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2
portraying themselves as the rightful successors to American Academy’s product, namely
childbirth education using the Bradley Method. All this has been done with blazing
speed. The Thomases hatched their scheme less than three months ago. But they have
capitalized on their superior facility with social networking sites and other web-based
resources to paint a façade of legitimacy on an otherwise phony and penniless company.
Disturbingly, their gambit has been paying off. American Academy’s instructors—
accepting the Thomases’ misleading claims to have rightful ownership of plaintiffs’
intellectual property—have been breaking their contracts with American Academy and
defecting to the Thomases’ nascent entity, defendant Brio Birth, LLC, which has been
doing business as “Bradley Reborn.”
3. In a series of recorded telephone conversations, Kyle Thomas was
surprisingly frank about his illicit intentions, declaring unequivocally at one point: “I
will be taking the Bradley teachers and devaluing their brand.” In a subsequent
conversation, after his bid to buy out American Academy with doubtful financing
foundered, he raged:
“Their company is not going to be worth anything anymore. Because when we get their trademarks taken away . . . they will not be able to use the Bradley name ever again in their lives. They won’t have a company. Their company won’t exist. They’ll have no trademarks. They’ll have nothing. . . . Let me put it this way, my mentor is a billionaire. . . . All he has to do is send one of his lawyers to that courtroom, which are the ones that I have, they go in, they walk in, and say, ‘hey, I need this taken care of,’ and it’s done.” 4. All this would amount to little more than the ravings of one suffering
delusions of grandeur if it were not having an immediate and significant effect on
American Academy’s business. But it is. Beguiled by the Thomases’ digital
prestidigitation, and wooed by false promises of extravagant financing and lawful rights
3
to the Bradley name, American Academy’s current and potential instructors have been
leaving. With all instructors’ contracts due to expire on December 31st, and with the
Thomases making an aggressive play for their defections, time is of the essence.
II. PARTIES, JURISDICTION AND VENUE
5. Plaintiff American Academy is a California general partnership.
6. Defendant Kyle Thomas is a Colorado resident whose address is 7726 S.
Harrison Circle, Centennial, CO 80122. This is a home owned by the parents of his wife
Naomi. Until recently, Kyle Thomas’s main occupation appears to have been as a life
coach for those seeking “personal and professional improvement.” In November 2007,
he founded Brio Systems, Inc., with the goal “to provide the knowledge every individual
needs to identify their passions, so they can find joy through improvement and
accomplishment.” Mr. Thomas’s role, apparently, was to teach “the core beliefs of Brio
expressed through 4 facts of life” and to guide others through “the Improvement Cycle.”
Along with his work with Brio Systems, Mr. Thomas also worked as a “Career Coach”
with LDS Employment Resource Services. His resume indicates that in September 2010
he became “Interim President” of “Bradley Reborn, LLC,” although no such limited
liability company exists.
7. Defendant Naomi Thomas is a Colorado resident whose address is 7726 S.
Harrison Circle, Centennial, CO 801222. Naomi Thomas first became an American
Academy instructor in August 2005 under the name Naomi Mangone, which was the
surname of her first husband. Although Naomi Thomas did not use the Bradley Method
in the birth of her first child, she wanted to become a Bradley instructor, which American
Academy permitted. She has served as an American Academy instructor since 2005,
4
although not without controversy. On October 26, 2009, American Academy sent a
notice to her under the name Naomi Carroll, her maiden name which she was using at the
time. In this notice, American Academy suspended her for misrepresenting information
on her website, including stating that she has “taught over 150 couples” when in reality
she taught only eight students. This apparently left a bitter taste in her mouth, leading her
in September 2010 to publicly complain about American Academy, saying she “just
couldn’t deal with them pulling my certification at their whim.” She married her second
husband, Kyle Thomas, in late January 2010 and gave birth to her second child in July.
In addition to her work for American Academy, Ms. Thomas also works as a doula in the
Denver area. Here too her work has engendered significant controversy, leading at least
two area hospitals to revoke her privileges. She is currently listed on the Bradley Reborn
website as the “VP Social Networking.” In this capacity, she has been instrumental in
executing defendants’ misleading but effective web strategy. She has also sought
successfully the assistance of her brother Wayne Carroll, who has held himself forth to
American Academy instructors as an Intellectual Property lawyer in Arizona. In that
capacity, he has produced a web-based seminar, or webinar, published on Bradley
Reborn’s website that purports to inform American Academy instructors that defendants
will prevail in any legal action prosecuted by American Academy.
8. Defendant Ellen Contard is a Colorado resident whose address is 588 S.
Joplin St., Aurora, CO 80013. She is listed on the Bradley Reborn website as “VP
Educational Development.”
9. Defendant Brio Birth, LLC is a Colorado limited liability company with
its principal place of business as 9777 Pyramid Ct., Suite 220, Englewood, CO 80112.
5
10. Venue is proper in this judicial district under 28 U.S.C. § 1391(a) and (b)
because Defendants are subject to personal jurisdiction in this judicial district, and this is
the district in which events giving rise to the claims hereinafter set forth occurred.
11. This Court has jurisdiction pursuant to 15 U.S.C. § 1121 (action arising
under the Lanham Act); 15 U.S.C. §§ 1116 and 1121; 28 U.S.C. §§ 1331 (federal
question); 28 U.S.C. § 1338(a) (any Act of Congress relating to trademarks); 28 U.S.C. §
1338(b) (action asserting a claim of unfair competition joined with a substantial and
related claim under the trademark laws).
III. GENERAL ALLEGATIONS
A. History of the American Academy
12. Dr. Robert A. Bradley pioneered elements of the childbirth experience that
today seem commonplace: the presence of husbands in the delivery room, breastfeeding
immediately after birth, and unmedicated delivery. This revolution in childbirth began
with Dr. Bradley’s book, Husband-Coached Childbirth.
13. On a speaking tour in 1965 following the publication of his book, Dr.
Bradley met Marjie and Jay Hathaway. Impressed by his ideas, the Hathaways flew from
Los Angeles to Denver in order to deliver their fourth child, James, under Dr. Bradley’s
care. With Dr. Bradley’s encouragement, the Hathaways returned to California and
developed a curriculum for teaching parents’ how to employ Dr. Bradley’s principles.
Their curriculum included instruction on, among other things, exercise, nutrition, the role
of the husband as coach, and relaxation techniques during labor. The Hathaways’
curriculum became the vehicle for teaching “The Bradley Method.”
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14. In 1970, Dr. Bradley and the Hathaways co-founded the American
Academy of Husband-Coached Childbirth, the plaintiff in this action. Since its inception,
American Academy has trained and certified local instructors in how to teach couples to
give birth using the Bradley Method. Today, over nine hundred instructors are affiliated
with American Academy, with more added each year through American Academy’s
workshops.
15. On April 23, 1975, American Academy submitted an application to the
United States Patent and Trademark Office (“USPTO”) for registration of THE
BRADLEY METHOD. In conjunction with its application, Dr. Bradley submitted a
letter in which he expressed his desire for American Academy to use the BRADLEY
name for conducting courses and workshops relating to childbirth training. A copy of the
letter is attached hereto as Exhibit 1. In this letter, Dr. Bradley wrote on behalf of
American Academy: “As we have spread into an organization of national scope our
name has become a more valuable property and we seek to protect it by adding U.S.
Patent office registration . . . . We fear that the public will find it difficult to clearly
distinguish between the classes we teach and others, and wish to use this Service
mark to identify our services and distinguish them from those manufactured or sold
[taught] by others.” In other words, to ensure that both his name and the method
developed by the Hathaways using his principles would be associated only with classes
taught by American Academy and no other organization, Dr. Bradley sought the
protection of the patent office.
16. On August 22, 1978, American Academy was issued United States
Trademark Registration Number 1,053,037 for the trademarked words “THE BRADLEY
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METHOD.” The registration was for “educational services-namely, conducting courses
and workshops relating to childbirth training for instructors in the field, and for
prospective parents.”
17. Since August 22, 1978, American Academy has used the mark
continuously and without interruption in connection with the services described above.
In addition, since 1971, American Academy has continuously used the mark and trade
name BRADLEY in connection with its educational services, including conducting
courses and workshops relating to childbirth education and training. The BRADLEY
mark is a famous mark, broadly recognized as an identifier for American Academy’s
services provided under that mark. Since 1971, American Academy has invested
substantial resources in advertising, marketing, and promoting THE BRADLEY
METHOD and the BRADLEY brand and designated services, including childbirth
education and training. American Academy has attained a substantial measure of
goodwill and has become a highly-regarded name in childbirth education. American
Academy has a long-established presence in the childbirth education and training
industry.
18. On April 3, 2001, after an oversight in the submission of paperwork,
American Academy was issued United States Trademark Registration No. 2,441,008 for
the trademark words “THE BRADLEY METHOD.” The registration is in Class 41 and
for “educational services-namely, conducting courses and workshops relating to
childbirth training for instructors in the field, and for prospective parents.” A copy of the
Certificate of Registration is attached hereto as Exhibit 2.
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19. On January 18, 1996, American Academy registered the domain name
www.bradleybirth.com to provide visitors to its website access to information and
resources relating to The Bradley Method. Via this website, American Academy
advertises its services, transacts business with its current and prospective teachers, offers
its teachers and others access to information regarding its services, and provides support,
among other things.
B. Defendants’ Illicit Conduct—Maneuvering Behind-the-Scenes
20. According to their own website, in the fall of 2010 the Thomases became
“deeply concerned about the direction” of American Academy and “saw that this was
time for action and that there was something very real that could be done.” So, “Naomi
quickly made contact with Ellen Contard and in no time, the three of them began to plan
and discuss what could be done to change the current status of Bradley.”
21. What emerged was a scheme to lure American Academy instructors away
with false assurances that the Thomases had the lawful right to teach the Bradley Method,
using the Bradley name, backed by millions of dollars in investor funds while putting in
place what by all appearances is a classic pyramid scheme. Knowing that they had
nothing of distinct value to offer, defendants realized they could not compete so long as
Plaintiff possessed the considerable goodwill stored in the BRADLEY marks. So rather
than offer a product that differed in substance from Plaintiff, they elected instead to
deprive Plaintiff of the value of its intellectual property.
22. In September 2010, defendants obtained a listing of certified teachers in
The Bradley Method from the member directory contained on American Academy’s
website. Using contact information gleaned from that listing, defendants sent out a
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survey, on September 18th, called “Bradley Teacher Survey 2010,” to all instructors
under contract with American Academy. According to defendants, “in just seven days
over 300 teachers responded to the survey.” The purpose of the survey was to discover
the ways in which instructors were dissatisfied with American Academy and to then
exploit that information to defendants’ strategic advantage.
23. Responding to queries by American Academy instructors about their
identities, defendants chose to remain anonymous, expressing their preference to remain
“unseen by the Academy.”
24. Risking some exposure, however, Kyle Thomas made contact with Angela
Hathaway, a daughter-in-law of Marjie and Jay Hathaway, the original co-founders and
current leaders of American Academy, asking Angela to serve as an emissary to her in-
laws. This began a series of telephone conversations between Kyle Thomas and Angela
Hathaway which were recorded and have been preserved.
25. In a conversation on October 8th, Kyle Thomas outlined a proposed
buyout of American Academy’s interests in the Bradley name. As he explained, “We’re
going to present them with a plan, a series of different options, and they can choose one
they would like to take.” However, he warned, “if they say ‘no,’ we’re going to yank
every single person from the training in Georgia.” This was an apparent reference to an
upcoming prospective instructor training that American Academy had scheduled for
October 21-24 in Atlanta. His threats continued: “If they decide to fight, their brand is
not going to be worth as much after we start kicking it.” It was during this conversation
that he vowed: “I will be taking the Bradley teachers and devaluing their brand.”
10
26. Kyle Thomas and Angela Hathaway had a subsequent conversation on
October 24th in which Mr. Thomas outlined his buyout proposal. Again, he threatened
aggressive action if American Academy declined his offer:
“The only way [American Academy] is going to be able to continue to in any way use the Bradley name is if they come on board with us. . . . They will not be able to use the term ‘husband-coached childbirth’ . . . We are in the process of trademarking ‘Bradley’ . . . It doesn’t matter what they decide. There’s nothing they can do. There’s no choice. They don’t have a choice to fight. If they fight they just lose worse. That’s all.”
Once again Mr. Thomas threatened to interfere with an upcoming instructor training
workshop, saying, “They won’t be able to conduct the training in D.C.”
27. On October 26th, Naomi Thomas’s brother Wayne Carroll, acting in his
capacity as “Attorney for Kyle Thomas,” sent a letter to American Academy offering “to
license the BRADLEY Trademarks including THE BRADLEY METHOD” in exchange
for 3% of the revenue “directly derived from products and services using ‘THE
BRADLEY METHOD’ or the ‘BRADLEY’ name.”
28. On October 29th, American Academy declined the offer. In the same
letter to Mr. Carroll, American Academy demanded that Mr. Thomas cease and desist
using the BRADLEY and THE BRADLEY METHOD trademarks.
29. Enraged, Kyle Thomas called Angela Hathaway the same day and
declared: “We gave them an offer that was completely generous. That offer is off the
table now and the gloves are off!” He said, “Please explain to me why I shouldn’t, or
why we shouldn’t, completely drop the bomb on them.” Mr. Thomas further threatened:
“Their company is not going to be worth anything anymore. Because when we get their trademarks taken away . . . they will not be able to use the Bradley name ever again in their lives. They won’t have a company. Their company won’t exist.”
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30. The Thomases then set about to make good on this threat. C. Defendants’ Illicit Conduct—Moving Out of the Shadows 31. Less than two hours after Kyle Thomas called Angela Hathaway on
October 29th, defendants sent an email to all American Academy instructors “to
officially announce the launch of Bradley Reborn” On the same day, defendants declared
on their newly minted website—www.bradleyreborn.com—that American Academy “is
wholly responsible for the creation of Bradley Reborn[.]” Defendants indicated that
American Academy was “vulnerable” because “they have let an amazing opportunity,
and the stronghold they have had on it for over 40 years, slip through their fingers.”
32. Defendants moved quickly to consolidate their position. In addition to
registering the domain names www.bradleyreborn.com and www.bradleyreborn.net (the
“Infringing Domains”), they also asserted a robust presence on social networking sites
like Facebook and Twitter and file sharing sites such as YouTube. At last count their
website had surpassed 100,000 pageviews.
33. On November 1st, Kyle Thomas filed Articles of Organization for Brio
Birth, LLC and on November 5th, Mr. Thomas, on behalf of Brio Birth, filed a Statement
of Trade Name of Reporting Entity for the trade name BRADLEY REBORN.
34. On November 8th, defendant Ellen Contard filed with the United States
Patent and Trademark Office three applications in Class 41 for the following:
a. BRADLEY REBORN (Serial No. 85/171,091);
b. BRADLEY (Serial No. 85/171,093); and
c. BRADLEY BIRTH (Serial No. 85/171,096)
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(hereinafter referred to as the “Infringing Marks”). Copies of the Trademark Applications
are attached hereto as Exhibit 3. Each of the applications is for “Educational Services,
namely, conducting courses and workshops related to childbirth education for instructors
in the field, and for prospective parents.” The identification of services for the Infringing
Marks is identical to the statement of services for THE BRADLEY METHOD.
35. Defendants have successfully raided the ranks of American Academy’s
instructors. Their first inducement has been to offer drastically reduced fees. New
instructors to Bradley Reborn must pay a fee of $1,295. However, if the instructor is
currently affiliated with American Academy, the fee is only $195. Another inducement
has been to place defecting instructors into leadership positions. Seven of Bradley
Reborn’s officers, including defendant Contard, are currently under contract with
American Academy. In typical pyramid fashion, Bradley Reborn has created a group of
“regional representatives” as a mediating layer between their instructors and their
officers. Eleven of their twelve regions are now headed by individuals currently under
contract with American Academy. Numerous other teachers have disaffiliated with
American Academy to join defendants’ efforts. Many more may do so over the next
month as their contracts expire; some may disaffiliate out of mere confusion—each day
American Academy receives communications from individuals expressing concern or
confusion over whether American Academy sponsors or is associated with Bradley
Reborn.
36. In addition, Defendants are contacting prospective teachers and clients of
American Academy, encouraging them to not attend teaching certification workshops and
to instead demand a refund. Their ploy has worked. Several prospective teachers have
13
cancelled their attendance at a workshop and demanded a refund, with some citing
concerns for their personal safety if they were to attend.
37. For their part, defendants are planning to launch major operations after the
turn of the year. They are enrolling current and prospective American Academy
instructors in a four-day training workshop from January 5th-8th in Denver, followed by
trainings in Anaheim, CA and Dallas, TX.
38. Ultimately, defendants are not offering anything of real value. Instead,
through their surreptitious survey they identified a number of complaints that instructors
have with American Academy, viz., the written materials and website appear outdated,
the organizational structure does not allow for elevation to leadership positions, and
American Academy refuses to mix the Bradley Method with other methods of childbirth
education. Defendants have responded by rolling out flashy materials and websites,
doling out leadership titles, and permitting instructors to dabble in other causes. All the
while defendants are stealing American Academy’s instructors and ideas and diluting the
value of the BRADLEY name and THE BRADLEY METHOD trademark.
FIRST CLAIM FOR RELIEF (Infringement of a Federally Registered Trademark, 15 U.S.C. § 1114)
39. Plaintiff realleges and incorporates by reference the forgoing paragraphs
as though fully set forth herein.
40. Defendants’ acts constitute trademark infringement and contributory
infringement of the federally registered trademark THE BRADLEY METHOD. The
trademark is registered and protected under the Trademark Act, incontestable,
conclusively valid, famous, and presumed distinctive.
14
41. Defendants’ use of the mark is likely to cause confusion, mistake, and
deception as to the source, origin, sponsorship, approval, endorsement or affiliation of
the Plaintiff’s mark and business. Defendants continue to engage in their wrongful
conduct with knowledge that its conduct is intended to cause confusion, mistake, or
deception.
42. As a direct and proximate result of Defendants’ wrongful conduct,
Plaintiff, among other things, is deprived of value in its mark as a commercial asset and
is unable to benefit fully from the strength of the mark that has resulted from Plaintiff’s
extensive advertising, sales, success, goodwill, and consumer recognition.
43. Defendants’ conduct is continuing and will continue unless restrained by
the Court. Unless enjoined by this Court, Defendants’ breach will continue to cause
Plaintiff irreparable damage, loss, and injury for which it has no adequate remedy at
law. Defendants should be enjoined from infringing THE BRADLEY METHOD.
44. Plaintiff has suffered and is continuing to suffer economic losses directly
and proximately caused by Defendants’ actions. Accordingly, Plaintiff is entitled to
injunctive relief and damages in an amount to be proven at trial.
SECOND CLAIM FOR RELIEF (Common Law Trademark Infringement)
45. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
46. BRADLEY is a trademark and trade name belonging to Plaintiff. Plaintiff
has used this mark continuously since 1971 in conjunction with conducting courses and
workshops relating to childbirth training, and its use is prior to that of the Defendants’
use of the Infringing Marks.
15
47. Plaintiff is the owner of the trademark BRADLEY and the consuming
public recognizes the BRADLEY mark as being distinctive of and identifying high
quality services associated with a single source conducting courses and workshops
relating to childbirth training for instructors in the field, and for prospective parents,
namely Plaintiff.
48. Plaintiff’s BRADLEY mark has acquired secondary meaning.
49. Defendants’ activities have caused and are likely to continue to cause
confusion between Defendants and/or its services and Plaintiff and/or its services, and
such unlawful activities infringe the valuable common law trademark and other rights
of Plaintiff in its BRADLEY mark. The Defendants’ actions, as alleged herein,
misrepresent the nature, characteristics or qualities of its goods or services.
50. Defendants were aware of Plaintiff’s mark BRADLEY and Defendants
committed the acts of infringement alleged herein in willful and flagrant disregard of
Plaintiff’s lawful rights.
51. The acts and conduct and Defendants, as alleged herein, constitute
infringement of Plaintiff’s common law rights in its trademark and trade name, and an
effort to misappropriate Plaintiff’s trademark and trade name.
52. Defendants’ acts have caused Plaintiff to sustain monetary damage, loss
and injury, in an amount to be determined at the trial.
53. Defendants have engaged and continue to engage in these activities
knowingly, willfully, maliciously and deliberately, so as to justify the assessment of
exemplary damages against them, in an amount to be determined at the time of trial.
16
54. Defendants’ aforesaid acts, unless enjoined by this Court, will continue to
cause Plaintiff to sustain irreparable damage, loss and injury, for which American
Academy has no adequate remedy at law.
THIRD CLAIM FOR RELIEF (Federal Trademark Dilution - 15 U.S.C. § 1125(c))
55. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
56. THE BRADLEY METHOD is a “famous mark” within the meaning of
§ 43(c) of the Lanham Act, 15 U.S.C. § 1125(c) and has been a famous mark prior to
Defendants’ conduct as alleged herein.
57. Defendants’ advertisement, use and distribution of advertisements and
materials bearing the Infringing Marks is likely to cause dilution by blurring, and/or
dilution by tarnishment, of the distinctive quality of THE BRADLEY METHOD
trademark, and was done with the willful intent to trade on Plaintiff’s reputation and/or to
cause dilution of THE BRADLEY METHOD trademark.
58. Defendants’ unauthorized use of THE BRADLEY METHOD trademark
was done with notice and full knowledge that such advertisement, use, and distribution
was not authorized or licensed by Plaintiff.
59. Defendants’ aforesaid acts are in knowing and willful violation of
Plaintiff’s rights under section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
60. Plaintiff has no adequate remedy at law, and, if Defendants’ activities are
not enjoined, will continue to suffer irreparable harm and injury to Plaintiff’s goodwill
and reputation.
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61. As a result of Defendants’ activities, Plaintiff has been damaged in an
amount to be ascertained at trial.
FOURTH CLAIM FOR RELIEF (False Representation, 15 U.S.C. § 1125(a))
62. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
63. Defendants’ activities constitute false representations in violation of
§ 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), because Defendants have used a word,
term, name, symbol, or device that is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of defendants with another person,
or as to the origin, sponsorship, or approval of their goods, services, or commercial
activities by another person.
64. Defendants’ acts have caused Plaintiff to sustain damages, loss, and injury
in an amount to be determined at trial.
65. Defendants have engaged in and continue to engage in these activities
knowingly, willfully, maliciously and deliberately, so as to justify the assessment of
exemplary damages against them, in an amount to be determined at the time of trial.
66. Defendants’ acts, unless enjoined by this Court, will continue to cause
Plaintiff to sustain irreparable damage, loss, and injury, for which Plaintiff has no
adequate remedy at law.
FIFTH CLAIM FOR RELIEF (Federal Cybersquatting Under 15 U.S.C. § 1125(d))
67. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
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68. Plaintiff is the owner of the trademark and trade name BRADLEY, which
is protected under the Lanham Act, and the federally registered mark THE BRADLEY
METHOD.
69. Upon information and belief, Defendant Kyle Thomas is the registrant of
the domain names www.bradleyreborn.com and www.bradleyreborn.net, which
registrations occurred well after Plaintiff’s rights in its marks vested. The domain names
are being used by Defendant Brio Birth.
70. Defendants registered the www.bradleyreborn.com and
www.bradleyreborn.net domain with the bad faith intent to profit from Plaintiff’s
protected trademarks.
71. Defendants use of the Infringing Domains are confusingly similar to the
Plaintiff’s marks.
72. Defendant’s registration, use, and trafficking in the domain names
constitute cybersquatting in violation of 15 U.S.C. Section 1125(d), entitling Plaintiff to
relief.
73. The Defendants’ acts of infringement are and have been willful and
malicious and intended to injure and cause harm to Plaintiff.
74. This is an exceptional case making Plaintiff eligible for an award of
attorneys’ fees under 15 U.S.C. § 1117.
75. Defendants are in violation of 15 U.S.C. § 1125(d)(1) and have caused
damage to Plaintiff in an amount to be determined at trial. Plaintiff is being irreparably
harmed by the Infringing Domains, and Defendants’ use thereof, and has no adequate
remedy at law.
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SIXTH CLAIM FOR RELIEF (Unfair Competition)
76. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
77. The acts and conduct of Defendants as alleged herein constitute unfair
competition with Plaintiff under Colorado and federal common law.
78. Defendants’ acts and conduct as alleged above have damaged and will
continue to damage Plaintiff in an amount that is unknown at the present time.
SEVENTH CLAIM FOR RELIEF (Intentional Interference with Existing Contracts and Prospective Business
Advantage)
79. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
80. Plaintiff has entered into contracts or business relationships with certain
third parties who were existing clients of Plaintiff or who had communicated their
interest in establishing prospective contractual relationship with Plaintiff. Defendants
were aware of these contracts and/or prospective business relations of Plaintiff.
81. Defendants knowingly and willfully interfered in Plaintiff’s contracts
and/or business expectancies by diverting clients from Plaintiff through their acts of
trademark infringement, unfair competition, deceptive trade practices, and other unlawful
conduct. As a result of the Defendants’ conduct, Plaintiff’s clients were induced to
breach or terminate contracts, business relationships, or expectancies with Plaintiff.
82. Defendants’ conduct as complained of herein was knowing, willful,
malicious, and deliberate.
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83. Plaintiff has been damaged by the Defendants’ conduct as complained of
herein, in an amount to be determined at trial.
EIGHTH CLAIM FOR RELIEF (Accounting)
84. Plaintiff realleges and incorporates by reference the foregoing paragraphs
as though fully set forth herein.
85. Plaintiff 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.
86. Plaintiff is entitled, pursuant to 15 U.S.C. § 1117, to actual damages or
statutory damages, sustained by virtue of Defendants’ acts of infringement.
87. The amount of money due from Defendant is unknown to Plaintiff and
cannot be ascertained without a detailed accounting by Defendants.
IV. PRAYER FOR RELIEF
WHEREFORE, the American Academy of Husband-Coached Childbirth
requests entry of judgment in its favor against Defendants as follows:
A. That this Court temporarily, preliminarily, and permanently enjoin
Defendants, their officers, agents, servants, employees, attorneys and all persons in active
concert or participation with any of them:
a. From using in any manner BRADLEY or THE BRADLEY
METHOD, or any other designation that is confusingly similar to
BRADLEY or THE BRADLEY METHOD or any of the BRADLEY
or THE BRADLEY METHOD marks, including but not limited to, the
Infringing Marks, as to be likely to cause confusion, deception or
mistake on or in connection with advertising, marketing, or use of any
21
service or goods not Plaintiff’s or not authorized by Plaintiff to be used
in connection with BRADLEY or THE BRADLEY METHOD or is
likely to dilute the BRADLEY or THE BRADLEY METHOD
trademarks;
b. From passing off, inducing or enabling others to sell or pass off, any
product or service offered by Plaintiff, not Plaintiff’s or not produced
under the control and supervision of Plaintiff and approved by
Plaintiff;
c. From committing any acts calculated to cause consumers to believe
that the Infringing Marks are sponsored or approved by, or connected
with, or guaranteed by, or produced under the control and supervision
of Plaintiff;
d. From further diluting and infringing the BRADLEY or THE
BRADLEY METHOD trademarks and damaging Plaintiff’s goodwill;
e. From further interfering with Plaintiff’s contracts or prospective
business advantage;
f. From otherwise competing unfairly with Plaintiff in any manner; and
g. From conspiring with, aiding, assisting or abetting any other person or
business entity in engaging in or performing any of the activities
referred to above.
B. That this Court enter a judgment finding that Defendants have infringed,
and willfully infringed THE BRADLEY METHOD and BRADLEY trademarks.
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C. That this Court enter a judgment finding that Defendants have diluted, and
willfully diluted, THE BRADLEY METHOD trademark.
D. That this Court enter a judgment finding that Defendants’ use of the
Infringing Marks has caused and/or is likely to cause confusion among the general public
as to the source of origin of the Infringing Marks.
E. That this Court enter a judgment that the use or proposed use of the
Pending Trademark Applications Serial Nos. 8,5171,091, 8,5171,093 and 8,5171,096
cause confusion or is likely to cause confusion with THE BRADLEY METHOD
trademark, dilutes the distinctive quality of THE BRADLEY METHOD trademark, and
is likely to cause dilution of the distinctive quality of THE BRADLEY METHOD
trademark.
F. That this Court order the withdrawal and abandonment of the Pending
Trademark Applications.
G. That this Court certify the above orders to the Director of the United States
Patent and Trademark Office so the Director may make the appropriate entry upon the
records of the Patent and Trademark Office pursuant to the Lanham Act, 15 U.S.C. §
1119.
H. That this Court order Defendants to deliver up for destruction or show
proof of destruction of any and all advertisements, publications, labels, and any other
materials in their possession, custody, or control that depict or refer to the trademarks
covered by this Court’s judgment.
I. That this Court order Defendants to file with this Court and to serve upon
Plaintiff a report in writing and under oath setting forth in detail the manner and form in
23
which Defendants have complied with any injunction resulting from this matter within
thirty days after service of such injunction.
J. That this Court enter judgment holding Defendants liable for
cybersquatting pursuant to 15 U.S.C. Section 1125(d).
K. That this Court order Defendants to cease all use of the
www.bradleyreborn.com and www.bradleyreborn.net domains and turn ownership of the
domains over to Plaintiff.
L. That this Court award Plaintiff such damages, compensatory and
otherwise, as the proof may show.
M. That this Court award Plaintiff its reasonable attorneys’ fees incurred in
connection with this action.
N. That this Court award Plaintiff pre-judgment and post-judgment interest
and its costs in connection with this action.
O. That this Court grant such other and further relief as this Court may deem
just, proper, and equitable under the circumstances.
JURY DEMAND
Plaintiff hereby demands trial by jury as to all issues in this action triable by a
jury.
24
DATED this 30th day of November, 2010. Respectfully submitted, Allen & Vellone, P.C. By: /s/ Jordan Factor
Jordan Factor Jim Helfrich Jennifer E. Schlatter 1600 Stout Street, Suite 1100 Denver, CO 80202 Phone: (303) 534-4499 [email protected] [email protected] [email protected]
Plaintiff’s Address 4846 Katherine Avenue Sherman Oaks, CA 91423
VERIFICATIO
I, ~/7uJ /~,t~tate and depose that the facts stated in this VerifiedComplaint are true and corr t to the best of my knowledge and belief.
American Academy of Husband-Coached Childbirth
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My commission expires: J l/\ '" {I I Lff u( £jDATED this 29th day of November, 20100
