Cram
Cram
Cram
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CENTRAL DIVISION
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12 MICHAEL CRAM, an individual, d.b.a.
PACIFIC PRODUCTIONS
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Plaintiff,
v.
Defendants.
COMPLAINT:
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COMPLAINT
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3 alleges as follows:
JURISDICTION AND VENUE
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15 the events or omissions giving rise to the claims pled herein occurred in this judicial
16 district and Defendants are transacting business within this district.
PARTIES
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19 state of California, and since 2009 has been doing business under the fictitious
20 business name, Pacific Productions.
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22 Defendant Universal Pictures, Inc. ("Universal") is, and at all times relevant, a
23 Delaware limited liability company, with its principle place of business in
24 California. Plaintiff is further informed and believes that Defendant owns and
25 operates a Motion Picture Studio and its subsidiaries throughout Los Angeles
26 County.
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6.
2 Defendant Universal Studio Home Entertainment, LLC ("Universal Home") is, and
3 at all times relevant, a Delaware limited liability company, with its principle place
4 of business in California.
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Plaintiff is informed and believes and based thereon alleges, that
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6 Defendant Universal City Studio Home Entertainment, LLC ("Universal City") is,
7 and at all times relevant, a Delaware limited liability company, with its principle
8 place of business in California.
8.
Plaintiff is informed and believes and based thereon alleges, that
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10 Defendant Seth MacFarlane ("MacFarlane") is, and at all times relevant, a resident
11 of the County of Los Angeles, California.
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13 Defendant Fuzzy Door Productions, Inc. ("Fuzzy Door") is, and at all times relevant,
14 a California corporation, with its principle place of business in California. Fuzzy
15 Door is, on information and belief, the production company associated with
16 MacFarlane.
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18 Defendant Media Rights Capital L.P. ("MRC") is, and at all times relevant, a
19 Delaware limited partnership, with its principle place of business in California.
20 MRC is, on information and belief, is an entity involved with the unlawful acts
21 herein.
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11.
23 Defendant MRC II DISTRIBUTION COMPANY, L.P. (MRC II) is, and at all
24 times relevant, a Delaware limited partnership, with its principle place of business in
25 California. MRC II is, on information and belief, is an entity involved with the
26 unlawful acts herein.
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12.
2 Defendant Target Corporation. ("Target") is, and at all times relevant, a Minnesota
3 corporation, owning hundreds of retail outlets throughout the United States with its
4 principle place of business in Minnesota.
13. Plaintiff is unaware of the names and true capacities of defendants,
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6 whether individual, corporate and/or partnership entities, named herein as DOES 1
7 through 10, inclusive, and therefore are sued herein under fictitious name. Plaintiff
8 is informed and believes and thereon alleges, that Does 1 through 10, and each of
9 them are responsible in some manner for the occurrences alleged herein and that
10 Plaintiff's damages were proximately caused by such defendants. Plaintiff will seek
11 leave of Court to amend this complaint to allege their true names and capacities
12 when they have been ascertained. (Universal, Universal Home, Universal City,
13 MacFarlane, Fuzzy Door, MRC, MRC II, Target Corporation, and Does 1 through
14 10 are referred to collectively as Defendants.)
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BACKGROUND FACTS
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1 Major League Baseball, NASCAR, the National Football League, and movie and
2 television studios to incorporate Plaintiffs Product with their logos and sounds.
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4 Washington Corporation. Plaintiff handled all the business operations for Plaintiffs
5 Product through Pacific Direct, Inc. from approximately 2001 to 2008. Beginning
6 around 2009, Plaintiff, handled all business operation for Plaintiffs Product under
7 the fictitious business name, Pacific Productions.
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19.
21.
Plaintiff, while operating Pacific Direct Inc., primarily sold its products
14 to retailers totaling with over 11,000 accounts including major chains such as: Bed
15 Bath and Beyond, Macys, Dillards, and Target.
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22.
24.
When Plaintiffs Product was introduced to the market, it was the only
22 item of its kind on sale. In order to protect itself from future competitors, Plaintiff
23 adopted creative and original designs and commenced use of, and continues to use
24 the following but not limited to:
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The use and placement of a single licensed image below the speaker holes;
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Trade Dress.)
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16 Plaintiffs Product which includes designs and features that inherently distinctive
17 and/or have acquired secondary meaning.
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19 since October 2001 while operating Pacific Direct Inc., and also as an individual
20 d.b.a. Pacific Productions.
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22 Plaintiffs Product. Plaintiff and Plaintiffs Product was the subject of the film,
23 Ingenious starring two-time Academy Award Nominee, Jeremy Renner, and two24 time Screen Actor Guild Nominee, Dallas Roberts. Ingenious is a biographical film
25 about Plaintiff's achievement of the American dream of inventorship and the
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1 screened around the world during the film festival circuit, and appeared at 10 film
2 festivals in cities ranging from Santa Barbara to Jerusalem.
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10 Amazon.com, and also on DVD in various languages. The film has various titles and
11 translations throughout the world such as: Golpe de Gnio in Brazil, Ingnieux
12 in French-Canadian translations, Une ide de genie in France, and Marifetli in
13 Turkey.
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19 II, and Fuzzy Door Productions released the film TED in theaters, and to DVD
20 several months later.
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22 writers and directors of the movie TED as well as the "FAMILY GUY" television
23 show.
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32.
33.
2 Infringing Bottle Opener. Below are photos comparing the Plaintiffs Trade Dress
3 and Infringing Bottle Opener.
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5 Plaintiffs Trade Dress
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35.
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15 Home, Universal City, Fuzzy Door, MRC, and MRC II were involved in selling the
16 Infringing Bottle Opener exclusively to Defendant Target Corporation.
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37.
38.
21 constructive notice of Plaintiffs Trade Dress and the extensive and continuous use
22 of same, have manufactured, advertised, distributed in commerce, offered and/or
23 sold products that unlawfully counterfeit and infringe Plaintiffs Trade Dress.
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39.
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5 caused, is causing, and will continue to cause damage to plaintiffs reputation and
6 goodwill and to the value of Plaintiffs Trade Dress. Plaintiff has no way to control
7 what goods and/or services are sold, or offered for sale, or what goods and/or
8 services defendants intend to offer, under their use of the Infringing Bottle Opener.
9 Therefore, the reputation, goodwill, and standards of excellence Plaintiff has worked
10 to achieve will be in jeopardy. Any problems that arise in connection with
11 Defendants use or intended use of the Infringing Bottle Opener will negatively and
12 detrimentally impact Plaintiff and the trust Plaintiff has worked to gain among its
13 customers and the consuming public at large.
42. Furthermore, Infringing Bottle Opener is identical to Plaintiffs Trade
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15 Dress, and has caused actual confusion.
43. Plaintiff lacks an adequate remedy at law.
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1 or, as a result of its use, has acquired secondary meaning whereby the relevant
2 consuming public and trade associates these features with a single source, Plaintiff.
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16 constitutes trade dress infringement in violation of Section 43(a) of the Lanham Act
17 (15 U.S.C. 1125(a)), which prohibits the use in commerce in connection with the
18 sale of goods or rendering of any services of any word, term, name, symbol, or
19 device, or any combination thereof which is likely to cause confusion, or to cause
20 mistake, or to deceive as to the source of the goods or services.
51. As a direct and proximate result of the willful and wanton conduct of
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22 Defendants, Plaintiff has been injured and will continue to suffer irreparable injury
23 to its business and reputation unless Defendants are restrained by the Court from
24 infringing the Plaintiffs Trade Dress.
52. Plaintiff has no adequate remedy at law and is entitled to injunctive
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26 relief pursuant to 15 U.S.C. 1116(d).
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53.
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17 for sale identical talking bottle openers bundled together with Defendants products
18 together with other indicia associated with Plaintiff is intended, and is likely to
19 confuse, mislead, or deceive consumers, the public, and the trade as to the origin,
20 source, sponsorship, or affiliation of said products, and is intended, and is likely to
21 cause such parties to believe in error that Defendants identical products have been
22 authorized, sponsored, approved, endorsed or licensed by Plaintiff, or that
23 Defendants are in some way affiliated with Plaintiff.
57. Defendants use of Plaintiffs Trade Dress is without Plaintiffs
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25 permission or authority and is in total disregard of Plaintiffs rights.
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58.
59.
2 prohibited Defendants from using Plaintiffs Trade Dress, or any Trade Dress
3 confusingly similar thereto, and to recover all damages, including attorneys fees,
4 that Plaintiff has sustained and will sustain, and all gains, profits and advantages
5 obtained by Defendants as a result of their infringing acts alleged above in an
6 amount not yet known, as well as costs of this action.
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24 fraudulent business acts or practices under the Business and Professions Code
25 17200 et seq.
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2 undertook the acts alleged above willfully, for the purpose of enriching themselves
3 to Plaintiffs detriment.
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5 a direct and proximate result their unlawful and/or unfair business acts or practices.
66. Defendants threaten to continue to do the acts complained of herein,
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7 and unless restrained and enjoined, will continue to do so, all to Plaintiffs
8 irreparable damage. It would be difficult to ascertain the amount of compensation
9 that could afford Plaintiff relief for such continuing acts, and multiplicity of judicial
10 proceedings would be required. Plaintiffs remedy at law is not adequate to
11 compensate it for injuries threatened.
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2 Defendants, Plaintiff has been injured and will continue to suffer irreparable injury
3 to its business and reputation unless Defendants are restrained by the Court from
4 unfairly competing with Plaintiff.
71. Plaintiff has no adequate remedy at law.
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ADVANTAGE)
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23 Defendants, Plaintiff has been injured and will continue to suffer irreparable injury
24 to its business and reputation unless Defendants are restrained by the Court from
25 infringing the Plaintiffs Trade Dress.
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d.
4.
4 a sum equal to nine times the amount of the actual damages suffered by Plaintiff.
5.
Ordering Defendants to pay an appropriate amount as punitive damages
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6 to deter willful and wanton conduct such as theirs and to avoid future confusion or
7 deception of the public and unfair competition with Plaintiff pursuant to 15 U.S.C.
8 1117(a).
6.
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10 publication in which any of them advertised any of the Infringing Bottle Opener and
11 any other good that infringe Plaintiffs Trade Dress, such corrective advertisements
12 to be of comparable size as such prior advertising.
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Ordering Defendants to sequester, forfeit and deliver up for destruction
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14 all Infringing Bottle Opener and components thereof in their possession or control,
15 or in the possession or control of any of their agents, and any and all other goods
16 that infringe Plaintiffs Trade Dress, pursuant to 15 U.S.C. 1116 and 1118.
8.
Directing that Defendants deliver up for destruction all catalogues,
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18 advertising and promotional materials in their possession, custody or control or in
19 the possession, custody or control of any of their agents that feature any of the
20 Infringing Bottle Opener and any other goods that infringe Plaintiffs Trade Dress,
21 or that the Court shall find to have facilitated Defendants' acts of unfair competition
22 with Plaintiff, pursuant to 15 U.S.C. 1116 and 1118.
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Declaring this case to be an exceptional case within the meaning of 15
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24 U.S.C. 1117.
10. Awarding Plaintiff its costs and attorneys' fees incurred in this action
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26 pursuant to 15 U.S.C. 1117(a); and
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For such other and further relief as the Court deems just, equitable and
2 proper.
3 Dated: February 25, 2015
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By:
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JURY DEMAND
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In accordance with Federal Rules of Civil Procedure 38 and 39, the Plaintiff
4 asserts its rights under the Seventh Amendment of the United States Constitution
5 and demands a trial by jury on all issues.
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COHEN IP LAW GROUP, P.C.
9025 Wilshire Blvd., Suite 301
Beverly Hills, CA 90211
By:
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