Case: 1:16-cv-03389 Document #: 1 Filed: 03/17/16 Page 1 of 15 PageID #:1

IN THE UNITED STATES DISTRICT COURT

Case No. 16-cv-3389

CHAR-BROIL, LLC, and

JURY TRIAL DEMANDED

Defendants.
COMPLAINT
Plaintiff Weber-Stephen Products LLC complains of Defendants Char-Broil, LLC and
W.C. Bradley Co. as follows:
NATURE OF CASE
1.

This Complaint includes claims for trademark infringement, trade dress

infringement, unfair competition, false designation of origin, and trademark dilution arising under
32 and 43 of the Lanham Act, 15 U.S.C. 1114(1), 1125(a), and 1125(c).
PARTIES
2.

Plaintiff Weber-Stephen Products LLC (Weber) is a Delaware limited liability

company with its principal place of business in Palatine, Illinois.

Defendant W.C. Bradley Co. (W.C. Bradley) is a Georgia corporation with its

principal place of business in Columbus, Georgia.

Defendant Char-Broil, LLC (Char-Broil) is a Georgia limited liability company

with its principal place of business in Columbus, Georgia. Char-Broil is a wholly owned
subsidiary of W.C. Bradley.

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5.

W.C. Bradley and Char-Broil are hereinafter collectively referred to as

Defendants.
BACKGROUND
6.

Weber is a leading worldwide designer, developer and manufacturer of outdoor

grills and accessories sold under the Weber brand name. Weber's founder, George Stephen,
began making and selling grills under the Weber name in the 1950s. Since that time, Weber has
developed and introduced numerous revolutionary and iconic products, such as its 3-legged kettle
grill design. Today, the Weber brand has become one of America's most recognized and trusted
brands in outdoor grills.
7.

Webers distinctive 3-legged kettle grill design began with the 1956 Custom Bar-

B-Q Kettle series of grills, then continued with the 1958 The Westerner series of grills, the 1969
The Custom series of grills, the 1992 Master-Touch series of grills, the 2000 One-Touch Gold
series of grills, and finally the Original KettleTM series of grills.
8.

Weber owns and has standing to sue for infringement of United States Patent and

Trademark Office (USPTO) Reg. Nos. 1,478,530 (three-dimensional pictorial representation of

Weber also owns several trademark registrations bearing the 3-legged kettle grill

design in a variety of classes of goods and services, including: USPTO Reg. Nos. 1,466,756
(restaurant services); 1,481,520 (griddles and metal grids used as grills and metal grills for
holding ears of corn and potatoes, being accessories for barbeque grills); 2,540,281
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(clothing, namely hats, t-shirts, sweatshirts, polo shirts and chef shirts); 2,540,282 (barbecue
sauce, steak sauce, flavored cooking spices and flavored cooking rubs); 3,834,455 (paper
napkins; printed menus; printed survey cards; printed promotional materials relating to restaurant
and catering services and cooking); 2,575,932 (restaurant services); 4,378,010 (non-stick
water-based cooking spray); 4,415,012 (Preparations for cleaning, polishing and protecting
exterior and interior surfaces of barbecue grills) (collectively, the Other Weber Marks).
10.

The Weber Kettle Marks are in full force and effect and have become incontestable

pursuant to 15 U.S.C. 1065. Defendants are infringing upon the Weber Kettle Marks. At this
time, Weber is not asserting that Defendants infringe the Other Weber Marks.
11.

Together, the Weber Kettle Marks and the Other Weber Marks underscore the fact

that any product or advertisement bearing the famous and distinctive Weber 3-legged kettle grill
design is immediately associated by purchasers, potential purchasers and the public as being a
product of, and affiliated with, Weber.
12.

Defendants have used and are using in interstate commerce the products depicted

below that are confusingly similar to the famous Weber Kettle Marks (the Infringing Products):
Defendants Kettleman TRUInfraredTM 22.5 Charcoal Grill

Weber Trademark Reg. Nos.

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13.

Defendants unauthorized use of the Infringing Products, including in connection

with the advertising and sale of grills and other cooking accessories, is likely to cause confusion,
mistake, and deception as to the origin, affiliation, sponsorship, endorsement, or approval of
Defendants grills and other accessories and to impair the distinctiveness of the Weber Kettle
Marks.
JURISDICTION AND VENUE
14.

This Court has original subject matter jurisdiction over this action pursuant to 15

U.S.C. 1121 and 28 U.S.C. 1331, 1332, and 1338.

This Court has personal jurisdiction over Defendants because, among other things,

they transact business in this district at least by offering to sell, selling and advertising the
Infringing Products in such a way as to purposefully reach out to customers in Illinois and this
judicial district through their retail stores located in this district, as well as through their websites,
thus specifically committing acts of infringement in this judicial district. Defendants have
purposefully availed themselves of the privilege of conducting business with residents of this
judicial district and have established sufficient minimum contacts with the State of Illinois such
that they should reasonably and fairly anticipate being brought into court in Illinois.
16.

Venue is proper in this district under 28 U.S.C. 1391(b).

17.

Weber repeats and incorporates by reference the allegations contained in the

preceding paragraphs as if set forth fully herein.

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18.

This Court has jurisdiction over the subject matter of this claim for trademark

infringement under the Trademark Laws of the United States as codified in 15 U.S.C. 1051 et
seq.
19.

Defendants use of the Weber Kettle Marks in connection with the sale, offering

for sale, distribution, and advertising of the Infringing Products in interstate commerce, without
the consent of Weber, has caused and is likely to cause confusion, mistake, or deception among
the consuming public, and creates the false impression that Defendants Infringing Products are
authorized, sponsored, or approved by Weber.
20.

Based on Webers decades of continuous and exclusive use, extensive advertising,

sales, and the massive popularity of the 3-legged kettle grill design, the Weber Kettle Marks have
acquired secondary meaning.

Any product and advertisement bearing such trademarks is

immediately associated by purchasers, potential purchasers and the public as being a product of,
and affiliated with, Weber.
21.

Weber has been directly injured by Defendants infringing activities.

22.

Defendants have copied and imitated the Weber Kettle Marks in connection with

selling, distributing, and advertising Defendants Infringing Products.

Defendants conduct is intended to exploit the goodwill and reputation associated

with the Weber Kettle Marks. Defendants Infringing Products are sold in the same channels of
trade to the same consumers as Webers 3-legged kettle grill products.
24.

Defendants unauthorized use of the Weber Kettle Marks has resulted in

Defendants unfairly benefiting from Webers advertising and promotion, and profiting from

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Webers reputation and its registered trademarks, to the substantial and irreparable injury of the
public, Weber, the Weber Kettle Marks, and the substantial goodwill represented thereby.
25.

Defendants aforesaid acts constitute trademark infringement in violation of section

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

Weber has suffered actual damages as a result of Defendants infringement in an

amount to be proven at trial. In addition, Defendants acts have caused, and will continue to cause,
great and irreparable injury to Weber, and unless such acts are restrained by this Court, Defendants
will continue such acts, thereby causing Weber to continue to suffer substantial and irreparable
harm for which it has no adequate remedy at law.
27.

Defendants infringement has been knowing, intentional, wanton, and willful,

entitling Weber to increased damages, statutory damages, prejudgment interest, attorney fees, and
costs.
COUNT II
FEDERAL TRADE DRESS INFRINGEMENT, UNFAIR COMPETITION,
AND FALSE DESIGNATION OF ORIGIN
[15 U.S.C. 1125(a)]
28.

Weber repeats and incorporates by reference the allegations contained in the

preceding paragraphs as if set forth fully herein.

This Court has jurisdiction over the subject matter of this claim for trade dress

infringement, unfair competition, and false designation of origin arising under Section 43 of the
Lanham Act, codified in 15 U.S.C. 1125(a).
30.

Defendants are fully aware of the popularity of the Weber 3-legged kettle grill line

and the clear association of the kettle grill design with that line of products.

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31.

The Weber 3-legged kettle grill design obtained secondary meaning well prior to

Defendants introduction of the Infringing Products. Defendants intentionally copied and offer in
interstate commerce charcoal grill products that create the same overall visual effect and
appearance as Weber's famous 3-legged kettle grill line. Defendants Infringing Products were
designed to have the same distinctive overall appearance and look as the Weber 3-legged kettle
grill products and are confusingly similar in total image, appearance and overall aesthetic look.
As a result, the public is, and is likely to be, confused.
32.

Images of the Weber 3-legged kettle grill design and Defendants Infringing

Products are shown below:

Weber Original KettleTM

Defendants Kettleman
TRU-InfraredTM 22.5
Charcoal Grill

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Weber Original KettleTM

33.

Weber Original KettleTM

Defendants Kettleman
TRU-InfraredTM 22.5
Charcoal Grill

Defendants have used in commerce, and continue to use in commerce, the Weber

3-legged kettle grill design to unfairly benefit from Weber's success by selling the Infringing
Products bearing the same design in this jurisdiction and throughout the United States.
34.

Defendants could have selected an alternative aesthetic design and achieved the

same functionality as their current Infringing Products.

The Weber 3-legged kettle grill design is non-functional.

36.

Defendants have used Weber's 3-legged kettle grill design on their Infringing

Products with the express intent to pass off Defendants Infringing Products as those of Weber and
to cause confusion and mislead the purchasing public into believing that Defendants Infringing
Products are authorized, sponsored, affiliated with, or associated with Weber, and to trade upon
Weber's reputation for high-quality grill products and to improperly appropriate Weber's valuable
trade dress rights.

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37.

Sales of Defendants Infringing Products are likely to cause consumer confusion

because of the similarity in appearance and look between Defendants and Webers products.
Consumers will believe that Defendants Infringing Products are either manufactured, licensed,
affiliated with or sponsored by Weber or are being placed on the market with Weber's consent
and/or actual or implied authority. As a result, Weber has been and will continue to be irreparably
injured by Defendants improper acts.
38.

Defendants have willfully, deliberately, and with predatory intent, created such

confusion by copying and reproducing the distinctive and unique design and overall product
appearance of Weber's 3-legged kettle grills; and have advertised and sold their Infringing Products
so as to cause public confusion and deception for a substantial portion of the people who perceive
the advertisements, which confusion and deception is likely to influence purchase decisions.
Further, Defendants sales and offers for sale of their Infringing Products have caused Weber the
loss of its valuable goodwill and reputation for making and selling distinctive, unique and highquality grill products under the 3-legged kettle design.
39.

Defendants aforesaid acts constitute unfair competition and the use in commerce

of false designations of origin and false and/or misleading descriptions or representations, tending
to falsely or misleadingly describe and/or represent Defendants Infringing Products as that of
Weber in violation of Section 43 of the Lanham Act, 15 U.S.C. 1125(a).
40.

Weber has expended considerable time, effort and resources to design, develop and

protect the unique and distinctive appearances of its 3-legged kettle grill products. The 3-legged
kettle grill design has been featured prominently in Weber's in-store, on-site and other
advertisements and promotions for its charcoal grill product line. This unique trade dress has
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become associated with the success of Weber's 3-legged kettle grill products and has become an
indication of a single, high-quality source for those products in the minds of the relevant
purchasing public.
41.

Since at least 1960, Webers 3-legged kettle grill line has consistently incorporated

the following unique design features, which individually and in combination and subcombinations, describe the overall appearance constituting Webers asserted trade dress in this
action: 1) a generally dome-shaped kettle with a circularly-shaped vent unit located on an upper
portion of the kettle; 2) three tubular legs, in a tripod arrangement, supporting the kettle and
projecting downwardly and outwardly from the kettle; 3) the bases of the legs defining a triangular
shape; 4) two of the legs bearing wheels, with an axle in-between; and 5) a webbed brace unit
extending from the two legs bearing wheels to a third leg.
42.

Defendants selection and use of a substantially similar look and appearance for

their Infringing Products is likely to mislead and confuse the public as to the source, sponsorship
and affiliation of Defendants Infringing Products. Because of the nearly-identical look of
Defendants Infringing Products to Weber's non-functional trade dress associated with Weber's 3legged kettle grill products, the public is likely to believe that Defendants Infringing Products are
in some way affiliated or associated with, or sponsored by, Weber.
43.

Weber has suffered actual damages as a result of Defendants trade dress

infringement, unfair competition, and false designation of origin in an amount to be proven at trial.
In addition, Defendants acts have caused, and will continue to cause, great and irreparable injury
to Weber, and unless such acts are restrained by this Court, Defendants will continue such acts,

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thereby causing Weber to continue to suffer substantial and irreparable harm for which it has no
adequate remedy at law.
44.

Defendants actions have been knowing, intentional, wanton, and willful, entitling

Weber to increased damages, statutory damages, prejudgment interest, attorney fees, and costs.
COUNT III
FEDERAL TRADEMARK DILUTION
[15 U.S.C. 1125(c)]
45.

Weber repeats and incorporates by reference the allegations contained in the

preceding paragraphs as if set forth fully herein.

This Court has jurisdiction over the subject matter of this claim for trademark

dilution arising under Section 43 of the Lanham Act, codified in 15 U.S.C. 1125(c).
47.

Defendants use of the Weber Kettle Marks on their Infringing Products constitutes

Defendants commercial use in commerce of the Weber Kettle Marks.

Based on Webers extensive sales, marketing and advertising of the Weber 3-

legged kettle grill design and the Weber Kettle Marks, the Weber Kettle Marks have become
distinctive and famous pursuant to 15 U.S.C. 1125(c). As a result, the Weber Kettle Marks are
recognized by the general consuming public as a designation of the source of Webers goods and
services.
49.

The nearly identical style, look, and overall visual appearance of the Infringing

Products, as well as Defendants efforts to pass off their Infringing Products as being made,
marketed, sponsored, licensed or otherwise approved by Weber, are eroding the distinctiveness of
the famous Weber Kettle Marks.

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50.

Defendants use of the Weber Kettle Marks began only after such marks became

famous to the general consuming public.

Defendants actions have caused dilution of the Weber Kettle Marks by lessening

the capacity of the marks to identify and distinguish Webers charcoal grills and grilling
accessories.
52.

Weber is threatened with injury through this dilution of its trademark rights, as well

as immediate and direct injury to its name, image and business reputations.
53.

Defendants have willfully intended to trade on Webers reputation and to cause

dilution of the Weber Kettle Marks.

Weber has suffered actual damages as a result of Defendants acts of trademark

dilution in an amount to be proven at trial. In addition, Defendants acts have caused, and will
continue to cause, great and irreparable injury to Weber, and unless such acts are restrained by this
Court, Defendants will continue such acts, thereby causing Weber to continue to suffer substantial
and irreparable harm for which it has no adequate remedy at law.
55.

Defendants actions have been knowing, intentional, wanton, and willful, entitling

Weber to increased damages, statutory damages, prejudgment interest, attorney fees, and costs.
PRAYER FOR RELIEF
WHEREFORE, Weber respectfully prays for the following relief:
A.

That judgment be entered in favor of Weber and against Defendants on each claim

made in the Complaint;

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B.

That the Court order that Defendants, their officers, agents, directors, servants,

employees, representatives, successors, and assigns, and all persons, firms, or corporations in
active concert or participation with Defendants, be immediately and permanently enjoined from:
1. directly or indirectly infringing the Weber Kettle Marks as described above in
any manner including generally, but not limited to, copying, distributing,
advertising, selling, and/or offering for sale any merchandise that infringes the
Weber Kettle Marks including without limitation Defendants Infringing
Products, and specifically distributing, advertising, selling, and/or offering for
sale unauthorized copies of the Weber Kettle Marks and/or the Weber 3-legged
kettle grill design or any other unauthorized goods that picture, reproduce, or
utilize the likenesses of or which copy or bear a substantial similarity to any of
the Weber Kettle Marks;
2. using the Weber Kettle Marks and trade dress rights or marks confusingly
similar thereto;
3. engaging in any conduct that tends falsely to represent that, or is likely to
confuse, mislead, or deceive purchasers, potential purchasers, Defendants
customers, and/or members of the public to believe that, the actions of
Defendants, the products sold by Defendants, or Defendants themselves are
connected with Weber, are sponsored, approved, or licensed by Weber, or are
in some way connected or affiliated with Weber;
4. otherwise competing unfairly with Weber in any manner; and/or

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5. diluting and infringing the Weber Kettle Marks, eroding the distinctiveness of
the Weber Kettle Marks, and damaging Webers goodwill, reputation, and
business;
C.

That Weber be awarded damages in an amount sufficient to compensate it for the

injuries it has sustained by reason of Defendants unlawful acts, including Webers loss of
goodwill, loss of past and/or future sales, and damages caused by Defendants acts of trademark
and trade dress infringement, unfair competition, and trademark dilution. That Weber be awarded
increased damages based upon the intentional and willful nature of Defendants conduct of the
kind complained of herein. That Weber be awarded all gains, profits and advantages received by
Defendants from the sale of their Infringing Products and any other products that infringe upon
Webers trademark and trade dress rights;
D.

That Weber be awarded all additional remedies provided for in 15 U.S.C. 1117;

E.

That Defendants be ordered to deliver up for destruction all advertisements,

circulars, brochures, and any other items in their possession, custody or control bearing the Weber
Kettle Marks or any other similar designations;
F.

That Defendants be ordered to (a) prepare and send to their customers and the

general public corrective statements approved by Weber, correcting all false statements made and
all misrepresentations made concerning the Weber Kettle Marks and trade dress rights; (b)
disclaim any association between Defendants and Weber and/or Webers products; and, (c) recall
and make reasonable efforts to obtain the return of any infringing or confusingly similar products
from their customers; and

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G.

That the Court provide Weber with such other and further relief as it deems just and

proper, or that Weber may be entitled to under the law, including but not limited to attorney fees,
costs and interest.

JURY DEMAND
Weber demands a trial by jury on all issues presented in this Complaint.

Respectfully submitted,
/s/ Raymond P. Niro, Jr.
Raymond P. Niro, Jr.
Matthew G. McAndrews
Kyle D. Wallenberg
NIRO McANDREWS, LLC
200 W. Madison St., Suite 2040
Chicago, IL 60606
(312) 755-8575
Fax: (312) 674-7481
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiff Weber-Stephen
Products LLC

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