Poopourri Lawsuit 2b415v

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SCENTSIBLE, LLC d/b/a POO~POURRI Plaintiff, v. RECKITT BENCKISER LLC

Defendant

§ § § § § § § § § § §

CIVIL ACTION NO. ______________ JURY TRIAL DEMANDED

PLAINTIFF’S ORIGINAL COMPLAINT COMES NOW, Plaintiff Scentsible, LLC d/b/a Poo~Pourri (“Poo~Pourri”) files its Original Complaint against Reckitt Benckiser LLC (“Defendant”). PRELIMINARY STATEMENT Poo~Pourri is an industry leading creator of a toilet deodorizing line of products (the “Poo~Pourri Products”).

Poo~Pourri recently learned that Defendant has introduced a

competing product – V.I.Poo – and markets it using confusingly similar trademarks and trade dress. Worse, Defendant slavishly copied Poo~Pourri’s copyrighted advertising materials, including its famous “Girls Don’t Poop” video, which was released in 2013, and has now been viewed over 36 million times on YouTube. Defendant, a distant number two in this market, hopes to capitalize on Poo~Pourri’s hard earned success. Such blatant copying of Poo~Pourri’s trademarks, trade dress, and advertising materials constitutes unfair competition, ing off, trademark infringement, and dilution in violation of the LANHAM ACT and Texas law. Defendant’s reproduction and distribution of Poo~Pourri’s copyrighted works constitutes copyright infringement in violation of Sections 106 and 501 of the COPYRIGHT ACT.

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PARTIES 1.

Plaintiff Poo~Pourri is a limited liability company organized under the laws of the

State of Texas with its principal place of business at 4901 Keller Springs, Suite 106D, Addison, Texas, 75001. 2.

Defendant Reckitt Benckiser LLC is a limited liability company organized under

the laws of Delaware with its principal place of business at 399 Interpace Parkway, Parsippany, New Jersey, 07054. Defendant may be served by service upon its ed agent for service of process, Corporation Service Company d/b/a CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218. JURISDICTION AND VENUE 4.

This action arises under the Trademark Laws of the United States, 15 U.S.C. §§

1051, et seq, and under the COPYRIGHT ACT, 17 U.S.C. §§ 101, et seq. Accordingly, this Court has federal question jurisdiction over the subject matter of this action under 28 U.S.C. §§ 1331, 1338(a), and 1338(b), and 15 U.S.C. § 1121 for the claims arising under the LANHAM ACT and COPYRIGHT ACT. The Court has original jurisdiction over the state law claims in this action under 28 U.S.C. § 1367(a) and the principles of supplemental jurisdiction. 5.

This Court has personal jurisdiction over Defendant. Defendant is licensed to do

business and in fact does substantial business in Texas. Venue is proper under 28 U.S.C. §§ 1391(b) and (c). FACTS 6.

Poo~Pourri is an award winning innovator in the toilet deodorizing industry. In

2006, the founder, Suzanne (Suzy) Batiz, invented her first toilet deodorizing product, in what came to be called the Poo~Pourri line of products, in her kitchen (the “Poo~Pourri Products”).

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She developed a proprietary formula made up of a blend of essential oils that creates a protective barrier or film on the water's surface. This barrier is designed to keep unpleasant bathroom odors from coming into with the air. Ms. Batiz developed unique and never-before used means to demonstrate how her products worked – she partially filled a clear bowl with water and sprayed the product in so the viewer could actually see how the barrier was created and thus how her product worked (the “Clear Bowl Test”). She incorporated this into her first presentation to the home shopping network QVC in 2007. This unique method is but one part of her commercial presentation of Poo~Pourri Products by which consumers identify the products as emanating from Poo~Pourri. 7.

In addition to the Clear Bowl Test, Poo~Pourri’s copyrighted ments

include various animated demonstrations of this concept. The first of these images, shown below, depicts a cut-away of a toilet, a spray bottle representing the Product, and the spray from the bottle forming a protective layer on the surface of the water in the toilet. The second of these images depicts how this protective layer prevents the waste in the toilet – and the odors – from penetrating the layer. The protective layer – depicted on the surface of the water – keeps the air above it fresh, which is typically shown by flowers, leaves, and other brightly colored images above the surface of the water.

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These illustrations are original works created by Poo~Pourri at significant time

and expense and are protected under the federal COPYRIGHT ACT. Poo~Pourri has ed these illustrations with the U.S. Copyright Office. See U.S. Registration No. VA-1-961-389 (“Spritz Poo 4”), effective date of Registration May 12, 2015; U.S. Registration No. VA-1-961390 (“Spritz Poo 2”), effective date of Registration May 12, 2015; U.S. Registration No. VA-1961-391 (“Spritz Poo 1”), effective date of Registration May 12, 2015. 9.

In addition, Poo~Pourri has incorporated similar illustrations in a highly

distinctive and popular commercial ment called “Girls Don’t Poop.” The “Girls Don’t Poop”

video

ment

may

be

found

at

the

following

web

address:

https://www.youtube.com/watch?v=ZKLnhuzh9uY. The release of this video initially brought over 6 million viewers to Poo~Pourri’s website in a day, and has now been viewed over 36 million times on YouTube. Poo~Pourri ed the “Girls Don’t Poop” video with the U.S. Copyright Office.

See U.S. Registration No. PA-1-867-648, effective date of Registration

October 28, 2013 (together with the copyrighted works identified above, the “Poo~Pourri Advertising”). 10.

This “Girls Don’t Poop” video, like the other copyrighted ments

identified above, includes an animation demonstrating how the Poo~Pourri Products work. The first slide of this animation shows a cut-away of a toilet, the spray of the bottle in the water, and the formation of a protective layer on the surface of the water. The second slide shows a lump of PLAINTIFF’S ORIGINAL COMPLAINT 4849-1921-2846

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waste below the protective layer on the surface of the water, a foul smell emanating from the waste, which is depicted by cartoonish odor lines, a number of skull-and-cross-bones, and radiation symbols. The third slide of the animation shows the same lump of waste falling into the water, the protective layer blocking the odors, and the release of a burst of pleasant aromas from the surface of the water, depicted by an animated number of yellow, green, and red flowers and leaves above the surface of the toilet. The video ends by offering an “Unconditional Stink Free Guarantee,” which is shown on the screen as the spokeswoman, a woman with a British accent, presents the brightly colored, yellow bottle to the camera. 11.

In addition to these copyrighted works, Poo~Pourri is the owner of a number of

federally ed trademarks, including KING OF THE THRONE, U.S. Registration No. 4286033; LOO POURRI, U.S. Registration No. 3962564; POO POURRI, U.S. Registration No. 3428805; POO POURRI KING OF THE THRONE, U.S. Registration No. 4426602; POO POURRI QUEEN OF THE THRONE, U.S. Registration No. 4426603; QUEEN OF THE THRONE, U.S. Registration No. 4286039; ROYAL FLUSH, U.S. Registration No. 3675070; SPRAY THE LOO BEFORE NO. 2 AND NO ONE WILL EVER HAVE A CLUE, U.S. Registration No. 4438852; WHEN THE GLASSES CLINK, DON’T RUIN THE PARTY WITH A STINK, U.S. Registration No. 4539946; and, the POO-POURRI Design Marks, U.S. Registration No. 3576912 and U.S. Registration No. 3678445 (collectively, the “Poo~Pourri Marks”). 12.

Poo~Pourri uses the Poo~Pourri Marks and Advertising in connection with a

highly distinctive trade dress, characterized by its use of brightly colored bottles, lemons and other citrus fruit, the baroque design of its product labels, and its use of scatological humor on its product labels, website, and its advertising materials.

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The product labels, for example,

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prominently feature a toilet surrounded by baroque garland and a cherub; and the Poo~Pourri Marks and humorous taglines are typically displayed on scrolls of toilet paper both above and below the toilet found in the center of the label. Poo~Pourri’s website carries these same elements, and prominently features lemons and other citrus fruit to convey the impression of fresh scents. Poo~Pourri has used these elements and other elements in connection with the marketing and sale of its products for years, and they have acquired distinctiveness, and are strongly recognized among consumers as indicating the source of these products (the “Poo~Pourri Trade Dress”). 13.

The Poo~Pourri Marks, Poo~Pourri Advertising, and Poo~Pourri Trade Dress are

famous, well-recognized, non-functional, inherently distinctive and/or have acquired distinctiveness long prior to Defendant’s use and entrance into the market in connection with its competing products.

The goodwill associated with the Poo~Pourri Marks, Poo~Pourri

Advertising, and Poo~Pourri Trade Dress are valuable assets to Poo~Pourri. Poo~Pourri has expended great effort and considerable resources in promoting its Products using the Poo~Pourri Marks, Advertising, and Trade Dress. 14.

As a result of this widespread and continuous use and promotion, the Poo~Pourri

Marks, Advertising, and Trade Dress have become widely associated with Poo~Pourri; the Poo~Pourri Marks, Advertising, and Trade Dress identify Poo~Pourri as the source of the goods offered and represent the valuable goodwill of Poo~Pourri among of the relevant consuming public.

Indeed, fourteen of Poo-Pourri's award-winning products have been

recognized by the Good Housekeeping Institute earning the internationally respected Good Housekeeping Seal. Since 1909, this designation has given consumers peace of mind as a

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testament to a product's quality and is awarded only to goods that have ed rigorous review and laboratory testing. 15.

On November 9, 2015, Defendant filed an application with the United States

Patent and Trademark Office to the mark V.I.POO, Serial No. 86/813,962, in International Classes 3 and 5, for among other things, air freshening preparations and toilet bowl deodorizers. On February 3, 2016, Defendant filed additional applications with the United States Patent and Trademark Office to the following trademarks: (a) KING LEMON, Serial No. 86/895,619; (b) PRINCESS ROSE, Serial No. 86/895,634; (c) PRINCE OF MINT, Serial No. 86/895,644; and (d) QUEEN OF FRUITS, Serial No. 86/895,603. 16.

In February 2016, Poo~Pourri discovered that Defendant created, reproduced, and

published online videos for these products (the “Infringing ments”). These videos, which are available in English, French, and Dutch, may be found on YouTube at the following web addresses: https://www.youtube.com/watch?v=eN0X4hEx1HQ; https://www.youtube.com/watch?v=1QaSBuqn0bU; https://www.youtube.com/watch?v=_VMuuGCg1iE; https://www.youtube.com/watch?v=kaLePyEkZB0 17.

The Infringing ments mimic Poo~Pourri’s “Girls Don’t Poop” video,

and copy a number of expressive elements found in Poo~Pourri’s ments. Among other things, the Infringing ments slavishly copy the series of animated charts in the Poo~Pourri ments. For example, and as shown below, the Infringing ments contain an animated series of charts showing three lumps of waste in a cut-away toilet bowl. When animated, these charts show the waste, cartoonish lines depicting odor from the waste, the

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protective layer blocking the foul odor, all followed by an animated series of yellow lemons and green leaves emanating from the toilet.

This same animated series, of course, appears in the Poo~Pourri’s “Girls Don’t Poop” video, as well as the other copyrighted works:

18.

In addition, Defendants incorporated the following additional expressive elements

into the Infringing ments, all of which are likely to cause confusion regarding the source or affiliation of Defendant with Poo~Pourri: Poo~Pourri offers an “Unconditional Stink Free Guarantee,” and stamps those words on-screen in its “Girls Don’t Poop” video in the same frame of as an image of the bottle. Defendant offers an “Odor Free Guarantee,” and like Poo~Pourri, stamps the guarantee on-screen in the same frame as its product. 19.

In the video, Defendant also uses a brightly colored yellow bottle with baroque

design characteristics on the label and in the ment. The label for Defendant’s product

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features a toilet bowl, surrounded by a garland of toilet paper, similar to the toilet paper featured on Poo~Pourri’s products.

And like the “Girls Don’t Poop” video, the Infringing

ments feature an attractive, female spokesperson with an English accent. 20.

Defendant even incorporates cherubs into the Infringing ment,

mimicking Poo~Pourri’s product label and its design marks. For example, the first series of frames in the Infringing ment take place in an ornate bathroom with a cherub sculpture just above the toilet, which is similar to the design on Poo~Pourri’s product label:

Later in the Infringing ment, and as shown above, appear a number of animated lemons. Finally, both Poo~Pourri’s product labels and “Girls Don’t Poop” video as well as the Infringing ments use scatological humor and rhyming catch phrases to catch the consumer’s attention. 21.

Upon information and belief, Defendant is aware of Poo~Pourri’s Marks,

ments, and Trade Dress, and is specifically aware of Poo~Pourri’s famous “Girls Don’t Poop” video.

Upon review of the Infringing ments and its further investigation,

Poo~Pourri is informed and believes that Defendant reproduced and used Poo~Pourri’s “Girls Don’t Poop” ment to introduce and market its own product, V.I.Poo, to various retailers. Upon information and belief, Defendant intentionally copied various expressive elements of Poo~Pourri’s “Girls Don’t Poop” ment to create its own Infringing ments.

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Defendant’s use of the Poo~Pourri Marks, Advertising, and Trade Dress in the

Infringing ments and on its product labels is likely to confuse consumers into believing that its products are made by, sponsored by, connected with, endorsed by or otherwise d with Poo~Pourri. Further, Defendant’s use of the Poo~Pourri Marks, Advertising, and Trade Dress dilutes the strength of Poo~Pourri’s famous, widely recognized, and distinctive Marks, Advertising and Trade Dress. This use will substantially harm Poo~Pourri’s reputation for quality products. Defendant’s willful and deceitful acts have and will continue to cause irreparable harm to Poo~Pourri and its Poo~Pourri Marks. COUNT ONE ING OFF UNDER THE LANHAM ACT 23.

Poo~Pourri re-alleges and incorporates by reference all of the foregoing

allegations. Defendant’s conduct described above constitutes federal ing off under the LANHAM ACT, 15 U.S.C. §1125(a)(1). 24.

Defendant’s actions have been made with full knowledge of Poo~Pourri’s rights

and with the intent to trade on Poo~Pourri’s goodwill in its Marks, Advertising, and Trade Dress, thus making this an exceptional case under 15 U.S.C. §1117(a). 25.

Further, Defendant intended to, and is likely to, lead the public to conclude,

incorrectly, that Defendant’s products originate from Poo~Pourri to the damage and harm of Poo~Pourri. Defendant’s activities constitute ing off, thus entitling Poo~Pourri to damages, including Defendant’s profits from the sale of Defendant’s products depicted in the Infringing ments. 26.

As a result of Defendant’s activities, Defendant has caused and will continue to

cause irreparable harm to Poo~Pourri for which Poo~Pourri has no adequate remedy at law for

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relief from Defendant’s wrongful conduct. Accordingly, Poo~Pourri is entitled to damages and injunctive relief. COUNT TWO UNFAIR COMPETITION AND TRADE DRESS INFRINGEMENT UNDER THE LANHAM ACT 27.

Poo~Pourri re-alleges and incorporates by reference all of the foregoing

allegations. Defendants’ conduct described above constitutes federal unfair competition under the LANHAM ACT, 15 U.S.C. §1125(a)(1). 28.

Defendant’s actions have been with full knowledge of Poo~Pourri’s rights and

with the intent to trade on Poo~Pourri’s goodwill, thus making this an exceptional case under 15 U.S.C. §1117(a). 29.

Further, the activities of Defendant are intended to, and are likely to, lead the

public to conclude, incorrectly, that Defendant is associated, d with or sponsored by Poo~Pourri, to the damage and harm of Poo~Pourri. Defendant’s activities constitute deliberate infringement of the Marks, Advertising, and Trade Dress in violation of the LANHAM TRADEMARK ACT, including, but not limited to, 15 U.S.C. §§ 1114(1) & 1125(a), entitling Poo~Pourri to damages. 30.

As a result of Defendant’s activities, Defendant has caused and will continue to

cause irreparable harm to Poo~Pourri for which Poo~Pourri has no adequate remedy at law for relief from Defendant’s wrongful conduct. Accordingly, Poo~Pourri is entitled to damages and injunctive relief.

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COUNT THREE FEDERAL TRADEMARK INFRINGEMENT 31.

Poo~Pourri re-alleges all of the foregoing facts and allegations. Defendant’s

conduct described above constitutes trademark infringement under the LANHAM ACT, 15 U.S.C. § 1114(1). 32.

The acts of Defendant, as set forth above, constitute use in interstate commerce of

reproductions, copies, and/or colorable imitations of the Poo~Pourri Marks through its use of the similar marks on a similar product being sold through similar channels of trade.

Further,

Defendant’s use of marks that are confusingly similar to Poo~Pourri’s federally ed Marks in connection with similar goods, within this judicial district and elsewhere, is likely to cause confusion, cause mistake, and to deceive as to the affiliation, connection, and association of Poo~Pourri with Defendant. 33.

Further, the activities of Defendant are intended to, and are likely to, lead the

public to conclude, incorrectly, that the infringing uses of the Marks described in this Complaint that are authorized by Poo~Pourri to the damage and harm of Poo~Pourri. Defendant’s activities constitute deliberate infringement of the Poo~Pourri Marks in violation of the LANHAM TRADEMARK ACT, including, but not limited to, 15 U.S.C. § 1114(1), entitling Poo~Pourri to damages. 34.

As a result of Defendant’s activities, Defendant has caused and will continue to

cause irreparable harm to Poo~Pourri for which Poo~Pourri has no adequate remedy at law for relief from Defendant’s wrongful conduct. Accordingly, Poo~Pourri is entitled to damages and injunctive relief.

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COUNT FOUR DILUTION UNDER TEXAS BUSINESS & COMMERCE CODE §16.29 35.

Poo~Pourri re-alleges and incorporates by reference all of the preceding facts and

allegations. Defendant’s conduct described above is likely to dilute the distinctiveness of Poo~Pourri’s Marks, Advertising, and Trade Dress. Defendant has profited through the dilution of Poo~Pourri’s distinctive Marks, Advertising, and Trade Dress. 36.

The activities of Defendant have caused and will continue to cause irreparable

harm to Poo~Pourri for which Poo~Pourri has no adequate remedy at law for relief from Defendants’ wrongful conduct.

Accordingly, Poo~Pourri is entitled to damages, including

Defendant’s trebled profits from the sale of V.I.Poo Product depicted in the Infringing ments, and injunctive relief. COUNT FIVE COMMON LAW UNFAIR COMPETITION 37.

Poo~Pourri re-alleges and incorporates by reference all of the preceding facts and

allegations. Defendant’s actions described above constitute unfair competition under Texas common law. 38.

As a result of Defendant’s wrongful conduct, Poo~Pourri is entitled to injunctive

relief and damages to be proven at trial. COUNT SIX FEDERAL COPYRIGHT INFRINGEMENT 39.

Poo~Pourri re-alleges and incorporates by reference all of the preceding facts and

allegations. 40.

Poo~Pourri owns the following copyrighted works: U.S. Registration No. VA-1-

961-389 (“Spritz Poo 4”), effective date of Registration May 12, 2015; U.S. Registration No. VA-1-961-390 (“Spritz Poo 2”), effective date of Registration May 12, 2015; U.S. Registration PLAINTIFF’S ORIGINAL COMPLAINT 4849-1921-2846

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No. VA-1-961-391 (“Spritz Poo 1”), effective date of Registration May 12, 2015; and U.S. Registration No. PA-1-867-648 (“Girls Don’t Poop”), effective date of Registration October 28, 2013 (the “Copyrighted Works”). As the owner of the copyrights in these Works, Poo~Pourri has the exclusive right to reproduce them, to distribute them, to publish them, to display them, and to create derivative works based upon them. 41.

Without Poo~Pourri’s permission, Defendant reproduced, distributed, published,

and created derivative works based on Poo~Pourri’s Copyrighted Works, in knowing and willful violation of Poo~Pourri’s exclusive rights under the COPYRIGHT ACT, 17 U.S.C. §§ 101, et seq. 42.

Defendant’s copyright infringement violates the Copyright Act, causes and

threatens irreparable harm to Poo~Pourri, and entitles Poo~Pourri to preliminary and permanent injunctive relief. 43.

As a direct and proximate result of Defendant’s copyright infringement,

Poo~Pourri has suffered and will continue to suffer damage to its business, including lost sales and Defendant’s profits, in an amount yet to be fully determined, and which it is entitled to recover. In addition, Poo~Pourri is entitled to statutory damages, enhancements of statutory damages, costs, and attorney’s fees. REMEDIES INCLUDING INJUNCTIVE RELEIF 44.

Poo~Pourri re-alleges all of the foregoing facts and allegations.

45.

Poo~Pourri is entitled to monetary relief, including, (1) Defendant’s trebled

profits, (2) trebled damages sustained by Poo~Pourri, (3) statutory damages, and (4) the cost of this action. See 15 U.S.C. § 1117; 17 U.S.C. §§ 504-505; TEX. BUS. & COM. CODE § 16.104. 46.

Poo~Pourri also is entitled to injunctive relief under federal and state law. See 15

U.S.C. § 1116; 17 U.S.C. § 502; TEX. BUS. & COM. CODE § 16.103(b). More specifically,

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Poo~Pourri is entitled to a preliminary injunction and permanent injunction against Defendant and its officers, agents, representatives and any person or entity acting on their behalf or at their direction from: using the Infringing ments; reproducing, distributing, publishing, displaying, or creating derivative works substantially similar to Poo~Pourri’s Copyrighted Works; or using the Marks, Advertising, Trade Dress or marks or trade dress confusingly similar to Poo~Pourri’s Marks, Advertising or Trade Dress. ATTORNEYS’ FEES 47.

Poo~Pourri is entitled to an award of attorneys’ fees under 15 U.S.C. § 1117(a),

17 U.S.C. § 505, and TEXAS BUSINESS & COMMERCE CODE § 16.104. JURY DEMAND 48.

Poo~Pourri requests a trial by jury of all claims. PRAYER FOR RELIEF

WHEREFORE, Poo~Pourri prays that it have judgment against Defendant for the following: (1)

A decree that the Infringing ments and use of marks similar to

Poo~Pourri’s Marks constitute ing off; (2)

A decree that Defendant’s use of the Marks, Advertising, and Trade Dress

constitute unfair competition under federal and common law; (3)

A decree that Defendant has infringed the Marks, Advertising, and Trade Dress;

(4)

A decree that Defendant has infringed Poo~Pourri’s Copyrighted Works;

(5)

A decree that the Marks, Advertising, and Trade Dress have been, or will be,

diluted by the Defendant’s actions;

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A preliminary injunction ening Defendant and its agents, servants, employees,

s, divisions, subsidiaries, agents, servants, and employees, and those in association with them, from: (a) using any advertising similar to Poo~Pourri’s Advertising, including but not limited to the Infringing ments; (b) reproducing, distributing, publishing, displaying, or creating derivative works substantially similar to Poo~Pourri’s Copyrighted Works; or (c) using Poo~Pourri’s Marks, Trade Dress, or any other mark or trade dress confusingly similar to the Marks or Trade Dress in conjunction with toilet or bathroom deodorizers or other similar products; (6)

A permanent injunction ening Defendant and its agents, servants, employees,

s, divisions, subsidiaries, agents, servants, and employees, and those in association with them from: (a) using any advertising similar to Poo~Pourri’s Advertising, including but not limited to the Infringing ments; (b) reproducing, distributing, publishing, displaying, or creating derivative works substantially similar to Poo~Pourri’s Copyrighted Works; or (c) using Poo~Pourri’s Marks, Trade Dress, or any other marks or trade dress confusingly similar to the Marks or Trade Dress in conjunction with toilet or bathroom deodorizers or other similar products; (7)

An award of damages as requested in each Count above;

(8)

An award of exemplary damages;

(9)

An award of all costs of this action, including attorneys’ fees and interest;

(10)

Such other and further relief, at law or in equity, to which Poo~Pourri may be

and

justly entitled.

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Respectfully submitted,

/s/ Molly Buck Richard Molly Buck Richard Texas Bar No. 16842800 [email protected] Texas Bar No. 24051315 LYNN PINKER COX & HURST, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 Telephone (214) 981-3839 Facsimile ATTORNEYS FOR PLAINTIFF SCENTSIBLE, LLC d/b/a POO~POURRI 4849-1921-2846, V. 1

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