JS 44C/SDNYREV.4/f012 i4 CVCIVIL COVEJUDGE RAMOS

nfe JS-44 civil cover sheet ant and the information contained herein neither replace nor supplement the filinganO>ervlpleadings or other papers as required by law, except as provided by local rules of court. This form, approved by theJudicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose ofinitiating the civil docket sheet.

PLAINTIFFS

CONOPCO, INC. d/b/a UNILEVER

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBERGregory P. Gulia, Vanessa C. Hew, Mitchell A. FrankDuane Morris LLP1540 Broadway, New York, NY 10036-4086 (212) 692-1000

DEFENDANTS

WELLS ENTERPRISES, INC.

ATTORNEYS (IF KNOWN)AUG 0 6 2014

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OFCAUSE)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Copyright infringement, common law unfair competition, deceptive trade practices

Hasthis ora similar case been previously filed inSDNY at anytime? No |x] Yes f~J Judge Previously AssignedIf yes, wasthis case Vol. Q Invol. Dismissed. No Q Yes [~J If yes, give date. & Case No.IS THIS AN INTERNATIONAL ARBITRATION CASE? No|^ YeS [~j(PLACEAN [x] IN ONE BOX ONLY)

TORTS

NATURE OF SUIT

ACTIONS UNDER STATUTES

CONTRACT PERSONALINJURY PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

[ J110 INSURANCE [ ]310 AIRPLANE\ 1,1362 PERSONAL INJURY - [ J610 AGRICULTURE [ J 422 APPEAL [ J 400 STATEI 1120 MARINE I J 315 AIRPLANE PRODUCT WED MALPRACTICE - [ J 620 OTHER FOOD & 28 USC 158 REAPPORTIONMENT[ 1130 MILLER ACT LIABILITY *" %. [ ]365 PERSONAL'INJURY DRUG [ J 423 WITHDRAWAL [ J410 ANTITRUST[]140 NEGOTIABLE [ ]320 ASSAULT, LIBEL & ^ PRODUCT LIABILITY [ I 625 DRUG RELATED 28 USC 157 [ J 430 BANKS & BANKING

INSTRUMENT SLANDER [1368" ASBESTOS PERSONAL SEIZURE OF [ I 450 COMMERCEI J 150 RECOVERY OF [ J 330 FEDERAL INJURYPRODUCT

LIABILITY' .PROPERTY [ ]460 DEPORTATION

OVERPAYMENT & EMPLOYERS' 21 USC 881 PROPERTY RIGHTS I )470 RACKETEER INFLUENFORCEMENT LIABILITY a*- [ ]630 LIQUOR LAWS ENCED & CORRUPTOF JUDGMENT [ ]340 MARINE PERSONAL PROPERTY ^ ] 64fl_ RR & TRUCK KJ820 COPYRIGHTS ORGANIZATION ACT

[ ] 151 MEDICARE ACT [ ]345 MARINE PRODUCT i ]6r AIRLINE REGS []830 PATENT (RICO)[ J 152 RECOVERY OF LIABILITY [ 1370 OTHER FRAUD [ l 660 OCCUPATIONAL [ ] 840 TRADEMARK [ J 480 CONSUMER CREDIT

DEFAULTED [ ]350 MOTOR VEHICLE [ J 371 TRUTH IN LENDING SAFETY/HEALTH [ J 490 CABLE/SATELLITE TVSTUDENT LOANS [ ]355 MOTOR VEHICLE [ ]380 OTHER PERSONAL [ I 690 OTHER 1)810 SELECTIVE SERVICE(EXCL VETERANS) PRODUCT LIABILITY PROPERTY DAMAGE SOCIAL SECURITY ( ]850 SECURITIES/

I 1153 RECOVERY OF [ ]360 OTHER PERSONAL [ ]385 PROPERTY DAMAGE COMMODITIES/OVERPAYMENT INJURY PRODUCT LIABILITY LABOR [ J861 HIA(1395ff) EXCHANGEOF VETERAN'S .-V [ ] 862 BLACKLUNG (923) I] 875 CUSTOMERBENEFITS I ]71'0 FAIR LABOR [ J 863 DIWC/DIWW (405(g)) CHALLENGE

[ 1160 STOCKHOLDERS STANDARDS ACT [ ) 864 SSID TITLE XVI 12 USC 3410SUITS [ ]720 LABOR/MGMT I J 865 RSI (405(g)) [ ]890 OTHER STATUTORY

I ]190 OTHER PRISONER PETITIONS RELATIONS ACTIONSCONTRACT f [ J 730 LABOR/MGMT [ J891 AGRICULTURAL ACTS

I ]15 CONTRACT I ]510 MOTIONS TO REPORTING & FEDERAL TAX SUITS [ J 892 ECONOMICPRODUCT ACTIONS UNDER STATUTES VACATE SENTENCE DISCLOSURE ACT STABILIZATION ACTLIABILITY 2$ USC2255 [ I 740 RAILWAY LABOR ACT [ ]870 TAXES (U.S. Plaintiff or [ ] 893 ENVIRONMENTAL

I 1196 FRANCHISE CIVIL RIGHTS [ 1530 HABEAS CORPUS I ]7?0 OTHER LABOR Defendant) MATTERS[ 1535 DEATH PENALTY LITIGATION [ ] 871 IRS-THIRD PARTY [ J 894 ENERGY

I H41 VOTING I ]540 MANDAMUS & OTHER I ] 791 EMPLRETINC 26 USC 7609 ALLOCATION ACT[ ]442 EMPLOYMENT SECURITY ACT [ ]B95 FREEDOM OF

REAL PROPERTY [ ]443 HOUSING/ INFORMATION ACTACCOMMODATIONS IMMIGRATION [ ] 900 APPEAL OF FEE

[ ]210 LAND [ ]444 WELFARE PRISONER CIVIL RIGHTS DETERMINATIONCONDEMNATION [ ]445 AMERICANS WITH [ I 462 NATURALIZATION UNDER EQUAL

[ J 220 FORECLOSURE DISABILITIES [ 1550 CIVIL RIGHTS APPLICATION ACCESS TO JUSTICE[ J 230 RENT LEASE &

EJECTMENT [ ]446EMPLOYMENTAMERICANS WITH

[ ]555 PRISON CONDITION [ J 463 HABEAS CORPUS-ALIEN DETAINEE

[ J 950 CONSTITUTIONALITYOF STATE STATUTES

[ ]240 TORTS TO LAND DISABILITIES -OTHER [ ]465 OTHER IMMIGRATION[ ]245 TORT PRODUCT

LIABILITY[ J 440 OTHER CIVIL RIGHTS

(Non-Prisoner)ACTIONS

I J 290 ALL OTHERREAL PROPERTY

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTIONUNDER FRCP. 23

DEMAND $_ OTHER

Check YES only if demanded in complaintJURY DEMAND: S YES NO

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?IF SO, STATE:

JUDGE DOCKET NUMBER

NOTE: Please submit at the time of filing an explanation of why cases are deemed related.

(PLACE AN x IN ONE BOX ONLY)S 1 Original

Proceeding2 Removed from

State Court

] | 3. all parties representedI I b. At leastone

party Is pro so.

ORIGIN

3 Remanded D 4 Reinstated orfrom ReopenedAppellateCourt

| | 5 Transferred from L7J 6 Multidistrict(Specify District) Litigation

LJ 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment

(PLACE AN x IN ONE BOX ONLY) 1 U.S. PLAINTIFF 2 U.S. DEFENDANT

BASIS OF JURISDICTION3 FEDERAL QUESTION Q4 DIVERSITY

(U.S. NOT A PARTY)

IF DIVERSITY, INDICATECITIZENSHIP BELOW.(28 USC 1322, 1441)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)(Place an [X] in one box for Plaintiff and one box for Defendant)

CITIZEN OF THIS STATE

CITIZEN OF ANOTHER STATE

PTF DEF1 1 CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY

INCORPORATED or PRINCIPAL PLACEOF BUSINESS IN THIS STATE

PTF DEF PTF DEF13 3 INCORPORATED and PRINCIPAL PLACE 5 5

OF BUSINESS IN ANOTHER STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)Conopco, Inc. d/b/a Unilever700 Sylvan AvenueEnglewood Cliffs, New Jersey 07632

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)Wells Enterprises, Inc.One Blue Bunny DriveLe Mars, Iowa 51031

FOREIGN NATION

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN THE

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone: THIS ACTION SHOULD BE ASSIGNED TO: WHITE PLAINS |X| MANHATTAN(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT.)

DATE ?\loU^" SIGNATURE OF/OTORNEY OF RECORD ADMITTED TO PRACTICE IN THIS DISTRICTXYES (DATE ADMITTED Mo. 11 Yr. 2004]

mey Bar Code # 4617RECEIPT*

Magistrate Judge is to be designated by the Clerk

Magistrate Judge

to^'-THE*of the Court.

is so Designated.

Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

6

JDGERA?!OSDUANE MORRIS LLPGregory P. GuliaVanessa C. HewMitchell A. Frank1540 BroadwayNew York, New York 10036-4086Telephone: (212) 692-1000Facsimile: (212) 692-1020

Attorneys for Plaintiff 1 $

deceptive trade practices under the laws of the State of New York. Plaintiff seeks injunctive

relief and damages.

JURISDICTION AND VENUE

2. This Court has jurisdiction under Sections 1332(a), 1338(a) and 1338(b) of the

Judicial Code, 28 U.S.C. 1332(a), 1338(a) and 1338(b), and under principles of

supplementary jurisdiction. Venue properly lies in this District under Sections 1391(b) and

1391(c) of the Judicial Code, 28 U.S.C. 1391(b) and 1391(c), because the Defendant conducts

business in and/or has substantial contacts with and/or may be found in the Southern District of

New York, and a substantial portion of the events at issue have arisen and/or will arise in this

judicial district.

PARTIES

3. Unilever is a New York corporation, with a place of business at 700 Sylvan

Avenue, Englewood Cliffs, New Jersey 07632. Unilever is the owner of the copyrights at issue

in the advertising campaign (collectively, "Plaintiffs Copyrights").

4. Upon information and belief, Defendant, Wells Enterprises, Inc., is an Iowa

corporation having a place of business at One Blue Bunny Drive, Le Mars, Iowa 51031.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

A. Plaintiffs Activities

5. Since 1912, Unilever and/or its affiliates, and their predecessors and/or their

licensees have extensively marketed, advertised, promoted and sold frozen confections products,

including ice cream, gelato and ice cream toppings products under the BREYERS mark

throughout the United States.

6. BREYERS brand ice cream productsconsistently rank among the most popular

ice creamproducts nationwide. As one of the most prestigious brands in the ice cream category,

Unilever sells its BREYERS brand ice cream products through retail stores, including grocery

and convenience stores, supermarkets, drug stores, and national chain stores across the country.

7. Over the years, Unilever has continuously and extensively advertised, marketed

and promoted its BREYERS brand ice cream products in a wide variety of national media

including television, radio, print and online, including on a website located at the domain name

www.breyers.com. As a result of Unilever's extensive advertising and promotion of its

BREYERS brand products, the volumeof sales of goods sold under the BREYERS brand

have been enormous and the BREYERS brand is consistently one of the highest selling brands

for ice cream products in the United States. In fact, the BREYERS brand is currently the

highest selling brand for ice cream products in the United States.

8. The extraordinary and longstanding success of Plaintiff s BREYERS brand ice

cream has fostered wide renown with the trade and public and the products sold under the

BREYERS brand have a reputation for being of the highest quality.

9. In 2013, Unilever created the original BREYERS Moments television

commercial (the "BREYERS Moments Commercial"), including all audiovisual works,

performances, text, script, artwork and images for the BREYERS Moments Commercial.

Unilever created and uses the BREYERS Moments Commercial to market, promote and

advertise the highly successful BREYERS brand ice cream products. Annexed hereto as

Exhibit 1 is a copy of the BREYERS Moments Commercial. The BREYERS Moments

Commercial features copyrighted audiovisual works, performances, text, script, artwork and

images. The BREYERS Moments Commercial was and is currently played on televisionand

online.

10. The BREYERS Moments Commercial begins with a distinctiveon-screen super

that reads, "BREYERS - TOGETHER MAKING MOMENTS." Throughout the Commercial,

Unilever features additional on-screen supers, including "STOLEN MOMENTS," "THAT'S MY

BOY MOMENT" and "QUALITY MOMENT." The on-screen supers are featured with scenes

of family members and close friends enjoying ice cream. All of the on-screensupersprominently feature the term "moment" or "moments" in green font, while the other terms

appear in white font.

11. Unilever also created the original BREYERS Moments digital marketing

campaign which consists of a Facebook activation, email blasts, e-newsletters, videos on demand

and a Twitter activation (the "BREYERS Moments Digital Campaign"). Annexed hereto as

Exhibit 2 is a copy of the BREYERS Moments Digital Campaign. The BREYERS Moments

Digital Campaign features copyrighted artwork, text and images. The BREYERS Moments

Digital Campaign was and is currently circulated online. The BREYERS Moments

Commercial and the BREYERS Moments Digital Campaign are collectively referred to herein

as the "BREYERS Moments Campaign."

12. The BREYERS Moments Campaign contains material which is wholly original.

The BREYERS Moments Campaign constitutes copyrightable subject matter that is protected

against unauthorized copying under the laws of the United States.

13. Unilever filed with the U.S. Copyright Office an application to register the

copyrights in the BREYERS Moments Campaign. The U.S. Copyright Office issued the

following copyright registration for the BREYERS Moments Campaign: U.S. Copyright

Registration No. PA0001900548.

B. Defendant's Unlawful Activities

14. Upon information and belief, Defendant manufactures, markets, distributes and

sells frozen confection products under the name BLUE BUNNY throughout the United States.

Defendant sells its BLUE BUNNY products through numerous mass retail trade channels, such

as supermarkets, drug stores, convenience stores and national chain stores, including the same

retailers in which Unilever sells its BREYERS ice cream products.

15. Upon information and belief, Defendant, independently or through a third party

created, reproduced, distributed or prepared derivative works of original elements of the

BREYERS Moments Campaign in an advertising campaign for its BLUE BUNNY ice cream

products (the "Infringing Campaign"). The Infringing Campaign consists of a television

commercial (the "Infringing Commercial") as well as a print advertisement (the "Infringing Print

Advertisement"). Annexed hereto as Exhibit 3 is a copy of the Infringing Commercial.

Annexed hereto as Exhibit 4 is a copy of the Infringing Print Advertisement.

16. Upon information and belief, Defendant has played or circulated and is playing or

circulating the Infringing Campaign in a wide variety of national media, including on television,

in print and online. The Infringing Campaign is currently played or circulated to consumers

throughout this District, this State and the United States.

17. The Infringing Campaign is comprised of audiovisual works, performances, text,

script, artwork and images which are substantially similar to the audiovisual works,

performances, text, script, artwork and images in the copyrighted BREYERS Moments

Campaign.

18. The BREYERS Moments Campaign and the Infringing Campaign feature at

least the following strikingly similar scenes, text, script, artwork and images:

BREYERS Moments Campaign Infringing Campaign

Family members and close friends enjoying icecream

Family members and close friends enjoying icecream

A child holding a spoonful of ice cream infront of their pregnant mother's belly

A child holding a spoonful of ice cream infront of their pregnant mother's belly

A boy and his father licking ice cream frombowls

A boy licking ice cream from his bowl

A grandfather and grandson doing "cheers"with their ice cream cones

Two children doing "cheers" with their icecream sandwiches

A group of teen girls giggling and laughingover ice cream

A group of teen girls giggling and laughingwith their ice cream cones

On-screen supers that label the "moments" as"BREYERS - TOGETHER MAKINGMOMENTS," "STOLEN MOMENTS,""THAT'S MY BOY MOMENT" and"QUALITY MOMENT"

A voice over that labels the "moments" as,"BIG ONES," "SMALL ONES," and "LIFECHANGING MOMENTS"

The term "moments" emphasized by adistinctive font color

The term "moments" emphasized by adistinctive font color

19. Upon information and belief, Defendant had access to the BREYERS Moments

Campaign, intentionally copied or caused to be copied the audiovisual works, text, script,

performances, artwork and images featured in the BREYERS Moments Campaign, and used

identical, or nearly identical audiovisual works, text, script, performances, artwork and images

for the Infringing Campaign. Upon information and belief, Defendant copied or caused to be

copied the BREYERS Moments Campaign for the specific purpose of infringing Plaintiffs

Copyrights in the BREYERS Moments Campaign.

20. Upon information and belief, Defendant has engaged in a pattern of deliberate and

willful infringement designed to confuse consumers as to the source of its products and trade

upon Unilever's valuable intellectual property, goodwill and reputation.

21. Defendant has engaged in a pattern of deliberate and willful infringement

designed to misappropriate Plaintiffs Copyrights and intellectual property, confuse consumers

as to the source of its products and trade upon the valuable good will and reputation of Plaintiff s

intellectual property.

22. Upon information and belief, Plaintiff has lost and will continue to lose

substantial revenue from the Infringing Campaign and will sustain damage as a result of

Defendant's wrongful conduct and Defendant's use of the Infringing Campaign. Defendant's

wrongful conduct has also deprived and will continue to deprive Unilever of opportunities for

expanding its goodwill. Upon information and belief, unless enjoined by this Court, Defendant

intends to continue its course of conduct and to wrongfully use, infringe upon, and otherwise

profit from the BREYERS Moments Campaign and works derived therefrom. Upon

information and belief, unless enjoined by this Court, Defendant's conduct has caused and will

continue to cause injury to the reputation of Plaintiff and its well-known and distinctive brands.

23. As a direct and proximate result of the acts of Defendant alleged above, Plaintiff

has already suffered irreparable damage and lost revenues. Plaintiff has no adequate remedy at

law to redress all of the injuries that Defendant has caused and intends to cause by its conduct.

Plaintiff will continue to suffer irreparable damage and loss of revenues as a result of damage to

Plaintiffs goodwill and reputation, and the market for Plaintiffs goods and services, and injury

to Plaintiffs reputation and brands until Defendant's actions are enjoined by this Court.

24. On May 5, 2014, Unilever sent a letter to Defendant advising Defendant of

Plaintiffs rights in the BREYERS Moments Campaign and demanding that Defendant cease

its illegal activities. Annexed hereto as Exhibit 5 is a copy of Plaintiff s May 5, 2014 letter to

Defendant.

25. To date, Defendant has not ceased its illegal activities.

FIRST CLAIM FOR RELIEFCOPYRIGHT INFRINGEMENT (17 U.S.C. 101 et sea.)

26. Plaintiff realleges paragraphs 1 through 25 above and incorporates them by

reference as if fully set forth herein.

27. The BREYERS Moments Campaign consists of original works of authorship,

embodying copyrightable subject matter, subject to the full protection of the United States

copyright laws. Unilever is the sole and exclusive owner of all rights, title and interest in and to

the copyrights in the BREYERS Moments Campaign.

28. Upon information and belief, as a result of the open use of the copyrighted

BREYERS Moments Campaign, Defendant had access to the BREYERS Moments

Campaign prior to the creation of Defendant's Infringing Campaign.

29. Without the permission or authorization of Plaintiff, Defendant has continued to

copy and create unauthorized derivate works based on the copyrighted BREYERS Moments

Campaign and play and circulate the Infringing Campaign, which is substantially similar to the

BREYERS Moments Campaign.

30. Upon information and belief, Defendant has profited from the sales of products

sold under the Infringing Campaign, which is substantially similar to the BREYERS Moments

Campaign.

I31. Upon information and belief, unless enjoined by this Court, Defendant intends to

continue its course of conduct and to wrongfully use, infringe upon and otherwise profit from

Plaintiffs copyrighted BREYERS Moments Campaign.

32. The natural, probable and foreseeable result of Defendant's wrongful conduct has

been and continues to be to deprive Unilever of the rights and benefits granted to it under

copyright, including the exclusive right to use, reproduce and exploit Plaintiffs Copyrights and

to create derivative works based on Plaintiffs Campaign, and to deprive Unilever of the

goodwill in Plaintiffs Copyrights, and to injure Unilever's relations with present and prospective

customers.

33. By its actions, as alleged above, Defendant has infringed and violated Unilever's

exclusive rights under copyrights in violation of the Copyright Act, 17 U.S.C. 501, by

reproducing, playing and circulating an advertising campaign that uses audiovisual works, text,

script, performances, artwork and images that are strikingly, or substantially, similar to

Unilever's copyrighted BREYERS Moments Campaign, all without Unilever's authorization

or consent.

' 34. Upon information and belief, Defendant's infringement of Plaintiff s Copyrights

is willful and deliberate and Defendant has profited at the expense of Unilever.

35. Defendant's conduct has caused and will continue to cause irreparable injury to

Unilever unless enjoined by this Court. Unilever has no adequate remedy at law.

SECOND CLAIM FOR RELIEFCOMMON LAW UNFAIR COMPETITION

36. Plaintiff realleges paragraphs 1 through 35 above and incorporates them by

reference as if fully set forth herein.

37. Upon information and belief, Defendant was aware of Plaintiff s prior creation of

the BREYERS Moments Campaign and adopted and used the Infringing Campaign in

disregard of Plaintiff s prior intellectual property rights. Upon information and belief, the sale of

goods under Defendant's Infringing Campaign has resulted in the misappropriation of and

trading upon Plaintiffs goodwill and business reputation at Plaintiffs expense and at no expense

to Defendant. The effect of Defendant's misappropriation of Plaintiff s goodwill symbolized by

the BREYERS Moments Campaign is to unjustly enrich Defendant, damage Plaintiff and

confuse and/or deceive the public.

38. Defendant's conduct constitutes unfair competition with Plaintiff, all of which has

caused and will continue to cause irreparable injury to Plaintiffs goodwill and reputation unless

enjoined by this Court. Plaintiff has no adequate remedy at law.

THIRD CLAIM FOR RELIEFDECEPTIVE TRADE PRACTICES (N.Y. General Business Law $ 349)

39. Plaintiff realleges paragraphs 1 through 38 above and incorporates them by

reference as if fully set forth herein.

40. By reason of the acts and practices set forth above, Defendant has and is engaged

in deceptive trade practices or acts in the conduct of a business, trade or commerce, or furnishing

of goods and/or services, in violation of 349 of the New York General Business Law.

41. The public is likely to be damaged as a result of the deceptive trade practices or

acts engaged in by the Defendant.

42. Unless enjoined by the Court, Defendant will continue said deceptive trade

practices or acts, thereby deceiving the public and causing immediate and irreparable damage to

the Plaintiff. Plaintiff has no adequate remedy at law.

WHEREFORE, Plaintiff demands judgment as follows:

10

1. Preliminarily and permanently enjoining Defendant, its employees, agents,

officers, directors, attorneys, successors, affiliates, subsidiaries and assigns, and all those in

active concert and participation with Defendant, from:

(a) reproducing, selling, distributing, performing or preparing derivative

works of, or authorizing any third party to reproduce, sell, distribute,

perform or prepare derivative works of the Infringing Campaign or any

other item that infringes Plaintiffs rights;

(b) directly or indirectly infringing the Plaintiffs Copyrights or continuing to

market, offer, sell, dispose of, license, lease, transfer, display, advertise,

reproduce, develop or manufacture any works derived or copied from the

BREYERS Moments Campaign or the Plaintiffs Copyrights or to

participate or assist in any such activity;

(c) continuing to market, offer, sell, dispose of, license, transfer, exploit,

advertise, promote, reproduce, develop, manufacture, import, or contribute

to or actively participate in the marketing, offering, sale, disposition,

licensing, transferring, exploiting, advertising, promotion, reproduction,

development, manufacture or importation of any products that bear,

contain or incorporate any unauthorized copy or reproduction of the

copyrighted BREYERS Moments Campaign or any design substantially

similar thereto or derived therefrom;

(d) selling, using or authorizing any third party to sell or use any copy,

simulation, confusingly similar variation, or colorable imitation of

Plaintiffs BREYERS Moments Campaign in any manner or form;

11

(e) imitating, copying or making any unauthorized use of Plaintiff s

BREYERS Moments Campaign or any copy, simulation, variation or

imitation thereof;

(f) making or displaying any statement or representation that is likely to lead

the public or the trade to believe that Defendant's goods are in any manner

associated or affiliated with or approved, endorsed, licensed, sponsored,

authorized or franchised by or are otherwise connected with Plaintiff;

(g) using or authorizing any third party to use in connection with the

rendering, offering, advertising, promotion or importing of any goods, any

false description, false representation, or false designation of origin, or any

marks, names, words, symbols, devices or trade dress which falsely

associate Defendant's goods or services with Plaintiff or tend to do so;

(h) registering or applying to register as a copyright, trademark, service mark,

trade name or other source identifier or symbol of origin any copyright,

mark, trade dress or name that infringes on or is likely to be confused with

Plaintiffs Copyrights or marks;

(i) engaging in any other activity constituting unfair competition with

Plaintiff, or constituting an infringement of Plaintiff s rights;

(j) aiding, assisting or abettingany other party in doing any act prohibited bysub-paragraphs (a) through (i).

2. Requiring Defendant to formally abandon with prejudice any and all applications

to register any copyrights consisting of, or containing, any aspect of the Infringing Campaign

either alone or in combination with other words and/or designs.

12

3. Requiring Defendant to formally abandon with prejudice any and all applications

to register any trademark or service mark consisting of any aspect of the Infringing Campaign

either alone or in combination with other words and/or designs.

4. Requiring Defendant to recall immediately any use of the Infringing Campaign

wherever located in the U.S., and to cease circulating or playing the Infringing Campaign, and to

immediately remove the Infringing Campaign from public access.

5. Directing that Defendant abandon its current practice of infringing,

misappropriating, and/or copying Plaintiffs Copyrights, and/or any original elements thereof, in

connection with any businesses.

6. Directing that Defendant deliver for destruction all products and goods and other

materials in its possession, or under its control, incorporating or bearing simulations, variations

or colorable imitations of Plaintiff s BREYERS Moments Campaign, used alone or in

combination with other words and/or designs.

7. Directing such other relief as the Court may deem appropriate to prevent the trade

and public from deriving the erroneous impression that any product or service manufactured,

sold, distributed, licensed or otherwise offered, circulated or promoted by Defendant is

authorized by Plaintiff or related in any way to Plaintiffs products.

8. Directing that Defendant file with the Court and serve upon Plaintiffs counsel

within thirty (30) days after entry of such judgment, a report in writing under oath, setting forth

in detail the manner and form in which Defendant has complied therewith.

9. Awarding Plaintiff such damages as it has sustained or will sustain by reason of

Defendant's copyright infringement and unfair trade practices of Plaintiff s intellectual property.

13

10. Awarding Plaintiffall gains, profits, propertyand advantages derived by

Defendant from such conduct; and pursuant to 15 U.S.C. 1117, awarding Plaintiff an amount

up to three times the amount of the actual damages sustained as a resultof Defendant's violation

of the Lanham Act.

11. Awarding Plaintiffall gains, profits, propertyand advantages obtained or derived

by Defendant from its acts of copyright infringement or, in lieu thereof, should Plaintiff so elect,

such statutory damages as the Court shall deem proper, as provided in 17 U.S.C. 504(c),

includingdamages for willful infringementof up to $150,000 for each infringement.

12. Awarding Plaintiff such exemplary and punitive damages as the Court finds

appropriate to deter any future willful infringement.

13. Awarding Plaintiff its costs and disbursements incurred in this action, including

its reasonable attorneys' fees, as provided in 17 U.S.C. 505 and 15 U.S.C. 1117.

14. Awarding Plaintiff interest, including pre-judgment interest, on the foregoing

sums.

14

JURY DEMAND

Plaintiff hereby demands a trial by jury pursuant to Fed. R. Civ. P. 38.

Dated: New York, New YorkAugust ,2014

Respectfully submitted,

DUANE MORRIS LLP

By: l/ajyiV&S^JJLrQGregory P. Gulia iVanessa C. Hew |Mitchell A. Frank1540 BroadwayNew York, New York 10036-4086 fTelephone: (212) 692-1000 IFacsimile: (212) 692-1020 [|Attorneys for Plaintiff t

15

.,

EXHIBIT 1

HARD COPY FILING OF DISC

June Email

Deployment Date: June 25

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8/6/2014

8/6/2014

EXHIBIT 3

HARD COPY FILING OF DISC

BLUE BUNNY

NEW YORK

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Natalie M. Hanlon-Leh, Esq.Faegre Baker Daniels LLP3200 Wells Fargo Center1700 Lincoln St.Denver, CO 80203Email: natalie.hanlonleh@faegrebd.com

Re. Copying of BREYERS MOMENTS Video by Wells Enterprises, Inc.(Our Ref. Y0759-00864)

Dear Natalie:

As you are aware, this law firm acts as outside trademark litigation counsel in the UnitedStates to Conopco, Inc. d/b/a Unilever and its affiliates (collectively "Unilever"). We are writingto you as counsel for Wells Enterprises, Inc. ("Wells") with respect to Wells' recent advertisingcampaign for Blue Bunny ice creams.

Unilever produces and markets a line of ice cream products under the famousBREYERS trademark (hereinafter, the "BREYERS Brand"), which has been in use since atleast as early as 1912 and, as a result of enormous sales and marketing activities by Unilever andits predecessors, symbolizes and represents a tremendous amount of goodwill to Unilever.

Unilever has been marketing and promoting its BREYERS Brand products using adistinctive Breyers' "Moments" television commercial (the "BREYERS MOMENTSCommercial"), that originally went on air in June of 2013 and has since become uniquelyassociated with the BREYERS products. In conjunction with the BREYERS MOMENTSCommercial, Unilever also implemented a digital marketing campaign which also featured the"Moments" theme, consisting of, among other things, a Facebook activation, email blasts, e-

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DuaneJV[onisNatalie M. Hanlon-Leh, Esq.Faegre Baker Daniels LLPMay 5, 2014Page 2

newsletters, video ondemand (Hulu and Netflix) and a Twitter activation ("Digital Campaign").The focus of Unilever's BREYERS MOMENTS Commercial and the Digital Campaign ispeople spending authentic quality time with loved ones while eating BREYERS ice cream. TheBREYERS MOMENTS Commercial comprises several short scenes featuring family memberssharing heartwarming experiences together while eating BREYERS ice cream, each ofwhichis summed up and/or captioned by a corresponding on-screen "moment" reference. Inaddition,the Digital Campaign also features similar family shared moments involving BREYERS icecream.

Unilever's BREYERS MOMENTS Commercial begins with the super "BREYERS --TOGETHER MAKING MOMENTS" (at2 seconds), andis punctuated throughout the rest ofthe commercial with distinctive on-screen supersthat read: "STOLEN MOMENTS" (at 8seconds); "THAT'S MY BOY MOMENT" (at 17 seconds); and "QUALITY MOMENT" (at22 seconds). Each of these on-screen supers refers to the experience that has just been shared byfamily members, and prominently features the term "moment" or"moments" ina green font thatcontrasts with the white font used for the other words. The use of a different color is intended to,and does, emphasize the word "moment" or "moments."

Unilever has recently become aware of Wells' "real moments" advertising campaign forits BLUE BUNNY icecream, consisting of, at least, a television commercial and printedadvertisement, in which Wells substantially imitates the theme, creative expression and overalllook and feel of the BREYERS MOMENTS Commercial, in violation of Unilever's rightsunder the Copyright Act and the Lanham Act.

As an initial matter, Wells' "real moments" television commercial (the "InfringingCommercial ") makes a prominent use ofthe terms "moments" or"real moments", inmuch thesame was as does the BREYERS MOMENTS Commercial. For example, the InfringingCommercial also consistsof several scenes depicting family members or close friends enjoyingice cream. The Infringing Commercial uses a voice over to punctuate the video with referencesto "moments," namely: "Life is a series of moments.... Big ones... Small ones... Life changingmoments... And the best moments are the ones... You never planned.... These are themoments... We help make even sweeter... Blue Bunny. Real Ice Cream. RealMoments."(emphasis added). In addition, the last frame ofthe Infringing Commercial features the tag line"REAL ICE CREAM. REALMOMENTS", which prominently emphasizesthe words"ICECREAM" and "MOMENTS" in a different color that contrasts with the color used for the word"REAL."

Lesttherebe anydoubt as to Wells' intent in attempting to trade upon Unilever'sgoodwill inthe BREYERS MOMENTS Commercial and the Digital Campaign, one ofthe"moments" shown in the Infringing Commercial is a young child holding a spoonful oficecreamin front ofhis pregnant mother's belly, a scene which is virtually identical to the scene depicted

PuaneMorrisNatalie M. Hanlon-Leh, Esq.Faegre Baker Daniels LLPMay 5, 2014Page 3

in one of the e-newsletters sent by Unilever as part of the Digital Campaign. In addition, theInfringing Commercial shows a young boywho licks icecream from the bowl, which is againextremely similar to the BREYERS MOMENTS Commercial, which shows a young boy andhis father both licking the ice cream from their bowl in the "THAT'S MY BOY MOMENT"sequence. Furthermore, Wells' Infringing Commercial features two youngsters who do "cheers"with their ice cream sandwiches, while Unilever's Digital Campaign included a video of agrandfather and grandson doing "cheers" with their icecream cones, in what was called "ASunday Ritual Moment". And yet again, Unilever's Digital Campaign featured a video of agroup of teen girls giggling and laughing overice cream, in whatwas called "A Better ThanBoys Moment", while Wells' Infringing Commercial also features a group ofteen girls gigglingand laughing with their ice cream cones.

Such blatant similarities cannotplausibly be the result of coincidence, and can only beinterpreted as a deliberate attempton the part of Wells to misappropriate and capitalizeonUnilever's intellectual property and the equity which Unilever had already built in themarketplace.

Not only does Wells' Infringing Commercial blatantly copy expressive elements of theBREYERS MOMENTS Commercial and the Digital Campaign, but Wells' deliberate decisionto showthe word "moments" in a different color can only have been intendedto emphasize theword and thereby conjure up an imageof, and trade upon the goodwill associated with, theBREYERS MOMENTS Commercial and Digital Campaign. Furthermore, the rhythm and styleof the editing, as well as the moodof Wells' Infringing Video, are substantially similarto theBREYERS MOMENTS Commercial.

Wells' unauthorized copying of Unilever's copyrighted BREYERS MOMENTSCommercial and Digital Campaign elements constitutes copyright infringement in violation ofthe U.S. Copyright Act, 17 U.S.C. 501 etseq. In addition, Wells' Infringing Commercial islikely to cause confusion as to the product being advertised because of its similarities to theBREYERS MOMENTS Commercial and Digital Campaign, and therefore constitutesdeceptive, misleading or confusing conduct prohibited by Section 43(a) of the Lanham Act, 15U.S.C. 1125. Accordingly, Wells' actions constituteunfair competitionand/or falsedesignation of origin under federal, state and commonlaw, as well as copyright infringementunder 17 U.S.C. 501 etseq.

Under the applicable laws, Unileverwould be entitled not only to immediate andpermanent injunctive relief against Wells' infringement, but also to recovery of statutorydamages, actual damages, punitive damages, treble damages, and any profits that Wells madefrom its infringing enterprise. Indeed, under the U.S. Copyright Act, Unileverwould be entitledto statutory damages of up to $150,000 per infringement for Wells' acts of copyrightinfringement alone. In light of Well's willful infringement of Unilever's intellectual property

DuanejvlorrisNatalie M. Hanlon-Leh, Esq.Faegre Baker Daniels LLPMay 5, 2014Page 4

rights, relief would also likely include recovery of Unilever's attorneys' fees and costs incurredin connection with litigating the matter.

We therefore demand that you or Wells supply us with written confirmation by May 12,2014 that Wells, and itsaffiliates, subsidiaries, business partners, and those acting in concertwith Wells oronits behalf have permanently ceased using the Infringing Commercial and allrelated printed advertisements and other materials which copy orsimulate Unilever'sBREYERS MOMENTS Commercial and/or the Digital Campaign.

This letter is written without prejudice to any ofUnilever's rights, claims and/orremedies, all of which are expressly reserved.

Very truly yours,

Gregory P. Gulia

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