1/24/2017 10:54:17 AM Chris Daniel - District Clerk Harris County Envelope No. 14902156 By: bradley darnell Filed: 1/24/2017 10:54:17 AM CAUSE NO. 2017-04658 NFL PROPERTIES LLC, ATLANTA FALCONS FOOTBALL CLUB, LLC, and NEW ENGLAND PATRIOTS LLC, Plaintiffs, v. DOES 1 THROUGH 100, INCLUSIVE, Defendants. IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 234TH JUDICIAL DISTRICT PLAINTIFFS VERIFIED APPLICATION FOR EX PARTE TEMPORARY RESTRAINING ORDER, TEMPORARY INJUNCTION, ORDER OF SEIZURE, WRIT OF SEQUESTRATION, AND EXPEDITED DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to the Texas Rules of Civil Procedure 680, et seq. and 696, et seq., the Texas Civil Practice and Remedies Code 62.001, et seq., the Texas Trademark Act (TEX. BUS. & COM. CODE 16.001, et seq.), Texas trademark common law, and the equitable powers of this Court, NFL Properties LLC ( NFLP ), Atlanta Falcons Football Club, LLC (the Atlanta Falcons ), and New England Patriots LLC (the New England Patriots ) (collectively, Plaintiffs ) hereby file this Verified Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery (the Application ). Plaintiffs Verified Original Petition and the affidavits filed concurrently herewith demonstrate that Plaintiffs have no adequate remedy at law and stand in danger of irreparable injury in the form of, inter alia, injury to reputation caused by sales of unauthorized merchandise ( Counterfeit Merchandise ) and unlicensed, unredeemable tickets ( Counterfeit Tickets ) bearing Plaintiffs trademarks, infringement and misappropriation or conversion of their 16088001_4-1-
trademarks, dilution by blurring and by tarnishment of the uniqueness and uniformity of their trademarks, and reduced sales of licensed merchandise and tickets at the time of the Super Bowl LI game in Harris County, Texas, unless this Court enjoins Defendants manufacturing and sale of Counterfeit Merchandise and Counterfeit Tickets and authorizes the seizure of the Counterfeit Merchandise and Counterfeit Tickets. Plaintiffs Verified Original Petition, Memorandum in Support of Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery, and the accompanying affidavits demonstrate that Plaintiffs have a substantial likelihood of success on the merits of their claims. The public interest also supports the issuance of a Temporary Restraining Order, an Order of Seizure, and a Writ of Sequestration. Plaintiff NFLP is a wholly-owned subsidiary of NFL Ventures, L.P., which is a limited partnership organized and existing under the law of the State of Delaware. NFLP owns all of the NFL s trademarks, names, logos, symbols, slogans, designs, and other identifying marks and indicia (both registered and unregistered) and is responsible for licensing and protecting the same. Additionally, Plaintiff NFLP is the authorized representative of the NFL s 32 member clubs (the Member Clubs ) with respect to the licensing and protection of their trademarks, names, logos, symbols, slogans, designs, and other identifying marks and indicia. The Atlanta Falcons and the New England Patriots own all of their trademarks, names, logos, symbols, designs, and other identifying marks and indicia (both registered and unregistered). Plaintiff NFLP is the owner of, has adopted, and has used in commerce federal trademark registrations and state trademarks registered with the Texas Secretary of State s Office and/or APPLICATION -2-
registered with the United States Patent and Trademark Office ( USPTO ) related to the NFL s activities for a wide variety of products, including NATIONAL FOOTBALL LEAGUE, NFL, SUPER BOWL, the LI design, the HTX design, SUPER SUNDAY, AMERICAN FOOTBALL CONFERENCE, AFC, NATIONAL FOOTBALL CONFERENCE, NFC, VINCE LOMBARDI TROPHY, NFL EXPERIENCE, BACK TO FOOTBALL, TOGETHER WE MAKE FOOTBALL, NFL NETWORK, NFL ON LOCATION, NFL SHOP, NFL TICKET EXCHANGE, ON FIELD, PRO BOWL, SUNDAY NIGHT FOOTBALL, MONDAY NIGHT FOOTBALL, THURSDAY NIGHT FOOTBALL, TASTE OF THE NFL, the Super Bowl LI design, the NFL Shield design (including current and prior versions), the AFC design (including current and prior versions), the NFC design (including current and prior versions), the AFC Champion Trophy Design, the NFC Champion Trophy Design, the Back to Football design, the NFL NETWORK Design, and the Vince Lombardi Memorial Trophy design, among others. True and correct copies of the Certificates of Registration for the marks registered with the Texas Secretary of State s Office and/or USPTO are attached hereto as Exhibit 1 and incorporated herein for all purposes. The Atlanta Falcons and the New England Patriots have adopted and used in commerce certain of their marks and have registered those marks with the Texas Secretary of State s Office and/or USPTO, including ATLANTA FALCONS, FALCONS, FALCONS LANDING, RISE UP, THE GULCH, the Stylized ATL design, the Stylized Falcon design, the Atlanta Falcons home and away uniform designs, the Atlanta Falcons helmet logo, NEW ENGLAND PATRIOTS, PATRIOTS, PATS, DO YOUR JOB, DO YOUR JOB!, WE ARE ALL PATRIOTS, THE PATRIOT WAY, NEXT GAME UP, BOSTON PATRIOTS, BELESTRATOR, the Patriots Player design known as the Player, the Stylized NE design, APPLICATION -3-
the Stylized Patriot Head, the helmet logos of the New England Patriots, and the home and away uniform designs of the New England Patriots. True and correct copies of the Certificates of Registration for the marks registered by the Atlanta Falcons and the New England Patriots with the Texas Secretary of State s Office and/or USPTO are attached hereto as Exhibit 2 and incorporated herein for all purposes. All of the common law trademark rights and the statutory trademark registrations of the NFL, the Atlanta Falcons, and the New England Patriots as set forth herein are referred to collectively as the NFL Trademarks. To meet the public demand for merchandise relating to each year s Super Bowl game, Plaintiff NFLP annually develops and licenses specific, unique Super Bowl graphic design logos for use in connection with the production and sale of licensed merchandise relating to the Super Bowl game. See Table 1. Table 1. Representative images of the Super Bowl LI design logos. NFLP has licensed approximately 95 companies to produce high-quality merchandise specifically relating to the Super Bowl LI game, including apparel such as t-shirts, garments, and hats and souvenir items such as pennants, novelty items, and games, among many other products. Photographs of representative samples of licensed Super Bowl LI game products are attached hereto as Exhibit 3 and incorporated herein for all purposes. NFLP works closely with licensees APPLICATION -4-
and many retail outlets to assure that sufficient quantities of Super Bowl game-related licensed merchandise are available to the public. This merchandise is currently available for purchase on many ecommerce sites, at numerous retail outlets in Harris County, and at and in the vicinity of NRG Stadium and numerous Super Bowl LI-related events in this district during the time leading up to and following the Super Bowl events on and around February 5, 2017, the day of the Super Bowl LI game. Recent investigations by law enforcement authorities and investigative representatives of NFLP have revealed intentional, knowing, wanton and reckless production, distribution, offering for sale, and sale of significant quantities of Counterfeit Merchandise and Counterfeit Tickets by Defendants by and through vendors at the playoff and conference championship games, who have indicated that they intend to continue to sell Counterfeit Merchandise and Counterfeit Tickets. Photographs of representative samples of Counterfeit Merchandise purchased during this year s playoff season and at last years Super Bowl game in Santa Clara, California, are attached hereto as Exhibit 4 and incorporated herein for all purposes. Notice to Defendants of the request for the Temporary Restraining Order and Writ of Sequestration requested herein should not be required because, as a practical matter, it cannot be given. As the accompanying affidavits demonstrate, most of the vendors and manufacturers of Counterfeit Merchandise and Counterfeit Tickets are itinerant and have no business identity before or after the Super Bowl week and cannot be identified, located, or notified of the request for the Temporary Restraining Order and Writ of Sequestration. It is anticipated that the Defendants, if given notice of these proceedings, will immediately dispose of the Counterfeit Merchandise and Counterfeit Tickets, destroy records, avoid process, change the names under which they do business, or move their unauthorized activities elsewhere. APPLICATION -5-
Execution of the Order of Seizure, the Writ of Sequestration, and the Temporary Restraining Order is necessary to immediately remove the Counterfeit Merchandise and Tickets from the marketplace. Otherwise, Defendants who are itinerant vendors and manufacturers may escape service and prevent Plaintiffs from removing the infringing merchandise and tickets, thereby frustrating and destroying Plaintiffs right to relief. There is immediate danger that Defendants will conceal, dispose of, ill-treat, waste, or destroy the property currently in their possession. Upon information and belief, Plaintiffs believe that Defendants will attempt to conceal the property and may remove it from Harris County, Texas, during the pendency of this suit because of the nature of Defendants practices. This Application is based upon the attached exhibits, the accompanying Memorandum in Support of Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery and attached exhibits; the Verified Original Petition; the Affidavits of Special Agent Richard Halverson, Assistant Chief Deputy Carl Shaw, Wayne Grooms, Guy Connelly, and Anastasia Danias; any hearing in this matter; and any such other matters as this Court may deem appropriate. Plaintiffs request in this Application that this Court issue an Order enjoining Defendants from selling, marketing, distributing, or displaying for sale any infringing merchandise and tickets and issue an Order of Seizure and a Writ of Sequestration to authorize Sheriffs, Constables, and/or any other duly authorized law enforcement officers to seize and sequester all infringing merchandise and tickets on display and all documents or records related to such infringing items. WHEREFORE, Plaintiffs respectfully request the following relief: 1. That all Defendants served herein as Does 1 through 100, inclusive, and their APPLICATION -6-
respective officers, directors, agents, partners, employees, attorneys, representatives, successors, and assigns, and all other persons in active concert or participation with them, or any of them, be temporarily enjoined, and, upon final trial, permanently enjoined: (a) from producing, manufacturing, advertising, promoting, displaying for sale, offering for sale, selling, or distributing any articles of merchandise or tickets bearing the marks NATIONAL FOOTBALL LEAGUE ; NFL ; the NFL Shield designs (including current and prior versions), as depicted on Exhibit 1 hereto; SUPER BOWL ; the HTX design, as depicted on Exhibit 1 hereto; the LI design, as depicted on Exhibit 1 hereto; the SUPER BOWL LI design, as depicted on Exhibit 1 hereto; SUPER SUNDAY ; VINCE LOMBARDI TROPHY ; the VINCE LOMBARDI TROPHY design, as depicted on Exhibit 1 hereto; AMERICAN FOOTBALL CONFERENCE ; AFC ; the AFC design (including current and prior versions), as depicted on Exhibit 1 hereto; the AFC Champion Trophy design, as depicted on Exhibit 1 hereto; NATIONAL FOOTBALL CONFERENCE ; NFC ; the NFC design (including current and prior versions), as depicted on Exhibit 1 hereto; the NFC Champion Trophy design, as depicted on Exhibit 1 hereto; NFL EXPERIENCE ; BACK TO FOOTBALL ; the BACK TO FOOTBALL design; TOGETHER WE MAKE FOOTBALL ; NFL NETWORK ; the NFL NETWORK design; NFL ON LOCATION ; NFL SHOP ; NFL TICKET EXCHANGE ; ON FIELD ; PRO BOWL ; SUNDAY NIGHT FOOTBALL ; MONDAY NIGHT FOOTBALL ; THURSDAY NIGHT FOOTBALL ; TASTE OF THE NFL ; ATLANTA FALCONS ; FALCONS ; Atlanta Falcons word marks, including APPLICATION -7-
but not limited to FALCONS LANDING, RISE UP, and THE GULCH ; the Stylized ATL and Stylized Falcon designs, as depicted on Exhibit 2 hereto; the Atlanta Falcons home and away uniform designs, as depicted on Exhibit 2 hereto; the Atlanta Falcons helmet logo, as depicted on Exhibit 2 hereto; NEW ENGLAND PATRIOTS ; PATRIOTS ; New England Patriots word marks, including but not limited to PATS, DO YOUR JOB, DO YOUR JOB!, WE ARE ALL PATRIOTS, THE PATRIOT WAY, NEXT GAME UP, BOSTON PATRIOTS, and BELESTRATOR ; the Patriots Player design known as the Player, the Stylized NE, and the Stylized Patriot Head designs, as depicted on Exhibit 2 hereto; the New England Patriots home and away uniform designs, as depicted on Exhibit 2 hereto; the New England Patriots helmet logos, as depicted on Exhibit 2 hereto; the full team names, logos, and related marks of any Member Club of the National Football League (including, but not limited to, the Atlanta Falcons and the New England Patriots); and any other NFL Trademarks, any colorable imitations of any of the above, or anything confusingly similar thereto, unless such merchandise or tickets have been licensed by NFLP; (b) from making any statement or representation whatsoever or performing any act, which can or is likely to lead the trade or public, or individual members thereof, to believe that any product manufactured, distributed, or sold by Defendants is in any manner associated or connected with Plaintiffs, or is sold, manufactured, licensed, sponsored, approved, or authorized by Plaintiffs; APPLICATION -8-
(c) from engaging in any activity constituting infringement of Plaintiffs marks or any of Plaintiffs rights in said marks or constituting any dilution by blurring and by tarnishment of the goodwill, name, or reputation of the Plaintiffs; (d) from otherwise competing unfairly with NFLP, the Atlanta Falcons, and the New England Patriots; (e) from engaging in any activity constituting misappropriation and/or conversion of Plaintiffs property and property rights; (f) from erasing, deleting, altering, or destroying Defendants Counterfeit Merchandise and Counterfeit Tickets that are in Defendants possession or control during the pendency of this action; (g) from destroying any documents, electronic files, or business records that pertain to the copying, reproduction, manufacture, duplication, dissemination, or distribution and/or sale by Defendants or under Defendants authority, including any correspondence (including, but no limited to, electronic mails), sales and supplier or customer journals, ledgers, invoices, purchase orders, inventory control documents, bank records, catalogues, recordings of any type whatsoever, and all other business records and documents believed to concern the manufacture, purchase, advertising, sale, or offering for sale of such infringing copies during the pendency of this action; and (h) from effecting assignments or transfers, forming new entities or associations, or utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set forth in paragraphs (a) (g) above. 2. That Sheriffs, Constables, and/or any other duly authorized law enforcement APPLICATION -9-
officers be empowered and directed pursuant to the Texas Trademark Act and the general equitable powers of the Court, and subject to appropriate restrictions and on the conditions as set forth in an order of this Court, to seize and sequester in a secure place, pending further hearing, any and all Counterfeit Merchandise and Counterfeit Tickets bearing the NFL Trademarks set forth in the preceding Paragraph 1 of this Prayer for Relief together with all documents or records related to such Counterfeit Merchandise and Counterfeit Tickets; any cartons, vessels, boxes, or other containers in which said Counterfeit Merchandise and Counterfeit Tickets are stored, carried, displayed, or transported; any devices used to produce or reproduce such Counterfeit Merchandise and Counterfeit Tickets, including, without limitation, silk screens, molds, matrices, heat transfers, or printers; and any signs, banners, posters, displays, labels, packages, wrappings, receptacles, or advertisements intended to be used in selling, in distributing, or in connection with the sale or distribution of Counterfeit Merchandise and Counterfeit Tickets in the possession, custody, or control of any Defendants served as Does 1 through 100, inclusive, during a period commencing as of noon on Thursday, February 2, 2017 and ending on Monday, February 6, 2017, at 5:00 p.m.; 3. That all Defendants, and each of them, be ordered, pursuant to the Texas Trademark Act and the general equitable powers of the Court, to deliver up to Plaintiffs any Counterfeit Merchandise and Counterfeit Tickets in their possession, custody, or control and not seized pursuant to the order prayed for in Paragraph 2 above and the sale or other disposition of which would violate the permanent injunction prayed for in Paragraph 1 above (together with all such merchandise in the process of manufacture and any cartons, vessels, boxes, or other containers in which said Counterfeit Merchandise and Counterfeit Tickets are stored, carried, displayed, or transported; any devices used to produce or reproduce such Counterfeit APPLICATION -10-
Merchandise and Counterfeit Tickets, including, without limitation, patches, silk screens, molds, matrices, heat transfers, or printers; and any signs, banners, posters, displays, labels, packages, wrappings, receptacles, or advertisements intended to be used in selling, in distributing, or in connection with the sale or distribution of Counterfeit Merchandise and Counterfeit Tickets), which shall be disposed of by Plaintiffs upon further Order of this Court by destroying it, donating it to charity, or making such other disposition as appears appropriate; 4. That all Defendants, and each of them, be ordered to file with the Court, and to serve on counsel for Plaintiffs, within 30 days of the date of entry of final judgment herein, a written statement, under oath, setting forth in detail the form and manner in which each Defendant has complied with the orders herein; 5. That after due proceedings, Plaintiffs may, subject to further order of the Court, dispose of the seized Counterfeit Tickets by destroying them and dispose of the seized Counterfeit Merchandise by destroying it, donating it to charity, or making such other disposition as appears appropriate; 6. That Defendants, and each of them, be ordered to show cause why they should not pay to Plaintiffs all profits arising from the sale of Counterfeit Merchandise and Counterfeit Tickets bearing the NFL Trademarks; 7. That the Court enter an Order allowing Plaintiffs to take expedited discovery in the form of depositions and attendant requests to produce documents upon three-days notice for the depositions and requests to produce; 8. That after due proceedings, Defendants, and each of them, be ordered to pay to Plaintiffs all damages sustained by Plaintiffs from the sale of Counterfeit Merchandise and Counterfeit Tickets bearing the NFL Trademarks; APPLICATION -11-
9. That after due proceedings, Defendants, and each of them, be ordered to pay to Plaintiffs all of Plaintiffs costs, expenses, disbursements, and reasonable and necessary attorneys fees; and 10. That Plaintiffs be granted such other and further relief as this Court deems just and proper. Respectfully submitted, /s/ Lynne Liberato Lynne Liberato State Bar No. 00000075 Poorav K. Rohatgi State Bar No. 24093063 HAYNES AND BOONE, LLP 1221 McKinney, Suite 2100 Houston, Texas 77010-2007 Telephone: (713) 547-2000 Telecopier: (713) 547-2600 Jeffrey M. Becker State Bar No. 02015730 HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Telephone: (214) 651-5000 Telecopier: (214) 651-5940 COUNSEL FOR PLAINTIFFS NFL PROPERTIES LLC, ATLANTA FALCONS FOOTBALL CLUB, LLC, AND NEW ENGLAND PATRIOTS LLC APPLICATION -12-
STATE OF NEW YORK _ COUNTY OF NEW YORK _ VERIFICATION BEFORE ME, the undersigned notary, on this day personally appeared Anastasia Danias, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified: "I, Anastasia Danias, am of sound mind and capable of making this verification. I am Senior Vice President and Chief Litigation Officer for the National Football League and an officer of NFL Properties LLC. I have read the foregoing Plaintiffs' Verified Application for Ex Parte Temporary Restraining Order, Temporary Injunction, Order of Seizure, Writ of Sequestration, and Expedited Discovery, and the factual allegations contained therein are within my knowledge and are true and correct except for the matters ~~~!" stated to be alleged on informatii:ef, and thods I believe to bo. b.tq!,,~. Anastasia Danias ~ l ~ SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this the day of January, 2017. (SEAL) tru\jjjl (.._ Notary Public in and for the Stute of hlt,u L-(0{ I<.._ NAI\ CY ~Er.MAN Noi : r: P 1 Jt i 1c, ft.1t, Of New York,, c. 01U t' 'J48;3f'l C11 :,.~ d In l\j : w County Co -", on Exp.ru; l'v~o _ u /c,/jp My commission expires on: \ \ \ C\ \ \((/ APPLICATION -13-
CERTIFICATE PURSUANT TO LOCAL RULE 3.3.6 I certify that to the best of my knowledge the parties against whom ex parte relief is sought are not represented by counsel in this matter. /s/ Lynne Liberato Lynne Liberato APPLICATION -14-