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FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
THE ROOFING GUYS, INC. AND MICHAEL FLYNN, SUMMONS
Plaintiffs, Index No.:
v.
JONATHAN FORTE, Plaintiff designates
FORTE BROTHERS CONSTRUCTION COMPANY, LLC, Onondaga County as the
FORTE BROTHERS CONSTRUCTION, AND place of trial
FORTE BROTHERS ROOFING,
Defendants. The basis of venue is:
Plaintiffs principal place of
business located at
3570 Walters Road
Syracuse, New York 13209
TO THE ABOVE NAMED DEFENDANTS:
· YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and
to serve a copy ofyour Verified Answer, or, if the Complaint is not served with this Summons, to
serve a Notice of Appearance, on the Plaintiffs' attorney within 20 days of the service of this
Summons, exclusive of the day of Service (or within 3 0 days after the service is complete if this
Summons is not personally delivered to you within the State of New York),· and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief
demanded in the Complaint.
Dated: May 9, 201 7 Attorneys for Plaintiffs
Office and Post Office Address
BOUSQUET HOLSTEIN, PLLC
~ user, Esq.
0 West Fayette Street, Suite 1000
Syracuse, New York 13202
Tel: (315) 422-1500
Email: rsuser@bhlawpllc.com
Defendants' addresses:
Jonathan Forte
3614 Dunn Road
Wamers, New York 13164
Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500
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Forte Brothers Construction Company, LLC
clo Jonathan C. Forte
3614 Dunn Road
Wamers, New York 13164
Forte Brothers Construction
clo Jonathan Forte
3614 Dunn Road
Wamers, New York 13164
Forte Brothers Roofing
clo Jonathan Forte
3614 Dunn Road
Wamers, New York 13164
2922387_2.docx
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STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
The Roofing Guys, Inc., and Michael Flynn,
VERIFIED COMPLAINT
Plaintiffs,
Index No.:
v.
Jonathan Forte, Forte Brothers Construction Company,
(Jury Trial Demanded)
LLC, Forte Brothers Construction, and Forte Brothers
Roofing,
Defendants.
As and for their Verified Complaint against Defendants Jonathan Forte ("Mr. Forte"),
Forte Brothers Construction Company, LLC ("Forte LLC"), Forte Brothers Construction
("Forte Construction"), and Forte Brothers Roofing ("Forte Roofing") (collectively, the
"Defendants"), Plaintiffs The Roofing Guys, Inc. ("The Roofing Guys") and Michael Flynn
("Mr~ Flynn") (collectively, the "Plaintiffs"), respectfully allege as follows:
The Parties
1. The Roofing Guys isa New York Corporation with a principal place of business at
3570 Walters Road, Syracuse, New York.
2. Mr. Flynn is an individual residing in Onondaga County, New York. He is The
Roofing Guys' shareholder and President. Mr. Flynn began operating The Roofing Guys in 2006
and The Roofing Guys was formally incorporated on March 27, 2012.
3. Upon information and belief, Mr. Forte is an individual residing at 3614 Dunn Road,
Wamers, New York 13164.
4. Upon information and belief, Forte LLC is a New York limited liability company
with a principal place of business at 3614 Dunn Road, Wamers, New York 13164. Upon
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information and belief, Mr. Forte is the sole member of Forte LLC. Upon information and
belief, Forte LLC was formed on or about December 18, 2013.
5. Upon information and belief, Forte Construction is a d/b/a owned and/or operated
exclusively by Mr. Forte and/or Forte LLC.
6. Upon information and belief, Forte Roofing 1s a d/b/a owned and/or operated
exclusively by Mr. Forte and/or Forte LLC.
Venue And Jurisdiction
7. Venue is proper in Onondaga County, pursuant to CPLR §§ 503(a). The Roofing
Guys' principal place of business is in this county. Upon information and belief, each of the
Defendants also has a principal office and/or resides in this county.
8. The Court has personal jurisdiction over Defendants pursuant to CPLR §§ 301 and
3 02(a)( 1) and (a)(2). This action arises out of Defendants' transaction of business in this State as
well as torts committed against Plaintiffs in this State.
Facts
9. Plaintiffs are contractors specializing in roof replacement and repair.
10. Mr. Flynn began operating The Roofing Guys under its current name in 2006.
11 . Since then, The Roofing Guys has prospered.
12. The Roofing Guys is able to complete most new roofs with "same day" efficiency.
The Roofing Guys has been able to offer this "same day" service by committing substantially
more resources - including larger crews - to each job site than its competitors.
13. The Roofing Guys also employs a sophisticated branding and marketing campaign.
14. These are among the foundations of The Roofing Guys' success.
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15. On or about December 1, 2009, The Roofing Guys, through Mr. Flynn,
commissioned the design of a logo, which resulted in the following (the "Roofing Guys Logo"):
16. The Roofing Guys Logo was designed with the assistance of a local "Signarama"
store.
17. Plaintiffs have used the Roofing Guys Logo in and around the Syracuse, New York
area, on billboards, as yard signs, and on their trucks and trailers. With respect to each, the
Roofing Guys Logo appears with the same black roof silhouette, with "The Roofing Guys"
beneath it. Individual products may also contain additional text underneath or to the side,
sometimes advertising "Fully Insured" and "Free Estimates" along with contact information. The
term, "need a roof' next to the chimney is also sometimes added. Common among all of these
advertisements is the silhouette and lettering designed by Signarama and present in the Roofing
Guys Logo.
18. Attached as Exhibit A hereto are true and correct copies of the Roofing Guys Logo
employed in the following forms: (1) a yard placard; (2) a trailer and roof banner; and (3) a
billboard.
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19. Plaintiffs also employ the Roofing Guys Logo on The Roofing Guys' website (the
"Roofing Guys Web Logo"), with text underneath reading, "Need a Roof? Call The Roofing
Guys", and text above it reading, "Need a Roof?"
THE
ROOFING
Need A Ro·O·f? Call
1
the
GUYS
Roo·fi.ng Guys
20. The Roofing Guys Logo and the Roofing Guys Web Logo are Registered Service
Marks (Registration Nos. S23727 and S23773, the "Registered Service Marks"). The Roofing
Guys owns the Registered Service Marks. True and correct copies of the Registered Service
Marks are attached as Exhibits Band C hereto.
21. The Registered Service Marks are registered for, "construction, home improvement,
and repair services."
22. The Roofing Guys uses its branding to inform current and potential customers that
The Roofing Guys offers a premier service.
23 . Through this branding, The Roofing Guys' sales have increased in each year since
the original Roofing Guys Logo was designed and put into the marketplace.
24. Between 2006 and 2009, Mr. Forte and Plaintiffs worked together at the same jobs.
At that time, Mr. Forte had a business performing mostly siding repairs.
25. Mr. Forte asked questions of Mr. Flynn related to the roofing work Mr. Flynn's
business was doing. Mr. Flynn described the methods he used in roof replacement and other
services.
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26. Defendants have begun using marks on Defendants' websites that appear to copy the
Registered Service Marks. Below are the Forte Construction and Forte Roofing marks, currently
appearing on their websites, compared with the Roofing Guys Web Logo:
THE
.1{~\'#\
FORTE BROTHERS CONSTRUCTION
ROOFING GUYS
Need A Roof? Call the Roofi ng Guys
-- ~--------- ---
ROOFING &SIDING SPECIALISTS
THE
ROOFING GUY S
Need A Roof? Call the Roofing Guys
True and correct copies of the parties' website screenshots are attached as Exhibit D hereto.
27. Similar marks appear on Defendants' billboards. Below is a photograph of one of
Defendants' billboards, taken during the Summer of 2016, compared to one of The Roofing
Guys, taken during the same time period:
28. Defendants' billboard has appeared off Route 690 in Syracuse and The .Roofing
Guys' billboard is off West Genesee Street in Camillus. At various times during the period in
question in this Complaint, both companies have used their billboards in and around the
Syracuse, New York area.
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29. Defendants, upon information and belief, began usmg their billboards after
Plaintiffs.
30. In addition to the websites and billboards, Defendants' marks appear on lawn
placards, trucks, and elsewhere, and are used in a virtually identical manner as the Registered
Service Marks. Examples of each, along with The Roofing Guys' materials, appear as follows:
FREE E5TlllATES / FULLY INSURED
315 •317 • &170
--
\\\EEO A ROOF?
l'HE
ROOFING GUYS
Fully Insured • Free Estimates
558-95'1'1
31. Defendants' marks referenced herein, namely on the billboard, trailer, lawn placards,
and websites, will be collectively referred to herein as the "Infringing Marks." True and
accurate copies of all the Infringing Logos are attached as Exhibit E hereto.
32. Consistent among all the Infringing Marks is the same "peak" silhouette as
Plaintiffs', containing several triangles resembling roofs, as do Plaintiffs' advertising materials.
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33. Like Plaintiffs, Defendants also use the text, "free estimates, fully insured", along
with their contact information underneath the Infringing Marks on a number of their signs.
Whether the additional language is employed depends on the type of advertisement. Just as with
Plaintiffs, the language appears on lawn signs and trailers, but not on the web logo.
34. Upon information and belief, Defendants sought to have Signarama develop the
Infringing Marks and specifically asked for a mark that copied the Roofing Guys Logo (which
request was denied).
35. The Infringing Marks are used in the same manner as Plaintiffs' Registered Service
Marks.
3 6. Upon information and belief, Defendants have created actual confusion in the
marketplace. The Roofing Guys' representatives receive, on average, one misdirected call per
week from a customer in which The Roofing Guys and Defendants are confused. Upon
information and belief, potential customers are also calling Defendants with the same confusion.
Plaintiffs Have Demanded That Defendants Stop Using The Infringing Logos
37. Plaintiffs obtained and began using their logos in the marketplace years before
Defendants began using theirs.
3 8. Plaintiffs demanded that Defendants cease and desist from using the Infringing
Logos by letter dated September 22, 2016. The letter asks for a response on or before October
21, 2016. To date, no response has been received and the Infringing Logos continue to be used.
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AS AND FOR A FIRST CAUSE OF ACTION
(GBL Section 360-k; 360-m: Injunctive Relief)
3 9. Plaintiffs repeat and reallege paragraphs 1 through 38.
40. The Registered Service Marks are unique and have acquired secondary meaning as
customers associate the logos with the services provided by Plaintiffs.
41. Pursuant to Section 360-k of the New York General Business Law:
Any person who shall: (a) use, without the consent of the registrant, any
reproduction, counterfeit, copy, or colorable imitation of a mark registered under
this article in connection with the sale, distribution, offering for sale, or
advertising of any goods or services on or in connection with which such use
is likely to cause confusion or mistake or to deceive as to the source of origin
of such good or services or (b) reproduce, counterfeit, copy or colorably
imitate any such mark and apply such reproduction, counterfeit, copy or
colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or
advertisements intended to be used upon or in connection with the sale or
other distribution in this state of such goods or services; shall be liable in a
civil action by the registrant for any and all of the remedies provided in section
three hundred sixty-I of this article, except that under this subdivision the
registrant shall not be entitled to recover profits or damages unless the acts
have been committed with the intent to cause confusion or mistake or to
deceive.
N.Y. GBL § 360-k (emphasis added).
42. Section 360-1, which is made applicable through Section 360-k, allows for injunctive
relief to remedy an infringement, in instances where there is the likelihood of injury to business
reputation or of dilution of the distinctive quality of a mark or trade name:
Likelihood of injury to business reputation or of dilution of the distinctive
quality of a mark or trade name shall be a ground for injunctive relief in cases of
infringement of a mark registered or not registered or in cases of unfair
competition, notwithstanding the absence of competition between the parties or
the absence of confusion as to the source of goods or services.
N.Y. GBL § 360-1. This applies equally to registered marks and unregistered marks where there
has been unfair competition under the common law.
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43. Section 360-m of the New York General Business Law also allows for injunctive
relief:
Any owner of a mark registered under this article may proceed by suit to
enjoin the manufacture, use, display or sale of any counterfeits or imitations
thereof and any court of competent jurisdiction may grant injunctions to
restrain such manufacture, use, display or sale as may be by the said court
deemed just and reasonable, and may require the defendants to pay to such
owner all profits derived from and/or all damages suffered by reason of
such wrongful manufacture, use, display or sale; and such court may also
order that any such counterfeits or imitations in the possession or under the
control of any defendant in such case be delivered to an officer of the court, or
to the complainant, to be destroyed or donated. The court, in its discretion,
may enter judgment for an amount not to exceed thr ee times such profits
and damages and/or reasonable attorneys' fees of the prevailing party in
such cases where the court finds the other party committed such wrongful
acts with knowledge or in bad faith or otherwise as according to the
circumstances of this case. The enumeration of any right or remedy herein
shall not affect a registrant's right to prosecute under the penal law.
N.Y. GBL § 360-m (emphasis added). Unlike Section 360-1, Section 360-m does not require
likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or
trade name.
44. The Infringing Logos are reproductions, counterfeits, copies, or colorable imitations
of the Registered Service Marks.
45. The Infringing Logos have been used in connection with the sale, distribution,
offering for sale, advertising of services in such a way as has/will continue to cause confusion or
mistake or to deceive as to the source or origin of such services.
46. Upon information and belief, this has been done with the intention and the effect of
creating confusion in the marketplace.
4 7. Plaintiffs have suffered damages as a result, including but not limited to lost profits
and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of
their marks.
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48. Wherefore, Plaintiffs demand judgment finding Defendants liable pursuant to
Section 360-k and 360-m of the New York General Business Law, granting an injunction
requiring the Infringing Logos to be permanently removed from any websites, print
advertisements, billboards, trucks, trailers, or other public displays, and prohibiting Defendants
from using any logo in the future that copies the recognizable "peak" silhouette of the Registered
Service Marks.
AS AND FOR A SECOND CAUSE OF ACTION
(For Common Law Unfair Competition: Damages)
49. Plaintiffs repeat and reallege paragraphs 1 through 48.
50. The Registered Service Marks are unique and have acquired secondary meaning as
customers associate the logos with the services provided by Plaintiffs.
51. Plaintiffs have expended substantial time, effort, and financial resources m
promoting and protecting these marks.
52. Upon information and belief, Defendants have deliberately misappropriated
Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers.
53. These actions were designed to and have had the effect of confusing Plaintiffs'
customers and converting them to Defendants.
54. This constitutes bad faith or wrongful conduct.
55. Plaintiffs have suffered damages as a result, including but not limited to lost profits
and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of
their marks.
56. Wherefore, Plaintiffs hereby demand judgment finding Defendants liable for unfair
competition and awarding damages in an amount to be determined at trial.
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AS AND FOR A THIRD CAUSE OF ACTION
(For Common Law Unfair Competition Claim: Injunctive RelieO
57. Plaintiffs repeat and realleges paragraphs 1 through 56.
58. General Business · Law Section 360-1 allows for injunctive relief to remedy an
infringement based on unfair competition, in instances where there is the likelihood of injury to
business reputation or of dilution of the distinctive quality of a mark or trade name.
59. The Registered Service Marks are unique and have acquired secondary meaning as
customers associate the logos with the services provided by Plaintiffs.
60. Plaintiffs have expended substantial time, effort, and financial resources m
promoting and protecting these marks.
61. Upon information and belief, Defendants have deliberately misappropriated
Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers.
62. These actions were designed to and have had the effect of confusing Plaintiffs'
customers and converting them to Defendants.
63. This constitutes bad faith or wrongful conduct.
64. This confusion in the marketplace is a threat to Plaintiffs' business reputation and/or
the status of their marks. It is Plaintiffs' opinion that they offer premier services to their
customers, which they promote using the Registered Service Marks. Plaintiffs' reputation is
diluted when potential customers hire competitors thinking they are hiring The Roofing Guys.
65. The harm to Plaintiffs' reputation is irreparable through money damages.
66. The balancing of the equities favors injunctive relief in favor of Plaintiffs.
67. Wherefore, Plaintiffs demand judgment granting an injunction requiring the
Infringing Logos to be permanently removed from any websites, print advertisements, billboards,
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trucks, trailers, or other public displays, and prohibiting Defendants from using any logo in the
future that copies the recognizable "peak" silhouette of Plaintiffs' protected marks . .
AS AND FOR A FOURTH CAUSE OF ACTION
(GBL Section 360-k: Damages)
68. Plaintiffs repeat and reallege paragraphs 1 through 67.
69. The Registered Service Marks are unique and have acquired secondary meaning as
customers associate the logos with the services provided by Plaintiffs.
70. A violation of General Business Law Section 360-k of the New York General
Business Law warrants money damages, where "the acts have been committed with the intent to
. cause confusion or mistake or to deceive." N.Y. GBL § 360-k (emphasis added).
71. In addition, Section 360-m provides additional remedies for violation of service
marks such as the one at issue here, including treble damages and attorneys' fees:
Any owner of a mark registered under this article may proceed by suit to
enjoin the manufacture, use, display or sale of any counterfeits or imitations
thereof and any court of competent jurisdiction may grant injunctions to
restrain such manufacture, use, display or sale as may be by the said court
deemed just and reasonable, and may require the defendants to pay to such
owner all profits derived from and/or all damages suffered by reason of
such wrongful manufacture, use, display or sale; and such court may also
order that any such counterfeits or imitations in the possession or under the
control of any defendant in such case be delivered to an officer of the court, or
to the complainant, to be destroyed or donated. The court, in its discretion,
may enter judgment for an amount not to exceed three times such profits
and damages and/or reasonable attorneys' fees of the prevailing party in
such cases where the court finds the other party committed such ~rongful
acts with knowledge or in bad faith or otherwise as according to the
circumstances of this case. The enumeration of any right or remedy herein
shall not affect a registrant's right to prosecute under the penal law.
N.Y. GBL § 360-m (emphasis added).
72. Upon information and belief, Defendants have deliberately misappropriated
Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers.
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73. Defendants' actions were designed to and have had the effect of confusing Plaintiffs'
customers and converting them to Defendants.
74. This constitutes a knowing and bad faith infringement of Plaintiffs' intellectual
property.
7 5. Plaintiffs have suffered damages as a result, including but not limited to lost profits
and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of
their marks.
76. Wherefore, Plaintiffs hereby demand judgment finding Defendants liable pursuant
to Section 360-k of the New York General Business Law and awarding damages in an amount to
be determined at trial but not to exceed three times its lost profits and other damages, as well as
attorneys' fees in pursuing this action.
AS AND FOR A FIFTH CAUSE OF ACTION
(GBL Section 349: Damages and Attorneys' Fees)
77. Plaintiffs repeat and reallege paragraphs 1 through 76.
78. Defendants' conduct constitutes a deceptive trade practice pursuant to Section 349
of the New York General Business Law.
79. These actions were consumer-oriented.
80. Defendants' deceptive acts are likely to mislead a reasonable consumer acting
reasonably under the circumstances.
81. Plaintiffs have suffered damages as a result, including but not limited to lost profits
and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of
their marks.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully demands judgment as follows:
A. Issuing an injunction, pursuant to GBL § 360-1 and 360-m, and on common law
grounds, requiring the Infringing Logos to be removed from any websites, print
advertisements, billboards, trucks, trailers, or other public displays, and prohibiting
Defendants from any future infringements on the Registered Service Marks.
B. Awarding Plaintiffs damages, pursuant to GBL § 360-m, in an amount to be
determin
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FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA THE ROOFING GUYS, INC. AND MICHAEL FLYNN, SUMMONS Plaintiffs, Index No.: v. JONATHAN FORTE, Plaintiff designates FORTE BROTHERS CONSTRUCTION COMPANY, LLC, Onondaga County as the FORTE BROTHERS CONSTRUCTION, AND place of trial FORTE BROTHERS ROOFING, Defendants. The basis of venue is: Plaintiffs principal place of business located at 3570 Walters Road Syracuse, New York 13209 TO THE ABOVE NAMED DEFENDANTS: · YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to serve a copy ofyour Verified Answer, or, if the Complaint is not served with this Summons, to serve a Notice of Appearance, on the Plaintiffs' attorney within 20 days of the service of this Summons, exclusive of the day of Service (or within 3 0 days after the service is complete if this Summons is not personally delivered to you within the State of New York),· and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Dated: May 9, 201 7 Attorneys for Plaintiffs Office and Post Office Address BOUSQUET HOLSTEIN, PLLC ~ user, Esq. 0 West Fayette Street, Suite 1000 Syracuse, New York 13202 Tel: (315) 422-1500 Email: rsuser@bhlawpllc.com Defendants' addresses: Jonathan Forte 3614 Dunn Road Wamers, New York 13164 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 1 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 Forte Brothers Construction Company, LLC clo Jonathan C. Forte 3614 Dunn Road Wamers, New York 13164 Forte Brothers Construction clo Jonathan Forte 3614 Dunn Road Wamers, New York 13164 Forte Brothers Roofing clo Jonathan Forte 3614 Dunn Road Wamers, New York 13164 2922387_2.docx 2 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 2 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA The Roofing Guys, Inc., and Michael Flynn, VERIFIED COMPLAINT Plaintiffs, Index No.: v. Jonathan Forte, Forte Brothers Construction Company, (Jury Trial Demanded) LLC, Forte Brothers Construction, and Forte Brothers Roofing, Defendants. As and for their Verified Complaint against Defendants Jonathan Forte ("Mr. Forte"), Forte Brothers Construction Company, LLC ("Forte LLC"), Forte Brothers Construction ("Forte Construction"), and Forte Brothers Roofing ("Forte Roofing") (collectively, the "Defendants"), Plaintiffs The Roofing Guys, Inc. ("The Roofing Guys") and Michael Flynn ("Mr~ Flynn") (collectively, the "Plaintiffs"), respectfully allege as follows: The Parties 1. The Roofing Guys isa New York Corporation with a principal place of business at 3570 Walters Road, Syracuse, New York. 2. Mr. Flynn is an individual residing in Onondaga County, New York. He is The Roofing Guys' shareholder and President. Mr. Flynn began operating The Roofing Guys in 2006 and The Roofing Guys was formally incorporated on March 27, 2012. 3. Upon information and belief, Mr. Forte is an individual residing at 3614 Dunn Road, Wamers, New York 13164. 4. Upon information and belief, Forte LLC is a New York limited liability company with a principal place of business at 3614 Dunn Road, Wamers, New York 13164. Upon Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 3 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 information and belief, Mr. Forte is the sole member of Forte LLC. Upon information and belief, Forte LLC was formed on or about December 18, 2013. 5. Upon information and belief, Forte Construction is a d/b/a owned and/or operated exclusively by Mr. Forte and/or Forte LLC. 6. Upon information and belief, Forte Roofing 1s a d/b/a owned and/or operated exclusively by Mr. Forte and/or Forte LLC. Venue And Jurisdiction 7. Venue is proper in Onondaga County, pursuant to CPLR §§ 503(a). The Roofing Guys' principal place of business is in this county. Upon information and belief, each of the Defendants also has a principal office and/or resides in this county. 8. The Court has personal jurisdiction over Defendants pursuant to CPLR §§ 301 and 3 02(a)( 1) and (a)(2). This action arises out of Defendants' transaction of business in this State as well as torts committed against Plaintiffs in this State. Facts 9. Plaintiffs are contractors specializing in roof replacement and repair. 10. Mr. Flynn began operating The Roofing Guys under its current name in 2006. 11 . Since then, The Roofing Guys has prospered. 12. The Roofing Guys is able to complete most new roofs with "same day" efficiency. The Roofing Guys has been able to offer this "same day" service by committing substantially more resources - including larger crews - to each job site than its competitors. 13. The Roofing Guys also employs a sophisticated branding and marketing campaign. 14. These are among the foundations of The Roofing Guys' success. 2 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 4 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 15. On or about December 1, 2009, The Roofing Guys, through Mr. Flynn, commissioned the design of a logo, which resulted in the following (the "Roofing Guys Logo"): 16. The Roofing Guys Logo was designed with the assistance of a local "Signarama" store. 17. Plaintiffs have used the Roofing Guys Logo in and around the Syracuse, New York area, on billboards, as yard signs, and on their trucks and trailers. With respect to each, the Roofing Guys Logo appears with the same black roof silhouette, with "The Roofing Guys" beneath it. Individual products may also contain additional text underneath or to the side, sometimes advertising "Fully Insured" and "Free Estimates" along with contact information. The term, "need a roof' next to the chimney is also sometimes added. Common among all of these advertisements is the silhouette and lettering designed by Signarama and present in the Roofing Guys Logo. 18. Attached as Exhibit A hereto are true and correct copies of the Roofing Guys Logo employed in the following forms: (1) a yard placard; (2) a trailer and roof banner; and (3) a billboard. 3 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 5 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 19. Plaintiffs also employ the Roofing Guys Logo on The Roofing Guys' website (the "Roofing Guys Web Logo"), with text underneath reading, "Need a Roof? Call The Roofing Guys", and text above it reading, "Need a Roof?" THE ROOFING Need A Ro·O·f? Call 1 the GUYS Roo·fi.ng Guys 20. The Roofing Guys Logo and the Roofing Guys Web Logo are Registered Service Marks (Registration Nos. S23727 and S23773, the "Registered Service Marks"). The Roofing Guys owns the Registered Service Marks. True and correct copies of the Registered Service Marks are attached as Exhibits Band C hereto. 21. The Registered Service Marks are registered for, "construction, home improvement, and repair services." 22. The Roofing Guys uses its branding to inform current and potential customers that The Roofing Guys offers a premier service. 23 . Through this branding, The Roofing Guys' sales have increased in each year since the original Roofing Guys Logo was designed and put into the marketplace. 24. Between 2006 and 2009, Mr. Forte and Plaintiffs worked together at the same jobs. At that time, Mr. Forte had a business performing mostly siding repairs. 25. Mr. Forte asked questions of Mr. Flynn related to the roofing work Mr. Flynn's business was doing. Mr. Flynn described the methods he used in roof replacement and other services. 4 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 6 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 26. Defendants have begun using marks on Defendants' websites that appear to copy the Registered Service Marks. Below are the Forte Construction and Forte Roofing marks, currently appearing on their websites, compared with the Roofing Guys Web Logo: THE .1{~\'#\ FORTE BROTHERS CONSTRUCTION ROOFING GUYS Need A Roof? Call the Roofi ng Guys -- ~--------- --- ROOFING &SIDING SPECIALISTS THE ROOFING GUY S Need A Roof? Call the Roofing Guys True and correct copies of the parties' website screenshots are attached as Exhibit D hereto. 27. Similar marks appear on Defendants' billboards. Below is a photograph of one of Defendants' billboards, taken during the Summer of 2016, compared to one of The Roofing Guys, taken during the same time period: 28. Defendants' billboard has appeared off Route 690 in Syracuse and The .Roofing Guys' billboard is off West Genesee Street in Camillus. At various times during the period in question in this Complaint, both companies have used their billboards in and around the Syracuse, New York area. 5 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315} 422-1500 7 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 29. Defendants, upon information and belief, began usmg their billboards after Plaintiffs. 30. In addition to the websites and billboards, Defendants' marks appear on lawn placards, trucks, and elsewhere, and are used in a virtually identical manner as the Registered Service Marks. Examples of each, along with The Roofing Guys' materials, appear as follows: FREE E5TlllATES / FULLY INSURED 315 •317 • &170 -- \\\EEO A ROOF? l'HE ROOFING GUYS Fully Insured • Free Estimates 558-95'1'1 31. Defendants' marks referenced herein, namely on the billboard, trailer, lawn placards, and websites, will be collectively referred to herein as the "Infringing Marks." True and accurate copies of all the Infringing Logos are attached as Exhibit E hereto. 32. Consistent among all the Infringing Marks is the same "peak" silhouette as Plaintiffs', containing several triangles resembling roofs, as do Plaintiffs' advertising materials. 6 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 •Syracuse, New York 13202 • (315) 422-1500 8 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 33. Like Plaintiffs, Defendants also use the text, "free estimates, fully insured", along with their contact information underneath the Infringing Marks on a number of their signs. Whether the additional language is employed depends on the type of advertisement. Just as with Plaintiffs, the language appears on lawn signs and trailers, but not on the web logo. 34. Upon information and belief, Defendants sought to have Signarama develop the Infringing Marks and specifically asked for a mark that copied the Roofing Guys Logo (which request was denied). 35. The Infringing Marks are used in the same manner as Plaintiffs' Registered Service Marks. 3 6. Upon information and belief, Defendants have created actual confusion in the marketplace. The Roofing Guys' representatives receive, on average, one misdirected call per week from a customer in which The Roofing Guys and Defendants are confused. Upon information and belief, potential customers are also calling Defendants with the same confusion. Plaintiffs Have Demanded That Defendants Stop Using The Infringing Logos 37. Plaintiffs obtained and began using their logos in the marketplace years before Defendants began using theirs. 3 8. Plaintiffs demanded that Defendants cease and desist from using the Infringing Logos by letter dated September 22, 2016. The letter asks for a response on or before October 21, 2016. To date, no response has been received and the Infringing Logos continue to be used. 7 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 9 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 AS AND FOR A FIRST CAUSE OF ACTION (GBL Section 360-k; 360-m: Injunctive Relief) 3 9. Plaintiffs repeat and reallege paragraphs 1 through 38. 40. The Registered Service Marks are unique and have acquired secondary meaning as customers associate the logos with the services provided by Plaintiffs. 41. Pursuant to Section 360-k of the New York General Business Law: Any person who shall: (a) use, without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under this article in connection with the sale, distribution, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the source of origin of such good or services or (b) reproduce, counterfeit, copy or colorably imitate any such mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisements intended to be used upon or in connection with the sale or other distribution in this state of such goods or services; shall be liable in a civil action by the registrant for any and all of the remedies provided in section three hundred sixty-I of this article, except that under this subdivision the registrant shall not be entitled to recover profits or damages unless the acts have been committed with the intent to cause confusion or mistake or to deceive. N.Y. GBL § 360-k (emphasis added). 42. Section 360-1, which is made applicable through Section 360-k, allows for injunctive relief to remedy an infringement, in instances where there is the likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name: Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. N.Y. GBL § 360-1. This applies equally to registered marks and unregistered marks where there has been unfair competition under the common law. 8 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 10 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 43. Section 360-m of the New York General Business Law also allows for injunctive relief: Any owner of a mark registered under this article may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court, or to the complainant, to be destroyed or donated. The court, in its discretion, may enter judgment for an amount not to exceed thr ee times such profits and damages and/or reasonable attorneys' fees of the prevailing party in such cases where the court finds the other party committed such wrongful acts with knowledge or in bad faith or otherwise as according to the circumstances of this case. The enumeration of any right or remedy herein shall not affect a registrant's right to prosecute under the penal law. N.Y. GBL § 360-m (emphasis added). Unlike Section 360-1, Section 360-m does not require likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name. 44. The Infringing Logos are reproductions, counterfeits, copies, or colorable imitations of the Registered Service Marks. 45. The Infringing Logos have been used in connection with the sale, distribution, offering for sale, advertising of services in such a way as has/will continue to cause confusion or mistake or to deceive as to the source or origin of such services. 46. Upon information and belief, this has been done with the intention and the effect of creating confusion in the marketplace. 4 7. Plaintiffs have suffered damages as a result, including but not limited to lost profits and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of their marks. 9 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 •Syracuse, New York 13202 • (315) 422-1500 11 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 48. Wherefore, Plaintiffs demand judgment finding Defendants liable pursuant to Section 360-k and 360-m of the New York General Business Law, granting an injunction requiring the Infringing Logos to be permanently removed from any websites, print advertisements, billboards, trucks, trailers, or other public displays, and prohibiting Defendants from using any logo in the future that copies the recognizable "peak" silhouette of the Registered Service Marks. AS AND FOR A SECOND CAUSE OF ACTION (For Common Law Unfair Competition: Damages) 49. Plaintiffs repeat and reallege paragraphs 1 through 48. 50. The Registered Service Marks are unique and have acquired secondary meaning as customers associate the logos with the services provided by Plaintiffs. 51. Plaintiffs have expended substantial time, effort, and financial resources m promoting and protecting these marks. 52. Upon information and belief, Defendants have deliberately misappropriated Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers. 53. These actions were designed to and have had the effect of confusing Plaintiffs' customers and converting them to Defendants. 54. This constitutes bad faith or wrongful conduct. 55. Plaintiffs have suffered damages as a result, including but not limited to lost profits and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of their marks. 56. Wherefore, Plaintiffs hereby demand judgment finding Defendants liable for unfair competition and awarding damages in an amount to be determined at trial. 10 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 12 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 AS AND FOR A THIRD CAUSE OF ACTION (For Common Law Unfair Competition Claim: Injunctive RelieO 57. Plaintiffs repeat and realleges paragraphs 1 through 56. 58. General Business · Law Section 360-1 allows for injunctive relief to remedy an infringement based on unfair competition, in instances where there is the likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name. 59. The Registered Service Marks are unique and have acquired secondary meaning as customers associate the logos with the services provided by Plaintiffs. 60. Plaintiffs have expended substantial time, effort, and financial resources m promoting and protecting these marks. 61. Upon information and belief, Defendants have deliberately misappropriated Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers. 62. These actions were designed to and have had the effect of confusing Plaintiffs' customers and converting them to Defendants. 63. This constitutes bad faith or wrongful conduct. 64. This confusion in the marketplace is a threat to Plaintiffs' business reputation and/or the status of their marks. It is Plaintiffs' opinion that they offer premier services to their customers, which they promote using the Registered Service Marks. Plaintiffs' reputation is diluted when potential customers hire competitors thinking they are hiring The Roofing Guys. 65. The harm to Plaintiffs' reputation is irreparable through money damages. 66. The balancing of the equities favors injunctive relief in favor of Plaintiffs. 67. Wherefore, Plaintiffs demand judgment granting an injunction requiring the Infringing Logos to be permanently removed from any websites, print advertisements, billboards, 11 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 •Syracuse, New York 13202 • (315) 422-1500 13 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 trucks, trailers, or other public displays, and prohibiting Defendants from using any logo in the future that copies the recognizable "peak" silhouette of Plaintiffs' protected marks . . AS AND FOR A FOURTH CAUSE OF ACTION (GBL Section 360-k: Damages) 68. Plaintiffs repeat and reallege paragraphs 1 through 67. 69. The Registered Service Marks are unique and have acquired secondary meaning as customers associate the logos with the services provided by Plaintiffs. 70. A violation of General Business Law Section 360-k of the New York General Business Law warrants money damages, where "the acts have been committed with the intent to . cause confusion or mistake or to deceive." N.Y. GBL § 360-k (emphasis added). 71. In addition, Section 360-m provides additional remedies for violation of service marks such as the one at issue here, including treble damages and attorneys' fees: Any owner of a mark registered under this article may proceed by suit to enjoin the manufacture, use, display or sale of any counterfeits or imitations thereof and any court of competent jurisdiction may grant injunctions to restrain such manufacture, use, display or sale as may be by the said court deemed just and reasonable, and may require the defendants to pay to such owner all profits derived from and/or all damages suffered by reason of such wrongful manufacture, use, display or sale; and such court may also order that any such counterfeits or imitations in the possession or under the control of any defendant in such case be delivered to an officer of the court, or to the complainant, to be destroyed or donated. The court, in its discretion, may enter judgment for an amount not to exceed three times such profits and damages and/or reasonable attorneys' fees of the prevailing party in such cases where the court finds the other party committed such ~rongful acts with knowledge or in bad faith or otherwise as according to the circumstances of this case. The enumeration of any right or remedy herein shall not affect a registrant's right to prosecute under the penal law. N.Y. GBL § 360-m (emphasis added). 72. Upon information and belief, Defendants have deliberately misappropriated Plaintiffs' intellectual property to create marketplace confusion and take Plaintiffs' customers. 12 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 •Syracuse, New York 13202 • (315) 422-1500 14 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 73. Defendants' actions were designed to and have had the effect of confusing Plaintiffs' customers and converting them to Defendants. 74. This constitutes a knowing and bad faith infringement of Plaintiffs' intellectual property. 7 5. Plaintiffs have suffered damages as a result, including but not limited to lost profits and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of their marks. 76. Wherefore, Plaintiffs hereby demand judgment finding Defendants liable pursuant to Section 360-k of the New York General Business Law and awarding damages in an amount to be determined at trial but not to exceed three times its lost profits and other damages, as well as attorneys' fees in pursuing this action. AS AND FOR A FIFTH CAUSE OF ACTION (GBL Section 349: Damages and Attorneys' Fees) 77. Plaintiffs repeat and reallege paragraphs 1 through 76. 78. Defendants' conduct constitutes a deceptive trade practice pursuant to Section 349 of the New York General Business Law. 79. These actions were consumer-oriented. 80. Defendants' deceptive acts are likely to mislead a reasonable consumer acting reasonably under the circumstances. 81. Plaintiffs have suffered damages as a result, including but not limited to lost profits and loss of goodwill, commercial advantage, injury to their business reputation and/or dilution of their marks. 13 Bousquet Holstein PLLC • 110 West Fayette Street, Suite 1000 • Syracuse, New York 13202 • (315) 422-1500 15 of 17 FILED: ONONDAGA COUNTY CLERK 05/10/2017 06:56 PM INDEX NO. 2017EF2042 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/10/2017 PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully demands judgment as follows: A. Issuing an injunction, pursuant to GBL § 360-1 and 360-m, and on common law grounds, requiring the Infringing Logos to be removed from any websites, print advertisements, billboards, trucks, trailers, or other public displays, and prohibiting Defendants from any future infringements on the Registered Service Marks. B. Awarding Plaintiffs damages, pursuant to GBL § 360-m, in an amount to be determin