GENOVA, BURNS & GIANTOMASI 

John W. Bartlett, Esq. 

494 Broad Street 

Newark, New Jersey 07102 

(973) 533-0777 

PATTISHALL, McAULIFFE, NEWBURY, 

 HILLIARD & GERALDSON LLP 

311 South Wacker Drive, Suite 5000 

Chicago, Illinois 60606 

(312) 554-8000 

Attorneys for Plaintiffs PepsiCo, Inc., 

and The Concentrate Manufacturing Company of Ireland 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

PEPSICO, INC., a North Carolina corporation, 

and THE CONCENTRATE 

MANUFACTURING COMPANY OF 

IRELAND, a corporation governed by the laws 

of the Republic of Ireland, 

Plaintiffs, 

vs. 

R. R. IMPORTACIONES, INC., a New Jersey 

corporation, JAMES MARTINEZ, an 

individual, and JOHN DOES 1-10, 

Defendants.

CIVIL ACTION NO. 

COMPLAINT FOR: 

(1) VIOLATION OF SECTION 32 OF 

THE LANHAM ACT; 

(2) VIOLATION OF SECTION 43(a) 

OF THE LANHAM ACT; 

(3) VIOLATION OF NEW JERSEY 

STAT. § 56:4-1; 

(4) UNFAIR COMPETITION IN 

VIOLATION OF NEW JERSEY 

COMMON LAW; 

(5) TRADEMARK INFRINGEMENT 

IN VIOLATION OF NEW 

JERSEY COMMON LAW; 

(6) VIOLATION OF SECTION 43(c) 

OF THE LANHAM ACT; and 

(7) VIOLATION OF NEW JERSEY 

STAT. § 56:3-13.20. 

Plaintiffs, PepsiCo, Inc., and the Concentrate Manufacturing Company of Ireland, by way 

of Complaint against Defendants R. R. Importaciones, Inc., James Martinez, and John Does 

1-10, allege as follows: 

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PARTIES

1. Plaintiff, PepsiCo, Inc. (“PepsiCo”), is a North Carolina corporation with its 

principal place of business at 700 Anderson Hill Road, Purchase, New York 10577. 

2. Plaintiff, The Concentrate Manufacturing Company of Ireland (“CMCI”), is a 

corporation governed by the laws of the Republic of Ireland with its principal place of business 

at Corner House, Fourth Floor, 20 Parliament Street, Hamilton, HM HX, Bermuda, and is a 

wholly-owned subsidiary of PepsiCo. 

3. On information and belief, Defendant R.R. Importaciones, Inc. (“RR 

Importaciones”) is a corporation governed by the laws of the State of New Jersey with its 

principal place of business at 141-143 3rd Street, Passaic, New Jersey 07055. 

4. On information and belief, Defendant James Martinez is an individual residing at 

62 1st Street, Passaic, New Jersey 07055, and controls and directs the actions of 

RR Importaciones as president of the same. 

5. On information and belief, John Does 1-10 (collectively, the “Doe Defendants”) 

are individuals and business entities who have participated or assisted in the conduct alleged 

herein or are otherwise responsible therefor. The identity of these Doe Defendants presently is 

not and cannot be known to Plaintiffs, but these persons and/or entities will be added as named 

defendants to this action as and when they are identified. Unless otherwise indicated, 

RR Importaciones, James Martinez, and the Doe Defendants are referenced collectively herein 

as “Defendants.” 

JURISDICTION AND VENUE

6. This Court has jurisdiction by virtue of the fact that: (1) this is an action arising 

under the Trademark Act of 1946, as amended, 15 U.S.C. §§ 1051, et seq. (the Lanham Act), 

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jurisdiction being conferred in accordance with 15 U.S.C. § 1121 and 28 U.S.C. § 1338(a) and 

(b); and (2) this is a civil action between citizens of different states in which the value of the 

amount in controversy exceeds seventy-five thousand dollars ($75,000.00), exclusive of interest 

and costs, jurisdiction being conferred in accordance with 28 U.S.C. § 1332. Jurisdiction for the 

claims made under New Jersey state law is conferred in accordance with the principles of 

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a). 

7. Venue is proper in this Court under 28 U.S.C. § 1391(b) in that, on information 

and belief, a substantial part of the events or omissions giving rise to the claim occurred in this 

district, or under 28 U.S.C. § 1391(c) in that, on information and belief, Defendants are deemed 

to reside in this District because they are subject to personal jurisdiction in this District. 

FACTS

8. PepsiCo manufactures, markets and distributes soft drinks throughout the United 

States. 

THE FAMOUS PEPSI MARKS 

9. Since long prior to the acts of Defendants complained of herein, PepsiCo has 

made continuous use of the trademarks PEPSI, PEPSI-COLA, a distinctive red, white and blue 

logo, and combinations of variations on this logo with PEPSI and PEPSI-COLA (the “PEPSI 

marks”) in connection with the sale and advertising of cola flavored soft drinks (the “PEPSI 

products”). 

10. PepsiCo owns, among many others, the following federal trademark registrations 

issued by the United States Patent and Trademark Office for the PEPSI marks used in connection 

with its PEPSI products: 

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MARK REG. NO. REG. DATE GOODS 

PEPSI 824,150 February 14, 1967 Soft drinks and syrups and 

concentrates for the preparation 

thereof. 

PEPSI-COLA 824,151 February 14, 1967 Soft drinks and syrups and 

concentrates for the preparation 

thereof. 

Design mark 824,153 February 14, 1967 Soft Drinks. 

PEPSI and Design 2,100,417 September 23, 

1997 

Soft Drinks. 

PEPSI and Design 2,104,304 October 7, 1997 Soft Drinks. 

These registrations are valid, subsisting and incontestable, and constitute conclusive evidence of 

PepsiCo’s exclusive right to use the PEPSI marks for the goods specified in the registrations. 

15 U.S.C. §§ 1065, 1115(b). 

11. PepsiCo and its authorized bottlers have sold billions of dollars worth of PEPSI 

products under the PEPSI marks throughout the United States and have spent hundreds of 

millions of dollars to advertise and to promote the PEPSI products under the PEPSI marks. 

12. PepsiCo’s extensive sales, promotion and advertising have caused the PEPSI 

marks to become exceedingly famous. 

13. The PEPSI marks possess an extraordinarily valuable goodwill that PepsiCo 

owns. 

14. PEPSI products are bottled and distributed in the United States by PepsiCo or 

PepsiCo’s authorized bottlers pursuant to Exclusive Bottling Appointment agreements. The 

Exclusive Bottling Appointment agreements authorize those bottlers, and no one else, to bottle 

and distribute PEPSI products in their respective territories. 

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THE MANZANITA SOL MARKS

15. Since long before the acts of Defendants complained of herein, CMCI has made 

continuous use of the trademarks MANZANITA SOL and MANZANITA SOL and Design 

(collectively, the “MANZANITA SOL marks”) in connection with the sale and advertising of 

soft drinks (collectively, the “MANZANITA SOL products”). 

16. CMCI owns, inter alia, the following federal trademark registrations issued by the 

United States Patent and Trademark Office for the MANZANITA SOL marks used in 

connection with the MANZANITA SOL products: 

MARK REG. NO. REG. DATE GOODS 

MANZANITA SOL 3,156,112 October 17, 2006 Soft drinks, and syrups and 

concentrates for making the 

same. 

MANZANITA SOL 

and Design 

3,167,654 November 7, 2006 Soft drinks, and syrups and 

concentrates for making the 

same. 

Said registrations are valid and subsisting, and constitute prima facie evidence of the validity of 

the MANZANITA SOL marks and of CMCI’s ownership of and exclusive right to use these 

marks for the goods listed therein. 15 U.S.C § 1057(b). 

17. CMCI has sold millions of dollars worth of MANZANITA SOL products under 

the MANZANITA SOL marks throughout the United States and has dedicated substantial 

amounts of money and other resources to advertise and promote the MANZANITA SOL 

products under the MANZANITA SOL marks. 

18. CMCI’s sales, promotion, and advertising have caused the MANZANITA SOL 

marks to become well-known among consumers. 

19. The MANZANITA SOL marks represent valuable goodwill that CMCI owns. 

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20. CMCI is a wholly-owned subsidiary of PepsiCo, and the MANZANITA SOL 

products are bottled and distributed in the United States by PepsiCo or PepsiCo’s authorized 

bottlers pursuant to Exclusive Bottling Appointment agreements. The Exclusive Bottling 

Appointment agreements authorize those bottlers, and no one else, to bottle and distribute 

MANZANITA SOL products in their respective territories. 

DEFENDANTS’ ACTIONS 

21. Defendants have sold soft drinks manufactured in Mexico and meant for sale in 

Mexico bearing the PEPSI marks and the MANZANITA SOL marks (“Mexican product”) in the 

United States and in the State of New Jersey, including in this judicial District. 

22. The Mexican product is subject to bottling agreements that restrict sales of the 

Mexican product to Mexico. 

23. The Mexican product is neither authorized nor intended for exportation out of 

Mexico or for importation into, or sale or distribution in, the United States. 

24. The Mexican product that Defendants sell within the United States is materially 

different in many respects from the authorized PEPSI products and MANZANITA SOL products 

authorized for sale in the United States. These material differences include: 

(a) the Mexican product does not comply with the United States Food and 

Drug Administration’s labeling regulations; 

(b) the Mexican product does not comply with the labeling standards followed 

by Plaintiffs and their authorized bottlers in the United States; 

(c) the sale of Mexican product in channels of trade different from Plaintiffs’ 

authorized distribution channels stifles Plaintiffs’ ability to properly and 

sufficiently exercise quality control over the Mexican product by, but not 

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limited to: (i) preventing Plaintiffs from placing “drink by” notice dates on 

the Mexican product; (ii) making monitoring the Mexican product for 

proper shipment and storage conditions impossible; (iii) precluding 

Plaintiffs’ proper arrangement of retail Mexican product displays; and (iv) 

preventing Plaintiffs from rotating stale, damaged or substandard quality 

Mexican product off retail shelves; 

(d) the Mexican product sold by Defendants does not inform purchasers of or 

allow purchasers to participate in promotions Plaintiffs authorize based on 

the purchase of specially-marked PEPSI products and MANZANITA SOL 

products authorized for sale in the United States; 

(e) there is a risk of leakage, loss of carbonation and general deterioration to 

the Mexican product due to the hazards and delay inherent in shipping the 

product outside its designated area of sale; 

(f) the bottles containing the Mexican product sold by Defendants are of a 

type not available for sale in the United States; 

(g) the cans and bottles containing the Mexican product bear writing in 

Spanish; 

(h) Defendants’ marketing of the Mexican product in the United States 

conflicts with the advertising strategies and marketing plans of Plaintiffs 

and their authorized bottlers; 

(i) Defendants’ marketing of the Mexican product conflicts with Plaintiffs 

and their authorized bottlers’ bottle return policies; and 

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(j) some of the Mexican product bears registered trademark notices, but does 

not bear a statutory notice of a United States trademark registration and 

might be interpreted as limiting Plaintiffs’ right to obtain relief in 

accordance with Section 29 of the Lanham Act, 15 U.S.C. § 1111. 

25. Plaintiffs objected to Defendants’ sales of the Mexican product in writing prior to 

filing suit. 

26. Defendants did not agree to settle this dispute or identify their sources for the 

Mexican product, thereby necessitating this suit. 

27. Plaintiffs have not authorized or consented to Defendants’ sale of Mexican 

product within the United States. 

FIRST CLAIM FOR RELIEF 

(TRADEMARK INFRINGEMENT IN VIOLATION OF 

SECTION 32 OF THE LANHAM ACT)

28. Plaintiffs re-allege paragraphs 1 through 27, as if fully set forth herein. 

29. Defendants’ acts have caused or are likely to cause confusion, mistake or 

deception as to the source of origin, sponsorship or approval of Defendants’ Mexican product in 

that purchasers and others in this District and elsewhere in the United States are likely to believe 

Plaintiffs authorize and control the sale of Defendants’ Mexican product in the United States or 

that Defendants are associated with or related to Plaintiffs. 

30. On information and belief, Defendants’ acts have injured or are likely to injure 

Plaintiffs’ image and reputation with consumers in this District and elsewhere in the United 

States by creating confusion about, and dissatisfaction with, Plaintiffs’ PEPSI products and 

MANZANITA SOL products. 

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31. On information and belief, Defendants’ acts have injured or are likely to injure 

Plaintiffs’ business reputations and relations with retail accounts in this District and elsewhere in 

the United States by causing customer dissatisfaction, a diminution of the value of the goodwill 

associated with the PEPSI and MANZANITA SOL marks, and a loss of sales and market share 

to Plaintiffs’ competition. 

32. Defendants’ sale of Mexican product in this District and elsewhere in the United 

States is a deliberate, intentional and willful attempt to injure Plaintiffs’ business, to trade on 

Plaintiffs’ business reputation, to confuse or deceive purchasers and to interfere with Plaintiffs’ 

business relationships with its retail accounts in this District and elsewhere in the United States. 

33. Defendants’ acts constitute an infringement of Plaintiffs’ trademark rights in 

violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114. 

34. Defendants’ acts greatly and irreparably damage Plaintiffs and will continue to so 

damage Plaintiffs unless restrained by this Court; wherefore, Plaintiffs are without an adequate 

remedy at law. Accordingly, Plaintiffs are entitled to, among other things, an order enjoining 

and restraining Defendants from selling Mexican product. 

SECOND CLAIM FOR RELIEF 

(UNFAIR COMPETITION IN VIOLATION OF 

SECTION 43(A) OF THE LANHAM ACT)

35. Plaintiffs re-allege paragraphs 1 through 9, 11 through 15, 17 through 27 and 29 

through 32, as if fully set forth herein. 

36. Defendants’ acts constitute unfair competition with Plaintiffs in violation of 

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 

37. Defendants’ acts greatly and irreparably damage Plaintiffs and will continue to so 

damage Plaintiffs unless restrained by this Court; wherefore, Plaintiffs are without an adequate 

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remedy at law. Accordingly, Plaintiffs are entitled to, among other things, an order enjoining 

and restraining Defendants from selling the Mexican product. 

THIRD CLAIM FOR RELIEF 

(UNFAIR COMPETITION IN VIOLATION OF 

NEW JERSEY STAT. § 56:4-1)

38. Plaintiffs re-allege paragraphs 1 through 9, 11 through 15, 17 through 27 and 29 

through 32, as if fully set forth herein. 

39. Defendants’ acts constitute unfair competition in violation of New Jersey Stat. § 

56:4-1. 

40. Defendants’ acts greatly and irreparably damage Plaintiffs and will continue to so 

damage Plaintiffs unless restrained by this Court; wherefore, Plaintiffs are without an adequate 

remedy at law. Accordingly, Plaintiffs are entitled to, among other things, an order enjoining 

and restraining Defendants from selling the Mexican product. 

FOURTH CLAIM FOR RELIEF 

(UNFAIR COMPETITION IN VIOLATION 

OF NEW JERSEY COMMON LAW)

41. Plaintiffs re-allege paragraphs 1 through 9, 11 through 15, 17 through 27 and 29 

through 32, as if fully set forth herein. 

42. Defendants’ aforesaid acts constitute unfair competition in violation of the 

common law of New Jersey. 

43. Defendants’ acts greatly and irreparably damage Plaintiffs and will continue to so 

damage Plaintiffs unless restrained by this Court; wherefore, Plaintiffs are without an adequate 

remedy at law. Accordingly, Plaintiffs are entitled to, among other things, an order enjoining 

and restraining Defendants from selling the Mexican product. 

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FIFTH CLAIM FOR RELIEF 

(TRADEMARK INFRINGEMENT IN VIOLATION 

OF NEW JERSEY COMMON LAW)

44. Plaintiffs re-allege paragraphs 1 through 9, 11 through 15, 17 through 27 and 29 

through 32, as if fully set forth herein. 

45. Defendants’ aforesaid acts constitute trademark infringement in violation of the 

common law of New Jersey. 

46. Defendants’ acts greatly and irreparably damage Plaintiffs and will continue to so 

damage Plaintiffs unless restrained by this Court; wherefore, Plaintiffs are without an adequate 

remedy at law. Accordingly, Plaintiffs are entitled to, among other things, an order enjoining 

and restraining Defendants from selling the Mexican product. 

SIXTH CLAIM FOR RELIEF 

(DILUTION IN VIOLATION OF 

SECTION 43(c) OF THE LANHAM ACT)

47. PepsiCo re-alleges paragraphs 1 through 14, 21 through 27 and 29 through 32, as 

if fully set forth herein. 

48. PepsiCo’s PEPSI marks are famous and are widely recognized by the general 

consuming public of the United States as a designation of source of PepsiCo’s goods, including 

the PEPSI products. 

49. Defendants’ acts are likely to harm PepsiCo’s valuable business reputation and 

goodwill and are likely to impair the distinctiveness of the famous PEPSI marks. 

50. Defendants’ acts are likely to cause dilution by blurring of PepsiCo’s famous 

PEPSI marks in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 

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51. Defendants’ acts are likely to cause dilution by tarnishment of PepsiCo’s famous 

PEPSI marks in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 

52. On information and belief, Defendants’ acts of dilution are intentional and willful. 

53. Defendants’ acts greatly and irreparably damage PepsiCo and will continue to so 

damage PepsiCo unless restrained by this Court; wherefore, PepsiCo is without an adequate 

remedy at law. Accordingly, PepsiCo is entitled to, among other things, an order enjoining and 

restraining Defendants from selling the Mexican product. 

SEVENTH CLAIM FOR RELIEF 

(DILUTION IN VIOLATION OF 

NEW JERSEY STAT. § 56:3-13.20)

54. PepsiCo re-alleges paragraphs 1 through 14, 21 through 27 and 29 through 32, as 

if fully set forth herein. 

55. Defendants’ acts are likely to damage the business reputation of PepsiCo in 

violation of New Jersey Stat. § 56:3-13.20. 

56. Defendants’ acts greatly and irreparably damage PepsiCo and will continue to so 

damage PepsiCo unless restrained by this Court; wherefore, PepsiCo is without an adequate 

remedy at law. Accordingly, PepsiCo is entitled to, among other things, an order enjoining and 

restraining Defendants from selling Mexican product. 

WHEREFORE, Plaintiffs pray that: 

1. Defendants, their officers, agents, servants, employees, and attorneys, their 

successors and assigns and all others in active concert or participation with Defendants, be 

enjoined and restrained during the pendency of this action, and permanently thereafter, from the 

importation into, and the dealing, marketing, sale or distribution in the United States of soft 

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drinks manufactured or bottled in Mexico and meant for sale in Mexico, or any other foreign 

country, bearing the PEPSI marks or the MANZANITA SOL marks. 

2. Defendants, and all others holding by, through or under Defendants, be required, 

jointly and severally, to: 

a. account for and pay over to Plaintiffs all profits derived by Defendants 

from its acts of trademark infringement and unfair competition in 

accordance with 15 U.S.C. § 1117(a) and New Jersey common law, and 

Plaintiffs ask that this profits award be trebled in accordance with 15 

U.S.C. § 1117(a) and New Jersey Stat. § 56:4-2; 

b. pay to Plaintiffs treble the amount of all damages incurred by Plaintiffs by 

reason of Defendants’ acts of trademark infringement and unfair 

competition in accordance with 15 U.S.C. § 1117(a) and New Jersey Stat. 

§ 56:4-2; 

c. pay to Plaintiffs the costs of this action, together with reasonable 

attorneys’ fees and disbursements, in accordance with 15 U.S.C. § 

1117(a); 

d. pay restitution to Plaintiffs, in accordance with the common law of the 

State of New Jersey, for all loss, damage and injury caused by Defendants’ 

acts; 

e. deliver up for destruction all of the Mexican product in their possession, in 

accordance with 15 U.S.C. § 1118; 

f. send a notice to any existing wholesale customers that the importation, 

dealing in, sale or distribution of the Mexican product in the United States 

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without Plaintiffs’ consent is unlawful and that they have been enjoined by 

a United States District Court from doing so; and 

g. file with the Court and serve on PepsiCo an affidavit setting forth in detail 

the manner and form in which they have complied with the terms of the 

injunction, in accordance with 15 U.S.C. § 1116. 

3. Plaintiffs have such other and further relief as the Court deems just and equitable. 

Dated: April 21, 2011 Respectfully submitted, 

GENOVA, BURNS & GIANTOMASI 

494 Broad Street 

Newark, New Jersey 07102 

(973) 533-0777 

By: s/ John W. Bartlett 

JOHN W. BARTLETT 

jbartlett@genovaburns.com 

and 

PATTISHALL, McAULIFFE, NEWBURY, 

 HILLIARD & GERALDSON LLP 

311 S. Wacker Drive, Suite 5000 

Chicago, Illinois 60606 

(312) 554-8000 

Attorneys for Plaintiffs PepsiCo, Inc. 

and The Concentrate Manufacturing Company of Ireland 

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