Excalibur Bakery V. Excellent Bakery

1. ExcaliburBakery V. Excellent Bakery The case of invalid trademark

2. Case Overview • Plaintiff and Defendant are in the business of manufacturing, servicing, and selling bagel and bakery equipment and parts. Plaintiff and Defendant were married and jointly owned two companies selling ARTOFEX products. After the divorce of the owners, the defendant “warned” the plaintiff that due to negotiation and payment of valuable consideration for an assignment of rights to the ARTOFEX mark she has acquired exclusive ownership of ARTOFEX mark.

3. Case Overview continued • After sending two letters and filing suit against the plaintfill for breach of Settlement of Agreement, the Plaintiff decided to file suit against the defendant on eight different counts.

4. The Arguments Excellent Bakery • On the motion to dismiss, the count lacks jurisdiction over the subject matter and that the plaintiff lacks standing to bring motion to dismiss. • They claim that the plaintiff failed to state any claim for which relief can be granted and plaintiff has failed to plead fraud with particularity. • Claims that the case is not ripe for declaratory judgment in counts III and V because the parties are not adverse and there has been no action to create reasonable apprehension of an infringement suit. Excalibur Bakery Eight count complain: • Count I & II: seek cancellation of trademark claiming abandonment and obtainment through fraud by the defendant. • Count III & V: declaratory judgment to invalidate the Artofex trademark. • Count IV: defendan’t breach of settlement agreement by herassing. • Count VI & VIII: allege defendants liability for unfair competition for attempting ot obtain registration through fraud and for product disparagement.

5. As the defendant filed suit against the plaintiff initially on the counts of breach of Settlement of Agreement based on the use of the ARTOFEX trademark, which later was found to be invalid as the defendant did not own the “Goodwill” of the business, his initial claim is dismissed. Thus the eight count claim by the plaintiff is deemed as the central dispute. Central Dispute

6. Counts I, II and VI seek cancellation of the ARTOFEX mark. However plaintiff failed to state a claim that defendant procured ownership over the ARTOFEX trademark by false means, also plaintiff fails to allege that the mark is abandoned by defendant. Under count VI, the plaintiff failed to plead fraud with particularity and thus the court has granted the plaintiff leave to revise count VI. Under count IV; claims of breach of Settlement Agreement, due to lack of specificity in the plaintiff’s complaint, the court dismissed it. Under unfair competition, count VII; the plaintiff complaints about the defendants engagement in unfair competition. As his complaint satisfied the elements of unfair competition, it is granted. Count VIII; claims the defendant engaged in product disparagement. However, plaintiff failed to plead damages incurred and hence is granted leave by the court to revise and file an amended complaint. Assessing the eight count claims

7. The court concluded that the defendant’s motion to dismiss counts I,II, III, V, VI, VII is denied. The plaintiff is granted 20 days leave to file amended complaints in counts I, II, VI and VIII. The motion to dismiss count IV has been granted Court Decision

8. Source The information depicted in this presentation is obtained from BVR’s intellectual Property Valuation Case Law Compendium

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