Free Motion to Amend/Correct - District Court of California - California

Case 3:07-cv-02391-JAH-POR

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LATHAM & WATKINS LLP Stephen P. Swinton (Bar No. 106398) [email protected] Adam A. Welland (Bar No. 228680) [email protected] 12636 High Bluff Drive, Suite 400 San Diego, California 92130-2071 Telephone: (858) 523-5400 Facsimile: (858) 523-5450 Attorneys for Plaintiff, GEORGIA-PACIFIC CONSUMER PRODUCTS LP IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA GEORGIA-PACIFIC CONSUMER PRODUCTS LP, a Delaware limited partnership, ) ) ) ) Plaintiff, ) ) v. ) ) LEE'S GENERAL TOYS, INC., a California ) corporation, JOHN LEE, an individual; and ) DOES 1-100, ) Defendants. ) ) ) ) ) ) ) ) ) ) Civil Action No. 07-CV-02391 JAH POR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF GEORGIA-PACIFIC'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

Date: Time: Ctrm: Judge:

March 24, 2008 2:30 p.m. 11 Hon. John A. Houston

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07-CV-02391 JAH POR PS & AS ISO GEORGIA-PACIFIC'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

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I.

INTRODUCTION Plaintiff Georgia-Pacific Consumer Products LP ("Georgia-Pacific") hereby seeks leave

to file a First Amended Complaint to add two new Defendants -- RunHui Paper Co., Ltd. and Shantou Kid Toys Co., Ltd. Although this action is in its early stages and very little discovery has taken place, Defendants Lee's General Toys, Inc. and John Lee ("Defendants") nevertheless have refused to stipulate to the filing of Georgia-Pacific's First Amended Complaint, thereby necessitating this motion. Given the early stages of this litigation, and the requirement that leave to amend shall be liberally granted, Georgia-Pacific respectfully submits that it should be permitted to file its First Amended Complaint. II. BACKGROUND To protect its valuable ANGEL SOFT® trademarks, on December 20, 2007, GeorgiaPacific filed its complaint in this action, along with an application for a temporary restraining order, or order to show cause why a preliminary injunction should not be granted, in which Georgia-Pacific sought an order prohibiting Defendants from distributing, selling, or marketing their "Angelite"-branded bathroom tissue products. Dkt ## 1, 5. While Georgia-Pacific's initial TRO application was denied, see Dkt ## 7, 14, 21, the Court has requested supplemental briefing regarding Georgia-Pacific's application for a preliminary injunction, with Georgia-Pacific's opening brief due on February 15, 2008. Id. An Early Neutral Evaluation Conference is scheduled to occur on February 27, 2008. Dkt # 22. In recent weeks, the parties made an effort to resolve this dispute informally; thus far, these efforts have been unsuccessful. Declaration of Adam Welland ("Welland Decl."), ¶ 5, filed herewith. As part of these efforts, however, Defendants identified a Chinese supplier and associated agent, which Defendants identified as the source of the offending "Angelite" bathroom tissue products. Id. ¶ 3. Promptly upon learning of these suppliers, Georgia-Pacific prepared the proposed First Amended Complaint, attached hereto as Exhibit A, and requested that Defendants' counsel to stipulate to its filing. Id. ¶¶ 6-7. Defendants' counsel declined to stipulate to filing of the First Amended Complaint, thereby necessitating this motion. Id. ¶ 7.

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III.

ARGUMENT Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend its

pleading by leave of court or by written consent of the adverse party. Leave to amend "shall be given freely when justice so requires." Fed. R. Civ. P. 15(a); see also Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) ("It is true that leave to amend `shall be freely given when justice so requires,' Fed. R. Civ. P. 15(a), and this policy is to be applied with extreme liberality"). "Where there is lack of prejudice to the opposing party and the amended complaint is obviously not frivolous or made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny such a motion." Hurn v. Retirement Fund Trust of Plumbing, Heating & Piping Indus., 648 F.2d 1252, 1254 (9th Cir. 1981); see also Foman v. Davis, 371 U.S. 178, 182 (1962) ("In the absence of [a] reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be `freely given.'"). Here, no prejudice to Defendants will result from Georgia-Pacific's amendment of the complaint. This case is still in its early stages. While Defendants have voluntarily produced some documents, no formal discovery has occurred to date. Welland Decl. ¶ 5. Indeed, the Court has not yet set discovery deadlines, nor entered a scheduling order. There is certainly no dilatory motive here; Georgia-Pacific simply seeks to add new Defendants, which have been identified by the existing Defendants as sources for the offending "Angelite" products. Defendants will have ample opportunity to challenge the First Amended Complaint, to conduct discovery on the issues it raises should they so wish, and to defend the allegations contained therein on the merits. No prejudice will result from permitting these claims to be made at this time. Accordingly, leave to amend should be granted.

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IV.

CONCLUSION For the foregoing reasons, Georgia-Pacific respectfully requests leave to file its proposed

First Amended Complaint. Respectfully submitted, Dated: February 15, 2008 LATHAM & WATKINS LLP By: /s/ Stephen P. Swinton Stephen P. Swinton Attorneys for Plaintiff Georgia-Pacific Consumer Products LP E-mail: [email protected]

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Case 3:07-cv-02391-JAH-POR

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LATHAM & WATKINS LLP Stephen P. Swinton (Bar No. 106398) [email protected] Adam A. Welland (Bar No. 228680) [email protected] 12636 High Bluff Drive, Suite 400 San Diego, California 92130-2071 Telephone: (858) 523-5400 Facsimile: (858) 523-5450 Attorneys for Plaintiff, GEORGIA-PACIFIC CONSUMER PRODUCTS LP IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA GEORGIA-PACIFIC CONSUMER PRODUCTS LP, a Delaware limited partnership, ) ) ) ) Plaintiff, ) ) v. ) ) LEE'S GENERAL TOYS, INC., a California ) corporation, JOHN LEE, an individual; ) RUNHUI PAPER CO., LTD., a Chinese ) Corporation, SHANTOU KID TOYS CO., ) LTD., a Chinese Corporation, and DOES 3- ) 100, ) ) Defendants. ) ) ) ) ) ) Civil Action No. 07-CV-02391 JAH POR FIRST AMENDED COMPLAINT FOR: (1) FEDERAL TRADEMARK INFRINGEMENT; (2) COMMON LAW TRADEMARK INFRINGEMENT; (3) FEDERAL FALSE DESIGNATION OF ORIGIN; (4) FEDERAL FALSE ADVERTISING; (5) FEDERAL DILUTION; (6) CALIFORNIA STATUTORY DILUTION; (7) CALIFORNIA STATUTORY AND COMMON LAW UNFAIR COMPETITION; (8) UNLAWFUL IMPORTATION OF GOODS BEARING INFRINGING MARK; (9) VIOLATION OF TARIFF ACT SECTION 1526; AND (10) CANCELLATION OF STATE TRADEMARK REGISTRATION DEMAND FOR JURY TRIAL

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Plaintiff Georgia-Pacific Consumer Products LP ("Georgia-Pacific") alleges as follows: 1. Georgia-Pacific owns several incontestable federally registered trademarks for the

ANGEL SOFT® mark. This is an action for trademark infringement arising under Section 32 of the Lanham Act (15 U.S.C. § 1114), common law trademark infringement, false designation of origin arising under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), false advertising arising under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), federal dilution arising under Section 43(c) of the Lanham Act (15 U.S.C. § 1125(c)), statutory dilution arising under California Business & Professions Code § 14330, statutory unfair competition arising under California Business & Professions Code §§ 17200 et seq. and unfair competition arising under the common law of the State of California, unlawful importation of trademark infringing goods arising under Section 42 of the Lanham Act (15 U.S.C. § 1124), unlawful importation of trademark infringing goods arising under the Section 1526(a) of the Tariff Act (19 U.S.C. § 1526), and cancellation of California Registration Number 109928 pursuant to California Business & Professions Code §§ 14281 or 14282. I. JURISDICTION AND VENUE 2. This action is within the subject matter jurisdiction of this Court by virtue of the

Lanham Act, 15 U.S.C. § 1121(a), and 28 U.S.C. §§ 1331, 1338(a) and (b). This Court also has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a). 3. Defendants are subject to the jurisdiction of this Court pursuant to the laws of this

State and the Federal Rules of Civil Procedure. Upon information and belief, Defendants participate in the promotion, advertising, and sale of unauthorized goods in this State and in this district. 4. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because a

substantial portion of the events giving rise to this action occurred in this district. GeorgiaPacific is informed and believes and on that basis alleges that Defendants distribute, sell, or otherwise have introduced into the stream of commerce within this judicial district, products bearing the infringing trademark.

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II. THE PARTIES Plaintiff Georgia-Pacific is a Delaware limited partnership having its principal

place of business at 133 Peachtree Street, N.E., Atlanta, Georgia 30303. 6. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendant Lee's General Toys is a California corporation with a principal place of business at 3389 East 50th Street, Vernon, California 90058. 7. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendant John Lee ("Lee") is an individual who has distributed, sold, or otherwise introduced into the stream of commerce within this judicial district products bearing the infringing trademark. Upon information and belief, Lee is the owner of Lee's General Toys. 8. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendant Doe Number One, RunHui Paper Co., Ltd., is a Chinese corporation with its principal place of business at 40 Hubin North Road, Zhong Shan, China. Georgia-Pacific is informed and believes, and on that basis alleges, that Defendant Run Hui Paper Co., Ltd. has manufactured, distributed, sold, or otherwise introduced into the stream of commerce within this judicial district products bearing the infringing trademark. 9. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendant Doe Number Two, Shantou Kid Toys Co., Ltd., is a Chinese corporation with its principal place of business at Room 203, 5nd Building, Jinguan Yuan, Wenguan Road, Chenghai District, Shantou City, Guang-Dong, China. Georgia-Pacific is informed and believes, and on that basis alleges, that Defendant Shantou Kid Toys Co., Ltd. has manufactured, distributed, sold, or otherwise introduced into the stream of commerce within this judicial district products bearing the infringing trademark. 10. Georgia-Pacific is unaware of the true names and capacities of Defendants named

herein as Does 3 through 100, inclusive, but is informed and believes, and thereon alleges, that each of the fictitiously named Defendants engaged in, or is in some manner responsible for, the wrongful conduct alleged herein. Georgia-Pacific therefore sues these Defendants by such fictitious names and will amend this complaint to state their true names and capacities when such
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names have been discovered. (Collectively, Lee's General Toys, John Lee, RunHui Paper Co., Ltd., Shantou Kid Toys Co., Ltd., and Does 3 through 100 will be referred to herein as "Defendants.") III. GENERAL ALLEGATIONS A. Georgia-Pacific's Federally Registered ANGEL SOFT® Trademarks 11. Georgia-Pacific is one of the world's leading manufacturers and marketers of

tissue, towels, napkins, cups, plates, cutlery and related tabletop items, including bathroom tissue sold under the ANGEL SOFT® brand. 12. Georgia-Pacific and its predecessors in interest first began using the ANGEL

SOFT® brand in connection with selling bathroom tissue in 1944. 13. Georgia-Pacific and its predecessors in interest have used the ANGEL SOFT®

marks for bathroom tissue continuously since that time. 14. Georgia-Pacific is the owner of several federally registered trademarks to protect

its ANGEL SOFT® brand and family of trademarks used in connection with bathroom tissue. 15. Georgia-Pacific and its predecessors in interest have applied for and obtained

federal trademark registrations for Angel Soft including U.S. Registration Numbers 781,414; 1,172,215; 2,512,417; 2,972,819; and 2,989,711. Georgia-Pacific also owns two additional Angel Soft marks, U.S. Registration Numbers 2,546,897 and 2,841,759. True and correct copies of the federal registration certificates for these trademarks are attached hereto as Exhibits A ­ G. For purposes of this Complaint, Georgia-Pacific is alleging violation only of Registration Numbers 781,414; 1,172,215; and 2,512,417. In accordance with 15 U.S.C. § 1065, based upon widespread and continuous use, Registration Numbers 781,414 and 1,172,215 have achieved incontestable status. 16. Georgia-Pacific is the current owner of the ANGEL SOFT® trademark by virtue

of valid assignments.

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17. shown below:

A representative sample of Georgia-Pacific's ANGEL SOFT® bathroom tissue is

18.

Georgia-Pacific also owns the ANGEL SOFT PS® mark for bathroom tissue that

it distributes through commercial channels. 19. Georgia-Pacific first began using the ANGEL SOFT PS® mark in commerce in

conjunction with bathroom tissue at least as early as January 31, 2003. Georgia-Pacific has used the ANGEL SOFT PS® mark continuously since that time. 20. The following picture depicts the current product configuration and packaging of

a typical ANGEL SOFT PS® commercial product:

21.

Georgia-Pacific applied for and obtained federal trademark registrations for

"ANGEL SOFT PS®" including U.S. Registration Number 2,912,982, which Georgia-Pacific also asserts here. A true and correct copy of the federal registration certificate for this trademark is attached hereto as Exhibit H. Both the "ANGEL SOFT®" and "ANGEL SOFT PS®" trademarks are collectively referred to hereinafter as the "ANGEL SOFT Trademarks."

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B.

Georgia-Pacific's Sale and Marketing of Products Bearing the ANGEL SOFT Trademarks 22. Georgia-Pacific markets and sells its ANGEL SOFT® product line throughout

the United States, including in Southern California and the County of San Diego. 23. Georgia-Pacific has invested heavily in advertising and promoting its ANGEL

SOFT® brand and products for more than six decades. This advertising has consistently used the ANGEL SOFT Trademarks. In the U.S. in 2006 alone, Georgia-Pacific spent over $22 million advertising and promoting bathroom tissue sold under the ANGEL SOFT Trademarks. 24. In the U.S., this advertising has included television commercials, print

publications, radio commercials, billboards, live promotions, sponsorship of large events, trade shows, brochures, and internet promotions. 25. This advertising and promotion has been continuous, and has also included

numerous large-scale campaigns that have stood out for consumers. Some examples include the "Angels in Action" and "Bathroom Moments" campaigns, which received significant media attention and coverage. 26. Georgia-Pacific also created a website (www.angelsoft.com) to promote its

ANGEL SOFT Trademarks and products. This website launched in 2003 and currently receives an average of 4,145 visitors per month. Georgia-Pacific also distributes point-of-sale items that promote the ANGEL SOFT Trademarks and products. 27. Georgia-Pacific has directed a portion of its advertising for the ANGEL SOFT

Trademarks toward the Spanish-speaking market. Since 2005, Georgia-Pacific paid for both television and radio advertisements in these markets, including but not limited to Los Angeles, Phoenix and Houston, along with other national advertisements in 2007. 28. The U.S. is the largest market for bathroom tissue sold under the ANGEL SOFT

Trademarks. Georgia-Pacific sells bathroom tissue under the ANGEL SOFT Trademarks in both the retail and commercial channels. For example, ANGEL SOFT® bathroom tissue is sold through the retail channel in large retail chain stores such as Wal*Mart, Target, Winn Dixie, and Walgreen's, discount retail stores such as Big Lots, Family Dollar, Dollar General, Fred's, $0.99
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Stores, Canned Foods, and McFrugles, and in tens of thousands independent retail stores located across the country. Georgia-Pacific sells its ANGEL SOFT PS® bathroom tissue in the commercial channel to distributors such as US Foodservice, SYSCO, Xpedx, and Lagasse Sweet which then distribute ANGEL SOFT PS® to well-known commercial end users such as Hampton Inn, Sheraton Hotels, The Walt Disney Company, Hyatt Hotels and Little Caesar Enterprises, Inc. 29. Georgia-Pacific's ANGEL SOFT® brand bathroom tissue has been

tremendously successful. Since 1944, Georgia-Pacific has sold billions of dollars worth of bathroom tissue under the ANGEL SOFT Trademarks in the U.S., Canada and Mexico. In particular, from 2004 through 2006, U.S. sales of bathroom tissue sold under the ANGEL SOFT Trademarks totaled over $2 billion. Much of this success is attributable to the quality and distinctive trademarks of the ANGEL SOFT® product line. 30. The products sold under the ANGEL SOFT Trademarks must meet Georgia-

Pacific's rigorous standards of quality. As a result, Georgia-Pacific endures significant expense to ensure that its products sold under the ANGEL SOFT Trademarks adhere to high quality standards. Some examples of the quality control efforts put in place by Georgia-Pacific include, but are not limited to: measuring and controlling the quality of the base sheet of the bathroom tissue during production; measuring and recording the finished bathroom tissue rolls at least once per day per manufacturing line; conducting periodic workmanship audits of the bathroom tissue itself as well as the packaging, box and pallet; and conducting softness panels to judge sensory softness. 31. By virtue of the substantial use, sale and promotion of the ANGEL SOFT®

product line, the ANGEL SOFT Trademarks have acquired great value as identifiers of the source of the bathroom tissue and to distinguish Georgia-Pacific's products from those of others. 32. By virtue of the substantial use, sale and promotion of the ANGEL SOFT®

product line, the ANGEL SOFT Trademarks have become famous. The ANGEL SOFT® product line and the ANGEL SOFT Trademarks have been famous since long before Defendants began their infringing activities complained of herein.
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33.

The ANGEL SOFT Trademarks are extremely valuable to Georgia-Pacific as an

identifier of its products, Georgia-Pacific's quality goods, and of the substantial customer goodwill that Georgia-Pacific has earned over many years in the market. C. Defendants' Infringement of the ANGEL SOFT Trademarks 34. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants are engaged in the business of importing, promoting, distributing, and selling bathroom tissue, among other articles. 35. Georgia-Pacific is informed and believes, and on that basis alleges, that without

permission or authority from Georgia-Pacific, Defendants have infringed Georgia-Pacific's ANGEL SOFT Trademarks in interstate commerce by importing, making, using, promoting, advertising, selling and/or offering to sell bathroom tissue under the name "Angelite," "Angel Lite," and "Angelito" (collectively referred to herein as "Angelite"). The marks and images used on the "Angelite" products are confusingly similar in appearance to Georgia-Pacific's ANGEL SOFT Trademarks. Defendants' "Angelite" bathroom tissue products include at least the following products: Angelite, Angelite 500, and Angelite 525. 36. Representative photographs of Defendants' infringing "Angelite 500" and

"Angelite 525" products are shown below:

37.

As shown in the photographs above, Defendants' bathroom tissue is sold in a

packaging that includes marks and images that are confusingly similar in appearance to that of Georgia-Pacific's ANGEL SOFT Trademarks and ANGEL SOFT® and ANGEL SOFT PS® product lines.

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38.

Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants' unauthorized use of Georgia-Pacific's ANGEL SOFT Trademarks is intended to trade upon the goodwill and substantial recognition associated with Georgia-Pacific's ANGEL SOFT® and ANGEL SOFT PS® lines of bathroom tissue. 39. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants are using Georgia-Pacific's ANGEL SOFT Trademarks in an attempt to associate themselves with Georgia-Pacific or otherwise trade upon Georgia-Pacific's reputation. 40. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants' use of Georgia-Pacific's ANGEL SOFT Trademarks is designed to cause confusion, mistake or deception. 41. Georgia-Pacific is informed and believes, and on that basis alleges, that it is

Defendants' purpose to cause consumers and potential customers to believe that Defendants' "Angelite" products are associated with Georgia-Pacific or its products when, in fact, they are not. D. Other Allegations 42. By virtue of the acts complained of herein, Defendants have created a likelihood

of injury to Georgia-Pacific's business reputation, caused a strong likelihood of consumer confusion as to the source of origin or relationship of Georgia-Pacific's and Defendants' goods, and have otherwise competed unfairly with Georgia-Pacific. 43. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants' acts complained of herein are willful and deliberate. 44. Defendants' acts complained of herein have caused damage to Georgia-Pacific in

an amount to be determined at trial, and such damages will continue to increase unless Defendants are enjoined from their wrongful actions. 45. Defendants' acts complained of herein have caused Georgia-Pacific to suffer

irreparable injury to its business. Georgia-Pacific will suffer substantial loss of goodwill and reputation unless and until Defendants are preliminarily and permanently enjoined from the wrongful actions complained of herein.
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E.

Lee's General Toys' Improper State Trademark Registration and Federal Trademark Applications 46. Upon information and belief, Defendant Lee's General Toys applied for, and on

August 25, 2003, obtained California state registration number 109437 for the trademark "Angel Lite 500" in a stylized design format. A copy of what is believed to be the registered mark is attached hereto as Exhibit I. 47. Georgia-Pacific is informed and believes and on that basis alleges that Defendant

Lee's General Toys applied for a federal trademark registration for the trademark "Angel Lite 500" in a stylized design format. A copy of what is believed to be the federal trademark application, serial number 76/539,283, is attached hereto as Exhibit J. This application was abandoned. 48. Georgia-Pacific is informed and believes and on that basis alleges that Defendant

Lee's General Toys applied for a federal trademark registration for the trademark "Angelito" in a stylized design format. A copy of what is believed to be the federal trademark application, serial number 77/109,596, published on November 21, 2007, is attached hereto as Exhibit K. GeorgiaPacific intends to oppose this application. 49. Georgia-Pacific is informed and believes and on that basis alleges that products

bearing the "Angelite 500" state registration mark, and the "Angel Lite 500" or "Angelito" marks, have been and are being sold in various locations within this judicial district, including within the County of San Diego. 50. Georgia-Pacific has a prior and superior right in the ANGEL SOFT Trademarks

dating as far back as 1944. Georgia-Pacific's use of "Angel Soft" has been continuous since that time. 51. Upon information and belief, Lee's General Toys' use of the trademarks "Angel

Lite 500," "Angel Lite," and "Angelito" post-dates this time period. 52. Further, Georgia-Pacific's ANGEL SOFT Trademarks, upon information and

belief, were registered and thus publicly available, prior to Lee's General Toys' use and

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registration of California state registration number 109437 and prior to its application for federal trademark registration for the confusingly-similar "Angel Lite" and "Angelito" marks. 53. Lee's General Toys thus had at least constructive notice of Georgia-Pacific's use

of a confusingly similar mark at the time Lee's General Toys purported to have rights to its state registered service mark. IV. FIRST CLAIM FOR RELIEF Against all Defendants for Trademark Infringement Under 15 U.S.C. § 1114 54. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 53 of this Complaint as though fully set forth herein. 55. This is an action for trademark infringement arising from Section 32 of the

Lanham Act, 15 U.S.C. § 1114. 56. 57. Georgia-Pacific owns the registered ANGEL SOFT Trademarks. The ANGEL SOFT Trademarks are arbitrary, fanciful, and/or suggestive, and at

a minimum, have acquired a secondary meaning by purchasers and the public. 58. Georgia-Pacific receives a tremendous amount of public recognition and critical

acclaim for the products sold under the ANGEL SOFT Trademarks. Through Georgia-Pacific's widespread and continuous use of the ANGEL SOFT Trademarks, these marks have acquired extensive goodwill, have developed a high degree of distinctiveness, and are famous, well known and recognized as identifying goods that originate from Georgia-Pacific. 59. Defendants have used in commerce, without permission of Georgia-Pacific,

marks and equivalent images that are confusingly similar to Georgia-Pacific's ANGEL SOFT Trademarks. Defendants have infringed Georgia-Pacific's ANGEL SOFT Trademarks by using confusingly similar phrases and images in connection with the manufacturing, distribution, selling and/or promoting Defendants' goods with the intent to unfairly compete against GeorgiaPacific, to trade upon Georgia-Pacific's reputation and goodwill by causing confusion and mistake among customers and the public and to deceive the public into believing that Defendants' goods are associated with, sponsored by or approved by Georgia-Pacific, when they are not.
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60.

Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants knew or should have known of Georgia-Pacific's ownership and prior use of the ANGEL SOFT Trademarks. Without the consent of Georgia-Pacific, Defendants have willfully violated 15 U.S.C. § 1114. 61. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 62. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. V. SECOND CLAIM FOR RELIEF Against all Defendants for Common Law Trademark Infringement 63. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 62 of this Complaint as though fully set forth herein. 64. This is an action for trademark infringement arising under the common law of the

State of California. 65. By virtue of the acts complained of herein, Defendants have intentionally

infringed Georgia-Pacific's ANGEL SOFT Trademarks and caused a likelihood of confusion among the consuming public, thereby committing common law trademark infringement. 66. Defendants' aforementioned acts have been fraudulent, oppressive and malicious,

and have injured Georgia-Pacific and damaged Georgia-Pacific in an amount to be determined at trial. 67. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law.

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VI. THIRD CLAIM FOR RELIEF Against all Defendants for False Designation of Origin Under 15 U.S.C. § 1125(a) 68. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 67 of this Complaint as though fully set forth herein. 69. This is an action for false designation of origin arising from Section 43(a) of the

Lanham Act, 15 U.S.C. § 1125(a). 70. Georgia-Pacific has marketed, advertised, and promoted the ANGEL SOFT®

and ANGEL SOFT PS® product lines using the ANGEL SOFT Trademarks. As a result of this marketing, advertising, and promotion, the ANGEL SOFT Trademarks have come to mean and are understood to signify Georgia-Pacific products, and are one of the ways by which those goods and services are distinguished from the goods and services of others in the same and in related fields. 71. The ANGEL SOFT Trademarks are distinctive and have acquired secondary

meaning by purchasers and the public associating the ANGEL SOFT Trademarks with GeorgiaPacific products. 72. Defendants have used in commerce, without permission of Georgia-Pacific,

marks and equivalent images that are confusingly similar to Georgia-Pacific's ANGEL SOFT Trademarks. Defendants have infringed Georgia-Pacific's ANGEL SOFT Trademarks and created a false designation of origin by using confusingly similar phrases and equivalent images in connection with the manufacturing, distribution, selling and/or promoting Defendants' goods with the intent to unfairly compete against Georgia-Pacific, to trade upon Georgia-Pacific's reputation and goodwill by causing confusion and mistake among customers and the public and to deceive the public into believing that Defendants' goods are associated with, sponsored by or approved by Georgia-Pacific, when they are not. 73. Georgia-Pacific is informed and believes, and on that basis alleges, that

Defendants had actual knowledge of Georgia-Pacific's ownership and prior use of GeorgiaPacific's ANGEL SOFT Trademarks, and without the consent of Georgia-Pacific, have willfully violated 15 U.S.C. § 1125(a).
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74.

Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 75. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. VII. FOURTH CLAIM FOR RELIEF Against all Defendants for False Advertising Under 15 U.S.C. § 1125(a) 76. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 75 of this Complaint as though fully set forth herein. 77. This is an action for false advertising arising from Section 43(a) of the Lanham

Act, 15 U.S.C. § 1125(a). 78. By virtue of the acts complained of herein, Defendants' conduct is likely to

confuse, mislead, or deceive purchasers or potential purchasers, and constitutes false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 79. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 80. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. VIII. FIFTH CLAIM FOR RELIEF Against all Defendants for Trademark Dilution Under 15 U.S.C. § 1125(c) 81. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 80 of this Complaint as though fully set forth herein. 82. This is an action for federal dilution in violation of Section 43(c) of the Lanham

Act (15 U.S.C. § 1125(c)).

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83.

Georgia-Pacific's ANGEL SOFT Trademarks are famous and well-known within

the meaning of 15 U.S.C. § 1125(c), and became famous prior to the acts of Defendants complained of herein. 84. After the ANGEL SOFT Trademarks became famous and well-known,

Defendants misappropriated the ANGEL SOFT Trademarks for their own use and commercial advantage, in blatant disregard for Georgia-Pacific's rights. 85. Defendants' unauthorized commercial use of phrases and equivalent images to the

ANGEL SOFT Trademarks, on or in connection with the advertisement, offering for sale, and/or sale of their facilities and services, in interstate commerce, has caused and is likely to continue to cause dilution of the distinctive quality of the famous ANGEL SOFT Trademarks. 86. Defendants' aforementioned acts are likely to tarnish, injure, or trade upon

Georgia-Pacific's business, reputation and goodwill, and to deprive Georgia-Pacific of the ability to control its ANGEL SOFT Trademarks. 87. Georgia-Pacific is informed and believes, and on that basis alleges, that by

Defendants' aforementioned acts, Defendants have willfully intended to trade upon GeorgiaPacific's business, reputation, and goodwill. 88. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 89. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. IX. SIXTH CLAIM FOR RELIEF Against all Defendants for Trademark Dilution Under California Business & Professions Code § 14330 and California Common Law 90. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 89 of this Complaint as though fully set forth herein.

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91.

This is an action for dilution in violation of California Business & Professions

Code §§ 14330 and 14335. 92. Georgia-Pacific's ANGEL SOFT Trademarks are famous, and became famous

prior to the acts of Defendants complained of herein. 93. Defendants' unauthorized use of similar phrases and equivalent images to the

ANGEL SOFT Trademarks, on or in connection with the advertisement, offering for sale, and/or sale of their goods has caused and is likely to continue to cause dilution of the distinctive quality of the famous ANGEL SOFT Trademarks. 94. Defendants' aforementioned acts are likely to tarnish, injure, or trade upon

Georgia-Pacific's business, reputation and goodwill, and to deprive Georgia-Pacific of the ability to control its ANGEL SOFT Trademarks. 95. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 96. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. X. SEVENTH CLAIM FOR RELIEF Against all Defendants for Unfair Competition Under California Business & Professions Code § 17200 and California Common Law 97. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 96 of this Complaint as though fully set forth herein. 98. This is an action for unfair competition arising under California Business &

Professions Code §§ 17200, et seq. and the common law of the State of California. 99. By virtue of the acts complained of herein, Defendants have intentionally caused

a likelihood of confusion among the public and have unfairly competed in violation of California Business & Professions Code §§ 17200, et seq. and the common law of California.

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100.

Defendants' aforementioned acts constitute unlawful, unfair, malicious or

fraudulent business practices, which have injured and damaged Georgia-Pacific. 101. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. XI. EIGHTH CLAIM FOR RELIEF Against all Defendants for Unlawful Importation of Goods Bearing Infringing Marks in Violation of 15 U.S.C. § 1124 102. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 101 of this Complaint as though fully set forth herein. 103. This is an action for unlawful importation of goods bearing infringing marks in

violation of Section 42 of the Lanham Act (15 U.S.C. § 1124). 104. Upon information and belief, Defendants import the "Angelite" products from

outside of the United States. As described herein, these "Angelite" products bear marks and images that are confusingly similar to Georgia-Pacific's ANGEL SOFT Trademarks. 105. By virtue of the acts complained of herein, Defendants have unlawfully imported

goods bearing infringing marks in violation of Section 42 of the Lanham Act (15 U.S.C. § 1124). 106. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 107. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law.

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XII. NINTH CLAIM FOR RELIEF Against all Defendants for Unlawful Importation of Goods Bearing Infringing Marks in Violation of 19 U.S.C. § 1526(a) Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 107 of this Complaint as though fully set forth herein. 109. This is an action for unlawful importation of goods bearing infringing marks in

violation of Section 1526(a) of the Tariff Act (19 U.S.C. § 1526(a)). 110. Upon information and belief, Defendants import the "Angelite" products from

outside of the United States. As described herein, these "Angelite" products bear marks and images that are confusingly similar to Georgia-Pacific's ANGEL SOFT Trademarks. 111. By virtue of the acts complained of herein, Defendants have unlawfully imported

goods bearing infringing marks in violation of Section 1526(a) of the Tariff Act (19 U.S.C. § 1526(a)). 112. Defendants' aforementioned acts have injured Georgia-Pacific and damaged

Georgia-Pacific in an amount to be determined at trial. 113. By their actions, Defendants have irreparably injured Georgia-Pacific. Such

irreparable injury will continue unless Defendants are preliminarily and permanently enjoined by this Court from further violation of Georgia-Pacific's rights, for which Georgia-Pacific has no adequate remedy at law. XIII. TENTH CLAIM FOR RELIEF Against Lee's General Toys for Cancellation of State Trademark Registration 114. Georgia-Pacific hereby repeats, realleges, and incorporates by reference

paragraphs 1 ­ 113 of this Complaint as though fully set forth herein. 115. This is an action for cancellation of Lee's General Toys' California trademark

registration number 109437 arising under California Business & Professions Code §§ 14281 or 14282. 116. By virtue of Georgia-Pacific's prior use and federal registration of its ANGEL

SOFT Trademarks, cancellation of Lee's General Toys' state registration is proper.
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PRAYER FOR RELIEF WHEREFORE, Georgia-Pacific prays for judgment against Defendants as follows: 1. That the Court enter judgment in favor of Georgia-Pacific and against Defendants

on all claims for relief alleged herein; 2. That the Court enter judgment that Defendants have violated the provisions of

15 U.S.C. § 1114 by infringing Georgia-Pacific's trademark rights in its federally registered ANGEL SOFT Trademarks; 3. That Defendants be adjudged to have infringed Georgia-Pacific's ANGEL SOFT

Trademarks in violation of the common law of California; 4. That the Court enter judgment that Defendants have violated the provisions of

15 U.S.C. § 1125(a) by infringing Georgia-Pacific's rights in its ANGEL SOFT Trademarks; 5. That Defendants be adjudged to have willfully violated the provisions of

15 U.S.C. § 1114 by infringing Georgia-Pacific's ANGEL SOFT Trademarks; 6. That Defendants be adjudged to have willfully infringed Georgia-Pacific's

ANGEL SOFT Trademarks in violation of the common law of California; 7. That Defendants be adjudged to have willfully violated the provisions of

15 U.S.C. § 1125(a) by using a false designation of origin, false description, false representation, or false advertising in connection with their products; 8. That Defendants be adjudged to have diluted the distinctive quality of Georgia-

Pacific's ANGEL SOFT Trademarks in violation of 15 U.S.C. § 1125(c); 9. That Defendants be adjudged to have diluted the distinctive quality of Georgia-

Pacific's ANGEL SOFT Trademarks in violation of California Business & Professions Code §§ 14330 and 14335; 10. That Defendants be adjudged to have unfairly competed with Georgia-Pacific

under California Business & Professions Code §§ 17200, et seq. 11. That Defendants be adjudged to have unfairly competed with Georgia-Pacific

under the common law of the State of California;

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12.

That Defendants be adjudged to have unlawfully imported goods bearing

infringing marks in violation of Section 42 of the Lanham Act (15 U.S.C. § 1124); 13. That Defendants be adjudged to have unlawfully imported goods bearing

infringing marks in violation of Section 1526(a) of the Tariff Act (19 U.S.C. § 1526(a)); 14. cancelled; 15. That Defendants, each of their agents, servants, employees, attorneys, successors That Defendant Lee's General Toys' California registration number 109437 be

and assigns, and all other persons in active concert or participation with any of them who receive actual notice of the injunction by personal service or otherwise, be forthwith preliminarily and permanently enjoined from: a. using Georgia-Pacific's ANGEL SOFT Trademarks in connection with Defendants' goods, using ANGEL SOFT Trademarks in advertising or promoting Defendants' goods, or using confusingly similar variations of ANGEL SOFT Trademarks in any manner which is likely to create the impression that Defendants' goods originate from Georgia-Pacific, are endorsed by Georgia-Pacific, or are connected in any way with GeorgiaPacific; b. c. otherwise infringing Georgia-Pacific's ANGEL SOFT Trademarks; diluting the distinctive quality of Georgia-Pacific's ANGEL SOFT Trademarks; d. e. f. g. falsely designating the origin of Defendants' goods; falsely advertising Defendants' goods; unfairly competing with Georgia-Pacific in any manner whatsoever; and importing, purchasing, distributing, selling, or offering for sale goods bearing marks confusingly similar to Georgia-Pacific's ANGEL SOFT Trademarks; and h. causing a likelihood of confusion or injury to Georgia-Pacific's business reputation;
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16.

That Defendants be directed to file with this Court and serve on Georgia-Pacific

within thirty (30) days after the service of the injunction, a report, in writing, under oath, setting forth in detail the manner and form in which Defendants have complied with the injunction pursuant to 15 U.S.C. § 1116; 17. That Defendants be required to account to Georgia-Pacific for any and all profits

derived by them and all damages sustained by Georgia-Pacific by virtue of Defendants' acts complained of herein; 18. That Defendants be ordered to pay over to Georgia-Pacific all damages which

Georgia-Pacific has sustained as a consequence of the acts complained of herein, subject to proof at trial; 19. 20. That Georgia-Pacific be awarded treble damages pursuant to 15 U.S.C. § 1117; That an award of reasonable costs, expenses and attorneys' fees be awarded to

Georgia-Pacific pursuant to 15 U.S.C. § 1117; 21. That Georgia-Pacific be awarded exemplary damages from Defendants pursuant

to California Civil Code § 3294; 22. That Defendants be required to deliver and destroy all devices, literature,

advertising, goods and other materials bearing the infringing marks or images pursuant to 15 U.S.C. § 1118; 23. deem just. Respectfully submitted, Dated: February 15, 2008 LATHAM & WATKINS LLP By: /s/ Stephen P. Swinton Stephen P. Swinton Attorneys for Plaintiff Georgia-Pacific Consumer Products LP E-mail: [email protected] That Georgia-Pacific be awarded such other and further relief as this Court may

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JURY TRIAL DEMANDED Georgia-Pacific demands a trial by jury on all issues raised by this Complaint which are triable by jury. Dated: February 15, 2008 LATHAM & WATKINS LLP By: /s/ Stephen P. Swinton Stephen P. Swinton Attorneys for Plaintiff Georgia-Pacific Consumer Products LP E-mail: [email protected]

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