Case 2:17-cv-00215-jmc Document 1 Filed 10/30/17 Page 1 of 12

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MOOSEHEAD BREWERIES LIMITED,
Plaintiff,

v.
HOP'N MOOSE BREWING COMPANY,
LLC,
Defendant.

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COMPLAINT FOR TRADEMARK INFRINGEMENT AND
FALSE DESIGNATION OF ORIGIN
NOW COMES Plaintiff, Moosehead Breweries Limited ("Moosehead"), by and through
its counsel, and complains as follows:
PARTIES, JURISDICTION, AND VENUE
1.

Moosehead is a corporation organized under the laws of Canada, having its

principal office and place of business at 89 Main Street W.; P.O. Box 3100; Saint John, N.B.
Canada E2M 3N2.
2.

Defendant is a Vermont limited liability company with its principal place of

business located at 41 Center Street, Rutland, VT, 05701 and, upon information and belief, has
one sole member, Dale Patterson, who resides at 12 Foster Place, Rutland, VT 05701 or 1
Sherwood Road, Rutland, VT 05701.
3.

This is an action for trademark infringement and unfair competition under various

provisions of the Lanham Act, 15 U.S.C. §§ 1051 et seq., and for state common law trademark

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infringement. This Court has subject matter jurisdiction over the federal claims in this action
pursuant to 28 U.S.C. §§ 1331 and 1338 and over the state claims pursuant to 28 U.S.C. § 1367.
4.

This Court has personal jurisdiction over Defendant.

5.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) as a substantial part

of the events giving rise to Moosehead's claims occurred in this district.
BACKGROUND FACTS
Moosehead and Its Use of Moosehead Trademarks
6.

Moosehead brews beer sold and distributed throughout the world under its

MOOSE family of trademarks, which includes the word marks MOOSE and MOOSEHEAD, as
well as the MOOSEHEAD design marks displaying the head and antlers of a moose.
Moosehead's business, among other things, includes the manufacture, sale, and distribution of a
variety of beers and the sale of related consumer products such as drinking glasses, mugs, cups,
clothing, hats, posters, bumper stickers, and decals promoting the MOOSEHEAD name and
MOOSE family of marks in connection with its brand of beers.
7.

Moosehead owns the right, title, and interest in and to several federally registered

trademarks for the MOOSE family of marks, including, but not limited to:
Mark

Registration
No.

Goods and Services

MOOSE

2,100,821

MOOSE LIGHT
THE MOOSE IS LOOSE

2,923,818
2,716,846

brewed alcoholic beverages, namely, beer, ale, stout
and lager
Brewed alcoholic beverages, namelv, beer and ale
Brewed alcoholic beverages, namely, beers and ales

:a:

1,568,703

Beer

MOOSEHEAD

1,511,184

Beer

MOOSEHEAD

1,598,511

Clothing, namely sweaters, football jerseys, mesh ball
caps, winter ball caps, painter hats, aprons, golf shirts,

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sports shirts, t-shirts, long john shirts, % ball shirts,
hockey sweaters, cowboy hats
Shirts

1,217,629

8.

1,597,390

Clothing, namely sweaters, football jerseys, mesh ball
caps, winter ball caps, painter hats, aprons, golf shirts,
sports shirts, t-shirts, long john shirts, % ball shirts,
hockey sweaters, cowboy hats

1,527,256

Beer

3,253,186

Brewed alcoholic beverages, namely, beer and ale

1,514,776

Beer

1,198,187

Beer and lager

2,223,462

Beer and ale

Moosehead has used The MOOSEHEAD mark since at least 1931 in connection

with ale, beer, stout, porter, and lager. Moosehead's MOOSE family of marks have been in use
since at least the late 1970's in the United States in connection with a variety of beers and also in
connection with consumer products and other events including, but not limited to, drinking glasses,
mugs, plastic cups, clothing, hats, posters, bumper stickers, windshield stickers made of paper,

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playing cards, decals, serving trays, and pens. Moosehead's MOOSE family of marks include
marks which include the term "MOOSE" and/or the likeness of the head of a moose.
9.

Moosehead's products covered by its MOOSE family of trademarks include a

variety of beers. Moosehead's products covered by its MOOSE family of trademarks are sold in
bars, brew pubs, restaurants, beverage stores, big box retailers/club stores, and similar
establishments. Moosehead's products are sold in kegs, as well as bottles and cans, which can be
purchased in six-packs, twelve-packs, and cases.
10.

Moosehead has spent and continues to spend large sums of money in the

promotion, advertisement, and sale of its goods bearing its MOOSE family of trademarks. By
reason of such advertising and the high quality of its products carrying such trademarks,
Moosehead enjoys a valuable goodwill and an enviable reputation with respect to its trademarks
and the goods associated therewith.
Defendant and Its Unauthorized Use of the MOOSEHEAD Family of Trademarks
11.

Defendant is a brewery that sells beer under its name, or with its logo, or with an

image of a moose.

Defendant also uses promotional materials in connection with its brewery ,

under its name, or with its logo, or with an image of a moose, and Defendant sells other related
consumer products with its name, or with its logo, or with an image of a moose, including but
not limited to, signs, mugs, containers, and clothing.
12.

Upon information and belief, Defendant has been using "Hop'N Moose Brewing

Company, LLC," "Hop'N Moose Brewing Company," or the image of a moose on beer,
promotional materials, and related consumer products since as early as March 28, 2014 when it
first opened its doors, several decades after Moosehead began using the MOOSEHEAD mark.

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13.

Defendant's beer is offered through the same channels of trade, substantially the

same channels of trade, and/or channels of trade that are related to those through which some or
all of Moosehead's products covered by its MOOSE family of trademarks are offered.
14.

Defendant's beer is offered to the same classes of purchasers, substantially the

same classes of purchasers, and/or classes of purchasers that are related to those to whom some
or all ofMoosehead's products covered by its MOOSE family of trademarks are offered.
15.

Defendant's beer is or may be advertised, marketed, and promoted through the

same media channels as some or all of the products ofMoosehead covered by its MOOSE family
of trademarks.
16.

Defendant's logo (shown below) is highly similar to Moosehead's MOOSE

family of registered trademarks set forth above, including U.S. Registration Nos. 2,100,821;
1,598,511; 1,511,184; 1,597,390; 2,923,818; 2,716,846; 1,568,703, and 3,253,186 (attached
hereto as Exhibit 1).

1\loosebead Marks:
MOOSE
MOOSELIOHT
THE MOOSE IS LOOSE
MOOSEHEAD

MQ.QSE

A

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17.

In addition to using a logo that is highly similar to Moosehead's MOOSE family .

of registered trademarks, Defendant's beer is sold in bottles that contain labels that are highly
similar to the labels used with several of Moosehead' s beer products, depicting the head of a
moose and/or Defendant's logo. As shown below, these labels are highly similar to both the
labels long-used on Moosehead's beer bottles and other containers, as well as at least the
following Moosehead registered trademarks depicting the head of a moose: 1,527,256;
3,253,186; 1,568,703; 1,514,776; 1,198,187; and 2,223,462 (collectively, the "MOOSEHEAD
Head of Moose Marks," and attached hereto as Exhibit 2).
M:oosebead Bottle:

l\foosebead "Head or Moose" Marks:

Defendant's Bottles:

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18.

In addition to Defendant's logo and beer bottles that are highly similar to

Moosehead's MOOSE family of registered trademarks,

Defe~dant

also uses other promotional

materials and sells other related consumer products (including glasses, mugs, and clothing) all
of which depict the head of a moose and/or Defendant's logo, which are also highly similar to
Moosehead's MOOSE family of registered trademarks set forth above, including U.S.
Registration Nos. 1,598,511; 1,217,629; and 1,597,390 (collectively, the "MOOSEHEAD Other

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 Case 2:17-cv-00215-jmc Document 1 Filed 10/30/17 Page 7 of 12

Consumer Products Marks," attached hereto as Exhibit 3). Exhibit 1, Exhibit 2, and Exhibit 3
shall collectively be referred to as "Moosehead Registered Marks."
19.

Despite Moosehead's repeated and numerous demands to Defendant to cease

using Defendant's logo and/or the image of Moose in connection with Defendant's beer,
promotional materials, and related consumer products, Defendant has not stopped using them in
commerce.
20.

Defendant's beer products, promotional materials, and other related consumer

products are so similar to Moosehead' s beer and related products sold under the Moosehead
Registered Marks as to create a likelihood of confusion. Both Moosehead's and Defendant's
products are sold in establishments such as bars, brew pubs, restaurants, beverage stores, big box
retail stores, and club stores.
21.

As a result of the foregoing, members of the purchasing public familiar with

Moosehead's products and Moosehead's MOOSEHEAD trademarks are likely to be confused,
misled, or deceived into thinking that the products of Defendant are products of Moosehead or
are in some way sponsored by or connected with Moosehead, resulting in irreparable damage
and injury to Moosehead.
22.

Moosehead will be injured if Defendant is able to continue selling its beer and

other materials and related consumer products with its logo and/or in highly similar packaging to
that in which Moosehead' s products are sold, and as such separately and together falsely suggest
a connection with Moosehead and Moosehead' s products bearing the marks in the Moosehead
Registered Marks.

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23.

Moosehead has no control over the nature and quality of Defendant's products

and thus will be damaged and irreparably harmed by reason of the loss of control over
Moosehead's reputation and the erosion of its goodwill in the Moosehead Registered Marks.
COUNT I - TRADEMARK INFRINGEMENT
UNDER 15 U.S.C. § 1114
24.

Moosehead realleges and incorporates by reference the preceding paragraphs of

this Complaint as if fully set forth herein.
25.

Defendant has used in commerce, without Moosehead's consent, reproductions,

copies or colorable imitations of Moosehead's registered Moosehead Registered Marks in
connection with the sale, offer for sale, distribution and/or advertising of products and other
materials and merchandise, such use being likely to cause confusion, to cause mistakes, or to
deceive.
26.

The actions of Defendant described in this Count constitute trademark

infringement in violation of 15 U.S.C. § 1114. Defendant's actions have caused and, unless
enjoined by this Court, will continue to cause, serious and irreparable injury to Moosehead for
which Moosehead has no adequate remedy at law.
27.

The actions of Defendant described in this Count have also caused damage to

Moosehead for which Moosehead should be compensated by Defendant.
COUNT II - FALSE DESIGNATIONS
OF ORIGIN UNDER 15 U.S.C. § 1125(a)
28.

Moosehead realleges and incorporates by reference the preceding paragraphs of

this Complaint as if fully set forth herein.
29.

Defendant has, without Moosehead' s consent, on or in connection with products,

used in commerce a word, term, name, symbol, device, or any combination thereof which is
likely to cause confusion, to cause mistake, or to deceive as to the affiliation, connection and/or
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association of Defendant with Moosehead and its products bearing the registered Moosehead
Registered Marks, and/or as to the origin, sponsorship, and/or approval by Moosehead of
Defendant's unauthorized goods.
30.

The actions of Defendant described in this Count constitute false designations of

origin in violation of 15 U.S.C. § l 125(a). Defendant's acts have caused and, unless enjoined by
this Court, will continue to cause, serious and irreparable injury to Moosehead for which
Moosehead has no adequate remedy at law.
31.

The acts of Defendant described in this Count have also caused damage to

Moosehead for which Moosehead should be compensated by Defendant.
COUNT III - TRADEMARK DILUTION
UNDER 15 U.S.C. § 1125(c)

32.

Moosehead realleges and incorporates by reference the preceding paragraphs of

this Complaint as if fully set forth herein.
33.

Moosehead has extensively and continuously promoted and used the Moosehead

Registered Marks both in the United States and throughout the world, and the marks have thereby
become famous and well-known symbols ofMoosehead's goods and services.
34.

As a result of at least eighty-six (86) years of continuous and substantial use, as

well as significant amounts of advertising and sales, Moosehead's Moosehead Registered Marks
are famous trademarks within the meaning of § 43(c) of the Lanham Act, and such marks
became famous before Defendant's use oflogo, marks, and brand.
35.

Defendant is making commercial use in commerce of marks that dilute and are

likely to dilute the distinctiveness of the Moosehead Registered Marks by eroding the public's
exclusive identification of these famous marks with Moosehead, tarnishing and degrading the

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positive associations and prestigious connotations of the marks, and otherwise lessening the
capacity of the marks to identify and distinguish goods and services.
36.

Defendant has caused and will continue to cause irreparable injury to

Moosehead's goodwill and business reputation, and dilution of the distinctiveness and value of
Moosehead's famous and distinctive the Moosehead Registered Marks in violation of 15 U.S.C.

§ 1125(c).
COUNT IV - COMMON LAW
UNFAIR COMPETITION
37.

Moosehead realleges and incorporates by reference the preceding paragraphs of

this Complaint as if fully set forth herein
38.

Defendant has sold, promoted, and offered for sale its products using

Moosehead' s marks in violation of and with knowledge of Moosehead' s prior rights to the
marks, and is unfairly trading upon Moosehead's goodwill and reputation, and creating the false
impression that Defendant's products are associated in some way with Moosehead.
39.

Defendant's actions complained of herein constitute unfair competition m

violation of the common law of the State of Vermont for which Moosehead is entitled to relief.

COUNTV-COMMONLAW
TRADEMARK INFRINGEMENT
40.

Moosehead realleges and incorporates by reference the preceding paragraphs of

this Complaint as if fully set forth herein.
41.

Defendant's use of Moosehead' s marks in connection with its products constitutes

infringement of Moosehead' s Vermont common law trademarks for which Moosehead is entitled
to relief.

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WHEREFORE, Plaintiff Moosehead prays:

a)

that Defendant be found to have infringed Moosehead's rights in the

Moosehead Registered Marks and that Defendant be found liable on each of the causes of action
enumerated in this Complaint;
b)

that Defendant, its officers, directors, employees, agents, affiliated

entities, and all persons in active participation or concert with Defendant, be preliminarily and
permanently enjoined from infringing the Moosehead Registered Marks and from engaging in
false designation of origin in any other manner;
c)

that Defendant, its officers, directors, employees, agents, affiliated

entities, and all persons in active participation or concert with Defendant, be preliminarily and
permanently enjoined from using any trademark, trade dress, service mark, name, logo, design,
or source designation of any kind on or in connection with Defendant's goods or services that
dilutes or is likely to dilute the distinctiveness of the Moosehead Registered Marks, including
Defendant's domain name containing the words "Hop'n Moose";
d)

that Defendant be required to deliver up and/or to destroy any and all

products infringing the Moosehead Registered Marks in its possession, as well as all labels,
literature, and advertisements bearing the marks, together with any means for producing same;
e)

that Defendant be ordered to provide an accounting of all profits derived

from its sales of goods in connection with the acts complained of herein and to pay such profits,
or such greater sum as this Court deems just and proper, to Moosehead;
t)

that Defendant be ordered to pay damages to Moosehead adequate to

compensate Moosehead for the acts described in this Complaint, or, upon Moosehead's election,

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statutory damages, that such damages be trebled, and that Defendant be ordered to pay Moosehead
its reasonable attorneys' fees; and
g)

that Moosehead have such other and further relief as this Court may deem

just and proper.

JURY DEMAND
Plaintiff Moosehead, Inc. demands a jury trial on all issues so triable.
Dated October 30, 2017

BY:
David M. Pocius
Paul Frank + Collins P. C.
One Church Street
Burlington, VT 05401
(802) 658-2311
dpocius@pfclaw.com
&

Mark A. Watkins
Vorys, Sater, Seymour and Pease LLP
106 South Main Street, Suite 1100
Akron, OH 44308
(330) 208-1000
mawatkins@vorys.com
(to be admitted pro hac vice)

Attorneys for Plaintiff, Moosehead, Inc.

7159538_2: 13012~00001

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