Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 1 of 11 UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT STONY CREEK BREWERY, LLC, a Connecticut limited liability company, Plaintiff, Civ. No. : v. SHIPYARD BREWING COMPANY, LLC d/b/a PEAK ORGANIC BREWING CO., LLC, a Maine limited liability company, and PEAK ORGANIC BREWING CO., LLC, a Massachusetts limited liability company, Defendants. JUNE 6, 2018 COMPLAINT Nature of the Action 1. This is an action for trademark infringement under section 32 of the Lanham Act, 15 U.S.C. 1114; false designation of origin under the section 43(a) of the Lanham Act, 15 U.S.C. 1125(a); unfair competition under Connecticut common law; and unfair and deceptive trade practices under the Connecticut Unfair Trade Practices Act, Connecticut General Statutes 42-llOg. Jurisdiction and Venue 2. This Court has subject matter jurisdiction over this action under 15 U.S.C. 1121 and 28 U.S.C. 1331, 1338 & 1367. 3. Venue is proper in this Judicial District pursuant to 28 U.S.C. 1391. Parties 4. Stony Creek Brewery, LLC ("Stony Creek") is a Connecticut limited liability company with a business address located at 5 Indian Neck Avenue, Branford, Connecticut {N5459414}
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 2 of 11 06405. 5. Shipyard Brewing Company, LLC is a Maine limited liability company with a business address of 86 Newbury Street, Portland, Maine 04101. 6. Shipyard does business under the assumed name Peak Organic Brewing Co., LLC ("Shipyard d/b/a Peak"), and does, or has done, business under the assumed names Mighty Squirrel, Kennebunkport Brewing Company, Belfast Bay Brewery, Gritty McDuff's Brewing Co., St. John Brewers, Virgin Island, Sea Dog Brewing Co, LiveMaine, Notch Brewing Company, Bar Harbor Brewing Company, LLC, Woodstock Inn Brewery, Carrabassett Brewing Company, Casco Bay Brewing Company, Atlantic Brewing Company, LLC, Old Nutfield Brewing Company, Pugsely Brewing Co., LLC, Shipyard Brewing Company, LLC. 7. Shipyard is actively registered to do business in Connecticut with the Connecticut Secretary of State. 8. Under its own name, and its assumed names, Shipyard has regular and systematic contacts with and currently does substantial business within this District including by regularly selling and transporting beer into this District. 9. Peak Organic Brewing Co., LLC ("Peak MA") is a Massachusetts limited liability company with a business address of 110 Marginal Way #802, Portland, Maine 04101. 10. Peak MA is actively registered to do business in Connecticut with the Connecticut Secretary of State. 11. Peak MA has regular and systematic contacts with and currently does substantial business within this District including by regularly selling and transporting beer into this District. 12. Shipyard d/b/a Peak and Peak MA are collectively referred to below as "Peak." {N5459414} 2
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 3 of 11 Common Facts Stony Creek's RIPE 'N' CRANKY mark 13. Stony Creek was founded in 2010, and operates a state-of-the-art microbrewery, with a stunning indoor/outdoor taproom, game pit, and dock access, situated along the Branford River in Branford, Connecticut. 14. Since its inception, Stony Creek has worked hard to separate itself from the competition and this hard work has been largely successful, as its operations have steadily expanded, including recent plans to open a brewpub at Foxwoods Resort and Casino. 15. Stony Creek's favorable public reputation and commercial success are both well known to the consuming public and its competitors. 16. As part of its brewery operations, Stony Creek brews a menu of craft beers that are sold at its taproom and/or distributed and sold throughout New England. 17. Among its various craft beers, Stony Creek brews RIPE 'N' CRANKY, a blend of Stony Creek's CRANKY India Pale Ale and a tri-annual rotation of fresh pressed Valencia orange juice, Costa Rican pineapple juice, and Ecuadorian passion fruit juice. 18. Stony Creek's success is due to its diligence and hard work, and is also the result of its significant investment in, and use of, its portfolio of valuable intellectual property rights, including its trademarks. 19. Stony Creek uses its trademarks to provide brand identity, be source identifiers, designations of origin, and to separate and distinguish it from its competition. 20. Among its various intellectual property assets, Stony Creek is the owner of all right, title, and interest in and to the trademark RIPE 'N' CRANKY, U.S. Registration No. 5138801, for use in connection with beer. {N5459414} 3
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 4 of 11 21. Stony Creek first used the trademark RIPE 'N' CRANKY for beer in commerce in the United States on or before March 14, 2016, and has continuously used the mark since that time. 22. Stony Creek's RIPE 'N' CRANKY beer is sold in draught at its taproom and throughout New England, and is also sold in cans distributed throughout New England. 23. A picture of a pull for Stony Creek's draught RIPE 'N' CRANKY beer is displayed below: 24. A picture of cans of RIPE 'N' CRANKY beer as displayed on Stony Creek's website, http://stonycreekbeer.com/beers/ripe-cranky, is depicted below: {N5459414} 4
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 5 of 11 Defendants' Illegal Acts 25. Shipyard d/b/a Peak operates a regional craft brewery in Portland, Maine. 26. Upon information and belief, Shipyard uses the assumed name Peak Organic Brewing Co., LLC to give the commercial impression to consumers that the beers brewed and sold under the name Peak Organic Brewing Co., LLC are brewed by a microbrewery, when they are in fact brewed by the much larger regional craft brewery in Shipyard. 27. Peak MA brews and/or hires Shipyard d/b/a Peak to brew beer under the Peak Organic Brewing Co., LLC name at Shipyard d/b/a Peak's brewery. 28. Peak is wrongly and unfairly attempting to capitalize on the goodwill and reputation of Stony Creek and its valuable RIPE 'N' CRANKY mark by using a confusingly similar mark, RIPE, for a similar beer, an IP A blended with fruit juice. 29. For example, according to Peak's website, https:l/www.peakbrewing.com/ripe-1, its newest double India Pale Ale is a "juicy double IP A that is absolutely dripping with fresh-cut fruit." Peak further describes this new offer as "bold and tropical in flavor," and markets and {N5459414} 5
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 6 of 11 sells this beer using the mark RIPE. 30. A picture of a can of Peak's RIPE beer, as displayed on its website, https :/ /www. peakbrewing.com/ripe-1, is displayed below. 31. Peak has sold and transported, and continues to sell and transport, its RIPE beer in and into Connecticut where it is sold directly to consumers at retail. 32. Not only is the RIPE mark confusingly similar to Stony Creek's registered RIPE 'N' CRANKY mark, but the flavor of RIPE beer is also imitative of RIPE 'N' CRANKY beer. 33. Moreover, upon information and belief, Peak sells its RIPE brand beer illegally in Connecticut as the online records of the Connecticut Department of Consumer Protection Liquor Control Division do not reveal a liquor brand registration for RIPE beer. 34. On February 1, 2018, Stony Creek sent Peak MA a cease and desist letter, putting Peak on actual notice that its use of the mark RIPE for beer was not permitted or authorized by Stony Creek, and was likely to cause confusion, to cause mistake, or to deceive. 35. Peak refused to cease using the confusingly similar RIPE mark for beer. {N5459414} 6
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 7 of 11 Count!-Trademark Infringement (15 u.s.c. 1114) 36. Stony Creek repeats and incorporates the allegations as if set forth fully herein of paragraphs 1-30. 37. Peak's use of the RIPE mark for beer is likely to cause confusion, or to cause mistake, or to deceive, in violation of Section 32 of the Lanham Act, 15 U.S.C. 1114. 38. Upon information and belief, Peak intends to continue using the RIPE mark for beer, and such use has caused, is causing, and will continue to cause irreparable injury and damage to Stony Creek unless restrained. remedy at law. 39. Peak's infringing acts are willful and intentional. 40. As a result, Stony Creek has suffered damages, and has no adequate, complete Count 11-Unfair Competition/False Designation of Origin/False Representation (15 u.s.c. 1125) 41. Stony Creek repeats and incorporates the allegations as if set forth fully herein of paragraphs 1-30. 42. Peak's use of the RIPE mark for beer is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Peak with Stony Creek, or as to the origin, sponsorship, or approval of its goods, or commercial activities by Stony Creek, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 43. Upon information and belief, Peak intends to continue using the RIPE mark for beer, and such use has caused, is causing, and will continue to cause irreparable injury and damage to Stony Creek unless restrained. 44. Peak's infringing unfair, confusing, and deceptive acts are willful and intentional. {N5459414} 7
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 8 of 11 45. As a result, Stony Creek has suffered damages, and has no adequate, complete remedy at law. Count III-Common Law Trademark Infringement/Unfair Competition 46. Stony Creek repeats and incorporates the allegations as if set forth fully herein of paragraphs 1-30. 47. In addition to the federal registrations owned by Stony Creek, as set forth above, Stony Creek's use of the RIPE 'N' CRANKY mark for beer has created, and it now enjoys, common-law rights in the mark. 48. Peak's use of the RIPE mark for beer is unfair, confusing, and deceptive. 49. Upon information and belief, Peak intends to continue using the RIPE mark for beer, and such use has caused, is causing, and will continue to cause irreparable injury and damage to Stony Creek unless restrained. remedy at law. 50. Peak's unfair competition is willful and intentional. 51. As a result, Stony Creek has suffered damages, and has no adequate, complete Count IV-CUTPA (Conn. Gen. Stat. 42-llOg) 52. Stony Creek repeats and incorporates the allegations as if set forth fully herein of paragraphs 1-30. 53. Peak's actions, alone or in combination, constitute unfair methods of competition, unconscionable acts or practices, and/or unfair or deceptive acts or practices in violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), Connecticut General Statutes 42-llOb. 54. As a result of Peak's conduct, Stony Creek has suffered an ascertainable loss, will continue to suffer substantial harm and is entitled to the recovery of compensatory damages, {N5459414} 8
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 9 of 11 punitive damages, attorneys' fees, and costs. 55. Upon information and belief, Peak intends to continue using the RIPE mark for beer, and such use has caused, is causing, and will continue to cause irreparable injury and damage to Stony Creek unless restrained. 56. Peak's unfair trade practices are willful and intentional. 57. As a result, Stony Creek has suffered damages, and has no adequate, complete remedy at law. {N5459414} 9
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 10 of 11 Prayer for Relief WHEREFORE, Stony Creek requests that the Court enter judgment against the defendants and prays for the following relief: 1. Defendants' profits, damages, costs, and attorneys' fees to the full extent allowed by Section 35 of the Lanham Act, 15 U.S.C. 1117; 2. Money damages, punitive damages, attorneys' fees and costs pursuant to the full extent allowed by Connecticut General Statutes 42-110(g); 3. Damages for unfair and deceptive competition; 4. An order preliminarily and permanently enjoining Peak from infringing Stony Creek's RIPE 'N' CRANKY mark; 5. An order preliminarily and permanently enjoining Peak from using the RIPE mark in commerce, or any other word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Peak with Stony Creek, or as to the origin, sponsorship, or approval of Peak's goods, services, or commercial activities by Stony Creek; 6. An order enjoining Peak from engaging in further acts of unfair and deceptive competition; 7. An order enjoining Peak from engaging in further acts of unfair trade practices; 8. An order requiring Peak to provide appropriate corrective advertising; 9. Such other and further relief as the Court may deem just and proper under the circumstances. {N5459414} 10
Case 3:18-cv-00943-AWT Document 1 Filed 06/06/18 Page 11 of 11 Jury Demand Plaintiff Stony Creek Brewery, LLC hereby requests a trial by jury of any issue so triable as of right pursuant to Federal Rule of Civil Procedure 38(b). Dated: June 6, 2018 PLAINTIFF STONY CREEK BREWERY, LLC 4atiffia Lahnin Federal Bar No. ct24096 Damian K. Gunningsrnith Federal Bar No. ct29430 Carmody Torrance Sandak & Hennessey LLP 195 Church Street P.O. Box 1950 New Haven, CT 06509-1950 Tel. : (203) 777-5501 Fax: (203) 784-3199 flahnin @carmodylaw.com dgunningsrnith @carmodylaw.com {N5459414} 11