Free Declaration in Support - District Court of California - California

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

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KURT OSENBAUGH (State Bar No. 106132) DEBORAH YOON JONES (State Bar No.1 18 127)
WESTON, BENSHOOF, ROCHEFORT, RUBALCA V A & MacCUISH LLP 333 South Hope Street Sixteenth Floor Los Angeles, California 90071
Telephone: (213) 576-1000

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SA Y AKA KARITANI (State Bar No. 240122)

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Facsimile: (213) 576-1100
Attorneys for Plaintiffs

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BP WEST COAST PRODUCTS LLC and A TLANTIC RICHFIELD COMPANY

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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BP WEST COAST PRODUCTS LLC, a Delaware Limited Liability Company; and ATLANTIC RICHFIELD COMPANY, a
Delaware Corporation,

Case No.: C07 04808 RS

Plaintiff,
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v.
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STTN ENTERPRISES, INC., a California Coi:oration~ NAZIM FA8UIRY AN, an individual; ~A YED FAQl IRY AN, an

DECLARATION OF BRAD CHRISTENSEN IN SUPPORT OF PLAINTIFFS', BP WEST COAST PRODUCTS LLC AND ATLANTIC RICHFIELD COMPANY, EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE ISSUANCE OF PRELIMINARY INJUNCTION
Application for Temp-ora!) Restraining
Order; Declaration of Deborah Y oon Jones; and (Proposed) Order.)
Date: To Be Scheduled by Court

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ENTERPRISE, LLC, a California limited liability company,
Defendants.

individual; and MAGHVL F AQUIR Y AN, an individual; and A V A GLOBAL

(Filed concurrently with Ex Parte

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Time: To Be Scheduled by Court
Ctr: 4

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Honorable Richard Seeborg
Filing Date: September 17,2007

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DECLARA nON OF BRAD CHRISTENSEN

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Case 5:07-cv-04808-JF

Document 9

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DECLARATION OF BRAD CHRISTENSEN
I, BRAD CHRISTENSEN, declare and state as follows:
1.

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I am currently a Senior Franchise Consultant for BP West Coast

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Products LLC ("BPWCP") for the territory which includes the former ARCO-branded

gasoline station and am/pm mini market that used to be located at 631 San Felipe
Road, Hollister, California 95035 ("Station"). I began my employment with Atlantic
Richfield Company ("ARCO") in 1 996 as a field supervisor. As a field supervisor, I
oversaw company-owned and operated stores in the San Diego County area
(approximately 12-15 facilities) and made sure the stores were in compliance with

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sales, policies and procedures, and environmental regulations. In 2000, I became a
franchise consultant and had essentially the same job functions as a field supervisor in

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the San Diego area but for franchise-operated facilities. On April 18, 2000, Atlantic
Richfield Company ("ARCO") became a subsidiary of BP America Inc., and on

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January i, 2002, substantially all of ARCO's refining and retail assets were
transferred to BPWCP. As a result, substantially all employees of ARCO became

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employees of BPWCP. In October 2003, I became Senior Franchise Consultant for

BPWCP over the territory which includes the Station.

As a senior franchise

consultant, my additional job responsibilities include the mentoring and training of
franchise consultants. I make this declaration in support of ARCO's and BPWCP's

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Ex Parte Application for Temporary Restraining Order and Order to Show Cause Re

Preliminary Injunction. I have personal knowledge of the facts set forth in this
declaration and if called as a witness, could and would testify competently to them.
2.

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At all times relevant to this lawsuit, I was the franchise consultant

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at the Station and interacted regularly with the franchisee STTN Enterprises, Inc. and

its representatives Nazim and Sayed Faquiryan (collectively, "STTN"). BPWCP
terminated STTN's franchise given a number of STTN's breaches and defaults of the
franchise agreements.
3.

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On September 6, 2007, BPWCP sent STTN a Notice of
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IOG1156.1

DECLARA TION OF BRAD CHRISTENSEN

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

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Termination of the franchise given, inter alia, STTN's failure to pay for over
$ 126,000 worth of gasoline and failure to sell gasoline product for 15 consecutive
days. I received a copy of the Notice of Termination, which is attached hereto as

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Exhibit A, and is incorporated herein as though fully set forth at length.

The

termination was effective immediately and STTN was, pursuant to the franchise
agreements, responsible for "debranding" the Station by immediately discarding any
trademarked items, removing trade names and service marks, and refraining from

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displaying any products that contained any trademarks, trade names, and service
marks.
4. I was present at the Station on September 1 7 and 1 8, 2007, when

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BPWCP attempted to complete the "debrand" the Station to ensure that it would no
longer be identified as an ARCO-branded gasoline station or am/pm mini market and
so that BPWCP-owned property could be returned. As of September 17 and 18, I

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noticed a number of trademark violations at the Station. I took photographs of some
of these items on September 18, 2007. True and correct copies of the photographs are
attached hereto as Exhibit B.

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5.

In addition, I noticed that STTN was continuing to use ARCO's

and BPWCP's proprietary F AS System, which is an accounting program that had been

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loaded on to STTN's computer in its back office. I also saw "Griled to Go" ("GTG")

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Food Prep Wrappers with am/pm logos, GTG Prep Food Forms, Recipes &

Instruction Manuals, and Bakery Program Forms, Recipes & Instrction Manuals. I
believe these items are protected by registered trademarks.
6.

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On October 12, 2007, I visited the Station and noticed the
(a)

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following trademark violations:

Defendants have not altered the Pay Island Cashier Machine

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screen such that the screen statement displays "ARCO" logos, and states "Fil Smart,"
and "Thank you for choosing ARCO";
(b) Defendants continue to sell beverages in fountain cups

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DECLARA TION OF BRAD CHRISTENSEN

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

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bearing "am/pm" and "thirst oasis" logos;
(c)

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Defendants continue to sell Nacho Chips that are contained
Defendants continue to display the am/pm soda fountain

in "am/pm" food wrappers;
(d)

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"CRUNCH CUBE" machine graphics above the soda dispenser heads;
(e) Defendants continue to display the am/pm coffee graphics

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above the coffee machine;

(f)

Defendants continue to display the am/pm coffee price menu

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board that are exclusive to am/pm mini markets;
(g)

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Defendants continue to display a hamburger graphic that is

exclusive to am/pm mini markets;
(h)

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Defendants continue to utilize the ARCO neon blue
Defendants continue to utilize the am/pm neon orange

iluminated light band on the fuel canopy; and
(i)

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illuminated light band in the mini market exterior; and

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(j) Defendants have not altered the store cash registers such that
the printed receipts state "Thirst Oas" for a purchase of fountain beverages.

True and correct copies of the photographs depicting the above violations
are attached hereto as Exhibit C.
7.

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Since I did not have access to the back room I was unable to

confirm whether STTN was continuing to use the F AS system and was still displaying

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the "Grilled to Go" ("GTG") Food Prep Wrappers with am/pm logos, GTG Prep Food

Forms, Recipes & Instruction Manuals, and Bakery Program Forms, Recipes &
Instrction Manuals.

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8.

ARCO is the owner of the following trademarks, trade names and

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services marks ("Protected Marks") that are registered by the United States Patent and
Trademark Office ("USPTO") as indicated below:

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DECLARATION OF BRAD CHRISTENSEN

Case 5:07-cv-04808-JF

Document 9

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(a) "ARCO" Logo depicted in photograph number 1 in Exhibit
C: Registration Number 1495419;

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(b) "ARCO" typed words as II "Thank You for Choosing ARCO" depicted in photograph number 2 in Exhibit C: Registration Number
1496212;
(c)

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"am/pm" logo contained on fountain beverage cups depicted

in photograph number 3 in Exhibit C: Registration Number 2821396;
(d)

"am/pm" logo contained on nachos wrappers depicted in

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photograph number 5 in Exhibit C: Registration Number 1459431;
9. The following designs and marks are proprietary and exclusive to

BPWCP's franchises and BPWCP must authorize their use:
(a)
Exhibit C;

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"Fill Smart" words depicted in photograph number 1 in
Soda Machine Graphics "Crunch Cube" depicted in

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(b)

photograph number 6 in Exhibit C;
(c) am/pm Coffee Graphics depicted in photograph numbers 7

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Exhibit C;

and 8 in Exhibit C;
(d)

am/pm Coffee Menu depicted in photograph number 9 in
am/pm Hamburger Graphics depicted in photograph number

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lOin Exhibit C;

(e)

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(f) ARCO Blue Neon Illuminated Light Stripe on Fuel Canopy
depicted in photograph number 11 in Exhibit C; and

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(g) am/pm Orange Neon Illuminated Light Strpe on Mini
Market depicted in photograph number 12 in Exhibit C.
10. BPWCP is ARCO's transferee of

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the marketing and refining assets

including the above Protected Marks. As such, BPWCP has the right to require its

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DECLARATION OF BRAD CHRISTENSEN

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

Page 6 of 9

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ARCO-branded gasoline station and am/pm mini market franchisees to use these
Protected Marks.

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11. BP Products North America, Inc. is the registered owner of the

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"Thirst Oasis" logo contained on fountain beverage cups and depicted in photograph
numbers 4 and 13 in Exhibit C; the relevant registration number for this logo is
313357. BPWCP has the right to utilize this trademark in connection with its ARCO-

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branded gasoline station and am/pm mini market franchises and has a cognizable

interest in the infringed upon mark.
12.

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I am informed and believe that the trademarks, trade names, and

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service marks referenced above in paragraphs 8 through 1 1 (collectively referred to as,

"Protected Marks") have been widely and continuously used since they were first used

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in commerce in connection with ARCO gasoline stations and am/pm mini market
convenience stores throughout the Western United States in California, Nevada,

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Washington, Oregon, and Arizona (the "Western States"). I am familiar with the
Protected Marks and the fact that ARCO and BPWCP have invested its resources in

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marketing its services and products under the Protected Marks. ARCO and BPWCP
have made a significant investment to advertise and market its the Protected Marks in

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connection with the sale of high quality motor fuels and mini market convenience
store products and services, and has developed considerable good will in the Protected

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Marks among the consumers of motor fuels and mini market convenience store
products and services.

Indeed, the Protected Marks are crucial to ARCO' sand

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BPWCP's marketing strategies and are a key component to the branding and

association for ARCO-branded gasoline and am/pm mini market convenience stores.

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In fact, ARCO and BPWCP rely heavily on the color schemes, designs and name
recognition and good will that they have developed over the years in the Protected
Marks to attract customers and to make sales of ARCO-branded motor fuels and mini
market convenience store products and services.

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DECLARATION OF BRAD CHRISTENSEN

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

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13. Moreover, pursuant to franclÜse agreements, ARCO and BPWCP
2 I1cense to its franchisee dealers the right to use ARCO's trade names, trademarks, and
3 service marks in connection with the resale of ARCO-branded motor fuels and the

4 operation of the am/pm mini market convenience stores. Dealers and franchisees pay
5 a royalty for use of

the Protected Marks.
14.

As a result of Defendants' improper and unauthorized use of the

Protected Marks, ARCO and BPWCP have been immediately and irreparably harmed

8 as Defendants are selling motor fuel and convenience store products and services
9 under what appears to be an ARCO-branded gasoline station and am/pm mini market

10 convenience store.

Consumers will be confused into purchasing motor fuel or

11 convenience store goods or products from Defendants' Station under the misguided
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that they are doing so from an ARCO-branded gasoline station and am/pm mini

13 market. Other ARCO-branded stations and am/pm mini market stores will also lose

14 business as a result of Defendants' use of the ARCO Mark at the Station. Thus,
15 ARCO and BPWCP are threatened with actual and significant irreparable injury if a
16 temporary restraining order and preliminary injunction are denied.
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I declare under penalty of perjury under the laws of the State of

18 California that the foregoing is true and COlTect.

19 Executed on October 17, 2007, at /Á,v. ~c:V(; , California:.
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../

JL~)~v
BRAD CHRISTENSEN

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Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

Page 8 of 9

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DECLARTION OF PERSONAL SERVICE

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business address is Fresno Legal Serices, 2115 Kern Street, Suite 250, Fresno,
which ttns semce is made.

I am em..loyed in the County of Fresno, State of Californiai and my

Cal,ifomi,a 937~1, .1 am over the age of eighteen years and not a par to the action in

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DECLARTION OF BRA t.HRISTENSEN IN SUPPORT OF PLAINTIFS' BP WEST COAST PRODUCTS LLC AND ATLANTIC RICHFIELD COMPANY: EX PARTE APPLICATION FOR TEMPORAY RES1RING ORDER, AND
ORDER TO SHOW CAUSE RE ISSUANCE OF PRELIMINARY INJUCTION on
the interested-parìes in this action Qy_enc1osirr~the document(s) in a sealed envelope

On October 18;. 2007" I served the document(s) descrbed as

addressed as follows: SEE ATTACHED SERVICE LIST
(Check one of

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the following:)

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I personally rlelivered the documents to:

(specify name): .. L

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package clearly labeled to identify the attorney being served:

I personally left the documents at the attorney's offce, in an envelope or
~ with a receptionist or with a person having charge thereof

o in a conspicuous :Qlace in the offce between the hours of nine in the

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morning and five in the afternoon

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I personally left the documents at the attorney's residence with some person of not less than 18 years of age

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I personally left the documents at the p~'s residence, between the hour:~ of
eiirt in the monùng and six in the evening, with some person of not less than

I g- years of age

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of California that the foregoing ;is the ana correct.

(State 1 I declare und.er penaty of perjur 1.der the laws of the State

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correct.
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(Federal) I declare under penalty of peeur that the foregoing is tre and

!/¿~is / :f J(' 0/aL: S l-¿çe

Executed on October 18, 2007, at Los Angeles, California.

(Name - PleaseePrit) '.' ,. / (Signatue)

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. .'
G '~
()t;() mi

Q Uml(\111- '' \JJtHIJ00JIAI J'\\.

IAI J 0 I 'r.

/ (\ (\ 7 '0 I 'i '\1\

Case 5:07-cv-04808-JF

Document 9

Filed 10/18/2007

Page 9 of 9

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BP WEST COAST PRODUCTS LLC v. STTN ENTERPRISES, et al. United States District Court, Northern District
Case No. CO? 04808 RS

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SERVICE LIST
John G. Michael, Esq.

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Baker Manock & Jensen 5260 North Palm Avenue Fourth Floor Fresno, CA 93704

Attorney for Defendants, STTN ENTERPRISES, INC.; NAZIM FAQUIRY AN; and SAYED FAQUIRY AN

Tel: (559) 432-5400
Fax: (559) 432-5620

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