Professional Documents
Culture Documents
Plaintiff
v.
Defendant
______________________________
COMPLAINT
Plaintiff Coral Castle, Inc. (“CCI” or “Plaintiff”), by and through undersigned counsel,
files this Complaint (“Complaint”), and avers and asserts the following claims against Defendant
INTRODUCTION
1. The case is about Fortnite, one of the most popular and best-selling video games
of all time. EGI released Fortnite in or around September 2017. Since that time, the game has
2. One mode of the game is called Fortnite: Battle Royale, where one hundred (100)
players attempt to survive in a virtual world made up of various cities, towns and landmarks
3. The virtual world of Fortnite is continually changing, with Locations being added
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4. In some cases these Locations have names coined by EGI, like “Dusty Divot,”
“Loot Lake” or “Tilted Towers”. In other cases, Locations have the names of fictional places
5. On or about August 1, 2020, EGI changed the virtual world of Fortnite: Battle
Royale to add a Location called “Coral Castle,” and that is where the issue lies.
THE PARTIES
6. Plaintiff CCI is a Florida Corporation with its principal place of business located
8. Through this Complaint, Plaintiff asserts claims against Defendant that arise
under the Lanham Act of 1946, as amended, 15 U.S.C. § 1051, et seq., Florida Common Law,
9. This Court has subject matter jurisdiction over Plaintiff’s federal claims pursuant
to 28 U.S.C. §§ 1331 and 1338(a) (federal question; trademarks), as well as 28 U.S.C. § 1332
(diversity).
10. The Court has subject matter jurisdiction over Plaintiffs’ pendant state law claims
under 28 U.S.C. § 1367(a) because the state law claims arise out of a common nucleus of
11. Venue is also proper in this District and Division under 28 U.S.C. §§ 1391(b) and
1400(a) because EGI’s activities have caused substantial damage to CCI in this District and
Division, and because EGI may be found in this District and Division.
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FACTUAL BACKGROUND
Dade County, Florida, between the cities of Homestead and Leisure City. The structure
comprises numerous megalithic stones, mostly limestone formed from coral, each weighing
several tons.
13. Leedskalnin started work on what would become Coral Castle in the early 1920s.
He moved the structure at least once during construction, but it has been in its present location
since 1936. Leedskalnin continued to work on the structure until his death in 1951. Leedskalnin
operated Coral Castle as a tourist attraction from 1923 on, charging ten (10) cents admission per
person at first.
14. Leedskalnin’s originally named the structure “Rock Gate.” After his death (in
1951), Leedskalnin’s family sold the property, and the new owners renamed it “Coral Castle.” It
16. Coral Castle is noted for legends surrounding its creation. Some claim it was
and carve numerous stones, each weighing many tons. Due to its mysterious and mythical
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18. Coral Castle is a world famous and well-known destination and tourist attraction.
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20. Coral Castle has been featured in various films, including: (1) The Wild Women of
Wongo (1958), (2) Nude on the Moon (1961), and (3) Jimmy, the Boy Wonder (1966).
21. Coral Castle was also featured on an episode of Leonard Nimoy’s television
program In Search of... (1976–1982), entitled “The Castle of Secrets,” and on the History
22. TripAdvisor ranked Coral Castle as one of the Top 35 museums in the United
States (out of over 35,000). Coral Castle has hosted thousands of visitors per year, including
several national and local celebrities. In 2019, Coral Castle was named one of “The 40 Most
Mysterious Places in the Whole Entire World” along with places like Area 51 and The Bermuda
Triangle. Coral Castle’s Facebook Page has over 69,000 Followers, and over 42,000 “Check-
Ins” for the location. Billy Idol’s song 1987 “Sweet Sixteen” is about Leedskalnin’s building of
the structure, and his video for the song was filmed there. See Ex. C.
PLAINTIFF’S TRADEMARKS
23. Plaintiff CCI holds two (2) U.S. Trademark Registrations related to Coral Castle.
U.S. Reg. No. 5,057,446 for the mark CORAL CASTLE (the “’446 Registration”) was issued on
October 11, 2016 and covers services such as “On-line retail store services featuring hats, shirts,
books, DVDs, replicas of museum attractions, collectible spoons, thimbles, lapel pins, tie tacks,
mints, Christmas ornaments, souvenir patches, shot glasses, bumper stickers, toys, mugs, plates,
cups, souvenir tins sold empty, magnets” (in Class 35) and “Museum services” (in Class 41).
U.S. Reg. No. 5,057, 447 for the logo mark CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI,
FL (And Design) (the “’447 Registration”) was issued on October 11, 2016 and covers services
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24. Plaintiff also owns common law rights in the marks CORAL CASTLE and
CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI, FL (And Design) (collectively, the
“Trademarks”), based on over forty (40) years of continuous and exclusive use.
25. The ‘447 Registration is for the logo shown below, which includes pictorial
representations of a castle, a crown, seahorses and a scallop shell. See Ex. A, ‘447 Reg., Mark
Description (“The mark consists of a castle with a seahorse on either side facing inward on a
medallion with a crown at the top and leaf designs at either side of the crown, and a scallop shell
26. Fortnite has many different gameplay modes. In the mode called Fortnite: Battle
Royale, one hundred (100) players fight for survival throughout multiple Locations on a virtual
island.
27. EGI released the initial version of Fortnite: Battle Royale as a paid game.
28. However, by September 2017, due in part to the success of a competing game
‘free-to-play’ game.
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29. As a free-to-play video game, EGI allows players to download and play Fortnite:
Battle Royale for free. The game is supported primarily by purchases made within an electronic
30. For example, players can make in-game purchases of currency, called “V-Bucks.”
The players, in turn, use V-Bucks to purchase customizations for their in-game avatars, including
31. EGI also sells “Battle Passes” that allow the player to unlock unique characters,
32. EGI presently offers four (4) pricing levels for V-Bucks: (1) 1,000 V-Bucks for
$9.99; (2) 2,500 (+300 Bonus) V-Bucks for $24.99; (3) 6,000 (+1,500 Bonus) V-Bucks for
33. “Battle Passes” typically cost 950 V-Bucks (a little under $10.00).
34. In November 2018, Bloomberg announced that Fortnite had 200 Million player
accounts across all platforms. Fortnite’s popularity has translated into record sales for EGI.
Analysts have estimated that since its release, Fortnite has generated between $1 billion to $2
35. In May 2018, Fortnite broke its own record by generating approximately $318
Million in revenue, the biggest month ever for a video game. In fact, nearly 80 Million people
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CHAPTER 2, SEASON 3
36. Fortnite: Battle Royale has various ‘Chapters’ and ‘Seasons’ that change over
time. As of August 1, 2020, the Fortnite: Battle Royale experience was being referenced as
37. Chapter 2, Season 1 of Fortnite: Battle Royale began in October 2019. Chapter 2,
Season 2 began in in February 2020. The current version (Chapter 2, Season 3) launched on
38. The virtual world of Chapter 2, Season 3 is primarily water-based, with new
locations revealed as time passes and the water recedes (“As time goes on and water recedes,
US/chapter-2-season-3.
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39. The Fortnite: Battle Royale map typically has between ten (10) and twenty (20)
Locations at any one time. Below is an image from a current (August 1, 2020) version of the
40. In addition to “Coral Castle,” Locations on this map include “Sweaty Sands,”
“Dirty Docks,” “Catty Corner” and “Misty Meadows.” No other locations on the current map
41. The ‘virtual’ “Coral Castle” (hereinafter “VCC”) is a Location in the upper left-
42. The map was altered by EGI at some point on August 1, 2020 to reveal VCC for
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43. A Fortnite news site released the Tweet below on August 1, 2020 at 1:10 am,
44. In the game, VCC appears as a beach area, including islands, sandbars and water
features. VCC also includes various castles, castle walls, stone objects and statutes. Below is a
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45. Additional gameplay images of VCC from Chapter 2, Season 3 are shown below:
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46. As shown above, VCC shares common themes with the real Coral Castle. Both
include nautical/beach motifs, castle structures, partial castle walls, and stone objects. Both also
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47. The real Coral Castle markets and advertises using nautical/beach motifs and
castle structures to promote the location and their museum services. As noted above, Plaintiff’s
‘447 Registration for its logo includes both nautical and castle elements.
48. Upon information and belief, and according to promotions surrounding the
release, VCC may have been intended by EGI to be a representation of a modern day Atlantis.
See Ex. B. (“Fortnite Reveals Coral Castle, And It’s A Tiny Atlantis,” GameSpot, August 8,
2020; “'Fortnite' Map Update Adds Coral Castle, But Don't Call It Atlantis,” NewsGeek, August
1, 2020).
49. In fact, the whole theme of “Chapter 2, Season 3” of Fortnite: Battle Royale is
geared around the DC Comics character “Aquaman,” as portrayed by Jason Momoa in the 2018
movie of the same name. A promotional image showing the Momoa incarnation of Aquaman as
50. In the movie, and in the comic books, Aquaman’s home under the ocean is called
“Atlantis.”
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51. Upon information and belief, rather than call this new location “Atlantis,” EGI
intentionally chose to call it “Coral Castle,” in clear and willful violation of Plaintiff’s rights in
the Trademarks.
52. EGI is utilizing the vast goodwill associated with the Trademarks to promote the
nautical theme of Chapter 2 Season 3 of Fortnite: Battle Royale, and to promote sales of V-
Bucks and Battle Passes, without the consent or approval of CCI, and without compensation to
CCI.
COUNT I
53. Plaintiff repeats and re-alleges Paragraphs 1 through 52 as if fully set forth herein.
54. Plaintiff is the owner of the ‘446 Registration for the mark CORAL CASTLE and
the ‘447 Registration for the mark CORAL CASTLE MUSEUM EST. 1923 ~ MIAMI, FL (And
55. The ‘446 and ‘447 Registrations are valid and subsisting.
56. The Trademarks are inherently distinctive as used in connection with museum
57. Plaintiff has developed and maintained substantial secondary meaning in the
Trademarks as used in connection with museum services and related retail services.
copies and/or colorable imitations of the Trademarks in commerce or in connection with the sale,
offering for sale, distribution and/or advertising of Defendant’s goods and services, and such use
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59. Defendant’s use of the mark “Coral Castle” as a Location in Fortnite: Battle
Royale is likely to cause confusion, mistake or to deceive the public as to the affiliation,
connection or association of Defendant and its goods and services with Plaintiff.
60. The likelihood of confusion is only exacerbated by the fact that Fortnite: Battle
Royale and the real Coral Castle share common marketing and advertising themes, such as
castles and nautical elements. Specifically, due to these common themes, purchasers are more
likely to believe that the “Coral Castle” Location in Fortnite: Battle Royale is authorized,
61. Defendant has used the Trademarks to generate significant income by selling,
inter alia, V-Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale, using
the fame of Plaintiff’s Trademarks to stay relevant to current players, and to incentivize those
players to continue playing Fortnite: Battle Royale, impliedly representing that Plaintiff
consented to Defendant’s use of the Trademarks, intentionally causing the erroneous public
association between Fortnite: Battle Royale and Plaintiff, and creating the false impression that
62. By reason of Defendant’s acts alleged herein, Plaintiff has suffered and will suffer
damage to its business, reputation and goodwill. Additionally, Plaintiff has suffered and will
suffer the loss of sales and profits that it would have made but for Defendant’s acts.
U.S.C. § 1114(1). Defendant’s conduct was intended to cause confusion, has caused confusion,
64. For each completed act of trademark infringement, Plaintiff is entitled to recover
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65. Defendant continues to do the acts complained of herein, and unless restrained
and enjoined will continue to do so, all to Plaintiff’s irreparable damage. It would be difficult to
ascertain the amount of compensation that could afford Plaintiff adequate relief for such
continuing acts. Plaintiff’s remedy at law is not adequate to compensate it for the threatened
injuries. Monetary relief alone is not adequate to address fully the irreparable injury that
Defendant’s illegal actions have caused and will continue to cause Plaintiff if not enjoined.
WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
damages, interest, attorneys’ fees, costs, and such further relief as the Court deems proper.
COUNT II
66. Plaintiff repeats and re-allege paragraphs 1-52 as if fully set forth herein.
67. By virtue of the popularity and renown of Coral Castle, the Trademarks have
68. Defendant’s conduct dilutes the distinctive quality of the Trademarks in violation
69. Defendant’s conduct and actions have lessened the capacity of the Trademarks to
70. Defendant did not credit Plaintiff, or seek their consent, for the inclusion of the
71. Defendant’s acts have been deliberate, willful, intentional, and purposeful to
exploit Plaintiff’s rights in the Trademarks for their own personal gain.
72. Defendant continues to advertise, promote, market, sell and offer for sale V-
Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale including the
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Location “Coral Castle,” and unless restrained and enjoined, will continue to do so to Plaintiff’s
irreparable damage.
73. Defendant’s conduct is causing and, unless enjoined and restrained by this Court,
will continue to cause Plaintiff great and irreparable injury that cannot be compensated or
measured in money. Plaintiff thus has no adequate remedy at law and is entitled to injunctive
74. Because of the willful nature of Defendant’s wrongful acts, Plaintiff is entitled to
75. Plaintiff is also entitled to recover its attorneys’ fees and costs of suit pursuant to
15 U.S.C. § 1117.
WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
damages, interest, costs, and such further relief as the Court deems proper.
COUNT III
76. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
77. Plaintiff is the owner of the ‘446 and ‘447 Registrations, as well as owner of all
78. The Trademarks are inherently distinctive as used in connection with museum
79. Plaintiff has developed and maintained substantial secondary meaning in the
Trademarks as used in connection with museum services and related retail services.
copies and/or colorable imitations of the Trademarks in commerce or in connection with the sale,
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offering for sale, distribution and/or advertising of Defendant’s goods and services, and such use
81. Defendant’s use of the mark “Coral Castle” as a Location in Fortnite: Battle
Royale is likely to cause confusion, mistake or to deceive the public as to the affiliation,
connection or association of Defendant and its goods and services with Plaintiff.
82. The likelihood of confusion is only exacerbated by the fact that Fortnite: Battle
Royale and the real Coral Castle share common marketing and advertising themes, such as
castles and nautical elements. Specifically, due to these common themes, purchasers are more
likely to believe that the “Coral Castle” Location in Fortnite: Battle Royale is authorized,
83. Defendant has used the Trademarks to generate significant income by selling,
inter alia, V-Bucks and Battle Passes for Chapter 2, Season 3 of Fortnite: Battle Royale, using
the fame of Plaintiff’s Trademarks to stay relevant to current players, and to incentivize those
players to continue playing Fortnite: Battle Royale, impliedly representing that Plaintiff
consented to Defendant’s use of the Trademarks, intentionally causing the erroneous public
association between Fortnite: Battle Royale and Plaintiff, and creating the false impression that
84. By reason of Defendant’s acts alleged herein, Plaintiff has suffered and will suffer
damage to its business, reputation and goodwill. Additionally, Plaintiff has suffered and will
suffer the loss of sales and profits that it would have made but for Defendant’s acts.
85. As a direct and proximate result of Defendant’s wrongful acts, Plaintiff has
suffered and continues to suffer and/or is likely to suffer damage to its trademarks, business
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reputation and goodwill. Defendant will continue, unless restrained, to conduct its business
using the infringing mark “Coral Castle,” causing irreparable damage to Plaintiff.
1125(a). Defendant’s conduct was intended to cause confusion, has caused confusion, and will
87. Plaintiff has no adequate remedy at law and is entitled to an injunction restraining
Defendant and any of its officers, agents, servants, licensees, and employees, and all persons
acting in concert with Defendant, from engaging in further acts of false designation of origin,
affiliation or sponsorship.
88. Plaintiff is further entitled to recover from Defendant the actual damages that it
sustained and/or is likely to sustain as a result of Defendant’s wrongful acts. Plaintiff is unable
to ascertain the full extent of the monetary damages that it has suffered and/or is likely to suffer
89. Plaintiffs remedy at law is not adequate to compensate it for the threatened
injuries. Monetary relief alone is not adequate to address fully the irreparable injury that
Defendant’s illegal actions have caused and will continue to cause Plaintiff if not enjoined.
90. Plaintiff is further entitled to recover from Defendant the gains, profits and
advantages that Defendant has obtained as a result of its wrongful acts. Plaintiff is unable to
ascertain the extent of the gains, profits, and advantages that Defendant has realized by reason of
91. Because of the willful nature of Defendant’s wrongful acts, Plaintiff is entitled to
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92. Plaintiff is also entitled to recover its attorneys’ fees and costs of suit pursuant to
15 U.S.C. § 1117.
damages, interest, costs, and such further relief as the Court deems proper.
COUNT IV
93. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
94. Plaintiff owns and enjoys common law trademark rights in the Trademarks in the
95. The Trademarks operate as indicators of source and/or origin, particularly when
used in interstate commerce. Moreover, the Trademarks have acquired distinctiveness via
secondary meaning.
96. Defendant, through their use, display and copying of the Trademarks, has without
authorization, in connection with their goods and/or services in commerce, made or contributed
to the making of false designations of origin, false or misleading descriptions of fact, and/or false
or misleading representations of fact, which are likely to cause confusion, mistake, or to deceive
as to the affiliation, connection or association of Defendant with Plaintiff, and/or as to the origin,
sponsorship or approval of Defendant’s goods and services in violation of the common law of
97. Consumers are likely to purchase video games and video game services from
Defendant believing that Defendant is affiliated, connected or associated with Plaintiff, resulting
98. Defendant’s acts as set forth herein constitute unfair competition, and/or induce or
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99. Defendant’s unfair acts have been committed in bad faith and with the intent to
100. As a direct and proximate result of Defendant’s conduct, Plaintiff has been, and is
likely to be, substantially injured in its business including harm to its goodwill and reputation
101. Upon information and belief, Defendant’s acts of unfair competition are, and have
been, oppressive, fraudulent and malicious, thus entitling Plaintiff to punitive damages.
102. Plaintiff has no adequate remedy at law because the Trademarks are unique and
represent to the public Plaintiff’s identity, reputation, and goodwill, such that damages alone
103. Unless enjoined by this Court, Defendant and those acting in concert with them
will continue to infringe Plaintiff’s intellectual property rights, to Plaintiff’s irreparable injury.
This threat of future injury to Plaintiff’s business identity, goodwill, and reputation requires
injunctive relief to prevent Defendant’s continued use of the Trademarks, and/or marks
104. Upon information and belief, Defendant has engaged in the above-referenced acts
of unfair competition with knowledge of Plaintiff’s exclusive intellectual property rights, and
WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
damages, interest, costs, and such further relief as the Court deems proper.
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COUNT V
105. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
106. Defendant’s use of the Trademarks, or colorable imitations thereof, are deceptive
and unfair practices under Florida’s Deceptive and Unfair Trade Practices Act (F.S.A. § 501.201
et seq.).
107. Specifically, Defendant’s use of the Trademarks, and attempt to profit from the
sale of video games and video game services to third parties go against public policy and are
108. As a direct result of Defendant’s deceptive and unfair practices, Plaintiff has been,
and continues to be, damaged by Defendant’s use of the Trademarks, and attempts to profit from
WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
damages, interest, costs, and such further relief as the Court deems proper.
COUNT VI
109. Plaintiff repeats and re-alleges Paragraphs 1-52 as if fully set forth herein.
110. Plaintiff has invested substantial time, labor and money in the operation of the
museum and tourist attraction called Coral Castle, and has accordingly developed substantial
111. Defendant has wrongfully misappropriated Plaintiff’s goodwill, and has profited
from and received certain other benefits as a result of such wrongful misappropriation.
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113. It would be inequitable to allow Defendant to retain the profits and other benefits
WHEREFORE, Plaintiff CCI requests judgment against Defendant EGI for monetary
damages, interest, costs, and such further relief as the Court deems proper.
WHEREFORE, for the foregoing reasons, Plaintiff CCI respectfully requests that this
Court enter preliminary and permanent injunctive relief against Defendant EGI, as well as its
2. Defendant’s sale of the goods and services including the Trademarks, constitutes
3. Defendant’s sale of the goods and services including the Trademarks, constitutes
4. Defendant has engaged in common law unfair competition, through the sale of
goods and services using including the Trademarks, and/or goods and services related thereto;
5. Defendant has engaged in deceptive and unfair trade practices in the State of
Florida (under the Deceptive and Unfair Trade Practices Act), through the sale of goods and
services including the Trademarks, and/or goods and services related thereto;
6. Defendant has been unjustly enriched by the sale of goods and services including
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competition detailed herein have been, and continue to be, willful and deliberate.
agents, servants and employees, and those people in active concert or participation with it from:
brochures, catalogs, plates, molds, uniforms, and logo items in its possession or control which
display a product which is identical to, or confusingly similar with, Plaintiff’s Trademarks, as
E. Entry of judgment requiring Defendant to file with the Court and to serve upon
Plaintiff’s counsel within thirty (30) days after entry of any injunction or order issued herein, a
written report, under oath, setting forth in detail the manner in which it has complied with such
injunction or order pursuant to Section 34 of the Lanham Act (15 U.S.C. §1116(a)).
F. Entry of judgment:
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U.S.C. §1114) (including, but not limited to, a disgorgement of Defendant’s profits, Plaintiff’s
lost profits, and the costs of this action);
4. requiring Defendant to account to Plaintiff for any and all profits derived
by it from sales of goods and services including the Trademarks, and to compensate Plaintiff for
all damages sustained by reason of such trademark infringement and the other acts complained of
herein; all pursuant to Section 35 of the Lanham Act (15 U.S.C. §1117).
G. Entry of judgment:
4. requiring Defendant to account to Plaintiff for any and all profits derived
by it from sales of goods and services including the Trademarks, and to compensate Plaintiff for
all damages sustained by reason of such acts of dilution and the other acts complained of herein;
all pursuant to Section 35 of the Lanham Act (15 U.S.C. §1117).
H. Entry of judgment:
4. requiring Defendant to account to Plaintiff for any and all profits derived
by it from sales of goods and services including the Trademarks, and to compensate Plaintiff for
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all damages sustained by reason of such acts of unfair competition and the other acts complained
of herein; all pursuant to Section 35 of the Lanham Act (15 U.S.C. §1117).
infringement, unfair competition and other unlawful acts (including but not limited to the costs
of Defendant’s acts of common law unfair competition, including but not limited to
of Defendant’s deceptive and unfair trade practices, including but not limited to compensatory
enrichment.
M. Affording Plaintiff such further and other relief as this Court may deem just and
proper.
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JURY DEMAND
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