Edible IP v. 1-800-Flowers - Complaint

Case 1:20-cv-02405-SCJ Document 1 Filed 06/04/20 Page 1 of 37
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EDIBLE IP, LLC; and EDIBLE

ARRANGEMENTS LLC;
Plaintiffs, CIVIL ACTION

NO: ___________
v.
JURY TRIAL DEMANDED
1-800-FLOWERS.COM, INC.; and 800-
FLOWERS, INC.,
Defendants.
COMPLAINT
Plaintiffs Edible Arrangements LLC and Edible, IP LLC (collectively the
“Edible Plaintiffs”) have valuable intellectual property including trademarks that
distinguish their famous cut fruit products designed to look like flowers.
Defendants 1-800-Flowers.com, Inc and 800-Flowers, Inc. (collectively the “18F
Defendants”) have repeatedly infringed on those trademarks in internet advertising
in a deliberate attempt to confuse the public and damage the Edible Plaintiffs’
businesses.
1824558.1
This complaint seeks redress for these wrongs.
Parties
1.
Plaintiff Edible IP, LLC is a Connecticut limited liability company whose
member is Edible Brands, LLC, a Delaware Company. Edible IP’s principal place
of business is in Fulton County, Georgia at 980 Hammond Drive, Atlanta GA
30328. Edible IP owns all of the trademarks, trade names, common law
intellectual property, and other goodwill associated with the brand “Edible
Arrangements.” As discussed in more detail below, Edible IP licenses this
property to Edible Arrangements LLC and other entities that conduct business
using that name.
2.
Plaintiff Edible Arrangements LLC is a Delaware limited liability company
with a principal place of business at 980 Hammond Drive, Atlanta, Georgia 30328.
3.
Defendant 1-800-Flowers.com, Inc. is a Delaware Corporation with its
principle place of business at One Old County Road, Carle Place, New York
11514.
2
4.
Defendant 800-Flowers, Inc. is a New York corporation with its principle
place of business at One Old Country Road, Carle Place, New York 11514.
5.
Certain subsidiaries of 1-800-Flowers.com are registered to do business in
Georgia, including Flowerama of America, Inc. (“Flowerama”). On information
and belief, the 18F Defendants conduct business in Georgia through Flowerama,
and they can be served by serving Flowerama’s registered agent, C T Corporation
System, 289 S Culver St, Lawrenceville, GA, 30046-4805.
Jurisdiction and Venue
6.
This Court has jurisdiction over this action under 15 U.S.C. § 1121, 28
U.S.C. § 1331, 28 U.S.C. § 1338(a), and 28 U.S.C. § 1367.
7.
This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338
because Plaintiffs assert claims of trademark infringement, false designation of
origin, and dilution arising under 15 U.S.C. §§1114, 1125(a), and 1125(c).
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8.
This Court has supplemental jurisdiction over the claims in this complaint
that arise under the laws of the State of Georgia pursuant to 28 U.S.C. §1367(a)
because the state law claims are so related to the federal law claims that they form
a part of the same case or controversy and derive from a common nucleus of
operative facts.
9.
This Court has personal jurisdiction over Edible IP, LLC and Edible
Arrangements, LLC because by virtue of the filing of this Complaint, they consent
to its jurisdiction.
10.
1-800-Flowers.com, Inc. and 800-Flowers, Inc. are subject to personal
jurisdiction in this district because they advertise, solicit clients, and conduct
continuous, systemic, and routine business in the state of Georgia and within this
district, subjecting them to personal jurisdiction in this district.
11.
Venue properly lies in this district pursuant to 28 U.S.C. § 1391(b)(1), (c)
and (d) because Plaintiffs are headquartered in this district and suffered damage
here. Defendants regularly engage in business in this judicial district, have
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registered agents here, and their contacts are sufficient to subject them to personal
jurisdiction here.
Edible Arrangements Background
12.
Edible Arrangements LLC is the successful franchisor of stores offering
fresh-cut fruit products, and it is best known for its artistically-designed fresh fruit
products evocative of floral designs and its dipped fruit products. These highly-
regarded products are available through an extensive network of franchises
throughout the United States and abroad, and through its website, its call center,
the Internet, and a handful of affiliate-owned stores.
13.
Edible IP, LLC is the owner and licensor of, among other things, the various
trademarks, trade dress, domain names, copyrights, and other intellectual property
used and associated with the famous EDIBLE ARRANGEMENTS business and
brand, as set forth in greater detail below. Edible IP, LLC licenses these
intellectual property assets to Edible Arrangements, LLC for use and sublicensing
through Edible Arrangements, LLC’s franchise system and websites.
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14.
Tariq Farid founded Edible Arrangements in what has become a famous
American success story. Mr. Farid emigrated from Pakistan when he was twelve
years old. Beginning when he was only sixteen, Mr. Farid purchased his first
flower shop. Within several years he grew his business to four locations.
15.
Then came his entrepreneurial breakthrough: Mr. Farid developed a unique
marketing program of providing floral arrangements made from fresh cut fruit
instead of flowers. The fresh fruit is cut and sculpted to look like floral designs.
16.
In 1999, Mr. Farid opened the first “Edible Arrangements®” store, through
which he introduced his unique cut fruit products.
17.
The Edible Arrangements brand and business grew enormously. Two years
after opening his first store, Mr. Farid introduced Edible Arrangements franchises.
And only three years after launching the first franchise, Entrepreneur Magazine
recognized Edible Arrangements in the top 500 franchises in the United States.
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18.
By 2006, there were 500 Edible Arrangements franchises, and by 2011 there
were 1,000. Today, there are almost 1,200 Edible Arrangements stores worldwide,
with more than 1,100 stores located throughout the United States. In Georgia
alone, there are 42 locations. In 2017, there were almost 175,000 Edible
Arrangements deliveries in Georgia, and 215,000 Edible Arrangements customers
live here.
19.
Edible Arrangements’ success has been continuously recognized by the
business media. For example, Edible Arrangements ranked 9th on the 2011 Forbes
list of top “franchises to start”; was named one of the “Top 100 Internet Retailers”
by Internet Retailer magazine; was 38th on Entrepreneur Magazine’s 2017
Entrepreneur Franchise 500; and was ranked 3rd on Inc. Magazine’s list of top
food and beverage companies. Most recently, the Franchise Times ranked Edible
Arrangements number 128 in the list of the “Top 200 Franchises.”
20.
Today, Edible Arrangements’ system-wide revenue exceeds half a billion
dollars annually. Edible Arrangements’ success is a direct result of its
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commitment to providing a consistently high-quality and beautifully-designed
product that consumers recognize as Edible Arrangements, as well as its marketing
and promotion of the famous EDIBLE ARRANGEMENTS trademark and brand.
21.
Edible Arrangement’s franchisees share in the commitment to consistently
deliver high-quality, beautifully designed products to consumers that are instantly
recognizable as an Edible Arrangements product offered under the famous
EDIBLE ARRANGEMENTS trademarks and brand.
22.
Any consumer misperception or confusion as to the affiliation of Edible
Arrangements or its products with competitors or their products will irreparably
damage Plaintiffs’ valuable brand and goodwill, as well as that of the franchisees,
who devote significant personal resources to running their shops.
Edible IP’s Trademarks
23.
Edible IP owns a stable of extremely well-known marks that the public uses
to identify and distinguish Edible Arrangements’ goods in the marketplace.
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24.
Of significant importance to Plaintiffs and the Edible Arrangements’
franchise network is a family of trademarks and service marks comprising or
containing the terms EDIBLE or EDIBLE ARRANGEMENTS, either alone or
with other words and/or designs (collectively, the “EDIBLE Marks”), which serve
as the banner of quality that identifies and distinguishes Edible Arrangements’
goods and services in the marketplace.
25.
Primary among these EDIBLE Marks are the famous trade names,
trademarks, and service marks “EDIBLE” (the “EDIBLE Mark”) and “EDIBLE
ARRANGEMENTS” (the “EDIBLE ARRANGEMENTS Mark”).
26.
The EDIBLE Mark, covered by Registration No. 4,319,940, is incontestable
pursuant to the provisions of the Federal Trademark Act of 1946, as amended, 15
U.S.C. § 1051 et seq. (the “Lanham Act”), as is the EDIBLE Mark and Logo, Reg.
No. 5513739, appearing below:
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27.
The EDIBLE ARRANGEMENTS Mark, covered by Registration Nos.
2,934,715 and 3,844,160, among others, is also incontestable pursuant to the
provisions of Lanham Act, as is the EDIBLE ARRANGEMENTS Mark and Logo,
Reg. Nos. 3,141,566 and 3,844,161, appearing below:
28.
The EDIBLE Marks, including EDIBLE, the EDIBLE logo, EDIBLE
ARRANGEMENTS and the EDIBLE ARRANGEMENTS Mark and Logo, are
broadly recognized by the general consuming public as identifying Edible
Arrangements and its products and services. Edible Arrangements’ branding is
widely suffused with references to and displays of these famous marks.
29.
For example, the EDIBLE Marks are used as the trade name of every Edible
Arrangements store and franchise. Each such store features signage and various
in-store and point-of-purchase displays of the EDIBLE Marks, including on
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coolers, counters, and other décor. Franchisees at the stores wear clothing that
displays EDIBLE Marks to reinforce consumer perception that all the goods and
services through the stores emanate from Edible Arrangements.
30.
Additionally, the Edible Arrangements products sold and delivered to many
millions of consumers annually all bear the EDIBLE Marks on packaging, boxes,
and other associated containers and sales documents, such as invoices and delivery
notices.
31.
Likewise, the familiar refrigerated delivery vehicles that deliver these
products to consumers and circulate daily throughout the United States proudly
display the EDIBLE Marks prominently along their sides.
32.
Edible Arrangements’ marketing materials, brochures, catalogs, coupons,
and sell sheets all likewise feature the EDIBLE Marks as a designation of source.
Edible Arrangements advertises across all important media—television, radio,
print, internet, digital, e-commerce, and social media, for example—and invariably
emphasizes the EDIBLE Marks in those advertisements.
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33.
Edible Arrangements franchisees also use promotional merchandise, such as
jackets, shirts, t-shirts, hats, and store signage, that further display and promote the
EDIBLE Marks.
34.
The cumulative effect of this comprehensive promotion of the EDIBLE
Marks is that consumers —whether purchasers, shoppers, recipients, or even
viewers of advertising or refrigerated delivery vehicles—are constantly informed
that the EDIBLE Marks designate the source of the Edible Arrangements products
that circulate regularly through United States commerce.
35.
The EDIBLE Marks are inherently distinctive. They imaginatively combine
the normally disparate notions of flower arrangements, which are displayed for
their visual appeal and not eaten, and cut fruit, typically served as food.
36.
By virtue of this extensive usage in connection with so many highly
regarded products and services, the EDIBLE Marks have become widely known to
12
the general consuming public of the United States, have acquired significant
secondary meaning, and represent goodwill of enormous value.
37.
Indeed, consumer research demonstrates powerful brand recognition for the
EDIBLE Marks.
38.
The EDIBLE Marks are famous, as it is widely recognized by the general
consuming public of the United States as a designation of source of the goods and
services of Edible Arrangements, and it became famous well before Defendants’
unlawful activities complained of herein.
The 18F Defendants
39.
Defendant 1-800-Flowers.com and its subsidiaries, including but not limited
to those doing business as Harry and David, Shari’s Berries, and
FruitBouquets.com, are floral and gift retailers, best known as a delivery service
for flowers and related gifts. 1-800-Flowers.com holds itself out to the public on
its websites and in its communications with the public as “the world’s leading
florist and gift shop.”
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40.
On information and belief, 800-Flowers, Inc. provides services and takes
actions on behalf of 1-800-Flowers.com (and its affiliates), including for example,
offline and online advertising (including search engine “keyword” advertising) and
website development and maintenance.
41.
1-800-Flowers.com utilizes a network of independent entities to fulfill
orders.
42.
The 18F Defendants and their subsidiaries entered into the market for cut
fruit arrangements and have continued and expanded their cut fruit arrangement
product line, selling and promoting products directly on their websites and through
their distribution network of independent florists and franchisees/licensees.
43.
In doing so, the 18F Defendants embarked on a campaign to intentionally
imitate and infringe the EDIBLE Marks and confuse consumers into believing that
1-800-Flowers.com and its goods and network of Distributors are somehow
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which consumers access by visiting www.google.com. Through the Google site,
one can search for a particular company, product, or service, or for a type of
company product or service, by entering a query using keywords (or search terms).
Google then generates a results list based upon the keywords. Google’s results list
includes links to websites, ordered in descending relevance to the keywords
entered.
51.
The results screen also includes context-based advertising, triggered by the
keywords entered. Through the Google Adwords program, a retailer selects
keywords that it expects a consumer might enter in a search query when looking
for the types of goods or services that the retailer offers, including either broad
categories or exact words or phrases. When those keywords are entered, the
retailer’s advertisement and a link to its website appears on the searcher’s results
page. Retailers may specify that these advertisements are shown only in specific
geographic areas or regions.
52.
Other search engines, such as Microsoft’s Bing, provide similar “keyword”
advertising programs.
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53.
Upon information and belief, the 18F Defendants have selected the EDIBLE
Marks as a keyword that would trigger advertisements of its brands. Additionally,
Defendants inserted the EDIBLE Marks, and the confusingly similar mark “Edible
Fruit Arrangements,” in the body of its search engine advertisements as a
description of the goods offered, with the deliberate intention of directing
consumers and business away from Edible Arrangements.
54.
When a consumer enters the EDIBLE Marks as a search term, Defendants
infringing ads and links to the related websites appear on the results page.
55.
The use of these terms in Defendants’ advertisements
and has caused actual
confusion for Edible Arrangements’ customers leading to multiple instances where
consumers have contacted Edible Arrangements believing that they had received
goods and services from Edible Arrangements, when in fact they had done
business with the 18F Defendants (and received unsatisfactory results). This has
occurred in multiple geographic areas such as Alabama and Nebraska.
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56.
For example, in March 2020, Alicia Henrichs, an owner of three Edible
Arrangements franchises in Lincoln and Omaha, Nebraska, began receiving daily
phone calls, from multiple customers, seeking to order products listed on the
website for FruitBouquets.com.
57.
Upon information and belief, after searching for “Edible Arrangements” on
an internet search engine, these customers were presented with a sponsored
advertisement for FruitBouquets.com. After learning that FruitBouquets.com did
not deliver in the Lincoln and Omaha, Nebraska regions, these customers sought
out the telephone number of Ms. Henrichs’s stores.
58.
Upon information and belief, these customers believed that they were on the
Edible Arrangements website, when in fact they were on a website created by the
18F Defendants. Their calls to the Edible Arrangements stores demonstrated this
confusion.
59.
Plaintiffs have not consented to or acquiesced in Defendants’ use of the
EDIBLE Marks, the confusingly similar mark “Edible Fruit Arrangements,” or any
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other confusing practice.
60.
In fact, on July 31, 2019, Plaintiffs demanded that Defendants cease using
the Marks.
61.
Plaintiffs’ use of the Edible Marks has been continuous and exclusive since
long before Defendants’ first use of the Infringing Marks. The EDIBLE Marks are
also distinctive and became famous long before Defendants’ first use of the
Infringing Marks.
62.
Through its unauthorized use of the Infringing Marks, Defendants intended
to and have directed consumers and business away from Plaintiffs. Defendants
also have and continue to dilute the distinctiveness of the EDIBLE Marks.
63.
Defendants’ pattern of infringing conduct and repeated, blatant disregard for
Plaintiffs’ trademark rights establishes that Defendants use of the Infringing Marks
is deliberate and willful for the purpose of misleading and confusing the public
21
about its association with Edible Arrangements, and to trade on the goodwill,
reputation, and name of Edible Arrangements and its brand.
Count I
Trademark Infringement (Pursuant to 15 U.S.C. § 1114(1)(A))
64.
Plaintiffs incorporate and re-allege the above paragraphs 1 through 63 as if
fully alleged herein.
65.
Despite Plaintiffs’ well-known prior rights in the EDIBLE Marks,
Defendants have, without Plaintiffs’ consent, used and continue to use in
commerce the EDIBLE Marks, or counterfeits, copies, reproductions, or colorable
imitations therefor, in connection with the sale, offering for sale, distribution, and
advertising of Defendants’ goods and services.
66.
Defendants’ actions constitute willful infringement of Plaintiffs’ exclusive
rights in the EDIBLE Marks in violation of 15 U.S.C. § 1114.
22
67.
Defendants’ use of the EDIBLE Marks, counterfeits, copies, reproductions,
or colorable imitations thereof, has been and continues to be done with the intent to
cause confusion, mistake, and to deceive consumers concerning the source and/or
sponsorship of Defendants’ goods and services.
68.
As a direct and proximate result of Defendants’ conduct, Plaintiffs have
suffered irreparable harm to the valuable EDIBLE Marks. Unless Defendants are
restrained from further infringement of the EDIBLE Marks, Plaintiffs will continue
to be irreparably harmed.
69.
Plaintiffs have no adequate remedy at law that will compensate for the
continued and irreparable harm it will suffer if Defendants’ conduct is allowed to
continue.
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Count II
False Designation of Origin or Sponsorship and Unfair Competition
(Pursuant to 15 U.S.C. §1125(a))
70.
71.
Defendants have knowingly used and continue to use the EDIBLE Marks in
commerce, or counterfeits, reproductions, copies, or colorable imitations thereof,
in connection with the goods and services that the Defendant advertises, promotes,
and sells. Defendants’ actions render this case exceptional within the meaning of
15 U.S.C. § 1117(a).
72.
Defendants’ use of the EDIBLE Marks as alleged above is likely to confuse,
mislead, or deceive customers, purchasers, and members of the general public as to
the origin, source, sponsorship, or affiliation of Defendant and Plaintiff and/or
Defendants’ goods and services and Plaintiffs’ goods and services, and is likely to
24
cause such people to believe in error that Defendants’ goods and services have
been authorized, sponsored, approved, endorsed, or licensed by Plaintiffs or that
the Defendants are in some way affiliated with Plaintiffs.
73.
Defendants’ acts constitute false designations of the origin and/or
sponsorship of Defendants’ goods and unfair competition in violation of 15 U.S.C.
§ 1125(a).
74.
As a direct and proximate result of Defendant’s conduct, Plaintiffs have
suffered irreparable harm to the valuable EDIBLE Marks. Unless Defendant is
75.
continue.
25
Count III
Trademark Dilution (Pursuant to 15 U.S.C. § 1125(c))
76.
77.
The EDIBLE Marks have become famous in the United States and
worldwide as a result of its inherent and/or acquired distinctiveness, the duration
and extent of their use, the geographical extent of the trading area for these marks,
their channels of trade, their degree of recognition, and the extent of their
registration. The EDIBLE Marks were famous and distinctive prior to any use of
the Infringing Marks by Defendants.
78.
Because the Edible Arrangements goods and services have gained a
reputation for superior quality, the EDIBLE Marks have gained substantial
renown.
26
79.
Defendants have used and continue to use in commerce the EDIBLE Marks,
or counterfeits, reproductions, copies, or colorable imitations thereof, in connection
with the advertisement, promotion, and sale of Defendants’ products.
80.
Defendants’ use of the EDIBLE Marks, or counterfeits, reproductions,
copies, or colorable imitations thereof, is likely to cause, has caused, and continues
to cause irreparable injury to and dilution of the distinctive quality of the EDIBLE
Marks in violation of Plaintiffs’ rights under 15 U.S.C. § 1125(c). Defendants’
wrongful use of the EDIBLE Marks is likely to cause dilution by blurring,
tarnishment, and whittling away the distinctiveness of the famous EDIBLE Marks.
81.
Defendants have used and continue to use in commerce the EDIBLE Marks,
or counterfeits, reproductions, copies, or colorable imitations thereof, willfully and
with the intent to dilute the EDIBLE Marks, and with the intent to trade on the
reputation and goodwill of Plaintiffs.
27
82.
As a direct and proximate result of Defendants’ conduct, Plaintiffs have
suffered irreparable harm to the valuable EDIBLE Marks. Unless Defendant is
83.
continue.
COUNT IV
Fraudulent Use of Trademark (Ga. Code Ann. § 23-2-55)
84.
Plaintiffs repeat and reallege the allegations in Counterclaim paragraphs 1
through 83 above as though set forth fully herein.
85.
The 18F Defendants use of the the EDIBLE Marks and the confusingly
similar mark “Edible Fruit Arrangements” constitutes an encroachment upon
28
Edible IP and Edible Arrangements’ businesses by the use of similar trademarks,
names, and devices.
86.
The probable tendency and effect of the 18F Defendants’ use of the the
EDIBLE Marks and the confusingly similar mark “Edible Fruit Arrangements” is
to deceive the public so as to pass off the goods or business of Edible
Arrangements.
87.
The 18F Defendants intended to deceive and mislead the public by their use
of the Edible Marks.
88.
The 18F Defendants’ use of the the EDIBLE Marks and the confusingly
similar mark “Edible Fruit Arrangements” has caused, and will continue to cause,
irreparable injury to the value of Plaintiffs’ businesses, and the goodwill in and
reputation of Edible Arrangements and Edible IP’s marks. Plaintiffs will continue
to suffer irreparable injury unless the 18F Defendants’ misconduct is enjoined.
29
89.
The 18F Defendants’ use of the Edible Marks and the confusingly similar
mark “Edible Fruit Arrangements” is a fraud for which ManpowerGroup is entitled
to equitable relief.
COUNT V
Common Law Unfair Competition
90.
Plaintiffs repeat and reallege the allegations in paragraphs 1through 89
above as though set forth fully herein.
91.
The 18F Defendants’ actions described above constitute common law unfair
competition under the common law of Georgia.
92.
The 18F Defendants’ actions described above are deliberate and willful.
93.
As a result of the 18F Defendants’ actions, Plaintiffs have suffered damages
in an amount to be determined at trial.
30
94.
The 18F Defendants’ misconduct has caused, and will continue to cause,
irreparable injury to the value of Plaintiffs’ businesses, and the goodwill and
reputation associated with Edible Arrangements and Edible IP’s valuable Marks.
Plaintiffs will continue to suffer irreparable injury unless the 18F Defendants’
misconduct is enjoined.
Count VI
Deceptive Trade Practices (In Violation of O.C.G.A. § 10-1-370 et seq.)
95.
96.
The EDIBLE Marks are inherently distinctive of Edible Arrangements’
goods and services, and enjoy significant goodwill and secondary meaning in the
marketplace.
31
97.
The 18F Defendants’ use of the EDIBLE Marks in advertising and
promotional materials constitutes a deceptive trade practice in violation of the
Georgia Uniform Deceptive Trade Practices Act because such use causes a
likelihood of confusion or of misunderstanding as to the source, sponsorship,
approval, or certification of the parties’ goods and/or services.
98.
The 18F Defendants’ use of the EDIBLE Marks in advertising and
promotional materials also constitutes a deceptive trade practice in violation of the
Georgia Uniform Deceptive Trade Practices Act because such use causes a
likelihood of confusion or of misunderstanding as to the affiliation, connection, or
association with or certification by Edible IP or Edible Arrangements.
99.
The 18F Defendants’ deceptive trade practices have caused, and will
continue to cause, irreparable injury to the value of Edible Arrangements’ business
and reputation and Edible IP’s goodwill and value housed in its Marks. Plaintiffs
will continue to suffer irreparable injury unless the 18F Defendants’ misconduct is
enjoined.
32
100.
As a result of the 18F Defendants’ deceptive trade practices, Plaintiffs have
suffered damages in an amount to be determined at trial.
101.
Plaintiffs are entitled to recover their costs and attorneys’ fees because the
18F Defendants have willfully engaged in deceptive trade practices.
Count VII
102.
103.
104.
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108.
109.
Prayer for Relief
WHEREFORE, Plaintiffs respectfully request an order and judgment
against Defendants as follows:
1. A permanent injunction against Defendants enjoining them and their
subsidiaries, partners, officers, agents, servants, employees, attorneys, and
all those acting in concert with Defendant, (1) from using the Edible Marks
or any colorable imitation thereof in any keyword advertising; (2) from
using the Edible Marks or any colorable imitation thereof in any
advertisement; (3) from doing any act or thing likely to confuse or deceive
consumers into believing that there is some connection between Edible
35
Arrangements or Edible IP and the 18F Defendants or their products; and (4)
2. That Defendants be directed to file with the Court and serve upon Plaintiffs,
within thirty days after entry of final judgment, a report in writing and under
oath setting forth in detail the manner and form by which it has complied
with the provisions set forth in paragraph 1, above, pursuant to 15 U.S.C. §
1116(a);
3. That Defendants be directed to account for and pay to Plaintiffs their profits
resulting from their unlawful acts in an amount to be determined at trial;
4. That Plaintiffs recover all of the damages caused by Defendants’ wrongful
conduct in an amount to be determined at trial;
5. That Defendants be directed to pay to the Plaintiffs their attorneys’ fees
pursuant to 15 U.S.C. § 1117;
6. That Defendants be directed to pay to the Plaintiffs their attorneys’ fees
pursuant to O.C.G.A. § 13-6-11;
7. That Defendants be required to pay any punitive damages, including treble
damages, as permitted by all applicable laws;
8. That Defendants be required to pay the Plaintiffs the costs of this action and
interest pursuant to applicable law; and
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9. That the Plaintiffs be granted such other relief in law or in equity as this
Court deems just and proper.
Jury Demand
The Plaintiffs demand a trial by jury on all issues so triable.
Respectfully submitted this 4th day of June, 2020.
/s/Jason J. Carter______________________
Jason J. Carter
Ga. Bar No. 141669
Solesse L. Altman
Ga. Bar No. 442827
BONDURANT, MIXSON & ELMORE, LLP
1201 W Peachtree St NW
Suite 3900
Atlanta, GA 30309-3417
404-881-4100
[email protected]
[email protected]
Attorneys for Plaintiffs
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JS44 (Rev. 6/2017 NDGA) Case 1:20-cv-02405-SCJ Document
CIVIL COVER1-1 Filed 06/04/20 Page 1 of 2
SHEET
The JS44 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 provided by
local rules of court. This form is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)
I. (a) PLAINTIFF(S) DEFENDANT(S)

EDIBLE IP, LLC; and EDIBLE ARRANGEMENTS LLC 1-800-FLOWERS.COM, INC.; and 800-FLOWERS, INC.
(b) COUNTY OF RESIDENCE OF FIRST LISTED COUNTY OF RESIDENCE OF FIRST LISTED

PLAINTIFF Fulton DEFENDANT Gwinnett
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND
INVOLVED
(c) ATTORNEYS (FIRM NAME, ADDRESS, TELEPHONE NUMBER, AND ATTORNEYS (IF KNOWN)
E-MAIL ADDRESS)
Jason J. Carter, Esq.-Bondurant, Mixson & Elmore LLP

1201 West Peachtree Street, Suite 3900
Atlanta, Georgia 30309
(404) 881-4100
[email protected]
II. BASIS OF JURISDICTION III. CITIZENSHIP OF PRINCIPAL PARTIES

(PLACE AN “X” IN ONE BOX ONLY) (PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)
PLF DEF PLF DEF
1 U.S. GOVERNMENT ✔ 3 FEDERAL QUESTION 1 1 CITIZEN OF THIS STATE

✔ 4 4 INCORPORATED OR PRINCIPAL
PLAINTIFF (U.S. GOVERNMENT NOT A PARTY) PLACE OF BUSINESS IN THIS STATE
✔
2 U.S. GOVERNMENT 4 DIVERSITY 2 2 CITIZEN OF ANOTHER STATE 5 5 INCORPORATED AND PRINCIPAL
DEFENDANT (INDICATE CITIZENSHIP OF PARTIES PLACE OF BUSINESS IN ANOTHER STATE
IN ITEM III)
3 3 CITIZEN OR SUBJECT OF A 6 6 FOREIGN NATION
FOREIGN COUNTRY
IV. ORIGIN (PLACE AN “X “IN ONE BOX ONLY)

TRANSFERRED FROM MULTIDISTRICT APPEAL TO DISTRICT JUDGE
✔ 1 ORIGINAL 2 REMOVED FROM 3 REMANDED FROM 4 REINSTATED OR 5 ANOTHER DISTRICT 6 LITIGATION - 7 FROM MAGISTRATE JUDGE
PROCEEDING STATE COURT APPELLATE COURT REOPENED (Specify District) TRANSFER JUDGMENT
MULTIDISTRICT
8 LITIGATION -
DIRECT FILE
V. CAUSE OF ACTIONJURISDICTIONAL
(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE - DO NOT CITE
STATUTES UNLESS DIVERSITY)
28 U.S.C. Sections 1331 and 1338 and 15 U.S.C. Sections 1114, 1125(a) and 1125(c).
Defendants have repeatedly infringed on Plaintiffs' trademarks in internet advertising in a deliberate attempt to confuse
the public and damage the Edible Plaintiffs' business.
(IF COMPLEX, CHECK REASON BELOW)
1. Unusually large number of parties. 6. Problems locating or preserving evidence

2. Unusually large number of claims or defenses. 7. Pending parallel investigations or actions by government.
3. Factual issues are exceptionally complex 8. Multiple use of experts.
4. Greater than normal volume of evidence. 9. Need for discovery outside United States boundaries.
5. Extended discovery period is needed. 10. Existence of highly technical issues and proof.
CONTINUED ON REVERSE
FOR OFFICE USE ONLY
RECEIPT # AMOUNT $ APPLYING IFP MAG. JUDGE (IFP) ______________________
JUDGE MAG. JUDGE NATURE OF SUIT CAUSE OF ACTION______________________

(Referral)
Case 1:20-cv-02405-SCJ Document 1-1 Filed 06/04/20 Page 2 of 2
VI. NATURE OF SUIT (PLACE AN “X” IN ONE BOX ONLY)
CONTRACT - "0" MONTHS DISCOVERY TRACK CIVIL RIGHTS - "4" MONTHS DISCOVERY TRACK SOCIAL SECURITY - "0" MONTHS DISCOVERY
150 RECOVERY OF OVERPAYMENT & 440 OTHER CIVIL RIGHTS TRACK
ENFORCEMENT OF JUDGMENT 441 VOTING 861 HIA (1395ff)
152 RECOVERY OF DEFAULTED STUDENT 442 EMPLOYMENT 862 BLACK LUNG (923)
LOANS (Excl. Veterans) 443 HOUSING/ ACCOMMODATIONS 863 DIWC (405(g))
153 RECOVERY OF OVERPAYMENT OF 445 AMERICANS with DISABILITIES - Employment 863 DIWW (405(g))
VETERAN'S BENEFITS 446 AMERICANS with DISABILITIES - Other 864 SSID TITLE XVI
448 EDUCATION 865 RSI (405(g))
CONTRACT - "4" MONTHS DISCOVERY TRACK
110 INSURANCE FEDERAL TAX SUITS - "4" MONTHS DISCOVERY
120 MARINE IMMIGRATION - "0" MONTHS DISCOVERY TRACK TRACK
130 MILLER ACT 462 NATURALIZATION APPLICATION 870 TAXES (U.S. Plaintiff or Defendant)
140 NEGOTIABLE INSTRUMENT 465 OTHER IMMIGRATION ACTIONS 871 IRS - THIRD PARTY 26 USC 7609
151 MEDICARE ACT
160 STOCKHOLDERS' SUITS PRISONER PETITIONS - "0" MONTHS DISCOVERY OTHER STATUTES - "4" MONTHS DISCOVERY
190 OTHER CONTRACT TRACK TRACK
195 CONTRACT PRODUCT LIABILITY 463 HABEAS CORPUS- Alien Detainee 375 FALSE CLAIMS ACT
196 FRANCHISE 510 MOTIONS TO VACATE SENTENCE 376 Qui Tam 31 USC 3729(a)
530 HABEAS CORPUS 400 STATE REAPPORTIONMENT
REAL PROPERTY - "4" MONTHS DISCOVERY 535 HABEAS CORPUS DEATH PENALTY 430 BANKS AND BANKING
TRACK 540 MANDAMUS & OTHER 450 COMMERCE/ICC RATES/ETC.
210 LAND CONDEMNATION 550 CIVIL RIGHTS - Filed Pro se 460 DEPORTATION
220 FORECLOSURE 555 PRISON CONDITION(S) - Filed Pro se 470 RACKETEER INFLUENCED AND CORRUPT
230 RENT LEASE & EJECTMENT 560 CIVIL DETAINEE: CONDITIONS OF ORGANIZATIONS
240 TORTS TO LAND CONFINEMENT 480 CONSUMER CREDIT
245 TORT PRODUCT LIABILITY 490 CABLE/SATELLITE TV
290 ALL OTHER REAL PROPERTY PRISONER PETITIONS - "4" MONTHS DISCOVERY 890 OTHER STATUTORY ACTIONS
TRACK 891 AGRICULTURAL ACTS
TORTS - PERSONAL INJURY - "4" MONTHS 550 CIVIL RIGHTS - Filed by Counsel 893 ENVIRONMENTAL MATTERS
DISCOVERY TRACK 555 PRISON CONDITION(S) - Filed by Counsel 895 FREEDOM OF INFORMATION ACT
310 AIRPLANE 899 ADMINISTRATIVE PROCEDURES ACT /
315 AIRPLANE PRODUCT LIABILITY FORFEITURE/PENALTY - "4" MONTHS DISCOVERY REVIEW OR APPEAL OF AGENCY DECISION
320 ASSAULT, LIBEL & SLANDER TRACK 950 CONSTITUTIONALITY OF STATE STATUTES
330 FEDERAL EMPLOYERS' LIABILITY 625 DRUG RELATED SEIZURE OF PROPERTY
340 MARINE 21 USC 881 OTHER STATUTES - "8" MONTHS DISCOVERY
345 MARINE PRODUCT LIABILITY 690 OTHER TRACK
350 MOTOR VEHICLE 410 ANTITRUST
355 MOTOR VEHICLE PRODUCT LIABILITY LABOR - "4" MONTHS DISCOVERY TRACK 850 SECURITIES / COMMODITIES / EXCHANGE
360 OTHER PERSONAL INJURY 710 FAIR LABOR STANDARDS ACT
362 PERSONAL INJURY - MEDICAL 720 LABOR/MGMT. RELATIONS OTHER STATUTES - “0" MONTHS DISCOVERY
MALPRACTICE 740 RAILWAY LABOR ACT TRACK
365 PERSONAL INJURY - PRODUCT LIABILITY 751 FAMILY and MEDICAL LEAVE ACT 896 ARBITRATION
367 PERSONAL INJURY - HEALTH CARE/ 790 OTHER LABOR LITIGATION (Confirm / Vacate / Order / Modify)
PHARMACEUTICAL PRODUCT LIABILITY 791 EMPL. RET. INC. SECURITY ACT
368 ASBESTOS PERSONAL INJURY PRODUCT
LIABILITY PROPERTY RIGHTS - "4" MONTHS DISCOVERY
TORTS - PERSONAL PROPERTY - "4" MONTHS

TRACK
820 COPYRIGHTS
* PLEASE NOTE DISCOVERY
DISCOVERY TRACK ✔ 840 TRADEMARK TRACK FOR EACH CASE TYPE.
370 OTHER FRAUD SEE LOCAL RULE 26.3
371 TRUTH IN LENDING PROPERTY RIGHTS - "8" MONTHS DISCOVERY
380 OTHER PERSONAL PROPERTY DAMAGE TRACK
385 PROPERTY DAMAGE PRODUCT LIABILITY 830 PATENT
835 PATENT-ABBREVIATED NEW DRUG
BANKRUPTCY - "0" MONTHS DISCOVERY TRACK APPLICATIONS (ANDA) - a/k/a
422 APPEAL 28 USC 158 Hatch-Waxman cases
423 WITHDRAWAL 28 USC 157
VII. REQUESTED IN COMPLAINT:

CHECK IF CLASS ACTION UNDER F.R.Civ.P. 23 To be determined
DEMAND $_____________________________
JURY DEMAND ✔ YES NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT)
VIII. RELATED/REFILED CASE(S) IF ANY

JUDGE_______________________________ DOCKET NO._______________________
CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (CHECK APPROPRIATE BOX)
1. PROPERTY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
2. SAME ISSUE OF FACT OR ARISES OUT OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
3. VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
4. APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.
5. REPETITIVE CASES FILED BY PRO SE LITIGANTS.
6. COMPANION OR RELATED CASE TO CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED STYLE OF OTHER CASE(S)):
7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO. , WHICH WAS
DISMISSED. This case IS IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.
/s/ Jason J. Carter June 4, 2020

SIGNATURE OF ATTORNEY OF RECORD DATE

Edible IP v. 1-800-Flowers - Complaint

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Case 1:20-cv-02405-SCJ Document 1 Filed 06/04/20 Page 1 of 37

IN THE UNITED STATES DISTRICT COURT

EDIBLE IP, LLC; and EDIBLE

Plaintiffs, CIVIL ACTION

Plaintiffs Edible Arrangements LLC and Edible, IP LLC (collectively the

“Edible Plaintiffs”) have valuable intellectual property including trademarks that

Defendants 1-800-Flowers.com, Inc and 800-Flowers, Inc. (collectively the “18F

Defendants”) have repeatedly infringed on those trademarks in internet advertising

This complaint seeks redress for these wrongs.

Plaintiff Edible IP, LLC is a Connecticut limited liability company whose

of business is in Fulton County, Georgia at 980 Hammond Drive, Atlanta GA

Arrangements.” As discussed in more detail below, Edible IP licenses this

using that name.

Plaintiff Edible Arrangements LLC is a Delaware limited liability company

Defendant 1-800-Flowers.com, Inc. is a Delaware Corporation with its

Defendant 800-Flowers, Inc. is a New York corporation with its principle

Certain subsidiaries of 1-800-Flowers.com are registered to do business in

Georgia, including Flowerama of America, Inc. (“Flowerama”). On information

and they can be served by serving Flowerama’s registered agent, C T Corporation

System, 289 S Culver St, Lawrenceville, GA, 30046-4805.

Jurisdiction and Venue

U.S.C. § 1331, 28 U.S.C. § 1338(a), and 28 U.S.C. § 1367.

because Plaintiffs assert claims of trademark infringement, false designation of

1-800-Flowers.com, Inc. and 800-Flowers, Inc. are subject to personal

district, subjecting them to personal jurisdiction in this district.

Venue properly lies in this district pursuant to 28 U.S.C. § 1391(b)(1), (c)

here. Defendants regularly engage in business in this judicial district, have

Edible Arrangements Background

Edible Arrangements LLC is the successful franchisor of stores offering

regarded products are available through an extensive network of franchises

the Internet, and a handful of affiliate-owned stores.

through Edible Arrangements, LLC’s franchise system and websites.

Tariq Farid founded Edible Arrangements in what has become a famous

Then came his entrepreneurial breakthrough: Mr. Farid developed a unique

which he introduced his unique cut fruit products.

Arrangements deliveries in Georgia, and 215,000 Edible Arrangements customers

Edible Arrangements’ success has been continuously recognized by the

by Internet Retailer magazine; was 38th on Entrepreneur Magazine’s 2017

Arrangements number 128 in the list of the “Top 200 Franchises.”

Today, Edible Arrangements’ system-wide revenue exceeds half a billion

dollars annually. Edible Arrangements’ success is a direct result of its

commitment to providing a consistently high-quality and beautifully-designed

product that consumers recognize as Edible Arrangements, as well as its marketing

and promotion of the famous EDIBLE ARRANGEMENTS trademark and brand.

Edible Arrangement’s franchisees share in the commitment to consistently

deliver high-quality, beautifully designed products to consumers that are instantly

recognizable as an Edible Arrangements product offered under the famous

EDIBLE ARRANGEMENTS trademarks and brand.

Any consumer misperception or confusion as to the affiliation of Edible

Arrangements or its products with competitors or their products will irreparably

who devote significant personal resources to running their shops.

Edible IP’s Trademarks

to identify and distinguish Edible Arrangements’ goods in the marketplace.

Of significant importance to Plaintiffs and the Edible Arrangements’

franchise network is a family of trademarks and service marks comprising or

containing the terms EDIBLE or EDIBLE ARRANGEMENTS, either alone or

as the banner of quality that identifies and distinguishes Edible Arrangements’

goods and services in the marketplace.

ARRANGEMENTS” (the “EDIBLE ARRANGEMENTS Mark”).

The EDIBLE Mark, covered by Registration No. 4,319,940, is incontestable