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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BLUE BELL INN, INC. )

601 Skippack Pike )

Blue Bell, PA 19422, ) 

Plaintiff, )

)

v. ) 02cv4068 JF

)

ANDREW KAMARATOS and )

AGGI, L.P., d/b/a BLUE BELL DINER, )

1324 Skippack Pike )

Blue Bell, PA 19422, )

Defendants. )

MEMORANDUM IN SUPPORT OF PLAINTIFF, BLUE BELL, INC.’s MOTION FOR 

PRELIMINARY INJUNCTION AGAINST TRADEMARK INFRINGEMENT BY

DEFENDANTS 

 SUMMARY

This action arises out of Defendants' operation of a restaurant under the name, “Blue Bell

Diner” together with a blue bell and ribbon logo, in the vicinity of the Plaintiff's restaurant

operating under the name, “Blue Bell Inn.”and using a similar blue bell and ribbon logo. Blue Bell

Inn has been, and presently is, engaged in providing restaurant services at the address indicated

above and has been well-known throughout the community for more than fifty years. Defendants

adopted and began using their confusingly similar service mark and logo AFTER being advised of

Blue Bell Inn’s Federal incontestable trademark rights and AFTER being requested by Blue Bell

Inn not to do so. Their infringing use is continuing.

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Background Facts

Plaintiff, Blue Bell Inn, Inc., is a corporation organized and existing under the laws of the

Commonwealth of Pennsylvania, and has its principal place of business at 601 Skippack Pike,

Blue Bell, PA 19422.

Defendant, Andrew Kamaratos, is an individual residing, on information and belief, at 647

Store Road, Harleysville, Pennsylvania 19438-2717, and is a partner in a limited partnership,

AGGI, L.P., having an address at 1340 East Ridge Pike, Plymouth Meeting, Pennsylvania 19462.

Defendant, AGGI, L.P., is a limited partnership, which owns and operates a business

under the fictitious name, Blue Bell Diner, located at 1324 Skippack Pike, Blue Bell, Pennsylvania

19422.

Blue Bell Inn secured and duly registered its trademarks and owns the United States

Trademark Registration numbers 1,758,963 ( “BLUE BELL INN”); 1,862,871 (design of a blue

bell and ribbon); and 1,899,357, “BLUE BELL CAFÉ” (copies attached as Exhibits A, B and C). 

These registrations have been accorded incontestability status as shown by the status reports of

the U.S. Patent and Trademark Office (included with each exhibit) indicating acceptance of

Section 8 and 15 affidavits of use.

On information and belief, Defendants are in the business of rendering restaurant services

under the name, “Blue Bell Diner Restaurant,” using a blue bell and ribbon logo (Exhibit D). 

Prior to the Defendants’ adoption and use of the name, “Blue Bell Diner Restaurant”, and

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the blue bell and ribbon logo, the Defendants were advised of Plaintiff’s trademark rights and

registrations, with the request to select another name for their restaurant in order to avoid any

legal problems (copy of communication attached as Exhibit E).

Subsequently, the Defendants adopted and used the mark, BLUE BELL DINER

RESTAURANT, and the blue bell and ribbon logo, in commerce at the address indicated above.

Thereafter, Defendants were again advised of Blue Bell Inn’s registrations with the

request that they cease and desist their use of the marks in violation of Blue Bell Inn’s trademark

rights (copy of communication attached as Exhibit F).

Even after this lawsuit was commenced, the Defendants continued their use of Blue Bell

Inn’s trademarks.(See Exhibit G, attached.) 

As a result of Blue Bell Inn’s extensive use and promotion of its marks, Blue Bell Inn has

established good will in its marks and the marks have acquired considerable value and have

become extremely well known to the public.

Defendants have advertised and used in commerce the service mark, BLUE BELL DINER

RESTAURANT, and a blue bell and ribbon logo in connection with restaurant services in the

vicinity of Plaintiff’s restaurant operated under the “BLUE BELL INN” trademark, together with

the blue bell and ribbon design. 

Defendants’ business knowingly trades on and exploits Plaintiff’s marks and reputation. 

Defendants' use of the BLUE BELL name and logo designations are confusingly similar in

sight, sound and meaning to Plaintiff's Federally registered, incontestable marks and serve to

confuse the public as to the source of Defendants’ services. 

The channels of trade and information distribution regarding the marks and delivery of

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services under the marks of the parties are the same for both the Plaintiff and the Defendants.

Plaintiff, Blue Bell Inn. Inc., is injured by the Defendants’ continued use of the confusingly

similar marks due to the public’s confusion as to the source of services provided under the

Plaintiff’s registered marks.

In a prior action against Blue Bell Diner (Blue Bell Inn. v. Blue Bell Diner, civil action No.

95-897 U.S.D.C. E.D.PA. , 1995) the costs to defendant to stop using the Blue Bell Inn

trademarks and logo and change over to another non-infringing mark were less than $4,300.00.

That case was settled for less than that amount and the defendant therein stopped using the Blue

Bell Inn trademarks and logo and agreed to change over to another non-infringing mark.

Argument and Authorities

In OPTICIANS ASSOCIATION OF AMERICA v. INDEPENDENT OPTICIANS OF

AMERICA et al, 920 F.2d 187 (3rd Cir, 1990), the court of appeals instructed the lower court to

enter a preliminary injunction, and in doing so, analyzed the factors dispositive of the present

motion.

First, it noted that the marks were incontestable. The same is true of Blue Bell Inn’s

marks.

15 USC Section 1115 provides, in pertinent part:

To the extent that the right to use the registered mark has become incontestable

 ...the registration shall be conclusive evidence of the validity of the registered

mark and of the registration of the mark, of the registrant’s ownership of the mark,

and of the registrant’s exclusive right to use the registered mark in commerce.

Next it found that the plaintiff had shown a probability of success on the merits. To do so,

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plaintiff had to establish that the marks were valid and legally protectable , that they were owned

by the plaintiff and that the defendants use of the marks to identify its services was likely to create

confusion concerning the origin of the services.

 Evidence of registration and incontestablity of the marks by the plaintiff (as is the case

here) established both validity and ownership of the marks involved in OPTICIANS.

Evidence of likelihood of confusion is plenary, where (as here) there is no dispute as to the

facts. Here, as a comparison of Exhibits A through C with Exhibits D and G shows, both parties

use the same and similar marks for offering the same services to the public in the same vicinity,

thereby creating a likelihood of confusion as to the source of origin of the services.

Next the court considered irreparable injury. There, as here, the concurrent use and

infringement damaged the plaintiff’s reputation and constituted irreparable injury for the purpose

of granting a preliminary injunction. The court noted that where the plaintiff made a strong

showing of likely confusion, irreparable injury followed as a matter of course. Plaintiff losses

control of its reputation where, as here, it losses control of the nature and quality of the goods

and services being supplied by the infringer under the plaintiff’s marks. (id pp.195,196)

As to balancing the relative harm in granting or not granting an injunction, the court’s

finding in OPTICIANS that there was no greater harm on one party that on the other supported

the issuance of an injunction. Here, in contrast, there is a greater harm to Plaintiff, Blue Bell Inn.

Here, the defendants’ losses as a result of not using the plaintiff’s Blue Bell marks would stem not

from their inability to render restaurant services, but rather from their inability to continue to

infringe upon Blue Bell Inn’s marks. Blue Bell Inn, on the other hand, would suffer lost business

from misdirected clientele; as well as damage to its reputation.

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The court in OPTICIANS also noted that the defendants had openly, intentionally and

illegally appropriated the marks, despite being warned not to. The same is true here.

Finally the court stated that the public interest favored issuance of a preliminary injunction

to preclude further use by the defendants of the plaintiff’s marks, since the likelihood of confusion

created by concurrent use of the marks, if continued, would damage the public interest. Once

again, the same is true here. Restaurants operating under the same and substantially similar marks

cannot be permitted to use their respective marks in the same geographic area. See Memorandum

and Order in ALASKA INC. v. ALASKA ICE CREAM COMPANY et al, civil action no. 94-7589,

E.D. PA. (copy attached as Exhibit H attached).

Conclusion

The Defendants' use of the Blue Bell name and logo consisting of a blue bell and ribbon ,

both of which designations are confusingly similar in sight, sound and meaning to Plaintiff's

registered marks, infringes Plaintiff's federally registered trademarks identified above.

Furthermore, the Defendants' acts and conduct as set forth above constitute willful infringement

of Plaintiff's trademarks.

The Defendants’ use of colorable imitations of Plaintiff’s marks are material, false

descriptions and representations tending falsely to describe or represent Defendants’ services, and

are designed to deceive, and have tendency to deceive buyers and customers of those services as

to the source of origin of the services.

Plaintiff has been irreparably harmed by Defendants’ acts as aforesaid.

WHEREFORE, Plaintiff, Blue Bell Inn, prays for entry of judgment providing that:

a. Defendants have infringed upon Plaintiff’s registered trademarks;

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b. Defendants’ infringement of said trademarks has been willful and

deliberate;

c. Defendants, their officers, agents, employees, privies, successors and

assigns, and all persons and entities holding by, through or under them, and those acting for or in

concert with them or in their behalf, be preliminarily enjoined from further infringement; and

restrained from:

i. Using Plaintiff’s service marks, BLUE BELL INN and the blue bell

and ribbon design, BLUE BELL CAFÉ, or any reproduction, counterfeit, copy or colorable

imitation thereof, such as the “BLUE BELL DINER” and the blue bell and ribbon design and the

designation “BLUE BELL DINER RESTAURANT” used by the Defendants, as a trademark or

service mark, in any way, such as part of a domain name, or in any other way in connection with

the services of defendants;

ii. Competing unfairly with Plaintiff in any way in the rendition of

restaurant services through the use of the Plaintiff’s marks, or any colorable imitations thereof;

iii. Causing likelihood of confusion with products or services

originating from Plaintiff by using Plaintiff’s marks, or any colorable imitations thereof; 

d. Defendants be required to deliver up for destruction all articles,

promotional and advertising material of any kind bearing the aforesaid trademarks or any

colorable imitations thereof.

e. Plaintiff be granted its reasonable attorneys’ fees and costs of bring this

motion; and

f. Plaintiff be granted such other and further relief as the equities of this case

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may require and the Court may deem just and proper.

Upon entry of this proposed Order, Plaintiff shall be required to post bond in the

amount of $5,000.00 pendente lite. A suitable order is attached.

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The undersigned counsel declares under the penalties of 18 U.S.C. section 1001

that all facts set forth above are, on information and belief, true.

Respectfully submitted,

BLUE BELL INN, INC.

By______________________________________

Frank J. Benasutti, Esquire

Pennsylvania Attorney ID No. 04645

Benasutti, P.C.

One Boca Commerce Center

551 N.W. 77th Street, Suite 111

Boca Raton, FL 33487

Tel. 561-994-5959

Fax 561-994-5990

email: IPTRIALS@aol.com

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