Beruflich Dokumente
Kultur Dokumente
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12 HASTINGS, CLAYTON & TUCKER, ) Case No. 16-cv-01831-GHK-JEM
)
INC., a Nevada corporation, dba
) FIRST AMENDED COMPLAINT
13 STILETTO ENTERTAINMENT,
) FOR:
)
Plaintiff,
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)
(1) DIRECT AND
)
vs.
CONTRIBUTORY COPYRIGHT
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)
INFRINGEMENT;
)
16 PRINCESS CRUISE LINES, LTD.,
)
WHICH WILL DO BUSINESS IN
(2) DIRECT AND
)
CONTRIBUTORY VIOLATION
17 CALIFORNIA AS PRINCESS
)
CRUISES, a Bermuda corporation;
OF SECTION 43(a) OF LANHAM
TRADEMARK ACT UNFAIR
18 SWANK MOTION PICTURES, INC., a )
Missouri corporation; and DOES 1-10, )
COMPETITION;
)
19 inclusive,
)
(3) UNFAIR COMPETITION;
)
Defendants.
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)
(4) DILUTION AND/OR INJURY
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TO BUSINESS REPUTATION;
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)
and
)
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)
(5) STATUTORY AND
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COMMON LAW RIGHT OF
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)
PUBLICITY
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)
)
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1.
The first and second claims hereof each arise under the Copyright Act
5 of 1976, 17 U.S.C. 101 et seq. This Court has jurisdiction over the subject matter
6 of these claims pursuant to 28 U.S.C. Sections 1331 and 1338(a).
2.
The third and fourth claims hereof arise under the provisions of the
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The fifth, sixth, seventh, and eighth claims hereof each arise under the
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Each of the claims hereof at least in part involve conduct that took
17 place on the high seas. This Court has jurisdiction over the subject matter of such
18 claims pursuant to the provisions of 28 U.S.C. Section 1333.
VENUE IS PROPER
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5.
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21 1391(b) through (c), 1392 and 1400(a), and 18 U.S.C. Section 3238.
THE PARTIES
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6.
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HCT is, and at all times material hereto was, a Nevada corporation
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26 having properly registered that Fictitious Business Name with the California
27 Secretary of State. (As used herein, "Plaintiff" refers to HCT and Stiletto, which are
28 in fact and in law the same entity).
LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
8.
Plaintiff is informed and believes, and upon that basis alleges, that at all
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10.
Barry Manilow writes the songs that make the whole world sing.
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11.
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12.
Born Barry Alan Pincus, Barry Manilow, one of the best selling
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
13.
2 Patent and Trademark Office with Serial Number 73606430; Plaintiff owns that
3 mark. (That mark is referred to herein as Plaintiffs Trademark.)
14.
5 distinctive mark. The mark has developed a distinctive meaning among members of
6 the public, who have come to identify its use as designating music, performances,
7 and services associated with that singer and performer known as Barry Manilow.
15.
Barry Manilow assigned to Plaintiff all of his rights of publicity for use
9 of his name and likeness in connection with the sale of his music, performances, or
10 the marketing of his music or performances.
16.
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12 employing them to perform, as a work made for hire, a concert entitled Barry
13 Manilow: Music and Passion Live from Las Vegas (hereinafter Music and
14 Passion Live).
17.
15
Music and Passion Live is wholly original with Plaintiff and constitutes
16 copyrightable subject matter under the Copyright Act of 1976, 17 U.S.C. 101 et
17 seq.
18.
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Plaintiff owns and controls all right, title and interest in and to Music
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Plaintiff has complied in all respects with the laws governing Music
21 and Passion Live's intellectual property rights and has registered Music and Passion
22 Live with the United States Copyright Office.
20.
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
On information and belief, on an ongoing basis and within the last three
4 years, Swank willfully endeavored to sell Plaintiff's copyrighted work Music and
5 Passion Live and profit from it in this judicial district.
22.
On information and belief, on an ongoing basis and within the last three
7 years, Swank willfully used Plaintiff's Trademark and his likeness and name to
8 solicit sales of Music and Passion Live and profit from it in this judicial district.
23.
10 or consent to market or sell Music and Passion Live, to use Plaintiff's Trademark in
11 the marketing or sale of goods or products, or to use Barry Manilow's name or
12 likeness to sell or market goods or products.
24.
13
Indeed, prior to receiving a cease and desist letter in 2015, Swank never
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Swank intentionally and willfully, within the last three years, and
19 within this judicial district, marketed for sale and sold to, among others, Princess
20 Cruises "rights" to broadcast Music and Passion Live along with copies of that
21 copyrighted work, using Plaintiff's Trademark and Barry Manilow's name and
22 likeness in the solicitation of that sale, all without Plaintiff's authority, permission,
23 or consent.
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27 repeatedly broadcast Music and Passion Live on the lido deck of its cruise ships to
28 entertain its customers.
LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
27.
2 and Barry Manilow's name and likeness to market its broadcasts of Music and
3 Passion Live.
28.
5 broadcasting Music and Passion Live on the lido deck of its ships as a key
6 component of its entertainment of its cruise customers.
29.
8 Cruises that Princess Cruises did not have any rights to broadcast Music and
9 Passion Live on any of its cruise vessels or in any forum for its customers
10 entertainment and consumption, and demanded that it cease and desist from
11 broadcasting Music and Passion Live immediately.
30.
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13 cease and desist, and instead willfully and intentionally continued to broadcast
14 Music and Passion Live on its cruise vessels while, on information and belief,
15 continuing to use Plaintiff's Trademark and Barry Manilow's name and likeness to
16 advertise and market that entertainment.
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22 available live concert footage for repetitive screenings on cruise ships that would
23 provide direct competition to the live concerts it was and is seeking to sell.
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FIRST CLAIM
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-- Against Defendants)
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
34.
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Plaintiff has fully complied with its obligations under the copyright
25 laws, and as stated above Plaintiff has at all times been and still is the sole proprietor
26 of all right, title and interest in and to Music and Passion Live.
40.
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
4 Despite clear requests to Defendants, Defendants, and each of them, willfully and
5 knowingly continued at least certain of their respective unlawful infringing activities.
6 On information and belief, the unlawful infringing activities have now ceased.
42.
8 continuing to suffer, irreparable harm and damage as a result of the aforesaid acts of
9 infringement. Defendants are each liable in amounts within the jurisdiction of this
10 Court.
43.
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These damages include, but are not limited to, the devaluing of Barry
12 Manilow's concert tours Plaintiff is presently producing and that Plaintiff produced
13 at times relevant hereto that Defendants' repetitive broadcasting of Barry Manilow's
14 Music and Passion Live in a public setting competed directly against.
44.
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Plaintiff is informed and believes, and upon that basis alleges, that the
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Plaintiff is informed and believes, and upon that basis alleges, that
22 Defendants have each obtained gains, profits and advantages as a result of their
23 respective wrongful acts in amounts within the jurisdiction of this Court.
46.
24
Plaintiff is informed and believes, and upon that basis alleges, that it
25 has suffered, and is continuing to suffer, direct and actual damages as a result of
26 Defendants wrongful conduct as alleged herein, in amounts within the jurisdiction
27 of this Court. In order to determine the full extent of such damages, including such
28 profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
1 accounting from each Defendant of all monies generated from the manufacture,
2 production, distribution, provision, public performance, licensing, rental and/or sale
3 of infringing goods as alleged herein.
47.
Plaintiff is informed and believes, and upon that basis alleges, that each
5 Defendant's acts as described above are in willful violation of Plaintiffs rights, and
6 statutory damages against each such willfully infringing Defendant in the Courts
7 discretion up to the amount of $150,000.00 for the infringement of Music and
8 Passion Live should be assessed by the Court pursuant to 17 U.S.C. Section
9 504(c)(2).
48.
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11 incur, attorneys fees and other costs in connection with the prosecution of his
12 claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
13 and each of them, herein.
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SECOND CLAIM
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Plaintiff is informed and believes, and upon that basis alleges, that
19 Defendants, and each of them, with knowledge of the infringing activities of their
20 third-party customers and other of the Defendants, as well as with the ability to
21 control the same and the intent to themselves benefit, either directly or indirectly,
22 therefrom, have infringed Plaintiffs copyrights in Music and Passion Live by,
23 among other things, participating in or otherwise knowingly contributing to the
24 manufacture, production, advertisement, display, promotion, marketing, distribution,
25 provision, public performance, offering for license, licensing, offering for rental
26 and/or renting, offering for sale and/or selling within this judicial district and
27 elsewhere Music and Passion Live, and have induced, caused and materially
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
1 contributed to the infringing conduct by such third party customers and other
2 Defendants.
51.
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18 Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
19 that basis alleges, that Defendants, and each of them, have willfully and knowingly
20 undertaken and continued at least certain of their unlawful infringing activity.
56.
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Plaintiff is informed and believes, and upon that basis alleges, that the
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1 Plaintiffs rights under the Copyright Laws of the United States, 17 U.S.C. Section
2 101 et seq.
58.
Plaintiff is informed and believes, and upon that basis alleges, that
Plaintiff is informed and believes, and upon that basis alleges, that he
8 has suffered, and is continuing to suffer, direct and actual damages as a result of
9 Defendants wrongful conduct as alleged herein, in amounts within the jurisdiction
10 of this Court. In order to determine the full extent of such damages, including such
11 profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
12 accounting from each Defendant of all monies generated from the manufacture,
13 production, importation, exportation, distribution, provision, public performance,
14 licensing, rental and/or sale of infringing goods and/or services as alleged herein.
60.
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Plaintiff is informed and believes, and upon that basis alleges, that each
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22 incur, attorneys fees and other costs in connection with the prosecution of his
23 claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
24 and each of them, herein.
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
11
THIRD CLAIM
8 Trademark.
64.
10 rights associated with use of his name, his likeness, his reputation and his goodwill.
65.
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12 distinctive mark. The mark has developed a distinctive meaning among members of
13 the public, who have come to identify its use as designating goods, performances,
14 and services endorsed by that singer and performer known as Barry Manilow.
66.
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16 licensing, and broadcast of Music and Passion Live. Plaintiff did not know of this
17 solicitation, sale, licensing and broadcast, did not approve of it and did not endorse
18 it.
67.
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20 goodwill and reputation of Plaintiff and of Barry Manilow, and, thus, the value of
21 Plaintiff's Trademark.
68.
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23 gain and advantage constitute acts of unfair competition and false representation of
24 affiliation, all in violation of Section 43(a) of the Lanham Trademark Act, 15 U.S.C.
25 1125(a), as amended. Plaintiff is informed and believes, and upon that basis
26 alleges, that each Defendants respective acts of reputational appropriation and
27 unfair competition was willful and intentional.
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
12
69.
2 competition, and each of them, have enabled Defendants, and each of them, to trade
3 unlawfully upon the established goodwill, reputation and artistic skill of Plaintiff
4 and Barry Manilow and upon the value and worth of Plaintiff's Trademark.
70.
6 the expense and to the damage and injury of Plaintiff, of Barry Manilow, and of
7 Plaintiff's Trademark.
71.
9 has caused, and unless restrained will continue to cause, serious irreparable injury to
10 Plaintiff.
72.
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Plaintiff is informed and believes, and upon that basis alleges, that
12 Defendants, and each of them, have willfully and knowingly continued at least
13 certain of their wrongful conduct in violation of Plaintiffs rights through the date of
14 the filing of this First Amended Complaint.
73.
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Plaintiff is informed and believes, and upon that basis alleges, that
21 unless enjoined by the Court, the unfair competition and false representation of
22 affiliation noted above, and the likelihood thereof, will continue with irreparable
23 harm and damage to Plaintiff. Accordingly, Plaintiff seeks preliminary and
24 permanent injunctive relief pursuant to 15 U.S.C. Section 1116.
75.
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Plaintiff is informed and believes, and upon that basis alleges, that
26 Defendants have each obtained gains, profits and advantages as a result of their
27 wrongful acts of federal unfair competition in amounts thus far not determined but
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1 within the jurisdiction of this Court, which amounts should each be trebled pursuant
2 to 15 U.S.C. Section 1117.
76.
8 incur, attorneys fees and other costs in connection with the prosecution of his
9 claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from the
10 Defendants, and each of them, herein.
78.
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FOURTH CLAIM
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Plaintiff is informed and believes, and upon that basis alleges, that
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28 unauthorized and unlawful act of federal unfair competition, and each of them, have
LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1 enabled, assisted, aided and abetted the these third-parties to trade unlawfully upon
2 the established goodwill and reputation of Plaintiff, of Barry Manilow, and of
3 Plaintiff's Trademark.
83.
5 and to the damage and injury of Plaintiff, and unless enjoined by this Court will
6 further impair the value of Plaintiffs Trademark and goodwill.
84.
8 customers of Plaintiffs Trademark, and/or the likenesses thereof, has caused, and
9 unless restrained will continue to cause, serious irreparable injury to Plaintiff.
85.
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16 Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
17 that basis alleges, that Defendants willfully and knowingly continued at least certain
18 of their wrongful conduct in violation of Plaintiffs rights well after they were
19 notified of their illegal and infringing activity.
87.
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Plaintiff is informed and believes, and upon that basis alleges, that
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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89.
2 incur, attorneys fees and other costs in connection with the prosecution of his
3 claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from
4 Defendants herein.
90.
FIFTH CLAIM
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13 Trademark.
93.
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15 rights associated with use of his name, his likeness, his reputation and his goodwill.
94.
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17 and profited from Plaintiff's Trademark, Barry Manilow's name, his likeness, his
18 reputation and his goodwill by using each of the same to sell products, to promote
19 their own products, including Princess Cruises' entertainment offerings on its cruise
20 lines and Swank's catalog of entertainment titles, and to benefit from their affiliation
21 with them.
95.
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Plaintiff is informed and believes, and upon that basis alleges, that
27 these deceptive, unfair and fraudulent practices have been undertaken with
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
16
Plaintiff is informed and believes, and upon that basis alleges, that
10 Defendants have each unlawfully and wrongfully derived, and will continue to
11 derive, income, gains, profits and advantages as a result of their wrongful acts of
12 unfair competition in amounts thus far not determined but within the jurisdiction of
13 this Court.
100. In addition, Plaintiff is informed and believes, and upon that basis
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15 alleges, that it has lost and will continue to lose profits and goodwill as a result of
16 Defendants respective conduct.
101. By reason of the foregoing acts of unfair competition, Plaintiff is
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18 entitled to restitution from each Defendant of all income, gains, profits and
19 advantages resulting from their wrongful conduct in amounts to be determined
20 according to proof at trial.
102. In order to determine the full extent of such damages, including such
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25 Defendants, and each of them, committed the acts alleged herein intentionally,
26 fraudulently, maliciously, willfully, wantonly and oppressively with intent to injure
27 Plaintiff in his business and with conscious disregard of Plaintiffs rights, thereby
28 justifying awards of punitive and exemplary damages against each Defendant.
LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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SIXTH CLAIM
7 and Passion Live, and each of them, are entitled to protection pursuant to Section
8 14330 of the California Business and Professions Code.
106. Each Defendants unauthorized appropriation(s) of part or all of
10 Plaintiffs Trademark and copyrighted product Music and Passion Live, as alleged
11 hereinabove, which are each valid at common law, are acts likely to injure
12 Plaintiffs business reputation and/or dilute the distinctive quality of Plaintiffs
13 trademark interests, and each Defendants unauthorized acts should be enjoined
14 pursuant to California Business and Professions Code Section 14330 as a result
15 thereof.
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SEVENTH CLAIM
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22 rights associated with use of his name, his likeness, his reputation and his goodwill.
109. On information and belief, Swank used Barry Manilow's name, voice,
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24 photograph and/or likeness to market Music and Passion Live and sell, license
25 and/or rent it to consumers, including Princess Cruises.
110. Swank did not have Plaintiff's or Barry Manilow's authority,
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1 Music and Passion Live and sell, license and/or rent it to consumers, including
2 Princess Cruises.
111. Swank profited from this unauthorized use of Barry Manilow's name,
9 permission or consent to use his name, voice, photograph or likeness to market the
10 entertainment offerings on board its ship(s).
114. Princess Cruises profited from this unauthorized use of Barry
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EIGHTH CLAIM
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27 rights associated with use of his name, his likeness, his reputation and his goodwill.
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
19
120. On information and belief, Swank used Barry Manilow's name, voice,
2 photograph and/or likeness to market Music and Passion Live and sell, license
3 and/or rent it to consumers, including Princess Cruises.
121. Swank did not have Plaintiff's or Barry Manilow's authority,
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14 permission or consent to use his name, voice, photograph or likeness to market the
15 entertainment offerings on board its ship(s).
125. Princess Cruises profited from this unauthorized use of Barry
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19 by using Barry Manilow's name, voice, photograph, and/or likeness as part of their
20 respective entertainment portfolios without his authority, permission or consent.
127. As a result of Defendants' actions, Plaintiff has suffered, and continues
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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For a full and complete accounting from each Defendant of all infringing
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ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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1 furthermore, that such profits and damages as found herein be trebled pursuant to 15
2 U.S.C. Section 1117;
e.
8 with California Business and Professions Code Sections 14330 and/or 17200 et seq.
7.
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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10. That Plaintiff recover its costs and disbursements incurred in this action,
6 proper.
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8 DATED: March 22, 2016
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By:
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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3 CLAYTON & TUCKER, INC. hereby demands trial by jury of all issues so triable.
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5 DATED: March 22, 2016
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By:
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LAW OFFICES
ROSENFELD,
MEYER &
SUSMAN LLP
508028.01
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