STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 1 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

Timothy S. DeJong, OSB No. 940662 

Email: tdejong@stollberne.com 

Jacob S. Gill, OSB No. 033238

Email: jgill@stollberne.com 

STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 

209 S.W. Oak Street, Suite 500 

Portland, Oregon 97204 

Telephone: (503) 227-1600 

Facsimile: (503) 227-6840 

Attorneys for Plaintiffs 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

TOO MARKER PRODUCTS, INC., and 

IMAGINATION INTERNATIONAL, 

INC., 

Plaintiffs, 

v. 

ALVIN AND COMPANY, INC. 

Defendant. 

 Case No. 

COMPLAINT FOR TRADEMARK 

INFRINGEMENT AND UNFAIR 

COMPETITION 

DEMAND FOR JURY TRIAL

Plaintiffs TOO MARKER PRODUCTS, INC. and IMAGINATION INTERNATIONAL, 

INC. (collectively, “Plaintiffs”), for their Complaint against ALVIN AND COMPANY, INC. 

(“Alvin”), state and allege as follows: 

NATURE OF THIS ACTION 

1. This is an action for trademark infringement and unfair competition under the

laws of the United States (The Lanham Act, codified at 15 U.S.C. § 1051, et seq.), and the 

common law of trademarks. 

3:14-cv-00773

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 1 of 13 Page ID#: 1
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 2 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

PARTIES 

2. Plaintiff TOO MARKER PRODUCTS, INC. (“Too Marker”) is a corporation

organized under the laws of Japan having its principal place of business at Ebisu Subaru Bldg. 

4F, 20-8, Ebisu 1-chome, Shibuya-ku, Japan 150-0013. Too Marker is engaged in the business 

of manufacturing, importing, and selling markers into the United States. 

3. Plaintiff IMAGINATION INTERNATIONAL, INC. (“Imagination

International”) is an Oregon corporation having its principal place of business at 2877 Chad 

Drive, Unit B, Eugene, Oregon 97408. Imagination International is the exclusive United States 

distributor of marker products for Too Marker. 

4. Defendant Alvin is a Connecticut corporation, having its principal place of

business at 1335 Blue Hills Ave., Bloomfield, CT 06002. On information and belief, Alvin is 

engaged in the business of importing markers into the United States. Alvin sells markers in the 

United States, including in Oregon. 

JURISDICTION AND VENUE 

5. This Court has subject matter jurisdiction pursuant to 15 U.S.C. § 1121 and 28

U.S.C. §§ 1331 and 1338(a). 

6. This Court has personal jurisdiction over Alvin because, among other things,

Alvin sells infringing markers to Oregon citizens and ships infringing markers directly to 

customers in Oregon. 

7. Venue in this judicial district is proper under 28 U.S.C. § 1391(b) and (c). In

accordance with LR 3-2, divisional venue lies with the Portland Division, because Alvin shipped 

infringing markers to Washington County, Oregon. 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 2 of 13 Page ID#: 2
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 3 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

STATEMENT OF FACTS COMMON TO ALL CLAIMS 

8. Plaintiff Too Marker has been in the business of manufacturing and selling 

marker products worldwide for more than twenty-five years. 

9. Plaintiff Imagination International has been in the business of importing and 

selling Too Marker products in the United States for more than fourteen years. 

10. Plaintiffs manufacture and sell a line of markers having distinctive squarish 

bodies and distinctive squarish cap-ends, which line of markers is referred to herein as the 

“COPIC” line of markers. 

11. Plaintiff Too Marker owns United States Trademark Registration No. 3,629,617 

(the “Marker Registration”) for the configuration of a marker having a squarish cross-sectional 

shape. A copy of the Marker Registration is attached hereto as Exhibit A. Too Marker first used 

the configuration denoted in the Marker Registration in commerce in connection with the goods 

identified in the Marker Registration at least as early as December 31, 1999. 

12. Plaintiff Too Marker owns United States Trademark Registration No. 4,113,852 

(the “Cap-End Registration”) for the configuration of the end portion of a marker cap having a 

squarish cross-sectional shape. A copy of the Cap-End Registration is attached hereto as 

Exhibit B. Too Marker first used the configuration denoted in the Cap-End Registration in 

commerce in connection with the goods identified in the Cap-End Registration at least as early as 

December 31, 1999. 

13. Plaintiff Imagination International is the exclusive United States distributor for 

Too Marker of the COPIC line of markers. 

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STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 4 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

14. Plaintiffs have learned that Alvin is importing into and selling in the United States 

a line of markers having squarish bodies and squarish cap-ends, which line of markers is 

identified as the “Heritage A-Line” line of markers. 

15. Alvin makes its Heritage A-Line markers available for sale through online 

retailers. When a customer in Oregon purchases Heritage A-Line markers from an online 

retailer, Alvin ships the purchased Heritage A-Line markers directly to the customer in Oregon. 

16. Alvin identifies certain online retailers on its website, www.alvinco.com. Alvin 

also hosts online third party “shops” on its website. When a customer in Oregon purchases 

Heritage A-Line markers from such a “shop”, the customer selects the desired Heritage A-Line 

markers on Alvin’s website and initiates and completes the purchase of the selected Heritage ALine markers on Alvin’s website, and Alvin ships the purchased Heritage A-Line markers 

directly to the customer in Oregon. 

17. The configuration of the Heritage A-Line markers is confusingly similar to the 

configuration denoted in Too Marker’s Marker Registrations and the configuration of Plaintiffs’ 

COPIC line of markers. 

18. The Heritage A-Line markers have substantially the same product configuration 

as Plaintiffs’ COPIC markers. 

19. Alvin’s use of the Heritage A-Line marker product configuration is intended to 

cause consumers to mistakenly believe that the Heritage A-Line markers are produced by or 

originate from Plaintiffs. 

20. The cap-end configuration of the Heritage A-Line markers is confusingly similar 

to the configuration denoted in Too Marker’s Cap-End Registration and the cap-end 

configuration of Plaintiffs’ COPIC line of markers. 

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STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 5 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

21. The Heritage A-Line markers have substantially the same cap-end configuration 

as Plaintiffs’ COPIC markers. 

22. Alvin’s use of the Heritage A-Line marker cap-end configuration is intended to 

cause consumers to mistakenly believe that the Heritage A-Line markers are produced by or 

originate from Plaintiffs. 

PLAINTIFFS’ FIRST CLAIM 

(Violation of Lanham Act § 32 – Marker Registration) 

23. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1 

through 22 of this Complaint as if fully set forth herein. 

24. The acts of Alvin described above constitute an infringement of Plaintiffs’ rights 

in and to the use of their federally registered mark, the Marker Registration, with consequent 

damages to Plaintiffs and the business and goodwill associated with and symbolized by the 

Marker Registration and, specifically, give rise to this claim under 15 U.S.C. § 1114. 

25. Alvin’s acts of trademark infringement have caused and are causing great and 

irreparable harm to Plaintiffs, Plaintiffs’ goodwill, and Plaintiffs’ rights to the marker 

configuration denoted in the Marker Registration (the “Registered Marker Configuration”), in an 

amount which cannot be adequately determined at this time and, unless restrained, will cause 

further irreparable injury and damage, leaving Plaintiffs with no adequate remedy at law. 

26. By virtue of the Marker Registration, Alvin had constructive notice of Plaintiffs’ 

exclusive nationwide right to use the Registered Marker Configuration on the goods identified in 

the Marker Registration at least as early as March 25, 2008. On information and belief, Alvin 

had actual knowledge of Too Marker’s use of the product configuration of the COPIC markers 

prior to March 25, 2008. 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 5 of 13 Page ID#: 5
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 6 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

27. Alvin’s acts of infringement have been and are being committed with actual 

knowledge of Plaintiffs’ rights and are willful and in gross disregard of Plaintiffs’ rights. 

28. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against 

Alvin, and anyone associated therewith, to restrain further acts of infringement, and to recover 

any damages proven to have been caused by reason of Alvin’s acts of infringement, and to 

recover enhanced damages based upon the willful, intentional, and/or grossly negligent activities 

of Alvin. 

PLAINTIFFS’ SECOND CLAIM 

(Violation of Lanham Act § 32 – Cap-End Registration) 

29. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1 

through 28 of this Complaint as if fully set forth herein. 

30. The acts of Alvin described above constitute an infringement of Plaintiffs’ rights 

in and to the use of their federally registered mark, with consequent damages to Plaintiffs and the 

business and goodwill associated with and symbolized by the Cap-End Registration and, 

specifically, give rise to this claim under 15 U.S.C. § 1114. 

31. Alvin’s acts of trademark infringement have caused and are causing great and 

irreparable harm to Plaintiffs, Plaintiffs’ goodwill, and Plaintiffs’ rights to the marker cap-end 

configuration denoted in the Cap-End Registration (the “Registered Cap-End Configuration”), in 

an amount which cannot be adequately determined at this time and, unless restrained, will cause 

further irreparable injury and damage, leaving Plaintiffs with no adequate remedy at law. 

32. By virtue of the Cap-End Registration, Alvin had constructive notice of Plaintiffs’ 

exclusive nationwide right to use the Registered Cap-End Configuration on the goods identified 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 6 of 13 Page ID#: 6
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 7 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

in the Cap-End Registration at least as early as January 3, 2012. Alvin had actual knowledge of 

Too Marker’s use of the cap-end configuration of the COPIC markers prior to January 3, 2012. 

33. Accordingly, Alvin’s acts of infringement have been and are being committed 

with actual knowledge of Plaintiffs’ prior rights and are willful and in gross disregard of 

Plaintiffs’ rights. 

34. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against 

Alvin, and anyone associated therewith, to restrain further acts of infringement, and to recover 

any damages proven to have been caused by reason of Alvin’s acts of infringement, and to 

recover enhanced damages based upon the willful, intentional, and/or grossly negligent activities 

of Alvin. 

PLAINTIFFS’ THIRD CLAIM 

(Violation of Lanham Act § 43) 

35. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1 

through 34 of this Complaint as if fully set forth herein. 

36. Plaintiffs manufacture, import, advertise, and sell marker products having a 

squarish body configuration and squarish cap-end configuration throughout the United States, 

including in Oregon. 

37. Prior to Alvin’s conduct that forms the basis for this Complaint, consumers had 

come to associate Plaintiffs’ squarish marker body configuration and squarish marker cap-end 

configuration exclusively with Plaintiffs’ products. 

38. Through their promotional efforts, business conduct, and continuous use of 

Plaintiffs’ squarish marker body configuration and squarish marker cap-end configuration, 

Plaintiffs have developed and maintained customers throughout the United States, including in 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 7 of 13 Page ID#: 7
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 8 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

Oregon. Plaintiffs’ squarish marker body configuration and squarish marker cap-end 

configuration have become, through widespread and favorable public acceptance and 

recognition, assets of substantial value as symbols of Plaintiffs, their high quality products, and 

their goodwill. 

39. On account of their long and continuous use of Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, and substantial advertising and sales of 

their products, Plaintiffs have established valid and enforceable rights in their squarish marker 

body configuration and squarish marker cap-end configuration. 

40. Notwithstanding Plaintiffs’ preexisting valid and enforceable rights in Plaintiffs’ 

squarish marker body configuration and squarish marker cap-end configuration, Alvin, without 

permission or approval, advertised and sold (or caused to be sold) products using a squarish 

marker body configuration and squarish marker cap-end configuration in the United States, 

including in Oregon. 

41. As a result of Alvin’s unauthorized use of Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, Plaintiffs and Alvin use (and have 

used) Plaintiffs’ squarish marker body configuration and squarish marker cap-end configuration 

in connection with identical and related products and services. 

42. Plaintiffs and Alvin offer (and have offered) their respective products and services 

to customers and/or the relevant consumer base in the same geographical locations and through 

the same trade channels. 

43. Alvin is a direct competitor of Plaintiffs. 

44. Alvin’s unauthorized use of Plaintiffs’ squarish marker body configuration and 

squarish marker cap-end configuration in connection with marker products is not authorized by 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 8 of 13 Page ID#: 8
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 9 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

Plaintiffs and is likely to cause confusion and mistake, and to deceive consumers as to the source 

or origin of Alvin’s products. 

45. Plaintiffs have a discernible interest in Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, and Plaintiffs’ have been, and continue 

to be, injured by Alvin’s unauthorized and unlawful use of Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration. 

46. Alvin’s unauthorized use of Plaintiffs’ squarish marker body configuration and 

squarish marker cap-end configuration, including on websites and in catalogs, is causing 

confusion among potential purchasers of Plaintiffs’ products. 

47. The acts by Alvin described above constitute an infringement of Plaintiffs’ rights 

in and to the use of their squarish marker body configuration and squarish marker cap-end 

configuration, with consequent damages to Plaintiffs and the business and goodwill associated 

with and symbolized by Plaintiffs’ squarish marker body configuration and squarish marker capend configuration and, specifically, give rise to this claim under 15 U.S.C.. § 1125. 

48. Alvin’s acts of unfair competition have caused and are causing great and 

irreparable harm to Plaintiffs, Plaintiffs’ goodwill, and Plaintiffs’ rights to Plaintiffs’ squarish 

marker body configuration and squarish marker cap-end configuration, in an amount which 

cannot be adequately determined at this time and, unless restrained, will cause further irreparable 

injury and damage, leaving Plaintiffs with no adequate remedy at law. 

49. On information and belief, Alvin’s acts of infringement have been and are being 

committed with actual knowledge of Plaintiffs prior rights in Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, and are willful and in gross disregard 

of Plaintiffs’ rights. 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 9 of 13 Page ID#: 9
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 10 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

50. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against 

Alvin, and anyone associated therewith, to restrain further acts of unfair competition, and to 

recover any damages proven to have been caused by reason of Alvin’s aforesaid acts of unfair 

competition, and to recover enhanced damages based upon the willful, intentional, and/or grossly 

negligent activities of Alvin. 

PLAINTIFFS’ FOURTH CLAIM 

(Common Law Trademark Infringement) 

51. Plaintiffs repeat and reallege each of the allegations contained in paragraphs 1 

through 50 of this Complaint as if fully set forth herein. 

52. On account of their long and continuous use of Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, and substantial advertising and sales of 

their products, Plaintiffs have established common law trademark rights in Plaintiffs’ squarish 

marker body configuration and squarish marker cap-end configuration. 

53. The acts by Alvin described above constitute an infringement of Plaintiffs’ 

common law rights in and to the use of their squarish marker body configuration and squarish 

marker cap-end configuration, with consequent damages to Plaintiffs and the business and 

goodwill associated with and symbolized by Plaintiffs’ squarish marker body configuration and 

squarish marker cap-end configuration, and, specifically, give rise to this action under the 

common law of trademarks. 

54. Alvin’s acts of trademark infringement have caused and are causing great and 

irreparable harm to Plaintiffs, Plaintiffs’ goodwill, Plaintiffs’ rights to Plaintiffs’ squarish marker 

body configuration and squarish marker cap-end configuration, in an amount which cannot be 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 10 of 13 Page ID#: 10
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 11 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

adequately determined at this time and, unless restrained, will cause further irreparable injury 

and damage, leaving Plaintiffs with no adequate remedy at law. 

55. On information and belief, Alvin’s acts of infringement have been and are being 

committed with actual knowledge of Plaintiffs prior rights in Plaintiffs’ squarish marker body 

configuration and squarish marker cap-end configuration, and are willful and in gross disregard 

of Plaintiffs’ rights. 

56. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against 

Alvin, and anyone associated therewith, to restrain further acts of infringement, and to recover 

any damages proven to have been caused by reason of Alvin’s aforesaid acts of infringement, 

and to recover enhanced damages based upon the willful, intentional, and/or grossly negligent 

activities of Alvin. 

PRAYER 

WHEREFORE, Plaintiffs pray for the following relief: 

A. A permanent nationwide injunction enjoining Alvin, its employees, agents, 

officers, directors, attorneys, representatives, successors, affiliates, subsidiaries and assigns, and 

all those in concert or participation with any of them from: 

(1) imitating, copying, using, reproducing, registering, attempting to register 

and/or displaying a squarish marker body configuration or any marker configuration which 

colorably imitates or is confusingly similar to Plaintiffs’ marker configuration; 

(2) imitating, copying, using, reproducing, registering, attempting to register 

and/or displaying a squarish marker cap-end configuration or any marker cap-end configuration 

which colorably imitates or is confusingly similar to Plaintiffs’ marker cap-end configuration; 

Case 3:14-cv-00773-AC Document 1 Filed 05/09/14 Page 11 of 13 Page ID#: 11
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 12 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

(3) using any other false description or representation or any other thing 

calculated or likely to cause confusion, deception, or mistake in the marketplace with regard to 

Plaintiffs’ squarish marker body configuration or squarish marker cap-end configuration; and 

(4) importing and selling any marker products which colorably imitate or are 

confusingly similar to Plaintiffs’ squarish marker body configuration or squarish marker cap-end 

configuration, including the Heritage A-Line marker products; 

B. An award of damages to compensate for the infringement by Alvin of Plaintiffs’ 

squarish marker body configuration and squarish marker cap-end configuration in an amount to 

be proven at trial, including Plaintiffs’ actual damages and Alvin’s profits attributable to the 

infringement; 

C. An order directing Alvin to deliver up for destruction all materials and matter in 

their possession or custody or under their control that infringes Plaintiffs’ squarish marker body 

configuration or squarish marker cap-end configuration, including, without limitation, all 

advertising and promotional materials; 

D. An award of Plaintiffs attorneys’ fees, treble actual damages, and treble damages 

based upon an accounting of Alvin’s profits, including all statutory enhancements, other 

enhancements, and attorneys’ fees on account of the willful nature of Alvin’s acts as provided in 

15 U.S.C. § 1117; 

E. An order directing Alvin to undertake corrective advertising in a form, manner, 

and frequency that is acceptable to Plaintiffs and the Court; and 

F. Such other relief, in law or in equity, to which Plaintiffs may be entitled, or which 

this Court may deem just and proper. 

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STOLL STOLL BERNE LOKTING & SHLACHTER P.C.

209 S.W. OAK STREET, SUITE 500

PORTLAND, OREGON 97204

TEL. (503) 227‐1600   FAX (503) 227‐6840

Page 13 -COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

JURY DEMAND 

Pursuant to Federal Rules of Civil Procedure 38(b), Plaintiffs hereby demand a trial by 

jury as to all issues so triable in this action. 

DATED this 9th day of May, 2014. 

STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 

By: /s/ Timothy S. DeJong 

Timothy S. DeJong, OSB No. 940662 

Jacob S. Gill, OSB No. 033238 

209 SW Oak Street, Suite 500 

Portland, OR 97204 

Telephone: (503) 227-1600 

Facsimile: (503) 227-6840 

Email: tdejong@stollberne.com 

 jgill@stollberne.com 

Attorneys for Plaintiffs 

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