IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION ECO ADVENTURE HOLDINGS, LLC and OZARK MOUNTAIN ZIPLINE, LLC, v. Plaintiffs, ADVENTURE ZIPLINES OF BRANSON LLC, Defendant. Case No.: JURY TRIAL DEMANDED COMPLAINT FOR TRADEMARK INFRINGEMENT COME NOW Plaintiffs Eco Adventure Holdings, LLC and Ozark Mountain Zipline, LLC (together Eco, by and through its undersigned counsel, and for their Complaint for trademark infringement against Defendant Adventure Ziplines of Branson LLC ( Defendant, state: NATURE OF ACTION 1. This action arises from Defendant s unauthorized and unlawful infringement of Eco s trademark rights in the mark BRANSON ZIPLINE. 2. Eco seeks injunctive and monetary relief against Defendant under the Lanham Act and Missouri law: THE PARTIES 3. Plaintiff Eco Adventure Holdings, LLC is a Missouri limited liability company, with its principal place of business in Walnut Shade, Missouri. Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 1 of 10
4. Plaintiff Ozark Mountain Zipline, LLC is a Missouri limited liability company, with its principal place of business in Branson, Missouri. It is the exclusive licensee of the BRANSON ZIPLINE mark. 5. Defendant is a Missouri limited liability company with its principal place of business in Branson, Missouri. JURISDICTION AND VENUE 6. This Court has jurisdiction over the subject matter of this claim pursuant to 28 U.S.C. 1331, 1332, 1338(a, and 1367. 7. Personal jurisdiction exists over Defendant in this District and Division because Defendant is located in and has transacted business with residents of the State of Missouri. 8. Venue is proper in this District and Division pursuant to 28 U.S.C. 1391(b as Defendant resides in this District and a substantial part of the events or omissions giving rise to the claim occurred in this District and Division. FACTS COMMON TO ALL COUNTS A. Eco s Branson Zipline Mark 9. Eco has been using the mark BRANSON ZIPLINE since 2009 in connection with canopy tours and zipline events for entertainment purposes. 10. Eco has used the BRANSON ZIPLINE mark in advertising, on brochures, on signage, on its website and in other ways. B. The Infringing Use 11. Defendant has been using and continues to use the marks BRANSON ZIPLINE and BRANSON ZIPLINE TOUR, including in its domain name www.bransonziplinetour.com, and has used and is using the phrase BRANSON ZIP LINES in its website metatags and Google 2 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 2 of 10
search result titles, in connection with canopy tours and ziplining for entertainment purposes. These marks are used in connection with the same services and are confusingly similar to Eco s BRANSON ZIPLINE mark. 12. Notwithstanding Eco s longstanding use of BRANSON ZIPLINE, Defendant nevertheless chose this name in similar forms for its trademarks and domain name. 13. The selection of these particular names is of no coincidence as it is clear Defendant has done everything it can to trade off of the good will and name recognition of Eco s BRANSON ZIPLINE mark. 14. Eco previously demanded that Defendant cease using the word BRANSON on its website and Defendant previously agreed to stop using confusingly similar marks. Apparently, Defendant has reneged on that agreement. 15. On January 10, 2014, Eco again demanded Defendant cease and desist from its infringing activities. A copy of this letter is attached hereto as Exhibit 1 and incorporated herein by reference. 16. Notwithstanding Eco s demands and its well-known trademark, Defendant has continued to use its infringing marks. 17. As such, Defendant s infringement was and is willful. 18. Defendant s actions are intended to deceive consumers as to the source and quality of its services it has continued to market to the public. 19. Defendant s unauthorized use of its infringing marks is likely to mislead, deceive, and confuse the relevant purchasing public and trade. It is probable that consumers have mistakenly believed and will continue to believe that: (1 Defendant s ziplines are related to or owned by Eco; (2 Defendant s zipline is endorsed or authorized by Eco; and/or (3 Eco has 3 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 3 of 10
licensed its mark to Defendant, all to the detriment of Eco and the purchasing public. Eco already is aware of actual confusion. 20. As a result of Defendant s infringement of BRANSON ZIPLINE and other wrongful acts, Eco has and will continue to suffer significant damages and irreparable injury. 21. Eco has no adequate remedy at law because Defendant s acts will continue to cause damage and irreparable injury to Eco unless enjoined by this Court. FIRST CAUSE OF ACTION FEDERAL TRADEMARK INFRINGEMENT OF BRANSON ZIPLINE MARK (15 U.S.C. 1125 22. Eco restates paragraphs 1 through 21 as if fully set forth herein. 23. Defendant s unauthorized use of BRANSON ZIPLINE TOUR and BRANSON ZIPLINES, which are confusingly similar to Eco s BRANSON ZIP LINE mark, are likely to cause confusion, deception, and mistake by creating the false and misleading impression that Defendant s services are organized by Eco or are associated or connected with Eco. Eco has, in fact, already received reports of actual confusion. 24. Defendant s aforementioned actions constitute willful and intentional infringement of Eco s rights in its BRANSON ZIPLINE mark in violation of 15 U.S.C. 1125. 25. Defendant s actions have caused, and unless enjoined by this Court, will continue to cause, serious and irreparable injury and damage to Eco, for which Eco has no adequate remedy at law. 26. Defendant had actual notice of Eco s BRANSON ZIPLINE mark prior to its adoption, use, and marketing of the infringing names. 4 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 4 of 10
27. Defendant s actions demonstrate an intentional, willful, and malicious intent to trade on the goodwill associated with Eco s BRANSON ZIPLINE mark thus entitling Eco to injunctive relief and to recover Defendant s profits, actual damages, enhanced profits and damages, costs, and attorneys fees pursuant to 15 U.S.C. 1116 and 1117. SECOND CAUSE OF ACTION FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN (15 U.S.C. 1125 28. Eco restates paragraphs 1 through 27 as if fully set forth herein. 29. Defendant s unauthorized use of the infringing marks falsely suggests that its services are connected with, sponsored by, affiliated with, or related to Eco and/or and constitutes unfair competition and false designation of origin in violation of 15 U.S.C. 1125. 30. Defendant s actions have caused, and unless enjoined by this Court, will continue to cause, serious and irreparable injury and damage to Eco, for which Eco has no adequate remedy at law. 31. Defendant s actions demonstrate an intentional, willful, and malicious intent to trade on the goodwill associated with Eco s BRANSON ZIPLINE mark, thus entitling Eco to injunctive relief and to recover Defendant s profits, actual damages, enhanced profits and damages, costs, and attorneys fees pursuant to 15 U.S.C. 1116 and 1117. THIRD CAUSE OF ACTION TRADEMARK INFRINGEMENT UNDER MISSOURI LAW (Mo. Rev. Stat. 417.061 and 417.066 and Missouri Common Law 32. Eco restates paragraphs 1 through 31 as if fully set forth herein. 33. Defendant s unauthorized use of the infringing marks is likely to cause confusion, deception, mistake, and injury to Eco s business reputation by creating the false and misleading 5 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 5 of 10
impression that Defendant s ziplines are organized by Eco or are associated or connected with Eco. 34. Defendant s aforementioned actions constitute willful and intentional infringement of Eco s rights in violation of Mo. Rev. Stat. 417.061 and 417.066 and Missouri common law. 35. Defendant s actions have caused, and unless enjoined by this Court, will continue to cause, serious and irreparable injury and damage to Eco, for which Eco has no adequate remedy at law. 36. Defendant had actual notice or constructive notice of Eco s BRANSON ZIPLINE mark prior to its adoption, use, and marketing of the infringing names and marks. 37. Defendant s actions demonstrate an intentional, willful, and malicious intent to trade on the goodwill associated with Eco s BRANSON ZIPLINE mark thus entitling Eco to injunctive relief and to recover Defendant s profits, actual damages, enhanced profits and damages, costs, and attorneys fees. FOURTH CAUSE OF ACTION UNFAIR COMPETITION AND TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY UNDER MISSOURI COMMON LAW 38. Eco restates and incorporates by reference the allegations set forth in paragraphs 1 through 37 as if fully set forth herein. 39. Defendant s unauthorized use the infringing marks mark falsely suggests that its services are connected with, sponsored by, affiliated with, or related to Eco and constitutes unfair competition under Missouri common law. 40. Eco has a valid business relationship or expectancy with its contractors, advertisers, ticket resellers, and travel agencies. 6 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 6 of 10
41. Defendant had and continues to have knowledge of these valid business relationships or expectancies. 42. Defendant, through its aforementioned activities, has intentionally interfered with Eco s valid business relationships or expectancies. 43. Defendant s actions were and are without justification. 44. Defendant s actions have caused, and unless enjoined by this Court, will continue to cause, serious and irreparable injury and damage to Eco, for which Eco has no adequate remedy at law. 45. Defendant s actions demonstrate an intentional, willful, and malicious intent to trade on the goodwill associated with Eco s BRANSON ZIPLINE mark, thus entitling Eco to injunctive relief and damages, including punitive damages. FIFTH CAUSE OF ACTION BREACH OF CONTRACT 46. Eco restates paragraphs 1 through 45 as if fully set forth herein. 47. Defendant, through its counsel, agreed that it would cease using the term BRANSON in its marks and names. 48. Despite that agreement, Defendant is again using marks and names which include BRANSON as part of those marks and names, all in breach of the prior agreement. 49. As a result of Defendant s breaches, Eco has suffered damages and will continue to suffer damages, not all of which will adequately compensate Eco. 50. As a result of Defendant s breaches, Eco also will suffer irreparable harm. PRAYER FOR RELIEF WHEREFORE, for all of the foregoing reasons, Eco seeks the following relief: 7 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 7 of 10
a. An injunction prohibiting Defendant, and its agents, servants, employees, representatives, and all others in active concert or participation with them, either directly or indirectly, from: i. using any marks or names incorporating the terms ZIPLINE and BRANSON, including but not limited to BRANSON ZIPLINE TOUR, BRANSON ZIPLINE and BRANSON ZIP LINES, or any other mark, logo, name, or designation that creates a likelihood of confusion, mistake, or deception with respect thereto; and ii. doing any other act or thing likely to induce or that induces the mistaken belief that Defendant is in any way affiliated, connected, or associated with Eco; b. An injunction ordering Defendant to take down the website located at www.bransonziplinetour.com, and transferring such domain name to Plaintiff. c. An order requiring Defendant to recall and destroy all materials and advertisements and remove all signage and metatags bearing or using the abovereferenced infringing marks; d. An order requiring Defendant to immediately remove all uses of and references to the above-referenced infringing marks, or any other mark that is likely to be confused with the BRANSON ZIPLINE mark from any website affiliated with or related to Defendant and any website through which Defendant s services are marketed, and an order requiring Defendant to transfer to Eco all domain names containing the term of zipline and Branson; 8 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 8 of 10
e. Damages in favor of Eco and against Defendant, sufficient to compensate Eco for all damages sustained as a result of Defendant s actions as alleged herein including, but not limited to (1 all profits received by Defendant from sales and revenues of any kind made as a result of its actions, trebled and (2 all damages sustained by Eco as a result of Defendant s actions, trebled; f. Compensation for the advertising and other expenditures necessary to dispel any public confusion caused by Defendant s unlawful acts; g. Pursuant to 15 U.S.C. 1116, an order requiring Defendant to file with the Court and serve on Eco within thirty (30 days after issuance of an injunction, a report in writing and under oath setting forth in detail the manner and form in which Defendant has complied with the judgment and order; h. Because Defendant s acts were deliberate and willful, an award of increased and/or punitive damages and all reasonable attorneys fees, costs, and disbursements incurred by it as a result of this action, pursuant to 15 U.S.C. 1117, Missouri common law or otherwise; i. An order requiring Defendant to pay Eco prejudgment interest on all monetary awards; j. An order requiring Defendant to pay the costs of this suit; and k. For such other and further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL Eco hereby demands a jury trial on all issues so triable. 9 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 9 of 10
Respectfully submitted, POLSINELLI PC Dated: January 10, 2014 By: /s/ Jeffrey H. Kass JEFFREY H. KASS (MO #50170 100 South Fourth Street, Suite 1000 St. Louis, Missouri 63102 Phone: (303 583-8212 Facsimile: (314 231-1776 E-Mails: jkass@polsinelli.com KAREN M. ZELLE (MO #63345 100 South Fourth Street, Suite 1000 St. Louis, Missouri 63102 Phone: (314 889-8000 Facsimile: (314 231-1776 E-Mail: kzelle@polsinelli.com ATTORNEYS FOR PLAINTIFFS Eco Adventure Holdings, LLC and Ozark Mountain Zipline, LLC 46775140.1 10 Case 6:14 cv 03013 DGK Document 1 Filed 01/10/14 Page 10 of 10