IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

FINE ESTATES FROM SPAIN, INC., Plaintiff, v. Civil Action No. 12-cv-10618 SEDITION WINE IMPORTS, LLC and VIRGINIA C. POVALL, Defendants. COMPLAINT FOR TRADEMARK INFRINGEMENT, UNFAIR COMPETITION, AND UNJUST ENRICHMENT Plaintiff Fine Estates From Spain, Inc. (Fine Estates) brings this complaint against defendants Sedition Wine Imports, LLC (Sedition) and Virginia C. Povall (Povall) (collectively Defendants) for Defendants infringement of Fine Estates federally registered trademark and common law trademark rights. As its complaint against Defendants, Fine Estates alleges as follows: NATURE OF THE ACTION 1. This is an action for trademark infringement, false designation of origin, and DEMAND FOR JURY TRIAL

unfair competition pursuant to the Lanham Act, 15 U.S.C. 1051 et seq. As will be set out in greater detail below, Defendants have knowingly and willingly sold, offered for sale, marketed and advertised products using the designation BOTANICA, which is confusingly similar to Fine Estates federally registered and common law trademark BOTANI. Unless this Court enjoins Defendants conduct, their use of the designation will continue to cause a likelihood of confusion with, and irreparable harm to, Fine Estates and its marks.

JURISDICTION AND VENUE 2. This Court has original jurisdiction over the subject matter of this Complaint

pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338 because this action involves federal questions of law. 3. This Court has supplemental jurisdiction over the claims brought under common

law pursuant to 28 U.S.C. 1338(b) and 1367(a). 4. Venue and personal jurisdiction are proper in the District of Massachusetts under

28 U.S.C. 1391(b) and (c) and 15 U.S.C. 1121, since, inter alia, a substantial part of the events or omissions giving rise to the claims in the district and Defendants have promoted the goods on the internet and sold and distributed product in Massachusetts that uses a designation confusingly similar to Fine Estates BOTANI mark. PARTIES 5. Fine Estates is a Massachusetts corporation with its principal place of business at

745 High Street, Dedham, Massachusetts 02026. 6. Upon information or belief, Defendant Sedition Wine Imports, LLC is a limited

liability company organized under the laws of the State of Connecticut, and having a principal place of business at 58 Pine Creek Avenue, Fairfield, Connecticut 06824. Upon information and belief, Sedition Wine Imports, LLC has advertised and sold the products marketed with the designation infringing Fine Estates BOTANI mark on the internet and sold products to residents of the Commonwealth. 7. Upon information or belief, Defendant Virginia C. Povall is the sole Member and

Manager of Sedition. Fine Estates is informed and believes that Povall has the power and

authority to direct the actions of Sedition and has a direct financial interest in the activities of Sedition that resulted in the infringement described herein. FACTS COMMON TO ALL COUNTS 8. Fine Estates is the sole and exclusive owner of U.S. Trademark Registration No.

3,269,608 for the mark BOTANI for use in connection with wines in International Class 33. Fine Estates has continuously used the BOTANI mark in connection with these goods since at least as early as June 29, 2005. See Exhibit A. The registration remains in full force and effect. 9. Fine Estates federal trademark registration was duly and legally issued, is valid

and subsisting, and constitutes prima facie evidence of Fine Estates exclusive ownership of the BOTANI mark. 10. Furthermore, Fine Estates has consistently used the BOTANI mark since 2005 to

identify the source of the goods to which it is attached. Through its consistent use of the BOTANI mark, Fine Estates has acquired extensive common law rights in the mark. 11. Fine Estates has invested significantly in the advertising, promotion and

development of the BOTANI mark. As a result of such advertising and promotion, Fine Estates has established substantial goodwill and widespread recognition in its BOTANI mark, and the mark has become associated with Fine Estates by customers, potential customers, and the general public at large. 12. To create and maintain goodwill among its customers and the public at large, Fine

Estates has taken substantial steps to ensure that the products bearing the BOTANI mark are of the highest quality. As a result, Fine Estates products are recognized as symbols of the highest quality goods.

13.

Upon information and belief, Defendants have adopted and begun using the

designation BOTANICA in connection with wine. 14. Upon information and belief, Defendants use of the BOTANICA designation

began long after Fine Estates actual first use of its BOTANI mark and its constructive date of first use. 15. Upon information and belief, Defendants goods are directly competitive with

Fine Estates goods and are targeted toward the same class of prospective purchasers as those solicited by Fine Estates. 16. Fine Estates. 17. Defendants conduct will likely cause consumer confusion or mistake, or deceive Defendants use of the BOTANICA is without the permission or authorization of

consumers, as to the source of the goods. 18. Defendants unauthorized use of the BOTANICA designation falsely implies an

endorsement from, or affiliation with, Fine Estates. 19. Defendants conduct has harmed and will continue to harm Fine Estates

reputation and goodwill, and has cause the loss of sales and profits Fine Estates would have made but for Defendants illegal acts. 20. Unless restrained and enjoined, Defendants are likely to continue to commit the

acts complained of herein, all to Fine Estates irreparable harm. COUNT I TRADEMARK INFRINGEMENT 21. Fine Estates hereby restates each and every allegation contained in the foregoing

paragraphs as if fully set forth herein.

22.

Defendants unauthorized use of the BOTANICA designation on and in

connection with wine in interstate commerce is likely to cause confusion, mistake, or deception, as to the source, affiliation or sponsorship of Defendants products with Fine Estates registered BOTANI trademark in violation of 15 U.S.C. 1051 et seq., specifically 1114-1118, and 15 U.S.C. 1125(a). 23. Fine Estates has been and is being damaged by Defendants trademark

infringement and has no adequate remedy at law. Defendants unlawful conduct will continue to damage Fine Estates unless this Court enjoins Defendants. 24. 25. Defendants use of the BOTANICA designation in connection with wine is Based on Defendants previous and continuing knowledge of the BOTANI mark

and continued activities, Defendants trademark infringement is willful. COUNT II FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN 26. Fine Estates hereby restates each and every allegation contained in the foregoing

paragraphs as if fully set forth herein. 27. This cause of action is for federal unfair competition and false designation of

origin pursuant to 15 U.S.C. 1125 et seq. 28. 29. Fine Estates BOTANI mark is distinctive. Through Fine Estates extensive use of its BOTANI mark on and in connection

with wine, the BOTANI mark has become associated in the minds of the public with Fine Estates. Accordingly, Fine Estates BOTANI mark has acquired secondary meaning and significance with the relevant consuming public as being affiliated, connected or associated with Fine Estates.

30.

Long after Fine Estates adoption and use of its BOTANI mark on and in

connection with wine, and with actual and constructive notice thereof, Defendants adopted and used the BOTANICA designation on and in connection with wine. 31. Defendants adoption and use of the BOTANICA designation constitutes use of a

false designation of origin or a false representation, which wrongfully and falsely designates, describes, or represents the origins of Defendants goods as being those of Fine Estates, which is not the case and therefore constitutes a false designation or representation used in interstate commerce. 32. Defendants activities are likely to cause confusion, or to cause mistake, or to

deceive, and cause great harm to Fine Estates reputation and goodwill. 33. Defendants conduct constitutes false designation of origin under Section 43(a) of

the Lanham Act, 15 U.S.C. 1125(a). 34. Defendants infringing acts have been committed willfully with the intent to cause

confusion and mistake, and to deceive. 35. Defendants have unfairly competed with Fine Estates as alleged herein with the

intent to deceive the public into believing the goods offered by Defendants are provided by, approved by, sponsored by or affiliated with Fine Estates. 36. Fine Estates has been and will continue to be damaged by such violation and has

no adequate remedy at law. Defendants unlawful and willful conduct will continue to damage Fine Estates unless the Court enjoins Defendants. COUNT III UNJUST ENRICHMENT 37. Fine Estates hereby restates each and every allegation contained in the foregoing

paragraphs as if fully set forth herein.

6

38. 39.

This cause of action arises under common law. Upon information and belief, Defendants will continue to infringe Fine Estates

rights in its BOTANI mark. 40. By the acts and activities of Defendants complained of herein, Defendants have

been unjustly enriched. 41. As a direct and proximate result of the acts and activities of Defendants

complained of herein, Fine Estates has been damages in an amount not yet fully ascertainable but which is in excess of $75,000.00. When Fine Estates has ascertained the full amount of damages, it will seek leave of court to amend this Complain accordingly. 42. Fine Estates is informed and believes, and based thereon alleges, that Defendants,

in doing the things herein alleged, acted willfully and maliciously, with full knowledge of the adverse affect of their action on Fine Estates, and with willful and deliberate disregard for the consequences to Fine Estates. RELIEF REQUESTED For the above stated reasons, Fine Estates pray for relief against Defendants as follows: 1. That the Court preliminarily and permanently enjoin Defendants, including all

partners, officers, agents, servants, employees, attorneys and all those persons and entities in active concert or participation with them, from: (a) using the BOTANI mark or any mark confusingly similar thereto,

including, but not limited to, BOTANICA, whether alone or in combination with other words or symbols; (b) infringing, inducing or contributing to the infringement of Fine Estates

intellectual property; and

(c) 2.

otherwise competing unfairly with Fine Estates in any manner whatsoever.

That the Court enter judgment that Defendants are infringing Fine Estates

BOTANI trademark, and otherwise have been unjustly enriched. 3. That the Court issue an order requiring Defendants, their distributors, agents,

servants, employees, officers, directors, affiliates, attorneys, assigns and all others active in concert or participation with them or otherwise controlled by them, as well as any others that may become aware of the enjoinment ordered by the Court, to forfeit for destruction all devices, products, components and any materials of any type containing the infringing marks. 4. That the Court order Defendants to account for and pay to Fine Estates the

damages to which Fine Estates is entitled as a consequence of the infringement. 5. That the Court order Defendants to account for and pay over to Fine Estates all

profits received by Defendants from its unlawful acts, and for its unjust enrichment. 6. That the Court enter and order placing reasonable but effective restrictions on the

future transactions and activities of Defendants so as to prevent fraud on the Court and so as to ensure the capacity of Defendants to pay, and prompt the payment of, any judgment against Defendants in this action. 7. damages. 8. 9. this action. 10. and proper. That the Court award Fine Estates such further relief as this Court may deem just That the Court award Fine Estates enhanced, treble, and/or punitive damages. That the Court award Fine Estates its reasonable attorneys fees and the costs of That the Court award Fine Estates its compensatory, incidental, and consequential

PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL COUNTS.

Respectfully submitted, FINE ESTATES FROM SPAIN, INC. By its attorneys, Dated: April 6, 2012 /s/Aaron Silverstein Aaron Silverstein, Esq. (BBO No. 660716) SAUNDERS & SILVERSTEIN LLP 14 Cedar Street, Suite 224 Amesbury, MA 01913 P: 978-463-9100 F: 978-463-9109 E: asilverstein@massiplaw.com John P. Connell, Esq. (BBO No. 566362) Law Offices of John P. Connell, P.C. 112 Water Street, 2nd Floor Boston, MA 02109 P: 617-227-3277 F: 617-227-3222 E: john@connelllawoffices.com