IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

SPIRIT MONKEY, LLC, §

Plaintiff, § Case. No. 5:20-CV-00342

v. §

§

IMAGESTUFF.COM, INC., §

d/b/a SCHOOL LIFE, § DEMAND FOR JURY TRIAL

Defendant. §

PLAINTIFF’S ORIGINAL COMPLAINT

Plaintiff, Spirit Monkey, LLC, by and through its undersigned counsel, hereby sues 

Defendant, ImageStuff.com, Inc. d/b/a School Life, and in support, alleges and avers the following.

NATURE OF THE LAWSUIT

1. This is a civil action to (i) temporarily and permanently enjoin acts of the following: 

trademark infringement and false designation of origin under Section 43(a) of the Lanham Act, 15 

U.S.C. §1125(a); unfair competition; trademark infringement; palming off; and dilution under the 

law of the State of Texas, section 16.103 of the Texas Business & Commerce Code; cancellation 

of Defendant’s trademark registration; and (ii) recover damages, lost profits, attorneys’ fees, and 

costs. 

2. Defendant has infringed, misappropriated, and diluted Plaintiff’s trademark rights 

developed and used by Plaintiff. Defendant has also unfairly competed by the dilution intentional 

and unauthorized use of Plaintiff’s trademarks and common law trademark rights.

PARTIES

3. Plaintiff, Spirit Monkey, LLC (hereafter referred to as “Plaintiff” or “Spirit 

Monkey”) is a limited liability company organized under the laws of the State of Texas.

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4. Spirit Monkey’s principal place of business is at 20702 Stone Oak Parkway, Suite 

100, San Antonio, Texas 78258.

5. Defendant, ImageStuff.com, Inc., d/b/a School Life (hereafter referred to as 

“Defendant” or “ImageStuff”) is a corporation organized and existing under the laws of California, 

with places of business at 4045 Via Pescador, Unit A, Camarillo, CA 93012 and 17021 Seven 

Pines Dr, Spring, TX 77379.

6. Defendant has a Certificate of Authority with the Office of the Secretary of State 

of Texas to do business in Texas and is doing business in Texas.

7. Defendant has an office and manufacturing facility at 17021 Seven Pines Dr, 

Spring, TX 77379 for its business and President.

8. Defendant’s President and Director is James C. Stapleton and is listed with the 

Office of the Secretary of State of Texas as Defendant’s registered agent for service of process at 

17218 Cedar Placid Lane, Houston, TX 77068.

9. Defendant can be served through its registered agent, James C. Stapleton, at 17218 

Cedar Placid Lane, Houston, TX 77068.

JURISDICTION AND VENUE

10. This matter raises federal question arising out of and under the Lanham Act, 15 

U.S.C. § 1125.

11. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 

§§ 1331 and 1338(a), 15 U.S.C. § 1121, Chapter 85 of the Judiciary and Judicial Procedure Code, 

and has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a) for any other 

state-law claim asserted herein arising from the same transactions or occurrences and implicating 

the same questions of fact and related questions of law.

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12. The amount in controversy in this action exceeds the sum or value of $75,000, 

exclusive of interest and costs and is between citizens of different states. Accordingly, this Court 

has jurisdiction pursuant also to 28 U.S.C. § 1332.

13. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b), (c), (d) and/or 

1400(b). 

14. Mr. James Clay Stapleton is the Chief Executive Officer of Defendant.

15. Mr. James Clay Stapleton resides at 17218 Cedar Placid Lane, Houston, TX 77068.

16. Defendant has a regular and established place of business at 17021 Seven Pines Dr, 

Spring, TX 77379.

17. Defendant is subject to this Court’s general and specific personal jurisdiction.

18. Defendant has purposefully availed itself of the privileges of conducting business 

in the State of Texas and in this District, thereby creating sufficient minimum contacts within the 

State of Texas and this District. 

19. Defendant conducts business in this District, the claims alleged in this Complaint 

arise in this District, and the acts of infringement, dilution, and unfair competition have taken place 

and are continuing to take place in this District. 

20. Defendant also conducts business through its website, which is interactive and has 

an online store listing over 72 infringing items at its web site located at

https://www.schoollife.com/catalogsearch/result/?q=Brag+sticks. See Exhibit B.

21. ImageStuff actively and regularly conducts business in the State of Texas and the 

Western District of Texas through its business division called School Life and two interactive 

online stores. 

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22. Defendant has a regular and established place of business and manufacturing 

facility at 17021 Seven Pines Drive, Spring, Texas 77379. 

23. Defendant regularly markets and sells infringing products in the state of Texas and 

in this District.

24. Defendant regularly exhibits, markets, and sells infringing products at trade shows 

in Texas, including at the TEPSA, Texas Elementary Principals and Supervisors Association, trade 

show held in Austin, Texas.

25. Defendant markets and sells BRAG STICKS tags in San Antonio, Texas; Austin, 

Texas; Dallas, Texas; Houston, Texas; and many other cities and counties in Texas.

26. Defendant actively markets, sells and offers to sell products and services 

throughout the United States, including the Western District of Texas.

27. Defendant introduces products and services into the stream of commerce that 

incorporate infringing trademarks knowing that they would be sold in this judicial district and 

elsewhere in the United States.

28. Defendant states on its website http://www.imagestuff.com/about-imagestuff/ that 

it has locations in “Camarillo, California” and “Houston, Texas.” 

29. Defendant regularly and actively conducts business in the state of Texas and

qualified with the Texas Secretary of State to do business in Texas.

30. Defendant actively and regularly solicits and conducts business and has sold 

substantial infringing products in the state of Texas and the Western District of Texas and has

designated or maintained a Texas resident agent for service of process. 

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31. Therefore, Defendant may be served with process by delivering a copy of the 

complaint to the Defendant’s registered agent for service of process, Mr. James Clay Stapleton at 

17218 Cedar Placid Lane, Houston, TX 77068.

FACTUAL ALLEGATIONS

A. SPIRIT MONKEY AND ITS INTELLECTUAL PROPERTY

32. Spirit Monkey was founded in 2011 by Lisa deBonoPaula, a mother of two 

daughters and two sons. 

33. Spirit Monkey conducts its business in accordance with Christian values and strive 

to maintain a friendly, fair, and creative work environment that encourages ingenuity, diligence, 

dignity, and respect of everyone. 

34. Spirit Monkey designs, creates, and sells several products that fulfill its mission. 

35. Mrs. deBonoPaula created Spirit Monkey and its products to provide improved 

ways to enrich the educational experience for young people by recognizing and rewarding student 

participation, good behavior, personal and academic achievements, volunteer efforts, and other 

commendable growth the teachers and/or administrators may wish to incentivize in the student 

body or organization.

36. Spirit Monkey is dedicated to enriching the academic experience of school children 

by providing high-quality products that reward their achievements and promote participation in 

the learning environment. 

37. One such product is SPIRIT STICKS® patches or tags, which are small, generally 

rectangular patches or tags that students can earn, collect, and display on a Spirit RingTM, lanyard, 

or key ring. 

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38. SPIRIT STICKS® tags patches or tags promote school spirit and encourage both 

extrinsic and intrinsic motivation for students to perform at their best by providing meaningful 

rewards that have lasting value throughout and beyond the school year.

39. In the years since their creation, SPIRIT STICKS® patches or tags have received 

enormous praise from students, parents, teachers, school administrators throughout Texas, and 

have enjoyed significant commercial success in Texas and other states.

40. SPIRIT STICKS® patches or tags have achieved a huge financial success in Texas, 

and other states, which is attributable to their unique patented design, structure, and features.

41. SPIRIT STICKS® patches or tags have become famous throughout the state of 

Texas or at least throughout the San Antonio, Houston, Dallas, and Austin metropolitan areas.

42. Spirit Monkey has protected its business by federally registering its trademarks. 

43. Spirit Monkey has registered the mark SPIRIT STICKS® on the Principal Register 

of the United States Patent and Trademark Office, registration No. 4,326,600, registered April 30, 

2013. See Exhibit A. 

44. This registration is valid and subsisting and incontestable. 

45. Spirit Monkey owns the federally registered trademark SPIRIT STICKS®. 

46. A true and correct copy of the federal trademark registration for SPIRIT STICKS® 

is annexed hereto as Exhibit A.

47. The distinctive elements of Spirit Monkey’s SPIRIT STICKS® marks were copied 

by Defendant, so that one could substitute Defendant’s product for Spirit Monkey’s product 

without the recipient knowing they had been palmed off and they had been deceived.

B. DEFENDANT’S INFRINGING AND ILLEGAL ACTIONS

48. ImageStuff incorporated in California on February 20, 2004.

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49. The Chief Executive Officer of Defendant is James C. Stapleton, 17218 Cedar 

Placid Lane, Houston, TX 77068.

50. Defendant applied for and received a currently valid Certificate of Authority from 

the Secretary of State of Texas to transact business in Texas. 

51. Defendant’s registered agent for service of process is James C. Stapleton, 17218 

Cedar Placid Lane, Houston, TX 77068.

52. Defendant has a regular and established place of business at 17021 Seven Pines Dr, 

Spring, TX 77379. 

53. Defendant offers patches or tags directly competitive with, Spirit Monkey’s SPIRIT 

STICKS® patches or tags. 

54. Defendants claim to have been in business for over 20 years with locations in 

Camarillo, California; Portland, Oregon; and Houston, Texas.

55. Defendant makes and sells a knock-off patches or tags sold under the name BRAG 

STICKS (herein referred to as “patch or tag” products or goods).

56. Defendant’s patches or tags are offered for sale on the following websites: 

https://www.schoollife.com/school-products/brag-sticks.html and 

https://www.imagestuff.com/custom-spirit-brag-sticks-school.html.

57. A true and correct copy of screenshots of https://www.schoollife.com/schoolproducts/brag-sticks.html and https://www.imagestuff.com/custom-spirit-brag-sticks-school.html

are annexed hereto as Exhibits B and C, respectively.

58. In 2017, Plaintiff filed suit against Defendant for selling duplicates of Plaintiff’s 

SPIRIT STICKS® patches or tags, trade dress and trademark infringement.

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59. The suit resulted in a final judgment, a true and correct copy of which is annexed 

hereto as Exhibit D.

60. The final judgment provided that Defendant could no longer sell its patches or tags

that infringed Plaintiff’s United States Patent No. 9,196,174 and United States trademark 

registration No. 4,326,600 for SPIRIT STICKS® and the trade dress of Plaintiff’s SPIRIT 

STICKS® patches or tags.

61. Plaintiff’s original SPIRIT STICKS® patches or tags were high quality patches or 

tags.

62. In 2019, Defendant came out with another product to directly compete with 

Plaintiff’s SPIRIT STICKS® patches or tags.

63. Defendant named its new product BRAG STICKS because of its similarity to 

Plaintiff’s SPIRIT STICKS® mark.

64. Defendant’s new BRAG STICKS product is a competitive substitute for Plaintiff’s 

patches or tags, except they are manufactured from much less expensive molded rubber.

65. Defendant’s new rubber patches were allegedly first marketed July 1, 2019 under 

the name BRAG STICKS.

66. Defendant’s use of BRAG STICKS on its patches is a reproduction, counterfeit, 

copy, or colorable imitation of Plaintiff’s registered SPIRIT STICKS® mark in connection with 

the sale, offering for sale, distribution, or advertising of goods or services on or in connection with 

which such use is likely to cause confusion, or to cause mistake, or to deceive.

67. Defendant did not offer its patch or tag product for sale until long after Spirit 

Monkey’s SPIRIT STICKS® became a commercial success.

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68. Several of Defendant’s patches or tags are competitive with Spirit Monkey’s 

successful SPIRIT STICKS® patches or tags. 

69. A side-by-side comparison illustrates the copying by Defendant’s BRAG STICKS 

patches or tags from Spirit Monkey’s SPIRIT STICKS® patches or tags:

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70. Although Defendant substantially copied Spirit Monkey’s SPIRIT STICKS®, no 

trade name or trademark of Defendant’s is affixed to the patches or tags when it is given to the 

recipient or end user.

71. The lack of a trade name or trademark of Defendant affixed to the patches or tags

when it is given to the recipient or end user causes confusion and association with Plaintiff.

72. By leaving off any identification this enabled the substitution of Defendant’s 

products for Spirit Monkey’s SPIRIT STICKS® patches or tags without the end user knowing 

about the passing off and substitution.

73. Defendant adopted BRAG STICKS with the intent to create consumer confusion 

between its products and Spirit Monkey’s SPIRIT STICKS® patches or tags.

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74. On March 8, 2018, the United States District Court for the Western District of 

Texas entered into a STIPILATION AND ORDER between Plaintiff and Defendant. Exhibit D.

75. The Order stated:

10. Trademark Registration No. 4, 326,600 for SPIRIT STICKS is valid. School 

Life shall not use the "Spirit Stick" mark on or in connection with the advertisement and 

sale of its PatchTag products. To the extent any such reference may exist, School Life shall 

remove such reference to the "Spirit Stick" mark from its website and sales materials.

11. Defendant shall notify any customer or purchaser requesting or ordering "Spirit 

Sticks" products that it does not sell "Spirit Sticks" products

76. At the time of the ORDER, Defendant had changed its trademark to “BRAG 

TAGS.”

77. When the first suit was filed against Defendant in 2017, it was calling its products 

PatchTags and Patch Tags and PATCHTAGSTM and BragTags. 

78. Defendant was also using Spirit Sticks on its websites in connection with is Patch 

Tags products.

79. After the ORDER was entered on March 8, 2018, Defendant had to discontinue 

using SPIRIT STICKS®.

80. In June 2019, Defendant introduced a new product to compete directly with SPIRIT 

STICKS®. 

81. Defendant’s new product was similar to SPIRIT STICKS® but was made of threedimensional molded rubber.

82. If Defendant had chosen a new and unique trademark for Defendant’s new product, 

it would have taken time and effort to market the new product.

83. Defendant marketed its new product under the name BRAG STICKS in June 2019.

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84. Defendant obtained U.S. trademark registration No. 5,940,164 on December 17, 

2019 for BRAG STICKS for ornamental novelty badges for use as scholastic awards and

incentives and for celebrating birthdays and for promoting holidays and scholastic events.

85. Defendant’s alleged date of first use of BRAG STICKS is July 1, 2019.

86. Plaintiff is the owner of the trademark SPIRIT STICKS for patches or tags.

87. Plaintiff’s date of first use of SPIRIT STICKS® is July 17, 2011.

88. Defendant had actual knowledge of Plaintiff’s prior adoption and use of SPIRIT 

STICKS® before Defendant adopted and used BRAG STICKS.

89. Defendant’s use of BRAG STICKS constitutes dilution of Plaintiff’s SPIRIT 

STICKS® mark. 

90. Defendant’s use of BRAG STICKS will cause a likelihood of confusion with 

Plaintiff’s SPIRIT STICKS® mark. 

91. Plaintiff is the prior user of its SPIRIT STICKS® mark.

92. Defendant does not own or has not acquired any lawful rights in BRAG STICKS.

93. Defendant is not a prior good faith user of BRAG STICKS.

94. Defendant is not a lawful user of BRAG STICKS. 

95. BRAG STICKS is a colorable imitation of SPIRIT STICKS®.

96. Defendant’s use in commerce of BRAG STICKS is likely to cause confusion, or to 

cause mistake, or to deceive.

97. Defendant’s use in commerce of BRAG STICKS is a false designation of origin 

that is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, 

or association of Defendant with Plaintiff, or as to the origin, sponsorship, or approval of 

Defendant’s goods, services, or commercial activities by Plaintiff.

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98. Defendant’s use in commerce of BRAG STICKS is an infringement of SPIRIT 

STICKS®.

99. The common descriptive name of Plaintiff’s and Defendant’s directly competing 

products is patches or tags.

100. SPIRIT STICKS® and STICKS is not the common descriptive name of Plaintiff’s 

and Defendant’s directly competing patches or tags.

101. Defendant’s current web sites include coding and a database whereby anyone 

searching “Spirit” or “Spirit Sticks” on the web sites will be provided the search results shown in 

Exhibits A, B, C and D.

102. Defendant’s current web sites include coding and metatags whereby anyone 

searching “Spirit Sticks” on an internet search engine will be provided the search results shown 

Exhibits E and F. 

103. True and correct copy of screenshots Defendant’s website at imagestuff.com 

displaying the auto-populated suggested search terms and internal search results “SPIRIT 

STICKS” are annexed hereto as Exhibit E.

104. True and correct screenshots of Defendant’s website at schoollife.com displaying 

the auto-populated suggested search terms, internal search results for “SPIRIT STICKS”, and 

“SPIRIT” products page are annexed hereto as Exhibit F.

105. Defendant created and designed its web pages to create further customer confusion 

between its BRAG STICKS tags or patches and Spirit Monkey’s SPIRIT STICKS® tags or 

patches. 

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106. Spirit Monkey never authorized Defendant to use SPIRIT STICKS® or STICKS 

for patches or tags and did not authorize Defendant to use the phrase “Spirit Stick” or “STICK” to 

advertise and sell Defendant’s infringing products. 

107. Spirit Monkey’s SPIRIT STICKS® patches or tags are famous in the marketplace 

throughout the state of Texas, or at least throughout the San Antonio, Houston, Dallas, and Austin 

metropolitan areas, and are well known by students because it was the first company selling its 

SPIRIT STICKS® patches or tags throughout Texas and was a commercial success in Texas by 

selling tens of millions of items and amassing tens of millions of dollars in revenue.

108. Spirit Monkey and Defendant sell their products to the same schools or school 

organizations and the schools or school organizations give the products to students.

109. Defendant sold its BRAG STICKS patches or tags to the same market knowing that 

they would reach the same recipients.

110. These same recipients will assume a connection between the SPIRIT STICKS®

patches or tags of Spirit Monkey and BRAG STICKS patches or tags of Defendant. 

111. Defendant contributed to post-sale confusion or downstream confusion.

112. Defendant actively induced post-sale confusion or downstream confusion.

113. Defendant has contributed to and actively induced confusion in recipients of their 

BRAG STICKS patches or tags.

114. Defendant’s actions have caused confusion in the minds of persons able to

influence purchasing decisions or persons whose confusion presents a significant risk to the sales, 

goodwill, or reputation of Spirit Monkey’s SPIRIT STICKS® patches or tags.

115. Defendant’s actions have caused confusion on the part of potential consumers.

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116. Defendant’s actions have caused confusion of non-consumers whose confusion 

could create an inference that consumers are likely to be confused.

117. Defendant’s actions have caused confusion of non-consumers whose confusion 

could influence consumers.

118. Defendant advertises its patch or tag goods as follows:

and

• 3D Designs

• Fun New Shapes & Trendy Designs 

• Combine stock Brag Sticks for quantity discounts! 

• Approximate size 3.5" length x 0.6" width x 0.02" depth 

Student’s proudly display 3D Brag Sticks on their backpacks. 

Key rings and key chains sold separately, should you want an additional or different 

attachment.

and

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Brag Sticks are unique rubber sticks designed for students to earn and collect. They are 

perfect for collecting on backpacks where students proudly show off their accomplishments 

and promote school spirit. Watch student participation increase in academic, attendance 

and school fundraising opportunities with this economical reward. A fresh incentive only 

available at School Life.

and

Introducing BRAG STICKS® a new product by School Life to help improve social, 

emotional and academic outcomes for all students, including students with 

disabilities and students from underrepresented groups. BRAG STICKS® are 

flexible rubbery 3D Sticks offered exclusively at School Life. Students proudly 

display Brag Sticks on backpacks and anywhere! Mix and match designs for 

quantity discounts. Students eagerly collect and trade Brag Sticks with friends 

which promotes school spirit and spread positive awareness. This new Brag Stick 

sensation is proving successful in School Stores and for School Fund Raisers. 

PATENT PENDING.

and

We have been in business for over 20 years with locations in Camarillo, California, 

Portland, Oregon, and Houston, Texas. We are still growing, still owned by two 

sisters, Stacey Stapleton and Kim Madey, who go to work every day along with our 

family of art designers, machine operators, IT staff, administrators and office staff. 

You will find all of our family team members successful and eager to serve you, 

whether on the phone or through our website.

COUNT I: FEDERAL TRADEMARK INFRINGEMENT

119. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

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120. Defendant’s distribution, marketing, promotion, offering for sale, and sale of its 

BRAG STICKS tag or patch goods is likely to cause confusion, mistake, or deception as to the 

source, affiliation, sponsorship, or authenticity of Defendant’s goods. 

121. Because of Defendant’s unauthorized use of the name BRAG STICKS for patches 

or tags which is confusingly similar to Spirit Monkey’s federally registered SPIRIT STICKS® 

mark for patches or tags and SPIRIT STICKS, the public is likely to believe that the Defendant’s 

goods have been manufactured, approved by, or are affiliated with SPIRIT STICKS®. 

122. Thus, Spirit Monkey’s ability to gain revenue through the sale of patches or tags

using the SPIRIT STICKS® mark is limited.

123. Defendant’s unauthorized use of facsimiles of the SPIRIT STICKS® mark for 

patches or tags falsely represents Defendant’s patches or tags as emanating from or being 

authorized by Spirit Monkey and places beyond Spirit Monkey’s control the quality of products 

associated with the SPIRIT STICKS® mark.

124. Defendant’s infringement of the SPIRIT STICKS® mark is willfully intended to 

reap the benefit of the goodwill of Spirit Monkey, and violates Section 32(1) of the Lanham Act, 

15 U.S.C. § 1114(1).

125. Because of Defendant’s wrongful conduct, Spirit Monkey has suffered and will 

continue to suffer substantial damages. 

126. Under 15 U.S.C. § 1117(a), Spirit Monkey is entitled to recover damages, which 

includes all profits Defendant has made as a result of their wrongful conduct.

127. In addition, because Defendant’s infringement of Spirit Monkey’s SPIRIT 

STICKS® trademark is willful, the award of actual damages and profits should be trebled pursuant 

to 15 U.S.C. § 1117(b). 

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128. Spirit Monkey is also entitled to injunctive relief pursuant to 15 U.S.C. § 1116(a). 

Spirit Monkey has no adequate remedy at law for Defendant’s wrongful conduct because, among

other things, Defendant’s direct infringement, contributory infringement, and inducing 

infringement constitutes harm to Spirit Monkey and its SPIRIT STICKS® mark such that Spirit 

Monkey could not be made whole by any monetary award; if Defendant’s wrongful conduct is 

allowed to continue, the public is likely to become further confused, mistaken, or deceived as to 

the source, origin, or authenticity of the infringing materials; and Defendant’s wrongful conduct, 

and the resulting damage to Spirit Monkey, is continuing.

129. Spirit Monkey is also entitled to recover its attorneys’ fees and costs of suit pursuant 

to 15 U.S.C. § 1117.

COUNT II: FEDERAL FALSE DESIGNATION OF ORIGIN OR SOURCE

130. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

131. Spirit Monkey’s SPIRIT STICKS® mark is distinctive and indicates to consumers 

that its patches or tags and its services originate from a single source. 

132. Spirit Monkey’s SPIRIT STICKS® mark on its products and services symbolizes

the substantial goodwill of Spirit Monkey resulting in significant sales of its high-quality patches

or tags and services.

133. Defendant’s false designations of origin or source are likely to cause confusion, to 

cause mistake, or to deceive as to the origin or source of Defendant’s goods or services.

134. Defendant’s use in commerce of false designations of origin or source is likely to 

cause consumers to believe that Defendant’s and Spirit Monkey’s SPIRIT STICKS® goods or 

services come from the same origin or source, or that Spirit Monkey sponsors or approves the 

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goods or services of Defendant, or that Defendant and Spirit Monkey are somehow affiliated, 

connected, or associated with one another when in fact they are not.

135. Defendant’s use in commerce of false designations of origin or source is injuring 

the goodwill of SPIRIT STICKS®.

136. The actions of Defendant constitute a violation of the federal Lanham Act, 15 

U.S.C. § 1125.

137. At no time has Spirit Monkey authorized Defendant to create, distribute, sell, offer 

for sale, use, or otherwise put into commerce Defendant’s BRAG STICKS tag or patch goods.

138. Defendant is knowingly and intentionally misrepresenting and falsely designating 

to the public the affiliation, connection, association, origin, source, endorsement, sponsorship, and 

approval of Defendant’s BRAG STICKS tag or patch goods to create a likelihood of confusion by 

the public as to the affiliation, connection, association, origin, source endorsement, sponsorship, 

and approval of Defendant’s products.

139. Pursuant to 15 U.S.C. § 1116, Spirit Monkey is entitled to preliminary and 

permanent injunctive relief to prevent Defendant’s continuing use of false designations of origin 

or source.

140. Defendant’s false designations of origin or source is irreparably injuring Spirit 

Monkey’s goodwill and eroding Spirit Monkey’s share of market, and unless enjoined by this 

Court, will continue to do so.

141. Pursuant to 15 U.S.C. § 1117, Spirit Monkey is entitled to damages for Defendant’s 

violations, an accounting of profits made by Defendant on sales of its goods or services, and 

recovery of Spirit Monkey’s costs of this action.

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142. Defendant has willfully and wantonly used false designations of origin or source, 

and its actions have been calculated to confuse, mislead, or deceive consumers, and to injure the 

goodwill of Spirit Monkey.

143. The intentional engaging in false designation of origin or source by Defendant 

makes this an exceptional case entitling Spirit Monkey to an award of three times its actual 

damages and recovery of its reasonable attorneys’ fees.

COUNT III: FEDERAL FALSE ADVERTISING

144. Spirit Monkey incorporates by reference the factual allegations of the preceding

paragraphs as though fully set forth herein.

145. Defendant’s websites and statements made by Defendants or Defendant’s 

representatives contain literally and/or impliedly false and misleading information in direct 

violation of 15 U.S.C. § 1125(a). 

146. Pursuant to 15 U.S.C. §1117, Plaintiff is entitled to damages for Defendant’s 

Lanham Act violations, an accounting of profits made by Defendant or revenues of Defendant, as 

well as recovery of costs and reasonable attorneys’ fees incurred in this action. 

147. Defendant’s acts are willful, wanton, and calculated to deceive, and are undertaken 

in bad faith, making this an exceptional case entitling Plaintiff to recover additional damages and 

its reasonable attorneys’ fees pursuant to 15 U.S.C. §1117. 

148. Unless enjoined by this Court, Defendant’s acts will irreparably injure Plaintiff’s 

goodwill and erode its market share. 

149. Pursuant to 15 U.S.C. § 1116, Plaintiff is entitled to preliminary and permanent 

injunctive relief to Defendant’s continuing acts. 

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150. Defendant has willfully and wantonly used false representations in connection with 

its products, and its actions have been calculated to confuse, mislead, or deceive consumers, and 

to injure the goodwill of Spirit Monkey.

151. The intentional engaging in false representations by Defendant makes this an 

exceptional case entitling Spirit Monkey to an award of three times its actual damages and 

recovery of its reasonable attorneys’ fees.

152. Plaintiff is also entitled to prejudgment interest on their recovery. 

COUNT IV: COMMON LAW FALSE ADVERTISING

153. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

154. Defendant’s acts constitute false advertising under the common law of the State of 

Texas. 

155. Defendant’s acts of false advertising entitle Plaintiff to recover their damages and 

costs of this action together with an accounting of profits made by Defendant. 

156. The acts of Defendant’s have been malicious and calculated to injure Plaintiff. 

157. The willful, wanton, and malicious nature of Defendant’s conduct entitles Plaintiff

to an award of its reasonable attorneys’ fees and punitive damages against Defendant. 

158. Defendant’s false advertising is irreparably injuring Plaintiff’s goodwill and is 

eroding Plaintiff’s share of the market and unless enjoined by this Court will continue to do so. 

159. Further, Plaintiff may not have an adequate legal remedy in the event money 

damages cannot be properly calculated. 

160. Under the common law of the state of Texas, Plaintiff is entitled to preliminary and 

permanent injunctive relief to prevent Defendant’s continuing false advertisements. 

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161. Plaintiff is also entitled to prejudgment interest on its recovery.

COUNT V: TRADEMARK DILUTION IN VIOLATION OF 

TEX. BUS. & COMM. CODE § 16.103

162. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

163. "Dilution" means dilution by blurring or dilution by tarnishment, without regard to 

the presence or absence of: (A) competition between the owner of a famous mark and another 

person; (B) actual or likely confusion, mistake, or deception; or (C) actual economic harm.

164. The owner of a mark that is famous and distinctive, inherently or through acquired 

distinctiveness, in this state is entitled to enjoin another person's commercial use of a mark or trade 

name that begins after the mark has become famous if use of the mark or trade name is likely to 

cause the dilution of the famous mark.

165. A mark is considered to be famous if the mark is widely recognized by the public 

throughout this state or in a geographic area in this state as a designation of source of the goods or 

services of the mark's owner. 

166. Plaintiff’s SPIRIT STICKS® mark is famous mark that is widely recognized by the 

public throughout this state or in a geographic area in this state as a designation of source of the 

goods or services of Plaintiff. 

167. Based on the activities described above, Defendant has diluted and continue to 

dilute the distinctiveness of the Spirit Monkey’s famous SPIRIT STICKS® trademark under 

section16.103 of the Texas Business & Commerce Code.

168. Defendant’s acts complained of above are likely to injure Spirit Monkey’s business 

reputation or to dilute the famous, distinctive quality of the SPIRIT STICKS® trademark by, at

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the very least: (i) eroding the public’s exclusive identification of Spirit Monkey’s famous SPIRIT 

STICKS® trademark, (ii) lessening the capacity of Spirit Monkey’s famous SPIRIT STICKS®

trademark to identify and distinguish Spirit Monkey’s goods and services, (iii) associating the 

Spirit Monkey's SPIRIT STICKS® trademark with products and/or services of inferior quality, 

and (iv) by impairing the distinctiveness of Spirit Monkey’s famous SPIRIT STICKS® trademark.

169. Defendant’s use of BRAG STICKS is likely to weaken or otherwise jeopardize 

Spirit Monkey’s highly valuable rights in its SPIRIT STICKS® trademark. 

170. Defendant’s use of BRAG STICKS® constitutes “dilution by blurring" and causes 

an association arising from the similarity between Defendant’s BRAG STICKS and Plaintiff’s

famous SPIRIT STICKS® mark that impairs the famous SPIRIT STICKS® mark's 

distinctiveness.

171. Defendant’s use of BRAG STICKS® constitutes “dilution by tarnishment" and 

causes an association arising from the similarity between Defendant’s BRAG STICKS and 

Plaintiff’s famous SPIRIT STICKS® mark that harms the famous SPIRIT STICKS® mark's 

reputation.

172. Pursuant to Texas Business & Commerce Code section 16.103, Spirit Monkey is 

entitled to bring this action to enjoin Defendant from further injuring Spirit Monkey’s business 

reputation or diluting the distinctive quality of the Spirit Monkey's SPIRIT STICKS® trademark.

173. Spirit Monkey will be irreparably injured unless such action is enjoined by this 

Court as provided by Texas law.

174. Defendant’s’ dilution has been willful and intentional, making this case eligible for 

an award of enhanced profits and damages under Texas law, as well as an award of Spirit Monkey’s 

attorneys’ fees.

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COUNT VII - COMMON LAW TRADEMARK INFRINGEMENT

175. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

176. Spirit Monkey’s use of the SPIRIT STICKS® mark predates any alleged use by 

Defendant in the United States. 

177. Defendant’s use of the BRAN STICKS mark is calculated to deceive the relevant 

consuming public into accepting and purchasing Defendant’s products in the mistaken belief that 

they are Spirit Monkey’s products, or that that they are sponsored by, connected with, or supplied 

under the supervision of Spirit Monkey. 

178. Such actions permit, and will continue to permit, Defendant to use and benefit from 

the goodwill and reputation earned by Spirit Monkey to readily obtain customer acceptance of its

goods offered for sale, and to give Defendant’s goods a salability they would not otherwise have, 

all at Spirit Monkey’s expense.

179. Defendant’ aforementioned acts constitute trademark infringement in violation of 

the common law of the State of Texas.

180. As a direct and proximate result of Defendant’s above-described conduct, Spirit 

Monkey has suffered and will continue to suffer damages in an amount that is not presently 

ascertainable but will be established at trial.

181. Unless enjoined by this Court, Defendant’s above-described conduct will cause 

irreparable injury, for which Spirit Monkey has no adequate remedy at law, injury to the reputation 

and good will of Spirit Monkey as well as confusion and deception among consumers.

182. Defendant’s acts complained of herein have been and are grossly negligent, 

deliberate, willful, intentional, in bad faith, malicious, with full knowledge and conscious disregard 

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of Spirit Monkey’s rights, were intended to cause confusion, and to trade off the good will in Spirit 

Monkey’s SPIRIT STICK mark, making this an exceptional case and entitling Spirit Monkey to 

enhanced damages and attorneys’ fees at least as provided under Texas Civil Practices & Remedies 

Code § 41.003.

COUNT VII: COMMON LAW UNFAIR COMPETITION

183. Spirit Monkey incorporates by reference the factual allegations of the preceding 

paragraphs as though fully set forth herein.

184. Defendant’s use of the BRAG STICKS mark is calculated to deceive the relevant 

consuming public into accepting and purchasing Defendant’s products in the mistaken belief that 

they are Spirit Monkey’s products, or that that they are sponsored by, connected with, or supplied 

under the supervision of Spirit Monkey. 

185. Such actions permit, and will continue to permit, Defendant to use and benefit from 

the goodwill and reputation earned by Spirit Monkey to readily obtain customer acceptance of the 

goods offered for sale, and to give Defendant’s goods a salability they would not otherwise have, 

all at Spirit Monkey’s expense.

186. Defendant’s adoption and use of the BRAG STICKS mark on its goods constitutes 

unfair competition, palming off, passing off, and unjust enrichment in violation of the common 

law of the State of Texas. 

187. By such use, Defendant has represented that its goods are those supplied by Spirit 

Monkey. 

188. This use creates likelihood that the public will be confused or deceived.

189. Defendant’ aforementioned acts constitute unfair competition in violation of the 

common law of the State of Texas.

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190. As a direct and proximate result of Defendant’s above-described conduct, Spirit 

Monkey has suffered and will continue to suffer damages in an amount that is not presently 

ascertainable but will be established at trial.

191. Unless enjoined by this Court, Defendant’s above-described conduct will cause 

irreparable injury, for which Spirit Monkey has no adequate remedy at law, injury to the reputation 

and good will of Spirit Monkey as well as confusion and deception among consumers.

192. Defendant’s acts complained of herein have been and are grossly negligent, 

deliberate, willful, intentional, in bad faith, malicious, with full knowledge and conscious disregard 

of Spirit Monkey’s rights, intended to cause confusion, and to trade off the good will in Spirit 

Monkey’s SPIRIT STICK® mark, thus making this an exceptional case and entitling Spirit 

Monkey to enhanced damages and attorneys’ fees, at least as provided under Texas Civil Practices 

& Remedies Code section 41.003.

COUNT IX: COMMON LAW PALMING OFF

193. Spirit Monkey incorporates by reference the factual allegations in the preceding 

paragraphs as if fully set forth herein.

194. Defendant has engaged in direct palming off and passing off, contributory palming 

off and passing off, and inducing palming and passing off its goods and services as originating or 

sponsored by Spirit Monkey, in violation of the common laws of the State of Texas.

195. Defendant’s acts of palming off and passing off entitle Spirit Monkey to recover its 

damages and costs of this action, together with an accounting of profits made by Defendant.

196. Defendant’s palming off and passing off its goods or services as originating or 

sponsored by Spirit Monkey has been malicious and calculated to injure Spirit Monkey and was 

with knowledge of Spirit Monkey’s prior rights and intentional. 

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197. The willful, wanton and malicious nature of Defendant’s conduct entitles Spirit 

Monkey to an award of its reasonable attorney’s fees and punitive damages.

198. Defendant’s palming off and passing off its goods or services as originating or 

sponsored by Spirit Monkey is irreparably injuring Spirit Monkey’s goodwill and eroding Spirit 

Monkey’s share of the market; and unless enjoined by this Court, Defendant will continue to do 

so.

199. Further, Spirit Monkey may not have an adequate legal remedy in the event money 

damages cannot properly be calculated.

200. Under the common law of the State of Texas, Spirit Monkey is entitled to 

preliminary and permanent injunctive relief to prevent Defendant from continuing to palm off and 

pass off its goods and services and the goods and services of Spirit Monkey.

COUNT X: CANCELLATION OF FEDERAL TRADEMARK APPLICATION

201. Spirit Monkey incorporates by reference the factual allegations in the preceding 

paragraphs as if fully set forth herein. 

202. In any action involving a registered mark, the Court may determine the right to 

registration, order the cancellation of registrations, in whole or in part, restore cancelled 

registrations, and otherwise rectify the register with respect to the registrations of any party to the 

action.

203. Defendant’s BRAG STICKS registration should be canceled under 15 U.S.C. 

§ 1119 pursuant to the final order of the court in an action involving the registered mark.

NOTICE OF LITIGATION HOLD REQUIREMENT

204. Defendant is hereby notified that they are legally obligated to locate, preserve, and 

maintain all records, notes, drawings, documents, data, communications, materials, electronic 

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recordings, audio/video/photographic recordings, and digital files, including edited and unedited 

or “raw” source material, and other information and tangible things that Defendant know, or 

reasonably should know, may be relevant to actual or potential claims, counterclaims, defenses, 

and/or damages by any party or potential party in this lawsuit, whether created or residing in hard 

copy form or in the form of electronically stored information (hereinafter collectively referred to 

as “Potential Evidence”).

205. As used above, the phrase “electronically stored information” includes without 

limitation: computer files (and file fragments), e-mail (both sent and received, whether internally 

or externally), information concerning e-mail (including but not limited to logs of e-mail history 

and usage, header information, and deleted but recoverable e-mails), text files (including drafts, 

revisions, and active or deleted word processing documents), instant messages, audio recordings 

and files, video footage and files, audio files, photographic footage and files, spreadsheets, 

databases, calendars, telephone logs, contact manager information, internet usage files, and all 

other information created, received, or maintained on any and all electronic and/or digital forms, 

sources and media, including, without limitation, any and all hard disks, removable media, 

peripheral computer or electronic storage devices, laptop computers, mobile phones, personal data 

assistant devices, Blackberry devices, iPhones, Android-based smart phones, Windows-based 

smart phones, video cameras and still cameras, and any and all other locations where electronic 

data is stored. These sources may also include any personal electronic, digital, and storage devices 

of any and all of Defendant’s agents or employees if Defendant’s electronically stored information 

resides there.

206. Defendant is hereby further notified and forewarned that any alteration, destruction, 

negligent loss, or unavailability, by act or omission, of any Potential Evidence may result in 

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damages or a legal presumption by the Court and/or jury that the Potential Evidence is not 

favorable to Defendant’s claims and/or defenses. To avoid such a result, Defendant’s preservation 

duties include, but are not limited to, the requirement that Defendant immediately notify their 

agents and employees to halt and/or supervise the auto-delete functions of Defendant’s electronic 

systems and refrain from deleting Potential Evidence, either manually or through a policy of 

periodic deletion.

JURY DEMAND

207. Plaintiff demands a trial by jury on all issues triable as such.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment for itself and against Defendant by this Court

as follows:

A. Enter an injunction prohibiting Defendant and its respective officers, directors, 

agents, servants, employees, related companies, licensees, and all persons acting for, with, by, 

though, and under any of them, from any and all use and direct and indirect infringement of the 

Plaintiff’s Marks, and any other Plaintiff’s marks, names and/or logos, and false designations of

origin or source and Defendant’s dilution, false advertising, unfair competition and palming off or 

any derivation thereof directly or indirectly, for itself, or through, on behalf of, or in conjunction 

with the sale or offer of any products or services by Defendant;

B. Enter judgment in favor of Plaintiff for actual damages in an amount to be 

determined by the Court, where such damages are trebled due to Defendant’s willful and 

intentional disregard of Plaintiff’s known rights, pursuant to at least 15 U.S.C. § 1117 and Texas 

Business & Commerce Code sections 16.102-16.104;

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C. Enter judgment in favor of Plaintiff for Defendant’s profits in an amount to be 

determined by the Court, where such profits are trebled due to Defendant’s acts of willful and 

intentional disregard and violation of Plaintiff’s known rights, pursuant to at least 15 U.S.C.§ 1117 

and Texas Business & Commerce Code sections 16.102-16.104; 

D. Award Plaintiff all costs of the action and reasonable attorneys’ fees pursuant to the 

provisions of at least 15 U.S.C. § 1117 and Texas Business & Commerce Code sections 16.102-

16.104; 

E. Order Defendant to file with this Court and to serve upon Plaintiff, within thirty 

(30) days after the entry and service on Defendant of an injunction, a report in writing and under 

oath setting forth in detail the manner and form in which Defendant have complied with the 

injunctions; 

F. Allow Plaintiff recovery of all damages it has sustained because of Defendant’ 

activities, and that said damages be trebled;

G. Cancel Defendant’s federal trademark registration No. 5,940,164;

H. Order that an accounting be directed to determine Defendant’ profits resulting from 

the activities complained of herein, and that such profits be paid over to Plaintiff, increased as the 

Court finds to be just under the circumstances of the case;

I. Allow Plaintiff recovery of its costs of this action and prejudgment and postjudgment interest; and

J. An award to Plaintiff of such further relief at law or in equity as the Court deems 

appropriate, just and proper.

DATED this 18 day of March, 2020.

Respectfully submitted,

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__________________________

Charles W. Hanor

Texas Bar No. 08928800

Hanor Law Firm, PC

750 Rittiman Road

San Antonio, TX 78209

(210) 829-2002 Phone

(210) 829-2001 Fax

chanor@hanor.com

Attorneys for Plaintiff

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