Complaint Original Gourmet Food Co v Jelly Belly

8/3/2019 Complaint Original Gourmet Food Co v Jelly Belly

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

ORIGINAL GOURMET FOODCOMPANY, INC.

Petitioner,

v.

JELLY BELLY CANDY COMPANY

Respondent.

PETITION FOR DECLARATORY JUDGMENT

DEMAND FOR JURY TRIAL

NOW COMES the Petitioner, Original Gourmet Food Company, Inc., (Original

Gourmet), through its attorneys, Daniels Patent Law, PLLC, and pursuant to 28 U.S.C.

2201(a) files this Petition for Declaratory Judgment against Jelly Belly Candy Company (Jelly

Belly). In support of its Petition for Declaratory Judgment, Petitioner states and avers as

follows:

This is an action seeking a declaration that Petitioner Original Gourmets use of its

Original Gourmet Food Co. trade name, as well as its ORIGINAL GOURMET trademark as

evidenced in U.S. Trademark Application Serial No. 85/101,655, and the ORIGINAL

GOURMET mark and design as embodied in U.S. Trademark Registration No. 3,077,543,

including the distinctive chefs hat and slanted stylized O, does not infringe any rights of

PRELIMINARYSTATEMENT

CIVIL ACTION NO. 1:11-cv-0539

JURY DEMAND

Case 1:11-cv-00539-SM Document 1 Filed 11/19/11 Page 1 of 8


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Respondent Jelly Belly. A copy of Original Gourmets U.S. Trademark Application Serial No.

85/101,655 and Registration No. 3,077,543 are attached hereto as Exhibits A and B, respectively.

1. Original Gourmet, Petitioner, is a corporation incorporated under the laws of theState of New Hampshire, with its principal place of business at 52 Stiles Road, Suite 201, Salem,

NH 03709.

THEPARTIES

2. Jelly Belly, Respondent, is a corporation organized under the laws of California,with its corporate office and headquarters located at One Jelly Belly Lane, Fairfield, CA 94533.

3. Jurisdiction is proper in this court because this litigation arises under federal law,namely 15 U.S.C. 1051 et seq. (Lanham Act). The Court has jurisdiction over this action under

28 U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (trademarks), and 28 U.S.C. 2201-

2202 (Declaratory Judgment Act).

JURISDICTIONANDVENUE

4. This Court has personal jurisdiction over Jelly Belly, because Jelly Belly conductsbusiness in the State of New Hampshire, including selling its products to New Hampshire

companies, making its products available at New Hampshire stores, and advertising and selling

its products through the Internet to New Hampshire residents, e.g., through their website,

www.jellybelly.com. In addition, Jelly Belly has sent two (2) cease and desist letters to Original

Gourmet in New Hampshire.

5. Venue is proper in this district under 28 U.S.C. 1391(b) and 1391(c).



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6. This action for declaratory judgment is proper and timely. An actual case orcontroversy exists between the parties as evidenced by Jelly Bellys request for an extension of time

for opposition and cease and desist letters, as described in further detail below.

7. Original Gourmet was incorporated in February, 2000, and has used the OriginalGourmet Food Co. trade name since that time. In addition, Original Gourmet has used its

ORIGINAL GOURMET trademark in commerce since at least as early as September 30, 2004,

as evidenced by Petitioners incontestable U.S. Trademark Registration No. 3,077,543 (the `543

trademark).

STATEMENTOF FACTS

8. Petitioner has used the Original Gourmet Food Co. trade name, ORIGINALGOURMET trademark, and ORIGINAL GOURMET mark and design as embodied in the `543

trademark on baked goods, e.g., pretzels, brownies, cookies, wafers, and popcorn, and also on

candy. Original Gourmet produces a line of unique gourmet lollipops, and sells these lollipops

in commerce under the ORIGINAL GOURMET trademark.

9. On July 7, 2011, Respondent Jelly Belly filed a 30 day request for extension oftime with the United States Patent and Trademark Office to oppose Original Gourmets

trademark application Ser. No. 85/101,655 (the `655 application) for cookies.

10. On July 19, 2011, Respondent Jelly Belly sent a first cease and desist letter toPetitioner Original Gourmet regarding the infringement of Jelly Bellys trademarks. The first

cease and desist letter specifically requested that Original Gourmet cease all use of the

ORIGINAL GOURMET mark on candy. A redacted copy of the first cease and desist letter is

attached hereto as Exhibit C.



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11. Among other things, Jelly Belly asserted that Original Gourmets use of itstrademark(s), ORIGINAL GOURMET, in connection with candy, is likely to cause consumer

confusion in light of the following Jelly Belly trademarks: U.S. Trademark Registration Nos.

1,942,689 and 3,771,488 for THE ORIGINAL GOURMET JELLY BEAN, attached hereto as

Exhibits D and E, respectively; U.S. Trademark Registration Nos. 2,085,121 and 3,378,061 for

THE ORIGINAL GOURMET CANDY CORN, attached hereto as Exhibit F and G,

respectively; and U.S. Trademark Registration No. 3,391,945 for THE ORIGINAL GOURMET

JELLY BEAN JELLY BELLY and anthropomorphic character, attached hereto as Exhibit H.

12.

On July 27, 2011, Original Gourmet responded to the first cease and desist letter

by sending a first reply letter, refuting Jelly Bellys positions. Original Gourmet stated that its

use of its trade name and trademarks does not conflict with Jelly Bellys asserted rights, in part

because there was no likelihood of confusion between Petitioners and Respondents marks.

13. On August 25, 2011, Jelly Belly sent a second cease and desist letter to OriginalGourmet stating that Original Gourmets positions in its first reply letter are not supported by

law and continuing to demand that Original Gourmet cease use of ORIGINAL GOURMET on

candy. A redacted copy of the second cease and desist letter is attached hereto as Exhibit I.

14. On September 28, 2011, Respondent Jelly Belly filed a 90 day request forextension of time with the United States Patent and Trademark Office extending the time to

oppose Original Gourmets `655 application until December 4, 2011.

15. On October 3, 2011, Original Gourmets counsel, Scott A. Daniels, telephonedJelly Bellys counsel, Mr. Jonathan Hyman, and left a voice message indicating a desire to

discuss the issues.



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16. On October 4, 2011, Original Gourmet responded to Jelly Belly with a secondreply letter, once again refuting Jelly Bellys positions.

17. On October 28, 2011 a telephone discussion was undertaken between OriginalGourmets counsel, Scott A. Daniels, and Jelly Bellys counsel, Mr. Jonathan Hyman, regarding the

dispute over Original Gourmets use of its trade name and trademarks. No agreement was reached

regarding the parties respective trademark rights.

18. Accordingly, it is reasonable for Original Gourmet to anticipate that if it continuesto use its ORIGINAL GOURMET marks, Respondents will file an infringement action against

Original Gourmet.

19. Although Jelly Belly has filed requests for extension of time to file an oppositionfor the `655 application, they have not filed an actual opposition yet. Even if they had filed an

opposition, that opposition would not resolve all of the issues between the parties, namely

Original Gourmets continued right to use the ORIGINAL GOURMET trademarks in connection

with candy and baked goods.

20. Therefore, the interests of the parties and judicial economy are best served byobtaining a decision as to Original Gourmets continued right to use its trade name and

trademarks in connection with candy and baked goods.

21. Original Gourmet hereby restates and re-alleges the allegations set forth inparagraphs 1-20.

COUNTIORIGINAL GOURMET

22. An actual and justiciable controversy exists between the parties in thatRespondent Jelly Belly claims it has rights and interest to the phrase Original Gourmet and

that Original Gourmets use of its Original Gourmet Food Co. trade name, ORIGINAL



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GOURMET trademark, and ORIGINAL GOURMET marks as embodied in the `543 trademark

and `655 application would cause a likelihood of confusion as to the source of Original

Gourmets goods.

23. Original Gourmet denies there is a likelihood of confusion between its use of itstrade name and trademarks in connection with candy and baked goods and Jelly Bellys valid

trademarks as used on their respective goods.

24. Original Gourmet also denies that Jelly Belly is solely entitled to trademark rightsin the phrase Original Gourmet.

25.

After multiple letters, emails, and phone calls, the controversy between the parties

has not been resolved, thus, a declaration from the Court is needed to resolve the controversy.

The Court is authorized to issue a declaration of rights under these circumstances pursuant to the

Federal Declaratory Judgments Act, 28 U.S.C. 2201-2202.

26. Accordingly, Original Gourmet hereby seeks a declaratory judgment that OriginalGourmets use of its Original Gourmet Food Co. trade name, ORIGINAL GOURMET

trademark, and ORIGINAL GOURMET marks as embodied in the `543 trademark and `655

application does not infringe any valid trademark rights of Jelly Belly.

WHEREFORE, Original Gourmet respectfully requests this Honorable Court rule, order,

and decree:

PRAYER FOR RELIEF

A. Original Gourmets use of its Original Gourmet Food Co. trade name inconnection with candy and baked goods does not infringe any of Jelly Bellys valid trademark

rights;



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B. Original Gourmets use of its ORIGINAL GOURMET trademarks in connectionwith candy and baked goods does not infringe any of Jelly Bellys valid trademark rights;

C. Original Gourmets use of its ORIGINAL GOURMET mark and design asembodied in U.S. Trademark Registration No. 3,077,543 in connection with candy and baked

goods does not infringe any of Jelly Bellys valid trademark rights;

D. Original Gourmets use of its ORIGINAL GOURMET mark as evidenced in U.S.Trademark Application Serial No. 85/101,655 in connection with candy and baked goods does

not infringe any of Jelly Bellys valid trademark rights;

E.

In the alternative, to the extent that Jelly Belly has obtained sole trademark rights

in the phrase Original Gourmet, that such rights are limited to the goods of jelly beans and

candy corn;

F. Award Original Gourmet its costs and attorneys fees; andG. Enter such other further relief to which Original Gourmet may be entitled as a

matter of law or equity, or which the Court determines to be just and proper.

/s/ Scott DanielsScott Daniels

______

N.H State Bar No. 14001

Daniels Patent Law PLLC

43 Centre StreetConcord, New Hampshire 03301

Telephone: (603)226-8610

Fax: (603)[email protected]

Attorney for Petitioner



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I hereby certify that on this ______day of _________, ____, I have caused a true copy of

the foregoing COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT

OF TRADEMARK RIGHTS to be served via 1st

Class Mail on the ___day of _______, ____ on

the following counsel of record:

CERTIFICATE OF SERVICE

Jonathan HymanCA Bar No. 266723

Knobbe Martens Olson & Bear LLP

10100 Santa Monica Blvd

16th FloorLos Angeles, CA 90067

Telephone: (310)551-3450Fax: (310)551-3458

[email protected]

Scott A. Daniels/s/ Scott A. Daniels



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INDEX OF EXHIBITS1:11-cv-0539

ORIGINAL GOURMET FOOD COMPANY, INC.,Petitioner,

v.

JELLY BELLY CANDY COMPANY,

Defendants.

Civil No.

EXHIBIT A ............................Petitioners Federal Trademark Application

EXHIBIT B ............................Petitioners Federal Trademark Registration

EXHIBIT C ............................Respondents Cease and Desist Letter 1

EXHIBIT D ............................Respondents Federal Trademark Registration 1

EXHIBIT E ............................Respondents Federal Trademark Registration 2

EXHIBIT F ............................Respondents Federal Trademark Registration 3

EXHIBIT G ............................Respondents Federal Trademark Registration 4

EXHIBIT H ............................Respondents Federal Trademark Registration 5

EXHIBIT I .............................Respondents Cease and Desist Letter 2

Case 1:11-cv-00539-SM Document 1-12 Filed 11/19/11 Page 1 of 1


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EXHIBIT A



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PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2011)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 85101655Filing Date: 08/06/2010

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears

where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered

TEAS Plus YES

MARK INFORMATION

*MARK \\TICRS\EXPORT11\IMAGEOUT 11\851\016\85101655\xml1\

FTK0002.JPG

*SPECIAL FORM YES

USPTO-GENERATED

IMAGENO

LITERAL ELEMENT ORIGINAL GOURMET

*COLOR MARK NO

*COLOR(S)

CLAIMED

(If applicable)

*DESCRIPTION OF

THE MARK

(and Color Location, if

applicable)

The mark consists of a rectangular cookie tin having a colored border

containing the words Original Gourmet and an inner rectangle with raised

graphical design.

PIXEL COUNTACCEPTABLE YES

PIXEL COUNT 738 x 883

REGISTER Principal

APPLICANT INFORMATION

*OWNER OF MARK Original Gourmet Food Company Inc.

*STREET 52 Stiles Road Suite 201



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*CITY Salem

*STATE

(Required for U.S.

applicants)

New Hampshire

*COUNTRY United States

*ZIP/POSTAL CODE(Required for U.S.

applicants only)

03079

PHONE (603)894-1200

LEGAL ENTITY INFORMATION

*TYPE CORPORATION

* STATE/COUNTRY

OF

INCORPORATION

New Hampshire

GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL

CLASS030

IDENTIFICATION Cookies

*FILING BASIS SECTION 1(a)

FIRST USE

ANYWHERE DATEAt least as early as 09/01/2001

FIRST USE IN

COMMERCE DATEAt least as early as 09/01/2001

SPECIMEN FILE NAME(S)

JPG FILE(S) \\TICRS\EXPORT11\IMAGEOUT 11\851\016\85101655\xml1\

FTK0003.JPG

\\TICRS\EXPORT11\IMAGEOUT11\851\016\85101655\xml1\FTK0004.JPG

ORIGINAL PDF

FILEspec-7624195130-081433240_._ORGOFO-T13AUS-declaration.pdf

CONVERTED PDF

FILE(S)

(1 page)

\\TICRS\EXPORT11\IMAGEOUT11\851\016\85101655\xml1\FTK0005.JPG

SPECIMEN

DESCRIPTIONcookie tin product and declaration of use

ADDITIONAL STATEMENTS SECTION

*TRANSLATION

(if applicable)

*TRANSLITERATION

(if applicable)



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*CLAIMED PRIOR

REGISTRATION

(if applicable)

*CONSENT

(NAME/LIKENESS)

(if applicable)

*CONCURRENT USE

CLAIM

(if applicable)

ATTORNEY INFORMATION

NAME Scott A. Daniels

ATTORNEY DOCKET

NUMBERORGOFO T13AUS

FIRM NAME Daniels Patent Law PLLC

STREET 43 Centre Street

CITY Concord

STATE New Hampshire

COUNTRY United States

ZIP/POSTAL CODE 03301

PHONE 603 226 8610

FAX 603 226 8611

EMAIL ADDRESS [email protected]

AUTHORIZED TO

COMMUNICATE VIA

EMAIL

Yes

OTHER APPOINTED

ATTORNEYClaire Zopf

CORRESPONDENCE INFORMATION

*NAME Scott A. Daniels

FIRM NAME Daniels Patent Law PLLC

*STREET 43 Centre Street

*CITY Concord

*STATE

(Required for U.S.

applicants)

New Hampshire

*COUNTRY United States

*ZIP/POSTAL CODE 03301



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PHONE 603 226 8610

FAX 603 226 8611

*EMAIL ADDRESS [email protected]

*AUTHORIZED TO

COMMUNICATE VIA

EMAIL

Yes

FEE INFORMATION

NUMBER OF

CLASSES1

FEE PER CLASS 275

*TOTAL FEE PAID 275

SIGNATURE INFORMATION

* SIGNATURE /sdaniels68/

* SIGNATORY'S

NAMEScott A. Daniels

* SIGNATORY'S

POSITIONAttorney of Record

* DATE SIGNED 08/06/2010



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PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2011)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 85101655

Filing Date: 08/06/2010

To the Commissioner for Trademarks:

MARK:ORIGINAL GOURMET(stylized and/or with design, see mark)

The literal element of the mark consists of ORIGINAL GOURMET.

The mark consists of a rectangular cookie tin having a colored border containing the words Original

Gourmet and an inner rectangle with raised graphical design.The applicant, Original Gourmet Food Company Inc., a corporation of New Hampshire, having an address

of

52 Stiles Road Suite 201

Salem, New Hampshire 03079

United States

requests registration of the trademark/service mark identified above in the United States Patent and

Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051

et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table.

International Class 030: Cookies

In International Class 030, the mark was first used at least as early as 09/01/2001, and first used in

commerce at least as early as 09/01/2001, and is now in use in such commerce. The applicant is

submitting one specimen(s) showing the mark as used in commerce on or in connection with any item in

the class of listed goods and/or services, consisting of a(n) cookie tin product and declaration of use.

JPG file(s):

Specimen File1

Specimen File2

Original PDF file:spec-7624195130-081433240_._ORGOFO-T13AUS-declaration.pdf

Converted PDF file(s) (1 page)

Specimen File1

The applicant's current Attorney Information:

Scott A. Daniels and Claire Zopf of Daniels Patent Law PLLC



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43 Centre StreetConcord, New Hampshire 03301

United StatesThe attorney docket/reference number is ORGOFO T13AUS.The docket/reference number is ORGOFO T13AUS.

The applicant's current Correspondence Information:

Scott A. Daniels

Daniels Patent Law PLLC

43 Centre Street

Concord, New Hampshire 03301

603 226 8610(phone)

603 226 8611(fax)

[email protected] (authorized)

A fee payment in the amount of $275 has been submitted with the application, representing payment for 1class(es).

Declaration

The undersigned, being hereby warned that willful false statements and the like so made are punishable byfine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, andthe like, may jeopardize the validity of the application or any resulting registration, declares that he/she is

properly authorized to execute this application on behalf of the applicant; he/she believes the applicant tobe the owner of the trademark/service mark sought to be registered, or, if the application is being filed

under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce;

to the best of his/her knowledge and belief no other person, firm, corporation, or association has the rightto use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as tobe likely, when used on or in connection with the goods/services of such other person, to cause confusion,or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and

that all statements made on information and belief are believed to be true.

Signature: /sdaniels68/Date Signed: 08/06/2010Signatory's Name: Scott A. Daniels

Signatory's Position: Attorney of Record

RAM Sale Number: 6250

RAM Accounting Date: 08/06/2010

Serial Number: 85101655Internet Transmission Date: Fri Aug 06 08:23:39 EDT 2010

TEAS Stamp: USPTO/FTK-76.24.195.130-20100806082339489914-85101655-4705e36718de2d7e7fe7356e4f7865470fa-CC-6250-20100806081433240184



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EXHIBIT B



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EXHIBIT C



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EXHIBIT D



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EXHIBIT E



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EXHIBIT F



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EXHIBIT G



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EXHIBIT H



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EXHIBIT I



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OJS 44 (Rev. 12/07) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as pr

y local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of inhe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First ListedPlaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE

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1 U.S. Government 3 Federal Question PTF DEF PTF DPlaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated orPrincipal Place 4

of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated andPrincipal Place 5

Defendant(Indicate Citizenship of Parties in Item III)

of Business In Another State

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Foreign Country

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110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 State Reapportionm

120 Marine 310 Airplane 362 Personal Injury - 620 Other Food & Drug 423 Withdrawal 410 Antitrust

130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC 157 430 Banks and Banking

140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC 881 450 Commerce

150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation& Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influence

151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizatio

152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit

Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV(Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service

153 Recovery of Overpayment Liabil ity 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodiof Veterans Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange

160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge

190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC 3410

195 Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Acti

196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilizat

210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Mat

220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation A

230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRSThird Party 895 Freedom of Informa 240 Torts to Land Accommodations 530 General 26 USC 7609 Act

245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determ 290 All Other Real Property 445 Amer. w/Disabilities - 540 Mandamus & Other 462 Naturalization Application Under Equal Access

Employment 550 Civil Rights 463 Habeas Corpus - to Justice

446 Amer. w/Disabilities - 555 Prison Condition Alien Detainee 950 Constitutionality of

Other 465 Other Immigration State Statutes

440 Other Civil Rights Actions

V. ORIGINTransferred fromanother district(specify)

Appeal to DJudge fromMagistrateJudgment

(Place an X in One Box Only)

1 OriginalProceeding

2 Removed fromState Court

3 Remanded fromAppellate Court

4 Reinstated orReopened

5 6 MultidistrictLitigation

7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint

JURY DEMAND: Yes No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE


ORIGINAL GOURMET FOOD COMPANY, INC.

Rockingham County, NH

ott Daniels, Daniels Patent Law PLLC, 43 Centre Street, Concord, NH,301, (603)226-8610

JELLY BELLY CANDY COMPANY

Solano County, CA

Jonathan Hyman, Knobbe Martens Olson & Bear LLP, 10100 SaMonica Boulevard, 16th Floor, Los Angeles, CA, 90067, (310)551-3450

28 U.S.C 2201 - 2202 and 15 U.S.C. 1051 et seq. (Lanham Act)

Declaratory Judgment of Non-Infringement of Trademarks

11/19/2011 /s/ Scott A. Daniels

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44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for thf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comled. The attorney filing a case should complete the form as follows:

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, g

oth name and title.

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Original Proceedings. (1) Cases which originate in the United States district courts.

emoved from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the peor removal is granted, check this box.

emanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.einstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

ransferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidtigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thchecked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional stanless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

ury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket nund the corresponding judge names for such cases.

ate and Attorney Signature. Date and sign the civil cover sheet.


Complaint Original Gourmet Food Co v Jelly Belly

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Transcript of Complaint Original Gourmet Food Co v Jelly Belly