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SCHOLASTIC CORPORATION,
Defendant.
Plaintiff Free Spirit Publishing Inc. (Free Spirit), for its Complaint against
Defendant Scholastic Corporation (Scholastic), alleges and states as follows:
JURISDICTION
1.
This is an action arising under the trademark laws of the United States and
the Lanham Act, 15 U.S.C. 1114 and 1125, and under the Minnesota Uniform
Deceptive Trade Practices Act, Minn. Stat. 325D.43, et seq., as hereinafter more fully
appears. This Court therefore has jurisdiction over this action pursuant to 28 U.S.C.
1331, 1338, and 1367.
PARTIES
2.
FACTS
4.
Free Spirit is known for its unique understanding of what kids want and
Free Spirit has nearly 13 million books in circulation around the world, and
its books have received recognition from esteemed institutions including the American
Library Association, American Academy of Pediatrics, YALSA (Young Adult Library
Society of America), National Mental Health Association, Mensa Association, Autism
National Committee, Chicago Public Library, Girl Scouts of the USA, and many others.
Free Spirits expert authors have been critically hailed on well-known broadcast outlets.
6.
In or about 1997, Free Spirit began publishing its How Rude! series of
books, regarding the subject matter of manners, advice, and proper behavior for children
and teens. The series has sold in excess of 169,000 copies worldwide (collectively the
How Rude! Books). The How Rude! Books include:
a. How Rude!: The Teenagers Guide to Good Manners, Proper
Behavior, and Not Grossing People Out, first published by Free Spirit
in 1997.
b. How Rude! : Handbook of Friendship & Dating Manners for Teens:
Surviving the Social Scene, first published by Free Spirit in 2004.
Free Spirits How Rude! Books have become well-known and are
On April 19, 2005, the United States Patent and Trademark Office duly and
validly issued Trademark Reg. No. 2,942,376 for the trademark How Rude! (the How
Rude! Trademark). The How Rude! Trademark now is incontestable and was renewed
by Free Spirit in 2015. A true and correct copy of the How Rude! Trademark is attached
as Exhibit A.
9.
All of the Free Spirits How Rude! Books in the series show the text and
the How Rude! Trademark in large font, with the various book subtitles directly
underneath mostly in a smaller font.
10.
traded book publishing corporations worldwide. Scholastic claims it has $1.6 billion in
annual revenue.
11.
book entitled How Rude! Real Bugs Who Wont Mind Their Manners, by Heather
3
Montgomery and Howard McWilliam (the Infringing Book). A true and correct copy
of screen shots of the Infringing Book is attached as Exhibit B.
12.
in very large font, which occupies most of the books cover. The subtitle, Real Bugs
Who Wont Mind Their Manners, appears in a small font directly under the How Rude!
Trademark. The Infringing Book further uses the exclamation point directly after the
words How Rude!, identical to the How Rude! Trademark.
13.
Spirits How Rude! Books, as well as Scholastics Infringing Book in the same list. Two
of Free Spirits How Rude! Books are listed as the first and second books. Scholastics
Infringing Book is listed as the third book, followed by several more How Rude! Books.
A true and correct copy of the Amazon.com search results using the How Rude!
Trademark is attached as Exhibit C.
14.
them of the How Rude! Trademark and that the Infringing Book used Free Spirits How
Rude! Trademark without permission. Free Spirit received no response from Scholastic.
15.
On November 16, 2015, Free Spirits attorney sent a second letter telling
Scholastic that its Infringing Book used Free Spirits the How Rude! Trademark without
permission, and requested that Scholastic cease sales of its Infringing Book and use of
any related marketing or promotional materials.
16.
responded, stating Scholastic would look into the matter and would soon respond
substantively.
17.
Despite at least three subsequent emails, and one response from Scholastic
again promising a response very soon, Scholastic has never responded substantively to
Free Spirit.
18.
Scholastic has been on notice that its Infringing Book infringes Free
Spirits How Rude! Trademark since at least September 2015. Despite such notice,
Scholastic continues to advertise, market and sell its Infringing Book in the United States
and Minnesota.
CAUSES OF ACTION
Count I: Trademark Infringement in Violation of 15 U.S.C. 1114
19.
Scholastic has sold and continues to sell, market, and advertise the
Infringing Book, knowing that the How Rude! Trademark is owned by Free Spirit and
that its Infringing Book is likely to cause confusion, mistake or deception.
22.
23.
Scholastic has reproduced, copied, and colorably imitated the How Rude!
been committed with knowledge that its imitation of the How Rude! Trademark is
intended to cause confusion, or to cause mistake, or to deceive.
25.
1114 has caused, and will continue to cause, loss and damage to Free Spirit in an
amount to be determined at trial, including, but not limited to, Scholastics profits,
damages sustained by Free Spirit, and costs of the action.
26.
1114 has caused, and will continue to cause, loss and damage to Free Spirit in an
amount three times the profits or damages, whichever amount is greater, together with a
reasonable attorneys fees.
27.
1114 requires that all Infringing Books, advertising, marketing materials, or other items
bearing the Infringing Book be delivered up and destroyed.
28.
Trademark has caused, and will continue to cause, irreparable harm and injury to Free
Spirit such that Free Spirit is entitled to an injunction enjoining Scholastic from the
manufacture, use, display, marketing, advertising, or sale of the Infringing Book.
Count II: Violation of the Lanham Act, 15 U.S.C. 1125
29.
Book misrepresents the nature, characteristics, or qualities of its and Free Spirits goods,
services, or commercial activities.
33.
Scholastics sale, marketing, advertising, and use of its Infringing Book has
caused, and will continue to cause, loss and damage to Free Spirit in an amount to be
determined at trial, including, but not limited to, Scholastics profits, damages sustained
by Free Spirit, and costs of the action. Such damages should be increased by the Court to
a sum above the amount found as actual damages, not exceeding three times such
amount.
7
34.
1125 requires that all Infringing Books, advertising, marketing materials, or other items
bearing the Infringing Book be delivered up and destroyed.
35.
caused, and will continue to cause irreparable harm and injury to Free Spirit such that
Free Spirit is entitled to an injunction enjoining Scholastic from the manufacture, use,
display, marketing or advertising of the Infringing Book.
Count III: Violation of the Minnesota Uniform Deceptive Trade Practices Act,
Minn. Stat. 325D.43, et seq.
36.
constitutes a violation of Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat.
325D.43, et seq.
38.
constitutes a deceptive trade practice in violation of, inter alia, Minn. Stat. 325D.44,
subd. (2), (3), and (13), in that such sale, marketing, and advertising causes a likelihood
of confusion or of misunderstanding.
39.
violation of the Minnesota Uniform Deceptive Trade Practices Act, has caused, and will
continue to cause irreparable harm and injury to Free Spirit such that Free Spirit is
entitled to an award of its attorneys fees and an injunction enjoining Scholastic from the
manufacture, use, display, marketing, advertising, or sale of the Infringing Book.
DEMAND FOR JURY TRIAL
Free Spirit demands a trial by jury on all issues triable to a jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Free Spirit Publishing Inc. prays for entry of judgment
against Defendant Scholastic Corporation as follows:
1.
to be determined at trial, including, but not limited to, Scholastics profits, damages
sustained by Free Spirit, attorneys fees, the costs of the action, increased damages, an
injunction enjoining Scholastic from the manufacture, use, display, marketing,
advertising, or sale of the Infringing Book, and an order that all Infringing Books,
advertising, marketing materials, or other items bearing the Infringing Book be delivered
up and destroyed.
2.
amount to be determined at trial, including, but not limited to, Scholastics profits,
damages sustained by Free Spirit, increased damages, attorneys fees, the costs of the
action, an injunction enjoining Scholastic from the manufacture, use, display, marketing,
advertising or sale of the Infringing Book, and an order that all Infringing Books,
advertising, marketing materials, or other items bearing the Infringing Book be delivered
up and destroyed.
3.
use, display, marketing, advertising, or sale of the Infringing Book, and an award of Free
Spirits costs and attorneys fees.
4.
For an award of Free Spirits attorneys fees and all costs incurred in
For pre- and post-judgment interest on all sums awarded as allowed by law.
6.
For such other and further relief as the Court may deem just and equitable.
10
Exhibit A
Exhibit B
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Full of scientific facts, humor and just the right
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Editorial Reviews
About the Author
Heather Montgomery is passionate about nature! She has taught science outdoors and in the classroom, plus directed an environmental
education center. She is the author of several nonfiction childrens books, including the Wild About Snakes series for Capstone Press. Heather
has a B.S. in Biology and a M.S. in environmental education. Learn more about her at www.HeatherLMontgomery.com.
Howard McWilliam is the illustrator of Dinosaur Christmas, by Jerry Pallotta; I Need My Monster, by Amanda Noll; and When a Dragon Moves
In, by Jodi Moore. He lives in Kingston Upon Thames, England, with his wife, Rebecca. For more information, go to www.mcbill.plus.com.
Product Details
Grade Level: 2 - 5
Lexile Measure: NC830L (What's this?)
Paperback: 32 pages
Publisher: Scholastic Nonfiction (August 25, 2015)
Language: English
ISBN-10: 0545780551
ISBN-13: 978-0545780551
Product Dimensions: 10 x 0.2 x 8 inches
Shipping Weight: 12.6 ounces (View shipping rates and policies)
Average Customer Review:
(4 customer reviews)
Amazon Best Sellers Rank: #221,763 in Books (See Top 100 in Books)
#174 in Books > Children's Books > Education & Reference > Science Studies > Zoology
#365 in Books > Children's Books > Animals > Bugs & Spiders
#3378 in Books > Children's Books > Science, Nature & How It Works
Would you like to update product info or give feedback on images?
Biography
Heather L. Montgomery writes about nature and science for children. Her books include WILD DISCOVERIES: WACKY NEW ANIMALS,
WHAT'S INSIDE A RATTLESNAKE'S RATTLE?, MUMMIES: TRUTHS AND RUMORS, KINGSNAKES, WHY DO MY TEETH FALL OUT?
and many more! She is published in HIGHLIGHTS FOR CHILDREN, SCIENCE WORLD, and KNOW:THE SCIENCE MAGAZINE FOR
CURIOUS KIDS.
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Heather masterfully employs yuck appeal to engage young minds. She delights in using snail poop, petrified animal parts and tree guts to
inspire reluctant readers and encourage scientific thinking. Heather has a B.S. in Biology and a M.S. in Environmental Education. Learn
more about her at www.HeatherLMontgomery.com.
Customer Reviews
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Verified Purchase
How Rude provides children unique insight to the insect world. Author Heather Montgomery compares
ten of the grossest kid bugs in North America. Each of the ten insects compete in the Battle for the
Grossest. Each insects rude and crude behavior is explained in humorous ways that kids can relate to
followed by The Real Deal which explains the science behind these rude behaviors.
A photograph of each insect accompanies the humorous and detailed illustrations by Howard
McWilliam. Each insects nasty behavior is rated on the Gross-O-Meter and Manners Meter.
If you are wondering about the cover illustration, the Tortoise Beetle Larvae wears his poop! The author
explains, When most bugs have to go, they drop their dung in the dirt and let it turn back into soil. Not
this guy! He refuses to let his poop go. Instead, he stockpiles it on his back. She goes on to explain
how this insect does this and how some scientists think the insect hoards its waste.
Fun explanations and illustrations combined with photographs, scientific descriptions and terms, and
even Latin insect names provides great balance for kids who have little or high interest in insects. My
own children love this book and go around singing the tagline, Some bugs litter. Some pass gas.
Others throw their poop. (My children happened to think the included words fart and poop were
hilarious, but its not all about potty words. Cannibalism, decapitating heads, and more disgust readers,
too. If you are concerned about the potential for potty talk, remember these are bugs who don't mind
their manners.) After each reading my chidlren notice something different-sometimes in the illustrations
and sometimes about the insects themselves.
A few details are highly commendable. Read more
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I found Heather Montgomery's book both fun and fact filled
By Mark E. Hubbs on November 24, 2015
Format: Kindle Edition
I found Heather Montgomery's book both fun and fact filled. Do we learn that some bugs are a bit
gross? Yes, indeed, but that is what makes this book fun for the young reader. The illustrations add to
the whimsical nature of the book and youngsters will absorb a good bit of entomology without even
realizing it, both the rude and the not so rude. The photos of the actual creatures are a great touch. I
don't understand a previous reviewer's concern that this book is inappropriate for kids. I would not
hesitate to give this book to any of my grandchildren.
Comment
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No
Report abuse
How Rude! is a hilarious, and enGROSSing, look at ten bugs, such as Gassy Guy (Giant Mesquite
Bug) and Upchuck Eater (American Burying Beetle), who are competing in a "Battle for the Grossest".
The animals stink, throw poop, suck the guts of their prey and exhibit other "rude" behaviors.
Montgomery explains the WHY behind their behaviors in a way that is interesting and fun. The writing is
super and the illustrations are a perfect compliment. I bought this book for my favorite little guy and
can't wait to share it with him.
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One Star
By Amazon Customer on November 6, 2015
Format: Paperback
Crude and rude and very in appropriate book for even a teenager. DO NOT PURCHASE THIS BOOK
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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
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I. (a) PLAINTIFFS
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Scholastic Corporation,
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Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
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Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.