Case Document 1 Filed 12/05/17 Page 1 of 15 15? (?it CIVIL COVER SHEET The 15 44 Cover Sheet and the information contained herein neither re lace nor supplement the ?lingand semicc or other papers as re uired by law. except as provided by local rules ofcourt This fortn. approved by theJudicial Con erence ofthe nited States in eptember I974, is reqmred for the use ofthe Ierlc of Court for the purpose 0 Initiating the CIVII docket sheet. 0N THIN-mitt; I. PLAINTIFFS DEFENDANTS Five Below. Inc. ?IOBelow Ice Cream. Inc. County of Residence of First Listed Plaintiff Philadelphia County of ReSIdence of First Listed Defendant U. S. (IN US. I) NOTE IN LAND CONDEMNATION CASES. USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (C) Attorneys?-irm A?amr Addie Irv. mid Hiawatha Number) Attorneys Vincent V. Canssumi. Pepper Hamilton LLP 3000 Two Logan Square. 18th and Arch Streets. Philadelphia. PA 19103 215-981-4351 H. BASIS OF JURISDICTION tr.- Om: Hindu!? CITIZENSHIP 0F PRINCIPAL PARTI ES (I'Iace an in One Bttr?ir Pfennig rI-rlr' use: (Jill); and One Burfor Defendant) CI I 5 Government 3 3 Federal Question PTF DEF PTF DEF Plaintiff {.51 fiin'emmem New Party} Citizen State I CI I Incorporated or Principal Place 0 4 oI'BuI-iness In This State 2 5 Government CI 4 Diversity Citizen ofAnoIher State CI 2 CI 2 Incorporated Place l3 5 CI 5 Defendant findimre rJ'I'arii?er in Item HI) of Business In Another Stale Citizen or Subject ofa CI 3 CI 3 Foreign Nation Cl 6 CI 6 IV. NATU BE 0F SUIT?'racc an ?We: rha- HUI Only) CIICIC here for Nature of Sun Code tions I CONTRACT TORTS ?ll-SE ET: I I ll0 Insurance PERSONAL INJURY PERSONAL 625 Drug Related Seimre CI 422 Appeal 28 LISC I53 CI 375 False Claims Act l20 Manne CI 3l-il Airplane 365 Personal Injury - :ifProperty 2 CI 423 Withdrawal CI 376 Qui Tam Cl I10 Miller Act 3I5 Airplane Product Product Liability 690 Other 28 LSC I51I 37290!? El I40 Negotiable Instrument Liability 367 Health Care! 0 400 State Reapportionment CI I50 Recover} ovaerpayinent CI 320 Assault. Libel 8: Pharmaceutical PROPERTY RIGHTS CI 410 Antitrust 8: Enforcement oflitdgment Slander Personal Injury CI 820 Copyrights CI 430 Banks and Banking Cl ISI Medicare Act CI 330 Federal Employeri? Product Liability CI 830 Patent CI 450 Commerce CI I52 Recovery of Defaulted Liability Cl 368 Asbestos Personal 835 Patent - Abbreviated ID 460 Depottation Student Loans 0 340 Marine Injury Product New Drug Application El 470 Racketeer Influenced and {Excludes Veterans) CI 345 Marine Product Liability 3 840 Trademark Corrupt Organtzations Cl I53 Recovery ovaerpiiymenl Liability PERSONAL PROPERTY LABOR SOCIAL. SECURITY 480 Consumer Credit ofVeteran's Bene?ts 0 350 Motor Vehicle 0 370 Fraud 0 7I0 Fair Labor Standards 0 86I HIA ?395?) CI 490 Cabch'Sat TV El I60 Stockholders? Suits CI 355 Motor Vehicle CI 37l Truth in Lending Act CI 362 Black Lung [923) 850 Securitiestonimodities' CI I?ll) Other Contract Product Liabilir} CI 380 Other Personal 0 72B- LaboriManagenient 863 (405(3)) Exchange Cl I95 Contract Product Liability CI 360 Other Personal Property Damage Relations 364 SSID Title XVI CI 890 Other Statutory Actions CI I96 Franchise Injury CI 385 Property Damage CI Railway Labor Act 865 RSI (405(3)) CI 89I Agncultural Acts CI 362 Persmal Injury - Product Liability CI 75I Faintly and Medical CI 893 Environmental Matters Medical Malpractice Leave Act CI 895 Freedom oflnforinaiion REAL PROPERTY CIVIL RIGHTS PRISONER PETITIOIE CI 790 Other Labor Litigation FEDERAL TAX Act CI 2l0 Land Condemnation ID 440 Other Civil Rights Ilabeai Corpus: 791 Employee Retirement CI 870 TaxesUJ Plaintiff 896 Arbitration CI 220 Foreclosure 44] Voting CI 46? Alien Detail: :e In: time Security Act or Defendant) 899 Admtnistrative Procedure Cl 230 Rent Lease 3; 442 Employment 5 l0 Motions te- Vaut: Cl IRS --Third Pony AeUReview or Appeal of CI 240 Torts to Land CI 443 llousingf Sentence 26 USC 7609 Agency Decision CI 245 Tort Product Liability Accommodations 530 General El 950 Constitutionality of CI 290 All Ollier Real Property 445 Amer waisalnlities - CI 535 Death Penalty IMMIGRATION State Statutes Employment Other: CI 462 Naturalization Application CI 446 Airier \leisaL-ilities - CI 540 Mandamus Other CI 465 Other Immigration Other [3 550 Civil Rights Actions CI 443 Education CI 555 Prison Condition 13 560 Civil Detainee - Conditions of Con?nement V. ORIGIN {Place an in One But 0th Original Cl 2 Removed from El 3 Remonded from El 4 Reinstated or Cl 5 Transferred from 6 Multidistrict 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation - Transfer Direct File ite the 5 Civil Statute under which you are filing (on mu et'rejrr?'sdic?rmalStatutes unless diwrxiry) 15 U.S.C. 1114 CAUSE OF ACTION Brief description ofcausc Trademark Infringement VII. REQUESTED IN Cl CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only Ifdcmandcd In complaint COMPLAINT: UNDER RULE 23.F Cv JURY DEMAND: Yes )nNo RELATED a . -e instructions if? ANY JUDGE f? DOCKETNUMBER a I - I I DATE 12l05i2017 ion us .v RECEIPT ll AMOUNT APPLYING JUDGE MAG JUDGE Case Document 1 Filed 12/05/17 Page 2 of 15 15 Reverse (Rev 06-17) INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The 13 44 civil cover sheet and the information contained herein neither replaces nor supplements the ?lings and service ofpleading or other papers as required by 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 the use ofthe Clerk ofCourt for the purpose ofinitiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint ?led. The attorney ?ling a case should complete the form as follows: Plaintiffs-Defendants. Enter names (last, ?rst, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an of?cial within a government agency, identify ?rst the agency and then the official, giving both name and title. County of Residence. For each civil case ?led, except U.S. plaintiffcases, enter the name of the county where the ?rst listed plaintiff resides at the time of ?ling. In U.S. plaintiff cases, enter the name of the county in which the ?rst listed defendant resides at the time of ?ling. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the ?rm name, address, telephone number. and attorney ofrecord. Ifthere are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule which requires thatjurisdictions be shown in pleadings. Place an in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. Jurisdiction based on 28 U.S.C. 1345 and l348. Suits by agencies and of?cers ofthe United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its of?cers or agencies, place an in this box. Federal question. (3) This refers to suits under 28 U.S.C. 133l, where jurisdiction arises under the Constitution ofthe United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence. and box I or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship ofthe different parties must be checked. (See Section below; NOTE: federal question actions take precedence over diversity cases.) Ill. Residence (citizenship) of Principal Parties. This section ofthe .18 44 is to be completed ifdiversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. V. Origin. Place an in one ofthe seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 144]. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the ?ling date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the ?ling date. Transferred 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 multidistrict litigation transfers. Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is ?led in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue. VI. Cause ol?Aetion. Report the civil statute directly related to the cause ofaction and give a brief description ofthe cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an in this box ifyou are ?ling a class action under Rule 23, Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not ajury is being demanded. Related Cases. This section ofthe IS 44 is used to reference related pending cases, ifany. Ifthere are related pending cases, insert the docket numbers and the correspondingjudge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. Case Document 1 Filed 12/05/17 Page 3 of 15 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF DESIGNATION FORM to be used by counsel to Indicate the category at the case for the purpose of assignment to appropriate calendar. Addm?orplaimi?; 1818 Market Street, Suite 1900, Philadelphia, PA l9103 10 Mott Street, Suite New York, NY 10013 Place ofAccident. Incident or Transaction. 8 8 Market treet, Phi adelphi (Use Reverse Side For Additional Space) Does this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10% or more of its stock? (Attach two copies ofthc Disclosure Statement Form in accordance with Fed.R.Civ.P. Yesnc Non Does this case involve multidistrict litigation possibilities? YesCl Nom RELATED CASE. 1F ANY- Case Number: Judge Date Terminated. Civil cases are deemed related when yes is answered to any of the following questions: I. Is this case related to property included in an earlier numbered suit pending or within one year previously terminated action in this court? YesEi N03 2. Does this case involve the same issue of fact or grow out ofthe same transaction as a prior suit pending or within one year previously terminated action in this court? YesD NOE 3. Does this case involve the validity or infringement of a patent already in suit or any earlier numbered case pending or within one year previously terminated action in this court? YesEl N03 4. Is this case a second or successive habeas corpus. social security appeal, or pro se civil rights case filed by the same individual? Yesu NolaC CIVIL. (Place in ONE. CATEGORY ONLY) A. Federal Question Cases: B. Diversity Jurisdiction Cases: l. Indemnity Contract, Marine Contract. and All Other Contracts 1. I3 Insurance Contract and Other Contracts 2. El FELA 2. Airplane Personal Injury 3. Jones Act-Personal Injury 3. Assault, Defamation 4. El Antitrust 4. El Marine Personal injury 5. Patent 5. El Motor Vehicle Personal Injury 6. El Labor-Management Relations 6. Other Personal Injury (Please specify) 7 El Civil Rights 7. El Products Liability 8 Habeas Corpus 8. El Products Liability - Asbestos 9. El Securities Act(s) Cases 9. El All other Diversity Cases IO. Social Security Review Cases (Please specify) ll. DI All other Federal Question Cases (Please specify) Lanham ARBITRATION CERTIFICATION . (Check Appropriate Category) 1n 1 1 m1 counsel of record do hereby certify: Pursuant to Local Civil Rule 53.2. Section that to the best of my knowledge and $150,000 00 exclusive of interest and costs: I35 Relief other than monetary damages is sought. f, the damages recoverable in this civil action case exceed the sum of one: 12/5/2017 42227 Attorney-at-Law Attorney NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38. 1 I certify that, to my knowledge, the within case Is It pending or ithln one year previously terminated action in court except as noted above. 4 2 2 2 '7 Attorney-at-Law Attorney 1 DATE: 12/5/2017 CW. 609 (5:9012) Case Document 1 Filed 12/05/17 Page 4 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CASE MANAGEMENT TRACK DESIGNATION FORM Flve Below. Inc. CIVIL ACTION v. lOBelow Ice Cream, Inc . In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of ?ling the complaint and serve a copy on all defendants. (See 1 :03 of the plan set forth on the reverse side of this form.) In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its ?rst appearance, submit to the clerk of court and serve on . the plaintiff and all other parties, a Case Management Track Designation Form specifying the track to which that defendant believes the case should be assigned. SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS: Habeas Corpus Cases brought under 28 U.S.C. 2241 through 2255. Social Security Cases requesting review of a decision of the Secretary of Health and Human Services denying plaintiff Social Security Bene?ts. Arbitration Cases required to be designated for arbitration under Local Civil Rule 53.2. Asbestos Cases involving claims for personal injury or property damage from exposure to asbestos. Special Management Cases that do not fall into tracks through that are commonly referred to as complex and that need Special or intense management by the court. (See reverse side of this form for a detailed explanation of special management cases.) Standard Management Cases that do not fall into any one of the other tracks. (X) December S, 2017 Five Below, Inc. Date AttaneyTtit-law Attorney for 215?981?4351 215?689?4625 cariesiv?pepperlaw.com T?elephone FAX Number E-Mail Address (Civ. 660) IOIIJZ Case Document 1 Filed 12/05/17 Page 5 of 15 Civil Justice Expense and Delay Reduction Plan Section 1:03 - Assignment to a Management Track The clerk of court will assign cases to tracks through based on the initial pleading. In all cases not appropriate for assignment by the clerk of court to tracks through the plaintiff shall submit to the clerk of court and serve with the complaint on all defendants a case management track designation form specifying that the plaintiff believes the case requires Standard Management or Special Management. In the event that a defendant does not agree with the plaintiff regarding said designation, that defendant shall, with its ?rst appearance, submit to the clerk of court and serve on the plaintiff and all other parties, a case management track designation form Specifying the track to which that defendant believes the case should be assigned. The court may, on its own initiative or upon the request of any party, change the track assignment of any case at any time. Nothing in this Plan is intended to abrogate or limit a judicial of?cer's authority in any case pending before that judicial of?cer, to direct pretrial and trial proceedings that are more stringent than those of the Plan and that are designed to accomplish cost and delay reduction. Nothing in this Plan is intended to supersede Local Civil Rules 40.1 and 72.1, or the procedure for random assignment of Habeas Corpus and Social Security cases referred to magistratejudges of the court. SPECIAL MANAGEMENT CASE ASSIGNMENTS (See?1.02 Management Track De?nitions of the Civil Justice Expense and Delay Reduction Plan) Special Management cases will usually include that class of cases commonly referred to as "complex litigation" as that term has been used in the Manuals for Complex Litigation. The ?rst manual was prepared in 1969 and the Manual for Complex Litigation Second, MCL 2d was prepared in 1985. This term is intended to include cases that present unusual problems and require extraordinary treatment. See ?0.l of the ?rst manual. Cases may require special or intense management by the court due to one or more of the following factors: (1) large number of parties; (2) large number of claims or defenses; (3) complex factual issues; (4) large volume of evidence; (5) problems locating or preserving evidence; (6) extensive discovery; (7) exceptionally long time needed to prepare for disposition; (8) decision needed within an exceptionally short time; and (9) need to decide preliminary issues before ?nal disposition. It may include two or more related cases. Complex litigation typically includes such cases as antitrust cases; cases involving a large number of parties or an unincorporated association of large membership; cases involving requests for injunctive relief affecting the operation of large business entities; patent cases; copyright and trademark cases; common disaster cases such as those arising from aircraft crashes or marine disasters; actions brought by individual stockholders; stockholder's derivative and stockholder's representative actions; class actions or potential class actions; and other civil (and criminal) cases involving unusual multiplicity or complexity of factual issues. See of the ?rst Manual for Complex Litigation and Manual for Complex Litigation Second, Chapter 33. Case Document 1 Filed 12/05/17 Page 6 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF FIVE BELOW, INC., Plaintiff, CIVIL ACTION NO. V. IOBELOW ICE CREAM, INC., Defendant. QM Plaintiff, Five Below, Inc. (?Plaintiff" or ?Five Below?) by and through its undersigned counsel, files this complaint against Defendant 10Below Ice Cream, Inc. (?Defendant? or OBelow?) and in support thereof avers as follows: JURISDICTION. AND VENUE 1. This Court has subject matter jurisdiction under the provisions of 28 U.S.C. 1331 as this matter arises under the laws of the United States. 2. This Court has personal jurisdiction over Defendant IOBelow Ice Cream, Inc. as the cause of action relates to the Defendant?s contacts with the forum. 3. Venue lies within this District upon the provisions of 28 U.S.C. 1391(b) and PARTIES 4. Plaintiff Five Below, Inc. is a corporation organized and existing under the laws of the Commonwealth of with a principal place of business located at 18l8 Market Street, Suite 1900, Philadelphia, PA 19103. Case Document 1 Filed 12/05/17 Page 7 of 15 5. Upon information and belief, Defendant 10Below Ice Cream, Inc. is a corporation organized and existing under the laws of the State of New York with a principal place of business located at 10 Mott Street, Suite New York, NY 10013. PLAINTIFF FIVE BELOW 6. Plaintiff Five Below operates an extensive national chain of retail stores under the mark Five Below stores have become well-known for offering high- quality, extreme value merchandise at affordable prices. 7. Five Below has used its FIVE BELOW trademark continuously in and in interstate commerce since at least September 1, 2002. 8. Five Below is one of the fastest growing retailers in the United States and currently operates more than 600 stores throughout 32 states. 9. In 2015, Five Below opened up its largest location at 1529 Chestnut Street in Philadelphia. Five Below?s ?agship store on Chestnut Street comprises 13,000 square feet and prominently features the Five Below name/mark on the exterior facade. 10. The Five Below flagship store is located just a few blocks from Five Below?s corporate headquarters, which are based in the building located at 1818 Market Street in Philadelphia. 1 1. At all of its retail stores, including the 1529 Chestnut Street location, Five Below offers a wide range of consumer products including candy, snack foods and ice cream themed products. 12. The 1529 Chestnut Street location also offers for sale ??ozen iced beverages. Case Document 1 Filed 12/05/17 Page 8 of 15 FIVE TRADEMARK APPLICATIONS AND REGISTRATIONS 13. Plaintiff Five Below is the owner of the following United States Federal Trademark Registrations: a. Registration No. 4,048,994: in connection with ?retail store services featuring a wide variety of goods.? b. Registration No. 2,813,080: Stylized in connection with ?retail store services featuring a wide variety of consumer goods of others.? c. Registration No. 3,650,837: BELOW hot stuff. cool prices.? in connection with ?retail store services featuring a wide variety of consumer goods of others.? d. Registration No. 4,691,708: in connection with ?retail store services featuring a wide variety of consumer goods of others.? 14. In addition to the aforementioned Registrations, Five Below has applications pending before the United States Trademark and Patent Of?ce for the registration of additional trademarks. One of the pending applications is for the mark TEN in connection with ?retail and online store services featuring a wide variety of consumer goods of others, namely, fashion apparel and accessories, jewelry, bath and body products, beauty care, nonequestrian sports and ?tness goods, toys, games, room decor, candy, snacks, beverages, school and art supplies, crafts, cards, party supplies, books, media accessories, novelty items, and seasonal productions? (Application No. 15. Another Five Below pending application is for the mark in connection with ?retail and online store services featuring a wide variety of consumer goods of others; namely, fashion apparel and accessories, jewelry, bath and body products, beauty care, nonequestrian sports and ?tness goods, toys, games, room d?cor, candy, snacks, beverages, -3- Case Document 1 Filed 12/05/17 Page 9 of 15 school and art supplies, crafts, cards, party supplies, books, media accessories, novelty items, and seasonal products? (Application No. 16. Plaintiff?s TEN and applications were both ?led on October 29, 2013, which, as set forth below, is prior to Defendant?s purported adoption of its name/mark. 17. Five Below uses its FIVE BELOW mark extensively in advertising and spends approximately $25 million to $30 million annually advertising the FIVE BELOW mark and the goods and services thereunder. 18. Five Below?s net sales under its FIVE BELOW mark for ?scal year 2016 exceeded $1 billion. DEFENDANT IOBELOW 19. Upon information and belief, Defendant opened its ?rst retail location in or about May of 201 5 at its principal place of business on Mott Street in New York, New York. 20. Upon information and belief, Defendant now operates ?ve locations, four of which are located within New York City. 21. In September of 2017, Defendant opened its ?rst store outside of New York City at 42 S. 17th Street in Philadelphia, 22. Defendant?s store at 42 S. 17th Street is in a location that is almost equidistant between Five Below?s corporate headquarters (approximately 700 feet from Defendant?s retail store) and ?agship retail store (approximately 1,000 feet away). 23. On November 15, 2016, Defendant obtained Registration No. 5,081,529 from the United States Patent and Trademark Of?ce for the mark ?10Below Ice Cream.? Case Document 1 Filed 12/05/17 Page 10 of 15 24. Notably, Defendant?s Trademark Registration was obtained only in connection with ?ice cream? and not in connection with use in association with retail store services. 25. In addition, prior to granting the registration, the United States Patent and Trademark Of?ce required Defendant to disclaim the words ?ice cream? from the applied for mark. Thus, the only protectable rights it enjoys in its mark arise from the use of 26. Upon information and belief, retail stores that sell ice cream routinely include retail store services within the description of goods and services for which their trademarks will be used. 27. By way of example, the trademark registrations for Baskin-Robbins (?retail ice cream store services?), Cold Stone Creamery (?restaurant and ice cream store services?) and Dairy Queen (?restaurant services; retail soft serve ice milk confectionary store services; retail ice cream confectionary store services?) all include the operation of a retail store within the recitation of goods and services for which the mark will be used. 28. Upon information and belief, Defendant did not apply for ?retail store services? in its recitation of goods and services in its application in an effort to avoid the Examining Attorney denying the application as a result of similarity with Plaintiffs applications and registrations used in association with retail store services. 29. Upon information and belief, Defendant?s goods can only be purchased at one of the ?ve retail store locations Operated by Defendant. 30. Defendant uses the ?lOBelow? mark to identify its stores and not merely the goods (ice cream) offered for sale therein. Case Document 1 Filed 12/05/17 Page 11 of 15 31. Defendant emphasizes the ?lOBelow? portion of its mark by, for example, utilizing a signi?cantly larger type face size for the ?10Below? portion of the mark compared to the font size in which ?ice cream? appears. 32. Upon entering their location, employees of lOBelow greet patrons with the salutation ?welcome to lOBelow? without the ice cream portion of the mark. 33. In addition, Defendant?s cup in which its products are provided to the customer have a graphical depiction of its mark wherein the ?lOBelow? portion appears in signi?cantly larger font and the ?ice cream? portion of the mark is virtually imperceptible: 34. In addition, Defendant advertises and promotes its goods and services on social media, including, but not limited to Twitter, with the hashtag #10Below. 35. Finally, consumers typically refer to Defendant as simply ?10 Below?. MARK IS LIKELY TO CAUSE CONFUSION 36. Upon information and belief, consumers and the public at large generally refer to Defendant as simply ?10 Below? or ?Ten Below?. See, see also 7szjw. -5- Case Document 1 Filed 12/05/17 Page 12 of 15 37. Upon information and belief, Defendant?s use of the lOBelow mark has caused, and if not enjoined is likely to continue to cause, actual confusion. 38. Defendant?s IOBelow mark uses a type font con?lsingly similar to the type font in which Plaintiff?s Five Below mark is generally presented. 39. Moreover, because both the goods of both parties cost less than $10, consumers are unlikely to exercise a signi?cant degree of care before purchasing, which further enhances the likelihood of confusion. 40. Upon information and belief, Defendant had knowledge of Plaintiffs exclusive and well-established proprietary rights in and to the Five Below Trademarks, but continue to proceed in complete disregard of Plaintiff?s rights. 41. Unless enjoined by this Court, Defendant will continue offering for sale, selling, distributing, and marketing goods and services branded under an infringing mark and name, causing Plaintiff irreparable injury and for which Plaintiff has no adequate remedy of law. 42. On August 14, 2017, prior to the opening of Defendant?s Philadelphia location, Plaintiff sent Defendant a cease and desist letter wherein it objected to Defendant?s use ofthe lOBelow name and mark. 43. In addition, Plaintiff?s August 14, 2017 letter noted that Defendant?s use of a confusingly similar name and mark had already caused actual confusion and that Defendant?s intended expansion into the Philadelphia region, in close proximity to Plaintiffs corporate headquarters and ?agship store, would inevitably result in additional confusion going forward. Case Document 1 Filed 12/05/17 Page 13 of 15 44. Nevertheless, Defendant refused to cease use of the infringing lOBelow name and mark. Instead, it opened its store in Philadelphia on September 23, 2017 under the lOBelow mark. COUNT I Infringement of Federally Registered Trademarks Under 15 U.S.C. 8 1114 of the Lanham Act 45. Plaintiff incorporates by reference the allegations contained in Paragraphs 1 through 44 as if fully set forth herein. 46. Plaintiff owns the valid Federally-Registered Trademark rights to the Five Below mark in connection with retail store services featuring a wide variety of goods. 47. The name and mark lOBelow has already created a likelihood of confusion and will further create a likelihood of confusion in the marketplace. 48. Defendant uses the IOBelow mark in connection with retail store services similar to those offered under the Ten Below mark and in connection with goods that are similar to those sold by Plaintiff has caused, and will cause, a likelihood of confusion as to af?liation, association and sponsorship. 49. As a result of Defendant?s adoption of a confusingly similar name and mark, actual confusion have already occurred and will continue to occur. 50. Plaintiff has and will suffer irreparable damage to its business and goodwill by reason of Defendant?s adoption of a similar name and mark unless Defendant is restrained and enjoined therefrom, and Plaintiff is without an adequate remedy at law. Case Document 1 Filed 12/05/17 Page 14 of 15 COUNT II Statutory Dilution under Law 51. Plaintiff incorporates by reference Paragraphs 1 through 50 of this Complaint as if fully set forth herein. 52. Plaintiff? first use of the Five Below mark occurred in September 2002. Defendant?s first use of its name and mark was on July 17, 2015. 53. Plaintiffs Five Below mark was famous and distinctive in the Philadelphia area and the Commonwealth of long prior to Defendant?s ?rst use of its name and mark. 54. Upon information and belief, the general public would view the 10 Below name and mark and recognize that Plaintiff is the source of the goods and services associated with the Five Below mark. 55. Defendant?s use of a 10 Below name and mark is likely to cause dilution of Plaintiff?s famous Five Below mark. 56. Defendant?s dilution of Plaintiff?s famous Five Below mark is knowing and willful. 57. As a direct and proximate result of Defendant?s unlawful acts, Plaintiff has suffered and will continue to suffer irreparable harm. COUNT 111 Common Law Unfair Comnetition 58. Plaintiff incorporates by reference Paragraphs 1 through 57 of this Complaint as if fully set forth herein. Case Document 1 Filed 12/05/17 Page 15 of 15 59. By engaging in the above described conduct, including the unauthorized use of a name and mark confusingly similar to Plaintiff?s Five Below Mark, Defendant has engaged in unfair competition. 60. Defendant?s conduct is contrary to honest commercial practices. Defendant?s offering of goods and services under a name and mark that is likely to cause confusion with Plaintiff?s Five Below mark injures Plaintiff?s reputation. WI-IEREFORE, Plaintiff Five Below, Inc. demands that: A. Defendant 10Below Ice Cream, Inc., including all directors, of?cers, partners, agents, servants, employees, representatives, and attorneys, and all persons in active concert or participation with it, be permanently enjoined from using the lOBelow mark and name or any infringing or colorable imitation of the Ten Below Trademarks in connection with retail store services; and B. Plaintiff be awarded such other and further injunctive relief as this Court may deem proper and just. Vincent V. Carissn'm Noah S. Robbins Pepper Hamilton LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 Tel.: 215-981?4000 Email: carissiv@neoperlaw.com robbinsn??pepperlawcom Attorneys for Plaintiff Dated: December 5, 2017 Five Below, Inc.