Michael A. Leone, Esq.

(SBN 151276)
SELTZER CAPLAN McMAHON VITEK
A Law Corporation
750 B Street, 2100 Symphony Towers
San Diego, California 92101-8177
Telephone: (619) 685-3071
Facsimile: (619) 685-3100
Attorneys for Plaintiff,
THE FLYING CHEF LLC, an Alaska
Limited Liability Company
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
THE FLYING CHEF LLC, an Alaska

CASE NO.
Limited Liability Company,
COMPLAINT FOR TRADEMARK
INFRINGEMENT [15 U.S.C. 1114,
ET SEQ.]; UNFAIR COMPETITION
[15 U.S.C. 1125(a)]; VIOLATION OF
CALIFORNIA UNFAIR BUSINESS
PRACTICES ACT [CAL. BUS. &
PROF. CODE 17200]; VIOLATION
OF CALIFORNIA UNFAIR BUSINESS
PRACTICE ACT FALSE
ADVERTISING [CAL. BUS. & PROF.
CODE 17500]
DEMAND FOR JURY TRIAL
Plaintiff, THE FLYING CHEF LLC, an Alaska Limited Liability Company
("TFC"), alleges as follows:
PARTIES
1.
Plaintiff TFC, is an Alaska Limited Liability Company, and is engaged in
interstate commerce through the conduct of its business of producing cooking videos,
cooking instruction, and sale of related products and services to customers located
throughout the United States.
COMPLAINT FOR TRADEMARK INFRINGEMENT
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Plaintiff,
v.
GEOFFREY COLE, an individual, and
DOES 1-10, inclusive,
Defendants.
'14CV2373 KSC H
Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 1 of 12
2. Defendant GEOFFREY COLE ("COLE"), is an individual residing in San
Diego County, California, and is engaged in interstate commerce through the conduct of
his business, which uses the name "Geoff The Flying Chef' and/or "The Flying Chef'
in visual and audio formats ("the Infringing Conduct") in connection with cooking
videos and advertisement of private chef and cooking services on multiple social media
platforms, including, but not limited to, YouTube, Vimeo, Twitter, Instagram, Yelp,
Google+, Facebook, and other similar or related internet-based media platforms.
3. Upon information and belief, Defendant DOES 1 through 10, are persons
or entities, identity and form unknown, who are agents, employees, alter egos, or
entities otherwise owned or controlled by COLE, that have committed, aided, abetted,
conspired with, or otherwise participated in the wrongful acts alleged herein, in a
manner rendering them liable for COLE's wrongful conduct as alleged herein, and/or in
a manner rendering COLE liable for Defendant DOES 1 through 10's wrongful conduct.
JURISDICTION AND VENUE
4.
This court has original jurisdiction pursuant to 28 U.S.C. 1338(a) because
some of the claims alleged herein arise under 15 U.S.C. 1114, et seq., and 15 U.S.C,
1125 et seq., as amended.
5.
This court also has original jurisdiction pursuant to 28 U.S.C. 1331,
because the state law claims alleged herein under California Business & Professions
Code 17200 and 17500, necessarily raise issues under 15 U.S.C. 1114 et seq. and
1125 et seq., that are actually disputed by the parties, implicate a substantial federal
interest, and the exercise of federal jurisdiction will not disturb the balance of federal
and state judicial responsibilities.
6.
This court has personal jurisdiction over COLE because: (a) he resides in
San Diego County, California; and (b) he maintains an active internet-based social
media presence through which he commits the Infringing Conduct, and solicits
California residents to purchase and take delivery of his goods and services in
competition with TFC.
2
COMPLAINT FOR TRADEMARK INFRINGEMENT
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7. Venue is proper because COLE resides in San Diego County, California,
and committed the wrongful acts alleged herein in San Diego County, California.
ALLEGATIONS COMMON TO ALL CLAIMS
8. TFC is the owner of: (a) United States Registered Trademark No.
4,137,256, "THE FLYING CHEF," issued May 1, 2012; (b) United States Registered
Trademark No. 4,422,466, 'THE FLYING CHEF," issued October 22, 2013; and, (c)
United States Registered Trademark No. 4,377,413, "THE FLYING CHEF and
Design," issued October 22,
_ N
2013 (collectively: "the
oe
Trademarks").
gigingChef
TFC has been using the Trademarks in interstate commerce in connection with its
business of producing and distributing cooking videos, instruction, and related products
and services, since at least as early as 2008. TFC primarily advertises, distributes and
sells its products and services via the interne.
9.
TFC has invested substantial time, money, labor, professional expertise,
and other assets in the development, production and distribution of cooking videos,
instruction, and related products and services. The Trademarks are fundamental to the
goodwill and reputation of the products and services sold by TFC.
10.
COLE has used the names "The Flying Chef' and/or "Geoff The Flying
Che' in visual and/or audio formats in connection with cooking videos and
advertisement of private chef services on internet-based social media websites,
including, but not limited to YouTube, Vimeo, Twitter, Instagram, Yelp, Google+,
Facebook, and other similar or related internet-based media platforms ("Social Media
Platforms"). COLE first committed the Infringing Conduct after TFC's Trademarks
were first used in interstate commerce, and TFC is informed and believes that COLE
first committed the Infringing Conduct after TFC was issued its Certificate of
Registration for the Trademarks.
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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11. TFC's successful development of the Trademarks has resulted in
consumers associating the Trademarks with TFC in the field of cooking instruction
videos and related products and services.
12. COLE' s Infringing Conduct in the promotion of his products and services
has caused, and will cause in the future, a substantial likelihood of confusion among
consumers regarding the origin, nature, quality, and value, of TFC's products and
services that are produced, distributed and sold under the Trademarks, thereby
damaging the Trademarks and diminishing the value of TFC's brand.
13.
TFC has sent COLE multiple cease-and-desist letters demanding that
COLE immediately cease all Infringing Conduct, and remove all infringing material
from all Social Media Platforms on which Cole has published it.
14. COLE has never responded to TFC's cease-and-desist letters, but has
published on Social Media Platforms his intent to continue the Infringing Conduct.
FIRST CLAIM FOR VIOLATION OF THE COPYRIGHT ACT, 15 U.S.C.
41114 et seq.
(Against MI Defendants)
15. TFC incorporates each and every allegation contained in paragraphs 1
through 14 as though fully set forth herein.
16.
TFC is the present owner of the Trademarks.
17.
COLE has infringed on TFC's Trademarks by publishing cooking videos
and related goods and services on Social Media Platforms under the names "The Flying
Chef' and/or "Geoff The Flying Chef' in visual and/or audio formats, thereby creating a
substantial likelihood of confusion regarding the origin, nature, quality, and value, of
TFC's products and services that are produced, distributed and sold under the
Trademarks, which conduct has damaged the Trademarks and diminished the value of
TFC's brand.
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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18. TFC has demanded that COLE cease all Infringing Conduct directed at the
TFC Trademarks, and COLE has refused to do so. COLE is continuing to engage in
activities constituting infringement of the TFC Trademarks.
19. COLE's infringement of TFC's Trademarks has caused, and is continuing
to cause, TFC to suffer damages including, but not limited to, statutory damages and
penalties, loss of revenue, loss of good will, and attorney's fees incurred to stop COLE's
infringing activities.
20. COLE's Infringing Conduct is ongoing and unless enjoined by this court
will cause TFC to suffer irreparable injury in the form of, among other things, loss of
good will and injury to its reputation in the relevant market.
21. TFC is entitled to an award of statutory damages and penalties, actual
damages caused by COLE's infringement of the TFC Trademarks, disgorgement of
COLE's profit derived from his infringement of the TFC Trademarks, and an award of
attorney's fees and costs, all in an amount to be proven at trial.
22.
TFC is entitled to an order: (a) preliminarily enjoining COLE's ongoing
infringement of the TFC Trademarks; (b) permanently enjoining COLE's infringement
of the TFC Trademarks; (c) requiring removal of all infringing materials from all Social
Media Platforms; (d) requiring the impounding all infringing materials published or
disseminated by COLE; (e) requiring the destruction of all infringing materials
published or disseminated by COLE; and, (f) requiring an accounting of all monies
derived from infringement of TFC's Trademarks.
SECOND CLAIM FOR VIOLATION OF THE LANHAM ACT, 15 U.S.C.
41125(0
(Against All Defendants)
23.
TFC incorporates each and every allegation contained in paragraphs 1
through 22 as though fully set forth herein
24.
TFC and COLE compete for business in the field of cooking videos and
instruction and related products and services.
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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25. COLE's Infringing Conduct, which incorporates and uses TFC's
Trademarks, in connection with products and services that are in direct competition with
TFC's products and services, is intended to exploit confusion among consumers in the
relevant marketplace, and improperly benefit from the reputation and goodwill that TFC
has expended time, money and other assets to develop in the Trademarks.
26. COLE's Infringing Conduct therefore constitutes false designation of
origin, false or misleading descriptions of fact, and false or misleading representations
of fact which are each likely to cause confusion or mistake, or deceive as to the
affiliation or connection of COLE's products and services with TFC's Trademarks.
27. TFC is likely to be damaged by COLE's acts as alleged herein because,
among other things, such acts are likely to cause confusion regarding the quality and
characteristics of COLE's products and services in competition with TFC's products
and services, loss of TFC's reputation in the relevant market, loss of TFC's good will,
and loss of revenue.
28.
TFC has demanded that COLE cease all false and misleading activities
regarding his products, and COLE has refused to do so.
29.
COLE's false and misleading conduct is ongoing and unless enjoined by
this Court will cause TFC to suffer irreparable injury in the form of, among other things,
loss of good will and injury to its reputation in the relevant market.
30.
TFC is entitled to an award of actual damages caused by COLE's
infringing conduct, disgorgement of COLE's profits derived from his misconduct, and
an award of attorney's fees and costs, all in an amount to be proven at trial.
31.
TFC is entitled to an order: (a) preliminarily enjoining COLE's ongoing
misrepresentation of the nature, qualities and/or characteristics of his products and
services; (b) permanently enjoining COLE's misrepresentation of the nature, qualities
and/or characteristics of his products and services; (c) requiring removal of all
infringing material from all Social Media Platforms; (d) requiring the destruction of all
false and misleading materials published or disseminated by COLE; and, (e) requiring
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 6 of 12
an accounting of all monies derived from COLE's misrepresentations regarding the
nature, qualities and/or characteristics of his products and services.
THIRD CLAIM FOR VIOLATION OF CALIFORNIA BUSINESS &
PROFESSIONS CODE 17200
(Against All Defendants)
32. TFC incorporates each and every allegation contained in paragraphs 1
through 31 as though fully set forth herein.
33. By committing the Infringing Conduct, which incorporates and
appropriates all of the distinctive elements of TFC's Trademarks, COLE misrepresents,
among other things, that the products and services offered through his infringing
conduct are associated with, and/or are beneficiaries of the goodwill and favorable
reputation in the market associated with TFC's Trademarks.
34. COLE is therefore engaging in an unfair business practice which
significantly threatens or harms competition in violation of California Business &
Professions Code 17200 by, among other things, misrepresenting the nature and
quality of his products and services and thereby misappropriating the competitive
advantage conferred on products and services associated with TFC's Trademarks, all
without expending the time, expense, and other assets which his competitors, including
TFC, have expended, to actually obtain the goodwill and favorable reputation in the
relevant market associated with the products and services marketed under TFC's
Trademarks.
35.
TFC has demanded that COLE cease all false and misleading activities
regarding his products, and remediate the injuries caused to date, and COLE has refused
to do so.
36.
COLE's false and misleading conduct is ongoing and unless enjoined by
this Court will cause TFC to suffer irreparable injury in the form of, among other things,
loss of good will, injury to its reputation in the relevant market, and loss of profits.
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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37. TFC is entitled to an order: (a) preliminarily enjoining COLE's ongoing
misrepresentation of the nature, qualities and/or characteristics of his products and
services; (b) permanently enjoining COLE's misrepresentation of the nature, qualities
and/or characteristics of his products and services; (c) requiring removal of all
infringing material from all Social Media Platforms; (d) requiring the destruction of all
false and misleading materials published or disseminated by COLE; and, (e) requiring
an accounting of all profit derived from COLE's misrepresentations regarding the
nature, qualities and/or characteristics of his products and services.
38. TFC is entitled to an order that COLE disgorge all monies derived from his
unfair and fraudulent business practices.
FOURTH CLAIM FOR VIOLATION OF CALIFORNIA BUSINESS &
PROFESSIONS CODE 17500
(Against All Defendants)
39. TFC incorporates each and every allegation contained in paragraphs 1
through 38 as though fully set forth herein.
40. By publishing his products and services on Social Media Platforms, COLE
intends to sell products and services to the public.
41. By committing the Infringing Conduct, which name incorporates and
appropriates all of the distinctive elements of TFC's Trademarks, COLE misrepresents,
among other things, that the products and services offered through his infringing
conduct are associated with, and/or are beneficiaries of the goodwill and favorable
reputation in the market associated with TFC's Trademarks.
42. COLE is therefore engaging in deceptive, false and misleading advertising
in violation of California Business & Professions Code 17500 by, among other things,
misrepresenting that the products and services he offers are beneficiaries of the goodwill
and favorable reputation in the market associated with TFC's Trademarks.
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 8 of 12
43. TFC has demanded that COLE cease all false and misleading activities
regarding his products, and remediate the injuries caused to date, and COLE has refused
to do so.
44. COLE's false and misleading conduct is ongoing and unless enjoined by
this Court will cause TFC to suffer irreparable injury in the form of, among other things,
loss of good will, injury to its reputation in the relevant market, and loss of profits.
45. TFC is entitled to an order: (a) preliminarily enjoining COLE's ongoing
misrepresentation of the nature, qualities and/or characteristics of his products and
services; (b) permanently enjoining COLE's misrepresentation of the nature, qualities
and/or characteristics of his products and services; (c) requiring removal of all
infringing material from all Social Media Platforms; (d) requiring destruction of all false
and misleading materials published or disseminated by COLE; and, (e) requiring an
accounting of all profit derived from COLE's misrepresentations regarding the nature,
qualities and/or characteristics of his products and services.
46. TFC is entitled to an order that COLE disgorge all monies derived from his
unfair and fraudulent business practices.
PRAYER
WHEREFORE, TFC prays for relief as follows:
1. On the First Claim for Violation of the Copyright Act:
(a)
a preliminarily injunction enjoining COLE's ongoing infringement of
the TFC Trademarks;
(b) a permanent injunction enjoining COLE's infringement of the TFC
Trademarks;
(c)
an order directing COLE to identify all persons and/or entities to whom,
or through which, he has published or distributed infringing materials;
(d)
an order to remove all infringing material from all Social Media
Platforms;
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 9 of 12
(e) an order to destroy all infringing materials published or disseminated by
COLE;
(f) an accounting of all monies derived from COLE's infringement of the
TFC Trademarks;
(g) disgorgement of all profits COLE derived from his infringing activities;
(h) an award of statutory damages, penalties, and/or actual damages caused
by COLE's infringing activities;
(i) an award of attorney's fees and costs;
(j) such other relief as the court deems just and reasonable.
2. On the Second Claim for Violation of the Lanham Act:
(a) a preliminarily injunction enjoining COLE's ongoing
misrepresentations regarding the nature, qualities and/or characteristics of his products
and services;
(b) a permanent injunction enjoining COLE's ongoing misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(c)
an order to remove from all Social Media Platforms all materials
published or disseminated by COLE containing misrepresentations regarding the nature,
qualities and/or characteristics of his products and services;
(d)
an order to destroy all materials published or disseminated by COLE
containing misrepresentations regarding the nature, qualities and/or characteristics of his
products and services ;
(e)
an accounting of all monies derived from COLE's misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(1) disgorgement of all profits COLE derived from his misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(g) an award of statutory damages, penalties, and/or actual damages caused
by COLE's misrepresentations regarding the nature, qualities and/or characteristics of
his products and services;
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 10 of 12
(h) an award of attorney's fees and costs;
(i) such other relief as the court deems just and reasonable.

3. On the Third Claim for Violation of California Business & Professions

Code 17200:
(a) a preliminarily injunction enjoining COLE's ongoing
misrepresentations regarding the nature, qualities and/or characteristics of his products
and services;
(b) a permanent injunction enjoining COLE's ongoing misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(c) an order to remove from all Social Media Platforms all materials
published or disseminated by COLE containing misrepresentations regarding the nature,
qualities and/or characteristics of his products and services;
(d) an order to destroy all materials published or disseminated by COLE
containing misrepresentations regarding the nature, qualities and/or characteristics of his
products and services;
(e) an accounting of all monies derived from COLE's misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(f) disgorgement of all profits COLE derived from his misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(g) such other relief as the court deems just and reasonable.

4. On the Fourth Claim for Violation of California Business & Professions

Code 17500:
(a) a preliminarily injunction enjoining COLE's advertising containing
misrepresentations regarding the nature, qualities and/or characteristics of his products
and services;
(b) a permanent injunction enjoining COLE's advertising containing
misrepresentations regarding the nature, qualities and/or characteristics of his products
and services;
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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Case 3:14-cv-02373-H-KSC Document 1 Filed 10/07/14 Page 11 of 12
(c) an order to remove from all Social Media Platforms all materials
published or disseminated by COLE containing misrepresentations regarding the nature,
qualities and/or characteristics of his products and services;
(d) an order to destroy all materials published or disseminated by COLE
containing misrepresentations regarding the nature, qualities and/or characteristics of his
products and services;
(e) an accounting of all monies derived from COLE's misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(f) disgorgement of all profits COLE derived from his misrepresentations
regarding the nature, qualities and/or characteristics of his products and services;
(g) such other relief as the court deems just and reasonable.
TFC requests a jury trial.
Dated: October 6, 2014 SELTZER CAPLAN MCMAHON VITEK
A Law Corporation
By: /s/
Michael A. Leone, Esq.
Attorneys for Plaintiff,
THE FLYING CHEF LLC, an Alaska Limited
Liability Company
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COMPLAINT FOR TRADEMARK INFRINGEMENT
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