Complaint
(Trademark Infringement and Unfair Competition, Unregistered Trademark)

Summary

This template is a complaint that alleges trademark infringement of an unregistered trademark and unfair competition under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)). It also alleges various state law claims. The template includes practical guidance and drafting notes. This complaint assumes that the parties' marks are for goods, not services, and that the marks include both words and logos. If either mark is a service mark or a different type of mark (such as a standard character mark, a design mark, or a product configuration or packaging), revise this complaint accordingly. This complaint also assumes that defendant has filed an application for trademark registration with the United States Patent and Trademark Office (USPTO). If it has not, revise this complaint accordingly. Note that plaintiff must file additional materials along with a complaint. Exact requirements vary by district, so check the current federal and local rules that govern the case. Generally, these materials include: • Summons. Under the Federal Rules of Civil Procedure, plaintiff must present a summons for each defendant (or one summons listing multiple defendants) to the clerk of the court "[o]n or after" filing a complaint. The clerk will then sign, seal, and issue it to plaintiff for service on defendant(s). FRCP 4(b). For a sample summons, see Summons (Federal). Plaintiff must serve the summons on each defendant along with a copy of the complaint, FRCP 4(c)(1), unless defendant has waived service of the summons. FRCP 4(d). For more on service, see Commencing a Lawsuit: Serving Process (Federal). Pursuant to FRCP 4(a)(1), a complete summons will: o Name the court and the parties o Be directed to defendant o State the name and address of plaintiff's attorney or that of plaintiff, if not represented by counsel o State the time within which defendant must appear and defend the action o Notify defendant that failure to appear will result in a default judgment • Disclosure statement. When filing an initial pleading, all corporate parties must also file a statement that either "identifies any parent corporation and any publicly held corporation owning 10% or more of its stock" or "states that there is no such corporation." FRCP 7.1(a)(1). Local rules may require disclosure of additional information. For more on the disclosure statement, see Commencing a Lawsuit: Drafting and Filing the Complaint (Federal) — Corporate Disclosure Statement. For a sample disclosure statement, see Rule 7.1 Corporate Disclosure Statement (Federal). • Civil cover sheet (JS 44). Federal courts require the filing of a civil cover sheet that includes basic information about the case. To indicate the nature of a complaint alleging trademark infringement, select "Trademark," which appears under "Intellectual Property Rights." The form is available here. • Report on the filing or determination of an action regarding a patent or trademark (Form AO 120). This is a cover sheet that must be filed with civil actions involving registered trademarks. This requirement exists because the clerk of the court must notify the Director of the USPTO within a month of the filing of a suit involving a registered trademark. See 15 U.S.C. § 1116(c). Local rules may also require the filing of this form, regardless of whether the mark is registered. For example, in the Northern District of Illinois, Local Rule 3.4 requires any party filing "a pleading, complaint, or counterclaim which raises for the first time a claim arising under the patent and trademark laws of the United States" to file along with that document "a separate notice of claims involving patents or trademarks." To avoid a show cause order under such local rules, include this form when filing a complaint arising under federal trademark law (such as the instant complaint), even when the asserted trademark is not federally registered. If the defendant owns a trademark registration that is being challenged, include that registration on the form as well. For trademarks, Form AO 120 must include all information required by 15 U.S.C. § 1116(c), namely: o The litigants' names and addresses o The registration number(s) of the marks upon which the suit has been brought The form is available here. • Proof of service. Unless service is waived, provide the court with proof of service of the summons and complaint. Generally, proof must be made through an affidavit signed by the individual that effected service. FRCP 4(l)(1). For more on service, see Commencing a Lawsuit: Serving Process (Federal). For a sample affidavit, see Affidavit of Service of Process (Federal). For guidance on drafting a trademark complaint, see Gilson on Trademarks § 31.03. For guidance on drafting an answer, see Gilson on Trademarks § 31.04, Answering a Complaint in Trademark Litigation, and Drafting an Answer in Federal Trademark Litigation Checklist. For an overview of trademark infringement, see Gilson on Trademarks § 12.02 and Trademark Infringement and False Designation of Origin Claims, Remedies, and Defenses. For additional resources on trademark enforcement, see Trademark Enforcement Resource Kit.