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The Chocolate Factory Lawsuit vs. NBCUniversal

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO. ________________________

THE CHOCOLATE
FACTORY, LLC,

Plaintiff,

vs.

NBCUniversal, INC.,

Defendant.
______________________________/
COMPLAINT

Plaintiff, THE CHOCOLATE FACTORY, LLC (“TCF”) sues UNIVERSAL, NBCUniversal, INC., (“UNIVERSAL”) and as grounds therefor state as follows:
1. This is an action for damages in excess of $40,000,000.00, exclusive of costs, interest and attorneys’ fees.
2. TCF is a Limited Liability Company organized and existing under the laws of the State of Ohio and with its principal place of business in Ohio.
3. TCF is the Owner/Registrant of the United States Patent and Trademark Office Trademark Registration Number 3875027 with a Registration Date of November 9, 2010 (the “027 Trademark”).
4. TCF is the Owner/Registrant of the United States Patent and Trademark Office Trademark Registration Number 4511005 with a Registration Date of April 8, 2014 (the “005 Trademark”). The 027 Trademark and the 005 Trademark are collectively referred to herein as the “TCF Marks”.
5. Adam Limle (“Limle”) is the principal founder, innovator and driving force behind TCF.
6. UNIVERSAL is a Delaware Corporation with its principal place of business in New York.
7. UNIVERSAL is the owner of a world famous, multi-faceted theme park and attraction in Orlando, Florida, commonly known as Universal Orlando Resort.
NATURE AND SUBSTANCE OF THE COMPLAINT
8. This case involves the willful, deliberate, malicious and intentional infringement of the TCF Marks by UNIVERSAL, coupled by UNIVERSAL’s brazen theft and misappropriation of TCF’s entire business plan, creative concept, and national roll-out development and marketing plan.
9. In 2003, Limle and a partner began working on a concept known as 1-800-Santa-Claus, that would celebrate the secular aspects of the Christmas holiday. In that connection, Limle asked his then 9-year old daughter Lindsey to draw a map of the North Pole. Limle’s thought was that the vision of his own child, a 9-year old, would connect with young boys and girls around the world.
10. Nine-year old Lindsey drew such a map, which included a small building which she entitled “The Chocolate Factory”. Limle questioned his daughter about what the building and name represented, and she advised him that “that is where the Elfs eat!” Lindsey then explained her concept to her father, which involved an elaborate interactive culinary and confectionery vision which involved an experience for visitors combining all of the five human senses.
11. Limle, an entrepreneur, immediately realized that his daughter had a vision with unlimited global potential, mass appeal, and tremendous opportunity for exponential growth and scalability that would appeal to individuals of all geographic, social and economic walks of life.
12. Limle as an entrepreneur saw the potential for commercial exploitation of the idea and filed trademark applications for the name “The Chocolate Factory”. After years of time, effort and substantial expenditures, TCF was ultimately issued the TCF Marks described above.
13. Limle immediately identified Universal Orlando Resorts, and specifically Universal Citywalk, as an ideal location for the first combined fixed destination chocolate and confection themed restaurant attraction with a full working chocolate and confection factory as a central attraction for visitors. This first location was intended to serve as a roll out for a national chain of restaurants.
14. Today The Chocolate Factory® is one of the most valuable trademarks in the theme restaurant and food and beverage industries. TCF has litigated with both The Cheesecake Factory® and Rocky Mountain Chocolate Factory® to protect TCF’s mark.
15. TCF has spent significant money and has expended significant effort in advertising, promoting, and developing the TCF Marks throughout the world. As a result of such advertising and expenditures, TCF has established considerable goodwill in the TCF Marks. The TCF Marks have become widely known and recognized throughout the world as symbols of high quality restaurant, food and beverage concepts. The TCF Marks are world-famous and distinctive, and have become associated by the consuming public exclusively with TCF. The TCF Marks are an invaluable asset of substantial and inestimable worth to TCF.
16. This case arises out of the unauthorized use of TCF’s world-famous trademarks by Universal, as described hereinafter. Universal has actively marketed a theme restaurant concept in violation of the TCF Marks, and in direct competition with TCF and its authorized licensees. In so doing, UNIVERSAL avoided the specifications and standards imposed on TCF’s authorized licensees and circumvented the royalty payments required of those licensees. UNIVERSAL’s conduct infringes TCF’s rights under the Lanham Act and under Florida trademark law.
17. In asserting these trademark claims, TCF seeks a permanent injunction, damages, treble damages, restitution of profits, and attorneys’ fees and costs.
18. In addition to the trademark claims, TCF shared its entire business concept and plan with UNIVERSAL in an effort to joint venture of partner with UNIVERSAL. UNIVERSAL refused to enter into a joint venture or otherwise partner with TCF, and instead decided to simply improperly and illegally misappropriate the TCF business plan, as described hereinafter.
JURISDICTION
19. This Court has subject matter jurisdiction over this action because the amount of damages claimed exceeds $15,000, exclusive of costs, interest and attorneys’ fees.
FACTS COMMON TO ALL CLAIMS
(TCF’s Registered Trademarks and Licensing Program)

20. TCF is a world-renowned licensor of an exclusive product for use in the theme restaurant industry with associated marketing and selling of consumer products bearing the TCF Marks. TCF’s products and services are marketed under its federally registered TCF Marks.
21. TCF obtained United States Trademark Registrations for the TCF Marks. The United States Trademark Registrations for the TCF Marks are valid, unrevoked, subsisting, and incontestable, and constitute prima facie evidence of TCF’s exclusive ownership of the TCF Marks.
22. TCF has continuously used the TCF Marks in connection with the Goods and Services and IC categories described in the TCF Marks since well before the acts of UNIVERSAL complained of herein.
23. TCF has spent significant monies and has expended significant effort in advertising, promoting, and developing the TCF Marks throughout the world. As a result of such advertising and expenditures, TCF has established considerable goodwill in the TCF Marks. The TCF Marks have become widely known and recognized throughout the world as symbols of high quality in the theme restaurant industry. The TCF Marks are world-famous and distinctive, and have become associated by the consuming public exclusively with TCF. The TCF Marks are an invaluable asset of substantial and inestimable worth to TCF.
24. Through its extensive marketing and advertising, TCF has developed a lucrative market for the sale of licensed merchandise bearing the TCF Marks.
25. TCF has adopted strict specifications and quality standards for the use by licensees of the TCF Marks. All licensees of TCF are required to conform to these specifications and standards and to pay a royalty to TCF in exchange for the right to use the TCF Marks.
TCF REVEALS ITS ENTIRE BUSINESS PLAN AND CONCEPT
TO UNIVERSAL UNDER A REASONABLE EXPECTATION OF PRIVACY

26. Beginning in 2007 and 2008, and then later in 2012 and 2013, Limle approached UNIVERSAL with the concept (the “TCF Concept”) and Business Plan (the “TCF Business Plan) of launching a flagship themed restaurant coupled with a fully working, visible attraction chocolate/confection factory on its premises. without limitation:
a) The entire creative concepts and ideas embodied by a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
b) Designs and drawings containing ideas and elements for a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
c) Collection of original art compiled into a work of the visual arts for a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
d) Graphic renderings of a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
e) Compilation of ideas and information for a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
f) A complete Business Plan for executing, developing, and promoting a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
g) Marketing plan for executing, developing, and promoting a chocolate/confection themed restaurant coupled with an in-house working chocolate factory as a centerpiece for guest enjoyment, together with a retail store;
27. The TCF Concept has tremendous commercial value and was specifically created for purchase by, or joint venture with, UNIVERSAL.
UNIVERSAL’s INFRINGING RESTAURANT AND PRODUCTS
28. Unlike TCF’s potential licensees, UNIVERSAL has no authorization from TCF to manufacture and market products bearing any of the TCF Marks. By bypassing TCF’s official licensing program, UNIVERSAL circumvents TCF’s specifications and quality standards and pays no royalties to TCF for the use of the TCF Marks. UNIVERSAL thus deprives TCF of the royalties that it is entitled to for the sale of official TCF merchandise. At the same time, UNIVERSAL has placed retail merchandise into the market that bears copies and/or confusingly similar versions of TCF’s federally registered trademarks, suggesting to consumers at the point of sale and to the general public in a post-sale context that UNIVERSAL’s products are licensed or endorsed by TCF. Thus, UNIVERSAL’s sale of infringing merchandise is to the detriment not only of TCF, but also to TCF’s potential licensees (who will pay royalties to TCF and conform to TCF’s careful specifications and quality standards) and to the public (who are likely to be confused by merchandise bearing copies or similar versions of TCF’s registered trademarks).
29. UNIVERSAL is not affiliated with TCF in any way and has no authority to use the TCF Marks. Despite its lack of affiliation, authorization, or sponsorship, UNIVERSAL has unlawfully used the TCF Marks as alleged above.
30. UNIVERSAL’s use of the TCF Marks constitutes a misappropriation of the TCF Marks and associated goodwill, and is likely to cause potential purchasers of UNIVERSAL’s products, as well as the public at large, to believe that UNIVERSAL’s products are authorized or endorsed by TCF. UNIVERSAL’s conduct is intentionally fraudulent, malicious, willful, and wanton. Accordingly, this is an exceptional case within the meaning of 15 U.S.C. § 1117(a).
TCF’S MEETING AND PRESENTATION TO UNIVERSAL

31. Prior to 2012, TCF conducted extensive research as to opportunities to exploit the TCF Concepts in the theme park industry and identified UNIVERSAL as the primary target because UNIVERSAL had never before utilized such a theme.
32. In 2007, 2008 and then later in 2012 and 2013, TCF’s representatives contacted UNIVERSAL, to discuss selling or licensing the TCF Concept to UNIVERSAL, and/or being paid to develop and/or assign the TCF Concept for UNIVERSAL’s theme parks and attractions, and, additionally, to form a long term strategic partnership for ongoing consultation and development of future projects with UNIVERSAL.
33. TCF put UNIVERSAL on notice of the proprietary nature TCF Concept in discussions prior to submitting the TCF Concept and at the time of TCF’s initial communications with UNIVERSAL.
34. UNIVERSAL stated that the TCF Concept was of great interest to UNIVERSAL for its existing Universal Orlando Resort and for anticipated future growth.
35. At all times material hereto, prior to TCF’s disclosure of the TCF Concept, UNIVERSAL agreed to the following:
a) TCF’s TCF Concept was confidential;
b) TCF’s TCF Concept was trade secrets and proprietary;
c) TCF could trust UNIVERSAL’s confidentiality in disclosing the TCF Concept;
d) TCF could trust UNIVERSAL not to use the TCF Concept without financially compensating TCF;
e) UNIVERSAL would pay TCF for the TCF Concept in the event that UNIVERSAL used the TCF Concept or any part thereof;
36. In reliance upon UNIVERSAL’s representations, TCF expended hundreds of hours and work and in furtherance of rolling out the TCF concept at UNIVERSAL.
37. UNIVERSAL by its words and conduct, led TCF to believe that UNIVERSAL and TCF were entering into a confidential business relationship together.
38. Upon information and belief, TCF alleges that UNIVERSAL secretly hatched a plan to develop and exploit the TCF concept for its own sole use and benefit, to the exclusion of TCF.
THE CONFIDENTIAL, TRUSTING BUSINESS RELATIONSHIP

39. UNIVERSAL’s relationship with TCF was one of trust and confidence as the parties engaged in a confidential business relationship, as evidenced by:
a) TCF’s sharing of confidential TCF Concept and trade secrets based upon UNIVERSAL’s promises;
b) TCF’s trusting UNIVERSAL’s representations that it would keep TCF’s proprietary information secret;
c) UNIVERSAL confirming to TCF multiple times the ongoing business relationship with TCF in the future;
d) TCF trusted UNIVERSAL would pay it for the TCF Concept and/or partner with TCF to develop, design, and execute the construction and marketing of a a flagship themed restaurant coupled with a fully working, visible attraction chocolate/confection factory on its premises, together with a retail store.
40. The relationship between TCF and UNIVERSAL was one of trust and confidence.
UNIVERSAL WAS INFLUENCED BY, USE, BUILD, AND
EXPLOITED THE TCF CONCEPT IN UNIVERSAL ORLANDO RESORT
WITHOUT COMPENSATION TO TCF

41. Beginning in and around 2012, according to its own press releases Universal began a pattern of wrongful exploitation of numerous elements of the TCF Concept, creative concepts, and Business Plan, including, without limitation through its independent development of “The Toothsome Chocolate Factory & Savory Feast Emporium” consisting of a full-service restaurant, an in-house working chocolate factory, and a retail store, all wrapped up in an Art Noveau and Modern Design. Universal filed the following Trademark applications: “The Toothsome Chocolate Factory”, “The Toothsome Chocolate Factory & Savory Feast Kitchen, “The Toothsome Chocolate Emporium”, and “The Toothsome Chocolate Emporium and Savory Feast Kitchen”.
SIMILARITIES

NAME:
a. TCF: “The Chocolate Factory®”

b. UNIVERSAL: “The Toothsome Chocolate Factory and Savory Feast Emporium”

CONCEPT:
a. TCF: full-service restaurant, an in-house working chocolate factory, and a retail store, all wrapped up in an Art Noveau and Modern Design.

b. UNIVERSAL: full-service restaurant, an in-house working chocolate factory, and a retail store, all wrapped up in an Art Noveau and Modern Design, using the term “Steampunk”, a direct reference to an Art Noveau concept.

RESTAURANT:
a. TCF

i. an in-house working chocolate factory;
ii. a retail store;
iii. 19th Century Art Noveau Style; and
iv. Detailed square footage.

b. UNIVERSAL

i. an in-house working chocolate factory;
ii. a retail store;
iii. 19th Century Art Noveau Style; and
iv. Almost exact same detailed square footage.

LOCATION:
a. TCF

i. Universal City Walk

b. UNIVERSAL

i. Universal City Walk

TCF’S DAMAGES

42. Upon information and belief, TCF alleges that as a direct and proximate cause of UNIVERSAL’s wrongful conduct, UNIVERSAL has realized, continues to, and will to realize profits and other benefits rightfully belonging to TCF.
43. As a direct and proximate consequence of UNIVERSAL’s actions, TCF has been harmed.
44. TCF suffered, and will continue to suffer, damages for UNIVERSAL’s misappropriation and ongoing exploitation of TCF’s TCF Concept and Business Plan.
45. As a result of UNIVERSAL’s actions for the purpose of commercial advantage or private financial gain, TCF was forced to retain the undersigned law firm, agreeing to pay reasonable attorneys’ fees for its legal services and costs.
46. All conditions precedent to filing this action have been fulfilled or waived.
COUNT I
(Trademark Infringement)

47. The allegations set forth above are incorporated herein by this reference.
48. The TCF Marks are inherently distinctive or have acquired secondary meaning. The public associates the TCF Marks exclusively with TCF and the products and services marketed and sold under the TCF Marks. The TCF Marks’ distinctiveness has been fortified through extensive advertising, sales, and use in commerce throughout the world in connection with TCF’s promotion of chocolate/confection themed restaurants with a fully working chocolate factory as a centerpiece point of attraction.
49. Despite TCF’s well-known prior rights in the TCF Marks, UNIVERSAL has used and continues to use, without TCF’s authorization, the TCF Marks, or counterfeits, copies, reproductions, or colorable imitations thereof, in connection with the advertisement, promotion, and sale of UNIVERSAL’s products.
50. UNIVERSAL’s actions as described above, include UNIVERSAL’s launch of a destination restaurant at its world-famous Orlando, Florida theme park known as “The Toothsome Chocolate Factory & Savory Feast Emporium.”
51. As a direct and proximate result of UNIVERSAL’s conduct, TCF has suffered irreparable harm to the valuable TCF Marks. Unless UNIVERSAL is restrained from further infringement of the TCF Marks, TCF will continue to be irreparably harmed.
52. TCF has no adequate remedy at law that will compensate for the continued and irreparable harm it will suffer if UNIVERSAL’s acts are allowed to continue.
53. TCF has suffered damages in an amount to be proven at trial.
54. In addition, TCF is entitled to its attorneys’ fees and costs.
COUNT II
(False Designation of Origin)
55. The allegations set forth above are incorporated herein by this reference.
56. UNIVERSAL’s misappropriation of the TCF Marks alleged above was and is likely to confuse, mislead, or deceive purchasers and members of the general public as to the origin, source, sponsorship, or affiliation of UNIVERSAL’s restaurants and products, and is likely to cause such people to believe in error that UNIVERSAL’s restaurants and products have been authorized, sponsored, approved, endorsed, or licensed by TCF or that UNIVERSAL is in some way affiliated with TCF.
57. UNIVERSAL’s acts constitute false or misleading descriptions, false advertising, and false designations of the origin or sponsorship of UNIVERSAL’s goods in violation of Section 43(a) of the Lanham Act, as amended, 15 U.S.C. § 1125(a).
58. UNIVERSAL has knowingly used the TCF Marks, or counterfeits, reproductions, copies, or colorable imitations thereof, in connection with the products that UNIVERSAL manufactures, advertises, promotes, and sells. UNIVERSAL’s actions render this case exceptional within the meaning of 15 U.S.C. § 1117(a).
59. By reason of UNIVERSAL’s actions, TCF has suffered irreparable harm to the valuable TCF Marks. Unless UNIVERSAL is restrained from its actions, TCF will continue to be irreparably harmed.
60. TCF has no remedy at law that will compensate for the continued and irreparable harm that will be caused if UNIVERSAL’s acts are allowed to continue.
61. TCF has suffered damages in an amount to be proven at trial.
62. In addition, TCF is entitled to its attorneys’ fees and costs.
COUNT III
(Trademark Infringement under Florida Law)

63. The allegations set forth above are incorporated herein by this reference.
64. TCF was the first to use the TCF Marks or any marks similar thereto in association with the sale of any product and service. As a result of the continued sale by TCF of products and services under the TCF Marks, the TCF Marks have become widely known in Florida and worldwide and TCF Marks, concepts, business plans, marketing plans and design plans have become identified in the public mind as the manufacturer or licensor of the products and services to which the TCF Marks, concepts, business plans, marketing plans and design plans have become distinctive.
65. As a result of the experience, care, and service of TCF, the TCF Marks have become associated with TCF products and services worldwide and in Florida and have come to symbolize the reputation for quality and excellence of TCF products and services. As such, the TCF Marks, concepts, business plans, marketing plans and design plans have become distinctive.
66. UNIVERSAL, with knowledge of and with intentional disregard of TCF’s rights, continues to advertise, promote, and sell products using the TCF Marks or confusingly similar imitations thereof. Such acts by UNIVERSAL have caused and continue to cause confusion in Florida as to the source or sponsorship of UNIVERSAL’s products and services.
67. UNIVERSAL’s acts constitute willful infringement of TCF’s exclusive rights in the TCF Marks in violation of the common law.
68. By reason of UNIVERSAL’s actions, TCF has suffered irreparable harm to the valuable TCF Marks. Unless UNIVERSAL is restrained from further infringement of the TCF Marks, TCF will continue to suffer irreparable harm.
69. TCF has no remedy at law that will adequately compensate it for the irreparable harm it will suffer if UNIVERSAL’s conduct is allowed to continue.
70. TCF has suffered damages in an amount to be proven at trial.
71. In addition, TCF is entitled to its attorneys’ fees and costs.
72. TCF made reasonable efforts to keep the TCF Concept confidential, secret and unavailable to the general public, other than those selected to have carefully restricted access for limited purposes, namely BEC, its parent, subsidiaries, and affiliates.
73. The TCF Concept constitute trade secrets as defined by the Florida Uniform Trade Secrets Act.
74. TCF independently authored and created the TCF Concepts as original work from 2003 through 2007.
75. TCF has at all material times hereto owned the right to sell an exclusive or nonexclusive license to the TCF Concept.
76. TCF has been and still is the sole proprietor of all right, title, and interest in and to the TCF Concept.
COUNT IV
(Breach of Oral Contract and Duty of Good Faith and Fair Dealing)

This is an action by TCF against UNIVERSAL for breach of an oral contract.
77. TCF realleges and incorporates herein by reference Paragraphs 1 through 76, above.
78. A valid oral contract exists between TCF and UNIVERSAL by virtue of the oral agreements between the parties, which contains an implied duty of good faith and fair dealing.
79. The Agreements were between the Plaintiffs and the UNIVERSAL, not to the world in general, and the terms of the Agreement affect only the parties.
80. The Agreement included, as a matter of law, any implied negative covenant and/or promise which a reasonable person in the position of the TCF would be justified in believing was included, and additional implied in fact terms resulting from the parties’ representations and conduct. Such promises, covenants, and terms include:
(a) UNIVERSAL’s duty to police the disclosure of the TCF Concept, to act in good faith regarding TCF’s interests, and to reasonably protect TCF’s rights in the TCF Concept;
(b) UNIVERSAL’s promise to TCF to adhere to the expressly agreed to limitations and restrictions upon the UNIVERSAL’s use of the TCF Concept;
(c) UNIVERSAL’s duty to make reasonable disclosures to TCF, and to not conceal facts and actions which affect, diminish, or destroy TCF’s rights, interests and opportunities related to the TCF Concept;

(d) UNIVERSAL’s duty to disclose any opportunity, benefit, or compensation derived from the use of, or influence from, the TCF Concept;
(e) UNIVERSAL’s promise to pay TCF for any and all uses – including the influence into attractions – of the TCF Concept, due to a bilateral expectation of compensation, and a course of dealing requiring payment and permission;
(f) UNIVERSAL’s duty to negotiate a fair market value with TCF for incorporating any of the ideas and elements from the TCF Concept into UNIVERSAL parks;
(g) UNIVERSAL’s duty to negotiate a fair market value with TCF for use of ideas and elements from the TCF Concept;
(h) UNIVERSAL’s duty to act in good faith and not in a manner that evades the spirit of the Agreement or that denies TCF the expected benefit of the contract; and
(i) UNIVERSAL’s duty to enter into formal, written contract should UNIVERSAL wish to apply, disclose, or use any of the TCF Concept.
81. As a result of the Agreement and the conduct of the parties, UNIVERSAL covenanted, expressly or by implication, not to undertake or permit the exploitation of the ideas, contained in the TCF Concept and/or the titles therein, whether or not copyright protectable, without payment, or in a manner which would diminish or impair the value of the retained rights of TCF in the TCF Concept.
82. The Agreement reasonably implied these obligations, to the extent not explicitly written.
83. To the extent UNIVERSAL’s obligations under the Agreement were not explicitly written, TCF reasonably expected these terms given a reasonable expectation of good faith.
84. Nothing in the oral agreements contradicts TCF’s reasonable understanding and belief of these obligations of UNIVERSAL under the oral agreements.
85. TCF has performed its obligations under the oral agreements, and all conditions precedent have occurred or has been performed, waived or otherwise satisfied.
86. UNIVERSAL breached the Agreement by: disclosing and disseminating TCF’s trade secrets to third parties;
a) exploiting its contractual relationship with TCF in excess of those reasonably expected at the time of contracting with TCF; and
b) failing to pay TCF for UNIVERSAL’s influence from or use of the TCF Concept and Business Plan; and
c) Failing to negotiate in good faith a joint venture, partnership or other agreement to open a TCF location and share in profits and losses.
87. UNIVERSAL also breached the implied covenant of good faith and fair dealing in the Agreement by:
a) Being influenced by or using and exploiting TCF’s TCF Concept without compensating for the same;
b) disseminating the TCF Concept to third parties for exploitation;
c) failing to execute a contract with TCF detailing payment for the TCF Concept; and
d) representing to TCF that the TCF Concept was protected.
88. UNIVERSAL is liable for its breaches of the oral agreements and for its breaches of their implied duty of good faith and fair dealing, as well as, for the actions by UNIVERSAL and other persons or entities which constitute agents or persons or entities authorized by UNIVERSAL to exploit or assist in exploiting the TCF Concept, including, but not limited to, licensees, distributors, third party service providers, and contractors.
89. As a direct and proximate result of UNIVERSAL’s breaches, TCF has suffered damages, which will continue to going forward.
90. TCF is entitled to an accounting and restitution to TCF of all gains, profits and consideration in any form accruing to UNIVERSAL, as well as other persons or entities authorized by UNIVERSAL, derived from the exploitation of the TCF Concept, and of the allied and ancillary rights related thereto from UNIVERSAL’s breaches of the oral agreements and their duty of good faith and fair dealing.
WHEREFORE, TCF demands judgment against UNIVERSAL for compensatory damages, an accounting, prejudgment interest, and costs.
COUNT V
(Breach of Implied Contract and Duty of Good Faith and Fair Dealing)

91. This is an action by TCF against UNIVERSAL breach of the implied contract and duty of good faith and fair dealing.
92. TCF realleges and incorporates herein by reference Paragraphs 1 through 76 above.
93. TCF submitted the TCF Concept and ideas to UNIVERSAL for sale.
94. UNIVERSAL voluntarily accepted the TCF Concept and Business Plan.
95. As such, an implied contract existed, by operation of law, between UNIVERSAL, and TCF for the submission of TCF’s ideas.
96. UNIVERSAL was influenced by or actually used TCF’s TCF Concept and Business Plan in conscious disregard for TCF’s rights under the implied contract.
97. TCF’s TCF Concept and Business Plan had commercial value.
98. UNIVERSAL breached the implied contract by failing to pay TCF for UNIVERSAL’s use and exploitation of TCF’s TCF Concept and Business Plan.
99. TCF has not received any legal or equitable consideration from UNIVERSAL, in exchange.
100. UNIVERSAL, has therefore been unjustly enriched as a result of its wrongful actions and wrongfully acquired information from TCF.
101. TCF is entitled to restitution for the unjust enrichment of UNIVERSAL’s influence or use and exploitation of TCF’s TCF Concept, present and future without paying.
102. As a direct and proximate result of UNIVERSAL’s breaches, TCF has suffered damages, which will continue to accrue into the future.
WHEREFORE, TCF demands judgment against UNIVERSAL for compensatory damages, prejudgment interest, attorneys' fees, and costs.
COUNT VI
(Misappropriation of Trade Secrets)

103. This is an action by TCF against UNIVERSAL for misappropriation of trade secrets under the Florida Uniform Trade Secrets Act (“FUTSA”).
104. TCF realleges and incorporates herein by reference Paragraphs 1 through 76 above.
105. TCF’s confidential information, including, but not limited to, the TCF Concept and Business Plan, constitute trade secrets and proprietary and confidential information belonging solely to TCF.
106. TCF’s TCF Concept and Business Plan contain trade secrets including formulas, ideas, concepts, design patterns, methods, and techniques in the Business Plan, which have economic value, actual or potential, to the TCF Concept successful.
107. TCF’s TCF Concept, Business Plan, and trade secrets had independent economic when presented to Universal from not being generally known to, and not readily ascertainable by, people who could obtain economic value from its disclosure or use.
108. TCF took reasonable precautions and numerous efforts to keep the TCF Concept, Business Plan, and trade secrets therein confidential, secret, and protected from the general public under the circumstances, including, without limitation, historical use of non-disclosure agreements with team members.
109. Therefore, under the circumstances, TCF had a reasonable expectation of secrecy in the TCF Concept and Business Plan.
110. TCF’s TCF Concept and Business Plan are highly valuable and were created over a long period of time, after the expenditure of monies and time to develop and design all elements and components of the TCF Concept.
111. At no time did TCF ever agree that UNIVERSAL could disclose the TCF Concept to anyone outside of UNIVERSAL.
112. As alleged in detail above, UNIVERSAL used improper means to willfully and maliciously misappropriate TCF’s confidential and proprietary information and trade secrets from TCF’s TCF Concept and Business Plan.
113. By virtue of the conduct of the parties and the agreements, including, without limitation, the oral agreements between the parties, UNIVERSAL knew that TCF’s TCF Concept, Business Plan, and trade secrets therein were confidential and to remain within UNIVERSAL for conclusion of the purchase of the TCF Concept and Business Plan from TCF solely for use at Universal City Walk.
114. By virtue of the conduct of the parties and the agreements, including, without limitation, the oral agreements between the parties, UNIVERSAL knew that it had a duty of confidentiality to TCF for TCF’s TCF Concept, Business Plan, and trade secrets therein.
115. By virtue of the conduct of the parties and the agreements, including, without limitation, the oral agreements between the parties, UNIVERSAL knew that TCF’s TCF Concept and Business Plan belonged to TCF and could not be used, disclosed outside of UNIVERSAL, or exploited for profit without permission from TCF and paying for the same.
116. By virtue of the conduct of the parties and the agreements, including, without limitation, the oral agreements between the parties, UNIVERSAL knew or should have known that they had a duty to TCF to maintain secrecy of the TCF Concept and limit the influence or use of the TCF Concept and Business Plan unless and until a contract was entered into with TCF to pay TCF for influence from or use of the TCF Concept and Business Plan.
117. UNIVERSAL disclosed TCF’s trade secrets without consent of TCF, who owned the TCF Concept, Business Plan, and trade secrets.
118. UNIVERSAL’s actions of disclosing TCF’s trade secrets, was without consent and improper.
119. Beyond mere copying of TCF’s TCF Concept, UNIVERSAL breached an independent duty of trust and confidence that TCF had with UNIVERSAL.
120. As specifically alleged above, UNIVERSAL made misrepresentations to TCF to induce TCF into disclosing its trade secrets to UNIVERSAL.
121. As specifically alleged above, TCF specifically conditioned its disclosure of the TCF Concept upon an expectation of payment should UNIVERSAL use or be influenced from – in any way – the TCF Concept in the UNIVERSAL parks.
122. Beyond mere copying, UNIVERSAL were influenced or inspired by TCF’s TCF Concept and developed new business and social appeal.
123. UNIVERSAL’s misappropriation of TCF’s trade secrets represented unfair competitive conduct going to the heart of TCF’s ideas for business development of the TCF Concept.
124. UNIVERSAL has derived economic value and deprived TCF from economic value of the TCF Concept and Business Plan in numerous ways, including, without limitation, the Toothsome Chocolate Factory & Savory Feast Emporium and related advertising, promotion, attendance, sales, notoriety, and good will.
125. As a consequence, TCF has suffered a loss of business proceeds in an amount to be determined at trial, but believed to be in the millions of dollars. TCF is therefore entitled to damages for the actual loss caused by the misappropriation and the unjust enrichment caused by the misappropriation, including actual loss and a reasonable royalty for UNIVERSAL’s unauthorized disclosure and use of TCF’s trade secrets in the TCF Concept and Business Plan.
126. In addition to money damages, TCF is entitled to an immediate temporary injunction and a permanent injunction.
WHEREFORE, TCF demands judgment against UNIVERSAL, for compensatory damages, reserving the right to seek punitive damages at a later date upon a proper proffer, prejudgment interest, attorneys’ fees, and costs.

COUNT VI I
(Fraud in the Inducement)

127. This is an action by TCF against UNIVERSAL for fraud in the inducement.
128. TCF realleges and incorporates by reference herein paragraphs 1 through 76, above.
129. UNIVERSAL made certain representations to TCF to induce TCF to disclose the TCF Concept and Business Plan.
130. Specifically, UNIVERSAL represented to TCF that the TCF Concept and Business Plan would be protected in confidence and UNIVERSAL would not use the TCF Concept or Business Plan without paying TCF.
131. UNIVERSAL represented that its relationship with TCF was in confidence and TCF would be paid for UNIVERSAL’s use of the TCF Concept and Business Plan.
132. Additionally, UNIVERSAL concealed from TCF its true motivation which was that UNIVERSAL intended to acquire TCF’s TCF Concept and Business Plan and use/exploit the same without paying for it while misleading TCF into trusting UNIVERSAL’s representations to the contrary.
133. UNIVERSAL had a pecuniary interest in the Agreement, TCF’s disclosure of the TCF Concept, and business relationship with TCF.
134. UNIVERSAL made each of the above-incorporated representations for the purpose of inducing TCF’s reliance thereupon, and TCF did in fact rely on UNIVERSAL’s representations.
135. Each of the above-incorporated representations was false, and UNIVERSAL and of such falsity at the time the statements were made.
136. Each of the above-incorporated representations was made for TCF’s guidance in disclosing the TCF Concept to UNIVERSAL, and for the business relationship with UNIVERSAL.
137. UNIVERSAL failed to exercise reasonable care or competence in communicating each of the above-incorporated representations to TCF.
138. As a result of UNIVERSAL’s misrepresentations and actions to induce TCF, TCF relied upon such statements and actions and disclosed its TCF Concept and Business Plans to UNIVERSAL in exchange for expected payment.
139. Upon information and belief, UNIVERSAL never intended to honor the promises and commitments to TCF from its oral agreements.
140. Upon information and belief, UNIVERSAL has willfully engaged in, and is willfully engaging in, the acts complained of with oppression, fraud, and malice, and in conscious disregard of TCF’s rights. TCF, therefore, is entitled to the maximum damages allowable by law.
141. As a direct and proximate result of the fraud committed by UNIVERSAL, TCF has been damaged.
142. UNIVERSAL is liable for all damages sustained as a result of its fraud, plus punitive damages based on the willful, wanton and intentional nature of their actions.
WHEREFORE, TCF demands judgment against UNIVERSAL plus punitive damages, prejudgment interest, attorneys’ fees, and court costs.
COUNT VIII
(Constructive Fraud)

143. This is an action in equity by TCF against UNIVERSAL for constructive fraud.
144. TCF realleges and incorporates herein by reference Paragraphs 1 through 76, above.
145. UNIVERSAL had a confidential business relationship with, and duty to, TCF with respect to TCF’s TCF Concept and Business Plan, as evidenced by UNIVERSAL’s actions, assurances, written correspondence, and course of dealings, as alleged in detail above.
146. TCF reposed confidence in UNIVERSAL, and UNIVERSAL accepted it, resulting in superiority and influence on the part of UNIVERSAL.
147. UNIVERSAL owed TCF a duty to act with reasonable care with respect to representations made to induce TCF to disclose the TCF Concept and Business Plan.
148. UNIVERSAL abused and took advantage of their confidential business relationship with TCF when they were bound in equity and good conscience to act in good faith and in TCF’s interest.
149. UNIVERSAL breached their duty to TCF by:
a) failing to pay TCF for the TCF Concept and Business Plan in exchange for their use of the same;
b) disclosing the TCF Concept and Business Plan beyond the zone of confidence within UNIVERSAL;
c) failing to execute written contract as to their use and TCF’s ideas in the TCF Concept and Business Plan; and
d) failing to disclose to TCF their actions and misappropriations.

150. As a direct and proximate result of UNIVERSAL’s actions, TCF has been damaged.

WHEREFORE, TCF demands judgment against UNIVERSAL for compensatory damages, prejudgment interest, attorneys’ fees, and costs.
COUNT IX
(Accounting)

151. This is an equitable action by TCF against UNIVERSAL for an accounting.
152. TCF realleges and incorporates herein by reference Paragraphs 1 through 76 above.
153. TCF and UNIVERSAL entered into valid oral agreements, including, without limitation, an oral agreement for the review, for the sale, and for the purchase of TCF’s submission of products, ideas and materials, including TCF Concept and Business Plan.
154. The oral agreements required UNIVERSAL to pay TCF for compensation for being affected by or the use and exploitation of the TCF Concept and Business Plan, both impliedly and by the express requirement that a formal, written contract would be executed prior to UNIVERSAL’s use.
155. Consequently, the conduct of the parties and the agreements, including the Agreement, established a fiduciary and trust relationship between the parties.
156. UNIVERSAL’s financial accounts for its misappropriation of TCF’s proprietary information is no doubt complicated.
157. UNIVERSAL and TCF orally agreed that payment would be made to TCF as a condition of UNIVERSAL’s use of the TCF Concept.
158. UNIVERSAL failed to pay TCF despite using and exploiting TCF’s TCF Concept and Business Plan.
159. UNIVERSAL has derived revenues from its use of the TCF Concept.
160. In order to determine the exact amounts due, discovery is needed.
161. TCF is entitled to a complete accounting from UNIVERSAL regarding transactions, including, without limitation, revenues, profits, benefits, consideration of any kind, derived from the TCF Concept and Business Plan.
162. Without an accounting, TCF does not have an adequate remedy at law to determine the amount owed to TCF for UNIVERSAL’s influence of or use and exploitation of the TCF Concept and Business Plan.
WHEREFORE, TCF demands relief in the form of an Order for an accounting by UNIVERSAL regarding transactions, including, without limitation, revenues, profits, benefits, consideration of any kind, that derived from UNIVERSAL’s use of the TCF Concept and Business Plan, together with attorneys’ fees and costs.
DEMAND FOR JURY TRIAL

TCF demand a jury trial on all issues so triable.

LAW OFFICES OF DAVID S. OLIVER

/s/ David S. Oliver
David S. Oliver, Esq.
Florida Bar No. 521922
424 E. Central Blvd., Suite 228
Orlando, FL 32801
(407) 402-9379
[email protected]

Dated: August 17, 2016