Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. Case No.

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1 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS IN-N-OUT BURGERS, v. Plaintiff, In-N-Out Cleaners LLC; and Case No. Phap Van Truong, Defendants. COMPLAINT In-N-Out Burgers, a California corporation, ( Plaintiff, In-N-Out Burgers, or IN-N- OUT ) owns the famous IN-N-OUT family of marks. Defendants, In-N-Out Cleaners and Phap Van Truong, are infringing Plaintiff s famous marks and purposefully creating a false association between Plaintiff and Defendants in order to trade on the substantial goodwill of Plaintiff. Defendants have caused actual confusion in the Wichita area and are diluting the distinctive quality of the IN-N-OUT family of marks. Plaintiff seeks an injunction, among other relief, to halt the infringement and dilution of its famous marks. Introduction 1. Plaintiff In-N-Out Burgers is a California corporation with its principal place of business in Irvine, California. 2. Defendant In-N-Out Cleaners LLC is a limited liability company organized in the State of Kansas, and its registered office is located at 110 N Rock Road, Suite 130, Wichita, Kansas Upon information and belief, 110 N Rock Road, Suite 130, Wichita, Kansas is the principal place of business for Defendant In-N-Out Cleaners.

2 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 2 of Upon information and belief, Defendant Phap Van Truong ( Truong ) is the only owner of In-N-Out Cleaners. 5. Upon information and belief, Truong is a citizen of the United States and the State of Kansas. JURISDICTION AND VENUE 6. This a civil action arising under the laws of the United States. This Court has subject matter jurisdiction pursuant to 15 U.S.C and 28 U.S.C and The Court has supplemental jurisdiction under 28 U.S.C over Counts IV- VI because those claims are so related to the claims asserted in Counts I-III that they form part of the same case or controversy. 8. Venue in this district is appropriate under 28 U.S.C. 1391(b)(1) because Defendants are residents of this judicial district within the meaning of 28 U.S.C. 1391(c)(2). FACTUAL ALLEGATIONS A. Plaintiff s Intellectual Property Rights. 9. For more than 50 years, Plaintiff has operated a successful and popular chain of quick service restaurants offering made-to-order burger sandwiches and other products and services. 10. Plaintiff has more than 225 locations in California, and over 300 locations in total throughout California, Arizona, Nevada, Utah, Texas and Oregon, and it is continuing to expand to other states. 11. Plaintiff serves and has served thousands of out-of-state customers who regularly travel to Plaintiff's locations, such that Plaintiff's customers are located throughout the United States. 2

3 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 3 of Plaintiff is also well-known through its locations in tourist and other popular areas that are extensively visited by customers from all over the United States, such as Hollywood, California, Fisherman's Wharf in San Francisco, California, Las Vegas, Nevada, and the University of Texas, Austin. 13. Since at least 1960, Plaintiff has consistently and exclusively used the mark IN-N- OUT, as well as other marks and slogans (collectively, the IN-N-OUT Marks ) in interstate commerce to identify its specially-prepared sandwiches and other products and services to consumers in its restaurants and online. 14. The IN-N-OUT Marks include: (1) a design mark featuring a yellow arrow with the name IN-N-OUT BURGER imposed thereon, wherein the name IN-N-OUT BURGER is displayed in red font; and (2) a design mark featuring a yellow arrow with the name IN-N-OUT BURGER imposed thereon, wherein the name IN-N-OUT BURGER is displayed in white font, and the design has a red background. 15. Through its restaurants, company retail stores, and online store, Plaintiff has sold and continues to sell products, including company and sponsored merchandise, and offer services under its IN-N-OUT Marks throughout the United States, including in Kansas. 16. In recognition of In-N-Out s exclusive right to use the IN-N-OUT Marks, the United States Patent and Trademark Office ( USPTO ) has granted In-N-Out numerous trademark registrations including those summarized in the table below (the registered marks identified below are included among the IN-N-OUT Marks): WORDS REG. NO. REG. DATE GOODS DESCRIPTION IN 'N' OUT RETAIL GROCERY STORE /29/1972 SERVICES IN-N-OUT 1,085,163 2/7/1978 CARRY-OUT RESTAURANT SERVICES 3

4 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 4 of 19 MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF IN-N-OUT 1,522,799 1/31/1988 HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS CARRY-OUT RESTAURANT SERVICES. MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF IN-N-OUT *shading denotes the colors red and yellow 1,525,982 2/21/1989 HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS IN-N-OUT 1,101,638 9/5/1978 IN-N-OUT 1,101,628 9/5/1978 IN-N-OUT 2,217,307 1/12/1999 CARRY-OUT RESTAURANT SERVICES. CHEESEBURGERS, HAMBURGERS, HOT COFFEE AND MILKSHAKES PREMISES. MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF LEMONADE AND SOFT DRINKS WATCHES. 4

5 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 5 of 19 DECALS IN THE NATURE OF BUMPER STICKERS; PUBLICATIONS IN THE NATURE OF HOUSE ORGANS; GIFT CERTIFICATES. BACKPACKS. COFFEE MUGS AND THERMAL MUGS. IN-N-OUT 2,285,823 11/12/1999 IN & OUT 1,780,587 7/6/1993 IN-N-OUT BURGER 1,031,095 1/20/1976 IN-N-OUT BURGER IN-N-OUT BURGER 1,031,096 1/20/1976 SHIRTS, BASEBALL CAPS, LETTERMAN'S JACKETS, AND COOKS APRONS. COMPUTER SERVICES, NAMELY, PROVIDING DATA BASES IN THE FIELD OF RESTAURANT SERVICES AND IN THE FIELD OF RETAIL AND MAIL ORDER MERCHANDISING SERVICES. MOTOR VEHICLE BODY REPAIRING AND PAINTING. CHEESEBURGERS, HAMBURGERS, FRENCH FRIED POTATOES, HOT COFFEE, AND MILK, [ HOT CHOCOLATE ]. CARRY-OUT RESTAURANT SERVICES CHEESEBURGERS, HAMBURGERS, FRENCH FRIED POTATOES, HOT COFFEE, * and * MILK [, AND HOT CHOCOLATE ]. CARRY-OUT RESTAURANT SERVICES. 1,023,506 10/21/1975 CARRYOUT RESTAURANT SERVICES. 5

6 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 6 of 19 IN-N-OUT BURGER *shading denotes the colors red and yellow IN-N-OUT BURGER IN-N-OUT BURGER 1,528,455 3/7/1989 1,539,451 5/16/1989 1,528,456 3/7/1989 MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS CARRY-OUT RESTAURANT SERVICES. MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS CARRY-OUT RESTAURANT SERVICES. MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS 6

7 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 7 of 19 IN-N-OUT BURGER *shading denotes the colors red and yellow IN-N-OUT BURGER 1,516,560 12/13/1988 CARRY-OUT RESTAURANT SERVICES. MILK AND FRENCH FRIED POTATOES FOR CONSUMPTION ON OR OFF HAMBURGER SANDWICHES AND CHEESEBURGER SANDWICHES, HOT COFFEE, AND MILKSHAKES LEMONADE AND SOFT DRINKS CARRY-OUT RESTAURANT SERVICES. 2,026,720 12/31/1996 hamburger and cheeseburger sandwiches for consumption on and off the premises. IN-N-OUT BURGER 3,367,471 1/15/2008 Financial sponsorship of race cars and race car drivers. The collection of IN-N-OUT Marks is attached as Exhibit A. 17. The IN-N-OUT Marks, along with Plaintiff s dozens of other registered federal trademarks, have been used in commerce, including in interstate commerce, to identify and distinguish Plaintiff s products and services since at least as early as 1948 and to serve as symbols of Plaintiff s quality, reputation, and goodwill. 7

8 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 8 of The IN-N-OUT Marks are strong, arbitrary marks that warrant broad protection in both related and unrelated product and service classes. 19. Plaintiff has invested millions of dollars in advertising its IN-N-OUT Marks in the United States in an effort to create a strong association between Plaintiff s products and services, goodwill, and its IN-N-OUT Marks. 20. Additionally, as a result of the care and skill exercised by Plaintiff in the conduct of its business, the high quality of the products and services offered under its IN-N-OUT Marks, and the extensive advertising, sale, and promotion of products and services bearing its IN-N-OUT Marks, its IN-N-OUT Marks have acquired additional goodwill and secondary meaning in the United States. 21. The IN-N-OUT Marks have received widespread public recognition and unsolicited media coverage throughout the U.S. for Plaintiff s cleanliness, food quality, and customer service, wherein Plaintiff has been featured in many significant national publications, television shows, and consumer and industry reports. 22. The IN-N-OUT Marks have been promoted and featured in-depth in many significant national publications and national radio and television programs, including the New York Times, Newsday, Daily News, the New York Post, the Washington Post, USA Today, the Tonight Show, American Public Media s Marketplace radio show, and Fox News. IN-N-OUT was also the subject of a recent book publication, In-N-Out Burger: A Behind-the-Counter Look at the Fast-Food Chain That Breaks All the Rules, by Stacy Perman, that was a Best Seller in The New York Times. 23. IN-N-OUT has received widespread public recognition on the Internet. Websites such as HuffingtonPost.com and SeriousEats.com have posted unsolicited, nationwide coverage 8

9 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 9 of 19 of IN-N-OUT. In-N-Out Burger s official Facebook page, which displays the IN-N-OUT Marks and IN-N-OUT s iconic trade dress, has more than three million fans. 24. IN-N-OUT has consistently and repeatedly won national awards. In 2008, IN-N- OUT won the Sandelman & Associates 2008 Quick-Track Awards of Excellence. In 2009, IN-N- OUT won the Zagat s survey award for the nation s best fast-food burger and was second in the same category in The Zagat 2010 survey also recognized IN-N-OUT as one of the top five large fast food chains. Consumer Reports ranked IN-N-OUT as one of the top fast-food restaurants for quality and customer satisfaction based on a customer survey in Internationally-recognized celebrity chefs such as Gordon Ramsey, Thomas Keller, Anthony Bourdain, and Mario Batali have publicly stated their affection for IN-N-OUT. IN-N- OUT has also been featured repeatedly in Nation s Restaurant News magazine. 26. As a result of the care and skill exercised by IN-N-OUT in the conduct of its business, the high quality of IN-N-OUT s products offered under the IN-N-OUT Marks, the unique nature of the IN-N-OUT Marks, and the extensive sale, promotion and unsolicited media coverage of IN-N-OUT s products and services including the same, the IN-N-OUT Marks are famous marks. 27. The IN-N-OUT Marks identify IN-N-OUT s popular products as those of IN-N- OUT exclusively, and distinguish them from the products of others. The distinctive IN-N-OUT Marks are well known and symbolize the goodwill that IN-N-OUT has created in offering its products and services. 28. Since at least the date of first use of each of the IN-N-OUT Marks, Plaintiff has manifested its intent to maintain exclusive ownership of the IN-N-OUT Marks and to continue use of the IN-N-OUT Marks in interstate commerce in connection with Plaintiff s products and services. 9

10 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 10 of Plaintiff has carefully monitored and policed the use of the IN-N-OUT Marks and maintains tight control over their use. 30. Due to the marketing and policing efforts of IN-N-OUT as well as the unsolicited national media coverage of IN-N-OUT and its goods and services, numerous consumers residing in Wichita, Kansas recognize the IN-N-OUT Marks as identifying Plaintiff and its goods and services. B. Defendants Infringing Activities. 31. Upon information and belief, Defendant In-N-Out Cleaners has operated at 110 N. Rock Rd., Suite #130, Wichita, Kansas since approximately September Upon information and belief, Defendant Truong is the only owner of Defendant In- N-Out Cleaners, and Truong personally makes all business decisions, including choosing the name and advertising for Defendant In-N-Out Cleaners. 33. Upon information and belief, Defendants operate a business providing dry cleaning services. 34. Defendants have adopted Plaintiff s famous mark, IN-N-OUT, to identify their retail dry cleaning operation. 35. Defendants advertise via Facebook. A printout of Defendants Facebook page is attached as Exhibit B. 36. Defendants adopted two logos that closely resemble the IN-N-OUT Marks. See Ex. B (photographs posted on Defendant In-N-Out Cleaners Facebook pages depicting its location at 110 N. Rock Rd., Suite #130, Wichita, Kansas with a sign using Defendants logo and various posts containing the logos.) 10

11 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 11 of The Defendants logos and IN-N-OUT s logos are displayed below for comparison: 38. Similar to the IN-N-OUT Marks, the Defendants logos use the words IN-N-OUT on the first line in larger type than the word CLEANERS on the second line, and the focus of each logo is the words IN-N-OUT in all capital letters. 39. The Defendants also use the same combination of red and yellow in the same manner as the IN-N-OUT Marks. 40. The Defendants logos use the same font as the IN-N-OUT Marks. 41. Defendants advertise via Facebook and display their logos repeatedly on Facebook. See Ex. B. 42. In late December or early January, Defendants added a new banner in front of 110 N. Rock Rd., Suite #130, Wichita, Kansas using the same logo. See below and Exhibit C (photograph sent to IN-N-OUT by a consumer). 11

12 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 12 of 19 C. Instances of Confusion. 43. On September 1, 2016, multiple consumers contacted Plaintiff to report a dry cleaner that is using [Plaintiff s] logo as their own and sending pictures of Defendants infringing logo. 44. On October 17, 2016, another consumer sent Plaintiff a photograph of Defendant s business and noted the copying of the IN-N-OUT Marks. 45. On October 22, 2016, two consumers posted comments on Defendants Facebook page noting that from far away they thought Defendants sign was a sign for In-N-Out Burger and were disappointed when it turned out not to be the hoped for In-N-Out Burger restaurant. See Exhibit B at p On December 10, 2016, a consumer ed Plaintiff to report an offer he received on Dealsaver.com from IN-N-OUT Cleaners. After following the link he saw that the logo being used by the cleaners was a copy of the IN-N-OUT Marks. 47. On January 9, 2017, another consumer sent Plaintiff the picture below identifying that someone stole [Plaintiff s] trade marked [sic] logo. See Ex. C. 48. Defendants use of Plaintiff s font, color scheme, and name is not accidental. 49. Defendants purposefully copied Plaintiff s trademarked font, colors, and name. 12

13 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 13 of Defendant intended to create the confusion that is actually occurring to promote their own business by implying a connection to Plaintiff s business. 51. Defendants have willfully and intentionally copied Plaintiff s trademarks for the purpose of trading on the goodwill and reputation of Plaintiff. COUNT I TRADEMARK INFRINGEMENT 15 U.S.C Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 51 of this Complaint as if fully set forth herein. 53. Plaintiff exclusively owns the IN-N-OUT Marks. 54. Plaintiff has used the IN-N-OUT Marks in interstate commerce in connection with the advertising and promotion of its restaurant products and services along with other goods and services including clothing, apparel, blankets, towels, hats, and backpacks. 55. Defendants are using the IN-N-OUT Marks without Plaintiff s authorization. 56. Defendants use of the IN-N-OUT Marks and confusingly similar variations thereof without Plaintiff s authorization has caused actual confusion in the marketplace. 57. Defendants are using the IN-N-OUT Marks and confusingly similar variations thereof to promote their services of cleaning clothing and apparel, which is related to Plaintiff s use of the IN-N-OUT Marks for promoting and selling clothing and apparel and the other aforementioned goods. 58. By the aforesaid acts, Defendants have infringed upon Plaintiff s federal trademark rights described by its trademark registrations, in violation of section 32 of the Lanham Act, 15 U.S.C Defendants acts have been willful and in conscious disregard of Plaintiff s trademark rights. 13

14 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 14 of Plaintiff has suffered, is suffering, and will continue to suffer irreparable injury for which Plaintiff has no adequate remedy at law. 61. Plaintiff is entitled to a preliminary injunction to be made permanent upon entry of final judgment, preventing Defendants further infringement. COUNT II TRADEMARK DILUTION 15 U.S.C. 1125(c) 62. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 61 of this Complaint as if fully set forth herein. 63. The IN-N-OUT Marks are famous and distinctive in the United States as that term is used in 43(c) of the Lanham Act, 15 U.S.C. 1125(c). 64. Plaintiff has taken reasonable steps to preserve the integrity and image of the IN- N-OUT Marks, including carefully monitoring and policing the use of the IN-N-OUT Marks and maintaining tight control over the use of the IN-N-OUT Marks. 65. Defendants are using marks that will cause dilution of the distinctive quality of the IN-N-OUT Marks and that will lessen the capacity of the IN-N-OUT Marks to identify and distinguish In-N-Out s goods and services in violation of 15 U.S.C. 1125(c). 66. Defendants use of such marks was subsequent to the IN-N-OUT Marks becoming famous. 67. In-N-Out has suffered, is suffering, and will continue to suffer irreparable injury for which In-N-Out has no adequate remedy at law. 68. In-N-Out is entitled to a preliminary injunction to be made permanent upon entry of final judgment, preventing Defendants further infringement. COUNT III FEDERAL UNFAIR COMPETITION 15 U.S.C. 1125(a) 69. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 68 of this Complaint as if fully set forth herein. 14

15 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 15 of Defendants intentional commercial use of Plaintiff s IN-N-OUT Marks constitutes a false designation of origin, a false or misleading description of fact, and a false or misleading representation of fact, and has caused and is likely to continue to cause confusion, mistake, and deception as to the following: a. the affiliation, connection, or association of In-N-Out Cleaners with Plaintiff; b. the origin, sponsorship, or approval of In-N-Out Cleaners by Plaintiff; and c. the nature, characteristics, or qualities of Defendants business that renders services using Plaintiff s IN-N-OUT Marks. 71. The aforesaid acts constitute federal unfair competition in violation of 15 U.S.C. 1125(a). 72. The aforesaid acts have caused and will continue to cause Plaintiff to suffer irreparable injuries to its reputation and good will. Plaintiff does not have an adequate remedy at law to recover for this harm, and therefore, Plaintiff is entitled to injunctive relief. COUNT IV COMMON LAW UNFAIR COMPETITION 73. Plaintiffs incorporate by reference the allegations contained in paragraphs 1 through 73 of this Complaint as if fully set forth herein. 74. Plaintiff owns and enjoys rights in the IN-N-OUT Marks throughout the United States, including Kansas and California. 75. Plaintiff has used the IN-N-OUT Marks in intra and interstate commerce in connection with the advertising and promotion of its restaurant products and services and the sale of clothing and apparel. 76. Through Plaintiff s use of its IN-N-OUT Marks, they have achieved secondary meaning and are recognized by the public as inextricably connected to Plaintiff. 15

16 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 16 of Defendants have used and continue to use the name IN-N-OUT and infringing logos, which are direct copies and/or colorable imitations of the IN-N-OUT Marks, in commerce, including in interstate commerce, in connection with the operations of their business in Kansas. 78. Defendants unauthorized use of and colorable imitations of the IN-N-OUT Marks has caused, and will likely continue to cause, confusion in the Wichita area. 79. Defendants' unauthorized use of and colorable imitations of the IN-N-OUT Marks constitutes false designation of origin, false or misleading description of fact, and false or misleading representation of fact, and has caused and is likely to continue to cause confusion, mistake, and deception as to the following: a. the affiliation, connection or association of IN-N-OUT Cleaners with Plaintiff; b. the origin, sponsorship, or approval of IN-N-OUT Cleaners by Plaintiff; and/or c. the nature, characteristics, or qualities of Defendants' business that renders services using the IN-N-OUT Marks. 80. Defendants' intentional commercial use of the IN-N-OUT Marks is nonfunctional and serves no purpose other than identification. 81. Defendants' false designations, descriptions, and representations were made deliberately and with knowledge of their falsity. 82. Defendants have acted in bad faith and willfully in adopting and using the IN-N-OUT Marks in an effort to reap the benefits associated with the IN-N-OUT Marks. 83. Defendants infringing acts have caused, and will continue to cause, Plaintiff to suffer irreparable injuries to its reputation and good-will. Plaintiff does not have an adequate remedy at law to recover for this harm, and therefore Plaintiff is entitled to injunctive relief. 16

17 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 17 of 19 COUNT V COMMON LAW TRADEMARK INFRINGEMENT 84. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 83 of this Complaint as if fully set forth herein. 85. The Defendants acts constitute trademark infringement under the common laws of the State of Kansas. 86. Defendants acts of trademark infringement entitle Plaintiff to recover its damages and costs of this action, together with an accounting of profits made by Defendants business and services. 87. The acts of Defendants have been malicious and calculated to injure Plaintiff. 88. The willful, wanton and malicious nature of Defendants conduct entitles Plaintiff to an award of its reasonable attorneys fees and punitive damages. 89. Defendants infringement of the IN-N-OUT Marks is causing irreparable injury to Plaintiff s goodwill, and unless enjoined by this Court, will continue to do so. 90. Further, Plaintiff may not have an adequate legal remedy in the event money damages cannot properly be calculated. 91. Under the common laws of the State of Kansas, Plaintiff is entitled to preliminary and permanent injunctive relief to prevent Defendants continuing trademark infringement. COUNT VI COMMON LAW DILUTION OF A DISTINCTIVE MARK 92. Plaintiff incorporates by reference the allegations contained in paragraphs 1 through 91 of this Complaint as if fully set forth herein. 93. Defendants acts constitute dilution of the distinctive quality of the IN-N-OUT Marks and are intended to undermine the uniqueness and distinctiveness of the IN-N-OUT Marks, constituting trademark dilution under the common laws of the State of Kansas. 17

18 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 18 of Defendants acts of trademark dilution entitle Plaintiff to recover its damages and costs of this action, together with an accounting of profits made by Defendants business and services. 95. The acts of Defendants have been malicious and calculated to injure Plaintiff. 96. The willful, wanton and malicious nature of Defendants conduct entitles Plaintiff to an award of its reasonable attorneys fees and punitive damages. 97. Defendants dilution of the IN-N-OUT Marks is causing irreparable injury to Plaintiff s goodwill, and unless enjoined by this Court, will continue to do so. 98. Further, Plaintiff may not have an adequate legal remedy in the event money damages cannot properly be calculated. 99. Under the common laws of the State of Kansas, Plaintiff is entitled to preliminary and permanent injunctive relief to prevent Defendants continuing trademark dilution. REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court enter judgment in favor of the Plaintiff and against Defendants: 1. Declaring that Plaintiff owns valid and subsisting trademarks; 2. Declaring that the IN-N-OUT Marks are famous; 3. For an order that Defendants be preliminarily and permanently enjoined and restrained from unlawfully using the words IN and OUT in any combination to describe a business; 4. For an order requiring Defendants to deliver for destruction any and all signs or other advertising material that use the words IN-N-OUT; 5. For an order requiring Defendants to remove all mentions of IN-N-OUT from their Facebook page, including the username; 18

19 Case 2:17-cv CM-TJJ Document 1 Filed 02/06/17 Page 19 of An order requiring Defendants to cancel all and licenses for businesses, trade names, fictitious names and any others containing any combination of the words In and Out ; 7. Awarding Plaintiff damages, including, inter alia, disgorged profits or a reasonable royalty, and punitive damages, in an amount to be proven at trial, together with prejudgment interest and trebled pursuant to 15 U.S.C. 1117(b); 8. For Plaintiff s attorneys fees; 9. For Plaintiff s costs in this suit; and 10. For such other relief as this Court may deem necessary or appropriate. DEMAND FOR TRIAL BY JURY Pursuant to FED. R. CIV. P. 38(b)(1), Vanguard demands trial by jury on all issues so triable. Dated this 6 th day of February KUTAK ROCK LLP By: s/sara Gillette Marcellus Chase pro hac pending Sara Gillette KS Bar # Main Street, Suite 800 Kansas City, MO Telephone: (816) Facsimile: (816) Marcellus.Chase@KutakRock.com Sara.Gillette@KutakRock.com Richard A. Olmstead KS Bar #19946 Omni Center IV 111 S. Whittier, Suite 110 Wichita, KS Telephone: (816) Facsimile: (816) Richard.Olmstead@KutakRock.com ATTORNEYS FOR PLAINTIFFS 19