Loading...
HomeMy WebLinkAbout99-02722 f.\FILES\DATAFII.E\GEND0C99\98)4.COM IIIITW Crel1<<l04.12!199064607PM Reviled.OSI06I990\l3426AM 9U41 PAUL A. KORZUN, tJdlb/a PREMIER CARPET CARE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. qq _ U7Jd. G.W-O Te.rM KELLY ZDUNCZYK, tJd/b/a PREMIUM DRY CARPET CARE BY ZDUNCZYK, Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 PAUL A, KORZUN, lId/b/a PREf\HER CARPET CARE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, P.ENNSYL VANIA v. CIVIL ACTION - LAW NO. KELLY ZDUNCZYK, lId/b/a PREMIUM DRY CARPET CARE BY ZDUNCZYK, Defendant q9- otla~ COMPLAINT FOR INJUNCTIVE RELIEF AND NOW, comes Paul A. Korzun, trading and doing business as Premier Carpet Care, by and through his attomeys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows: 1. Plaintift~ Paul A. Korzun, is an adult individual residing at 507 South Middlesex Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is sole proprietor of a carpct and upholstcry clcaning busincss operating undcr the assumed/fictitious nanle "Premier Carpet Care"; Plaintiff has bcen operating under this name since October I, 1996. 3. Plaintiff first used the service mark "Premier Carpet Care" on October I, 1996, and filed an Application for Registration of Mark with the Commonwealth of Pennsylvania on March 13, 1999, pursuant to 54 Pa.C.S. ~ 1112. The State trade mark/service mark application was registered on March 29, 1999; a true and accurate copy of the State registration is allached hereto as Exhibit "A." 4. Defendant, Kclly ldunczyk, is an adult individual residing at 620 North Bedford Street, Carlisle, Cumberland County, Pennsylvania 17013. 5, Defendant is sole proprictor of a carpet cleaning business ostensibly operating under the nanle "Premium Dry Carpet Care by Zdunczyk." 5. The name "Premium Dry Carpct Care by Zdullczyk," is not registered with the Commonwealth of Pennsylvania as a fictitious name or rcgistercd tradc mark. 7. Defcndant purchased a half-pagc advcrtiscment in the April 1999 edition of The Best Rcd Yellow Pages ofthc Cumbcrland Countywidc phonc book undcr thc namc "Prcmium Dry Carpet Care by Zdunczyk." The half-page advertisement appears on page 96 of the Cumberland Countywide Best Red Yellow Pages (hereinafter "Cumberland County Yellow Pages"). A true and accurate copy of Defendant's half-page advertisement is attached hereto as Exhibit "B." 8. Plaintiff's advertisement appears in the alphabetical listing in the Cumberland County Yellow Pages, specifically on page 97, and directly above Defendant's alphabetical listing. A true and accurate copy of page 97 of the April 1999 edition of the Cumberland Countywide Best Red Yellow Pages is attached hereto as Exhibit "C." 9. Defendant did not advertise in the Yellow Pages under "Premium 01)' Carpet Care by Zdunczyk," or any similar name, prior to the April 1999 edition of the Cumberland Countywide Yellow Pages. I O. The April 1999 edition of the Cumberland Countywide Yellow Pages was distributed to the public in or about March, 1999. II. On March 18, 1999, Plaintiff dialed the phone number listed in Defendant 's Yellow Page advertisement and was told by a female phone attendant that he had reached "Premier Carpet Care," 12, In April, 1999, another individual dialed the phone number listcd in Defendant's Yellow Page advertisement and was infonned he had reached "Premium Carpet Care." 13. On or about April 8, 1999, Plaintiff, through his attorney, Thomas G. Collins, Esquire, requested Mr, Zdunczyk, via letter, immediately to cease and desist operating his business under the name "Premium 01)' Carpet Care by Zdunczyk," or any similar name, as it was causing confusion among the public. 14. On April 12, 1999, Defcndant's attorney, Harold S. hwin,111, Esquire, responded via facsimile letter that Defendant would not stop using the name because the Yellow Page advertisement would remain in the Cumberland Countywide phone book until April of 2000. i.e., one year, and the simultaneous existence did not appear to be causing any confusion. A true and accurate copy of the letter and facsimile cover pag(~ is attached hereto as Exhibit "c." 15. TIle April 12, 1999 letter ;md facsimile co\'er page misidentify the par1ies' respccti\'e names as follows: a) The facsimile cover page indicates the letter is in reference to "PREMIUM CARPET CARE," when no such business exists; b) The reference line preceding the body of the letter misidentifies Plaintiff's Business as "Premium Carpet Care," when in fact it is "Premier Carpet Care"; and c) The address. footer on page two of the letter identifies Defendant's business as "Premier Dry Carpet Care," when in fact it is "Premium Dry Carpet Care by Zdunczyk." 16. The commencement and continued existence of Defendant's business name has caused actual confusion, let alone likely to cause confusion as to the source of the services. 17. P!!!intiff's business name "Premier Carpet Care," has developed secondary meaning within Central Pennsylvania, particularly in Cumberland County. 18. Plaintiff has incurred considerable expenses in developing and establishing a reputable name in the carpet cleaning business. 19. PlaintifThas not received a single telephone call for carpet cleaning from a customer using the Cumberland Countywide Be,t Red Yellow Pages since Defendant's advertisement appeared in early March, 1999. 20. Defendant, or his agents and employee(s), have intentionally or negligently misidentified the name of their business to potential customers over the telephone. 21. Defendant's continued use ofthe name "Premium Dry Carpet Care by Zdunczyk" has and will continue to cause immediate and irreparable hann to Plaintiffs business and business reputation. 22. Defendant's continued use of the name "Premium Dry C:upet Care by Zdunczyk" has and is causing injury to Plaintiff's business reputation and diluting the distinctive quality of Plaintiffs service mark "Premier Carpet Care." 23. Defendant's use of the name "Premium Dry Carpel Care by Zdunczyk" is causing actual confusion among the public. 24. Plaintiff is entitled to injunctive reliefundcr 54 Pa.C.S. * 1124. 25. Plainliffis entitled to damages under 54 Pa.C.S. ~ J 125. r I I I Exhibit A 9923~ 1071 i I , -"'%:7.::.1J~29~99 i ACTINd Secretary O~n:~:II~ APPLICATION FOR REGISTRATION OF MARK @ '. DSCB:54-11 12 IROY 19961 Miaolilm Nlmber Enfily Number ?9lJ)CJ 0) CIJ '. In compliance wlth the requirements of 54 Pa,C.s, ~ 1112 (relaling to application for registration). the undeBlgnecl. hovng odopted and used 0 Irode mOll: or service mOll: In this Commonwealth and de~ to reglsler such marlc. hemby states that: I. The nome of the applicant is (see InslNctlon A): Paul Korzun 2. The residence,.Jocatlon or place of business of the applicant is: 507 g, Middlesex R~n Number and Slreet r~rli!::'p aty on. State 17m ':\ Zip (~'l1m'hc.,..l ~nn County 3. The name and description of the mOll: Is (0 facsimile of the male 10 be reglslered accompanies this application as ExhibIt A and Is ilcorporated hsrein by reference): "Premier Caroet Care" with desi<;rn 4.. The general class in which such goods or services foils (use only one of the ctassllicolions as set forth in the genorcI classes of goods and services established by the United States Palenl and Trademale 0tlIce atloched): 37 5. The goods or services in connection with whlch the marl: is used and the mode and manner in whlch tho mark Is used in connection wlth such goods 0,. SeMc:e5 om: Ca Pf1 i n r(mnp~t-; nn Wl th t-hp An\TPYt-isL 1996 T. The dole when Ihe men was fi'st used in this Commonwealth by the applicant or the pmdecessorin inlemst Is: October 1. 1996 B. The dole. if any. on oppticalion 10 register the marlc. or portions or 0 composite thereof. was Red by the opp&cont or a pcedecessor In Interest in the Unlled Stales Palenl and Trademorl: Oflice. Also provide llling dote and seriol number of each app/icatlCln. the status thereof and. if any applicallon was finally refused reglslratlon. or has otherwise nol resu!led in o registralion. the reasons therefore. (Please a1fach 8'~ x II she&!(s) if more space is needed.) Not applicable. \1_ Appllcanlls tho owner of the mort;. lhot the ma1: is in use and thai, to the apr:.IIcant's l:nowIedlge, no other person has regirtered. ellher fEKIeroiy or In this Commonwealth or has !he righl 10 US!! such mcrt. either In the ldenlicol form thereof or in wch near resemblance therelo as 10 be likely, when ~~ed to ltIe goods or services of such other person. 10 cause contusion. or 10 couse mistalce. or 10 deceive. IN mnMONY WHEREOF. the undooigned person has caused lhis Appt'coUon lor Regirlratlon of MOlt to bo execuled this 13 doyof "'^....~'- .' 1"10.,\, PA om I'C ~""'IT Paul Korzun alName 01 Appicon!) . fJ a?~~, (51 l.Ke) BY: exhibit B Exhibit C llIlW'o'ml'\l'~""~.""""'''lf'II,I'''' II~ CARPET 97 STIHLEY STEEMER. Residential & commercial carpet c1~aning aperts since 1947. Top-quality cleaning of upholstery. Oriental & specialty area rug.. We'U leave your house exactly a. we found it-but without the ditto Water extraction se!Vice available, Always our employees. never subconnactors. . C.~~di.J CUTSHALL DANIEl G . 12 Whilrt.ail'OrfMount Hol!~ Sprin\l~ .486.7007 lDlMAIl'S CARPET ctLUllHG INe Catli~lt .................... lSI.ID27 LEHMA.N'S CARPET CL[AN(NG INC Carlj,lt ....... ............. 258.8'.127 Or 10U fm ....... .. 8CJ04~S.41l) M & 1 CARPET ClUNI~' J25 Atth St Cilrli~lr ..,...,..... 24cH904 ISf'f' Altvt-rti!otmrnl PAgt 1iI1l PREMIER CARPET CARE f C...-pet &; Upbo1.u:,.,. l.'uninl . QloIalitJ' Dry Itrtract.iOL Sy&tem . Re.idr-nU.1 &: Cotllllll':rdal .~EdillD&t.u quolify Won. ,"Mliafird Cerda",,'" Catli~lr. . . . . 249.()409 PREMIUM OClvCARP(l CARE 8V lOUNCIVK bl0 N f,f'dlord ~1"?f1 Carll\11' .. ;'41.{l9n 1:'-'l'f'Advrr1!'.f'llIf'll P..9tqt.l PROCLEAN RESTORATION SERVICES % H.lIIop Ln Nf'WYLllr . ... 77ft-COb PROrr5.SIONAl SOLUTIONS INC 879 StaIr lrmo~'lt 7b).039C I'URorlRST CAPnA!. R[GIOH B12 N llf1 St ~.)tf,~bJ'q Tollfrrf 'wl'U.17S1 SHEA.fJ(R'5 Ul TflABRIC,Hl (ARPl t ClU.NINr. 4J21 tclanHU D, C.ilITlP HIli . .73Z.88U SMART Cll AN CAIl:PrT CL(ANERS C"l11p~il! ..... ........ 737.4-'41 STUllV $1((101.[" CAF':P[1 CltAI\tP: C..,li\lr ....._ iC)-!:tlll I ~rr All~I''''''' "'1'''' 1'11\ f'~lIfJ Sl ANLI r S1f UU II C.r.FP[l rt (ANIN" CO ,^~~l ShOff (mil HI 737IHI!'I fT... I"I.u,"..-.....". ('."""~ .'\....1 ".,rl Call 241..5113 !ZJ iIJ The Bane-Clene Waylf9 Specialists in Carpet, Furniture & Drapery Cleaning "We Want to Work for You/n . Courteous & prompt . Insured & uniformed tor your protection . Odor control treatment . We won't smoko in your homo or office . Carpet and fabric protector available " Recommended by 50 'oadlng e...txIot rn..."lufo:K:turor; . Sl1te, quiet syatem . Cleans df6P. drilJI fast . We bring our own soft(lned wat~ . We take away soil & waste water . We leavo no aoapy, sticky resJdue Call 'Us' On The Cat'pe~ Ettinger's Wall & Floor (717) 249-3211 800 924-8309 ~!.lljl.' '" mo~ ca~~ foQUIl)......'" "","C'l\Jl.IdfI"'~l\'uI.'~ Oriental Rugs Pick Up & Delivery "Wo',.. Very Careful Who Wo Sefid Inlo Your Home!" 1~~~:.::..-=:1 - * J. ~~.. '......1 /--"TJ ::;-1!J.- ;') "'... M"mt.M "Nf'twon.. of Eacefleoce"- Ceop)'"'IJh1 n,."..c."......C'I.IJ \99llt...lill~..th'ac..!~hf'Il'''''IIIH...,\f'(!''''f'. g -. Certlftc::ahonno '30308 ~mmnIlHHffiHHHfnHlnH HHHlllHHHB 1If1l1+1H11I1HIfIHlllHnflffilHAAlfHlIHH+HIUmfl Exhi hi tIle" ffii:li'OlEfiI . ". . '- I,',' ;l,;\' , \: ;':c", ':.:' <':',r, ;', '<~I .c: . '~."'t .' ':J~:":;-'" .' \;'.I,~ ~,~\::~: ~~",:..:>< ':<"~ '\ :~~<,'. '>e.~, ' ,. ,>'\: t, ';< '" ':, f: . ,:".:-' ::',:.,. .1" ,1\;. ;','" ., . , ,''', ' . . Exhibit 0 LAW OFFlCE/I OF HAROLD S. IRWIN, III ATTDRNIfY-AT-I.AW HAROlO S. IRWIN. III JOtN J. BARANSKI. JR. HITNER HOUS!!, sums 201 and 202 31 lEAST HIOH STRII!T CARLI8LE, peNNSYLVANIA 17013 HEATHER Il. BARBOUR GIlV L.IRWlN PAAt.LPGAL.S www.canpenn.comliMTnI 9o/7lsi/: IrwlnlaW@9pllt.ool 717.24:J.Ml1O PHOI<E 7' 7 ~43.9200 FACafNlI.E. April 12,1999 BY FACSIMILE ONLY THOMAS G COLLINS ESQ MARTSON DEARDORFF WILLIAMS & OTTO 10 E HIGH ST C.b.RLISLE PA 17013 RE: Premium Dry Carpet CarefZdunczky . Premium Carpel CarefKOl'Zun Your File No. 9834.1 Dear Tom: I have reviewed your letter of April 8, 1999 regarding this matter and have been asked to respond to it. Of course, Mr. Zdunczyk regrets the unintentional and . coincidental similarity between the name of his business and that of Mr. KOl'Zun. However, he has expended certain sums himself in setting up his business under this name, not the least of which is a one year yellow pages contrect. Accordingly, he accede to your request simply on the basis of your letter and the comments therein. As I understand the law, fictitious name registration does not carry name exclusivity for any purpose, You refer to Mr. KOl'Zun's securing of a Pennsylvania sarvice marl< registration. If you contend that this does grant your client some protection in the use of this name, please refer me to the appropriate statutory provisions granting this protection and provide us with documentation for the formal registration which would convey such protection, Incidentally. I note that the name in the Yellow Pages is 'Premlum Dry Carpet Care By Zdun~k' (emphasis added). While there Is a similarity, I question how much confusion Is really being created for Paul KOl'Zun by the use of this name, It seems more likely that Mr. KOIZun may be losing business because of the relative size and obscurity of his advertisement. which follows four full-pago ads and five half page ads In the Cumberland County-wide book. Lastly, if Mr, Zdunczyk agrees to the request 10 disconftnue the use of this name. his yellow page ad containing this business name and phone number will run for one year. no matter what he may be willing to do. Perhaps you could suggest some ! -c -:l- a- .... ..3' >- 0 0 ~ c.; l"::-;: .~ ,. :~~.s ill N) D 1-- Lu9 .;t I:::- (p @ (") -. ,- i..')";:. \Jl (~~! ~~~ ,-j -::r ~ ~ . 'i ~ - ,. (--)':. . ., rJ1 \i:. ,. \0 ..:J ;>; 0: ... I U t.1,.;'-- ,.- ,,' : I~U =~11 u... '.~ : .':: ..,JD.... ,.- :-.. :::j 15 C'\ c'" U SENT BY:!lIDIl'O 5-18-99 :I2:HPM : '-~- !lIDw&<r 717t213t9200:# 2/ 2 P'\PtLII\QATNII..I"GJrl\'DOC'tNII3+Act.1 ~'SJNIHOCII:"'P'" lewbet lU'IOPlt'Jr:I"1'trf PAULA KORZUN, tldlbln PREMIER C,U~PET CARE, Plaintiff IN TIm COUIlT OF COMMON PLEAS OF CUW.sliRLAND COUNTY, PENNSYLVAi-UA v. CML ACTION - LAW NO. 99-2722 CIVIL TERM KELty ZDUNCZYT<, tld/b/a PREMIUM DRY CARPET CARE BY ZDUNCZi'K. Defendant ACCEPTANCE OF SERVICE I, Harold S, Irwin, Ill, Esquire. accept service of the Complaint on behalf of Defendant and certifY that T am authorized to d.) so in accordance with Pa. R.C.P. 402. Dated:. /1';?y' 2~, /99P -.... (") ~:.: [~ ~ .;:: 6\ , .. (-~~ I.JJ" ( '~. r.;..~ ! ; ".. ~ .J c:;; , , , -'II C"'..: L_. , , ~'~i," ,. , ..,1 . , 'L ";" L' G\ ~':j t,) c-) ........ . r I~ "', ~ knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. 4, The averments of paragraph four of plaintiffs complaint are admitted. 5. The averments of paragraph five of plaintiffs complaint are admitted. 6, The averments of paragraph six of plaintiffs complaint are denied, On the contrary, the name "Premium Dry Carpet Care By Zdunczyk" was registered with the Commonwealth of Pennsylvania, Department of State, Corporation Bureau on May 19, 1999, 7, The averments of paragraph seven of plaintiffs complaint are admitted in part and denied in part, It is denied that this was the "April 1999 edition" of said Yellow Pages. On the contrary this is the 1999 annual edition of the Yellow Pages for the year of April, 1999 through Mach, 2000, The remaining averments of this paragraph are admitted. 8, The averments of paragraph eight of plaintiffs complaint are admitted, 9, The averments of paragraph nine of plaintiffs complaint are admitted. 10. The averments of paragraph ten of plaintiffs complaint are admitted in part and denied in part. It is denied that this was the "April 1999 edition" of said Yellow Pages. On the contrary this is the 1999 annual edition of the Yellow Pages for the year of April, 1999 through Mcl;h, 2000. The remaining averments of this paragraph are admitted, .".~ r ,.... "'. I 11. The averments of paragraph eleven of plaintiffs complaint are denied by reason that after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. By way of further response, defendant avers that when called he and lor his spouse have correctly identified defendant's business. 12. The averments of paragraph twelve of plaintiffs complaint are denied by reason that after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. By way of further response, defendant avers that when called he and lor his spouse have correctly identified defendant's business. 13, The averments of paragraph thirteen of plaintiffs complaint are admitted. By way of further response, however, defendant denies that any confusion exists among the public concerning the two businesses, 14. The averments of paragraph fourteen of plaintiffs complaint are neither admitted nor denied, The letter attached as plaintiffs Exhibit "C" speaks for itself. 15. The averments of paragraph fifteen of plaintiffs complaint are neither admitted nor denied. The letter attached as plaintiffs Exhibit "C" speaks for itself, 16, The averments of paragraph sixteen of plaintiffs complaint are denied. To the contrary, defendant avers that no confusion exists among the public concerning the two businesses or the source of their services such as would harm either business, 17. The averments of paragraph seventeen of plaintiffs complaint are conclusions of law to which no response is required. However, if a response is required, these averments are denied by reason that after reasonable investigation ,..... . r z-. ", . plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. By way of further response, defendant avers that the business name "Premier Carpet Care" means nothing within Central Pennsylvania or Cumberland County except as it identifies plaintiffs business, just as "Premium Dry Carpet Care By Zdunczyk" identifies defendant's business, 18, The averments of paragraph eighteen of plaintiffs complaint are denied by reason that after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. 19, The averments of paragraph nineteen of plaintiffs complaint are denied by reason that after reasonable investigation plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments and proof thereof at trial is demanded, if relevant. 20. The averments of paragraph twenty of plaintiffs complaint are specifically denied. On the contrary, defendant avers that he and his spouse have always correctly identified defendant's business over the telephone, 21. The averments of paragraph twenty-one of plaintiffs complaint are denied. On the contrary, defendant avers that, if anything, defendant's continued use of defendant's business name will assist plaintiff in the development of his business as set forth in defendant's new matter below. 22, The averments of paragraph twenty-two of plaintiffs complaint are denied. On the contrary, defendant avers that, if anything, defendant's continued use of defendant's business name will assist plaintiff in the development of his business as set .--. . , ,... P, . forth in defendant's new matter below. By way of further response, defendant avers that the service mark "Premier Carpet Care" has no distinctive quality other than to identify plaintiff's business, just as defendant's service mark identifies defendant's business. 23, The averments of paragraph twenty-one of plaintiff's complaint are denied, On the contrary, defendant avers that no confusion exists among the public concerning the two businesses or the source of their services such as would harm either business. 24. The averment of paragraph twenty-four of plaintiff's complaint is a conclusions of law to which no response is required. However, if a response is required, this averment is denied, On the contrary, no provision of this statute entitles plaintiff to injunctive relief in this situation, 25. The averment of paragraph twenty-five of plaintiffs complaint is a conclusions of law to which no response is required, However, if a response is required, this averment is denied, On the contrary, no provision of this statute entitles plaintiff to damages in this situation. By way of further response. defendant believes and avers that plaintiff has had no actual damages, WHEREFORE, defendant demands that plaintiffs complaint be dismissed, that judgment be entered in favor of defendant and against plaintiff and that defendant be awarded the costs of this suit and attorney's fees. NEW MAlTER 26, Defendant incorporates by reference his responses to plaintiffs complaint, paragraphs one through twenty-five above. inclusive. as if fully set forth at length, _. t ,- tl,. 27. Defendant believes and therefor avers that plaintiff made no effort to register his trademark or service mark until after reviewing the Yellow Pages advertisement of defendant. 28. The two business names, trademarks or service marks are sufficiently dissimilar so as not to cause actual confusion within the public as to the identity of the business, their proprietors or the source of their services, 29. In order to test the genuineness of plaintiffs averments, on May 17, 1999, defendant mailed to the Commonwealth of Pennsylvania, Department of State, Corporation Bureau, an application to register his trade name and service mark, A copy of the application is incorporated herein by reference and attached hereto as defendant's Exhibit "A", 30, On or about June 1, 1999, the Corporation Bureau accepted this application and thereafter notified defendant that the application has been filed and registered, A copy of notification is incorporated herein by reference and attached hereto as defendant's Exhibit "S", 31. Defendant believes and therefor avers that if plaintiffs averments of similarity and exclusivity were accurate, the Corporation Bureau would not have accepted this application for registration and, in fact, the application would have been rejected. 32, in fact, no substantive confusion of any kind exists in the public or elsewhere regarding the use of these two business names, trademarks or service marks such as is harmful to either business, ...:=0<. '1- '"" 33, Defendant believes and therefor avers that plaintiffs effort to register his trademark and service mark after the publication of the current phone book and Yellow Pages and his efforts to obtain injunctive relief against the defendant are solely to cause harm to defendant's business and to eliminate honest competition in the marketplace. 34. If plaintiffs efforts are successful, defendant will be irreparably prejudiced, financially and otherwise, in the following manner: A. Defendant has contracted for a Yellow Pages advertisement for a one year period at substantial and unrecoverable cost; B. Plaintiff seeks re-routing of defendant's phone number to the plaintiffs business, thereby effectively eliminating any published means of the public learning about defendant's business C, Without access to a published phone number, defendant will lose the benefit of all new business and calls to his business will actually be absorbed, claimed and serviced by plaintiff at defendant's expense. D. As defendant has recently started his business, the unavailability of a published phone number will effectively put him out of business. 35, If plaintiffs efforts are successful, defendant believes and avers that the consumer public will also be prejudiced financially and otherwise, in that such action will result in the elimination of fair and reasonable competition in the marketplace, 36. The elimination of fair and reasonable competition in the marketplace is against public policy, - ~ ,- """. I 37, Since the publishing of defendant's Yellow Pages advertisement, defendant has received approximately five telephone calls from persons who identified the Yellow Pages as the source of their information about defendant's business. 38, Defendant did receive a few calls, before and since the start of this litigation, in which the caller was seeking to engage plaintiffs services or were requesting services from the defendant which the defendant does not provide. In each and every such instance, defendant has directed the caller to call plaintiff. This has resulted, at least potentially, in the plaintiff not only receiving all calls mistakenly made to defendant, but also obtaining additional business at defendant's suggestion and encouragement. WHEREFORE, defendant demands that plaintiffs complaint be dismissed, that judgment be entered in favor of defendant and against plaintiff and that defendant be awarded the costs of this suit and attorney's fees. COUNTERCLAIM 37. Defendant incorporates by reference his responses to plaintiffs complaint, paragraphs one through twenty-five above, as well as the averments of his new matter, paragraphs twenty.seven through thirty-six above, inclusive, as if fully set forth at length, 38. Defendant believes and therefor avers that plaintiffs effort to register his trademark and service mark after the publication of the current phone book and Yellow Pages and his efforts to obtain injunctive relief again:;t the defendant are solely to cause harm to defendant's business and to eliminate honest competition in the marketplace. --- . , r-'" , EXHIBIT "A" . ~, .. - ~~4~' m Microfilm Number Filed with Entity Number A~'l'8'),~~ Secrelary of the wealth- ~ APPLICATION FOR REGISTRATION OFZK -"- DSCB:54-1112 (Rev 1996) , In compliance with the requirements of 54 Pa,C_S. Sectio f1;'; (relating 10 application for registration), the undersigned having adopted and used a trade mark or service mark In this Commonwealth and desiring to register such mark, hereby states that: 1. The name of the applicant Is: KELLY A. ZDUNCZYK 2, The residence, location or place of business of the applicant Is: 620 NORTH BEDOFRD STREET, CARLISLE, PA 17013 CUMBERLAND COUNTY di,>(r'p'/7~';"'" f"'.....-...t... 3. The name and description of the mark Is (aAfacslmile of the mark to be registered accompanies the application as Exhibit A and Is Incorporated and is incorporated herein by reference): PREMIUM DRY CARPET CARE BY ZDUNCZYK 4, The general class in which such goods or services fall is (use only one of the classifications as set forth in the general classes of goods and services established by the United States and Trademark Office): 36 5. The goods or services In connection with which the mark Is used and the mode and manner in which the mark Is used in connection with such goods or services are: CARPET AND UPHOLSTERY CLEANING SERVICES. THE MARK IS USED IN CONNECTION WITH THE ADVERTISING AND MARKETING OF THE ABOVE REFERENCED SERVICES 6. The date when the mark was first used anywhere is: NOVEMBER 1, 1996 7. The date when the mark was first used in this Commonwealth by the applicant or the predecessor in Interest is: NOVEMBER 1, 1998 6. The date, if any, an application to register the mark, or portions or a composite thereof, was filed by the applicant or a predecessor in interest in the United States Patent and Trademark Office. Atso provide filing date and serial n~mber of each application, the status thereof and, if any application was finally refused registration, or has otherwise not resulted in a registration, the reasons therefore, (:'I.::a5e attach 6 Yz x ~ 1 sheets if more space is needed,) NOT APPLICABLE 9, Applicant is the owner of the mark, that the mark is in use and that, to the appticant's knowledge, no other person has registered, either federally or in this Commonwealth or has the right to use such mark either in identical form thereof or in such near resemblance thereto as to be likely, when applied to th~ goods or services of such other person, to cause confusion, or to cause mistake, or to deceive. IN TESTIMONY WHEREOF, the undersigned person of Mark to be executed this.Ll!!: day of May, 1999, V egistration f'A DEPT. OF STATE Mtm':~mT! MAY 1 9 1999 JUN 0 1 1999 SHERIFF'S RETURN - NOT FOUND CASE NO: 1999-02722 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND KOP.ZUN PAUL A ET AL VS. ZDUNCZYK KELLY ET AL R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: ZDUNCZYK KELLY T/D/B/A PREMIUM DRY CARPET CARE BY ZDUNCZYK but was unable to locate Them in his bailiwick. He therefore returns the NOTICE AND COMPLAINT FOR INJUCTIVE RELEIF NOT FOUND ,as to the within named defendant ZDl~)CZYK KELLY T/D/B/A PREMIUM DRY CARPET CARE BY ZDUNCZYK AS PER ATTORNEY'S INSTRUCTION LETTER, DO NOT SERVE UNTIL AUTHORIZED, PAPER EXPIRED 6 6/99. Sheriff's Costs: Docketing NOT FOUND RETURN Affidavit Surcharge ----- I / / / / ~ ~ne, ^;nenff. 18.00 5.00 .00 8.00 $_H.UU If- . , Mi\RTSOl)T I- 06/25/ ~-9 Sworn an:. sUbscrib~,t~. before me this ),:r ~ day of '.~ __ 19 'I <1 A.D. (/1-<-. Q. n~~ <l.~.11), '--H t"rodmnotary' PAUL A. KORZUN, t/d/b/a PREMIER CARPET CARE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. KELLY ZDUNCZYK, t/dlb/a PREMIUM DRY CARPET CARE BY ZDUNCZYK, Defendant COMPLAINT FOR INJUNCTIVE RELIEF AND NOW, comes Paul A. Korzun, trading and doing business as Premier Carpet Care, by and through his attorneys, MARTS ON DEARDORFF WILLIAMS & OTTO, and avers as follows: I. Plaintiff, Paul A. Korzun, is an adult individual residing at 507 South Middlesex Road, Carlisle, Cumberland County, Pennsylvania 17013. 2. Plaintiff is sole proprietor of a carpet and upholstery cleaning business operating under the assumed/fictitious name "Premier Carpet Care"; Plaintiff has been operating under this name since October I, 1996. 3. Plaintiff first used the service mark "Premier Carpet Care" on October I, 1996, and filed an Application for Registration of Mark with the Commonwealth of Pennsylvania on March 13, 1999, pursuant to 54 Pa.C.S. 9 1112. The State trade mark/service mark application was registered on March 29, 1999; a true and accurate copy of the State registration is attached hereto as Exhibit "A." 4. Defendant, Kelly Zdunczyk, is an adult individual residing at 620 North Bedford Street, Carlisle, Cumberland County, Pennsylvani:117013. 5. Defendant is sole proprietor of a carpet cleaning business ostensibly operating under the name "Premium Dry Carpet Care by Zdullczyk." 6. The name "Premium Dry Carpet Care by Zdunczyk," is not registered with the Commonwealth of Pennsylvania as a fictitious name or registered trade mark. 7. Defendant purchased a half-page advertisement in the April 1999 edition of The Best Red Yellow Pages of the Cumberland Countywide phone book under the namc "Premium Dry '.' ," ,': 'I,. < '., ~ ' , ,.:.;" "1\. ~:.' ',':': .- ...~ ': ' :...~ :,.,i ),i' "'':;:,!;.<i:~'~,~~"~~:,,, (;:.~. j."~ :,,;' ,:.......::,;:'~.~~.~.'....;,~:^'.:..:: ?;, \,:.::, \, ' , ~,"~' )'- :l~ '- 'I:~ \ '~~.., ' "" \',' ~/:" " < :",' , '....'..,.', ~,< Carpet Care by Zdunczyk." The half-page advertisement appears on page 96 of the Cumberland Countywide Best Red Yellow Pages (hereinafter "Cumberland County Yellow Pages"). A true and accurate copy of Defendant's half-page advertisement is attached hereto as Exhibit "B." 8. Plaintiff's advertisement appears in the alphabetical listing in the Cumberland County Yellow Pages, specifically on page 97, and directly above Defendant's alphabetical listing. A true and accurate copy of page 97 of the April 1999 edition of the Cumberland Countywide Best Red Yellow Pages is attached hereto as Exhibit "C." 9. Defendant did not advertise in the Yellow Pages under "Premium Dry Carpet Care by Zdunczyk," or any similar name, prior to the April 1999 edition of the Cumberland Countywide Yellow Pages. 10. The April 1999 edition of the Cumberland Countywide Yellow Pages was distributed to the public in or about March, 1999. II. On March 18, 1999, Plaintiff dialed the phone number listed in Defendant's Yellow Page advertisement and was told by a female phone attendant that he had reached "Premier Carpet Care." 12. In April, 1999, another individual dialed the phone number listed in Defendant's Yellow Page advertisement and was infonned he had reached "Premium Carpet Care." 13. On or about April 8, 1999, Plaintiff, through his attorney, Thomas G. Collins, Esquire, requested Mr. Zdunczyk, via letter, immediately to cease and desist operating his business under the name "Premium Dry Carpet Care by Zdunczyk," or any similar name, as it was causing confusion among the public. 14. On April 12, 1999, Defendant's attorney, Harold S. Irwin, 1Il, Esquire, responded via facsimile letter that Defendant would not stop using the name because the Yellow Page advertisement would remain in the Cumberland Countywide phone book until April 0[2000, i.e., one year, and the simultaneous existence did not appcar to be causing any confusion. A true and accurate copy of the Icller and facsimile cover page is attached hereto as Exhibit "C." 15. The April 12, 1999 letter and facsimile cover page misidentify the parties' respective nanles as follows: \ ,".::. ~ '. ~.:.. ":\':', .\"~,- :,.',.:1 ,".;.:..~",,.>..~:~.:q,':r'~':I~~~1:''.':,\,~'.~~{.4i..,~I,~';~:~~':"I~<':;"",'>""""::~"-:\"~::""_~"';' \:!'~ .\~':~: :<<":.' ~',:_~,"'I: -:', ~~ a) The facsimile cover page indicates the letter is in reference to "PREMIUM CARPET CARE," when no such business exists; b) The reference line preceding the body of the letter misidentifies Plaintiffs Business as "Premium Carpet Care," when in fact it is "Premier Carpet Care"; and c) The address-footer on page two of the letter identifies Defendant's business as "Premier Dry Carpet Care," when in fact it is "Premium Dry Carpet Clire by Zdunczyk." 16. The commencement and continued existence of Defendant's business name has caused actual confusion, let alone likely to cause confusion as to the source of the services. 17. Plaintiffs business name "Premier Carpet Care," has developed secondary meaning within Central Pennsylvania, particularly in Cumberland County. 18. Plaintiff has incurred considerable expenses in developing and establishing a reputable name in the carpet cleaning business. 19. Plaintiff has not received a single telephone call for carpet cleaning from a customer using the Cumberland Countyv,,-jde Best Red Yellow Pages since Defendant's advertisement appeared in early March, 1999. 20. Defendant, or his agents and .::mployee(s), have intentionally or negligently misidentified the name of their business to potential customers over the telephone. 21. Defendant's continued use of the name "Premium Dry Carpet Care by Zdunczyk" has and will continue to cause immediate and irreparable harm to Plaintiffs business and busincss reputation. 22. Defendant's continued use of the name "Prcmium Dry Carpet Care by Zdunczyk" has and is causing injury to Plaintiffs business reputation and diluting the distinctive quality of Plaintiffs service mark "Premier Carpet Care," 23. Defendant's use of the name "Premium Dry Carpet Care by Zdunczyk" is causing actual confusion among the public. 24. Plaintiff is entitled to injunctive relief under 54 Pa.C.S. ~ 1124. 25. PlaintifTis entitled 10 damagcs under 54 Pa.C.S. S 1125. exhibit A . . 9923-1071 .....ht:::<I1-=:~:R 29mS ACTIN; Secretary O~n=lw. APPLICATION FOR REGISTRATION OF MARK a: '. DSC8:54-1112 (Rev 19981 . Microflm Nlmber Entity Number ~9Lo9 O~ f.o " In co~c:e with the requkements of 54 Pa.C.s. i 1112 (relaling to oppIlcatlon for registrollonl. the undItnlgno havhg odopted and used a tradIt mCll1c or slHVlce mark: In this Commonwealth and desiring to ntQlster such mortc. hentl statas that: I. 1he nomo of the applicant is (see Ins1ructlon AI: Paul Korzun 2. ThIt resldence.,locallon or place ot buslntm of IhIt oppIic:ont is: 507 s. Middl~s~x Rn.:::IN "~,..li~l~ pn, 17nl~ ("'nmho....l;uvl Numbllll' and Slruet CIty Stale Zip County 3. lhlt name and descrlpllon of the male Is 10 focslmile of the mat: 10 be reg!rtllred accompanies this appIicotlon as ExhIbl' A oncI is hcorporOted herein by refefenCel: .premier Caroet Care" with desian . ' 4. Yhe gener6l closs .n which svch goods or services. fat is (use only one of the cJ...wi1lco1ions as set, ~ in the generc c:Iosses of goods and sllfVlces llSfabIIshed by the Urited Stales Palanl and Trodema1c omc:e oItoched),:' I .,1.,j n .,' 5. ThIt goods or smvices in comection with which the morlc: is used oncI the mode onc:I momer In which the mCll'k is used in connectbn with such goods or selYices ore: Carpet and upholsterY cleanina services. Th~ l'MTk i ~ \]~Prl in ('Y)nnp("!t:i on wi th +-hp ~nVF!rt;! ana, marltet1ng ot the aJ:x>ve referenced Bervl-ces. 6. Thltdotewhenlhemall:wastntuSedonywhereis: October 1. 1996 7. lhlt dote when the mCll'k was tnt used In this Commonweollh by the oppIIcont or the predecessorh Inlerest Is; October 1. 1996 8. lhe detail any. an oppicotion to registef' the morlc. or portionS or a corr.posile thereof. was Red by thlt appEccnt or 0 predecelIor in interert In the t1nIted Stales Potent and Tradema1l: Omce.AlsoplOVidofilingdoleonclserlall.ll.lrllber of each Of:>vlic.ulioo.. the slatus \hereOf ondL if any application was li10IIy refused reglslratlon. or has olhelwislt not resulllId i I o registralion. the ll!iasons lher&fore. (Please attach 8'h x II sheet[sl jf more space is neededl . Not aoolicable. ~. Applicant is the ~ of the morlc. Ihot the mall: is in use and Ihot. tolhe appicon!'s 1cnowIedglt. no other peISOO hai registered. elther federoly or In this Commonwealth 01' has the right to use such mar1:. either In thll idenlicol fOlIn thereof c i in such nea resemblanco therelo os 10 be likely. when cppIied 10 the goods or services of such other person. to causa confusion. or to couse mislal::e, or to deceive. IN TESTIMONY WHEREOF. the oodoolgned pen;on has caused this Applicaffon for Regislrallon of Marl: 10 be executed It'te 13 _dayof "^~..~'- I..."I.'\. PA om I'C ~T~11= Paul Korzun ()[Name of Appicanl) 'f-{J a. ~~) I>V: MAR 2 9 1999 TITLE: : ,.,.', ',,-:'> '.:-: ,'".,~, :::.:>:'<".-- >, :,,:'.;:,' ":""-':,;:"'"',;,~,;',,,~ ~::;,."::>,;::\:,:,),~::",~ ':,,:',:.':. ",.' "'<'~: :.\, '::'.':: ,::.. :' , ... " 99Z3-I072 ~~Cuut ... " Exhibit "A" Exhibit B '. exhibit C .' CARPET 97 STIHLEY STEEliER. Residential & CDmmercial carpet d~ expert. since 1947. Top-quality deaning of upholstery. Oriental & specialty area n18s. We'D l..ve your howe exactly as we found it-bllt without the din. Water c:xuaction service available. Always our emplo)'eC5. Dcvcr subcontractors. . e81ti Call 241-5113 f31i1 €'L.~dt.J ,"UTSHALl DAN~n c 12 WhltrUll1>r'MM1 Hall, 5pring~ .486.7007 LDlIIAll'S CAIlPET CUAIIIIlG 'NC Carliilt ...,........... ..... %51.I0l1 LEHMAN'S CARPET CLUNINGINe C....lhlt .. _.... .... ......... 253-8027 Orlollft'ff .,.....,......800445-4113 U &.1 CARPET CHANIN' J25 Arth StCarliilr .. _,....... ,24'-Z904 CS~ActwMt~nIP,\9t'If)1 PREMIER CARPET CARE The Bane-Clene WayttJ Specialists in Carpet, Furniture &. Drapery Cleaning "We Want to Work for You/" '. Carpet 6. Uplllold.e,.,. Cle-ulDI . Quain, 0..,. ItnncUOb By"teat, . ReaicleIDU.1 .a. CD...rclal . rr- &.th..leI QaolUJ "orA: . &li.f1H1 Cull&aM'" C.a.rlhlt,..,..,. ..... ....249-0409 PRunUM OR\' CARP[T tAR[ BY IOUNC1YK fllO N Bf'dford MrtrMC.lrtl\lr ., 241-{l971 ISPf'AcfVf-rtl"'''lrllt P'9l'9bl PROCLEAH lttSTORAtlON SERVICES 9b HiUtllJlln Nrwvi!1r .....,.... n~.Ob P'RortsslONAl SOll.l110NS INC 1!I1' SWt lrmo.nr . ., 7(.30)9. PORDflaS! CIoPlTlL IICIOR 1Jll N 7th St H.rmb~ Toll frl'f' ,. ....... lot nt.Ul1 SH(AHU'S UlTRABRi(,HT CARPH Cl(.lNIN, <4111) H.nlch Or C.mp HIli. .. 7)1-8a43 SlIotAAT nu." CARHT Cl[ANERS C.mpNIII ........ ...,...... 1]7-4)42 SUHl[Y $t[UUR C!RPET (l(ANeR C.rllsl, ,..... . 2.l~ln lS,...Advtrtilof'~"nI1l11~P.9tl ST.lNl(Y ST [EMU tAR"[ T Cl[A~ING CO V'Jr\! 5"',,11' CmJI HI 737 81M m.-. CI....."rett_ c.,.hllW NU1 "~rl . Court'80US & prompt . Insured & unlfonned for your protection . Odor control treatment . We won't smoke In your homo or office . Carpet and fabric protector available . R8Comm~ br 50 '==fn; carpet manufac:turera . SA.fe, quiet -vatem . Cloan. clfOP, drie. filSl . W. bring our own softened water . We take away soil & wute wa!er . We leave no 8Oapy. sticky reaJdue Call 'Us' On The Carper Ettinger's Wall & Floor (717) 249-3211 800 924-8309 "We',.. Vet)' Clf'OfuI Who W. Send InlO Your Home!" eo.t_ ...--- 1I:tl1!r E9 m t::: --q .... ~.J,. ~_1:!tJ t~l I~J =- l~r Ceo.'r~.llAntOC~W-(.orp, 1991 n....t40U.f:!Ordtll'~ H('II TMoIt-I.n, (It,n'" ~ ~ Oriental Rugs Pick Up & Delivery 68 CElIEHel Membw "Nf'tw<ri. of huJlenc.- CorMcabc.wl KG. 'Xl,oe ffilllIDlt++IttllrHllffiHmHfmmHfHffiH IIHflflHlllHHflffl IHHlHfHmmffiHlHmmlUrnll Exhi bi t "e" LAW OFRCElS DF HAROLD Sir IRWIN, 111 ATTOIUI.r-AT...tAW HAROLD S. IRWIN, III JOIN J. BARANSKI, JR, HITNII!R HOUal!, sums Z01llnd 202 35 IIIAST HIGH STREI!T CARLISLB, PENNSYLVANIA U013 www.cenptlfln.com.iIWInI s-I7ltJ/1: Irwlnlaw@6pll(,OOI 717-243-601lO PHOICE 717 ~43-9200 fACaINILE ~THER~.BARBOUR GAY L, IRWIN l'ARAU!o"us April 12, 1999 BY FACSIMILE ONLY THOMAS G COLLINS ESQ MARTSON DEARDORFF WILLIAMS & OTTO 10 E HIGH ST CMLISLE PA 17013 RE: Premium Dry Carpet CarefZdunczky . Premium Carpet Care/Korzun Your File No. 9834.1 Dear Tom: I have reviewed your letter of AprilS, 1999 regarding this matter and have been asked to respond to'it. Of course, Mr. Zdunczyk regrets the unintB"tlonal and , coincidental slmilarily between the name of his business and tliat of Mr. KOlZun. However, he has expended certain sums himself in setting up his business under this name, not the least of which is a one )lear yellow pagas contract. AcCordingly, he accede to your request simply on the basis of your letter and the comments therein. As I understand the laW, fictitIous name registration does not carry name oxcluslvity for any purpose. You refer to Mr. Korzun's securing of a Pennsylvania service mark registration. If you contend that this does grant your client BOmB protection in the use of this name, please refer me to the appropriate statutory provisions granting this protection and provide us with documentation for the formal registration which would convey such protection. Incldentelly,l note that the neme in tile Yellow Pages is 'Premlum Dry Carpet Care l3y ZdunC2',yk' (emphasis added). While there Is a slmilartty, I question how much confusion Is really being created for Paul Korzun by the use of this name. It seems more likely that Mr. KOIZUn may be losIng business because of the relative size and obscurity of his advertisement. which follows four full-page ads and five half pago ads in the Cumbertand County-wide book. Lastly, if Mr. Zdunczyk agrees to the request to discontinue the use of this name. his yellow page ad containing this business name and phone number will run for one year. no matter what he may be willing to do. Pemaps you could suggest some ~ ~. ~ €V ., \' q".", 1 II.,) , , .~') ~'J '.'., \ '. ,J Q..I'l,I1 ~ ~T"j l!:!!:-' mr,;,c . ~::::-"1;J ~ " F. \fILES\OA T AALEIGENOOC99\9B34.ANS, I \DTW Cn:ate.1:07/OBI99091546AM Ittvited 071091990214'7PM 98341 PAUL A. KORZUN, Vd/b/a PREMIER CARPET CARE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACT/ON - LAW NO. 99-2722 CIVIL KELLY ZDUNCZYK, Vd/b/a PREMIUM DRY CARPET CARE BY ZDUNCZYK, Defendant fiAlNTIFF' REPLY TO DEFENDANT'S ANSWER WITH NEW MATTER AND COUNTERCLAIM AND NOW, comes Plaintiff, Paul A. Korzun, Vd/b/a Premier Carpet Care, by and through his attorneys, MARTS ON DEARDORFF \VILLIAIvlS & orro, and responds to Defendant's New Matter and Counterclaim as follows: NEW MATTER 26. It is admitted that Defendant incorporates his responses to Plaintiffs Complaint pardgraphs I through 25 as if fully set forth at length. To the extent Defendant's Answers provide supplemental responses, those avelTI1ents are expressly denied and strict proof thereof is demanded at trial. 27. Denied. Plaintiff met with Thomas G. Collins, Esquire, on or about March 10, 1999, to discuss registration of the trademark "Premier Carpet Care," This date was prior to Plaintiff seeing or reviewing the Cumberland County pholle book in which Defendant's Yellow Page advertisement appears. By way of further response, Plaintiff commenced efforts to register his mark prior to learning of Defendant's Yellow Pages advertisement and before receiving or reviewing the Cumberland County phone book in which Defendant's Ycllow Page advertisement appears. 28. Denied. The similarity of the marks has already caused actual confusion among the public as evidenced by Exhibit "D" attached to Plaintiff's Complaint. 29. Admitted in part and dcnied in part. It is admillcd that on or about May 17, 1999, Defendant mailed to the Commonwealth of Pennsylvania, Department of State, Corporation Bureau, an application to register a trade name and service mark. As to whether Defendant's intention of the filing was to test the genuineness of Plaintiffs Complaint, after reasonable investigation, Plaintiff is without infonnation sufficient to detennine the truth or falsity of this avennent and strict proof thereof is demanded at trial. By way of further response, it is denied that Defendant's registration of the name "Premium Dry Carpet Care by Zdunczyk" with design, attached to Defendant's Answer with New Matter and Counterclaim as Exhibit "A" resembles Defendant's advertisement in the Yellow Pages. 30. Admitted in part. It is admitted that on June I, 1999, the Corporation Bureau accepted Defendant's application and notified Defendant that the application has been filed. By way of further response, the name and design registered with the Corporation Bureau does not resemble Defendant's advertisement in the Yellow Pages. 31. After reasonable investigation, Plaintiff is without infonnation sufficient upon which to detennine the reasoning of the Corporation Bureau in accepting Defendant's application for registration of name and design. By way of further response, the name and design submitted by Defendant to the Corporation Bureau attached to Defendant's Answer with New Matter and Counterclaim as Exhibit "A" does not resemble Defendant's advertisement in the Yellow Pages. 32. Denied. Actual confusion exists in the public as demonstrated by Exhibit "D" attached to Plaintiff's Complaint. 33. Denied. Plaintiff commenced efforts to register his trademark prior to learning of Defendant's Yellow Pages advertisement and before receiving the Cumberland County phone book in which Defendant's advertisement appears. By way of further response, Plaintiff's efforts to register his trademark and seck, inter alia, injunctive rclief, is solely to protect his business name and reputation. 11 is expressly denied that Plaintiffs efforts arc designed in any way to eliminate honest competition in the marketplace. 34. After reasonable investigation, Plaintiffis without sufficient infonnation to detennine the truth or falsity of the avemlents contained in this paragraph, including all sub-parts. The avemlents are therefore denied and strict proofthereofis demanded at trial. 35. Denied. By way of further response, Defendant's use of a similar and confusing name and mark has eliminated fair and reasonable competition in the marketplace. 36. Admitted in part and denied in part. It is admitted that the elimination of fair and reasonable competition in the marketplace is against public policy. To the extent Defendant eontends Plaintiff is acting in any way to eliminate fair and reasonable competition in the marketplace, that allegation is expressly denied. 37. After reasonable investigation, Plaintiff is without sufficient information or knowledge to form a belief as to the truth or falsity of the averments contained in this paragraph. The averments are therefore denied and strict proofis demanded at trial. 38. After reasonable investigation, Plaintiff is without sufficient information or knowledge to form a belief as to the truth or falsity of the averments contained in this paragraph. The averments are therefore denied and strict proof is demanded at trial. COUNTERCLAIM' 37. To the extent relevant, Plaintiff's foregoing responses to Defendant's New Matter and Counterclaim are incorporated herein by reference as if set forth in their entirety. 38. Denied. Plaintiff commenced efforts to register his trademark and service mark prior to learning of Defendant's Yellow Pages advertisement and before receiving and reviewing the Cumberland County phone book in which Defendant's Yellow Page advertisement appears. By way of further response, it is expressly denied that Plaintiff's efforts to protect and promote his business name and reputation is an attempt to hann Defendant's business or eliminate honest competition in the marketplace. 39. After reasonable investigation, Plaintiff is without sufficient information or knowledge to form a belief as to the truth or falsity of the averments in this paragraph and sub-parts. These averments are therefore denied and strict proof is demanded at trial 40. The averments contained in this paragraph are conclusions of law to which no responsive pleading is required, By way of further response, Plaintiffs actions have not been arbitrary, vexatious, or performed in bad faith. I Defendant's Counterclaim begins at Number 37; Plaintiff's responses mirror the paragraph numbering in the Defendant's Counterclaim. . - CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authOlized agent of Martson DeardorfTWilliams & Otto, hereby certify that a copy of the foregoing Plaintiffs Response to Defendant's Answer with New Matter and Counterclaim was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Harold S. Irwin, IJI, Esquire 35 East High Street, Suites 201/202 Carlisle, P A 17013 MARTSON DEARDORFF WILLIAMS & OTTO B~<i-Q~ cq ne A. Decker en ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: July 9, 1999 ~ N ~ ~ U': :?:: ,~ ::'.1' LI.Jr~ 0=,. ~t) ,:: C1;( !.i:}"L a.. >!~ :;~ r.n I ,,~1 ~;: ~lt: --, U~. :?~ : J~.u j?: =.J ;'::JCL -, "'~; LJ_ r.n .:) 0 Cl' () , : : .';' .. :",:,' :....:/::..:;,.;' .:,,;' ,,':':,;'.,:.,:-; < '.' ':' :,.'~',;' .'.:o:.;4,:::~';,,':;,:<:: (;/.::-:" ,,',." : ',:-,;:,..,,:':.;i:.~' " '..::', :,<'. ,:.>.;.' '.,:',-::' , F;\flL[S\OATA}lLE\GI;NOOC~\i;R)4HR, 1 Cmted:OWU/9909:IJ:OI AM Reviaad: 09l14J99I1:ObI5AM PAUL A. KORZUN, tJdlb/a PREMIER CARPET CARE, Plaintiff v. KELLY ZDUNCZYK, t/dlbla PREMIUM DRY CARPET CARE BY ZDUNCZYK, Defendant ,I,. . " " \' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA CIVIL ACTION - LAW NO. 99-2722 PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: I. You are hereby directed to mark this action including any counterclaims, settled and discontinued. 2. This Stipulation is to be filled with the Prothonotary and it is agreed that no action or approval by the Court is necessary or required, Attorney for Defendant MARTS ON DEARDORFF WILLIAMS & OTTO By I 'e..~(",~ Benjamin _ Wamer, Esquire I.D, No, 7 100 Ten East High Street Carlisle, P A J 7013-3093 (717) 243-3341 Attomeys for Plaintiff PN'l1.Jl.S"DA TAf'lUMBNDOlWfll42-5T.1 ON.d:09(llMI1lO6a41o\M __1ft W/13M 1lml41 AM PAUL A. KORZUN, t/dlb/a PREMIER CARPET CARE, Plaintiff IN THE COURT OF COMM6N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL AcrION - LAW NO. 99-2722 KELLY ZDUNCZYK, t/d/b/a PREMIUM DR Y CARPET CARE BY ZDUNCZYK. Defendant STIPULATION OF SETTLEMENT AND NOW, in consideration for di'iContinuing their respective c1aim~ against each other, the undersigned hereby agree and assent to the following: I. Plaintiff, Paul A. Korzun, t/dlb/a Premier Carpet Care, will voluntarily discontinue the above-captioned action against Defendant, with prejudice; 2. Defendant Kelly Zdunczyk, tidioia Premium Dry Carpet Care by Zduncz,yk, will not renew a Yellow Page advertisement under his present business name; 3. No later than March 31. 2000, Kelly Zdunczyk, t/d/b!a Prcmium Dry Carpet Care by Zdunczyk, will drop the word "Premium" from his said business name and not replace it with any similar word; 4. Defendant Kelly Zdunczyk, t/dlb!a Premium Dry Carpet Care by Zdunczyk, will file an amendment to his trademark registration reflecting the omission of "Premium" from his business name, effective March 31, 2000; 4. Defendant Kelly Zdunczyk. t/d/b/a Premium Dry Carpet Care by Zdunczyk, further agrees to voluntarily discontinue his Counterclaim in the above-captioned action against Plaintiff, with prejudice: WHEREFORE, by signing this document; the parties agree and assent to the foregoing and acknowledge that by entering this Stipulation of Selllement the parties are voluntarily discontinuing their respective claims against each other with respect to the above-captioned action. - fJoJ (J, 2c;~ Paul A. Korzun . Da~ 6( Ic(9~ Date: J"/:A""J:,,- I ~ I 'II i ;" ,,-", ': ..}" < ",,:,' :' ,\ ,::' "".~' ,:: " ,"-,: ..<<<. ',' ':::;,-,;: \.:,:..:ii,,:::: ~:, :-:.:;,:: ,':; ,':, :;,:,~,:, ,'::: ':'::, S <:, , ' ',::,:, ': ',-,:' /:' ':'~.';":,:' :. >- 0 ~ cr. ~ ""- - ,-- N :-:5..~ UJQ ( ) =::': 0-, ::: ,-, "'::;1 u.;(' '-~ ',- a.. '.J.~- L:'I~ ('"',~; . ...-....- 1 " N .~... (}.... Pu" "').-.". L.1 L.. N ._~... "0."-;1" u:: l; : I- j;-j(J] U (".JU_ F-: C '. '". en :..> (.') C'o U