UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 KRONENBERGER ROSENFELD, LLP Karl S. Kronenberger (Bar No. ) Jeffrey M. Rosenfeld (Bar No. ) 0 Post Street, Suite 0 San Francisco, CA 0 Telephone: () - Facsimile: () - karl@krinternetlaw.com jeff@krinternetlaw.com Attorneys for Plaintiff Edgar Babayan EDGAR BABAYAN, an individual, v. Plaintiff, ALLEN YEGANIAN, an individual; HONEST CREAMS LLC, a New York limited liability company; and DOES through 0, inclusive, Defendants. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA FOR COPYRIGHT INFRINGEMENT & CONTRIBUTORY COPYRIGHT INFRINGEMENT DEMAND FOR JURY TRIAL

2 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 Plaintiff Edgar Babayan ( Plaintiff ), by and through his undersigned counsel, alleges as follows: INTRODUCTION. Plaintiff owns copyrights in, among other things, three proprietary before and after photographs showing the effects of anti-aging face cream products (the Photos ).. Plaintiff has filed a copyright application for the Photos with the United States Copyright Office ( USCO ).. On information and belief, Defendant Honest Creams LLC and its principal Defendant Allen Yeganian (collectively, Defendants ) own and operate the website < (the Infringing Site ).. On information and belief, Defendants blatantly copied Plaintiff s Photos onto the Infringing Site to purportedly show the before and after effects of Defendants anti-aging face cream products. The Photos were taken years before Honest Creams LLC was formed. Further, Defendants actions are per se fraudulent as the women pictured in the Photos did not use Defendants products in the time period between the Photos and almost certainly never used Defendants products. On information and belief, Defendants copied Plaintiff s Photos knowingly and in violation of copyright laws to infringe on Plaintiff s proprietary content and to wrongfully obtain Plaintiff s customers and profits. As a result, Plaintiff has been harmed. JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this federal copyright dispute pursuant to U.S.C., (a), and.. This Court has personal jurisdiction over Defendants due to Defendants significant contacts with California and this District. On information and belief, Defendant Allen Yeganian resides in this District, and Defendant Honest Creams LLC has offices in this District. On information

3 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 and belief, Defendants intentionally and directly advertised and sold goods to consumers in California through the Infringing Site using Plaintiff s Photos. Moreover, on information and belief, Defendants intentionally caused harm in California, where Plaintiff is located.. Venue is proper under U.S.C. (b) because, on information and belief, Defendant Yeganian resides in this District, and a substantial part of the events or omissions giving rise to this action occurred in this District. PARTIES. Plaintiff is an individual residing in Glendale, California.. On information and belief, Defendant Allen Yeganian is an individual residing in Los Angeles County, California. 0. On information and belief, Defendant Honest Creams LLC is a New York limited liability company with offices and business in Los Angeles County, California. On information and belief, Defendant Yeganian is a principal of and has control of Defendant Honest Creams LLC and personally directed and participated in the unlawful conduct alleged herein.. Plaintiff does not know the true names and capacities, whether individual, associate, corporate, or otherwise, of Defendants sued herein as Does -0 inclusive and therefore sues using fictitious names. On information and belief, each Defendant sued herein by a fictitious name is in some way liable and responsible to Plaintiff based on the facts herein alleged. Plaintiff will amend this Complaint to state the true names and capacities of the Doe Defendants once they have been discovered. FACTUAL ALLEGATIONS Plaintiff s Copyrighted Photos. In or around August and September 0, Plaintiff took three before and after photographs (the Photos) of women s faces to compare

4 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 the women s faces and skin before and after using Plaintiff s skin care products, namely anti-aging face creams. Plaintiff started using the Photos shortly thereafter to promote and sell his anti-aging face creams.. Plaintiff s Photos are original, creative works in which Plaintiff owns protectable copyright interests.. Plaintiff has filed a copyright application with the USCO for the Photos, which are proprietary content. Defendants Infringement. On information and belief, Defendant Yeganian copied the Photos without Plaintiff s knoweldge or consent to use the Photos in a competing business and to deceitfully obtain Plaintiff s customers.. On information and belief, Defendant Yeganian started using the Photos to promote and sell skin care products, including anti-aging face creams, through his company, Defendant Honest Creams LLC.. On information and belief, Defendants are the registered owners, creators, and operators of the Infringing Site, < which is used to advertise and sell Defendants skin care products. The Infringing Site included a copyright disclaimer identifying Defendant Honest Creams LLC. On information and belief, Defendant Yeganian controls the content on the Infringing Site.. Defendants Infringing Site directly copied Plaintiff s Photos.. Plaintiff did not give Defendants license or permission to use the Photos on the Infringing Site or for any other purpose. 0. The Infringing Site was active and displaying the Photos as of late 0. On information and belief, Defendants have temporarily taken down the Infringing Site but intend to repost the Infringing Site and/or to create another site using the Photos to promote and sell their products.. On information and belief, Defendants intentionally and willfully

5 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 copied and used the Photos on the Infringing Site to advertise and sell their skin care products, to defraud consumers into believing the women depicted in the Photos used Defendants products to obtain anti-aging effects, and to acquire Plaintiff s customers. The following screenshots show the blatant copying of Plaintiff s Photos (left) onto the Infringing Site (right): Plaintiff s Photos Defendants Infringing Site. On information and belief, Defendants engaged in the foregoing infringement in bad faith in knowing violation of U.S. copyright laws and will continue to use Plaintiff s Photos for competing businesses unless enjoined. On information and belief, Defendants conduct also constitutes fraud as

6 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 Defendants exploited the Photos of women who did not use Defendants products, including to obtain the before and after results depicted.. On information and belief, the Infringing Site is monetized in that it requests payment for goods sold through the Infringing Site, which are advertised and marketed through use of the Photos. On information and belief, Defendants have received a financial benefit directly attributable to their infringement, including from consumer payments for the fraudulently sold goods. On information and belief, all of Defendants profits stemming from the Infringing Site during the time it displayed Plaintiff s Photos are recoverable wrongful profits as consumers would not have purchased Defendants products without the compelling before and after Photos.. As a result of Defendants misconduct, Defendants have obtained wrongful profits, and Plaintiff has been substantially harmed. FIRST CLAIM FOR RELIEF Copyright Infringement, U.S.C. 0, et seq. (Against All Defendants). Plaintiff re-alleges and incorporates each allegation contained in the paragraphs above as if fully alleged herein.. Plaintiff s Photos are original, creative works in which Plaintiff owns protectable copyright interests.. Plaintiff has a copyright application with the USCO covering the Photos.. Plaintiff has not licensed use of its Photos to Defendants or assigned any of its exclusive rights in its copyrights to Defendants.. On information and belief, without permission or authorization from Plaintiff, and in willful violation of Plaintiff s rights under U.S.C. 0, Defendants reproduced the Photos on the Infringing Site. 0. Defendants reproduction of the Photos on the Infringing Site

7 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 constitutes willful copyright infringement.. On information and belief, numerous people have viewed the unlawful copies of Plaintiff s Photos on the Infringing Site.. On information and belief, Defendants had knowledge of the copyright infringement alleged herein and had the ability to stop the infringement, yet willfully chose to engage in the infringing acts regardless.. Defendants copyright infringement has damaged Plaintiff in an amount to be proven at trial. SECOND CLAIM FOR RELIEF Contributory Copyright Infringement (Against Defendant Yeganian). Plaintiff re-alleges and incorporates each allegation contained in the paragraphs above as if fully alleged herein.. On information and belief, Defendant Yeganian participated in the infringement of Plaintiff s Photos by, and in addition to the conduct discussed above, financially benefiting from the infringement of Plaintiff s copyrights in the Photos with the knowledge that Defendant Honest Creams LLC did not have any rights in the Photos and with the right and ability to control Defendant Honest Creams LLC s conduct on the Infringing Site.. On information and belief, Defendant Yeganian provided the means by which Defendant Honest Creams LLC infringed on Plaintiff s copyrights by, among other things, intentionally and willfully taking the Photos for the purpose of using them to compete with Plaintiff s business and knowingly directing the Photos to be posted to the Infringing Site. As a result, Defendant Yeganian s knowing and willful conduct caused and materially contributed to Defendants infringement of Plaintiff s Photos.. Defendant Yeganian s contributory copyright infringement has damaged Plaintiff in an amount to be proven at trial.

8 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests judgment as follows:. That the Court enter judgment in favor of Plaintiff;. That the Court enjoin Defendants from copyright infringement;. That the Court award Plaintiff: a. Plaintiff s actual damages and Defendants wrongful profits under U.S.C. 0(b) in an amount to be proven at trial, and/or statutory damages under U.S.C. 0(c), including for willful infringement after copyright registration; b. Plaintiff s attorney s fees under U.S.C. 0; c. Plaintiff s costs; and d. Such other relief that the Court deems just and proper. Respectfully Submitted, DATED: January, 0 KRONENBERGER ROSENFELD, LLP By: s/karl S. Kronenberger Karl S. Kronenberger Attorneys for Plaintiff Edgar Babayan

9 Case :-cv-00-psg-mrw Document Filed 0// Page of Page ID #: 0 0 REQUEST FOR JURY TRIAL Plaintiff hereby demands a trial of this action by jury. DATED: January, 0 KRONENBERGER ROSENFELD, LLP By: s/karl S. Kronenberger Karl S. Kronenberger Attorneys for Plaintiff Edgar Babayan