Case :-cv-00 Document Filed 0// Page of Page ID #: 0 CHRISTOPHER S. RUHLAND (SBN 0) Email: christopher.ruhland@ dechert.com MICHELLE M. RUTHERFORD (SBN ) Email: michelle.rutherford@ dechert.com US Bank Tower West th Street th Floor Los Angeles, CA 00- Telephone: + 0 00 Facsimile: + 0 0 Attorneys for Plaintiff Victoria s Secret Stores Brand Management, Inc. Victoria s Secret Stores Brand Management, Inc., v. Plaintiff, Michael Ray McGhie individually and d/b/a A Michael Ray Project, Michael Ray Films, Michael Ray TV, London Philms, and Hugh Tubbe UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Defendants. Case No. :-CV- COMPLAINT FOR: 0 ()FEDERAL REGISTERED TRADEMARK INFRINGEMENT ( U.S.C. ); ()FEDERAL REGISTERED TRADEMARK DILUTION ( U.S.C. (C)); ()FEDERAL UNFAIR COMPETITION ( U.S.C. (A); ()CALIFORNIA REGISTERED TRADEMARK INFRINGEMENT; ()CALIFORNIA REGISTERED TRADEMARK DILUTION; ()COMMON LAW UNFAIR COMPETITION;AND ()COMMON LAW TRADEMARK INFRINGEMENT DEMAND FOR JURY TRIAL COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0 Plaintiff Victoria s Secret Stores Brand Management, Inc. ( Victoria s Secret ) alleges as follows: JURISDICTION. This is a civil action for trademark infringement, dilution, and unfair competition under the Lanham U.S.C. 0 et seq., California Business and Professions Code 0 et seq., and California common law. The Court has subject matter jurisdiction over the trademark claims pursuant to U.S.C. and and supplemental jurisdiction over the remaining claims pursuant to U.S.C... Venue is proper in this Court under U.S.C. (b) and (c). PARTIES. Victoria s Secret is a corporation organized and existing under the laws of the State of Delaware with its principal place of business at Three Limited Parkway, Columbus, Ohio 0.. Victoria s Secret owns numerous federally registered trademarks, including the famous VICTORIA S SECRET and VS trademarks, used in connection with women s apparel, including intimate apparel, casual and sport/athletic apparel, beauty products and a variety of other products and services.. Victoria s Secret uses these trademarks in connection with the wellknown Victoria s Secret catalogue, the website www.victoriassecret.com, and the acclaimed Victoria s Secret Fashion Show, a televised event featuring the Victoria s Secret Angel supermodels, which has become an annual highlight of the fashion industry.. Upon information and belief, Defendant Michael Ray McGhie a/k/a Michael Ray is an individual residing in Inglewood, California. On information and belief, Michael Ray operates businesses and maintains internet identities under the names A Michael Ray Project, Michael Ray Films, Michael Ray TV, London Philms, and Hugh Tubbe. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Defendant conducts his businesses and advertises his goods and services as a filmmaker, producer, and director through the online website, www.amichaelrayproject.com, as well as numerous internet and social media sites such as Twitter, Facebook, IMDb, Vimeo, YouTube, Google+, and Slated. DEFENDANT S UNLAW FUL CONDUCT. Defendant has repeatedly represented himself as the director of Victoria s Secret commercials and is using both the VICTORIA S SECRET and VS trademarks, along with Victoria s Secret s goodwill, to prop up these false representations and market and sell his goods and services.. Defendant has never been employed by Victoria s Secret for any purpose and has never directed any commercial for Victoria s Secret. 0. Defendant has uploaded videos to his website and YouTube claiming they are commercials he directed for Victoria s Secret. In connection with these videos he has used the Victoria s Secret name and well-known VICTORIA S SECRET and VS marks without permission or authorization.. On information and belief, Defendant has also uploaded videos to YouTube under the user names LondonPhilms and Hugh Tubbe. These videos also utilize the VICTORIA S SECRET and VS trademarks and claim to be audition reels and/or footage from auditions he hosted to produce and direct Victoria s Secret commercials. One of these posted by LondonPhilms contains a splash screen at the beginning of the video that reads Michael Ray TV and then Victoria s Secret Auditions ().. On information and belief, Defendant wrongfully has used the Victoria s Secret name and marks to solicit aspiring actresses and models to audition for him. As his YouTube and website videos demonstrate, Mr. McGhie s conduct during these auditions is outrageous and completely inconsistent with the manner in which Victoria s Secret treats models. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Among the misrepresentations Defendant writes in the bio on his website are that [he]has directed TV spots for Budweiser, Coor s (sic) Lite, Lamborghini, Cadillac, Victoria's Secret, Reebok, McDonald's, Motorola, Audi, Mercedes Benz, Ikea, Gum, Nike, Adidas, and Samsung.. Defendant s unlicensed use of the VICTORIA S SECRET and VS trademarks in his advertising, marketing, distribution, and sale of his goods and services violates Victoria s Secret s trademark rights. FIRST CLAIM FOR RELIEF [TrademarkInfringement U.S.C. ]. Victoria s Secret realleeges and incorporates by reference the allegations set forth in paragraphs - above.. Victoria s Secret is the owner of numerous federal trademark registrations for the VICTORIA S SECRET and VS trademarks, including United States trademark registration numbers, 00, 0, 0, 000, 0,,,,.. Defendant is using in commerce, both within California and interstate, reproductions, counterfeits, copies, or colorable imitations of one or more of Victoria s Secret s federally registered trademarks in connection with his advertisement, display, promotion, marketing, distribution, sale and/or offer for sale of his goods and services.. Victoria s Secret has not authorized Defendant s use of its trademarks.. Defendant s unauthorized use of any one of the Victoria s Secret trademarks is likely to cause confusion, or to cause mistake, or to deceive, in violation of U.S.C. ().. Defendant acted willfully, with the intent to harm Victoria s Secret, and to trade on its reputation and goodwill.. On information and belief, Defendant has profited from his infringing conduct. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. Victoria s Secret has suffered damages resulting from Defendant s infringing conduct.. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. SECOND CLAIM FOR RELIEF [Dilution of Famous Mark U.S.C. (c)]. Victoria s Secret realleeges and incorporates by reference the allegations set forth in paragraphs - above.. As a result of Victoria s Secret continuous promotion of its goods and services in conjunction with the VICTORIA S SECRET and VS trademarks and the substantial investment in building the strength and recognition of them, the trademarks have become famous.. Defendant s use in commerce of the VICTORIA S SECRET and VS trademarks began after they became famous and his conduct has caused dilution of the distinctive quality of the marks, in violation of U.S.C. (c).. Defendant s acts of dilution are blurring the distinctiveness of the VICTORIA S SECRET and VS trademarks and tarnishing the reputation and goodwill of them.. This dilution is a direct result of Defendant s use of the trademarks to market and sell his goods and services.. On information and belief, Defendant intended to trade on Victoria s Secret s reputation and/or to cause dilution of the famous VICTORIA S SECRET and VS trademarks. 0. Victoria s Secret has suffered damages resulting from Defendant s unlawful and willful dilution of Victoria s Secret s federally registered trademarks. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. THIRD CLAIM FOR RELIEF [Unfair Competition U.S.C. (a)]. Victoria s Secret realleeges and incorporates by reference the allegations set forth in paragraphs -0 above.. Victoria s Secret s use of the VICTORIA S SECRET and VS trademarks in the United States predates any use by Defendant.. Victoria s Secret has not authorized Defendant s use of its trademarks.. Defendant s unauthorized use of any one of the Victoria s Secret trademarks is likely to cause confusion, or to cause mistake, or to deceive, in violation of U.S.C. (a).. On information and belief, Defendant has misappropriated Victoria s Secret s substantial rights in and to the VICTORIA S SECRET and VS trademarks as well as the goodwill associated with them. Unless restrained and enjoined by this Court, the Defendant s conduct will permit him to gain an unfair competitive advantage, enjoy the selling power and reputation of the Victoria s Secret trademarks, and allow Defendant to claim his work has been sponsored or authorized by Victoria s Secret.. Victoria s Secret has suffered damages resulting from Defendant s infringing conduct and unfair competition.. On information and belief, the acts of Defendant described in this complaint have been committed with the intention of deceiving and misleading the public and with the intention of causing harm to Victoria s Secret.. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0 Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. FOURTH CLAIM FOR RELIEF [TrademarkInfringement California Business and Professions Code ] 0. Victoria s Secret realleeges and incorporates by reference the allegations set forth in paragraphs - above.. Defendant is using in commerce reproductions, counterfeits, copies, or colorable imitations of one or more of Victoria s Secret s federally registered trademarks in connection with his advertisement, display, promotion, marketing, distribution, sale and/or offer for sale of his goods and services.. Victoria s Secret has not authorized Defendant s use of its trademarks.. Defendant s unauthorized use of any one of the Victoria s Secret trademarks is likely to cause confusion, or to cause mistake, or to deceive, in violation of California Business and Professions Code.. Defendant acted willfully, with the intent to harm Victoria s Secret, and to trade on Victoria s Secret s reputation and goodwill.. On information and belief, Defendant profited from his infringing conduct.. Victoria s Secret has suffered damages resulting from Defendant s infringing conduct.. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. FIFTH CLAIM FOR RELIEF [TrademarkDilution California Business and Professions Code ]. Victoria s Secret realleeges and incorporates by reference the allegations set forth in paragraphs - above. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. As a result of Victoria s Secret continuous promotion of its goods and services in conjunction with the VICTORIA S SECRET and VS trademarks and the substantial investment in building the strength and recognition of them, the trademarks have become famous. 0. Defendant s use in commerce of the trademarks began after they became famous and has caused dilution of the distinctive quality of the marks, in violation of California Business and Professions Code.. Defendant s acts of dilution are blurring the distinctiveness of the VICTORIA S SECRET and VS trademarks and tarnishing the reputation and goodwill of them.. This dilution is a direct result of Defendant s use of the trademarks to market and sell his goods and services.. On information and belief, Defendant intended to trade on Victoria s Secret s reputation and/or to cause dilution of the famous VICTORIA S SECRET and VS trademarks.. Victoria s Secret has suffered and will continue to suffer damages as a result of Defendant s infringing conduct.. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. SIXTH CLAIM FOR RELIEF [Common Law Unfair Competition]. Victoria s Secret realleges and incorporates herein by reference the allegations in paragraphs through.. Defendant, by virtue of his acts as alleged above, has willfully, knowingly, and intentionally engaged in acts of unfair competition under the common law of the State of California. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0. As a direct and proximate cause of Defendant s conduct, Victoria s Secret has sustained damages and Defendant has received wrongful gains.. By reason of Defendant s conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the irreparable harm will continue. Victoria s Secret has no adequate remedy at law. SEVENTH CLAIM FOR RELIEF [Common Law TrademarkInfringement] 0. Victoria s Secret realleges and incorporates herein by reference the allegations in paragraphs through.. By reason of Victoria s Secret s continuous use and promotion of the VICTORIA S SECRET and VS trademarks, as well as the distinctiveness of the marks, consumers associate and recognize the marks as representing a single source or sponsor of goods and, therefore, the trademarks are protectable trademarks at common law.. Victoria s Secret s common law trademark rights are superior to any rights that Defendant may claim in and to said marks.. Victoria s Secret has not authorized Defendant s use of its trademarks.. Defendant s unauthorized use of any VICTORIA S SECRET and VS trademarks is likely to cause confusion, or to cause mistake, or to deceive, in violation of the common law.. Defendant acted willfully, with the intent to harm Victoria s Secret, and to trade on Victoria s Secret s reputation and goodwill.. On information and belief, Defendant profited from his infringing conduct.. Victoria s Secret has suffered damages resulting from Defendant s infringing conduct. - - COMPLAINT
Case :-cv-00 Document Filed 0// Page 0 of Page ID #:0 0. By reason of Defendant s infringing conduct, Victoria s Secret has suffered, is suffering, and will continue to suffer irreparable harm and, unless Defendant is enjoined, the harm will continue. Victoria s Secret has no adequate remedy at law. Defendant s infringing conduct is willful, wanton, malicious, oppressive, and in conscious disregard of Victoria s Secret s rights in its trademarks and justifies imposition of punitive and exemplary damages under California Civil Code. PRAYER FOR RELIEF Wherefore, Victoria s Secret prays for relief as follows:. That Defendant, his agents, servants, employees, attorneys, and any other persons in active concert or participation with Defendant be temporarily, preliminarily, and permanently enjoined from directly or indirectly infringing Victoria s Secret s intellectual property rights in any manner, including, but not limited to using any of Victoria s Secret s federally registered trademarks in connection with Defendant s advertisement, display, promotion, marketing, distribution, sale and/or offer for sale of his goods and services, or otherwise making any unauthorized use of any of Victoria s Secret s trademarks;. That Defendant be directed to deliver to Victoria s Secret all materials bearing any simulation, reproduction, counterfeit, copy, or colorable imitation of the Victoria s Secret trademarks, as well as: a. any labels, packages, wrappers, containers or any other unauthorized promotion or advertising material item which reproduces, copies, counterfeits, imitates or bears any of the Victoria s Secret trademarks; b. any devices or elements used for making or manufacturing videos or other internet promotions incorporating the Victoria s Secret trademarks; and c. all business records believed to concern the use of Victoria s - - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0 Secret s trademarks in connection with Defendant s advertisement, display, promotion, marketing, distribution, sale and/or offer for sale of his goods and services;. That Defendant be directed to file with the Court and serve upon counsel for Victoria s Secret, within thirty days after entry of judgment, a report in writing under oath setting forth in detail the manner and form in which Defendant has complied with the requirements of the injunction;. For damages according to proof;. For damages as authorized by the relevant statutes;. For disgorgement of any money, property, or the value of any other economic benefit that Defendant has received as a result of its conduct; proper.. For punitive damages;. For interest as allowed by law;. For costs of suit, including attorneys fees;and 0. For such other relief available under law that the Court deems just and Dated: September, By: /s/ Michelle M. Rutherford Michelle M. Rutherford Christopher S. Ruhland Attorneys for Plaintiff VICTORIA S SECRET STORES BRAND MANAGEMENT, INC. - 0 - COMPLAINT
Case :-cv-00 Document Filed 0// Page of Page ID #: 0 DEMAND FOR JURY TRIAL Pursuant to Rule (b) of the Federal Rules of Civil Procedure, Victoria s Secret Stores Brand Management, Inc. hereby demands a trial by jury. Dated: September,. By: /s/ Michelle M. Rutherford Michelle M. Rutherford Christopher S. Ruhland Attorneys for Plaintiff VICTORIA S SECRET STORES BRAND MANAGEMENT, INC. - - COMPLAINT