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Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC

Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC

United States District Court for the Eastern District of Louisiana

October 29, 2021, Decided; October 29, 2021, Filed

CIVIL ACTION No. 21-1109 SECTION: "J"(1)

Opinion

ORDER & REASONS

Before the Court is a Rule 12(b) Motion for Partial Dismissal (Rec. Doc. 26) filed by Defendant, The Gemini Society, LLC (hereinafter "Gemini"). The motion is opposed by Plaintiff, Dong Phuong Bakery, Inc. (hereinafter "DPB") (Rec. Doc. 29). Having considered the motion and memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.

FACTS AND PROCEDURAL BACKGROUND1

This declaratory judgment action arises from a contractual dispute between the parties concerning certain trademarks for marketing DPB's business.

On June 23, 2017, DPB retained Gemini to create a new website, king cake box design, and other marketing material. Each subsequent year including 2021, DPB retained Gemini via a new "Statement [*2]  of Works" for various branding services.

On November 16, 2020, Gemini filed a trademark application with the United States Patent & Trademark Office ("USPTO") to register the DP Bakeshop Mark. This application is still currently pending.

Gemini told DPB to commission Gemini to build the website, pay Gemini a percentage of gross revenues, and charge its resellers a "license fee." Gemini insisted DPB either adopt Gemini's plan or terminate their relationship.

On April 12, 2012, Linh Garza, President of DPB, notified Gemini that they were terminating their relationship due to Gemini's insistence that DPB charge its resellers a licensing fee. In response, Gemini demanded DPB cease use of all branding, marketing, and packaging items. Further, Gemini asserted that there was an outstanding invoice of $268,151.31 and that they exclusively owned all brand logomarks and logoscripts, brand and product naming, packing and brand colors, brand copy and positioning, brand artwork and characters. This same day, Gemini also disabled DPB's website, eliminating DPB's online sale abilities.

DPB claims that, as a result of Gemini's actions, DPB has been stripped of its website and branding materials, lost [*3]  revenue and market share without a website during the pandemic, lost time, and incurred expenses including attorney fees and professional design costs.

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2021 U.S. Dist. LEXIS 209099 *; 2021 WL 5039636

DONG PHUONG BAKERY, INC. VERSUS GEMINI SOCIETY, LLC

Subsequent History: Motion denied by, Summary judgment granted by, in part, Summary judgment denied by, in part Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC, 2022 U.S. Dist. LEXIS 54958 (E.D. La., Mar. 28, 2022)

Magistrate's recommendation at Dong Phuong Bakery, Inc. v. Gemini Soc'y, LLC, 2022 U.S. Dist. LEXIS 85017 (E.D. La., May 10, 2022)

CORE TERMS

trademark, registration, declaratory judgment, rights, brand, infringing, damages, website, motion to dismiss, district court, alleges, case or controversy, ripe, costs, declaratory judgment action, ascertainable loss, attorney's fees, new car, commerce, demanded, parties, Patent, boxes, cake