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8/18/2019 Stiletto Entertainment v. Princess Cruise Lines - Barry Manilow complaint.pdf
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508028.01 1 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
TODD W. BONDER, ESQ. (Cal. Bar No. 116482)[email protected] RYAN M. LAPINE, ESQ. (Cal. Bar No. 239316)[email protected] JOSHUA H. HERR, ESQ. (Cal. Bar No. 301775)
[email protected], MEYER & SUSMAN LLP232 North Canon DriveBeverly Hills, California 90210-5302Telephone: (310) 858-7700Facsimile: (310) 860-2430
Attorneys for PlaintiffHASTINGS, CLAYTON & TUCKER, INC.dba STILETTO ENTERTAINMENT
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
HASTINGS, CLAYTON & TUCKER,INC., a Nevada corporation, dbaSTILETTO ENTERTAINMENT,
Plaintiff,
vs.
PRINCESS CRUISE LINES, LTD.,WHICH WILL DO BUSINESS IN
CALIFORNIA AS PRINCESSCRUISES, a Bermuda corporation;SWANK MOTION PICTURES, INC., aMissouri corporation; and DOES 1-10,inclusive,
Defendants.
))))))))))
)))))))))))))))))
Case No. 16-cv-01831-GHK-JEM
FIRST AMENDED COMPLAINTFOR:
(1) DIRECT ANDCONTRIBUTORY COPYRIGHTINFRINGEMENT;
(2) DIRECT AND
CONTRIBUTORY VIOLATIONOF SECTION 43(a) OF LANHAMTRADEMARK ACT – UNFAIRCOMPETITION;
(3) UNFAIR COMPETITION;
(4) DILUTION AND/OR INJURYTO BUSINESS REPUTATION;and
(5) STATUTORY ANDCOMMON LAW RIGHT OFPUBLICITY
Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 1 of 24 Page ID #:43
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508028.01 2 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
Plaintiff, HASTINGS, CLAYTON & TUCKER, INC. (hereinafter referred to
as “HCT”), complains and alleges as follows:
JURISDICTION
1.
The first and second claims hereof each arise under the Copyright Actof 1976, 17 U.S.C. § 101 et seq. This Court has jurisdiction over the subject matter
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
Lanham Trademark Act of 1946, as amended, in 15 U.S.C. Section 1125(a). This
Court has jurisdiction over the subject matter of these claims pursuant to 15 U.S.C.
Section 1121 and 28 U.S.C. Sections 1331 and 1338.
3. The fifth, sixth, seventh, and eighth claims hereof each arise under the
common law and statutory law of California relating to trademark infringement,
unfair competition, and right of publicity. This Court has jurisdiction over the
subject matter of such claims pursuant to the provisions of 28 U.S.C. Section 1338(b
and 28 U.S.C. Section 1367.
4. Each of the claims hereof at least in part involve conduct that took
place on the high seas. This Court has jurisdiction over the subject matter of such
claims pursuant to the provisions of 28 U.S.C. Section 1333.
VENUE IS PROPER
5. Venue is proper in this judicial district pursuant to 28 U.S.C. Sections
1391(b) through (c), 1392 and 1400(a), and 18 U.S.C. Section 3238.
THE PARTIES
6. HCT is, and at all times material hereto was, a Nevada corporation
doing business in Los Angeles County, California.
7. HCT does business as STILETTO ENTERTAINMENT ("Stiletto"),
having properly registered that Fictitious Business Name with the California
Secretary of State. (As used herein, "Plaintiff" refers to HCT and Stiletto, which are
in fact and in law the same entity).
Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 2 of 24 Page ID #:44
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508028.01 3 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
8. Plaintiff is informed and believes, and upon that basis alleges, that at all
times relevant hereto:
a. Defendant SWANK MOTION PICTURES, INC. (hereinafter
“Swank”) is a Missouri corporation doing business in Los Angeles County,California, with its principal place of business in St. Louis, Missouri;
b. Defendant PRINCESS CRUISE LINES, LTD., WHICH WILL DO
BUSINESS IN CALIFORNIA AS PRINCESS CRUISES (hereinafter “Princess
Cruises”) is a Bermuda corporation doing business in Los Angeles County,
California, with its principal place of business in Santa Clarita, California in this
District.
9. The true names and capacities of DOES 1-10, inclusive, whether
corporate, associate, individual or otherwise, are unknown to Plaintiff at this time.
Plaintiff will, with leave of court, amend this First Amended Complaint to show the
true names and capacities of these DOES if and when the same have been
ascertained. Plaintiff is informed and believes, and upon that basis alleges, that each
of these fictitiously named Defendants is legally responsible in some manner for the
events and occurrences herein alleged and that Plaintiff's damages as alleged herein
were proximately caused thereby. (Swank, Princess Cruises, and DOES 1-10,
inclusive, are referred to collectively as “Defendants.”)
PLAINTIFF EXISTS TO MANAGE BARRY MANILOW'S AFFAIRS, OWNS
THE MANILOW TRADEMARK AND COMMISSIONED THE COPYRIGHTED
WORK MUSIC AND PASSION LIVE FROM LAS VEGAS
10. Barry Manilow writes the songs that make the whole world sing.
11. Plaintiff manages Barry Manilow's business and financial affairs.
12. Born Barry Alan Pincus, Barry Manilow, one of the best selling
musical artists of all time, is an entertainment icon. At present, he is on his final
concert tour.
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508028.01 4 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
13. "Barry Manilow" is registered as a trademark with the United States
Patent and Trademark Office with Serial Number 73606430; Plaintiff owns that
mark. (That mark is referred to herein as “Plaintiff’s Trademark.”)
14.
Plaintiff has openly and actively used Plaintiff's Trademark as adistinctive mark. The mark has developed a distinctive meaning among members of
the public, who have come to identify its use as designating music, performances,
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
of his name and likeness in connection with the sale of his music, performances, or
the marketing of his music or performances.
16. Plaintiff hired Barry Manilow and a cadre of background musicians,
employing them to perform, as a work made for hire, a concert entitled “Barry
Manilow: Music and Passion Live from Las Vegas” (hereinafter “ Music and
Passion Live”).
17. Music and Passion Live is wholly original with Plaintiff and constitutes
copyrightable subject matter under the Copyright Act of 1976, 17 U.S.C. § 101 et
seq.
18. Plaintiff owns and controls all right, title and interest in and to Music
and Passion Live, including all related intellectual property rights.
19. Plaintiff has complied in all respects with the laws governing Music
and Passion Live's intellectual property rights and has registered Music and Passion
Live with the United States Copyright Office.
20. Plaintiff has at no time, directly or indirectly, granted Defendants, or
any of them, the authority, permission, license or consent to use Plaintiff's
Trademark, Music and Passion Live, or any aspect thereof, or the name and likeness
of Barry Manilow.
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508028.01 5 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
SWANK SOLICITED AND PROFITED FROM
PLAINTIFF'S INTELLECTUAL PROPERTY
21. On information and belief, on an ongoing basis and within the last three
years, Swank willfully endeavored to sell Plaintiff's copyrighted work Music and Passion Live and profit from it in this judicial district.
22. On information and belief, on an ongoing basis and within the last three
years, Swank willfully used Plaintiff's Trademark and his likeness and name to
solicit sales of Music and Passion Live and profit from it in this judicial district.
23. Swank never obtained from Plaintiff any rights, permission, authority
or consent to market or sell Music and Passion Live, to use Plaintiff's Trademark in
the marketing or sale of goods or products, or to use Barry Manilow's name or
likeness to sell or market goods or products.
24. Indeed, prior to receiving a cease and desist letter in 2015, Swank never
once contacted Plaintiff – or Barry Manilow – to assess whether it may market or
sell Music and Passion Live, use Plaintiff's Trademark to market or sell goods or
products, or use Barry Manilow's name or likeness to market or sell goods or
products.
25. Swank intentionally and willfully, within the last three years, and
within this judicial district, marketed for sale and sold to, among others, Princess
Cruises "rights" to broadcast Music and Passion Live along with copies of that
copyrighted work, using Plaintiff's Trademark and Barry Manilow's name and
likeness in the solicitation of that sale, all without Plaintiff's authority, permission,
or consent.
PRINCESS CRUISES REPEATEDLY, WILLFULLY AND INTENTIONALLY
INFRINGED PLAINTIFF'S INTELLECTUAL PROPERTY
26. Without Plaintiff's authority, permission or consent, Princess Cruises
repeatedly broadcast Music and Passion Live on the lido deck of its cruise ships to
entertain its customers.
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508028.01 6 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
27. On information and belief, Princess Cruises used Plaintiff's Trademark
and Barry Manilow's name and likeness to market its broadcasts of Music and
Passion Live.
28.
In 2014, Plaintiff discovered that Princess Cruises was repeatedly broadcasting Music and Passion Live on the lido deck of its ships as a key
component of its entertainment of its cruise customers.
29. Plaintiff wrote Princess Cruises in March of 2014, informed Princess
Cruises that Princess Cruises did not have any rights to broadcast Music and
Passion Live on any of its cruise vessels or in any forum for its customers’
entertainment and consumption, and demanded that it cease and desist from
broadcasting Music and Passion Live immediately.
30. Princess Cruises acknowledged that cease and desist letter, refused to
cease and desist, and instead willfully and intentionally continued to broadcast
Music and Passion Live on its cruise vessels while, on information and belief,
continuing to use Plaintiff's Trademark and Barry Manilow's name and likeness to
advertise and market that entertainment.
PRINCESS CRUISES' INFRINGEMENT ACTIVITY DIRECTLY COMPETED
WITH PLAINTIFF'S BUSINESS ENDEAVORS
31. Plaintiff is currently producing Barry Manilow's final concert tour for
which it is selling tickets and merchandise.
32. It expressly would not and did not intend to concomitantly make
available live concert footage for repetitive screenings on cruise ships that would
provide direct competition to the live concerts it was and is seeking to sell.
FIRST CLAIM
(For Direct Copyright Infringement
-- Against Defendants)
33. Plaintiff repeats, realleges and incorporates the allegations contained in
paragraphs 1 through 32, inclusive, hereof as if fully set forth herein.
Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 6 of 24 Page ID #:48
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508028.01 7 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
34. Defendants infringed Plaintiff’s copyrights in Music and Passion Live
by, among other things, advertising, displaying, promoting, marketing, distributing,
providing, publicly performing, offering for license, licensing, offering for rental
and/or renting, offering for sale and/or selling within this judicial district andelsewhere, including on cruise lines, Music and Passion Live. This specifically
includes, but is not limited to, Swank's solicitation, sale, licensing and/or renting of
Music and Passion Live to, among others, Princess Cruises; Defendants' copying
and loading of Music and Passion Live for broadcast on its cruise ships and
elsewhere; and Princess Cruises' repeated and willful public broadcast of Music and
Passion Live on the lido deck of its cruise ships for the entertainment of its
customers.
35. The production or manufacture of Music and Passion Live is an
unauthorized reproduction of Plaintiff’s copyrighted work by Defendants violating
17 U.S.C. Section 106(1).
36. The licensing, renting, selling and/or screening of Music and Passion
Live by Defendants is an unauthorized distribution of copies of Plaintiff’s
copyrighted work violating 17 U.S.C. Section 106(3).
37. The public performance of Music and Passion Live by Defendants is an
unauthorized performance of Plaintiff's copyrighted work violating 17 U.S.C.
Section 106(4).
38. The advertising and/or display of Music and Passion Live by
Defendants is an unauthorized public display of Plaintiff’s copyrighted work
violating 17 U.S.C. Section 106(5).
39. Plaintiff has fully complied with its obligations under the copyright
laws, and as stated above Plaintiff has at all times been and still is the sole proprietor
of all right, title and interest in and to Music and Passion Live.
40. The manufacture, production, advertisement, display, promotion,
marketing, distribution, public performance, licensing, rental and/or sale of Music
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508028.01 8 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
and Passion Live by Defendants is without any permission, license or other
authorization from Plaintiff.
41. Defendants were notified of their infringing and illegal activity.
Despite clear requests to Defendants, Defendants, and each of them, willfully andknowingly continued at least certain of their respective unlawful infringing activities
On information and belief, the unlawful infringing activities have now ceased.
42. Plaintiff has no adequate remedy at law and has suffered, and is
continuing to suffer, irreparable harm and damage as a result of the aforesaid acts of
infringement. Defendants are each liable in amounts within the jurisdiction of this
Court.
43. These damages include, but are not limited to, the devaluing of Barry
Manilow's concert tours Plaintiff is presently producing and that Plaintiff produced
at times relevant hereto that Defendants' repetitive broadcasting of Barry Manilow's
Music and Passion Live in a public setting competed directly against.
44. Plaintiff is informed and believes, and upon that basis alleges, that the
aforesaid infringements by Defendants of Music and Passion Live was and
continues to be with the knowledge that Music and Passion Live is copyrighted, and
that the Defendants, and each of them, in doing the acts complained of herein, have
willfully infringed Plaintiff’s rights under the Copyright Laws of the United States,
17 U.S.C. Section 101 et seq.
45. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have each obtained gains, profits and advantages as a result of their
respective wrongful acts in amounts within the jurisdiction of this Court.
46. Plaintiff is informed and believes, and upon that basis alleges, that it
has suffered, and is continuing to suffer, direct and actual damages as a result of
Defendants’ wrongful conduct as alleged herein, in amounts within the jurisdiction
of this Court. In order to determine the full extent of such damages, including such
profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
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508028.01 9 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
accounting from each Defendant of all monies generated from the manufacture,
production, distribution, provision, public performance, licensing, rental and/or sale
of infringing goods as alleged herein.
47.
Plaintiff is informed and believes, and upon that basis alleges, that eachDefendant's acts as described above are in willful violation of Plaintiff’s rights, and
statutory damages against each such willfully infringing Defendant in the Court’s
discretion up to the amount of $150,000.00 for the infringement of Music and
Passion Live should be assessed by the Court pursuant to 17 U.S.C. Section
504(c)(2).
48. By reason of the foregoing, Plaintiff has incurred, and will continue to
incur, attorneys’ fees and other costs in connection with the prosecution of his
claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
and each of them, herein.
SECOND CLAIM
(For Contributory Copyright Infringement)
49. Plaintiff repeats, realleges and incorporates the allegations contained in
paragraphs 1 through 48, inclusive, hereof as if fully set forth herein.
50. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants, and each of them, with knowledge of the infringing activities of their
third-party customers and other of the Defendants, as well as with the ability to
control the same and the intent to themselves benefit, either directly or indirectly,
therefrom, have infringed Plaintiff’s copyrights in Music and Passion Live by,
among other things, participating in or otherwise knowingly contributing to the
manufacture, production, advertisement, display, promotion, marketing, distribution,
provision, public performance, offering for license, licensing, offering for rental
and/or renting, offering for sale and/or selling within this judicial district and
elsewhere Music and Passion Live, and have induced, caused and materially
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508028.01 10 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
contributed to the infringing conduct by such third party customers and other
Defendants.
51. The participation in or otherwise knowing contribution by Defendants
to the production or manufacture of Music and Passion Live is an unauthorizedreproduction of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(1).
52. The participation in or otherwise knowing contribution by Defendants
to the marketing of Music and Passion Live is an unauthorized distribution of copies
of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(3).
53. The participation in or otherwise knowing contribution by Defendants
to the advertisement and/or display of Music and Passion Live is an unauthorized
public display of Plaintiff’s copyrighted work violating 17 U.S.C. Section 106(5).
54. The manufacture, production, importation, exportation, advertisement,
display, promotion, marketing, distribution, provision, public performance, licensing
rental and/or sale of Music and Passion Live by Defendants and/or their third party
customers and others for resale or other use(s) in commerce is without any
permission, license or other authorization from Plaintiff.
55. Defendants have been notified of their infringing and illegal activity.
Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
that basis alleges, that Defendants, and each of them, have willfully and knowingly
undertaken and continued at least certain of their unlawful infringing activity.
56. Plaintiff has no adequate remedy at law and has suffered, and is
continuing to suffer, irreparable harm and damage as a result of the aforesaid
respective acts of contributory infringement. Defendants are liable in an amount
within the jurisdiction of this Court.
57. Plaintiff is informed and believes, and upon that basis alleges, that the
aforesaid contributory infringements by Defendants of Music and Passion Live was
and continues to be with the knowledge that Music and Passion Live is copyrighted,
and that Defendants, in doing the acts complained of herein, has willfully infringed
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508028.01 11 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
Plaintiff’s rights under the Copyright Laws of the United States, 17 U.S.C. Section
101 et seq.
58. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have obtained gains, profits and advantages as a result of theirrespective wrongful acts of contributory infringement in amounts within the
jurisdiction of this Court.
59. Plaintiff is informed and believes, and upon that basis alleges, that he
has suffered, and is continuing to suffer, direct and actual damages as a result of
Defendants’ wrongful conduct as alleged herein, in amounts within the jurisdiction
of this Court. In order to determine the full extent of such damages, including such
profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
accounting from each Defendant of all monies generated from the manufacture,
production, importation, exportation, distribution, provision, public performance,
licensing, rental and/or sale of infringing goods and/or services as alleged herein.
60. Plaintiff is informed and believes, and upon that basis alleges, that each
Defendant's respective acts as described above are in willful violation of Plaintiff’s
rights, and statutory damages against each such willfully infringing Defendant in the
Court’s discretion up to the amount of $150,000.00 for the contributory
infringement of Music and Passion Live should be assessed by the Court pursuant to
17 U.S.C. Section 504(c)(2).
61. By reason of the foregoing, Plaintiff has incurred, and will continue to
incur, attorneys’ fees and other costs in connection with the prosecution of his
claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
and each of them, herein.
///
///
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508028.01 12 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
THIRD CLAIM
(For Direct Violation of Section 43(a)
of the Lanham Act -- Unfair Competition
-- Against All Defendants)62. Plaintiff repeats, realleges and incorporates the allegations contained
in paragraphs 1 through 61, inclusive, hereof as if fully set forth herein.
63. Plaintiff owns all right, title and interest in and to Plaintiff’s
Trademark.
64. Barry Manilow assigned to Plaintiff his rights of publicity, including all
rights associated with use of his name, his likeness, his reputation and his goodwill.
65. Plaintiff has openly and actively used Plaintiff's Trademark as a
distinctive mark. The mark has developed a distinctive meaning among members of
the public, who have come to identify its use as designating goods, performances,
and services endorsed by that singer and performer known as Barry Manilow.
66. Defendants used Plaintiff's Trademark to market their solicitation, sale,
licensing, and broadcast of Music and Passion Live. Plaintiff did not know of this
solicitation, sale, licensing and broadcast, did not approve of it and did not endorse
it.
67. The conduct complained of herein has damaged and diluted the
goodwill and reputation of Plaintiff and of Barry Manilow, and, thus, the value of
Plaintiff's Trademark.
68. Defendants' unauthorized use of Plaintiff's Trademark for their own
gain and advantage constitute acts of unfair competition and false representation of
affiliation, all in violation of Section 43(a) of the Lanham Trademark Act, 15 U.S.C.
§ 1125(a), as amended. Plaintiff is informed and believes, and upon that basis
alleges, that each Defendant’s respective acts of reputational appropriation and
unfair competition was willful and intentional.
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508028.01 13 FIRST AMENDED COMPLAINT
LAW OFFICES
ROSENFELD,MEYER &
SUSMAN LLP
69. Defendants' respective unauthorized and unlawful acts of federal unfair
competition, and each of them, have enabled Defendants, and each of them, to trade
unlawfully upon the established goodwill, reputation and artistic skill of Plaintiff
and Barry Manilow and upon the value and worth of Plaintiff's Trademark.70. Defendants, and each of them, thereby unjustly enriched themselves at
the expense and to the damage and injury of Plaintiff, of Barry Manilow, and of
Plaintiff's Trademark.
71. The continued use by any of the Defendants of Plaintiff’s Trademark
has caused, and unless restrained will continue to cause, serious irreparable injury to
Plaintiff.
72. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants, and each of them, have willfully and knowingly continued at least
certain of their wrongful conduct in violation of Plaintiff’s rights through the date of
the filing of this First Amended Complaint.
73. Plaintiff has no adequate remedy at law and has suffered, and is
continuing to suffer, irreparable harm and damage as a result of Defendants'
respective acts of federal unfair competition in amounts thus far not determined but
within the jurisdiction of this Court, which amounts should each be trebled pursuant
to 15 U.S.C. Section 1117.
74. Plaintiff is informed and believes, and upon that basis alleges, that
unless enjoined by the Court, the unfair competition and false representation of
affiliation noted above, and the likelihood thereof, will continue with irreparable
harm and damage to Plaintiff. Accordingly, Plaintiff seeks preliminary and
permanent injunctive relief pursuant to 15 U.S.C. Section 1116.
75. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have each obtained gains, profits and advantages as a result of their
wrongful acts of federal unfair competition in amounts thus far not determined but
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508028.01 14 FIRST AMENDED COMPLAINT
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within the jurisdiction of this Court, which amounts should each be trebled pursuant
to 15 U.S.C. Section 1117.
76. In order to determine the full extent of such damages, including such
profits as may be recoverable, Plaintiff will require an accounting from eachDefendant of all monies attributable to their unfair competition and false designation
of affiliation.
77. By reason of the foregoing, Plaintiff has incurred, and will continue to
incur, attorneys’ fees and other costs in connection with the prosecution of his
claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from the
Defendants, and each of them, herein.
78. Defendants' conduct was willful, wanton, malicious and deliberate such
that punitive damages should be awarded.
FOURTH CLAIM
(For Contributory Violation of Section 43(a)
of the Lanham Act -- Unfair Competition
-- Against All Defendants)
79. Plaintiff repeats, realleges and incorporates the allegations contained in
paragraphs 1 through 78, inclusive, hereof as if fully set forth herein.
80. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have, without permission, authority or license from Plaintiff,
participated in or otherwise knowingly contributed to the affixation, application
and/or use by others, including other Defendants, of Plaintiff’s Trademark including
but not limited to, third-party use of Plaintiff's Trademark in the advertising,
solicitation, sale, licensing and broadcast of Music and Passion Live.
81. Plaintiff did not know of this third-party use of Plaintiff's Trademark,
did not approve of it and did not endorse it.
82. Defendants' contributory conduct in connection with this third-party
unauthorized and unlawful act of federal unfair competition, and each of them, have
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508028.01 15 FIRST AMENDED COMPLAINT
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enabled, assisted, aided and abetted the these third-parties to trade unlawfully upon
the established goodwill and reputation of Plaintiff, of Barry Manilow, and of
Plaintiff's Trademark.
83.
Defendants are thereby unjustly enriching themselves at the expenseand to the damage and injury of Plaintiff, and unless enjoined by this Court will
further impair the value of Plaintiff’s Trademark and goodwill.
84. By reason of the aforesaid, the continued use by any of the Defendants’
customers of Plaintiff’s Trademark, and/or the likenesses thereof, has caused, and
unless restrained will continue to cause, serious irreparable injury to Plaintiff.
85. Plaintiff has no adequate remedy at law and has suffered, and is
continuing to suffer, irreparable harm and damage as a result of Defendants’
respective acts of contributory federal unfair competition in amounts thus far not
determined but within the jurisdiction of this Court, which amounts should each be
trebled pursuant to 15 U.S.C. Section 1117.
86. Defendants have been notified of their infringing and illegal activity.
Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
that basis alleges, that Defendants willfully and knowingly continued at least certain
of their wrongful conduct in violation of Plaintiff’s rights well after they were
notified of their illegal and infringing activity.
87. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have obtained gains, profits and advantages as a result of their
respective wrongful acts of contributory federal unfair competition in amounts thus
far not determined but within the jurisdiction of this Court, which amounts should
each be trebled pursuant to 15 U.S.C. Section 1117.
88. In order to determine the full extent of such damages, including such
profits as may be recoverable, Plaintiff will require an accounting from each
Defendant and others of all monies attributable to their unfair competition and false
designation of affiliation.
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508028.01 16 FIRST AMENDED COMPLAINT
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89. By reason of the foregoing, Plaintiff has incurred, and will continue to
incur, attorneys’ fees and other costs in connection with the prosecution of his
claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from
Defendants herein.90. Defendants' conduct was willful, wanton, malicious and deliberate such
that punitive damages should be awarded.
FIFTH CLAIM
(For State Law Unfair Competition
-- Against All Defendants)
91. Plaintiff repeats, realleges and incorporates the allegations contained in
paragraphs 1 through 90, inclusive, hereof as if fully set forth herein.
92. Plaintiff owns all right, title and interest in and to Plaintiff’s
Trademark.
93. Barry Manilow assigned to Plaintiff his rights of publicity, including all
rights associated with use of his name, his likeness, his reputation and his goodwill.
94. Defendants have, without authority, permission or consent, traded upon
and profited from Plaintiff's Trademark, Barry Manilow's name, his likeness, his
reputation and his goodwill by using each of the same to sell products, to promote
their own products, including Princess Cruises' entertainment offerings on its cruise
lines and Swank's catalog of entertainment titles, and to benefit from their affiliation
with them.
95. As such, Defendants have each committed trademark infringement,
misleading advertising, breach of the right of publicity, and unfair competition
under the common law and under the California Unfair Business Practices Act, Cal.
Bus. & Prof. Code §17200 et seq.
96. Plaintiff is informed and believes, and upon that basis alleges, that
these deceptive, unfair and fraudulent practices have been undertaken with
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508028.01 17 FIRST AMENDED COMPLAINT
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knowledge by each defendant of their wrongfulness, in violation of the California
Unfair Business Practices Act, Cal. Bus. & Prof. Code §17200 et seq.
97. Defendants acted for the willful and calculated purpose of
misappropriating Barry Manilow's goodwill, the value of Plaintiff's Trademark, andthe value of Barry Manilow's right of publicity.
98. Plaintiff has no adequate remedy at law and has suffered, and is
continuing to suffer, irreparable harm and damage as a result of each Defendant’s
acts in amounts thus far not determined but within the jurisdiction of this Court.
99. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants have each unlawfully and wrongfully derived, and will continue to
derive, income, gains, profits and advantages as a result of their wrongful acts of
unfair competition in amounts thus far not determined but within the jurisdiction of
this Court.
100. In addition, Plaintiff is informed and believes, and upon that basis
alleges, that it has lost and will continue to lose profits and goodwill as a result of
Defendants’ respective conduct.
101. By reason of the foregoing acts of unfair competition, Plaintiff is
entitled to restitution from each Defendant of all income, gains, profits and
advantages resulting from their wrongful conduct in amounts to be determined
according to proof at trial.
102. In order to determine the full extent of such damages, including such
profits as may be recoverable, Plaintiff will require an accounting from each
Defendant of all monies attributable to their tortuous conduct.
103. Plaintiff is informed and believes, and upon that basis alleges, that
Defendants, and each of them, committed the acts alleged herein intentionally,
fraudulently, maliciously, willfully, wantonly and oppressively with intent to injure
Plaintiff in his business and with conscious disregard of Plaintiff’s rights, thereby
justifying awards of punitive and exemplary damages against each Defendant.
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508028.01 18 FIRST AMENDED COMPLAINT
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SIXTH CLAIM
(For Dilution and/or Injury To Business Reputation
-- Against All Defendants)
104.
Plaintiff repeats, realleges and incorporates the allegations containedin paragraphs 1 through 103, inclusive, hereof as if fully set forth herein.
105. Plaintiff’s business reputation, the name Barry Manilow, and Music
and Passion Live, and each of them, are entitled to protection pursuant to Section
14330 of the California Business and Professions Code.
106. Each Defendant’s unauthorized appropriation(s) of part or all of
Plaintiff’s Trademark and copyrighted product Music and Passion Live, as alleged
hereinabove, which are each valid at common law, are acts likely to injure
Plaintiff’s business reputation and/or dilute the distinctive quality of Plaintiff’s
trademark interests, and each Defendant’s unauthorized acts should be enjoined
pursuant to California Business and Professions Code Section 14330 as a result
thereof.
SEVENTH CLAIM
(For Violation of California Statutory Right of Publicity
-- Against All Defendants)
107. Plaintiff repeats, realleges and incorporates the allegations contained
in paragraphs 1 through 106, inclusive, hereof as if fully set forth herein.
108. Barry Manilow assigned to Plaintiff his rights of publicity, including all
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,
photograph and/or likeness to market Music and Passion Live and sell, license
and/or rent it to consumers, including Princess Cruises.
110. Swank did not have Plaintiff's or Barry Manilow's authority,
permission or consent to use his name, voice, photograph or likeness to market
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508028.01 19 FIRST AMENDED COMPLAINT
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Music and Passion Live and sell, license and/or rent it to consumers, including
Princess Cruises.
111. Swank profited from this unauthorized use of Barry Manilow's name,
voice, photograph and/or likeness.112. Princess Cruises, on information and belief, used Barry Manilow's
name, voice, photograph and likeness to market the entertainment offerings on
board its ship(s).
113. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,
permission or consent to use his name, voice, photograph or likeness to market the
entertainment offerings on board its ship(s).
114. Princess Cruises profited from this unauthorized use of Barry
Manilow's name, voice, photograph and/or likeness.
115. Defendants’ misappropriation of Barry Manilow's name and/or likeness
for their own purposes, commercial or otherwise, is a violation of California Civil
Code Section 3344 and afforded them ill-begotten profits, the recovery of which
Plaintiff seeks.
116. As a result of Defendants' actions, Plaintiff has suffered, and continues
to suffer, damages in an amount to be proven at trial.
117. Defendants' conduct was willful, wanton, malicious and deliberate such
that punitive damages should be awarded.
EIGHTH CLAIM
(For Violation of California Common Law Right of Publicity
-- Against All Defendants)
118. Plaintiff repeats, realleges and incorporates the allegations contained
in paragraphs 1 through 117, inclusive, hereof as if fully set forth herein.
119. Barry Manilow assigned to Plaintiff his rights of publicity, including all
rights associated with use of his name, his likeness, his reputation and his goodwill.
/ / /
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508028.01 20 FIRST AMENDED COMPLAINT
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120. On information and belief, Swank used Barry Manilow's name, voice,
photograph and/or likeness to market Music and Passion Live and sell, license
and/or rent it to consumers, including Princess Cruises.
121.
Swank did not have Plaintiff's or Barry Manilow's authority, permission or consent to use his name, voice, photograph or likeness to market
Music and Passion Live and sell, license and/or rent it to consumers, including
Princess Cruises.
122. Swank profited from this unauthorized use of Barry Manilow's name,
voice, photograph and/or likeness.
123. Princess Cruises, on information and belief, used Barry Manilow's
name, voice, photograph and/or likeness to market the entertainment offerings on
board its ship(s).
124. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,
permission or consent to use his name, voice, photograph or likeness to market the
entertainment offerings on board its ship(s).
125. Princess Cruises profited from this unauthorized use of Barry
Manilow's name, voice, photograph and/or likeness.
126. Further, Defendants, and each of them, gained a commercial advantage
by using Barry Manilow's name, voice, photograph, and/or likeness as part of their
respective entertainment portfolios without his authority, permission or consent.
127. As a result of Defendants' actions, Plaintiff has suffered, and continues
to suffer, damages in an amount to be proven at trial.
128. Defendants' conduct was willful, wanton, malicious and deliberate such
that punitive damages should be awarded.
/ / /
/ / /
/ / /
/ / /
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508028.01 21 FIRST AMENDED COMPLAINT
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PRAYER FOR RELIEF
WHEREFORE, Plaintiff demands judgment as follows:
1. That Defendants, and each of them, be adjudged to have infringed,
willfully or otherwise, Plaintiff’s copyrighted work, Music and Passion Live.2. That Defendants, and each of them, be adjudged to have contributorily
infringed, willfully or otherwise, Plaintiff’s copyrighted work, Music and Passion
Live.
3. That Defendants, and each of them, be adjudged to have infringed,
willfully or otherwise, Plaintiff’s Trademark.
4. That Defendants, and each of them, be adjudged to have contributorily
infringed, willfully or otherwise, Plaintiff’s Trademark.
5. For a full and complete accounting from each Defendant of all infringing
activities, including reproduction, use, distribution, marketing, publicly performing,
licensing, renting and/or sale of Plaintiff's intellectual property, and of all income,
profits, gains and advantages received by such Defendant therefrom;
6. That judgment be rendered jointly and severally against Defendants, and
each of them, for:
a. All profits, gains and advantages received by any of the
Defendants as a result of any of the Defendants' respective acts of copyright
infringement, as provided by 17 U.S.C. Section 504;
b. All damages suffered by Plaintiff as a result of any of the
Defendants' respective acts of copyright infringement, as provided by 17 U.S.C.
Section 504;
c. Statutory damages against each of the Defendants for its
infringing activities where available; and
d. All income, gains, profits and other advantages received by any
of the Defendants and all damages sustained by Plaintiff, on account of the
Defendants' respective acts of unfair competition under the Lanham Act; and
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508028.01 22 FIRST AMENDED COMPLAINT
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furthermore, that such profits and damages as found herein be trebled pursuant to 15
U.S.C. Section 1117;
e. All income, gains, profits and other advantages received by any
of the Defendants and all damages sustained by Plaintiff on account of theDefendants' respective acts of state law unfair competition, dilution or injury to
business reputation, and breach of Barry Manilow's rights of publicity; and
g. Such other and further damages as may be available in accord
with California Business and Professions Code Sections 14330 and/or 17200 et seq.
7. That judgment be further rendered jointly and severally against the
Defendants, and each of them, for:
a. All profits, gains and advantages received by any of the
Defendants as a result of any of the Defendants' respective acts of contributory
copyright infringement, as provided by 17 U.S.C. Section 504;
b. All damages suffered by Plaintiff as a result of any of the
Defendants' respective acts of contributory copyright infringement, as provided by
17 U.S.C. Section 504;
c. Statutory damages against each of the Defendants for its
contributory infringing activities where available; and
d. All income, gains, profits and other advantages received by any
of the Defendants and all damages sustained by Plaintiff, on account of the
Defendants' respective acts of contributory unfair competition; and furthermore, that
such profits and damages as found herein be trebled pursuant to 15 U.S.C. Section
1117.
8. That judgment be further rendered jointly and severally against each of
the Defendants for restitutionary damages in amounts to be determined at trial, but
in no event less than all income, gains, profits and other advantages derived as a
result of such defendant’s direct and/or contributory unfair business activities.
9. The imposition of exemplary and punitive damages against Defendant.
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508028.01 23 FIRST AMENDED COMPLAINT
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10. That Plaintiff recover its costs and disbursements incurred in this action,
including an award of its reasonable attorneys’ and investigator’s fees.
11. That Plaintiff recover prejudgment interest on all profits and damages
awarded by this Court.12. That the Court grant such other and further relief as it may deem just and
proper.
DATED: March 22, 2016 TODD W. BONDER, ESQRYAN M. LAPINE, ESQ.JOSHUA H. HERR, ESQ.ROSENFELD, MEYER & SUSMAN LLP
By: /s/ Ryan M. Lapine Ryan M. Lapine
Attorneys for Plaintiff,HASTINGS, CLAYTON & TUCKER, INC.
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DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff HASTINGS,
CLAYTON & TUCKER, INC. hereby demands trial by jury of all issues so triable.
DATED: March 22, 2016 TODD W. BONDER, ESQ.RYAN M. LAPINE, ESQ.JOSHUA H. HERR, ESQ.ROSENFELD, MEYER & SUSMAN LLP
By: /s/ Ryan M. Lapine Ryan M. Lapine
Attorneys for Plaintiff,HASTINGS, CLAYTON & TUCKER, INC.
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