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    UNITED STATES DISTRICT COURT

    DISTRICT OF MINNESOTA

    GENERAL MILLS, INC., a Delawarecorporation, and GENERAL MILLS IPHOLDINGS II, LLC, a Delaware limitedliability company,

    Plaintiffs,

    vs.

    FAGE DAIRY PROCESSING, S.A., aforeign corporation, and FAGE USADAIRY INDUSTRY, INC., a New Yorkcorporation,

    Defendants.

    )

    ))))))))))))))))

    Civil No. ________________________

    COMPLAINT FOR DAMAGES

    AND INJUNCTIVE RELIEF

    Plaintiffs General Mills, Inc. (General Mills) and General Mills IP Holdings II ,

    LLC (GM IP Holdings) allege as follows for their complaint against defendants:

    NATURE OF THE ACTION

    1. This is an action at law and equity for trademark infringement, dilution and

    deceptive trade practices under the Lanham Act, 15 U.S.C. 1051 et seq., Minn. Stat.

    325D.44, Minn. Stat. 333.285 and common law.

    2. Defendants (collectively Fage (pr. Fah-yeh)) are using Plaintiffs

    incontestable registered trademark for TOTAL (the TOTAL Mark) for ready-to-eat

    cereal to advertise and sell yogurt. Plaintiffs bring this lawsuit to stop this willful

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    infringing and diluting conduct and seek all available monetary remedies and injunctive

    relief.

    PARTIES, JURISDICTION AND VENUE

    3. Plaintiff General Mills is a Delaware Corporation having its principal place

    of business located at Number One General Mills Boulevard, Minneapolis, Minnesota

    55426.

    4. Plaintiff GM IP Holdings, is a Delaware Limited Liability Company having

    its principal place of business located at Number One General Mills Boulevard,

    Minneapolis, Minnesota 55426. GM IP Holdings is a wholly owned subsidiary of

    General Mills. General Mills is a related company of GM IP Holdings for purposes of 15

    U.S.C. 1055.

    5. On information and belief, defendant Fage Dairy Processing S.A. (Fage

    S.A.) is a Greek corporation with its principal place of business located at 35 Hermous

    Street Metamorfossi, Athens, Greece 14452 and a U.S. place of business located in

    Johnstown, New York.

    6. On information and belief, Defendant Fage USA Dairy Industry, Inc.

    (Fage USA) is a New York corporation with its principal place of business located in

    Johnstown, New York.

    7. This is an action for federal trademark infringement in violation of 32

    and 43(a) of the Lanham Act (15 U.S.C. 1114, 1125(a)), dilution in violation of

    43(c) of the Lanham Act (15 U.S.C. 1125(c)), deceptive trade practices in violation of

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    Minn. Stat. 325D.44, common law trademark infringement and dilution in violation of

    Minn. Stat. 333.285.

    8. This Court has subject matter jurisdiction over this action under 15 U.S.C.

    1121 and 28 U.S.C. 1331 and 1338(a). This case presents well-pleaded federal

    questions arising under the Lanham Act, 15 U.S.C. 1051 et seq.

    9. The exercise of in personam jurisdiction over Defendants comports with

    the laws of the State of Minnesota and the constitutional requirements of due process

    because Defendants and/or its agents have advertised and sold their infringing Total

    brand yogurt products to customers in Minnesota and such products are widely sold in

    supermarkets, warehouse stores and grocery stores in Minnesota and in this District.

    10. This Court has supplemental jurisdiction under 28 U.S.C. 1367 because

    the state law claim originates from the same nucleus of operative facts as do the federal

    claims.

    11. Venue is proper in this district pursuant to 1391(b) and (c), as a

    substantial part of the events or omissions giving rise to Plaintiffs claims occurred within

    this District.

    GENERAL ALLEGATIONS

    TOTAL BREAKFAST CEREAL AND THE TOTAL TRADEMARKS

    12. General Mills is one of the largest food manufacturers in the world. As a

    consumer products company, General Mills primary purpose is to build brands and it

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    markets some of the best-known brands in the country. One of its most valuable and

    enduring brands is TOTAL.

    13. Since 1961, General Mills has continuously marketed ready-to-eat cereal

    under the TOTAL Mark.

    14. GM IP Holdings is the owner of the following federal registrations for the

    TOTAL Mark (collectively, the TOTAL Registrations): U.S. Reg. No. 724,897 for

    TOTAL for wheat flakes (reg. date 12/6/1961) and U.S. Reg. No. 1,394,264 for

    TOTAL for ready-to-eat breakfast cereal (reg. date 5/20/1986). True and correct

    copies of the certificates of registration for the TOTAL Registrations are attached hereto

    as Exhibit A.

    15. The TOTAL Registrations are incontestable under 15 U.S.C. 1065.

    16. TOTAL is a famous brand by any measure. Since 1961, General Mills has

    sold billions of dollars of TOTAL cereal.

    17. For decades, General Mills has made large investments in the promotion

    and advertising of TOTAL cereal. Since 1961, General Mills has spent hundreds of

    millions of dollars in advertising the TOTAL brand. General Mills has advertised

    TOTAL cereal in every conceivable type of available media, including national

    television, radio, magazines, internet, newspapers and coupons. Advertising campaigns

    for TOTAL, such as the Stacking Bowls campaign, have achieved iconic status in

    American culture, even spawning a popular Saturday Day Night Live parody.

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    18. The enormous magnitude of sales and advertising of TOTAL brand cereal

    over the last 50 years has given the TOTAL mark the highest level of commercial

    recognition and strength. The TOTAL mark embodies the inestimable goodwill that

    TOTAL brand cereal enjoys in the marketplace.

    19. As a result of General Mills enormous investment in the TOTAL brand,

    the TOTAL Mark has become famous.

    20. Below is an image of the current packaging of the original whole grain

    variety of TOTAL cereal:

    21. Defendant Fage S.A., a Greek food company, entered the U.S. market in

    1998, importing its Total brand yogurt from Greece. For a number of years, the

    distribution of these Greek products was mostly limited to Greek specialty stores located

    in only a handful of urban areas in the Northeast.

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    22. Fage S.A. entered the U.S. market with its Total brand yogurt with reckless

    disregard for General Mills rights in the TOTAL mark. Fage S.A. relied on a self-

    described preliminary trademark search that did not even search for other registrations or

    uses of the word total in relevant classes.

    23. In November 1998, the same year it entered the U.S. market, Fage S.A.

    filed applications with the U.S. Patent & Trademark Office to register two design marks

    containing the word TOTAL for use in connection with yogurt (U.S. Ser. Nos. 75/597,292

    75/597,291). The two design marks are depicted here:

    24. In April 2000, Fage S.A. filed an additional five applications for additional

    design marks, all of which feature the Total brand name for yogurt (U.S. Ser. Nos.

    76/016,809, 76/016,810, 76/016,811, 76/016,812 & 76/016,813). These five design

    marks are depicted here:

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    25. On June 12, 2000, General Mills timely filed Notices of Opposition to the

    registration of all seven Total marks.

    26. On November 6, 2006, Fage S.A. filed eight additional applications to

    register design marks for its Total yogurt (U.S. Ser. Nos. 77/037,793, 77/037,808,

    77/037,835, 77/037,851, 77/037,869, 77/037,897, 77/037,905 & 77/037,924). These

    eight additional marks are depicted below:

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    27. On March 12, 2008, Plaintiffs timely filed a consolidated Notice of

    Opposition against all eight of these applications.

    28. In the meantime, also in 2008, Fage built a factory in Johnstown, New York

    in order to expand its distribution of yogurt into the U.S. mass market and achieve a

    national presence.

    29. Today, Fages Total brand yogurt is sold nationwide in many of the same

    supermarkets, warehouse stores and other stores where General Mills TOTAL cereal is

    sold.

    30. A sample of the current packaging of a single serving size of the plain

    flavor of Fages Total brand yogurt is depicted here:

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    31. A sample of the current display of Fages Total brand yogurt in the Costco

    warehouse store is depicted here:

    32. General Mills opposition proceedings against Fages applications for

    Total trademarks continued from 2000 through 2011. On September 15, 2011, the

    Trademark Trial and Appeal Board issued its final decision sustaining General Mills

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    opposition to all of Fages applications and therefore denying registration to all of the

    applied-for marks.1 The Board held that all of the applications were barred under Section

    2(d) of the Trademark Act because Fages marks are likely to cause confusion with

    General Mills famous TOTAL mark for ready-to-eat cereal. The Board held: we

    conclude that because [General Mills] TOTAL mark is famous, the similarities in the

    marks in their entireties outweigh the dissimilarities, the goods are related, travel in the

    same channels of trade and are purchased by the same consumers, the goods are low-cost

    items such that the conditions of purchase are more vulnerable to confusion, third-party

    use is either not relevant or minimal, and the lack of actual confusion is not highly

    probative, there is a likelihood of confusion between [General Mills] TOTAL marks and

    [Fages] TOTAL marks.

    33. Fage has no affiliation, association, or connection whatsoever with General

    Mills. Plaintiff does not sponsor, approve, or authorize any of the Defendants activities.

    34. General Mills use of the TOTAL Mark precedes Fages use by decades.

    35. Fages unauthorized use of General Mills TOTAL Mark in connection

    with yogurt is likely to cause confusion, or to cause mistake, or to deceive by leading the

    public to falsely believe that Fage is affiliated, connected to or associated with General

    Mills, or that Fages Total brand yogurt comes from, is sponsored by or approved by

    General Mills or its TOTAL brand cereal.

    1 As to Application Ser. No. 76/016,809for TOTAL TZATZIKI and design, the Board sustained the opposition as toTzatziki, made of cucumbers, yogurt, garlic, herbs and spices; and dairy products, namely yogurt in class 29, but

    did not sustain the opposition as to the application for Sauces, spices and food flavorings, not of essential oils in

    class 30.

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    36. Fages unauthorized use of the TOTAL Mark has caused and is causing

    General Mills irreparable harm. Fages unauthorized use of the TOTAL Mark has caused

    and continues to cause irreparable damage to the reputation and goodwill of General

    Mills, which has no control over Fages activities. In addition, Fages unauthorized use

    of the TOTAL Mark also has caused and continues to cause irreparable damage to

    General Mills as a result of consumers who are deceived and confused or who are likely

    to be deceived or confused as to the origin, association, connection, or sponsorship of

    Fages Total yogurt.

    37. Fage has engaged in the conduct described above willfully, intentionally,

    knowingly, maliciously, wantonly, oppressively, and in reckless disregard of the obvious

    and inevitable injurious consequences of this conduct. In using the TOTAL mark,

    Defendant has a bad-faith intent to trade on and profit from Plaintiffs goodwill and

    reputation and to confuse and mislead the public.

    FIRST CLAIM FOR RELIEF

    Federal Trademark Infringement15 U.S.C. 1114

    38. Plaintiffs reallege and incorporates all preceding paragraphs, as if fully set

    forth herein.

    39. The incontestable registrations for the TOTAL Mark are conclusive

    evidence of GM IP Holdings ownership of the TOTAL Mark and its exclusive right to

    use the TOTAL Mark for its ready-to-eat cereal.

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    40. Fages unauthorized use of the Total Mark is likely to cause confusion,

    mistake, and/or deception.

    41. Fages unauthorized use of the TOTAL Mark in connection with its

    offering of its yogurt, including but not limited to nationwide advertising and sales of

    such goods, constitutes trademark infringement in violation of Section 32 of the Lanham

    Act, 15 U.S.C. 1114.

    42. As a direct and proximate result of Fages knowing, deliberate, and willful

    infringement of the TOTAL Mark, Plaintiffs have suffered, and will continue to suffer,

    irreparable harm to its business, reputation, and goodwill, unless and until Fages actions

    as alleged herein are enjoined. Plaintiffs have no adequate remedy at law.

    SECOND CLAIM FOR RELIEF

    False Designation of Origin15 U.S.C. 1125(a)

    43. Plaintiffs reallege and incorporates all preceding paragraphs, as if fully set

    forth herein.

    44. General Mills was the first to use the TOTAL Mark in the United States

    and any marks similar thereto in association with ready-to-eat cereal. As a result of

    General Mills more than 50 years of sales and advertising of ready-to-eat cereal under

    the TOTAL Mark, the TOTAL Mark has become famous and strongly identified in the

    public mind as an indicator that the cereal to which it is applied emanates from a single

    source.

    45. The TOTAL Mark for ready-to-eat cereal is inherently distinctive.

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    46. Fages use of the TOTAL Mark in connection with yogurt is likely to cause

    confusion, mistake, or deception as to the source, origin, sponsorship, or affiliation of

    Fages yogurt with General Mills and/or General Mills TOTAL cereal. .

    47. Therefore, Fages use of the TOTAL Mark in connection with yogurt

    constitutes trademark infringement in violation of 15 U.S.C. 1125(a). Fages use of

    Total for its yogurt name is likely to cause confusion, or to cause mistake, or to

    deceive as to the affiliation, connection, or association of such yogurt with General Mills

    or its TOTAL brand cereal, or as to the origin, sponsorship, or approval of Fages yogurt

    by General Mills in violation of 15 U.S.C. 1125(a).

    48. As a direct and proximate result of Fages knowing, deliberate, and willful

    infringement of the TOTAL Mark, Fage has suffered, and will continue to suffer,

    irreparable injury to its business, reputation, and goodwill, unless and until Fages actions

    as alleged herein are permanently enjoined. General Mills has no adequate remedy at

    law.

    THIRD CLAIM FOR RELIEF

    Federal Dilution15 U.S.C. 1125(c)

    49. Plaintiffs reallege and incorporate all preceding paragraphs, as if fully set

    forth herein.

    50. The TOTAL Mark is famous.

    51. Fages unauthorized use of the TOTAL Mark in connection with its yogurt

    product is likely to cause dilution by blurring of the TOTAL Mark.

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    52. Plaintiffs are therefore entitled to an injunction prohibiting Fage from using

    the TOTAL Mark for its yogurt.

    53. Because Fage willfully intended to trade on the recognition of the TOTAL

    Mark, Plaintiffs are entitled to all the remedies set forth in 15 U.S.C. 1117(a) and 1118.

    FOURTH CLAIM FOR RELIEF

    Violation of Minnesota Deceptive Trade Practices ActMinn. Stat. 325D.44

    54. Plaintiffs reallege and incorporate all preceding paragraphs, as if fully set

    forth herein.

    55. Fage has, in the course of its business, used the TOTAL Mark in a manner

    that has caused and will continue to cause a likelihood of confusion or misunderstanding

    as to the source, sponsorship, approval, or certification of the respective products and

    services of Fage. Fages actions also have caused and will continue to cause a likelihood

    of confusion or of misunderstanding as to the affiliation, connection, or association with,

    or certification by, General Mills of Fages yogurt. Fages use of the TOTAL Mark is

    likely to cause damage to General Mills. Fage has and is therefore engaged in deceptive

    trade practices within the meaning of Minn. Stat. 325D.43, et seq.

    56. Plaintiffs are entitled to an injunction pursuant to Minn. Stat. 325D.45,

    subd. 1.

    57. Fage has willfully engaged in the deceptive trade practice knowing it to be

    deceptive. Plaintiffs should be awarded their reasonable attorneys fees pursuant to

    Minn. Stat. 325D.45, subd. 2.

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    FIFTH CLAIM FOR RELIEF

    Minnesota Common Law Trademark Infringement

    58. Plaintiffs reallege and incorporate all preceding paragraphs, as if fully set

    forth herein.

    59. The TOTAL Mark constitutes a common law trademark pursuant to the

    common law of the State of Minnesota.

    60. Fages conduct constitutes unfair competition and an infringement of the

    TOTAL Mark.

    61. Fages conduct has result in, and will result in, losses to Plaintiffs and an

    illicit gain of profit to Fage in an amount that is unknown at the present time, and has

    caused and will cause irreparable harm to the reputation and goodwill in the TOTAL

    Mark.

    62. Plaintiffs remedies at law cannot adequately compensate it for the ongoing

    injuries being caused by Fages continuing conduct. Unless Fage is restrained and

    enjoined, Fage will continue to commit its unlawful acts causing Plaintiffs to suffer

    further irreparable injury.

    SIXTH CLAIM FOR RELIEF

    Minnesota State Law DilutionMinn. Stat. 333.285

    63. Plaintiffs reallege and incorporate all preceding paragraphs, as if fully set

    forth herein.

    64. The TOTAL Mark is distinctive and famous in Minnesota.

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    65. Fages use of the TOTAL Mark has diluted and will continue to dilute the

    distinctive quality of the TOTAL Mark in violation of Minn. Stat. 333.285

    66. Fage willfully has caused dilution of the TOTAL Mark.

    67. Fage has profited and will continue to profit from its unlawful actions and

    has been, and will continue to be, unjustly enriched to the detriment of Plaintiffs. Fages

    acts have caused and continue to cause Plaintiffs to suffer monetary damage in an amount

    presently unknown, but in excess of $75,000.

    68. Pursuant to Minn. Stat. 333.285, Plaintiffs are entitled to injunctive relief

    to prevent further acts to dilute the TOTAL Mark.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiffs respectfully pray that the Court enter judgment in favor

    of Plaintiffs against Defendants as follows:

    A. Grant injunctive relief against Defendants, their agents, servants,

    employees, attorneys, successors, licensees, parents, subsidiaries, affiliates and assigns,

    and anyone acting in concert or privity with Defendant, jointly and severally:

    (1) prohibiting the use of the TOTAL Mark, or any other mark or designation

    that is confusingly similar to the TOTAL Mark, in any way, in connection

    with any of Defendants yogurt or other dairy products;

    (2) directing Defendants to file with the Court and serve on Plaintiffs within

    thirty (30) days after the service on Defendant of such injunction a report in

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    writing under oath setting forth in detail the manner and form in which

    Defendant has complied with the injunction.

    B. Declare that Defendants infringement and other wrongful acts herein

    alleged be determined deliberate, willful, and in conscious disregard of Plaintiffs rights

    pursuant to 15 U.S.C. 1125(a);

    C. Grant an award to Plaintiffs of all of their actual damages caused by

    Plaintiffs infringement and other wrongful acts.

    D. Grant an award to Plaintiffs of all of Defendants gross and net sales,

    revenues, and profits received or derived by Defendant or its affiliates from its use of

    the TOTAL Mark or any other word, image, or logo likely to cause confusion with the

    TOTAL Mark pursuant to 15 U.S.C. 1117, 1125, and other applicable federal law;

    E. Order Defendants to deliver to the Court for impoundment and destruction

    any and all advertising, circulars, price lists, signs, banners, business stationary, prints,

    packages, labels, containers, freights, cartons, receptacles, wrappers, art work, and other

    materials in its possession or custody or under its control that infringe Plaintiffs TOTAL

    Mark;

    F. Award treble damages to Plaintiffs, together with costs, interest, and

    reasonable attorneys fees as permitted by 15 U.S.C. 1117(a);

    G. Award Plaintiffs their costs and reasonable attorneys fees in prosecuting

    this action as permitted by Minn. Stat. 325D.45, subd. 2 and Minn. Stat. 8.31, subd

    3a;

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    H. Award pre-judgment and post-judgment interest as allowed by law; and

    I. Grant Plaintiffs such other equitable and legal relief as it deems just and

    proper.

    Dated: September 16, 2011

    s/Felicia J. BoydFelicia J. Boyd, MN #186168BARNES & THORNBURG LLP

    225 South Sixth Street, Suite 2800Minneapolis, MN 55402(612) 333-2111

    Craig Coleman, MN #325491Marc C. Levy (Pro Hac Vice pending)

    FAEGRE & BENSON LLP

    2200 Wells Fargo Center90 South Seventh StreetMinneapolis, MN 55402(612) 336-3000

    Attorneys for Plaintiffs

    MIDS01 FBOYD 653045v1