Starbuzz Tobacco

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Martin E. Jerisat, SBN. 273770
Jerisat Law Firm
2372 Morse Ave., Ste. 322
Irvine, CA 92614
T: 714.571.5700
E: mjerisat@jk-lawfirm.com
Attorney for Plaintiff Starbuzz Tobacco, Inc.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Starbuzz Tobacco, Inc., a California
Corporation,

Plaintiff,
vs.

5 Star Hookah, LLC, a California
Limited Liability Corporation, Oskihan
Danaciyan, an Individual D/B/A
5starhookah.com, and DOES 1through
10 inclusive,

Defendants.
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Case No.:

COMPLAINT FOR:

1. TRADEMARK INFRINGEMENT
(UNDER 15 U.S.C. 1114)

2. TRADEMARK INFRINGEMENT
(UNDER 15 U.S.C. 1125)

3. UNFAIR BUSINESS PRACTICES
(UNDER BUS. & PROF. CODE
17200 et seq.)

4. FOR IMPOSITION OF A
CONSTRUCTIVE TRUST UPON
ILLEGAL PROFITS; AND

5. ACCOUNTING

DEMAND FOR JURY TRIAL

Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 1 of 20 Page ID #:1

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Plaintiff, Starbuzz Tobacco, Inc. complains of Defendants and alleges as
follows:
I. JURISDICTION
1. This Court has original jurisdiction over this action pursuant to 15
U.S.C. 1119 and 1121, and 28 U.S.C. 1331 and 1338, in that this Complaint
raises federal questions under the United States Trademark Act (Lanham Act), 15
U.S.C. 1051 et seq. This Court has supplemental jurisdiction over the state law
claims pursuant to 28 U.S.C. 1367.
2. This Court also has personal jurisdiction over Defendants because
they have engaged in business activities in this district. Additionally, Defendants
maintain their principal place of business in California, and are domiciled in
California.
3. Venue is proper in this district under 28 U.S.C. 1391 (b) and (c) in
that substantial injury occurred and continues to occur in this district, a substantial
portion of the events that are the subject of this action took place in this district,
and that Defendants are subject to personal jurisdiction in this district.
II. PARTIES
4. Plaintiff, Starbuzz Tobacco, Inc. (Starbuzz or Plaintiff), is now,
and at all times relevant herein was, a corporation organized under the laws of the

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State of California, with its principal place of business in the City of Garden
Grove, California.
5. Defendant, Oskihan Danaciyan (Danaciyan), an individual, is now,
and at all times relevant herein was, a resident of Granada Hills, CA.
6. Defendant 5 Star Hookah, LLC (5 Star), a limited liability
corporation, is now and at all times relevant herein, had a business address in
Granada Hills, CA.
7. Starbuzz is informed and believes, and on that basis alleges, that
Defendants are responsible for each of their acts and for their conduct, which are
the true legal causes for the damages herein alleged.
III. FACTUAL BACKGROUND
8. This is an action concerning Defendants' infringement of Starbuzz's
trademarks. Defendants have flagrantly disregarded Starbuzz's trademarks ,
without authorization, to promote their products.
Starbuzzs Trademarks
9. Starbuzz sells and distributes tobacco products under various
registered federal trademarks, including, but not limited to the following (the
Starbuzz Marks)
Trademark Reg. No. First Use At Least
As Early As
Exhibit
BLUE MIST 3,619,407 December 1, 2006 A

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BLUEBERRY
HAZE
3,736,577 January 9, 2008 B
CITRUS MIST 3,695,500 March 4, 2008 C
COSMOPOLITAN 3,924,277 January 1, 2007 D
HARD RUSH 4,398,440 February 05, 2011 E
IRISH KISS 4,291,184 January 27, 2012 F
IRISH PEACH 4,291,175 January 26, 2012 G
PASSION KISS 3,543,557 July 15, 2005 H
PINK 3,672,967 February 26, 2009 I
PINK LADY 3,975,030 March 13, 2009 J
POMBERRY 3,847,796 January 18, 2010 K
SEX ON THE
BEACH
3,838,818 January 4, 2006 L
STARBUZZ 3,113,110 April 3, 2005 M
STARBUZZ 4,032,280 February 25, 2010 N
STARBUZZ 4,146,752 June 18, 2006 O
STARBUZZ
TOBACCO
3,653,296 January 11, 2005 P
STARBUZZ
TOBACCO
4,104,682 April 23, 2007 Q
STARBUZZ
TOBACCO SINCE
2005
3,783,438 May 2, 2008 R

10. At all times relevant herein, Starbuzz has been, and still is, the owner
of the exclusive rights, title, and interest in the Starbuzz Marks for tobacco and

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related products, and has the full and exclusive rights to bring suit to enforce its
trademark rights, including the right to recover for past infringement.
Starbuzzs Continuous Use of the Starbuzz Marks
11. Starbuzz manufactures, distributes, imports, and sells tobacco
products throughout the United States and internationally. Starbuzz prides itself on
its reputation for high-quality tobacco products. Starbuzz continues to develop
new and popular tobacco products while preserving the quality of its products and
brand identity.
12. Plaintiff sells its tobacco products to thousands of customers and
clients, including boutique stores, wholesalers, suppliers and online retailers.
Plaintiff has used, created and marketed the Starbuzz Marks continuously over the
years. The Starbuzz Marks have brought Plaintiff enormous success, and Plaintiff
is now known for its high quality products.
13. Plaintiff uses the Starbuzz Marks on advertising brochures,
advertising leaflets, on the Internet, and on the packaging of its tobacco products.
14. Starbuzzs intellectual property and brand identity have substantial
public and consumer recognition.
15. The Starbuzz Marks are important as they serve as easily-recognizable
identifiers of the high quality goods and services that Plaintiff offers. There is a
particularly close association among consumers between the Starbuzz Marks, and

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the quality of the tobacco products and services offered under the StarbuzzMarks.
For consumers, customers, vendors, and clients, the Starbuzz Marks are associated
with original, flavorful, and smooth smoking tobacco of the highest quality.
DEFENDANTS WRONGFUL ACTS
Sales of Infringing Products
16. The Infringing Marks infringe on Starbuzzs Marks. The sale of
products bearing the Infringing Marks indicate that Defendants are using the
Infringing Marks in connection with its tobacco products, in direct competition
with Plaintiff:
Mark Exhibit
CITRUS KISS S
CITRUS MINT T
COSMO U
COSMOPOLITAN V
FIRST LADY W
HEAD RUSH X
INDIGO HAZE Y
KOZMO Z
PARTY ON THE
BEACH
AA
PINKBERRY BB

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PINKIE CC
POMOPOLITAN DD
SKULL
CONTROL
EE
SHISHA ON THE
BEACH
FF
IRISH CREAM GG

Danaciyan, as the manager of the domain 5starhookah.com , authorized the sale of
products bearing the Infringing Marks.
Defendants continue to infringe upon Starbuzzs Marks since the date they began
selling products bearing the Infringing Marks.
19. The intentions and bad faith of Defendants are further apparent from
their deceptive advertising and marketing tactics. Defendants have used and
continue to use Starbuzzs Marks in marketing the products sold on their website.
20. For example, Plaintiff is informed and believes, and on that basis
alleges, that on February 1, 2013 Defendant 5 Star, posted on Instagram the
statement New e hookah flavors by Starbuzz now available apple doppio and
purple savior #5starhookah #thehookahcartel #theultimatehookahexperience
#starbuzz #ehookahs as shown in (Exhibit HH).

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21. Plaintiff is informed and believes, and on that basis alleges, that in
another instance, on July 9, 2013, Defendant 5Star posted on Instagram the
following statement Starbuzz bold margarita freeze now available in 100g and
250g #5starhookah #5starhookahlounge #starbuzz #starbuzztobacco as shown in
(Exhibit II).
22. Plaintiff is informed and believes, and on that basis alleges, that on
August 12, 2013, Defendant Danaciyan posted on Tiwtter the following statement
#5starhookahlounge#tangiers#hazetobacco#starbuzz as shown in (Exhibit JJ).
23. Hashtags (#) are tags used in social media that function similarly to
keywords in search engines, in that they allow a person searching the social media
posts to display pictures or posts tagged with a specific hashtag. For example, a
search for #starbuzz on Twitter or Instagram would display every post
containing the #starbuzz hashtag.
24. By using the #starbuzz hashtag to advertise the products sold on
Defendants website, Defendants have used Starbuzz's Marks to advertise products
sold on their website without Starbuzz's authorization.
25. Meta tags are a part of the HTML source code which contains
keywords that are used to describe the contents of a web page. There are three
kinds of meta tags: descriptive meta tags, keywords and robot tags, all of which are
selected and controlled by the author or owner of the website.

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Descriptive meta tags describe the content of the document. Keyword meta tags are
used by Internet search engines to help determine whether a particular website
page is relevant to a search term that has been entered by a search engine user.
Robot meta tags indicate to search engines that certain website pages are not to be
indexed by the search engine, and should therefore not be retrievable in search
engine results. Meta tags are invisible to the Internet user, but are detectable by
search engine providers and are used by them to index websites on the Internet.
26. Plaintiff is informed and believes, and on that basis alleges, that
Defendants are using STARBUZZ trademark as a Meta Tag to draw consumers
to their site.
27. As a result of using STARBUZZ as a Meta Tag in their site,
Defendants site appears when a consumer searches for Starbuzz on Google search
engine as shown in (Exhibit KK).
28. Given the similar or related nature of Starbuzz's products and those
products sold on Defendants website, and Defendants blatant use of Starbuzzs
Marks to market their products, consumers are likely to be confused as to the
source of Starbuzz's products and Defendants products.
Defendants Use of the Infringing Marks is Likely to Cause Confusion

Defendants have been selling tobacco products bearing the Infringing Marks.

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30. To date, Defendants have refused to cease their infringing activity.
Defendants began selling products bearing the Infringing Marks after Plaintiff
began using the Starbuzz Marks for various tobacco products. Therefore,
Plaintiffs rights in the Starbuzz Marks have priority over Defendants rights in the
Infringing Marks.
Defendants knew of Plaintiffs prior use of the Starbuzz Marks. Nonetheless,
Defendants sold products bearing the Infringing Marks.
33. Starbuzz is informed and believes, and on that basis alleges, that given
the similar or related nature of Starbuzzs products and the products sold by
Defendants, and the similarity between the Infringing Marks and the Starbuzz
Marks, consumers are likely to be confused as to the source of Starbuzzs products
and products sold by Defendants.
34. Starbuzz is further informed and believes, and on that basis alleges,
that Defendants intentionally, and in bad faith, sold products bearing the Infringing
Marks to trade on the fame and goodwill associated with the Starbuzz Marks, to
deceive consumers, vendors and third parties, to attract new business in
competition to Starbuzz, and to derive an economic benefit therefrom.

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35. Defendants knowingly used and continue to use the Infringing Marks
without Starbuzzs consent or authorization.
36. The products that Defendants sell under the Infringing Marks are in
the same category of products, which Plaintiff offers under the Starbuzz Marks.
Therefore, Defendants use of the Infringing Marks is likely to cause consumer
confusion.
37. Plaintiff and Defendants both sell their products over the Internet and
operate websites advertising their products on the Internet. Plaintiff and
Defendants thus have convergent marketing channels.
38. Therefore, Defendants use of convergent marketing channels
increases the likelihood of consumer confusion.
39. Defendants continued sale of products bearing the Infringing Marks
is thus likely to lead consumers, retailers, wholesalers, and vendors to mistakenly
conclude that products sold by Defendants are somehow otherwise affiliated,
connected, or associated with Starbuzz. Consumers are likely to be misled and
confused as to the true source, sponsorship, or affiliation of products sold by
Defendants.
40. On information and belief, by this conduct, including their advertising
activities and unauthorized use of Starbuzzs marks to describe the items that they
are distributing, Defendants have misappropriated Starbuzzs advertising ideas and

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style of doing business and have infringed Starbuzzs trademarks, titles, and
slogans.
FIRST CLAIM FOR RELIEF
[Trademark Infringement Under Lanham Act 15 U.S.C. 1114]
(Against All Defendants)

41. Starbuzz re-alleges and incorporates by this reference all prior
paragraphs as if fully set forth herein.
42. Defendants use of the Infringing Marks to promote, market, or sell
tobacco products constitutes trademark infringement pursuant to 15 U.S.C. 1114.
43. Defendants have promoted, sold, and marketed, and continue to
promote, sell, and market tobacco products bearing the Infringing Marks, which
are identical or confusingly similar to Starbuzzs Marks.
44. Starbuzzs Marks are highly distinctive, arbitrary and/or fanciful, and
are entitled to strong trademark protection.
45. Defendants continue to promote, sell and market tobacco products
under the Infringing Marks, in direct competition with Starbuzzs products, which
Starbuzz promotes, sells, and markets under the Starbuzz Marks. .
46. Defendants Infringing Marks are so similar in appearance,
pronunciation, meaning, and commercial impression to Starbuzzs Marks, that
consumers are likely to be confused as to the source of the parties products.

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Defendants market and sell their products throughout the United States through
various channels, including over the Internet. These are the same channels through
which Starbuzz markets and sells its goods.
Defendants intentionally and willfully sold products bearing the Infringing Marks
in an effort to deceive or cause confusion with the consuming public.
49. Defendants attempts to cause confusion, or to cause mistake, or to
deceive further indicate an intentional and willful infringement upon Starbuzzs
Marks.
50. Defendants refusal to cease using the Infringing Marks also
demonstrates Defendants intentional and willful infringement upon Starbuzzs
Marks.
51. Defendants intentional, continuing and willful infringement of
Starbuzzs Marks has caused and will continue to cause damage to Starbuzz, and is
causing irreparable harm to Starbuzz for which there is no adequate remedy at law.
52. Defendants are directly, contributorily and/or vicariously liable for
these actions.
SECOND CLAIM FOR RELIEF
[Trademark Infringement - False Designation of Origin Under
Lanham Act 15 U.S.C. 1125(a)(1)(A)]

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54. In connection with tobacco products, Defendants knowingly and
willfully used in commerce, words, terms, names, symbols, or devices, or a
combination thereof, which are likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of Defendants with
Starbuzz, or as to the origin, sponsorship, or approval of the goods sold by
Defendants.
Defendants willfully and intentionally created a false or misleading affiliation,
connection, or association between the goods sold by Defendants with Starbuzzs
goods.
Defendants used words, terms, names, symbols, or devices, or a combination
thereof, which are similar to Starbuzzs Marks, or willfully and intentionally
marketed goods and services with words, terms, names, symbols, or devices, or a
combination thereof similar to Starbuzzs Marks.
Plaintiffs use of the Starbuzz Marks in commerce precedes Defendants use of the
Infringing Marks in interstate commerce.

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Defendants aforesaid acts were done with knowledge of Starbuzzs trademarks,
and the knowledge that use of such words, terms, names, symbols, or devices, or a
combination thereof, were misleading.
59. Defendants intentional and willful infringement of Starbuzzs
trademarks has caused and will continue to cause damage to Starbuzz, and is
causing irreparable harm to Starbuzz for which there is no adequate remedy at law.
60. Starbuzz was damaged by these acts in an amount to be proven at
trial. Defendants actions have caused and will continue to cause irreparable harm
to Starbuzz for which there is no adequate remedy at law, thus Starbuzz is also
entitled to injunctive and equitable relief against Defendants, under the Lanham
Act.
61. Defendants are directly, contributorily, and/ or vicariously liable for
these actions.
THIRD CLAIM FOR RELIEF
[Unfair Competition Violation of California
Business and Professions Code 17200 et seq.]

Defendants aforesaid acts constitute actionable wrongs under California Business

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and Professions Code 17200 et seq. in that Defendants unlawful, unfair, or
fraudulent use of words, terms, names, symbols, or devices, or a combination
thereof, which are similar to Starbuzzs Marks, create a probability of confusion or
misunderstanding as to the source, sponsorship, approval, or certification of
Starbuzzs and Defendants goods.
Defendants offered and continue to market goods using words, terms, names,
symbols, or devices, or a combination thereof, which are similar to Starbuzzs
Marks, in an attempt to unfairly compete with Starbuzz.
65. Starbuzz is further informed and believes, and on that basis alleges,
that Defendants have also been attempting to unfairly compete with Starbuzz
through the use of deceptive and/or misleading advertising.
66. By reason of the foregoing unlawful acts, Defendants have caused,
and continue to cause, substantial and irreparable damage and injury to Starbuzz
and to the public. Defendants have benefited from such unlawful conduct, and will
continue to carry out such unlawful conduct and to be unjustly enriched thereby
unless enjoined by this Court.
67. As a proximate and direct result of Defendants acts as herein alleged,
Starbuzz has sustained damages in an amount to be proven at trial.

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68. Defendants are directly, contributorily and/or vicariously liable for
these actions.
FOURTH CLAIM FOR RELIEF
For Imposition of a Constructive Trust Upon Illegal Profits

paragraphs of this Complaint as if fully set forth herein.
70. Defendants conduct constitutes deceptive, fraudulent and wrongful
conduct in the nature of passing off the infringing materials as approved or
authorized by Starbuzz.
71. By virtue of the wrongful conduct, Defendants have illegally received
money and profits that rightfully belong to Starbuzz.
72. Upon information and belief, Defendants hold the illegally received
money and profits in the form of bank accounts, real property, or personal property
that can be located and traced.
73. Defendants hold the money and profits illegally received as a
constructive trustee for the benefit of Starbuzz.
FIFTH CLAIM FOR RELIEF
Accounting


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75. Starbuzz is entitled, pursuant to 17 U.S.C. 504 and 15 U.S.C.
1117, to recover any and all profits of Defendant that are attributable to the acts of
infringement.
76. Starbuzz is entitled, pursuant to 17 U.S.C. 504 and 15 U.S.C.
1117, to actual damages or statutory damages sustained by virtue of Defendants
acts of infringement.
77. The amount of money due from Defendants to Starbuzz is unknown to
Starbuzz and cannot be ascertained without a detailed accounting by Defendants of
the precise number of units of infringing material offered for distribution and
distributed by Defendant.
PRAYER FOR RELIEF
WHEREFORE, Starbuzz requests entry of judgment in its favor and against
Defendants as follows:
A. A permanent injunction prohibiting Defendants from:
1) using the infringing marks, CITRUS KISS, CITRUS MINT, COSMO,
COSMOPOLITAN, FIRST LADY, HEAD RUSH, INDIGO HAZE, KOZMO,
PARTY ON THE BEACH, PINKBERRY, PINKIE, POMOPOLITAN, SKULL
CONTROL, SHISHA ON THE BEACH, and IRISH CREAM, alone or in
combination with other words, symbols or designs including in any manner in
connection with tobacco products;

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2) from using any representations of fact in connection with its
products, which are likely to cause confusion, or to cause mistake or to deceive as
to the affiliation, connection or association of Starbuzz or Starbuzzs Marks, or as
to the origin, sponsorship or approval of Defendants products by Starbuzz;
B. Compensatory damages and disgorgement of Defendants profits
from the sale of goods in connection with which Defendants have used the
infringing marks under 15 U.S.C. 1117;
C. Treble damages pursuant to 15 U.S.C. 1117;
D. Punitive damages;
E. Prejudgment interest, costs, expenses, and reasonable attorneys fees;
and
F. Such other and further relief as this court may deem just and proper.

DATED: May 20, 2014 Respectfully Submitted,

/s/ Martin Jerisat
Martin E. Jerisat
Attorneys for Plaintiff
Starbuzz Tobacco,

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DEMAND FOR TRIAL BY JURY

Plaintiff Starbuzz Tobacco, Inc. hereby demands a trial by jury on all
triable counts.

DATED: May 20, 2014 Respectfully Submitted,

/s/ Martin Jerisat
Martin E. Jerisat
Attorneys for Plaintiff
Starbuzz Tobacco, Inc.


Starbuzz Tobacco

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