Case 1:18-cv-02460 Document 1 Filed 09/26/18 USDC Colorado Page 1 of 14

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 1:18-cv-02460

PAIGE HATHAWAY,
Plaintiff,
v.
MILLION DOLLAR CORPORATION
d/b/a/ Dandy Dan’s a/k/a Dandy Dan’s
Gentlemen’s Club,

Defendant.

COMPLAINT AND JURY DEMAND

Plaintiff, Paige Hathaway, by and through her attorneys, BURG SIMPSON ELDREDGE

HERSH & JARDINE, P.C., hereby submits her Complaint and Jury Demand against Defendant

Million Dollar Corporation d/b/a Dandy Dan’s a/k/a Dandy Dan’s Gentlemen’s Club, and alleges

and avers as follows:

INTRODUCTION

1. This is an action for damages and other relief under The Lanham Act arising from

the misappropriation, misuse, and alteration of Plaintiff’s image by Defendant in order to

promote its strip club, Dandy Dan’s.

2. Defendant uses its Dandy Dan’s website and online social media marketing

platforms to market and advertise Dandy Dan’s as being “the best adult entertainment in town,”

with a “talented and beautiful staff” that “is dedicated to providing you with the highest quality
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services around,” and touting “a hundred gorgeous topless ladies to satisfy your dreams and

fantasy’s [sic].”

3. As a means of illustrating those claims and in an effort to drive traffic and

economic and commercial benefits to Dandy Dan’s, Defendant posted pictures of many women

on its website and social media platforms, including on Dandy Dan’s Instagram web-page.

4. To promote Dandy Dan’s, and in furtherance of Defendant’s commercial benefit,

Defendant posted, and then continually maintained on its Instagram account, an image of

Plaintiff telling customers to “Celebrate that win with a night out at #dandydans!, with

accompanying hashtags, including “#dancers #denver #colorado #ladies #guysnightout #models

#party #nightlife #babes.”

5. The use of Plaintiff’s image, as referred to in the preceding paragraph, created a

false impression that Plaintiff worked at, would appear at, endorsed, sponsored, or was affiliated

with Dandy Dan’s.

6. Plaintiff is not employed by Dandy Dan’s, does not strip or dance at Dandy

Dan’s, does not endorse or sponsor Dandy Dan’s or its promotional activities, and is not

affiliated with Dandy Dan’s in any way.

7. Defendant did not have Plaintiff’s permission to use her image or likeness, nor did

Defendant ever request permission.

8. Defendant has not compensated Plaintiff for the use of her image or likeness for

commercial and/or other purposes.

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9. Defendant knew that its use of Plaintiff’s image and likeness was unauthorized,

and knew that its use of Plaintiff’s image would cause consumer confusion as to Plaintiff’s

sponsorship, approval of, affiliation with, and/or employment at Dandy Dan’s.

10. Defendant’s unauthorized use of the Plaintiff’s image, likeness and/or identity, as

described herein, violates Section 43 of the Lanham Act, 15 U.S.C. §1125(a).

11. This action seeks all actual and compensatory damages as compensation for

Defendant’s unlawful activities, the Defendant’s profits that are attributable to its unlawful use of

Plaintiff’s images, likenesses, and identities, treble damages, attorney’s fees and costs, and other

such relief as would be fair and just to remedy Defendant’s unlawful acts, and to ensure that no

such violations occur in the future.

PARTIES

12. Paige Hathaway is an internationally known and recognizable talent, model,

fitness celebrity, entrepreneur, and social media personality residing in Los Angeles, California.

13. Defendant Million Dollar Corporation d/b/a Dandy Dan’s a/k/a Dandy Dan’s

Gentlemen’s Club is a Colorado corporation, with a principal place of business and registered

agent at 214 S Federal Blvd., Denver, CO 80219.

14. Defendant owns and operates a strip club in Denver, Colorado, called Dandy

Dan’s.

JURISDICTION AND VENUE

15. Jurisdiction in this case is based upon 28 U.S.C. § 1331, because Plaintiff’s

claims arise under 15 U.S.C. § 1125(a) (The Lanham Act).

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16. The Court has personal jurisdiction over Defendant by virtue of its presence and

operations in Colorado, its state of creation and its principle place of business, by its transacting

business in Colorado, and by virtue of its improper acts and violations of The Lanham Act in this

state, all of which has caused Plaintiff damages, and through regular, continuous, and systematic

contacts with Colorado such that this Court’s exercise of personal jurisdiction over Defendant is

proper, reasonable, and comports with traditional notions of fair play and substantial justice.

17. Venue is proper in this Court because the Defendant resides in this district,

Defendant is subject to personal jurisdiction in this venue, and this district is where a substantial

part of the events or omissions giving rise to the claims stated herein occurred.

GENERAL ALLEGATIONS

Defendant’s Use of Website and Social Media Platforms for Marketing

18. The Defendant coordinates the advertising, marketing and promotional activities

for Dandy Dan’s through, among other things, active and dynamic use of Dandy Dan’s website

and various coordinated social media promotions through Facebook, Instagram, and Twitter,

(“social media sites”), among others.

19. Defendant’s marketing and promotional activities are publicly accessible through

the World Wide Web, various social media outlets, and affirmative prospect marketing.

20. Defendant further promotes Dandy Dan’s business by and through the use of

marketing strategies and channels including, but not limited to, the following: the active use of

social media sites such as Instagram, Facebook, and Twitter.

21. At all times relevant to this Complaint, Defendant had actual and exclusive

control over the contents contained within and/or displayed on each of these marketing channels.

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22. Upon information and belief, Defendant manages, operates and/or controls an

“Instagram account” (accessible via the Instagram Social Media Platform: Instagram at

https://www.instagram.com/dandydanstopless/) through which it promotes, endorses, and

markets its business, solicits customers, and advertises events for the Dandy Dan’s strip club,

and particularly through the use of images of women in various stages of undress.

23. Defendant has at all times relevant to this Complaint exercised actual control over

the contents displayed on its Instagram account through its own personal acts of posting items on

the account, or by expressly permitting and condoning another person’s act of posting items on

the Instagram account.

24. The Dandy Dan’s Instagram page/account identifies Dandy Dan’s as being “the

best adult entertainment in town” with a “talented and beautiful staff” that “is dedicated to

providing you with the highest quality services around.”

Plaintiff Is a Professional Model and Her Image Is Commercially Valuable

25. Plaintiff Paige Hathaway, at all times relevant to the claims herein, is a

professional talent, model, fitness celebrity, entrepreneur, social media personality, and

influencer who earns her living by, inter alia, modeling and selling her image to companies and

individuals for the advertisement of products and services.

26. Plaintiff’s career in modeling and private enterprise has value stemming from the

goodwill and reputation she has built.

27. Plaintiff’s goodwill and reputation are critical to establishing a brand, being

selected for jobs, and maximizing earnings.

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28. A model’s reputation directly impacts the commercial value associated with the

use of one’s image, likeness, or identity to promote a product or service.

29. Plaintiff’s image and likeness have high commercial value and Plaintiff

commands substantial sums of money for the licensed commercial use of her image.

30. Plaintiff is a professional model in the ordinary course; she seeks to control the

commercial use and dissemination of her image and identity, and, thus, actively participates in

vetting and selecting modeling, advertising, brand spokesperson, and/or hosting engagements.

31. Plaintiff relies on her professional reputation and own brand for modeling, hosting

and other professional opportunities.

32. Plaintiff’s vetting and selection of professional engagements involves a multi-

tiered assessment, to wit:

a. whether the individual or entity seeking a license and release of Plaintiff’s

image, likeness or identity is reputable, has reputable products or

services, and, through affiliation therewith, would enhance or harm a her

stature or reputation;

b. this reputational information is used in negotiating compensation which

typically turns on the work Plaintiff is hired to do, the time involved, travel

and how her image is going to be used (among other variables);

c. to protect her reputation and livelihood, Plaintiff and/or her agent carefully

and expressly define the terms and conditions of use;

d. the entire negotiated deal is reduced to and memorialized in an integrated,

written agreement that defines the parties’ relationship, the terms and

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conditions of which, typically, unless otherwise expressly delineated, bind and

are applicable to only the parties to that Agreement.

33. In the modeling industry, reputation is critical; endorsing, promoting, advertising

or marketing the “wrong” product, brand, business, or service, or working in a disreputable

industry, can severely impact a model’s career by limiting or foreclosing future modeling or

brand endorsement opportunities.

34. Conversely, association with high-end companies, products, or magazines can

enhance and amplify a model’s earning potential and career opportunities by making a model

more sought after and desirable.

35. As set forth below, Plaintiff’s image was misappropriated by or at the direction of

the Defendant to advertise and promote Dandy Dan’s in its online marketing scheme without

Plaintiff’s consent.

The Misappropriated Images

36. On September 27, 2015, without her knowledge, consent, or authorization,

Defendant posted Plaintiff’s image on Defendant’s Instagram site for the purpose of advertising

and promoting Defendant’s strip club and soliciting patronage of Dandy Dan’s.

37. Attached as Exhibit 1 is a copy of Defendant’s use of Plaintiff’s image and

likeness on its Instagram web-page, which is hereby incorporated by reference.

38. After Defendant used Plaintiff’s image on its Instagram site, Plaintiff discovered

that Defendant was knowingly and without prior consent, using her image.

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39. Defendant’s use of Plaintiff’s image and likeness on Defendant’s Instagram site

falsely implies and creates the impression that Plaintiff has worked for, would appear at, has

endorsed, or is otherwise affiliated with Dandy Dan’s.

40. Defendant’s use was unauthorized and for a commercial purpose to attract

clientele and lure customers, promote Dandy Dan’s, and generate revenue for the Defendant.

41. Plaintiff is readily identifiable in the misappropriated image, and Defendant could

not reasonably believe that Plaintiff was an employee or agent of the Defendant or otherwise

affiliated with the Defendant.

42. Defendant has never contacted the Plaintiff, either directly or indirectly, to request

permission to use her image, likeness, or identity.

43. Defendant never hired or contracted with Plaintiff to advertise, promote, market

or endorse Dandy Dan’s.

44. Plaintiff has never been employed by Defendant or contracted with Defendant to

participate in events at Dandy Dan’s.

45. Defendant never sought permission or authority to use Plaintiff’s image, likeness,

or identity to advertise, promote, market, or endorse Dandy Dan’s.

46. Plaintiff never gave permission, or assigned, licensed, or otherwise consented, to

Defendant’s use of her image, likeness, or identity to advertise, promote, market or endorse

Dandy Dan’s.

47. Defendant neither offered nor paid any remuneration to Plaintiff for the

unauthorized use and misappropriation of her image, likeness, or identity.

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48. Defendant’s use of Plaintiff’s image create the false perception that Plaintiff

worked for Dandy Dan’s, would appear at Dandy Dan’s, or had consented or agreed to promote,

advertise, market and/or endorse Dandy Dan’s and its events to the benefit of Defendant’s

commercial interests.

49. Defendant’s use of Plaintiff’s image, likeness, and/or identity impugns the

Plaintiff’s character, embarrasses her, and falsely suggests her support for and participation in a

strip club lifestyle, causing Plaintiff damages.

FIRST CAUSE OF ACTION

Violation of the Lanham Act, 15 U.S.C. § 1125(a)
False Advertising and False Endorsement

50. Plaintiff hereby incorporates by reference each and every allegation set forth in

the foregoing paragraphs as if fully alleged herein.

51. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), applies to Defendant.

52. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), protects Plaintiff from the

Defendant’s conduct described herein.

53. Defendant used Plaintiff’s image, likeness, and/or identity as described herein

without authority in order to, inter alia, create the false perception that the Plaintiff worked at,

would appear at, or was otherwise affiliated with Dandy Dan’s, endorsed Dandy Dan’s or Dandy

Dan’s business activities, and/or consented to or authorized Defendant’s usage of her image,

likeness, and/or identity in order to advertise, promote and market Dandy Dan’s business

activities.

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54. Defendant’s use of the Plaintiff’s image, likeness and/or identity to advertise,

promote, and market Defendant’s business, events and activities as described in this Complaint

was false, misleading and a misrepresentation of fact.

55. Defendant’s unauthorized use of the Plaintiff’s image, likeness, and/or identity as

described herein constitutes false advertising and false endorsement by falsely suggesting or

implying, inter alia, that the Plaintiff worked at or was otherwise affiliated with, associated with,

or connected to, Dandy Dan’s, endorsed Dandy Dan’s business, events or activities, or consented

to or authorized Dandy Dan’s usage of her image in order to advertise, promote, and market

Dandy Dan’s business, events and activities.

56. The manner of the Defendant’s unauthorized use of the Plaintiff’s image,

likeness, and/or identity has a tendency to convey a false impression, confuse, mislead, and/or

deceive consumers, including actual and prospective patrons to Dandy Dan’s, as to the general

quality of attendees and participants at Dandy Dan’s and in its events, as well as specifically

whether the Plaintiff worked at or was otherwise affiliated or associated with Dandy Dan’s, and

whether the Plaintiff endorsed, sponsored, or approved of Defendant’s business, Dandy Dan’s, or

Dandy Dan’s events or activities, or whether Plaintiff would appear in person at Dandy Dan’s

events and activities.

57. Upon information and belief, Defendant’s false and deceptive use of Plaintiff’s

image did, in fact, deceive, and/or cause actual consumer confusion as to:

a. whether the Plaintiff worked at, would appear at, or was otherwise affiliated or

associated with Dandy Dan’s;

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b. whether the Plaintiff endorsed, sponsored, or approved of Defendant’s

business, events and activities; and

c. whether the Plaintiff consented to or authorized Dandy Dan’s usage of her

image, likeness, and/or identities in order to advertise and promote

Defendant’s business, events and activities.

58. Upon information and belief, such unauthorized use of Plaintiff’s image, likeness,

and/or identity misled and deceived consumers, and served to entice consumers and prospective

consumers to visit Dandy Dan’s and participate in and attend events at Dandy Dan’s and had a

material effect and impact on the decision of patrons and prospective patrons to visit Defendant’s

business establishment.

59. Defendant’s advertisements, promotions, and marketing of Dandy Dan’s and

events at Dandy Dan’s occur in and are targeted to interstate commerce.

60. Defendant promotes its business and events through interstate promotions and

campaigns to target persons from several different states across the United States.

61. Defendant principally uses the internet, World Wide Web, social media, and other

vehicles of interstate commerce to advertise, market, promote, and entice or lure traffic and

patronage to its establishment and increase revenue.

62. Defendant’s unauthorized use of the Plaintiff’s image, likeness, and/or identity as

described herein was designed and intended to benefit Defendant’s commercial and business

interests by, among other things, capitalizing on Plaintiff’s goodwill by promoting Dandy Dan’s

and its activities and attracting clientele to Dandy Dan’s, thereby generating revenue for the

Defendant to the detriment of the Plaintiff.

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63. Plaintiff is in the business of commercializing her identity and selling her image

to reputable brands and companies for profit.

64. Defendant’s customers are the same demographic that view Plaintiff’s images in

print and online.

65. Both Plaintiff and the Defendant compete in the entertainment industry and utilize

similar marketing channels, their respective endeavors overlap, and they vie for the same dollars

from the same demographic consumer group.

66. As such, an unauthorized use of Plaintiff’s image to promote a strip club created

an undeniable confusion in Defendant’s consumers’ minds, leading to competitive injury to

Plaintiff.

67. Defendant knew or should have known that its unauthorized use of the Plaintiff’s

image, likeness, and/or identity would cause consumer confusion as described herein.

68. Defendant’s unauthorized use and alteration of the Plaintiff’s image, likeness,

and/or identity, as described herein, violates 15 U.S.C. §1125(a), constitutes false advertising and

false endorsement, and was wrongful.

69. Defendant’s wrongful conduct as described herein was willful.

70. Defendant had actual or constructive knowledge of the wrongfulness of its

conduct, acted with intent to capitalize on Plaintiff’s goodwill and deprive the Plaintiff of her

interests and rights, and further acted with actual or constructive knowledge of the high

probability that injury or damage would result to Plaintiff.

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71. The method and manner in which Defendant used the image of Plaintiff further

evinces that Defendant was aware of and/or consciously disregarded the fact that the Plaintiff did

not consent to Defendant’s use of her image to advertise Defendant’s business.

72. Defendant has caused and will continue to cause irreparable harm and damage to

the Plaintiff, her reputation, and her brand, by attributing to the Plaintiff her involvement with or

endorsement of Dandy Dan’s strip club and Plaintiff’s association with events and activities

relating thereto.

73. Defendant has damaged Plaintiff as a direct, foreseeable, and proximate result of

its unauthorized use of Plaintiff’s image, likeness, and/or identity without compensating Plaintiff,

thereby entitling Plaintiff to recover in money damages the actual and fair market value of each

misappropriated use of her image and likeness in an amount to be established by proof at trial.

74. As a further direct and proximate result of Defendant’s conduct as alleged herein,

Defendant has earned and withheld profits attributable directly or indirectly to the unlawful use

of Plaintiff’s image, entitling Plaintiff to disgorgement of those ill-gotten gains in an amount to

be established by proof at trial.

75. Defendant’s conduct was purposeful and malicious in that Defendant knowingly

violated Plaintiff’s rights solely to benefit its business, increase profits, and avoid paying money

to legally acquire the right to commercial use of the Plaintiff’s image and likeness.

76. Consequently, exceptional relief is warranted pursuant to 15 U.S.C. §§ 1116, and

1117(a), entitling Plaintiff to treble damages and reasonable attorneys’ fees.

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PRAYOR FOR RELIEF

WHEREFORE, the Plaintiff prays for judgment against the Defendant for relief in

amounts to be determined at trial, as follows:

1. All compensatory, general, special, and consequential damages;

2. All damages allowed by 15 U.S.C. §§ 1125, 1116, and 1117, including all actual and

consequential damages sustained by Plaintiff, including all economic damages and

losses, disgorgement of profits attributable to Defendant’s misappropriation of the

Plaintiff’s image and likeness, and well as treble damages and reasonable attorney’s

fees;

3. Pre and post judgment interest;

4. Costs and expenses, including expert fees and costs;

5. For such further and other relief as the Court deems just.

JURY TRIAL DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.

Respectfully submitted this 26th day of September, 2018.

BURG SIMPSON
ELDREGE HERSH & JARDINE, P.C.

(Original signature on file at the offices of

Burg Simpson Eldredge Hersh & Jardine, P.C.)

s/ Steven G. Greenlee
Steven G. Greenlee, Reg. No. 24577
Shane Fulton, Reg. No. 52212
40 Inverness Drive East
Englewood, CO 80112
Phone: 303-792-5595
sgreenlee@burgsimpson.com
sfulton@burgsimpson.com

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