IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION BOOGEY, INC.

d/b/a BOOGEY LIGHTS, a Tennessee corporation, Plaintiff, v. LITE CYCLE, INC., a Florida corporation, DANIEL SHILO GORACOFF, an individual, MARC SILVERMAN, an individual, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

Case No._______________________ JURY TRIAL DEMANDED

COMPLAINT Plaintiff Boogey, Inc. d/b/a Boogey Lights (Boogey Lights) for its Complaint against Defendants Lite Cycle, Inc. (Lite Cycle), Daniel Shilo Goracoff (Goracoff) and Marc Silverman (Silverman, cumulatively Defendants) states the following: PARTIES, JURISDICTION AND VENUE 1. Plaintiff Boogey Lights is a Tennessee corporation with its principal place of business at

1391 Ideal Valley Road, Spring City, Tennessee 37381. 2. Defendant Lite Cycle is a Florida corporation with its principal place of business at 2701

Scott Street, Hollywood, Florida, 33020. 3. Defendant Goracoff is the President of Lite Cycle and resides at 2701 Scott Street,

Hollywood, Florida, 33020. Upon information and belief, Gorocoff (a) personally participated in and/or had the right and ability to supervise, direct and control the wrongful conduct alleged in this Complaint, and/or (b) derived direct financial benefit from that wrongful conduct.

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4.

Defendant Silverman is the Vice President of Lite Cycle and resides at 720 Natures Cove

Road, Dania Florida 33004. Upon information and belief, Silverman (a) personally participated in and/or had the right and ability to supervise, direct and control the wrongful conduct alleged in this Complaint, and/or (b) derived direct financial benefit from that wrongful conduct. 5. This Court has personal jurisdiction over Defendants because each has engaged in acts

outside this Judicial District causing injury within this Judicial District and by reason of the nature of their particular business and operations. Defendants have further availed themselves of this Courts jurisdiction by regularly and substantially conducting business in this Judicial District and have otherwise made or established contacts with this judicial district sufficient to permit the exercise of personal jurisdiction. 6. This is an action for cybersquatting under 15 U.S.C. 1125(d), for trademark

infringement under 15 U.S.C. 1114(1), for false designation of origin and unfair competition under 15 U.S.C. 1125(1), for violation of the Tennessee Consumer Protection Act, for imposition of a constructive trust upon illegal profits, and for an accounting under 15 U.S.C. 1117. 7. This Court has subject matter jurisdiction over the federal claims pursuant to 15 U.S.C.

1121, 28 U.S.C. 1331 and 1338(a). This Court has supplemental jurisdiction over claims arising under the laws of the State of Tennessee pursuant to 28 U.S.C. 1338(b) and 1367(a) because those claims are joined with substantial and related federal claims and are otherwise so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts. 8. Venue is proper in this District pursuant to 28 U.S.C. 1391(b)(1) and (b)(2) because

Boogey Lights is a resident of this District and because a substantial portion of the acts or

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omissions giving rise to the claim and the threatened and actual harm to Boogey Lights occurred in this District by reason of Defendants conduct as alleged herein. FACTS COMMON TO ALL CLAIMS 9. Boogey Lights manufactures and sells lighting for motor vehicles, and it specializes in

show-quality motorcycle LED lights for motorcycles of all makes and models. 10. Boogey Lights is the exclusive owner of a valid and enforceable trademark registration

with the United States Patent and Trademark Office on the Principal Register for BOOGEY LIGHTS, U.S. Reg. No. 1,946,732, registered January 9, 1996, for use with lights for motor vehicles. 11. 12. Boogey Lights mark BOOGEY LIGHTS is incontestable under 15 U.S.C. 1065. True and correct copies of the Certificate of Registration for BOOGEY LIGHTS along

with relevant United States Patent and Trademark Office Abstract of Title are attached as Exhibit A. 13. Since 2001, Boogey Lights has operated its business of selling lighting products for

motor vehicles under the mark BOOGEY LIGHTS. 14. Since 2005, Boogey Lights has used the mark CUT N CLICK in conjunction with lights

for motor vehicles. 15. Since introducing its CUT N CLICK products in 2005, Boogey Lights has indicated the

use of CUT N CLICK as a trademark by including a TM designation with the mark in its advertisements, website, and product packaging. 16. Boogey Lights owns the domain name www.boogey.com. The website hosted by the

domain name incorporates the BOOGEY LIGHTS and CUT N CLICK marks. Printouts from this website evidencing use of these marks are attached here as Exhibit B.

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17.

Boogey Lights has heavily invested in the advertising and promotion of its motor

vehicles lighting products and related products under its proprietary trademarks. 18. As a result of its marketing efforts and its continuous use of its marks, Boogey Lights has

developed substantial rights and goodwill in the marks and the public has come to associate such marks with Boogey Lights as the source of origin of its well-regarded motor vehicle lighting products. 19. Defendant Lite Cycle is a dealer of motorcycle related motorcycle parts including

decorative lighting for motorcycles. 20. In 2007, at the direction of Goracoff and Silverman, Lite Cycle began distributing

products for Boogey Lights under the BOOGEY LIGHTS and CUT N CLICK marks. 21. Pursuant to the agreement to distribute Boogey Lights products, Goracoff and Silverman

travelled to motorcycle related events, promoting and selling Boogey Lights products for Lite Cycle under the BOOGEY LIGHTS and CUT N CLICK marks. 22. In 2008, without the knowledge or permission of Boogey Lights, Lite Cycle registered

domain names incorporating the BOOGEY LIGHTS mark or marks identical in sound and meaning to the BOOGEY LIGHTS mark, including the domain names www.boogey-lites.com, www.boogeylites.com, and www.boogey-lights.com ( the Infringing Domains). Printouts of the registry data for these domains is attached as Exhibit C. 23. In late 2010, Boogey Lights learned of Lite Cycles Infringing Domains, and that the

Infringing Domains directed to Lite Cycles website, www.ridethelite.com. 24. In late 2010, Boogey Lights also learned that Lite Cycles ww.ridethelite.com website

contained meta data (the Infringing Meta Data) that included the marks BOOGEY LIGHTS and BOOGEY LITES, which is identical in sound and meaning to BOOGEY LIGHTS. The

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source code from Lite Cycles website is attached as Exhibit D. On information and belief, Lite Cycle intentionally hid this infringing use of the BOOGEY LIGHTS mark in the software coding of the website so it would not be readily seen by users but would be identified in internet search results, as evidenced by the internet search results attached as Exhibit E. 25. In late 2010, Boogey Lights also learned that Lite Cycle, Goracoff and Silverman were

holding themselves out as the owners of Boogey Lights, as evidenced by the article attached as Exhibit F. 26. After Boogey learned of Lite Cycles Infringing Domains, Infringing Meta Data, and

misrepresentation of the ownership of Boogey Lights, on December 23, 2010 Boogey Lights President Scott Maentz sent Goracoff an email demanding that Goracoff, Silverman, and Lite Cycle immediately cease and desist these infringing and illegal activities. A copy of this email is attached as Exhibit G. 27. On January 5, 2011, Goracoff responded to Boogey Lights email. In this

correspondence, Goracoff refused to turn over the domain names stating, among other things, We are also Boogey Lites Inc. We have been for years and we will always have the option to trade under any name we wish. A copy of Goracoffs response on behalf of Lite Cycle is attached as Exhibit H. 28. On January 14, 2011, Boogey Lights, via an email from Scott Maentz, terminated the

distributorship agreement with Defendants, and demanded that Defendants immediately cease all sales of Boogey Lights products and further demanding that Lite Cycle remove all references to Boogey Lights from its website, promotional materials, vehicles, and signage. A copy of this email is attached as Exhibit I.

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29.

The parties continued to negotiate via text message, voice message, and email the transfer

of the infringing domain names. Lite Cycle removed direct references to Boogey Lights from its website. Lite Cycle, however, did not surrender the infringing domain names or remove the infringing meta data from its website. Moreover, Lite Cycle continued to use Boogey Lights CUT N CLICK mark. No further resolution was reached. 30. On February 15, 2011, Boogey Lights counsel sent Lite Cycle a letter demanding that

Lite Cycle surrender the infringing domain names, remove the infringing meta data, and cease using the CUT N CLICK mark. A copy of this letter is attached as Exhibit J. 31. Again the parties continued to negotiate via text message, voice message, and email the

transfer of the infringing domain names. Lite Cycle removed direct references to Boogey Lights CUT N CLICK mark from its website, replacing it with the confusingly similar mark SNIP & CLICK. Moreover, Lite Cycle did not surrender the infringing domain names or remove the infringing meta data from its website. No further resolution was reached. 32. To date, Lite Cycle still owns the Infringing Domains www.boogey-lites.com,

www.boogeylites.com, and www.boogey-lights.com. 33. To date, the Infringing Domains www.boogey-lights.com and www.boogeylites.com still

direct to Lite Cycles website, www.ridethelite.com. 34. To date, Lite Cycles ridethelite.com website still contains meta data that includes the

marks BOOGEY LIGHTS and BOOGEY LITES, which is identical in sound and meaning to BOOGEY LIGHTS. 35. On information and belief, Lite Cycle, Goracoff and Silverman are still holding

themselves out as the owners of Boogey Lights and distributors of Boogey Lights products.

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COUNT I: Cybersquatting on the Infringing Domain Under 15 U.S.C. 1125(d) 36. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 35 as if fully

set forth herein. 37. 38. Defendants registered and used the Infringing Domains. BOOGEY LIGHTS was distinctive and registered with the United States Patent and

Trademark Office at the time Defendants registered and used the Infringing Domains. 39. 40. The Infringing Domains are substantially similar and/or identical to BOOGEY LIGHTS. Defendants do not have any intellectual property rights or any other rights in BOOGEY

LIGHTS and the Infringing Domains do not consist of the legal name of Defendants or a name that is otherwise associated with or used in anyway to identify Defendants. 41. Defendants registered and used the Infringing Domains in bad faith and with a bad faith

intent to profit from the goodwill long established by Boogey Lights in the mark BOOGEY LIGHTS as evidenced by its use of the Infringing Domains as a portal to lead customers and potential customers to websites that sell products similar to the products sold by Boogey Lights. Further, by incorporating the BOOGEY LIGHTS mark into the Infringing Domains, Defendants are diverting Internet traffic destined for Boogey Lights website to the Infringing Domains instead. 42. Defendants bad faith intent to profit from the use of Boogey Lights mark is also shown

by the fact that Defendants had been engaged in business with Boogey Lights when it registered the infringing domains and thus proceeded with actual knowledge of Boogey Lights and its marks.

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43.

Defendants registered and used the Infringing Domains to divert consumers from

websites owned, used and maintained by Boogey Lights in connection with its products to a website accessible under the Infringing Domains for Defendants commercial gain by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the website. 44. Defendants registration and use of the Infringing Domains constitutes cybersquatting in

violation of 15 U.S.C. 1125(d), entitling Boogey Lights to relief. 45. By reason of Defendants acts alleged herein, Boogey Lights remedy at law is not

adequate to compensate it for the damages and injuries inflicted by Defendants, and Boogey Lights is thus entitled to injunctive relief pursuant to 15 U.S.C. 1116. 46. By reason of Defendants acts alleged herein, Boogey Lights is entitled to recover

Defendants profits, actual damages and the costs of the action, or statutory damages under 15 U.S.C. 1117(d), in an amount of one hundred thousand dollars ($100,000) per domain name. 47. This is an exceptional case making Boogey Lights eligible for an award of attorneys fees

under 15 U.S.C. 1117(a). COUNT II: Trademark Infringement Under 15 U.S.C. 1114(1) 48. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 47 as if fully

set forth herein. 49. As alleged herein, (a) Defendants acts are likely to cause confusion, mistake, and to

deceive with respect to BOOGEY LIGHTS and/or Boogey Lights products, (b) Defendants acts are likely to cause initial interest confusion among the general public with respect to BOOGEY LIGHTS and/or Boogey Lights products, and (c) Defendants have unfairly profited from its actions with respect to the Infringing Domains.

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50.

By reason of Defendants activities, Boogey Lights has suffered damage to its reputation

and the goodwill established by Boogey Lights in, and associated with, the mark BOOGEY LIGHTS. If not enjoined, Defendants activities will continue to harm Boogey Lights and its long-used and federally-registered mark BOOGEY LIGHTS. 51. Defendants activities have harmed, and if not enjoined, will continue to harm, the

general public which has an interest in being free from confusion, mistake and deception. 52. By reason of Defendants acts alleged herein, Boogey Lights remedy at law is not

adequate to compensate it for the injuries inflicted by Defendants and, accordingly, Boogey Lights is entitled to injunctive relief pursuant to 15 U.S.C. 1116. 53. By reason of Defendants acts alleged herein, Boogey Lights is entitled to recovery from

Defendants of all amounts it is entitled to under 15 U.S.C. 1117(a), including without limitation trebled damages. 54. This is an exceptional case making Boogey Lights eligible for an award of attorneys fees

under 15 U.S.C. 1117(a). COUNT III: False Designation of Origin and Unfair Competition Under 15 U.S.C. 1125(1) 55. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 54 as if fully

set forth herein. 56. As alleged herein, (a) Defendants acts are likely to cause confusion, or to cause mistake,

or to deceive the relevant public that Lite Cycle, Goracoff, Silverman, the Infringing Domains, and the websites and advertisements displayed at the Infringing Domains, are authorized, sponsored or approved by or are affiliated with Boogey Lights, (b) Defendants acts are likely to cause initial interest confusion among the general public with respect to Boogey Lights, the

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marks BOOGEY LIGHTS and CUT N CLICK and/or Boogey Lights products, and (c) Defendants has unfairly profited from its acts with respect to the Infringing Domain. 57. By reason of Defendants activities, Boogey Lights has suffered damage to its reputation

and the goodwill established by Boogey Lights in, and associated with, the marks BOOGEY LIGHTS and CUT N CLICK. If not enjoined, Defendants activities will continue to harm Boogey Lights and its mark CUT N CLICK and its long-used and federally-registered mark BOOGEY LIGHTS. 58. Defendants activities have harmed, and if not enjoined, will continue to harm, the

general public which has an interest in being free from confusion, mistake and deception. 59. By reason of Defendants acts alleged herein, Boogey Lights remedy at law is not

adequate to compensate it for the injuries inflicted by Defendants and, accordingly, Boogey Lights is entitled to injunctive relief pursuant to 15 U.S.C. 1116. 60. By reason of Defendants acts alleged herein, Boogey Lights is entitled to recovery from

Defendants of all amounts it is entitled to under 15 U.S.C. 1117(a), including without limitation trebled damages. 61. This is an exceptional case making Boogey Lights eligible for an award of attorneys fees

under 15 U.S.C. 1117(a). COUNT IV: Violation of Tennessee Consumer Protection Act Tenn. Code Ann. 47-18-101, et seq. 62. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 61 as if fully

set forth herein. 63. The acts and conduct of Defendants as alleged above in this complaint constitute unfair

and/or deceptive practices pursuant to Tenn. Code Ann. 47-18-101, et seq.

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64.

Defendants conduct as alleged above has resulted in damages and losses to Boogey

Lights and an illicit gain of profit to Defendants in an amount that is unknown at the present time. Boogey Lights damages, including Defendants illicit profits, should be trebled pursuant to Tenn. Code Ann. 47-18-109(a)(1), (3) because Defendants unfair practices were willful and/or knowing. In addition, the Court may award such other relief as is necessary and proper. 65. Boogey Lights is also entitled to recover its attorneys fees and costs of suit pursuant to

Tenn. Code Ann. 47-18-109(e)(1). COUNT V: For Imposition of a Constructive Trust Upon Illegal Profits Against Defendants 66. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 65 as if fully

set forth herein. 67. Defendants conduct constitutes deceptive and wrongful conduct in the nature of passing

off the infringing materials as genuine Boogey Lights products approved or authorized by Boogey Lights. 68. By virtue of Defendants wrongful conduct, Defendants have illegally received money

and profits that rightfully belong to Boogey Lights. 69. Upon information and belief, Defendants hold the illegally received money and profits in

the form of bank accounts, real property, or personal property that can be located and traced. 70. Defendants hold the money and profits they have illegally received as constructive

trustees for the benefit of Boogey Lights. COUNT VI: Accounting 71. Boogey Lights realleges and incorporates by reference Paragraphs 1 through 70 as if fully

set forth herein.

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72.

Boogey Lights is entitled pursuant to 15 U.S.C. 1117 to recover any and all profits of

Defendants that are attributable to their acts of infringement. 73. Boogey Lights is entitled pursuant to 15 U.S.C. 1117 to actual damages or statutory

damages sustained by virtue of Defendants acts of infringement. 74. The amount of money due from Defendants to Boogey Lights is unknown to Boogey

Lights and cannot be ascertained without a detailed accounting by Defendants of the precise number of units of infringing material offered for distribution and distributed by Defendants. JURY DEMAND Boogey Lights respectfully demands a jury on all issues so triable. RELIEF SOUGHT WHEREFORE, Boogey Lights respectfully requests that this Court: (a) Enter judgment that Defendants have violated the rights of Boogey Lights in the

mark BOOGEY LIGHTS in violation of 15 U.S.C. 1125(d); (b) Enter judgment that Defendants have infringed the rights of Boogey Lights in the

mark BOOGEY LIGHTS in violation of 15 U.S.C. 1114(1); (c) Enter judgment that Defendants have violated the rights of Boogey Lights in the

marks BOOGEY LIGHTS and CUT N CLICK in violation of 15 U.S.C. 1125(a); (d) Enter judgment that Defendants have engaged in unfair competition and have

infringed the rights of Boogey Lights in the marks BOOGEY LIGHTS and CUT N CLICK in violation of the Tennessee Consumer Protection Act; (e) Order Defendants to transfer the Infringing Domains (www.boogeylites.com,

www.boogey-lights.com, boogey-lites.com), as well as any other infringing domain names registered by Defendants to Boogey Lights;

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(f)

Order and enjoin Defendants, its agents, representatives, employees, assigns, and

all persons acting in concert or privity with Defendants from the following activities: (i) registering or using, in any manner, any Internet domain name that

incorporates, in whole or in part, BOOGEY LIGHTS and CUT N CLICK or any name, mark or designation confusingly similar thereto; (ii) using any of the marks BOOGEY LIGHTS and CUT N CLICK, or any

name, mark or designation confusingly similar thereto, in a manner that is likely to cause confusion regarding whether Defendants is affiliated or associated with or sponsored by Boogey Lights; (iii) assisting, aiding or abetting any other person or business entity in

engaging in or performing any of the activities referred to in the foregoing subparagraphs; and (iv) advertising, stating, or otherwise representing any affiliation or connection

with or ownership of Boogey Lights and its products. (g) Order Defendants to engage in corrective advertising to the extent necessary to

correct any consumer confusion or misperceptions resulting from Defendants unlawful acts; (h) Order Defendants to account to Boogey Lights for, and disgorge, all profits

Defendants has derived by reason of the unlawful acts complained of herein; (i) Order Defendants to pay damages, and that those damages be trebled, under 15

U.S.C. 1117(a); (j) Order Defendants to pay damages, including Defendants profits, actual damages

and the costs of the action, or alternatively statutory damages pursuant to 15 U.S.C. 1117(d) in an amount of one hundred thousand dollars ($100,000) per domain name;

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(k)

Order Defendants to pay damages, including Defendants illicit profits, trebled for

Defendants willful and/or knowing, unfair and/or deceptive practices pursuant to Tenn. Code Ann. 47-18-109(a)(1), (3). (l) That the Court enter an order declaring that Defendants hold in trust, as

constructive trustees for the benefit of Boogey Lights, their illegal profits obtained from their distribution of infringing materials, and requiring Defendants to provide Boogey Lights a full and complete accounting of all amounts due and owing to Boogey Lights as a result of Defendants illegal activities. (m) Order Defendants to pay to Boogey Lights both the costs of this action and the

reasonable attorneys fees incurred by it in prosecuting this action; and (n) Enter an Order providing Boogey Lights with all such other and further relief to

which it may be justly entitled.

Respectfully submitted, s/James R. Michels James R. Michels (Sup. Ct. No. 21604) William C. Ferrell (Sup. Ct. No. 27220) Kevin P. Hartley (Sup. Ct. No. 29199) STITES & HARBISON, PLLC 401 Commerce Street, Suite 800 Nashville, TN 37219-2376 Phone: (615) 244-5200 Fax: (615) 782-2371 Attorneys for Plaintiff Boogey, Inc. d/b/a Boogey Lights

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