaint for trademark infringement, unfair
`
`competition, false designation of origin, and dilution, including blurring and tarnishment, arising
`
`under the Lanham Act, 15 U.S.C. § 1051, et seq., the common law and the laws of the state of
`
`Texas. Wildseed Farms, Inc., by and through its attorneys, avers as follows:
`
`INTRODUCTION
`
`1.
`
`Plaintiff Wildseed Farms, Inc. (“Wildseed Farms” or “Plaintiff”) brings this action
`
`against Defendants Wildseed Hemp, LLC (“Wildseed Hemp”) and Texas Cannafarms, LLC
`
`(“Texas Cannafarms”) (collectively, the “Defendants”) for trademark infringement, unfair
`
`competition, false designation of origin, and dilution, including blurring and tarnishment, arising
`
`under Title 15 of the United States Code (the “Lanham Act”), for trademark infringement and
`
`unfair competition arising under Texas common law, and for dilution in violation of the Texas
`
`Business and Commerce Code.
`
`
`COMPLAINT
`
`
`Page 1
`
`1:21-cv-354
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 2 of 29
`
`2.
`
`Wildseed Farms is the owner of the federal trademark registration for WILDSEED
`
`(Reg. No. 2,906,021). See WILDSEED registration, attached hereto as Exhibit 1. Wildseed Farms’
`
`registration for WILDSEED is incontestable pursuant to 15 U.S.C. § 1065 (Section 15 of the
`
`Lanham Act). See U.S. Trademark Office acceptance of Wildseed Farms’ declaration of
`
`incontestability, attached hereto as Exhibit 2. Wildseed Farms has been using the WILDSEED
`
`mark in connection with its high quality plants, plant seeds, plant derivatives, plant consumables
`
`and other plant-related products for more than twenty years, including through the use of the
`
`trademark and trade name Wildseed Farms as well as the domain name Wildseedfarms.com.
`
`3.
`
`On information and belief, in 2019, Defendant Wildseed Hemp began selling
`
`products derived from the hemp plant, including cannabidiol (CBD) oil products, under the brand
`
`“Wildseed Hemp.” Wildseed Hemp’s product line includes concentrated herbal extracts
`
`(tinctures), CBD oil infused lotions and salves, and CBD oil infused products for pets. Such
`
`products are available directly from Wildseed Hemp’s website, https://wildseedhemp.com, or
`
`through reseller/distributor Defendant Texas Cannafarms’ website https://texascannafarms.com/.
`
`4.
`
`Defendants’ marketing and sale of such plant extract products using the
`
`WILDSEED mark infringes Wildseed Farms’ trademark rights and constitutes false designation
`
`of origin and unfair competition. Such infringing activities dilute Wildseed Farms’ rights in its
`
`famous and well-known WILDSEED mark by lessening the WILDSEED mark’s uniqueness with
`
`relevant consumers and weakening the connection in consumers’ minds between Wildseed Farms’
`
`WILDSEED mark and Wildseed Farms’ goods. Further, such activities tarnish Wildseed Farms’
`
`famous and well-known WILDSEED mark by harming the reputation of Wildseed Farms and its
`
`WILDSEED mark because consumers will associate the WILDSEED mark with controversial
`
`
`COMPLAINT
`
`
`Page 2
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 3 of 29
`
`products containing tetrahydrocannabinol (THC), a psychoactive compound that is highly
`
`regulated in Texas and is a Federal controlled substance.
`
`5.
`
`Defendants’ infringing activities are willful, since they: (i) have been on
`
`constructive notice of Wildseed Farms’ superior rights to the WILDSEED mark starting with
`
`WILDSEED’s federal registration on November 30, 2004; and (ii) have had actual notice of
`
`Wildseed Farms’ rights and their infringing activities since at least February 7, 2020.
`
`6.
`
`Wildseed Farms seeks actual damages, Defendants’ profits, reasonably costs and
`
`attorneys’ fees and injunctive relief against Defendants and further relief as described below.
`
`THE PARTIES
`
`7.
`
`Plaintiff Wildseed Farms, Inc. is, and at all relevant times was, a corporation duly
`
`organized and existing under the laws of Texas, with its principal place of business located at 100
`
`Legacy Drive, Fredericksburg, Texas 78624.
`
`8.
`
`Upon information and belief, Defendant Wildseed Hemp, LLC is a limited liability
`
`company formed on January 7, 2019 and duly organized and existing under the laws of the Texas
`
`with its principal place of business at 18010 Bulverde Rd., #108, San Antonio, Texas 78259. Upon
`
`information and belief, Mr. Hunter Schiro is the registered agent and a member of Wildseed Hemp,
`
`LLC and has an address of 11610 Vance Jackson Road, #1084, San Antonio, TX 78230. Upon
`
`information and belief, Wildseed Hemp, LLC is the sole shareholder of Wildseed Hemp Ltd., a
`
`Northern Ireland company.
`
`9.
`
`Upon information and belief, Defendant Texas Cannafarms, LLC is a limited
`
`liability company formed on February 20, 2020 and duly organized and existing under the laws of
`
`Texas with its principal place of business at 18010 Bulverde Rd., #108, San Antonio, TX 78259.
`
`Upon information and belief, Mr. Hunter Schiro is the registered agent and managing member of
`
`
`COMPLAINT
`
`
`Page 3
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 4 of 29
`
`Texas Cannafarms, LLC and has an address of 11610 Vance Jackson Road, #1084, San Antonio,
`
`TX 78230.
`
`JURISDICTION AND VENUE
`
`10. Wildseed Farms’ Lanham Act claims for trademark infringement, false designation
`
`of origin, unfair competition, trademark dilution, arise under federal law, specifically, 15 U.S.C.
`
`§§ 1114 and 1125, and this Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331
`
`and 1338.
`
`11.
`
`This Court has pendant jurisdiction over the state law claims asserted herein under
`
`28 U.S.C. § 1367(a) because those claims arise in the same common nucleus of operative facts as
`
`the federal Lanham Act claims.
`
`12.
`
`Venue is proper in this district, pursuant to 28 U.S.C. § 1391(b) and (c), in that this
`
`is a judicial district in which a substantial portion of the Defendants’ willful and unlawful acts
`
`giving rise to Wildseed Farms’ claims arose.
`
`FACTS
`
`13. Wildseed Farms is the U.S.’s largest working wildflower farm with over 200 acres
`
`located in Fredericksburg, Texas, and has been providing high quality plants, plant seeds, plant
`
`derivatives, plant consumables and other plant-related products for over thirty-five years. In
`
`addition to operating the wildflower farm, Wildseed Farms also sells WILDSEED branded
`
`products, including plants, seeds, plant derivatives, consumables and other related items to
`
`consumers all over the United States. At its Fredericksburg location, Wildseed Farms offers free
`
`walking trails and gardens, operates a gift shop and garden supply market, and has recently started
`
`a vineyard and winery under the WILDSEED brand. Wildseed Farms has controlled and utilized
`
`the wildseedfarms.com web domain name for over twenty years to advertise its wildflower garden
`
`
`COMPLAINT
`
`
`Page 4
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 5 of 29
`
`and trails, solicit consumers to visit the Fredericksburg location, sell WILDSEED branded
`
`products directly to consumers, and to organize and advertise Wildseed Farms’ events.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Images from Wildseed Farms’ website https://www.wildseedfarms.com
`
`
`
`
`
`14.
`
`In November 2003, Wildseed Farms filed a trademark application with the U.S.
`
`Trademark Office, seeking registration of the WILDSEED mark for “Live plants; cut flowers;
`
`dried flowers; seeds, namely flower seeds, including wildflower seeds, and herb seeds, all for
`
`garden, landscaping, crop and domestic use; and seedlings and grass seed, bulbs, namely flower
`
`bulbs, including wildflower bulbs, all for garden, landscaping, crop and domestic use.” See Exhibit
`
`1. On November 30, 2004, the U.S. Trademark Office registered the WILDSEED mark with
`
`registration number 2,906,021 and the WILDSEED registration remains live and subsisting to this
`
`day. See Exhibit 1. For over twenty years, Wildseed Farms has utilized the WILDSEED mark in
`
`conjunction with
`
`its business, marketing,
`
`Internet presence
`
`(including Facebook at
`
`https://www.facebook.com/wildseedfarms/ and Instagram at @wildseedfarms) and on its branded
`
`goods. The following are images of WILDSEED branded goods.
`
`
`COMPLAINT
`
`
`Page 5
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 6 of 29
`
`Images of Wildseed Farms’ flower seeds branded with the WILDSEED mark
`
`
`
`Page 6
`
`
`COMPLAINT
`
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 7 of 29
`
`
`
`Images from Wildseed Farms’ Instagram page (@wildseedfarms) (left) and Facebook page (right)
`
`
`15.
`
`The WILDSEED mark has also earned common law rights based on continued use
`
`in commerce and public recognition for over twenty years.
`
`16. Wildseed Farms has expended great effort and significant amounts of money in
`
`protecting, advertising, promoting and developing the recognition of its WILDSEED mark in the
`
`United States. Such advertising and promotions have taken place in print, electronic media,
`
`through the Internet, newsprint and magazines and in a variety of other manners.
`
`17. Wildseed Farms’ WILDSEED mark is inherently distinctive, or has achieved
`
`acquired distinctiveness long prior to the commencement of Defendants’ acts of infringement,
`
`unfair competition, false designation of origin, and dilution complained of herein, by virtue of
`
`extensive sales and advertising of Wildseed Farms’ products using the WILDSEED mark, decades
`
`of purchase by the public of Wildseed Farms’ goods and association of the WILDSEED mark with
`
`Wildseed Farms and Wildseed Farms’ goods.
`
`
`COMPLAINT
`
`
`Page 7
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 8 of 29
`
`18.
`
`Defendant Wildseed Hemp is producing, marketing and selling plant extract
`
`products using the WILDSEED mark as the dominate portion of its “Wildseed Hemp” mark and
`
`logo. See images below. This use of the WILDSEED mark is not authorized by Wildseed Farms.
`
`Image from Wildseed Hemp’s website https://wildseedhemp.com/
`
`
`
`
`
`
`COMPLAINT
`
`
`Page 8
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 9 of 29
`
`
`Images from Wildseed Hemp’s website https://wildseedhemp.com/
`
`
`
`
`
`19.
`
`As shown below, Defendants also use the WILDSEED mark to promote a hemp
`
`variety they produce having the name “Wildseed Haze.” In drug culture, “Haze” is a slang term
`
`used to identify certain controlled substances. See Drug Slang Code Words, DEA Intelligence
`
`Report,
`
`DEA-HOU-DIR-020-17
`
`(May
`
`2017),
`
`available
`
`at:
`
`https://www.dea.gov/sites/default/files/2018-07/DIR-020-
`
`17%20Drug%20Slang%20Code%20Words.pdf.
`
`
`COMPLAINT
`
`
`Page 9
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 10 of 29
`
`Image from Wildseed Hemp’s website https://wildseedhemp.com/
`
`
`
`
`20. Wildseed Hemp is also advertising its “Wildseed Hemp” products using the
`
`WILDSEED mark on social media, including on Facebook and Instagram. This includes the
`
`marketing of Wildseed Hemp products using the WILDSEED mark. This use of the WILDSEED
`
`mark is not authorized by Wildseed Farms.
`
`
`
`Images from Wildseed Hemps’ Instagram pages @wildseedhemptx (left) and @wildseedhempmf (right)
`
`
`
`COMPLAINT
`
`
`Page 10
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 11 of 29
`
`
`
`
`
`
`
`
`Images from Wildseed Hemps’ Instagram page (@wildseedhemptx)
`Upon information and belief, Defendant Texas Cannafarms is marketing and
`
`21.
`
`selling “Wildseed Hemp” plant extract products that use the WILDSEED mark as the predominate
`
`portion of the “Wildseed Hemp” mark and logo. This use of the WILDSEED mark is not
`
`authorized by Wildseed Farms. Images reflecting Defendant’s use of the WILDSEED mark to
`
`market and sell products are below.
`
`
`COMPLAINT
`
`
`Page 11
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 12 of 29
`
`Image from Texas Cannafarms’ website https://texascannafarms.com/
`
`
`
`
`COMPLAINT
`
`
`
`
`Page 12
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 13 of 29
`
`Images from Texas Cannafarms’ website https://texascannafarms.com/
`
`
`
`
`22.
`
`Texas Cannafarms is advertising Wildseed Hemp products using the WILDSEED
`
`mark on social media, including on Facebook and Instagram. This includes the marketing of
`
`Wildseed Hemp products bearing the WILDSEED mark. This use of the WILDSEED mark is not
`
`authorized by Wildseed Farms.
`
`
`COMPLAINT
`
`
`
`
`Page 13
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 14 of 29
`
`
`
`
`
`
`
`Images from Texas Cannafarms’ Instagram page (@texascannafarms)
`
`23. Upon information and belief, Texas Cannafarms was formed in February 2020 by the
`
`owner(s) of Wildseed Hemp to exclusively distribute Wildseed Hemp products.1 On Wildseed
`
`Hemp’s Facebook page, Wildseed Hemp describes Texas Cannafarms as also “providing private
`
`labeling for CBD stores, medical offices, pet stores, chiropractors, massage therapists, spas, gyms
`
`and anywhere your clientele will benefit from hemp products.”2
`
`24. The Wildseed Hemp brand, the “Wildseed Hemp” products, and Wildseed Hemp’s
`
`advertising and marketing campaigns all utilize the WILDSEED mark for related plant extract
`
`goods without the consent of Wildseed Farms. Similarly, Texas Cannafarms is exclusively
`
`marketing the Wildseed Hemp brand and exclusively marketing and selling unauthorized related
`
`products bearing the WILDSEED mark without the consent of Wildseed Farms. Upon information
`
`and belief, Wildseed Hemp and Texas Cannafarms are owned-in-part by the same principal, Mr.
`
`Hunter Schiro.
`
`
`1 See https://texascannafarms.com/collections/featured-products.
`2 See https://www.facebook.com/384515899036829/posts/texas-cannafarms-providing-private-labeling-for-cbd-
`stores-medical-offices-pet-s/807929363362145/.
`
`COMPLAINT
`
`
`Page 14
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 15 of 29
`
`25. Due to Defendants’ use of the WILDSEED mark in their trade name and domain name,
`
`modified only by the descriptive noun “hemp” added to the end, for similar plant-based products,
`
`consumers are likely to be confused as to the source of “Wildseed Hemp” products, and mistakenly
`
`believe that such products originate from, or are endorsed by Wildseed Farms.
`
`26. Defendants’ use of the WILDSEED mark with their websites, advertising, social media
`
`and product labels has caused and will likely continue to cause confusion among the consuming
`
`public.
`
`27. Furthermore, the “Wildseed Hemp” mark, trade name and domain name entirely co-
`
`ops the WILDSEED mark as its predominate term and merely adds the descriptive noun “hemp” at
`
`the end. Consumers are likely to be confused regarding whether the products manufactured,
`
`advertised, sold, and distributed by Defendants are endorsed, sponsored, or approved by Wildseed
`
`Farms or affiliated with Wildseed Farms or its other product offerings.
`
`28. The WILDSEED mark became famous well before Defendants’ formation or improper
`
`use of the WILDSEED mark. Defendants’ commercial use of the trade name “Wildseed Hemp” is
`
`diluting the WILDSEED mark in the minds of consumers.
`
`29. Defendants’ use of the “Wildseed Hemp” mark, trade name, and domain name results
`
`in dilution by blurring because it reduces consumer perception of the famous WILDSEED mark as
`
`a unique mark and therefore impairs its distinctiveness.
`
`30. Upon information and belief, Defendants have deliberately selected the WILDSEED
`
`mark for inclusion in the “Wildseed Hemp” mark, trade name, and domain name because the
`
`WILDSEED mark is already famous among relevant consumers and has been associated with high
`
`quality plants, plant seeds, plant derivatives, plant consumables and other plant-related products for
`
`decades in the minds of consumers.
`
`
`COMPLAINT
`
`
`Page 15
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 16 of 29
`
`31. Further, Defendants’ use of the “Wildseed Hemp” mark, trade name, and domain name
`
`tarnishes the WILDSEED mark. Defendants’ production, marketing and sale of CBD oil and other
`
`products containing THC under the “Wildseed Hemp” trade name harms the reputation of Wildseed
`
`Farms’ famous WILDSEED mark.
`
`32. Cannabis as a medicinal and recreational drug, hemp and CBD all derive from the
`
`species Cannabis sativa and contain the regulated psychoactive component tetrahydrocannabinol
`
`(THC). Although industrial hemp is legal in Texas and is no longer a federally controlled
`
`substance, consumers still associate hemp with illegal drug production and use. Further, as of the
`
`filing of this Complaint, the particulars of Texas’ regulation of industrial hemp are still in flux.
`
`33. Some of Defendants’ “Wildseed Hemp” CBD oil products are full-spectrum, meaning
`
`that the CBD has been extracted from the hemp plant along with any THC the plant has produced.
`
`CBD products are not Schedule 1 substances under the federal Controlled Substances Act as long
`
`as they contains less than .3% THC (or .5% THC for patients with a medical card).3 Possession of
`
`CBD with THC over these limits is a felony with a conviction carrying a sentence of 180 days to
`
`two years and a $10,000 fine. Since Wildseed Farms has no oversight on Defendants’ production
`
`and compliance controls, Wildseed Farms has no ability to prevent the sale of products bearing the
`
`WILDSEED mark from landing consumers in prison. Intentional or mere negligent conduct on
`
`part of Defendants with regards to how much THC is in their “Wildseed Hemp” products could
`
`have a disastrous effect on the reputation of the WILDSEED mark. This is a real concern for
`
`Wildseed Farms as the labelling on Defendants’ full-spectrum tincture products states that they
`
`contain greater than .3% THC, which would make these products Schedule 1 controlled
`
`
`3 See Agriculture Improvement Act of 2018 (H.R.2 - Agriculture Improvement Act of 2018).
`
`COMPLAINT
`
`
`Page 16
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 17 of 29
`
`substances in violation of state and federal criminal law. See above image from Wildseed Hemp’s
`
`website https://wildseedhemp.com.
`
`34. Wildseed Farms and the WILDSEED mark have been associated with a family-friendly
`
`environment, family-friendly events and non-controversial plant-based products in the minds of
`
`consumers. Association of the WILDSEED mark in the minds of consumers with cannabis, THC
`
`and illegal drug use, as well as highly regulated and controversial hemp and CBD products, greatly
`
`harms the reputation of the WILDSEED mark.
`
`35. Defendants’ acts of trademark infringement, unfair competition, false designation of
`
`origin, and dilution, including blurring and tarnishment are willful and intentional. Wildseed Farms,
`
`through its counsel, sent correspondence to Mr. Hunter Schiro and Mr. Holden Hylander,
`
`Defendants’ principals/managers, on February 7, 2020, expressing its concerns and demanding that
`
`Wildseed Hemp cease and desist use of the WILDSEED mark by changing its website URL,
`
`business name, product names and associated online and print advertisements. See Letter from Mr.
`
`Adams to Messrs Schiro and Hylander dated Feb. 7, 2020, attached hereto as Exhibit 3. Wildseed
`
`Hemp failed to make any changes regarding its use of the WILDSEED mark, and instead has only
`
`increased its infringing use. In fact, upon information and belief, Defendant Texas Cannafarms was
`
`formed by Mr. Hunter Schiro, managing partner of Wildseed Hemp, to distribute the Wildseed
`
`Hemp products, less than two weeks (on February 20, 2020) after the date of Wildseed Farms’ cease
`
`and desist letter. See Texas Comptroller Report regarding Texas Cannafarms, attached hereto as
`
`Exhibit 4.
`
`36.
`
`Alone, Wildseed Farms’ widespread and public use of the WILDSEED mark in
`
`commerce beginning more than twenty years ago provided notice to Defendants of Wildseed
`
`Farms’ ownership and exclusive rights in the WILDSEED mark. Further, Wildseed Farms’ federal
`
`
`COMPLAINT
`
`
`Page 17
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 18 of 29
`
`registration of the WILDSEED mark on November 30, 2004 put Defendants on constructive notice
`
`of Wildseed Farms’ claim of ownership of and exclusive rights in the WILDSEED mark under 15
`
`U.S.C. § 1072.
`
`37.
`
`Further, the cease and desist letter mailed and emailed to Mr. Hunter Schiro and
`
`Mr. Holden Hylander on February 7, 2020 also provides actual notice to Defendants of Wildseed
`
`Farms’ ownership and exclusive rights in the WILDSEED mark as well as Defendants’ infringing
`
`use of the WILDSEED mark.
`
`38.
`
`Therefore, the Defendants have willfully and intentionally violated the Lanham Act
`
`as well as Texas common and statutory law through their adoption and continued use of the
`
`WILDSEED mark despite constructive and actual notice of Wildseed Farms’ exclusive right to the
`
`WILDSEED mark for related goods. Defendants’ willful and intentional conduct is accented by
`
`the formation of Texas Cannafarms, as a front to continue the distribution of Wildseed Hemp
`
`products bearing the WILDSEED mark, soon after being put on actual notice of the infringing
`
`activity.
`
`39. As a result of Defendants’ unauthorized use of the WILDSEED trademark and similar
`
`trade name and domain name, Wildseed Farms has suffered great and irreparable injury.
`
`40. Defendants will continue to use Wildseed Farms’ WILDSEED mark with similar
`
`products, and, as a result, Wildseed Farms will continue to suffer great and irreparable injury, unless
`
`Defendants are enjoined from doing so.
`
`
`
`
`
`
`COMPLAINT
`
`
`Page 18
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 19 of 29
`
`COUNT ONE
`TRADEMARK INFRINGEMENT IN VIOLATION OF THE LANHAM ACT
`(Section 32 of the Lanham Act, 15 U.S.C. § 1114)
`
`42. Wildseed Farms repeats and re-alleges the allegations set forth in the preceding
`
`paragraphs as if fully set forth herein.
`
`43. Wildseed Farms is the owner of the federal trademark registration for WILDSEED
`
`(Reg. No. 2,906,021). Wildseed Farms’ registration for WILDSEED is incontestable pursuant to
`
`15 U.S.C. § 1065. As such, Wildseed Farms’ registration is conclusive evidence of: the validity of
`
`the registered mark; the registration of the mark; Wildseed Farms’ ownership of the mark; and
`
`Wildseed Farms’ exclusive right to use the registered mark in commerce.
`
`44.
`
`Defendants have willfully infringed, and/or contributed thereto, Wildseed Farms’
`
`federally registered WILDSEED mark through their use of the trade name, trademark, and domain
`
`name “Wildseed Hemp” in interstate commerce.
`
`45.
`
`Such use was done without consent of Wildseed Farms and is likely to cause
`
`confusion in, and to deceive, the consuming public as to the affiliation, connection or association
`
`of Defendants and Defendants’ products and commercial activities with Wildseed Farms, and its
`
`products commercial activities.
`
`46. Moreover, Wildseed Farms has expended great effort and significant amounts of
`
`money in protecting, advertising, promoting and developing the recognition of its WILDSEED
`
`mark with the result being that, long before the acts of the Defendants complained of herein, the
`
`public had come to recognize the WILDSEED mark as a reference to the superior products offered
`
`by Wildseed Farms. Such public recognition constitutes goodwill of immense value which belongs
`
`exclusively to Wildseed Farms.
`
`47.
`
`Defendants’ use of WILDSEED and Wildseed Hemp was done with actual
`
`knowledge of Wildseed Farms’ prior, extensive and continuous use of its WILDSEED mark and
`
`COMPLAINT
`
`
`Page 19
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 20 of 29
`
`its Wildseed Farms trade name, and domain name. Therefore, Defendants have willfully and
`
`intentionally infringed and/or contributed to infringement of Wildseed Farms’ trademark rights in
`
`violation of Section 43 of the Lanham Act (15 U.S.C. § 1125) by various unauthorized acts,
`
`including advertising and displaying the WILDSEED mark in connection with the sales of its
`
`products.
`
`48.
`
`Defendants will continue to engage in the willful acts of trademark infringement,
`
`and as a result, Wildseed Farms will continue to suffer great and irreparable harm, unless
`
`Defendants are enjoined from committing such acts.
`
`49. Wildseed Farms has no adequate remedy at law.
`
`50. Wildseed Farms requests that it be awarded actual damages, up to three times actual
`
`damages, as well as an award of the Defendants’ profits attributable to the infringing conduct under
`
`Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
`
`51. Wildseed Farms requests costs of bringing this action under Section 35(a) of the
`
`Lanham Act (15 U.S.C. § 1117(a)).
`
`52. Wildseed Farms requests that the Court deem this an exceptional case and award
`
`reasonable attorneys’ fees to Wildseed Farms under Sections 35(a) of the Lanham Act (15 U.S.C.
`
`§ 1117(a)).
`
`COUNT TWO
`UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN
`IN VIOLATION OF THE LANHAM ACT
`(Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a))
`
`53. Wildseed Farms repeats and re-alleges the allegations set forth in the preceding
`
`paragraphs as if fully set forth herein.
`
`54.
`
`Defendants have willfully and intentionally violated the Lanham Act, 15 U.S.C. §
`
`1125 by its unauthorized use of the WILDSEED mark in their commercial activities, including in
`
`
`COMPLAINT
`
`
`Page 20
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 21 of 29
`
`connection with the sale of their products and in advertising and promotions of the “Wildseed
`
`Hemp” trademark, trade name and domain name, which include the WILDSEED mark.
`
`55.
`
`Defendants’ actions are without the permission or authority of Wildseed Farms and
`
`are likely to continue to cause confusion, cause mistake, and to deceive as to an affiliation,
`
`connection or association between Wildseed Farms on the one hand and Defendants on the other,
`
`and as to the origin, sponsorship, or approval of Defendants’ goods and commercial activities by
`
`Wildseed Farms.
`
`56.
`
`Defendants have been causing the relevant consumer public, including Wildseed
`
`Farms’ customers and potential customers, to be confused, mistaken, and deceived, by way of
`
`advertising, online marketing and otherwise, that the Defendants’ commercial activities and
`
`products are associated with Wildseed Farms, its commercial activities, and its products using the
`
`WILDSEED mark when, in fact, they are not.
`
`57.
`
`Defendants will continue to willfully engage in the acts of unfair competition and
`
`false designation of origin, and as a result, Wildseed Farms will continue to suffer great and
`
`irreparable harm, unless Defendants are enjoined from committing such acts.
`
`58. Wildseed Farms has no adequate remedy at law.
`
`59. Wildseed Farms requests that it be awarded actual damages, up to three times actual
`
`damages, as well as an award of the Defendants’ profits attributable to the infringing conduct under
`
`Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
`
`60. Wildseed Farms requests costs of bringing this action under Section 35(a) of the
`
`Lanham Act (15 U.S.C. § 1117(a)).
`
`
`COMPLAINT
`
`
`Page 21
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 22 of 29
`
`61. Wildseed Farms requests that the Court deem this an exceptional case and award
`
`reasonable attorneys’ fees to Wildseed Farms under Sections 35(a) of the Lanham Act (15 U.S.C.
`
`§ 1117(a)).
`
`COUNT THREE
`TRADEMARK DILUTION BY BLURRING IN VIOLATION OF THE LANHAM ACT
`(Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c))
`
`62.
`
` Wildseed Farms repeats and re-alleges the allegations set forth in the preceding
`
`paragraphs as if fully set forth herein.
`
`63.
`
`The WILDSEED mark is distinctive and widely recognized nationally and in the
`
`state of Texas by the general consuming public in connection with Wildseed Farms’ sale of its
`
`high quality plants, plant seeds, plant derivatives, plant consumables and other plant-related
`
`products, and its other commercial activities.
`
`64.
`
`Because of its continuous and extensive use by Wildseed Farms, the WILDSEED
`
`mark in connection with high quality plants, plant seeds, plant derivatives, plant consumables and
`
`other plant-related products has become famous.
`
`65.
`
`Defendants’ use in commerce of the famous WILDSEED mark in their websites,
`
`social media accounts, advertising, and product labels for their plant derivative products, is likely
`
`to cause dilution nationally and in the state of Texas of the distinctive quality of the WILDSEED
`
`mark.
`
`66.
`
`Defendants’ use of the WILDSEED mark results in dilution by blurring because it
`
`reduces consumer perception of the famous WILDSEED mark as a unique mark and therefore
`
`impairs its distinctiveness.
`
`
`COMPLAINT
`
`
`Page 22
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 23 of 29
`
`67.
`
`Defendants will continue to willfully conduct the acts of trademark dilution by
`
`blurring, and as a result, Wildseed Farms will continue to suffer great and irreparable harm, unless
`
`Defendants are enjoined from committing such acts.
`
`68. Wildseed Farms has no adequate remedy at law.
`
`69. Wildseed Farms requests that it be awarded actual damages, up to three times actual
`
`damages, as well as an award of the Defendants’ profits attributable to the infringing conduct under
`
`Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)), to extent deemed appropriate.
`
`70. Wildseed Farms requests costs of bringing this action under Section 35(a) of the
`
`Lanham Act (15 U.S.C. § 1117(a)).
`
`71. Wildseed Farms requests that the Court deem this an exceptional case and award
`
`reasonable attorneys’ fees to Wildseed Farms under Sections 35(a) of the Lanham Act (15 U.S.C.
`
`§ 1117(a)).
`
`COUNT FOUR
`TRADEMARK DILUTION BY TARNISHMENT
`IN VIOLATION OF THE LANHAM ACT
`(Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c))
`
`72. Wildseed Farms repeats and re-alleges the allegations set forth in the preceding
`
`paragraphs as if fully set forth herein.
`
`73.
`
`The WILDSEED mark is distinctive and widely recognized nationally and in the
`
`state of Texas by the general consuming public in connection with Wildseed Farms’ sale of high
`
`quality plants, plant seeds, plant derivatives, plant consumables and other plant-related products,
`
`and its other commercial activities.
`
`74.
`
`Because of its continuous and extensive use by Wildseed Farms, the WILDSEED
`
`mark in connection with high quality plants, plant seeds, plant derivatives, plant consumables and
`
`other plant-related products has become famous.
`
`
`COMPLAINT
`
`
`Page 23
`
`

`

`Case 1:21-cv-00354-LY Document 1 Filed 04/22/21 Page 24 of 29
`
`75.
`
`Defendants’ use in commerce of the famous WILDSEED mark in their websites,
`
`social media accounts, advertising, and product labels for their plant-derivative products, is likely
`
`to cause dilution nationally and in the state of Texas of the distinctive quality of the WILDSEED
`
`mark.
`
`76.
`
`Defendants’ use of the WILDSEED mark results in dilution by tarnishment because
`
`of Defendants’ unfavorable use of the WILDSEED mark, in connection with controversial and
`
`highly regulated CBD and hemp products containing THC, harms the reputation of the famous
`
`WILDSEED mark.
`
`77.
`
`Defendants will continue to willfully conduct the acts of trademark dilution by
`
`tarnishment, and as a result, Wildseed Farms will continue to suffer great and irreparable harm,
`
`unless Defendants are enjoined from committing such acts.
`
`78. Wildseed Farms has no adequate remedy at law.
`
`79. Wildseed Farms requests that it be awarded actual damages, up to three times actual
`
`damages, as well as an award of the Defendants’ profits attributable to the infringing conduct under
`
`Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)), to extent deemed appropriate.
`
`80. Wildseed Farms requests costs of bringing this action under Section 35(a) of the
`
`Lanham Act (15 U.S.C. § 1117(a)).
`
`81. Wildseed Farms requests that the Court deem this an exceptional case and award
`
`reasonable attorneys’ fees to Wildseed Farms under Secti