Green Crush v. Crushed Red - Restaurants Declaratory Judgment Complaint PDF

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 1 of 13 Page ID #:1
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ULWELLING | SIDDIQUI LLP

Omar A. Siddiqui, Esq. (Bar No. 213581)
Daniel M. Josephson, Esq. (Bar No. 245895)
Brandon S. Miller, Esq. (Bar No. 288082)
695 Town Center Drive, Ste. 700
Costa Mesa, California 92626
Telephone: (714) 384-6650
Facsimile: (714) 384-6651
osiddiqui@usllp.com
djosephson@usllp.com
bmiller@usllp.com
Attorneys for Plaintiff,
GREEN CRUSH, LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION

GREEN CRUSH, LLC, a Delaware
Limited Liability Company,
Plaintiff,
COMPLAINT FOR
DECLARATORY RELIEF
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Case No. 8:15-cv-1699
vs.
ON THE ROCKS RESTAURANTS
HOLDINGS, LLC, a Missouri Limited
Liability Company; and
DOES 1 through 10, inclusive,
[DEMAND FOR JURY TRIAL]
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Defendants.
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FOR ITS CLAIMS against Defendants, ON THE ROCKS RESTAURANTS
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HOLDINGS, LLC (ROCKS, or Defendant); and DOES 1 through 10, inclusive,
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Plaintiff GREEN CRUSH, LLC (GREEN or Plaintiff) alleges as follows:
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1
COMPLAINT
NATURE OF THE DISPUTE
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1.
GREEN is the owner of Green Crush stores, a juice bar and smoothie
purveyor operating primarily from shopping mall locations throughout Southern
California. GREEN owns and operates under the GREEN CRUSH trademark/
service mark.
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2.
On or about May 7, 2013, the United States Patent Trademark Office
(USPTO) duly registered the GREEN CRUSH trademark, U.S. Trademark

Registration Number 4,330,917. On or about June 9, 2015, the USPTO duly
registered a Green Crush logo trademark consisting of the letter C in stylized pink
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lettering with droplets and green leaves, U.S. Trademark Registration Number
4,752,862. A true and correct copy of the United States Trademark Certificates of
Registration for GREEN CRUSH and the stylized C are attached hereto as
Exhibit A and are incorporated herein as if set out in full by this reference.
3.
On or about February 28, 2014, Plaintiff GREEN filed a subsequent
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trademark application, for a logo design mark for GREEN CRUSH, U.S.
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Trademark Application Serial Number 86,208,025, currently pending before the
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USPTO (Application). A true and correct copy of the USPTO Application is
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attached hereto as Exhibit B and is incorporated herein as if set out in full by this
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reference.
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4.
On information and belief, Defendant ROCKS owns and operates a
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chain of pizza restaurants in the Missouri and Colorado geographic areas under the
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CRUSHED RED name.
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5.
On information and belief, ROCKS applied for registration of its
purported CRUSHED RED mark with the USPTO on or about September 12, 2011.
The CRUSHED RED mark was registered by the USPTO on March 5, 2013 under
U.S. Trademark Registration Number 4,298,935. A true and correct copy of the
United States Trademark Certificate of Registration for CRUSHED RED is
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COMPLAINT
attached hereto as Exhibit C and is incorporated herein as if set out in full by this
reference.
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On or about September 15, 2014, Defendant ROCKS filed an Opposition
to Plaintiffs Trademark Application (Serial Number 86,208,025) with the USPTO
(the Opposition).
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7.
On or about March 5, 2015, Defendant ROCKS filed and served a
Petition for Cancellation (aka Petition to Cancel Registration No. 4,330,917;

Cancellation No. 92060993) of the GREEN CRUSH trademark with the USPTO
(the Petition).
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8.
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Plaintiff brings this action in order to obtain a declaration of non-
infringement and a declaration that no likelihood of confusion exists between the

subject marks.
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JURISDICTION AND VENUE
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9.
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This Court has original jurisdiction over this action under 15 U.S.C.
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1121 and 28 U.S.C. 1331, 1338 and 1367 in that this Complaint raises federal
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questions under the United States Trademark Act (Lanham Act), 15 U.S.C. 1051 et
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seq.
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10.
An actual controversy exists as to the rights and legal relations of the
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parties hereto, which may be adjudicated by this Court pursuant to 28 U.S. Code
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2201(a) and 2202, and 15 U.S.C. 1125(a).
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11.
On information and belief, the Court has personal jurisdiction over
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Defendants because Defendants have engaged in business activities in, and directed
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to, the State of California. On information and belief, Defendants have established
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minimum contacts with this forum such that exercise of personal jurisdiction over
Defendants will not offend traditional notions of fair play and substantial justice.
Defendants have purposefully availed themselves of the opportunity to conduct
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COMPLAINT
commercial activities in this forum, and reasonably knew that they could be sued in a
California court as a future consequence of such activities. This Complaint arises out
of those activities.
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On information and belief, venue is proper in this district under 28
U.S.C. 1391 (b) (2), in that a substantial part of the events or omissions giving rise
to Plaintiffs claims occurred in this district. On information and belief, all
Defendants are subject to personal jurisdiction in this district.
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PARTIES
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Plaintiff GREEN CRUSH, LLC is, and at all times mentioned herein
was, a Delaware Limited Liability company with its headquarters in the State of
California. It is registered with the California Secretary of State and is in good
standing.
14.
Plaintiff is informed and believes that Defendant ON THE ROCKS
RESTAURANTS HOLDINGS, LLC is a Missouri Limited Liability company, with

its headquarters in the State of Missouri.
15.
At all times relevant to the events referred to in this action, Defendant
ROCKS and DOES 1 through 10, inclusive, were agents or principals of one another.
In performing or engaging in the conduct described herein, each entity was acting
within the course and scope of its respective agency-principal relationships. Plaintiff
is informed and believes that all of the relevant conduct by Defendants was ratified
and approved by the other Defendants.
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Plaintiff is ignorant of the true names and capacities of Defendants,
whether individual, corporate, associate or otherwise, sued herein as DOES 1 through

10, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff
will amend this Complaint to allege their true names when ascertained. Plaintiff is
informed and believes that each of the fictitiously named Defendants is responsible in
some manner for the occurrences herein alleged.
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COMPLAINT
FACTUAL BACKGROUND
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GREEN is the owner of Green Crush stores, a juice bar and smoothie
purveyor operating chiefly from shopping mall locations in the Southern California
vicinity. GREEN owns and operates under the GREEN CRUSH trademark.
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GREEN has been in operation for over 3+ years, and chose the GREEN
CRUSH mark in good faith based on a fanciful term it created to brand its juice and
smoothie bars and healthy beverage products. The GREEN CRUSH trademark is
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prominently featured on, including but not limited to, GREENs store signage,
advertising, marketing materials, products, beverage containers, and website
(www.greencrush.com).
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GREEN began using the term GREEN CRUSH in commerce to refer
to itself and its products as early as June 30, 2012. In or about the summer of 2012, at
the Montebello Mall in Southern California, GREEN opened its doors for business as
a creator and seller of fresh mixed fruit/ vegetable juices and smoothies, offering such
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beverages to its customers in its retail stores. GREEN then opened additional stores in
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the Tyler Mall in Southern California in 2013, and Cerritos Mall in Southern
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California in 2014. Additional Southern California locations in Ventura and Glendale
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were opened in 2015.
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The success of GREEN has come from its unique products of fresh
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quality fruit and vegetable juices. GREENs mission is to introduce an innovative
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approach to a healthy lifestyle by offering a more nutritious beverage alternative.
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GREEN generates extensive sales in Southern California and maintains a strong
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connection with its customers.
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GREEN expended considerable sums of money and invested substantial
time, energy, and resources in developing a business plan to use the GREEN
CRUSH trademarks, logos, and terms derivative therefrom, as a brand. GREEN
has made significant investments and preparations with respect to its GREEN
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COMPLAINT
CRUSH trademark and the products such mark represents, including but not limited
to: research and development of its beverages and products; developing a marketing,
publicity and distribution plan for its consumers; researching and exploring franchise
opportunities, and investing significant sums in its juice and smoothie bars throughout
Southern California.
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On or about July 9, 2012, Christina Azinian, on behalf of GREEN, filed
a use-based application to register GREEN CRUSH with the USPTO. The

application was granted. GREEN CRUSH is a federally registered trademark with
the USPTO. On or about May 7, 2013, the USPTO duly and legally issued U.S.
Trademark Registration (Number 4,330,917) for the GREEN CRUSH word mark
as it relates to fast-food restaurant services [International Class: 43]. (Exhibit A)
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On or about June 9, 2015, the USPTO duly registered a Green Crush
logo trademark consisting of the letter C in stylized pink lettering with droplets and
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green leaves, U.S. Trademark Registration Number 4,752,862, as it relates to fast-
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food restaurant services [International Class 43]. (Exhibit A)
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On or about February 28, 2014, Plaintiff GREEN filed a subsequent
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Trademark Application, for a logo design mark for GREEN CRUSH, U.S.
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Trademark Application Serial Number 86,208,025, currently pending before the
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USPTO. (Exhibit B)
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The design mark Application for GREEN CRUSH was published in the
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UPSTO Official Gazette for Opposition on or about July 29, 2014. The Opposition
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Period was due to end on November 26, 2014.
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On or about September 15, 2014, Defendant ROCKS filed and served a
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Notice of Opposition (Opposition No. 91218341) to Plaintiffs Trademark
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Application with the USPTO (the Opposition) on the alleged grounds of: (a)
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priority, and (b) likelihood of confusion between the GREEN CRUSH marks and
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ROCKSs mark, CRUSHED RED.
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COMPLAINT
27.
The filing of the Opposition by ROCKS was improper, unwarranted and
designed to harass, vex and annoy GREEN because there is no likelihood of
confusion between the GREEN CRUSH and CRUSHED RED marks, either as
each mark is used, or as such marks are intended to be used. ROCKS is not entitled
to oppose the GREEN CRUSH mark based upon the purported priority of the
CRUSHED RED mark.
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On information and belief, ROCKS applied for registration of its
purported CRUSHED RED mark with the USPTO on or about September 12,
2011. The CRUSHED RED mark was registered by the USPTO on March 5, 2013
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under U.S. Trademark Registration Number 4,298,935. (Exhibit C)

29.
On or about November 24, 2014, GREEN filed and served its Answer to
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Defendant ROCKS Notice of Opposition, denying the majority of the allegations
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contained in the Trademark Trial and Appeals Board (TTAB) Opposition and
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requesting dismissal with prejudice of the Opposition.
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30.
Apparently not satisfied with its efforts to stifle and interfere with
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GREENs business and marketing operations by filing the frivolous Opposition, on
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or about March 5, 2015, Defendant ROCKS filed and served a Petition for
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Cancellation (aka Petition to Cancel Registration No. 4,330,917; Cancellation No.
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92060993) of the GREEN CRUSH trademark with the USPTO (the Petition).
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In response, GREEN filed its Answer to Petition for Cancellation on or
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about May 15, 2015. In its Answer, GREEN denied the majority of the allegations
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contained in the Petition and raised the affirmative defenses of: (a) standing; (b)
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failure to state a claim for relief; (c) the equitable doctrine of laches; and (d) the
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equitable doctrines of acquiescence and waiver.
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32.
Based upon a prima facie review of the contested marks, it is clear that
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CRUSHED RED is a highly descriptive (and therefore weak) mark referring to
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crushed red pepper as is commonly used on pizza pies throughout the world. In no
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way does, or will, the mark CRUSHED RED create a likelihood of confusion with
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COMPLAINT
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GREEN CRUSH as the source of goods or services.

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Plaintiff brings this action seeking, inter alia, a declaration of the rights
and obligations of the parties as hereinafter set forth and the removal of any cloud
cast over Plaintiffs marks and brand by Defendants allegations of infringement, so
that Plaintiff may proceed with its business.
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FIRST CLAIM FOR RELIEF
DECLARATION OF NO LIKELIHOOD OF CONFUSION
UNDER LANHAM ACT 43(a)
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(Against All Defendants)
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34.
Plaintiff realleges and incorporates by this reference paragraphs 1
through 33, inclusive, of this Complaint, as though fully set forth herein.
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Plaintiff's GREEN CRUSH mark is based on a fanciful term GREEN
created to describe healthy beverages, and was chosen in good faith.

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Plaintiff's GREEN CRUSH mark is readily distinguishable from
Defendants CRUSHED RED, both visually and phonetically.

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Consumers of top-quality healthy beverages sold through retail store
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outlets are generally sophisticated and would not be confused as to the source of
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GREENs products described herein.
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38.
There is no likelihood of consumer confusion between GREEN
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CRUSH used as a brand for healthy beverages or other related consumer goods
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and CRUSHED RED.
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39.
An actual controversy has arisen and now exists between Plaintiff and
Defendants concerning their respective rights and duties under the Lanham Act, the
Opposition, the Petition, and as to their respective trademarks.
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Plaintiff contends, as stated herein, that there are insufficient grounds for
the cancellation of, or reasonable opposition to, its registered trademarks and the
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COMPLAINT
Application. Plaintiff contends that its GREEN CRUSH mark does not, and will
not, create a likelihood of consumer confusion with Defendant ROCKs CRUSHED
RED mark.
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41.
Plaintiff is informed and believes, and thereon alleges, that Defendants
dispute Plaintiffs contentions regarding the likelihood of consumer confusion.

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In light of the foregoing, pursuant to 28 U.S.C. 2201 and 2202, and
15 U.S.C. 1125(a), the Court should declare that Plaintiffs GREEN CRUSH
trademarks, including the Application mark, do not create a likelihood of consumer
confusion with ROCKs CRUSHED RED mark.
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WHEREFORE, Plaintiff prays for judgment as set forth more fully below.
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SECOND CLAIM FOR RELIEF
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DECLARATION OF NON-INFRINGEMENT UNDER LANHAM ACT 43(a)
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43.
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Plaintiff's GREEN CRUSH mark is based on a fanciful term GREEN
created to describe healthy beverages, and was chosen in good faith.

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Plaintiff's GREEN CRUSH mark is readily distinguishable from
Defendants CRUSHED RED, both visually and phonetically.

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Consumers of top-quality healthy beverages sold through retail store
outlets are generally sophisticated and are not (and would not be) confused as to the
source of GREENs products described herein. In addition, the marks are so
dissimilar and used in such different manners that there can be no infringement of the
CRUSHED RED mark from Plaintiff's GREEN CRUSH marks.
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An actual controversy has arisen and now exists between Plaintiff and
Defendants concerning their respective rights and duties under the Lanham Act, the
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COMPLAINT
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Opposition, the Petition, and as to their respective trademarks.

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Plaintiff contends, as stated herein, that there are insufficient grounds for
the cancellation of, or reasonable opposition to, its registered GREEN CRUSH
trademarks, and the Application. Plaintiff contends that its GREEN CRUSH marks
does not, and will not, infringe upon any rights of Defendant ROCKS in, and/or to, its
CRUSHED RED mark.
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49.
Plaintiff is informed and believes, and thereon alleges, that Defendants
dispute Plaintiffs contentions regarding the likelihood of consumer confusion.

50.
In light of the foregoing, pursuant to 28 U.S.C. 2201 and 2202, and
15 U.S.C. 1125(a), the Court should declare that Plaintiffs GREEN CRUSH
trademarks, including the Application mark, do not infringe Defendants
CRUSHED RED mark.
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THIRD CLAIM FOR RELIEF
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LACHES AND ACQUIESCENCE
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Plaintiff is informed and believes that Defendants and/or their counsel
regularly monitor the USPTO Official Gazette for possible infringing marks.
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Plaintiffs GREEN CRUSH mark (USPTO Registration # 4,330,917)
was published for opposition on or about February 19, 2013, and registered on May
7, 2013.
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Plaintiff is informed and believes that Defendant was aware of the
publication of Plaintiffs GREEN CRUSH mark, evaluated it, and after conferring
with counsel reached a conclusion that Plaintiffs GREEN CRUSH mark would
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COMPLAINT
not cause consumer confusion with or infringe Defendants CRUSHED RED mark.
55.
Defendant ROCKS did not file any notice of opposition, or a request for
extension of time to file a notice of opposition, with respect to Plaintiffs GREEN
CRUSH Application until on or about September 15, 2014; and filed a Petition for
Cancellation of Plaintiffs registered GREEN CRUSH mark on or about March 6,
2015.
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Defendants allegations of trademark infringement and likelihood of
confusion (as stated in ROCKs Opposition and Petition) should be barred by the
doctrines of laches and acquiescence.
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PRAYER FOR RELIEF
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WHEREFORE Plaintiff respectfully prays for judgment against Defendants,

and each of them, as follows:
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AS TO ALL CLAIMS FOR RELIEF
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1.
For an order and declaration of the rights, duties and obligations of the
parties as follows:
a.
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Declaring that Plaintiffs GREEN CRUSH trademarks do not

infringe Defendants CRUSHED RED mark;
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b.
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Declaring that Plaintiffs GREEN CRUSH trademarks do not
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create a likelihood of consumer confusion with Defendants
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CRUSHED RED mark;

c.
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Declaring that any infringement claims by Defendants are barred

by the doctrines of laches and acquiescence;
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2.
For attorneys fees and expenses;
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3.
For the costs and disbursements of bringing this action;
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COMPLAINT
4.
declaratory judgment; and
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Such additional and further relief as may follow from the entry of a
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For such other and further relief as the Court deems just and proper.
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Respectfully Submitted,
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DATED: October 21, 2015
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By:
/s/ Omar A. Siddiqui
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OMAR A. SIDDIQUI
DANIEL M. JOSEPHSON
BRANDON S. MILLER
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GREEN CRUSH, LLC
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COMPLAINT
DEMAND FOR JURY TRIAL
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Plaintiff GREEN CRUSH, LLC hereby enters a demand for a jury trial in this
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case.
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Respectfully submitted,
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DATED: October 21, 2015
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By: _/s/ Omar A. Siddiqui____________________

OMAR A. SIDDIQUI
DANIEL M. JOSEPHSON
BRANDON S. MILLER
GREEN CRUSH, LLC
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COMPLAINT

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Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 1 of 13 Page ID #:1

ULWELLING | SIDDIQUI LLP

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION

Case No. 8:15-cv-1699

[DEMAND FOR JURY TRIAL]

FOR ITS CLAIMS against Defendants, ON THE ROCKS RESTAURANTS

HOLDINGS, LLC (ROCKS, or Defendant); and DOES 1 through 10, inclusive,

Plaintiff GREEN CRUSH, LLC (GREEN or Plaintiff) alleges as follows:

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 2 of 13 Page ID #:2

NATURE OF THE DISPUTE

purveyor operating primarily from shopping mall locations throughout Southern

On or about May 7, 2013, the United States Patent Trademark Office

(USPTO) duly registered the GREEN CRUSH trademark, U.S. Trademark

On or about February 28, 2014, Plaintiff GREEN filed a subsequent

Trademark Application Serial Number 86,208,025, currently pending before the

USPTO (Application). A true and correct copy of the USPTO Application is

On information and belief, Defendant ROCKS owns and operates a

CRUSHED RED name.

On information and belief, ROCKS applied for registration of its

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 3 of 13 Page ID #:3

On or about September 15, 2014, Defendant ROCKS filed an Opposition

to Plaintiffs Trademark Application (Serial Number 86,208,025) with the USPTO

On or about March 5, 2015, Defendant ROCKS filed and served a

Petition for Cancellation (aka Petition to Cancel Registration No. 4,330,917;

Plaintiff brings this action in order to obtain a declaration of non-

infringement and a declaration that no likelihood of confusion exists between the

JURISDICTION AND VENUE

An actual controversy exists as to the rights and legal relations of the

2201(a) and 2202, and 15 U.S.C. 1125(a).

On information and belief, the Court has personal jurisdiction over

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 4 of 13 Page ID #:4

On information and belief, venue is proper in this district under 28

to Plaintiffs claims occurred in this district. On information and belief, all

Defendants are subject to personal jurisdiction in this district.

Plaintiff is informed and believes that Defendant ON THE ROCKS

RESTAURANTS HOLDINGS, LLC is a Missouri Limited Liability company, with

At all times relevant to the events referred to in this action, Defendant

Plaintiff is ignorant of the true names and capacities of Defendants,

whether individual, corporate, associate or otherwise, sued herein as DOES 1 through

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 5 of 13 Page ID #:5

GREEN began using the term GREEN CRUSH in commerce to refer

California in 2014. Additional Southern California locations in Ventura and Glendale

were opened in 2015.

quality fruit and vegetable juices. GREENs mission is to introduce an innovative

approach to a healthy lifestyle by offering a more nutritious beverage alternative.

GREEN generates extensive sales in Southern California and maintains a strong

connection with its customers.

GREEN expended considerable sums of money and invested substantial

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 6 of 13 Page ID #:6

On or about July 9, 2012, Christina Azinian, on behalf of GREEN, filed

a use-based application to register GREEN CRUSH with the USPTO. The

On or about June 9, 2015, the USPTO duly registered a Green Crush

green leaves, U.S. Trademark Registration Number 4,752,862, as it relates to fast-

food restaurant services [International Class 43]. (Exhibit A)

On or about February 28, 2014, Plaintiff GREEN filed a subsequent

Trademark Application Serial Number 86,208,025, currently pending before the

Period was due to end on November 26, 2014.

On or about September 15, 2014, Defendant ROCKS filed and served a

Notice of Opposition (Opposition No. 91218341) to Plaintiffs Trademark

ROCKSs mark, CRUSHED RED.

Case 8:15-cv-01699 Document 1 Filed 10/21/15 Page 7 of 13 Page ID #:7