Cram

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 1 of 20 Page ID #:1
Michael N. Cohen (SB# 225348)

mcohen@cohenip.com
Joshua H. Eichenstein (SB#299392)
2 jeichenstein@cohenip.com
COHEN IP LAW GROUP
3 A Professional Corporation
9025 Wilshire Boulevard, Suite 301
4 Beverly Hills, California 90211
Phone: (310) 288-4500 Fax: (310) 246-9980
5
Attorneys for Plaintiff,
6 MICHAEL CRAM
1
7
8
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT COURT OF CALIFORNIA
10
CENTRAL DIVISION
11
12 MICHAEL CRAM, an individual, d.b.a.
PACIFIC PRODUCTIONS
13
CASE No. 2:15-cv-01359
14
(1) FEDERAL TRADE DRESS

INFRINGMENT [LANHAM ACT]
15
Plaintiff,
v.
16 UNIVERSAL PICTURES, INC., a

Delaware corporation; UNIVERSAL
17 CITY STUDIOS PRODUCTIONS,
LLLP; a Delaware Limited partnership;
18 UNIVERSAL STUDIOS HOME
ENTERTAINMENT, LLC, a Delaware
19 Limited Liability company;; SETH
MACFARLANE, an individual;
20 FUZZY DOOR PRODUCTIONS, INC.
a California corporation; MEDIA
21 RIGHTS CAPITAL L.P., a Delaware
Limited partnership; MRC II
22 DISTRIBUTION COMPANY, L.P., a
Delaware Limited partnership;
23 TARGET CORPORATION, a
Minnesota Corporation; and DOES 1
24 through 10, inclusive,
25
26
Defendants.
COMPLAINT:
(2) FALSE DESIGNATION OF

ORIGIN [LANHAM ACT];
(3) COMMON LAW UNFAIR
COMPEITION;
(4) UNFAIR COMPETITION IN
VIOLATION OF CALIFORNIA
BUSINESS CODE SECTION
17200;
(5) COMMON LAW TRADE DRESS
INFRINGMENT; and
(6) INTENTIONAL
INTERFERENCE WITH
PROSPECTIVE ECONOMIC
ADVANTAGE.
DEMAND FOR JURY TRIAL
27
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COMPLAINT
1
2
Plaintiff, Michael Cram, dba Pacific Productions (hereinafter Plaintiff)
3 alleges as follows:
JURISDICTION AND VENUE
4
5
1.
This is a civil action for trade dress infringement and unfair
6 competition in which Plaintiff seeks an injunction, monetary damages, and other

7 appropriate relief arising from Defendants' (as defined herein below) violation of 15
8 U.S.C. 1125(a), the laws of the State of California, and the common law.
2.
Subject matter jurisdiction is based on 28 U.S.C 1331 (federal
9
10 question) and 1338(a) (a civil action arising under any act of Congress relating to
11 trademarks), as well as under the Lanham Act, 15 U.S.C. 1121(a). This court has
12 supplemental jurisdiction over Plaintiff's claims arising under California state law
13 pursuant to 28 U.S.C. 1367.
14
3.
Venue is proper in this district pursuant to 28 U.S.C. 1391(b) because
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
17
18
4.
Plaintiff Michael Cram ("Plaintiff"), is an individual residing in the
19 state of California, and since 2009 has been doing business under the fictitious
20 business name, Pacific Productions.
21
5.
Plaintiff is informed and believes and based thereon alleges, that
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.
7.
5
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.
9
10 Defendant Seth MacFarlane ("MacFarlane") is, and at all times relevant, a resident
11 of the County of Los Angeles, California.
12
9.
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.
17
10.
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.
22
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,
5
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.)
15
BACKGROUND FACTS
16
17
14.
Plaintiff is an inventor, designer, and distributor of his own consumer
18 products for the past 20 years.

15. Plaintiff is the owner, inventor, designer, and wholesale seller of The
19
20 Talking Bottle Opener (hereinafter Plaintiffs Product).
16. Plaintiffs Product is a uniquely designed bottle opener with proprietary
21
22 subject matter that incorporates electronic, chip-based sound-activation elements
23 capable of reproducing pre-recorded voices in talking bottle openers and talking
24 beer mugs.
17. Since its introduction, Plaintiffs Product has been extremely
25
26 successful.
Plaintiff made licensing deals with over sixty-one NCAA schools,
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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.
3
18.
Plaintiff is the founder and president of Pacific Direct, Inc. a
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.
8
19.
Sometime between 2001 and 2002 Plaintiff contacted Defendant,
9 Target Corporation at their headquarters in Minneapolis to pitch Plaintiffs Product.

20. Sometime in 2002, Defendant, Target placed their first order for 36,000
10
11 units from Plaintiff. Plaintiffs Product was so successful that Target continued to
12 order thousands of more units per week for approximately 1.5 years.
13
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.
16
22.
Between 2001 and 2015, Plaintiff is informed and believes that
17 Plaintiffs Product has sold over 10 million units worldwide.

23. Plaintiff has invested substantial resources in creating a distinctive
18
19 design and appearance for Plaintiffs Product and product packaging, and in
20 advertising, promoting, distributing, offering for sale, and/or selling.
21
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:
25
The original and creative shape of the plastic handle;
26
The C shape of the metal opener;
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The no-button activation technology;
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The weight and length of the packaging;
The intentional use of a single solid color on every bottle opener;
The use and placement of a single licensed image below the speaker holes;
The original and creative circular design of speaker holes;
The eight speaker holes, with one in the middle;
The placement of speaker holds in the middle of the handle;
The quality of sound;
The length of time each sound plays;
The triggering of the sound by pressure on the metal opener;
10
11
Pacific Direct and/or Pacific Productions warranty on the back of each

package.
12
Taken together, these non-functional, distinctive, original, and arbitrary choices
13
created Plaintiffs Products protectable trade dress. (hereinafter, Plaintiffs
14
Trade Dress.)
15
25.
Plaintiffs Trade Dress listed above serves to identify and distinguish
16 Plaintiffs Product which includes designs and features that inherently distinctive
17 and/or have acquired secondary meaning.
18
26.
Plaintiff, has been continuously selling thousands of units each year
19 since October 2001 while operating Pacific Direct Inc., and also as an individual
20 d.b.a. Pacific Productions.
21
27.
Plaintiff has achieved worldwide fame and notoriety for creating
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
26
ultimate worldwide success of Plaintiff's Product. During 2009, Ingenious was
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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.
3
4
5
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28.
Ingenious is available throughout the world through streaming on
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.
14
29.
On or around December 2006, Twentieth Century Fox Licensing and
15 Merchandising, a division of Fox Entertainment Group, Inc. and Plaintiff executed a

16 license agreement for Plaintiff to incorporate the FAMILY GUY sounds and
17 images with Plaintiffs Product.
18
30.
On or around June 2012, Defendants, Universal Pictures, MRC, MRC
19 II, and Fuzzy Door Productions released the film TED in theaters, and to DVD
20 several months later.
21
31.
Upon information and belief, Defendant Seth Macfarlane is one of the
22 writers and directors of the movie TED as well as the "FAMILY GUY" television
23 show.
24
32.
On December 12, 2012, Defendant, Universal Studios Home
25 Entertainment released a special edition Blu-Ray/DVD of TED that was packaged

26 with a talking bottle opener that is identical to Plaintiff Product, priced at $25.99.
27 (Hereinafter Infringing Bottle Opener).
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33.
In and around September 2013, Plaintiff became aware of the
2 Infringing Bottle Opener. Below are photos comparing the Plaintiffs Trade Dress
3 and Infringing Bottle Opener.
4
5 Plaintiffs Trade Dress
Defendants' Infringing Bottle Opener
6
7
8
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10
11
12
13
14
Plaintiff's Trade Dress
Defendants' Infringing Bottle Opener
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1
2
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34.
Plaintiff promptly began to investigate the Infringing Bottle Opener and
9 quickly discovered that it was practically an identical knock-off of Plaintiffs

10 Product.
11
35.
Upon information and belief, Defendants, Seth Macfarlane and Fuzzy
12 Door Productions had prior knowledge of Plaintiffs ownership rights over

13 Plaintiffs Product as their program, FAMILY GUY was licensed to Plaintiff.
14
36.
Plaintiff is informed and believes that Defendants Universal, Universal
15 Home, Universal City, Fuzzy Door, MRC, and MRC II were involved in selling the
16 Infringing Bottle Opener exclusively to Defendant Target Corporation.
17
37.
Upon information and belief, Defendant Target Corporation had prior
18 knowledge of Plaintiffs ownership and rights to Plaintiffs Product due to their

19 prior business relationship.
20
38.
Upon information and belief, Defendants, with actual and/or
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.
24
39.
Upon information and belief, Defendants without Plaintiffs license,
25 approval, permission or consent have engaged in the manufacture, advertising,

26 distribution in commerce, offering for sale and/or sale of the Infringing Bottle
27 Opener.
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40.
Defendants use of Plaintiffs Trade Dress deprives Plaintiff of the
2 opportunity to exercise its exclusive right to exploit the substantial goodwill

3 Plaintiff developed in association with the Trade Dress.
4
41.
Upon information and belief, Defendants Infringing Bottle Opener has
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
14
15 Dress, and has caused actual confusion.
43. Plaintiff lacks an adequate remedy at law.
16
17
18
FIRST CLAIM FOR RELIEF
19
(FEDRAL TRADE DRESS INFRINGEMENT)
20
21
44.
Plaintiff repeats and realleges the allegations in paragraphs 1 through
22 43 as set forth fully herein.

45. Since as early as October 2001, Plaintiff continuously used Plaintiffs
23
24 Trade Dress in international and/or interstate commerce to identify Plaintiffs
25 Product and to distinguish it from others. The trade dress described hereinabove, is
26 comprised of distinctive features which are protected under the Lanham Act 43, as
27 amended, 15 U.S.C. 1125(a). Plaintiffs Trade Dress is either inherently distinctive
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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.
3
46.
Upon information and belief, commencing at some time unknown to
4 Plaintiff and continuing for an unknown time, Defendants without Plaintiffs

5 consent, have manufactured, advertised, offered for sale and/or engaged in the sale
6 and distribution and/or used in commerce of the Infringing Bottle Opener.
47. Defendants have without permission, willfully, and with the intention
7
8 of benefiting from the reputation and good will of Plaintiff, copied each and every
9 detail of Plaintiffs Trade Dress.
10
48.
There is a high likelihood of confusion to consumers between
11 Plaintiffs Product and Infringing Bottle Opener.

49. As a consequence, Infringing Bottle Opener is likely to deceive and
12
13 divert and has deceived and diverted customers away from the genuine Plaintiffs
14 Product/Plaintiffs Trade Dress.
15
50.
The conduct of Defendants, as alleged in the foregoing paragraphs
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
21
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
25
26 relief pursuant to 15 U.S.C. 1116(d).
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53.
Plaintiff is entitled to recover its actual damages and Defendants
2 profits pursuant to 15 U.S.C. 1117(a); damages pursuant to 15 U.S.C. 1117(a)

3 and (b); and that attorneys fees and costs pursuant to 15 U.S.C. 1117(a); seizer of
4 all infringing goods pursuant to 15 U.S.C. 1116(d); and impoundment and
5 destruction of all infringing goods pursuant to 15 U.S.C. 1118.
6
7
8
SECOND CLAIM FOR RELIEF
(FALSE DESIGNATION OF ORIGIN [LANHAM ACT])
10
11
54.

55. The Plaintiffs Product is nonfunctional and its inherently distinctive
13
14 quality has achieved a high degree of consumer recognition and serves to identify
15 Plaintiff as the source of this exact goods.
16
56.
Defendants promotion, advertising, distribution, sale and/or offering
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
24
25 permission or authority and is in total disregard of Plaintiffs rights.
26
58.
Defendants acts have damaged and will continue to damage Plaintiff,
27 and Plaintiff has no adequate remedy at law.

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59.
In light of the foregoing, Plaintiff is entitled to injunctive relief
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.
7
8
THIRD CLAIM FOR RELIEF
(UNFAIR COMPETITION IN VIOLATION OF CALIFORNIA BUSINESS
10
AND PROFESSIONS CODE SECTION 17200)
11
12
60.

61. The above described use by Defendants of trade dress and references
14
15 confusingly similar to the Plaintiffs Trade Dress and Defendants other conduct set
16 out above falsely suggests an association with, sponsorship by, licensing by or
17 authorization by Plaintiff.
62. Upon information and believe, the above described use by Defendants
18
19 of trade dress, confusingly similar to the Plaintiffs Trade Dress for a line of
20 products similar to those sold and/or licensed by Plaintiff, and its other conduct as
21 set out above was calculated to deceive or confuse the public and to profit unjustly
22 from the goodwill and reputation of Plaintiff.
23
63.
The wrongful conduct alleged herein constitutes unlawful, unfair and/or
24 fraudulent business acts or practices under the Business and Professions Code
25 17200 et seq.
26
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64.
Plaintiff is informed and believes and thereon alleges that Defendants
2 undertook the acts alleged above willfully, for the purpose of enriching themselves
3 to Plaintiffs detriment.
4
65.
Plaintiff is entitled to disgorgement of profits earned by Defendants as
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,
6
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.
12
13
FOURTH CLAIM FOR RELIEF
14
(COMMON LAW UNFAIR COMPETITION)
15
16
67.

68. The above described use by Defendants of trade dress and references
18
19 confusingly similar to the Plaintiffs Trade Dress and Defendants other conduct set
20 out above falsely suggests an association with, sponsorship by, licensing by or
21 authorization by Plaintiff.
69. Upon information and believe, the above described use by Defendants
22
23 of trade dress, identical and/or confusingly similar to the Plaintiffs Trade Dress for
24 a line of products identical and/or similar to those sold by Plaintiff, and its other
25 conduct as set out above was calculated to deceive or confuse the public and to
26 profit unjustly from the goodwill and reputation of Plaintiff. Defendants actions
27 constitute unfair competition with Plaintiff under the laws of the State of California.
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70.
As a direct and proximate result of the willful and wanton conduct of
4 unfairly competing with Plaintiff.
71. Plaintiff has no adequate remedy at law.
5
6
7
FIFTH CLAIM FOR RELIEF
(COMMON LAW TRADE DRESS INFRINGMENT)
72.

73.
The conduct of Defendants, as alleged in the foregoing paragraphs
11
12 constitutes trade dress infringement in violation of common law protections.
74. As a direct and proximate result of the willful and wanton conduct of
13
75. Plaintiff is entitled to an award of damages from Defendants for the
17
18 loss of business and other monetary losses the Plaintiff has suffered and will
19 continue to suffer in the future as a proximate result of Defendants wrongful
20 actions of infringement and misappropriation. Alternatively, Plaintiff is entitled to
21 recovery damages in an amount equivalent to the amount of profits that Defendants
22 have derived and may continue to derive as the result of their unlawful
23 misappropriation and infringement of Plaintiffs trade dress.
24
76.
Plaintiff has no adequate remedy at law.
25
26
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SIXTH CLAIM FOR RELIEF
(INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC
ADVANTAGE)
77.

78.
Plaintiff alleges that the following Defendants, Universal, Universal
6
7 Home, Universal City, MacFarlane, Fuzzy Door, MRC, and MRC II intentionally
8 interfered with an economic relationship between Plaintiff and Target Corporation
9 that would have resulted in an economic benefit to Plaintiff.
79. Plaintiff and Defendant Target had prior business dealings involving
10
11 Plaintiffs Product/ Plaintiffs Trade Dress.
80. Plaintiff alleges that due to Plaintiffs fame and notoriety, and past
12
13 sales of Plaintiffs Product to Target, each and every Defendant had knowledge of
14 the business relationship.
15
81.
Plaintiff alleges that the above mentioned Defendants engaged in
16 wrongful conduct by manufacturing identical talking bottle openers and packaging

17 them with TED Blu-rays sold exclusively through Target whereby disrupting
18 Plaintiffs relationship with Target.
82. Plaintiff and Targets relationship was disrupted by Defendants selling
19
20 Target products that wrongfully copied Plaintiffs Trade Dress and Plaintiffs
21 Product.
22
83.
As a direct and proximate result of the willful and wanton conduct of
26
84.
Plaintiff has no adequate remedy at law.
27
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PRAYER FOR RELIEF
2 WHEREFORE, Plaintiff requests the following judgment against Defendants:

1.
Preliminarily, during the pendency of this action, and permanently after
3
4 final hearing, enjoining Defendants from:
a.
Making any unauthorized use of Plaintiffs Trade Dress in and to
5
6 the Product, or any reproduction, counterfeit, copy or colorable imitation thereof, or
7 any trade dress or marks similar thereto, or any other of Plaintiffs Trade Dress in
8 connection with the sale of any goods or rendering of any services;
b.
Manufacturing, distributing, advertising, marketing, promoting,
9
10 offering for sale, or selling any goods, promotional materials and the like bearing a
11 reproduction, counterfeit, copy or colorable imitation of Plaintiffs Product and trade
12 dress rights thereto;
c.
Using any trade dress that may be calculated to falsely
13
14 represent or that has the effect of falsely representing that the services or products of
15 Defendants are sponsored by, originate with, or are in any way approved by
16 Plaintiff.
17
d.
Falsely representing themselves or their goods or services as
18 affiliated connected or associated with Plaintiff.

e.
Assisting, aiding, or abetting any other person or entity from
19
20 engaging in any of the acts set forth in (a) through (e) above;
2.
Requiring Defendants to pay Plaintiff such actual damages as it has
21
22 sustained as a result of the infringement of Plaintiffs Trade Dress and acts of unfair
23 competition, pursuant to 17 U.S.C. 504(a) and (b) and 15 U.S.C. 1117(a) and
24 common law.
3.
Requiring Defendants to account for and pay over to Plaintiff all gains,
25
26 profits and advantages derived by them or any of them from their respective trade
27
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1 dress infringements, and unfair competition, pursuant to 15 U.S.C. 1117(a) and

2 common law.
3
4.
Ordering Defendants to pay as damages for their conduct alleged herein
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
5
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.
9
Ordering Defendants to pay for corrective advertising in each and every
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.
7.
Ordering Defendants to sequester, forfeit and deliver up for destruction
13
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,
17
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.
9.
Declaring this case to be an exceptional case within the meaning of 15
23
24 U.S.C. 1117.
10. Awarding Plaintiff its costs and attorneys' fees incurred in this action
25
26 pursuant to 15 U.S.C. 1117(a); and
27
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11.
For such other and further relief as the Court deems just, equitable and
2 proper.
3 Dated: February 25, 2015
COHEN IP LAW GROUP, P.C.

9025 Wilshire Blvd., Suite 301
Beverly Hills, CA 90211
4
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By:
/s/ Michael N. Cohen

Michael N. Cohen
Joshua H. Eichenstein
Attorneys for Plaintiff
MICHAEL CRAM
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JURY DEMAND
1
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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.
6
COHEN IP LAW GROUP, P.C.
9025 Wilshire Blvd., Suite 301
Beverly Hills, CA 90211
7 Dated: February 25, 2015

8
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By:
/s/ Michael N. Cohen

Michael N. Cohen
Joshua H. Eichenstein
Attorneys for Plaintiff
MICHAEL CRAM
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Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 1 of 20 Page ID #:1

Michael N. Cohen (SB# 225348)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT COURT OF CALIFORNIA

CASE No. 2:15-cv-01359

(1) FEDERAL TRADE DRESS

16 UNIVERSAL PICTURES, INC., a

(2) FALSE DESIGNATION OF

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 2 of 20 Page ID #:2

Plaintiff, Michael Cram, dba Pacific Productions (hereinafter Plaintiff)

This is a civil action for trade dress infringement and unfair

6 competition in which Plaintiff seeks an injunction, monetary damages, and other

Venue is proper in this district pursuant to 28 U.S.C. 1391(b) because

Plaintiff Michael Cram ("Plaintiff"), is an individual residing in the

Plaintiff is informed and believes and based thereon alleges, that

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 3 of 20 Page ID #:3

Plaintiff is informed and believes and based thereon alleges, that

Plaintiff is informed and believes and based thereon alleges, that

Plaintiff is informed and believes and based thereon alleges, that

Plaintiff is informed and believes and based thereon alleges, that

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 4 of 20 Page ID #:4

Plaintiff is informed and believes and based thereon alleges, that

Plaintiff is an inventor, designer, and distributor of his own consumer

18 products for the past 20 years.

Plaintiff made licensing deals with over sixty-one NCAA schools,

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 5 of 20 Page ID #:5

Plaintiff is the founder and president of Pacific Direct, Inc. a

Sometime between 2001 and 2002 Plaintiff contacted Defendant,

9 Target Corporation at their headquarters in Minneapolis to pitch Plaintiffs Product.

Between 2001 and 2015, Plaintiff is informed and believes that

17 Plaintiffs Product has sold over 10 million units worldwide.

The original and creative shape of the plastic handle;

The C shape of the metal opener;

The no-button activation technology;

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The weight and length of the packaging;

The intentional use of a single solid color on every bottle opener;

The original and creative circular design of speaker holes;

The eight speaker holes, with one in the middle;

The placement of speaker holds in the middle of the handle;

The quality of sound;

The length of time each sound plays;

The triggering of the sound by pressure on the metal opener;

Pacific Direct and/or Pacific Productions warranty on the back of each

Taken together, these non-functional, distinctive, original, and arbitrary choices

created Plaintiffs Products protectable trade dress. (hereinafter, Plaintiffs

Plaintiffs Trade Dress listed above serves to identify and distinguish

Plaintiff, has been continuously selling thousands of units each year

Plaintiff has achieved worldwide fame and notoriety for creating

ultimate worldwide success of Plaintiff's Product. During 2009, Ingenious was

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 7 of 20 Page ID #:7

Ingenious is available throughout the world through streaming on

On or around December 2006, Twentieth Century Fox Licensing and

15 Merchandising, a division of Fox Entertainment Group, Inc. and Plaintiff executed a

On or around June 2012, Defendants, Universal Pictures, MRC, MRC

Upon information and belief, Defendant Seth Macfarlane is one of the

On December 12, 2012, Defendant, Universal Studios Home

25 Entertainment released a special edition Blu-Ray/DVD of TED that was packaged

Case 2:15-cv-01359 Document 1 Filed 02/25/15 Page 8 of 20 Page ID #:8

In and around September 2013, Plaintiff became aware of the

Defendants' Infringing Bottle Opener

Plaintiff's Trade Dress

Defendants' Infringing Bottle Opener

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