UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DINO DROP, INC., a Michigan Case No: 09-cv-10759 

Corporation, Hon: Paul D. Borman 

Plaintiff/Counter Defendant,

vs.

THE CHASE BAR & GRILL, L.L.C., a 

Michigan Corporation; BACMAR, LLC, a

Michigan Corporation, MARTINEZ 

MANAGEMENT GROUP and, PHILIP M. 

MARTINEZ, TERY MARTINEZ, ADAM 

MASON, BRET C. KONOL and DAVE 

BASTIANELLI, Individually and Severally,

Defendants/Counter Plaintiffs.

_____________________________________________________________________________

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY

JUDGMENT AS TO COUNTS I, II, III, IV & VII

Plaintiff, DINO DROP, INC., a Michigan Corporation (“Dino”), by and through its attorneys,

GARAN, LUCOW, MILLER, P.C., brings this motion for summary judgment as to liability only

with respect to Count I - Unfair Competition, Lanham Act (15 U.S.C. §1125(a)); Count II - Unfair

Competition - Common Law; Count III - Infringement of Common Law Trademark; Count IV -

Infringement of Common Law Trade Dress; and Count VII - Injunctive Relief, pursuant to Fed. R.

Civ. P. 56(C) for the reasons set forth in the accompanying brief. 

Plaintiff Dino Drop sought concurrence via written correspondence dated August 23, 2010,

in the reliefrequested herein pursuant to L.R. 7.1 from defendants. Concurrence was never received.

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1008 Filed 08/31/10 Page 1 of 31
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WHEREFORE, Plaintiff DINO DROP, INC., respectfully requests this Honorable Court

enter an order finding defendants engaged in unfair competition pursuant to the Lanham Act (15

U.S.C. §1125(a)); common law unfair competition; infringement of Dino Drop’s common law

trademark; infringement of Dino Drop’s common law trade dress; and that defendants are enjoined

from using any name, symbol or trade dress that is likely to cause confusion with the common law

trademark and trade dress owned by Dino Drop. 

GARAN LUCOW MILLER, P.C.

s/Timothy J. Jordan 

TIMOTHY J. JORDAN (P46098)

ROBERT D. GOLDSTEIN (P38298)

Attorneys for Plaintiff/Counter Defendant

1000 Woodbridge Street

Detroit, MI 48207

Date: August 31, 2010 (313) 446-5531

900907.1 tjordan@garanlucow.com

P46098

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1009 Filed 08/31/10 Page 2 of 31
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DINO DROP, INC., a Michigan Case No: 09-cv-10759 

Corporation, Hon: Paul D. Borman 

Plaintiff/Counter Defendant,

vs.

THE CHASE BAR & GRILL, L.L.C., a 

Michigan Corporation; BACMAR, LLC, a

Michigan Corporation, MARTINEZ 

MANAGEMENT GROUP and, PHILIP M. 

MARTINEZ, TERY MARTINEZ, ADAM 

MASON, BRET C. KONOL and DAVE 

BASTIANELLI, Individually and Severally,

Defendants/Counter Plaintiffs.

_____________________________________________________________________________

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PARTIAL

SUMMARY JUDGMENT AS TO COUNTS I, II, III, IV & VII

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1010 Filed 08/31/10 Page 3 of 31
i

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES. .................................................... ii

STATEMENT OF ISSUES PRESENTED. ......................................... iv

FACTUAL STATEMENT. ...................................................... 1

LEGAL ANALYSIS. .......................................................... 11

CONCLUSION. .............................................................. 22

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1011 Filed 08/31/10 Page 4 of 31
ii

INDEX OF AUTHORITIES

Cases Page

Aero-Motive Co. v. U.S. Aeromotive, Inc., 

922 F.Supp. 29, 41 (W.D. Mich. 1996). ...................................... 15

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).................................................. 11

Audi AG v. D’Amato, 

469 F.3d 534, 543 (6 Cir. 2006)............................................

th 14

Autozone, Inc. v. Tandy Corp., 

373 F.3d 786, 798 (6 Cir. 2004)............................................

th 16

Blockbuster Entertainment Group v. Laylco, Inc., 

869 F.Supp. 505 (E.D. Mich. 1994).......................................... 16

Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986)............................................... 11, 12

Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 

109 F.3d 275, 283 (6 Cir. 1997)...................................

th 15, 16, 17, 18

Estate of Mauro v. Borgess Medical Center,

137 F.3d 398 (6 Cir. 1998)................................................

th 12

Foodland Distributors v. Al-Naimi, 

220 Mich. App. 453, 456 (1996). ........................................... 20

Frisch's Rest., Inc. v. Elby's Big Boy of Steubenville, Inc.,

670 F.2d 642 (6 Cir. 1982).............................................

th 13, 18

General Motors Corp. v. Keystone Automotive Industries, Inc.,

453 F.3d 351, 352 (6 Cir. 2006)...................................

th 12, 16, 17, 18

Gledhill v. Fisher & Co., 

272 Mich. 353 (1935). ................................................... 20

Gregg v. Allen Bradley Co., 

801 F.2d 859, 861 (6 Cir. 1986)............................................

th 12

Herman v. Mobile Homes Corp., 

317 Mich. 233, 243-245 (1947). ........................................... 20 

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1012 Filed 08/31/10 Page 5 of 31
iii

Induct-O-Matic Corp. v. Inductotherm Corp., 

747 F.2d 358, 363 (6 Cir. 1984)............................................

th 15

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986).................................................. 11

Moore v. Philip Morris Cos., 

8 F.3d 335, 339-40 (6th Cir. 1993). ......................................... 11

Papo v. Aglo Restaurants, 

149 Mich. App. 285, 302 n 15 (1986). ...................................... 20 

Paul v. University Motor Sales Co., 

283 Mich. 587, 602 (1983). ............................................... 19

People v. Michigan Bell Telephone Co., 

246 Mich. 198, 204-205 (1929). ............................................ 20

Rymal v. Baergen, 

262 Mich. App. 274, 293-294 (2004). ....................................... 20

United Rentals (N. Am.), Inc. v. Keizer, 

355 F.3d 399, 406 (6th Cir. 2004). .......................................... 11

Wells v. Firestone Co., 

421 Mich. 641, 650 (1984). ............................................ 19, 20

Winn Oil Co. v. Thomas, 

839 F.2d 1183, 1186 (6 Cir. 1998)......................................

th 13, 17 

Statutes/Court Rules/Other Authority

Black’s Law Dictionary (7 ed.). .................................................

th 20

Fed. R. Civ. P. 11(c)(2). ......................................................... 1

Fed. R. Civ. P. 56(c). .......................................................... 11

Lanham Act 15 U.S.C. §1125. ................................................ 18, 23

McCarthy on Trademarks and Unfair Competition, §23.15[3] (1995). ................... 15

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1013 Filed 08/31/10 Page 6 of 31
iv

STATEMENT OF ISSUES PRESENTED

Defendants are liable, as a matter of law, to Dino Drop with respect to Count I - Unfair

Competition, Lanham Act (15 U.S.C. §1125(a)); Count II - Unfair Competition - Common Law;

Count III - Infringement of Common Law Trademark; Count IV - Infringement of Common Law

Trade Dress; and Count VII - Injunctive Relief pursuant to Fed. R. Civ. P. 56(C) based on

defendants’ unauthorized use of Dino Drop’s common law intellectual property (trademark and trade

dress) following receipt of a cease and desist letter.

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1014 Filed 08/31/10 Page 7 of 31
Bret Konol and Dave Bastianelli were initially identified individually as defendants in this 1

matter. While plaintiff contends they remain liable to plaintiff as owners of The Chase Bar &

Grill as well as by way of their individual actions, plaintiff assented to these defendants’ request

to be dismissed by way of a stipulated order submitted to defendants on August 23, 2010 and

attached hereto as Exhibit 1. However, at the time of filing this motion defendants rejected the

dismissal of Bret Konol and Dave Bastianelli (as had been requested by these two defendants)

unless plaintiff also paid these individuals approximately $8,000. Because plaintiff has refused

defendants’ attempt to extort payment from plaintiff to dismiss these two defendants as

requested, they remain, for purposes of this motion, defendants and any finding of liability

should apply equally to them. Despite plaintiff agreeing to their dismissal on August 23, 2010,

these defendants, in violation of Fed. R. Civ. P. 11(c)(2), filed a “Rule 11" motion on August 28,

2010, Document No. 70. 

It is plaintiff’s position, as set forth infra, that this court should deem BacMar nothing more than 2

the alter ego of Adam Mason and Teri Martinez and allow plaintiff to pierce the corporate veil

and hold Adam Mason and Teri Martinez personally liable for any and all actions taken by

BacMar in violation of any agreements reached with Dino Drop and/or the use of Dino Drop’s

intellectual property. 

1

FACTUAL STATEMENT

Plaintiff Dino Drop, Inc. is a domestic profit corporation formed in June of 2000. Since that

time, Dino Drop, Inc. (“Dino”) has owned and operated a restaurant/bar/catering business in

Ferndale, Michigan under the name “Dino’s Lounge” - - generally referred to as “Dino’s.” 

Defendants in this case include Philip Martinez, his wife Teri Martinez and his nephew

Adam Mason . Other defendants include The Chase Bar & Grill, owned by Bret Konol and Dave 1

Bastianelli (at least through July of 2010) as well as the Martinez Management Group and BacMar,

LLC. BacMar, LLC (formed from the first letters of Dean Bach and Philip Martinez’s last names)

is “owned” by Teri Martinez and Adam Mason. However, despite forming BacMar in or about

October 2008, Mr. Mason, Mr. Martinez and Mrs. Martinez testified that they have never held any

corporate meetings, do not maintain any corporate minutes or otherwise take any steps to ensure that

the “corporation” is operated as a corporation . The Martinez Group, according to Philip Martinez, 2

has as its members: Philip Martinez; Teri Martinez; Thomas Martinez; Philip Martinez’ sister

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1015 Filed 08/31/10 Page 8 of 31
Like BacMar, independent of any liability the Martinez Group has as an entity, the court should

3

deem the Martinez Group nothing more than the alter ego of Philip and Teri Martinez and allow

plaintiff to pierce the corporate veil and hold Philip Martinez and Teri Martinez personally liable

for any and all actions taken by Martinez Group in violation of any agreements reached with

Dino Drop and/or the use of Dino Drop’s intellectual property.

2

Ramona; father-in-law Wayne; and brother-in-law Chad . The remaining defendant is The Chase 3

Bar & Grill which was the owner of the bar/restaurant operating in Northville during the time frame

of infringement. 

In the summer of 2008 Bret Konol met with Dean Bach, an owner and agent of Dino Drop,

on at least five separate occasions about Dino Drop purchasing an establishment in Northville,

Michigan then operating under the name “The Chase Bar & Grill.” Based on those discussions,

which were to culminate in the purchase of The Chase Bar & Grill by Dino Drop, Dean Bach and

other individuals from Dino Drop began operations to reopen The Chase Bar & Grill to prevent the

liquor license from being forced into escrow. This required Dean Bach, and others on his team, to

enter The Chase Bar & Grill premises and start taking action to reopen the bar/restaurant. 

At the same time Dean Bach and others from Dino’s were preparing to open The Chase Bar

& Grill, unbeknownst to Mr. Bach, defendant Philip Martinez was also meeting with Brent Konol

and/or others about purchasing The Chase Bar & Grill. Philip Martinez, unaware of Mr. Bach’s

involvement, testified he saw “people in there cleaning up, looking like they’re ready to open the

doors again” one day while driving to a client, noting the bar was at this point closed. Exhibit 2,

Philip Martinez Deposition, pp. 24-25.

It ultimately came to light that Mr. Konol was negotiating with at least three separate

“groups” about purchasing The Chase Bar. With multiple bidders, each bidding against the other,

the price for the bar continued to increase to the point where Dino Drop was no longer interested in

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1016 Filed 08/31/10 Page 9 of 31
3

purchasing the bar despite Konol having originally agreed to sell the establishment to Dino Drop.

At this point it appeared Philip Martinez and his investors would be the ultimate purchasers of The

Chase Bar. 

Shortly after Dean Bach, as agent of Dino Drop, concluded that the bar in Northville was no

longer a viable option with a bidding war taking place, he received a phone call from Philip Martinez

in August of 2008. As testified to by Mr. Bach, upon calling Mr. Bach, “he [Philip Martinez] had

indicated that he was the other guy in the bidding war and that he would like to come and talk to me

about The Chase Bar.” Exhibit 3, p. 27 That same day a meeting took place between Dean Bach,

Philip Martinez, Teri Martinez and their daughter at Dino’s Lounge in Ferndale. According to Mr.

Bach’s testimony, Mr. Martinez stated that he really liked Dino’s restaurant, indicated that he

enjoyed the food and that his daughter really enjoyed the food as well. Mr. Martinez then informed

Mr. Bach that he would like to “mimic” Dino’s in Northville. Exhibit 3, pp. 28-29

At the deposition of Mr. Martinez, the following dialogue took place:

Q. So for whatever reason, you and Bret aren’t connecting and getting in

touch with Dean, you take it upon yourself to call Dean yourself?

A. That’s correct. I call his bar, Dino’s Lounge.

Q. And as far as you can recall, that phone call is occurring before the

Victorian Festival weekend where the bar opens up for the weekend.?

A. I believe it is, yes.

Q. Okay. Again, I’m just trying to get the timeline because that’s how

my brain works. So you call Dean at his establishment in Ferndale?

A. Yes, sir.

Q. Did you get him on that first phone call?

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1017 Filed 08/31/10 Page 10 of 31
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A. I believe I did, yes.

Q. What do you recall as far as the sum and substance of that telephone

conversation?

A. My recollection is that it’s my understanding that you’re interested in

teaming up, and so, you know, can I swing by tonight and meet you.

Exhibit 2, pp. 42-43

In further support of Mr. Bach’s testimony, Mr. Martinez testified as follows:

A. I pointblank asked Dean what do you want me for

because you know why I want you, you’re the - - you

got operations.

Q. And what was the response?

A. You got the money.

Q. So you have money, Dean has experience?

A. Yes.

Q. Where did the conversation go from there?

A. Let’s see what we can work out.

Q. Was that the sum and substance of that particular meeting or did you

get into more details?

A. That was about the extent of business.

Q. So at this point Dean recognizes you’re buying it and have the money

to do it, you recognize Dean owns a bar/restaurant and runs it, and

you’re willing - - both willing to pursue additional discussions as to

whether or not you can figure out a way to partner up?

A. Yes, sir. Exhibit 2, pp. 45-46

Based upon the discussions held at Dino’s Ferndale, Mr. Bach and Mr. Martinez set a golf

date for the following day to continue their discussions. During the golf game discussions included

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1018 Filed 08/31/10 Page 11 of 31
The licensing fee was to be 3% of gross proceeds which would pay for the use of Dino’s

4

trademark, trade dress and menu.

Without question, Mr. Bastianelli and Mr. Konol remain liable for the improper use of Dino 5

Drop’s intellectual property as Mr. Martinez testified that The Chase Bar & Grill remained the

owner of the bar in Northville. He further testified that he ultimately had to have the authority of

Mr. Konol and Mr. Bastianelli for the renaming and reopening to take place. Exhibit 2, pp. 59-

60, lines 23-14.

5

the idea of a licensing fee for Dino Drop’s trademark and trade dress as well as Dino Drop being 4

a partner (owner) in the Northville bar. 

The golf game ended with an “agreement to agree - - Dean Bach and Philip Martinez

agreeing to be partners (co-owners) with specific details to be worked out. Dino Drop would be a

partner, not through capital, but based on the knowledge and sweat equity of Dean Bach and other

employees of Dino’s Drop. 

A few days later a follow up meeting took place between Dean Bach, Philip Martinez and

Adam Mason. Refining the terms reached during the golf game, it was agreed at this meeting that

Dino Drop would be a one third owner of the Northville location as well as receive a 3% licensing

fee for use of its intellectual property from gross revenues. An agreement was reached at this

meeting wherein Dino Drop would be a one third owner of the Northville location (as written on a

napkin maintained by Philip Martinez but never produced) as well as receive a 3% licensing fee from

gross revenues. Exhibit 3, p. 76, lines 10-23.

Based upon these agreements, Dean Bach, acting on behalf of Dino Drop, and with full

authority from Philip Martinez, began refashioning The Chase Bar & Grill to be a sister restaurant

of Dino’s Lounge of Ferndale . It was agreed upon by all parties that the restaurant would be called 5

“Dino’s Sports Lounge.” With the name decided (Dino’s Sports Lounge), Mr. Bach ordered a sign

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1019 Filed 08/31/10 Page 12 of 31
Mr. Martinez admitted at his deposition that he had the ultimate say/decision on what the

6

establishment would be called. Exhibit 2, pp. 58-59, lines 19-2.

6

for the Northville location as well as began construction of the menus and overall design of the

restaurant . Menu items included many as used at Dino’s of Ferndale, including the following 6

examples:

Plaintiff Dino’s Lounge:

Classic Maurice - A fresh seasonal lettuce blend with Black Forest ham, roasted turkey, hard

boiled egg, vine ripe tomatoes, red onion, cheddar & Swiss cheese. Served with Hudson’s

style Maurice dressing. 

Defendant Dino’s Sports Grill:

Classic Maurice - A fresh seasonal lettuce blend with Black Forest ham, roasted turkey, hard

boiled egg, vine ripened tomatoes, red onion, cheddar & Swiss cheese. Served with Maurice

dressing. 

Plaintiff Dino’s Lounge:

Fish & Chips - Fresh North Atlantic Cod hand dipped in a tempura beer batter & deep fried

to a crispy golden brown served with shoe string fries & coleslaw. 

Defendant Dino’s Sports Grill:

Fish & Chips - Fresh North Atlantic Cod hand dipped in a tempura beer batter & deep fried

to a crispy golden brown served with shoe string fries & coleslaw. 

Plaintiff Dino’s Lounge:

Portobella Burger - Fresh Portobella mushroom caps toasted with red peppers, and

caramelized onions. Topped with crisp spinach, melted provolone cheese, and spicy mayo,

all served on an onion roll. 

Defendant Dino’s Sports Grill:

Portobella Burger - fresh Portobella mushroom caps toasted with red peppers and

caramelized onions. Topped with crisp spinach, melted provolone cheese, and spicy mayo.

Served on an onion roll. 

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1020 Filed 08/31/10 Page 13 of 31
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Plaintiff Dino’s Lounge:

Hot Italian Sub - Bavarian ham, Genoa salami, Sicilian pepperoni & mozzarella baked in a

fresh ciabatta baguette. Topped with lettuce, slice red onion, tomatoes, & pepperoncini.

served with a side of Italian dressing. 

Defendant Dino’s Sports Grill:

Hot Italian Sub - Bavarian ham, Genoa salami, Sicilian pepperoni & mozzarella baked in a

fresh ciabatta baguette. Topped with lettuce, slice red onion, tomatoes, & pepperoncini.

served with a side of Italian dressing. 

Plaintiff Dino’s Lounge:

Grilled Maurice - Bavarian ham, roasted turkey, cheddar & Swiss cheese, sliced red onion,

lettuce & tomato. Flat grilled on polish marble rye bread & served with a side of our

Hudson’s Maurice dressing. 

Defendant Dino’s Sports Grill:

Grilled Maurice - Bavarian ham, roasted turkey, cheddar & Swiss cheese, sliced red onion,

lettuce & tomato. Flat grilled on polish marble rye bread & served with a side of our

Maurice dressing. 

Plaintiff Dino’s Lounge:

Catering - Anytime, Anywhere, Anything you want. Dino’s can take care of all your catering

needs. Food, Beverage, Tents, Coordinating, Etc. . .

Defendant Dino’s Sports Grill:

Catering - Anytime, Anywhere, Anything you want. Dino’s can take care of all your catering

needs. Food, Beverage, Tents, Coordinating, Etc. . .

In all, more than eight employees of Dino’s Ferndale were involved in working at Dino’s

Northville in order that the establishment could be up and running in time to prevent the liquor

license from falling into escrow.

True to his word, Dean Bach was able to open as Dino’s Sports Lounge on September 17,

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1021 Filed 08/31/10 Page 14 of 31
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2008, coincidentally coinciding with the Victorian Festival which takes place annually in Northville.

After being open for a couple of days, the establishment once again closed temporarily to complete

the transformation from The Chase Bar &Grill to Dino’s Sports Lounge. Dino’s Sports Lounge then

reopened in early October 2008. In keeping with the agreement Mr. Bach had secured with Adam

Mason and Philip Martinez, Dean Bach continued to help manage Dino’s Sports Lounge (Northville)

and began working with local media to promote the newly branded restaurant, including, but not

limited to: appearing on Channel 2; participating in Rotary Club charities; private interviews with

local newspapers; and working with the Northville High School Drama Club. While engaging in

this activities, Mr. Bach continued to request Mr. Martinez memorialize their agreements. Despite

Mr. Martinez dragging his heels, accepting Mr. Martinez at his word, Mr. Bach continued to focus

his attention on running the new establishment. 

Eventually, it became clear to Mr. Bach that Mr. Martinez and his fellow defendants would

not honor any of the agreements that had Dino Drop being a one third owner, receiving one third of

the 10% gross revenue that was to be received by the Martinez Management Group (a/k/a Martinez

Group) and/or pay Dino Drop a 3% licensing fee based on monthly gross revenue. This harsh reality

came to light on or about November 24, 2008. In early December 2008, negotiations took place

regarding defendants’ breach and possible methods of resolution, including a licensing fee of 5% of

gross sales and/or payment of some money. Unfortunately, by mid December it was clear that

defendants were no longer going to honor any of the agreements. As a result, on or about December

17, 2008, defendants were advised to cease and desist all use of the trademark and trade dress owned

by Dino Drop. Exhibit 4

With defendants unwilling to acknowledge any responsibility, unwilling to compensate Dino

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1022 Filed 08/31/10 Page 15 of 31
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Drop for all of its efforts and continued use of its intellectual property, Dino Drop was forced to

initiate a lawsuit on February 27, 2009. Responding to that lawsuit, defendants admitted, by way

of an affirmative defense, that plaintiff Dino Drop licensed to defendants the use of plaintiff’s

intellectual property rights. (Document No. 12, p. 9, ¶6)

Defendants also decided to file a counterclaim which included a count for “breach of

contract.” Specifically, defendants (including Konol and Bastianelli) stated “to the extent

counterclaim-defendant has any rights in a mark containing the term ‘Dino’s,’ it through one of its

principals Mr. Dean Bach, expressly authorized Counterclaim-Plaintiffs to utilize the mark in

connection with its restaurant in Northville.” (Document No. 13, ¶29) Defendants further stated

“counterclaim-defendant’s attempt to revoke this authorization given to counterclaim-plaintiffs to

use a mark containing the word ‘Dino’s’ has caused it significant harm and damage including the

loss of goodwill and the loss of investment expended in selecting, adopting and promoting the

current name of its restaurant.” (Document No.13, ¶34)

Finally, as part of the relief requested by all defendants, they (again Konol and Bastianelli

were included) requested “counterclaim-plaintiffs be awarded damages due to breach of contract by

counterclaim-defendant.”

Notwithstanding defendants being served a cease and desist letter on December 17, 2008

(Exhibit 4), defendants continued to use the intellectual property of Dino Drop. The Defendants

continued to infringe Dino Drop’s trademark and trade dress through at least the end of May 2009.

Photographic evidence obtained in January 2009 confirms that, notwithstanding the cease and desist

letter, defendants continued to use Dino Drop’s trademark and trade dress. Exhibit 5 Other evidence

establishing defendants’ continued infringement of Dino Drop’s intellectual property after being

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1023 Filed 08/31/10 Page 16 of 31
Hence, defendants misrepresent in their motion for summary judgment on page 12 of Document 7

Number 69, that “Plaintiff is unable to establish any period of time in which the use of the

unregistered [common law] mark and trade dress occurred without authorization”.

10

served with a cease and desist letter includes website documents (Exhibit 6) as well as minutes from

at least one Northville City Council meeting in May 2009 . Those minutes include the following: 7

B. Request to Transfer Ownership of a Class C and SDM

licensed business with Dance-Entertainment permit and outdoor

service from the Chase Bar & Grill, L.L.C. to BacMar, L.L.C.

(Dino’s Restaurant)

It was also noted that Dino’s is changing its name to “Northville

Sports Den.” The change of name will not affect the license transfer

as the ownership is being transferred to BacMar, L.L.C. The name of

the business is not relevant if the business ownership does not

change. Exhibit 7 (emphasis added)

Philip Martinez also testified that he obtained an assumed name registration with Wayne

County for Dino’s Sports Lounge and/or Dino’s Sports Grill and that he has taken no effort to alter

or remove these registrations. (Exhibit 2, Philip Martinez deposition, p. 102) Mr. Martinez further

testified that he authorized his counsel to file assumed names with the state for Dino’s Sports Lounge

and/or Dino’s Sports Grill. Exhibit 2, p. 102) Attached as Exhibit 8 are filings with the State of

Michigan evidencing that assumed names were obtained for Dino’s Sports Lounge/Dino’s Sports

Grill on or about December 26, 2008, and that these remain active to this date notwithstanding this

lawsuit and the cease and desist letter served in December 2008 and constituted continued

infringement to this day. 

Finally, additional evidence of infringement may be found in the menu utilized by “Dino’s

Sports Grill” (upon information and belief, the name eventually adopted after receiving the cease and

desist letter) Exhibit 9

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1024 Filed 08/31/10 Page 17 of 31
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LEGAL ANALYSIS

Standard of Review

Summary judgment should be granted where there is no genuine issue as to any material fact.

Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when there is “sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). 

The moving party bears the initial responsibility of informing the Court of the basis for its

motion and identifying those portions of the record that establish the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden of showing that no

genuine issue of material fact exists may be discharged by pointing out “that there is an absence of

evidence to support the nonmoving party’s case.” Id. at 325. 

Once the moving party has met its burden, the nonmoving party must

go beyond the pleadings and come forward with specific facts to

demonstrate that there is a genuine issue for trial. Id. at 324.

Although the Court must “view all the facts and the inferences drawn

therefrom in the light most favorable to the nonmoving party,” United

Rentals (N. Am.), Inc. v. Keizer, 355 F.3d 399, 406 (6th Cir. 2004)

(citation omitted), the nonmoving party must do more than show that

there is some metaphysical doubt as to the material facts. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The nonmoving party must present significant probative evidence to

defeat the motion for summary judgment. See Moore v. Philip

Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993); see also Anderson,

477 U.S. at 249-50 (“If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.”)

(citations omitted). 

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1025 Filed 08/31/10 Page 18 of 31
12

Federal Rule of Civil Procedure 56(c) states that judgment shall be rendered if the movant

shows there is no genuine issue as to any material fact. It is sufficient for the moving party to show

that there is an absence of evidence to support the non-moving party’s case. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-325 (1986), see also Estate of Mauro v. Borgess Medical Center, 137

F.3d 398 (6 Cir. 1998). The moving party need not submit any affidavits, but may merely highlight th

the opposing party’s inability to make a sufficient showing on an essential element of a claim.

Celotex, 477 U.S. at 322. Once the non-moving party’s failure to make a showing sufficient to

establish the existence of an essential element to its case has been highlighted, summary judgment

must be entered. Id. at 322-23 (1986). See also Gregg v. Allen Bradley Co., 801 F.2d 859, 861 (6th

Cir. 1986). 

Liability

“Claims for trademark infringement and unfair competition are closely related and both hinge

on the central issue of likelihood of confusion.” General Motors Corp. v. Keystone Automotive

Industries, Inc., 453 F.3d 351, 352 (6 Cir. 2006). The court further held: th

Trademark infringement is a type of unfair competition . . . In many

factual situations, the same result is reached whether the legal wrong

is called trademark infringement or unfair competition. In such cases

the courts often lump them together and speak of them as identical

concepts. Today, the keystone of that portion of unfair competition

law that relates to trademarks is the avoidance of a likelihood of

confusion in the minds of the buying public. Whatever route one

travels, whether it by trademark infringement or unfair competition,

the signs give direction to the same query - whether defendant’s acts

are likely to cause confusion. Id.

The Sixth Circuit applies an eight factor test to determine the likelihood of confusion:

(1) Strength of the plaintiff’s mark;

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1026 Filed 08/31/10 Page 19 of 31
13

(2) Relatedness of the goods;

(3) Similarity of the marks;

(4) Evidence of actual confusion;

(5) Marketing channels used;

(6) Likely degree of purchaser care;

(7) Defendant’s intent in selecting the mark; and

(8) Likelihood of expansion of the product lines.

See Frisch's Rest., Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642 (6 Cir. 1982). th

The ultimate determination of whether a given set of foundational facts establishes a

likelihood of confusion is a legal conclusion. See Winn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th

Cir. 1998). While factual findings must be attempted with respect to the likelihood of confusion

factor set out above, “a plaintiff need not show that all, or even most, of the factors listed are present

in any particular case to be successful.” Id. In the case sub judice, there exist no genuine issues of

disputed material facts as to the existence of a likelihood of confusion between Dino’s Lounge

(Ferndale) and Dino’s Sports Lounge a/k/a Dino’s Sports Grill (Northville). In this case, without

question, each of the eight factors are met. From its inception, the Northville establishment was to

be a “sister” restaurant of Dino’s as operated in Ferndale. The name is virtually identical, and in

particular the primary mark “Dino’s” is included in both names. Both establishments are restaurants,

both utilize the same marketing channels, etc. Perhaps most telling is defendants’ intent in selecting

the mark (factor seven). Here we have testimony that Dino’s Sports Lounge (Northville) was so

named based on defendants’ desire to be associated with Dino’s Lounge (Ferndale).

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1027 Filed 08/31/10 Page 20 of 31
It is believed that defendants will argue that Dino Drop does not have any trademark or trade 8

dress that could be infringed, despite defendants acknowledging that they licensed the right to

use the name and trade dress. This argument appears to be premised on the fact that Dean Bach,

a restauranteur (and not an attorney) is unfamiliar with the term of art “secondary meaning.” 

While it is true that Mr. Bach testified he was uncertain whether the Dino name and trade dress

had “secondary meaning” this term was never defined for him. However, when questioned about

whether there was any value or distinction to the name and trade dress, Mr. Bach confirmed that

indeed such distinctiveness existed. Furthermore, a timely and appropriate objection was made

to defense counsel’s use of the term of art “secondary meaning” without defining it. 

Furthermore, defendants are attempting to make a distinction simply between the word “Dino” as

a name versus the stylized version of “Dino” used by defendants along with the trade dress at

issue. It is clear from Mr. Bach’s testimony that while he is unfamiliar with the term of art 

“secondary meaning,” he understands that the stylized name “Dino,” his caricature (Exhibit 10),

along with the overall trade dress and feel create a distinct impression which in technical terms is

“secondary meaning.” Therefore, without question the common law mark and trade dress at

issue are distinct and worthy of protection. 

14

1. Strength of Plaintiff’s Mark . 

8

The strength of a mark is a factual determination of the mark’s distinctiveness. Audi AG v.

D’Amato, 469 F.3d 534, 543 (6 Cir. 2006). As evidenced by the marks at issue (Exhibit 10) the th

intellectual property owned by Dino Drop and used by defendants as Dino’s Sports Lounge (and

subsequently Dino’s Sports Grill) is distinctive. The stylized logo and caricature, over and above

the name itself, evidence that the common law intellectual property at issue is strong. The fact that

defendants specifically solicited the use of the marks at issue from Dino Drop further evidences the

strength and merit of the mark. As noted previously, Mr. Bach testified that Mr. Martinez stated that

he really liked the restaurant (Dino’s Lounge) and that he would like to mimic it in Northville. Mr.

Bach specifically testified that it was Mr. Martinez’ idea to mimic Dino’sin Northville, referring to

it as a sister restaurant. Exhibit 3, pp. 28-29, 32-33. Also, as noted previously, Mr. Martinez sought

out and called Mr. Bach to inquire about Dino’s and acknowledge that he had the ultimate say in

what name was ultimately selected. Exhibit 2, pp. 58-59 Without question this factor weighs in

favor of Dino Drop and there can remain no question of fact.

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1028 Filed 08/31/10 Page 21 of 31
15

2. Relatedness of Goods.

The Sixth Circuit evaluates the relatedness of goods and services by assigning the dispute

in question a place within a “tri-part system”. Induct-O-Matic Corp. v. Inductotherm Corp., 747

F.2d 358, 363 (6 Cir. 1984). If the parties are in direct competition, confusion becomes likely when th

the marks are sufficiently similar. Id. In this case, it is clear that the parties are indeed direct

competitors. Both are in the restaurant and bar business. The “relatedness of goods” is further

evidenced by the fact that Philip Martinez, on behalf of defendants, specificallycontacted Dino Drop

(via its agent Dean Bach) about using the common law trademark and trade dress at issue in order

to operate a “sister” restaurant in Northville. Without question this factor weighs in favor of Dino

Drop and there can remain no question of fact. 

3. Similarity of Marks.

Similarity of marks is a factor of considerable weight. Daddy’s Junky Music Stores, Inc. v.

Big Daddy’s Family Music Ctr., 109 F.3d 275, 283 (6 Cir. 1997). Courts “must determine whether th

a given mark would confuse the public when viewed alone, in order to account for the possibility

that sufficiently similar marks ‘may confuse consumers who do not have both marks before them

but who may have a ‘general, vague, or even hazy, impression or recollection’ of the other party’s

mark.’” Id. at 283. While the entire mark must be considered, the dominant portions of the mark

receive greater weight in the likelihood of confusion analysis. McCarthy on Trademarks and Unfair

Competition, §23.15[3] (1995). When one feature in a mark has greater impact on the potential

buyer, it is properly given greater weight. Aero-Motive Co. v. U.S. Aeromotive, Inc., 922 F.Supp.

29, 41 (W.D. Mich. 1996). 

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1029 Filed 08/31/10 Page 22 of 31
16

In this instance, the marks are virtually identical. Plaintiff operates as “Dino’s Lounge.”

Using the same stylized version of the word “Dino’s” (the dominant portion) defendants first

operated as “Dino’s Sports Lounge” and later as “Dino’s Sports Grill.” Under the analysis set forth

herein, it is clear that this factor weighs in favor of Plaintiff Dino’s. 

4. Evidence of Actual Confusion.

Because of the recognized difficulty in securing evidence of actual confusion, “the lack of

such evidence is rarely significant.” Daddy’s Junky Music Stores, Inc., 109 F.3d at 284. Where such

evidence is present, however, it is weighed heavily. Id. Evidence of actual confusion has been

deemed the best evidence of a likelihood of confusion. Autozone, Inc. v. Tandy Corp., 373 F.3d 786,

798 (6 Cir. 2004). th

In this case there exists actual consumer confusion. This is evidenced by the uncontroverted

testimony of Mr. Bach wherein he testified he received emails and saw information on Craig’s List

that clearly demonstrated confusion between the Northville Bar, still operating improperly as Dino’s

and Dino’s of Ferndale. Exhibit 3, pp. 112-113. Without question this factor weighs in favor of

Dino Drop, there remains no question of fact, and on this alone plaintiff is entitled to summary

judgment.

5. Marketing Channels Used.

The parties’ marketing channels consist of how, and to whom, the respective goods or

services of the parties are sold. General Motors Corp. v. Keystone Automotive Industries, Inc., 453

F.3d 351, 357 (6 Cir. 2006). The greater degree in which the parties use the same or similar th

marketing channels, the greater the likelihood of confusion. Blockbuster Entertainment Group v.

Laylco, Inc., 869 F.Supp. 505 (E.D. Mich. 1994). “This factor involves two considerations: (1)

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1030 Filed 08/31/10 Page 23 of 31
17

whether the parties use the same means to market the product, and (2) whether the ‘predominant

customers’ are the same.” General Motors at 357.

In this instance, both parties use word of mouth as well as internet advertising. Both parties

also provide their services to the same type of clientele. Under the analysis established by the courts,

this factor weighs in favor of Dino Drop and there can remain no question of fact.

6. Likely Degree of Purchaser Care.

Generally, assessing the likelihood of confusion to the public, the standard used by the courts

is the typical buyer exercising ordinary caution. See Winn Oil Co. v. Thomas, 839 F.2d 1183, 1186

(6 Cir. 1998). Recognizing that defendants specifically chose to trade on the name and goodwill th

of Dino Drop, it is clear that sufficient care is used by the purchaser to seek out the defendants’

restaurant if in the Northville area believing it was affiliated with Dino’s Ferndale (a known

quantity). Therefore, without question this factor weighs in favor of Dino Drop and there remains

no question of fact.

7. Defendants’ Intent on Selecting the Mark.

The intent of the defendants in a trademark action is relevant because “purposeful” copying

indicates that the alleged infringer . . . believes that his copying may divert some business from the

senior user.” Daddy’s Junky Music Stores, Inc., 109 F.3d at 286. Direct evidence of intentional

copying is not necessary to prove intent, rather, the use of the mark with knowledge of another’s

prior use supports an inference of intentional infringement. Winn Oil v. American Way Service

Corp., 943 F.2d 595 (6 Cir. 1991). In the case sub judice, it is clear from the testimony that it was th

defendants’ intention to imitate Dino’s Lounge (Ferndale) in selecting the mark. Testimony clearly

sets forth that Philip Martinez, on behalf of defendants, specifically sought out and contacted Dean

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1031 Filed 08/31/10 Page 24 of 31
While the issue of monetary damages remains a question of fact for the jury, there can be no

9

doubt that defendants are liable for having engaged in unfair competition and infringement of

Dino’s intellectual property. Furthermore, the issue of monetary damages notwithstanding,

plaintiff is entitled to judgment as a matter of law as to Count VII - Permanent Injunctive Relief.

18

Bach about recreating Dino’s Lounge (Ferndale) in Northville. It is hard to imagine a situation

where the intent of the defendants in selecting the mark at issue is any clearer. As such, without

question this factor weighs in favor of Dino Drop and there can remain no question of fact.

8. Likelihood of Expansion of the Product Lines.

The strong likelihood that the alleged infringer will expand its business to compete with a

senior user will contribute to a finding of a violation. Daddy’s Junk Music Stores, Inc., 109 F.3d at

287. In this case, the parties are already in the same business. Without question this factor weighs

in favor of Dino Drop and there can remain no question of fact.

The necessary Frisch factors having been met, without question, defendants’ continued use

of the Dino name and associated intellectual property after December 17, 2008, constitutes

trademark/trade dress infringement. Furthermore, as set forth in General Motors Corp., supra,

defendants’ actions also constitute unfair competition. As such, it is clear defendants are liable under

plaintiff’s complaint for each of the following counts:

! Count I - Unfair Competition, Lanham Act (15 U.S.C. §1125(a)); 

! Count II - Unfair Competition - Common Law;

! Count III - Infringement of Common Law Trademark; and 

! Count IV - Infringement of Common Law Trade Dress9

Having engaged in these activities and/or otherwise violated Dino’s intellectual property,

plaintiff is entitled to permanent injunctive relief - Count VII.

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1032 Filed 08/31/10 Page 25 of 31
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Based on the uncontroverted facts, it is clear that defendants are individually and severally

liable to plaintiff. Philip Martinez, Teri Martinez and Adam Mason in their individual capacity (as

well as members of alleged corporations) utilized the common law trademark and trade dress of Dino

Drop to operate a bar located in Northville, Michigan. This activity ran from September 2008 (when

initially authorized) through April of 2009 despite being instructed via a cease and desist letter to

stop such use in December 2008. The corporate entities “The Chase Bar & Grill, LLC”, “BacMar,

LLC” and “Martinez Management Group” (a/k/a Martinez Group) are equally liable for the

continued use of Dino Drop’s trademark and trade dress after being advised to cease and desist.

These “corporations” are also responsible, just as the individuals are, for payment for use of the trade

dress and trademark during the licensed period as no fee has ever been paid. 

To the extent Philip Martinez, Teri Martinez and Adam Mason try to suggest that should

there exist any liability, it is limited to the corporations, as the “corporations” were mere

instrumentalities of these individuals and, were constructed to commit a wrong or fraud, the

corporate structures should be disregarded. 

While Michigan courts will generally respect the separate existence of corporate entities

(Wells v. Firestone Co., 421 Mich. 641, 650 (1984)), courts will disregard the separate existence

when it is “used to defeat public convenience, justify wrong, protect fraud, or defend crime.” Paul

v. University Motor Sales Co., 283 Mich. 587, 602 (1983). Although disregarding a separate

existence of corporation - - referred to as “piercing the corporate veil” - - is most often to protect a

corporation’s creditors, Michigan courts have recognized that the doctrine maybe invoked to protect

others when the equities are compelling. Well, supra at 650-651. The equities will typically justify

disregarding the separate existence of a corporate entity where (1) the entityis amere instrumentality

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1033 Filed 08/31/10 Page 26 of 31
Although many courts have stated that the entity must be used to commit a wrong or fraud 10

before the entity’s separate existence may be disregarded, see Rymal, supra at 293, it is not clear

that this is a necessary prerequisite to disregarding a corporation’s separate existence. Most of

these cases rely on a line of authorities that originate with Gledhill v. Fisher & Co., 272 Mich.

353 (1935). But after the decision in Gledhill, the Supreme Court explained that proof of fraud

is not a prerequisite for disregarding the separate existence of a corporate entity. See Herman v.

Mobile Homes Corp., 317 Mich. 233, 243-245 (1947) (distinguishing Gledhill, supra and holding

that a corporation’s separate existence may be disregarded where the corporation is so dominated

by another that it should be treated as a mere agent of its parent). See also Papo v. Aglo

Restaurants, 149 Mich. App. 285, 302 n 15 (1986) (noting that the Michigan Supreme Court, “on

more than one occasion, has acknowledged that the corporate veil may be pierced in the absence

of fraud.”)

20

of another individual or entity, (2) the entity was used to commit a wrong or fraud , and (3) there 10

was an unjust injury or loss. See Rymal v. Baergen, 262 Mich. App. 274, 293-294 (2004).

The fiction of distinct corporate existence is a convenience introduced into the law to serve

the ends of justice. Wells at 650. “However, when this fiction is invoked to subvert justice, it may

be ignored by the courts.” Foodland Distributors v. Al-Naimi, 220 Mich. App. 453, 456 (1996). 

The act of piercing the corporate veil, or disregarding the corporate entity, is “[t]he judicial

act of imposing personal liability on otherwise immune corporate officers, directors, and

shareholders for the corporation’s wrongful act.” Black’s Law Dictionary (7 ed) There is no single th

rule stating when a corporate entity may be disregarded. The courts view actions to pierce the

corporate veil on an case by case basis. “Where a corporation is so organized and controlled and its

affairs so conducted as to make it a mere instrumentality or agent or adjunct of another corporation,

its separate existence as a distinct corporate entity will be ignored and the two corporations will be

regarded in legal contemplation as one unit.” People v. Michigan Bell Telephone Co., 246 Mich.

198, 204-205 (1929). 

In this instance the testimony elicited from the defendants Philip Martinez, Teri Martinez and

Adam Mason is that no effort was ever made to properly operate either BacMar or Martinez

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1034 Filed 08/31/10 Page 27 of 31
Q. Have you ever attended any corporate meetings for BacMar? 11

A. Not that I’m aware of.

Q. Are you aware of any minute books for BacMar?

A. No. Exhibit 11, Adam Mason deposition, p. 29. lines 21-25.

* * *

Q. Do you review any of the tax returns or any other filings that are done on BacMar before

its’ done?

A. No, I do not.

Q. Do you know who does that?

A. Phil does.

Q. What percentage owner are you of BacMar, if you know?

A. I’m not sure.

Q. Do you know if any minute books are kept for BacMar?

A. I do not.

Q. Other than owning the liquor license for the restaurant bar, do you know if BacMar does

anything else?

A. I do not know. Exhibit 12, Teri Martinez Deposition, pp. 9-10

With respect to the Martinez Group itself, Teri Martinez responded to questions as follows:

21

Management Group as viable entities. No corporate meetings were ever conducted, no corporate

minutes were ever kept, no tax returns have been filed. Simply put, other than making a filing with

the state, no effort has ever been made to operate these entities as proper corporations. This, despite

both Teri Martinez and Philip Martinez being Certified Public Accountants (CPA’s). These

individuals are even uncertain as to what percent of shares they alleged own and/or what actually it

is these corporations are suppose to do . It is clear that these “corporations” are mere shams, 11

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1035 Filed 08/31/10 Page 28 of 31
Q. Do you know if there are any corporate books or minute books kept for this

organization?

A. I don’t know.

Q. Have you ever attended any corporate meetings for The Martinez Group?

A. No. Exhibit 12, Teri Martinez Deposition, p. 16.

22

instrumentalities of the individuals who are listed as the corporate owners. As such, plaintiff

contends that to the extent defendants attempt to hide behind these “corporate” entities, the court

should recognize the entities for what they are, pierce them and hold these individuals personally

liable for the actions of the corporations over and above their own personal liability. 

CONCLUSION

Despite Bret Konol (majority shareholder of The Chase Bar & Grill) agreeing to sell the

establishment at issue to Dino Drop, he ultimately sold it to the defendants. Within days, if not

hours, of this taking place, Philip Martinez, as lead defendant, contacted Dean Bach about Dino Drop

and The Chase Bar forming an alliance. Specifically, over the course of the next couple of days

Dean Bach, as agent of Dino Drop, Philip Martinez, Teri Martinez and Adam Mason agreed to Dino

Drop becoming a one third owner in the bar at issue as well as receiving other compensation based

on the Northville facility being a sister restaurant to the Dino’s Lounge of Ferndale. Based on these

agreements, Dean Bach and other employees of Dino Drop worked feverishly to ensure the

Northville location opened in sufficient time to prevent the liquor license from falling into escrow,

a condition which could be terminal to the future of the Northville bar as it often take months to get

a liquor license out of escrow. Despite Dino Drop living up to its end of the bargain, defendants

decided to take advantage of plaintiff and now argue there never existed any contract, they have

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1036 Filed 08/31/10 Page 29 of 31
23

never improperly used any common law trademarks or trade dress of Dino Drop and have never

engaged in any unfair competition and do not owe plaintiff one red cent. 

Notwithstanding defense counsel’s attempt to negate the existence of Dino Drop’s common

law intellectual property by questioning Mr. Bach about the term of art “secondary meaning”

(without defining it) it is clear that indeed there exists common law intellectual property that was

improperly used by defendants for which defendants are liable as a matter of law.

Each and every defendant is liable both in their individual capacity as well as “shareholders”

in the “corporations” formed. As the corporate necessities have not been followed, it is clear that

these “entities” are mere instrumentalities of their “shareholders” and as such should be pierced.

Without question, liability exists as a matter of law as to Counts I, II, III and IV.

Furthermore, based on the court’s finding of liability as to Counts I - IV plaintiff is entitled to

permanent injunction as requested in Count VII. 

WHEREFORE, Plaintiff DINO DROP, INC., respectfully requests this Honorable Court

enter an order finding defendants engaged in unfair competition pursuant to the Lanham Act (15

U.S.C. §1125(a)); common law unfair competition; infringement of Dino Drop’s common law

trademark; infringement of Dino Drop’s common law trade dress; and that defendants are enjoined

from using any name, symbol or trade dress that is likely to cause confusion with the common law

trademark and trade dress owned by Dino Drop. 

GARAN LUCOW MILLER, P.C.

s/Timothy J. Jordan 

TIMOTHY J. JORDAN (P46098)

ROBERT D. GOLDSTEIN (P38298)

Attorneys for Plaintiff/Counter Defendant

1000 Woodbridge Street

Detroit, MI 48207

Dated: August 31, 2010 (313) 446-5531

900907.1 tjordan@garanlucow.com

P46098

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1037 Filed 08/31/10 Page 30 of 31
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CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2010, I electronically filed the foregoing document with

the Clerk of the Court using the ECF System which will send notification of such filing to the

following: John S. Artz, Esq., Robert D. Goldstein, Esq., Sheryl A. Laughren, Esq. and James P.

Murphy, Esq.

GARAN LUCOW MILLER, P.C.

 s/Timothy J. Jordan 

TIMOTHY J. JORDAN (P46098)

Attorneys for Plaintiff/Counter-Defendant

1000 Woodbridge Street

Detroit, MI 48207

(313) 446-5531

tjordan@garanlucow.com

P46098

Case 2:09-cv-10759-PDB-MJH ECF No. 72, PageID.1038 Filed 08/31/10 Page 31 of 31