Case 4:11-cv-00930 Document 1 Filed in TXSD on 03/14/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

THE CANDY WRAPPERS, L.L.C., §

A Texas Limited Liability Company, §
§
Plaintiff, §
§
v. § Civil Action No. 4:11-cv-00930
§
I LOVE CHICAGO, INC., §
An Illinois Corporation, §
Defendant. §

ORIGINAL COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR

COMPETITION AND JURY DEMAND

Plaintiff, THE CANDY WRAPPERS, L.L.C. (“CANDY WRAPPERS”), for its complaint

against Defendant, I LOVE CHICAGO, INC. (“Defendant”), states and alleges as follows:

Introduction

CANDY WRAPPERS is a small business offering candy and candy products online and in

retail candy stores under the mark CANDYLICIOUS®. Since its inception, CANDY

WRAPPERS has created a national identity with the CANDYLICIOUS® mark, and has been

featured in such national media outlets as the Food Network® television network. Recently,

Defendant began offering candy in retail stores using the name ICANDYLICIOUS.

A. Parties

1. THE CANDY WRAPPERS, L.L.C. is a Texas Limited Liability Company with its

principle place of business in Houston, Texas.

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2. I LOVE CHICAGO, INC. is an Illinois Corporation with its principle place of business in

Chicago, Illinois.

B. Jurisdiction

3. This is a complaint for Trademark Infringement and Unfair Competition arising under §§

32 and 43 of the Lanham Act, 15 U.S.C. §§ 1114 (Trademark Infringement) and 1125

(Unfair Competition).

4. Because this action arises from the Lanham Act, this Court has original subject matter

jurisdiction pursuant to 28 U.S.C. § 1338.

5. This Court has personal jurisdiction over Defendant because Defendant has an online

business offering candy and candy products available to purchase from within the State

of Texas. Accordingly, Defendant conducts business in the State of Texas, has availed

itself of the rights and benefits of Texas law, and has engaged in substantial and

continuing contacts with the State.

C. Venue

6. Venue is proper in this district under 28 U.S.C. § 1391(b) and (c) because a substantial

part of the events giving rise to the claims occurred in this district.

D. Facts

7. CANDY WRAPPERS owns and operates a small business offering candy and candy

products online and in retail candy stores.

8. Beginning on April 4, 2000, CANDY WRAPPERS has used the mark

CANDYLICIOUS®, in commerce in conjunction with selling candy and candy products.

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CANDY WRAPPERS continues to use the CANDYLICIOUS® mark. Additionally,

CANDY WRAPPERS has been using the CANDYLICIOUS® mark in interstate

commerce since at least November 20, 2004.

9. On October 11, 2007, CANDY WRAPPERS filed the CANDYLICIOUS®, mark for

trademark protection in conjunction with candy products. The CANDYLICIOUS®,

mark was registered on June 17, 2008, giving CANDY WRAPPERS exclusive rights to

the mark throughout the United States. A copy of the federal registration for

CANDYLICIOUS is attached hereto as Exhibit A.

10. On or about July 23, 2009, Defendant began using ICANDYLICIOUS for the sale of

candy and candy products in retail stores.

11. On February 14, 2011, CANDY WRAPPERS notified Defendant of its proprietary right

in the CANDYLICIOUS® mark and requested Defendant cease use of the

ICANDYLICIOUS name in conjunction with its goods and services.

12. Since February 14, 2011, Defendant has continued to use the ICANDYLICIOUS name in

commerce, despite having notice of CANDY WRAPPERS’s exclusive rights in the

CANDYLICIOUS® mark in conjunction with candy and candy products.

COUNT I

(Federal Trademark Infringement – 15 U.S.C. § 1114)

13. CANDY WRAPPERS incorporates the allegations in the preceding paragraphs as if fully

set forth herein.

14. Defendant’s use of the ICANDYLICIOUS name to promote, market, or sell candy

products constitutes Trademark Infringement. By continuing to use the

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ICANDYLICIOUS name to sell candy products, Defendant used in commerce, without

the consent of CANDY WRAPPERS, a colorable imitation of the CANDYLICIOUS®

mark. Such use is likely to cause confusion, or to cause mistake, of consumers of candy

products. By reason of the foregoing acts, Defendant is liable to CANDY WRAPPERS

for Trademark Infringement pursuant to 15 U.S.C. §1114.

15. Based on Defendant’s previous and continued knowledge of the CANDYLICIOUS®

registered mark and continued activities, Defendant’s Trademark Infringement is willful.

COUNT II

(Unfair Competition: False Designation of Origin – 15 U.S.C. § 1125(a))

16. CANDY WRAPPERS incorporates the allegations in the preceding paragraphs as if fully

set forth herein.

17. Defendant’s continued use in commerce of ICANDYLICIOUS in connection with candy

is a false designation of origin. Defendant’s ICANDYLICIOUS name is confusingly

similar to the CANDYLICIOUS® mark. As such, Defendant’s use of the

ICANDYLICIOUS name is likely to cause confusion, mistake, and deception among

consumers of candy products. By reason of the foregoing acts, Defendant is liable to

CANDY WRAPPERS for Unfair Competition under 15 U.S.C. §1125(a).

18. Based on Defendant’s previous and continued knowledge of the CANDYLICIOUS®

registered mark and continued activities, Defendant’s Unfair Competition is willful.

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COUNT III

(Common Law Trademark Infringement)

19. CANDY WRAPPERS incorporates the allegations in the preceding paragraphs as if fully

set forth herein.

20. By virtue of having used and continuing to use the CANDYLICIOUS® mark in

connection with candy and candy goods, CANDY WRAPPERS has acquired common

law trademark rights in the CANDYLICIOUS® mark in the State of Texas and

throughout the United States. By reason of the foregoing acts, Defendant’s continued

sale of candy using ICANDYLICIOUS infringes CANDY WRAPPERS’s common law

trademark rights in the CANDYLICIOUS® mark.

21. Based on Defendant’s previous and continued knowledge of the CANDYLICIOUS®

registered mark and continued activities, Defendant’s common law trademark

infringement is willful.

E. Relief and Damages

22. As direct and proximate result of Defendant’s conduct, CANDY WRAPPERS is entitled

to the following:

a. A preliminary and permanent injunction enjoining Defendant from infringing

CANDY WRAPPERS’s registered trademarks;

b. Statutory damages, including damages for willful infringement or, in the

alternative, actual damages, plus the amount of Defendant’s profits attributable to

the infringement; and

c. Attorneys’ fees and costs of court.

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F. Prayer

Wherefore, CANDY WRAPPERS demands the following:

a. A preliminary and permanent injunction enjoining Defendant from:

a) using CANDY WRAPPERS’s trademark depicted in Exhibit A, or any

colorable imitation thereof,

b) using any mark that imitates or is confusingly similar to or in any way

similar to CANDY WRAPPERS’s CANDYLICIOUS® mark, or that

is likely to cause confusion, mistake, deception, or public

misunderstanding as to the origin of CANDY WRAPPERS’s products

or their connectedness to the Defendant;

b. Statutory damages, including damages for willful infringement or, in the

alternative, actual damages, plus the amount of Defendant’s profits

attributable to the infringement;

c. CANDY WRAPPERS’s reasonable attorneys’ fees and costs of court;

d. Prejudgment and post judgment interest, as authorized by law; and

e. All other relief the Court deems appropriate.

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DEMAND FOR A JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, CANDY WRAPPERS

demands a trial by jury on all issues triable of right by a jury.

Respectfully submitted,

Date: March 14, 2011 _/Katherine A. Franco/_____________________

Katherine A. Franco – Texas Bar No. 24072098
Michael Sean Spradley – Texas Bar No. 24067881
Spradley PLLC
1229 Heights Blvd.
Suite 200
Houston, Texas 77008
Tel.: (713) 728-3687
Fax: (855) 634-1225
E-mail: Katherine@myidealaw.com
E-mail: Michael@myidealaw.com

Attorneys for Plaintiff

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