Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 Mark Borghese, Esq. Nevada Bar No. mborghese@weidemiller.com Ryan Gile, Esq. Nevada Bar No. 0 rgile@weidemiller.com W. Lake Mead Blvd., Suite 0 Las Vegas, NV Tel. (0-0 Fax (0-0 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA THE FAB FOUR CORP., a Nevada corporation, vs. Plaintiff, THE FAB, LLC, a Colorado limited liability company; and DOES through 0, Defendants. RRG-w-r Case No.: :0-cv-00 COMPLAINT JURY DEMAND Plaintiff THE FAB FOUR CORP., a Nevada corporation (hereinafter, Plaintiff, alleges against Defendant THE FAB, LLC, a Colorado limited liability company, and DOES through 0 (together the Defendants, as follows: JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this action pursuant to U.S.C. and (a.. This Court has personal jurisdiction over Defendant THE FAB, LLC because the Defendant operates a website on the Internet that is accessible to residents of the State of Nevada and has committed intentional acts, expressly aimed at Nevada, causing harm, the brunt of which is suffered - and which the Defendant knows is likely to be suffered - in Nevada. (c.. Venue is proper in this Judicial District pursuant to U.S.C. (b and
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 THE PARTIES. Plaintiff THE FAB FOUR CORP. is a Nevada corporation with its principal place of business in Westminster, California. Upon information and belief, Defendant THE FAB, LLC, is a Colorado limited liability company having its principal place of business in Mead, Colorado.. The true names and capacities of the defendants named herein as DOES through 0 are other parties or entities who are not currently known to Plaintiff which are liable to Plaintiff for the damages complained of herein. Therefore Plaintiff sues said defendants, whether individuals, corporations, or another type of entity by these fictitious names. Plaintiff will seek leave of this court to amend its complaint to include the actual names of said defendants when their identities are determined during the course of this litigation. Plaintiff incorporates by reference herein all paragraphs of this complaint against said unknown defendants. NATURE OF THE CASE. This is an action for registered trademark infringement, false designation of origin, and unfair competition under the Trademark Act of, as amended (The Lanham Act, U.S.C. ( and U.S.C. (a. ALLEGATIONS COMMON TO ALL CLAIMS Plaintiff s Rights to THE FAB FOUR. Since at least as early as, Plaintiff (or its predecessors-in-interest has been in the business of producing and performing live musical performances which pay tribute to the songs and performances made famous by the legendary group The Beatles in the 0s and 0s. Unless otherwise specifically identified, any references to Plaintiff shall refer to Plaintiff as well as Plaintiff s predecessors-in-interest.. Since at least as early as, Plaintiff has performed such entertainment services under the name THE FAB FOUR (the FAB FOUR Mark. 0. Since at least as early as, Plaintiff has continuously used the FAB FOUR Mark in conjunction with advertising, promoting, and marketing its entertainment services as a RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 Beatles tribute band.. Through Plaintiff s extensive marketing efforts, Plaintiff s performances have achieved great success and renown throughout the United States.. Since, Plaintiff has performed over two thousand performances of its Beatles tribute show using the FAB FOUR Mark.. Plaintiff has performed its entertainment services under the FAB FOUR Mark to large audiences in major concert venues throughout the United States, including California, Nevada, New York, Oregon, Colorado, Illinois, Georgia, Arizona, Hawaii, Utah, Washington, Indiana, Pennsylvania, Missouri, Idaho, Florida, Alabama, Massachusetts, Texas, North Carolina, Kentucky, Iowa, Kansas, Ohio, Nebraska, Minnesota, Wisconsin, Connecticut, and even Washington D.C.. Plaintiff has also performed its entertainment services under the FAB FOUR Mark internationally in such countries as the United Kingdom, Australia, Canada, Germany, Korea, Dubai, Mexico, Germany, and France as well as on various international cruise ships.. Plaintiff s performances have received praise and acclaim from many wellrecognized celebrities such as Mickey Dolenz (singer, The Monkees, Paul Stanley (singer for KISS, Cynthia Lennon (John Lennon's first wife, and Louise Harrison (George Harrison's sister.. Plaintiff s performances under the FAB FOUR Mark have been showcased on such television programs as Entertainment Tonight, Extra, Access Hollywood, Good Morning America, and Ellen s Really Big Show.. Plaintiff has also performed under the FAB FOUR Mark in many television and movie projects related to the Beatles throughout the years, including being chosen among over 00 Beatles tribute bands to perform the music of the Beatles for the CBS made-for-television movie The Linda McCartney Story which aired May, 00. Most recently, Plaintiff has been recruited by Robert Zemeckis to provide Beatles performance footage for the planned remake of the classic Beatles film Yellow Submarine.. Plaintiff has performed renditions of The Beatles songs under the FAB FOUR RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 Mark on the soundtracks for the 0 film Heartbreakers and the television series House.. In October 0, Plaintiff put out two CDs of its performances of various Beatles songs -- A Fab Four Christmas (a disc CD set and Have Yourself A FAB-ulous Christmas. To date, Plaintiff has sold over 00,000 copies of these CDs and they are still available for sale to the public on such widely viewed websites as Amazon.com.. Plaintiff s performance of two Christmas songs combined with a medley of a well-known Beatles song ( Joy to the World/Please Please Me and Let It Snow! Let It Snow! Let It Snow!/Eight Days a Week have appeared on the CDs Have a Fun Christmas Volume and put out by Time Life Music.. Since December 00, Plaintiff has made regular appearances on the popular Los Angeles radio talk show Breakfast with the Beatles, including an appearance as recently as May, 0. Plaintiff has performed live on several occasions in the studio, including one time in 0, when Plaintiff was asked to perform as a tribute to the late George Harrison after he passed away.. Since at least April 00, Plaintiff has promoted its FAB FOUR Mark in connection with its entertainment services on the Internet first at www.thefabfour.net and currently at www.thefabfour.com, which receives thousands of hits every day and is the highest rated Beatles-related website listed on The Beatles Internet Resource Guide (www.beatlelinks.net.. In addition to performing throughout the United States and worldwide under the FAB FOUR Mark, Plaintiff, from September 0 to June 0, also provided entertainment services in the nature of its unique brand of Beatles tribute show under the name FAB FOUR MANIA (the Las Vegas show for venues in Las Vegas.. Plaintiff s performances under the FAB FOUR Mark (including Plaintiff s Las Vegas show have been widely advertised in and/or received great attention from numerous regional magazines and newspapers including the following: Las Vegas Sun, Las Vegas Review Journal, Los Angeles Times, The Orange County Register, Showbiz Weekly, What s On The Las Vegas Guide, Burbank Leader, Southern California LIVE! (Long Beach Press-Telegram, RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 The Cincinnati Post, and the Lewiston Morning Tribune.. Since its inception, over $ million in advertising has been spent promoting the FAB FOUR Mark in connection with Plaintiff s entertainment services (including advertising for Plaintiff s Las Vegas show. This advertising consists of press kits, Internet advertising, newspaper and magazine advertising, television advertising, and major radio advertising.. Since its inception, over $ million in gross revenue has been generated by Plaintiff s performances of its entertainment services under the FAB FOUR Mark (including revenue from Plaintiff s Las Vegas show.. By virtue of Plaintiff s extensive, long-time, continuous, and exclusive use of the FAB FOUR Mark in connection with its entertainment services, Plaintiff s FAB FOUR Mark has come to be recognized and relied upon by consumers as identifying the quality entertainment services provided by Plaintiff and distinguishing those services from the services of others.. By virtue of Plaintiff s extensive, long-time, continuous, and exclusive use of the FAB FOUR Mark in connection with its entertainment services, Plaintiff s FAB FOUR Mark has become distinctive of Plaintiff s entertainment services.. By virtue of Plaintiff s extensive, long-time, continuous, and exclusive use of the FAB FOUR Mark in connection with its entertainment services, Plaintiff has developed substantial goodwill in the FAB FOUR Mark throughout the United States and as a result, the FAB FOUR Mark has come to be associated exclusively with Plaintiff and Plaintiff s performances. 0. Plaintiff is the owner of all right, title and interest in and to the FAB FOUR Mark, and the goodwill associated therewith and various registrations and applications therefore, including: U.S. Registration No.,,0 for THE FAB FOUR THE ULTIMATE TRIBUTE for entertainment, namely, live music concerts (registered January, 0; and U.S. Trademark Application No. /00, for THE FAB FOUR for RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 entertainment, namely, live performances by a musical band (filed April, 0. Defendants Infringing Activities. Upon information and belief, Defendants are using the name THE FAB! (the Infringing Mark to identify their own Beatles tribute show (the Infringing Show.. The Infringing Mark is essentially identical in sound and appearance to Plaintiff s FAB FOUR Mark.. The nature of the entertainment services in connection with which Defendants are using the Infringing Mark are identical to the entertainment services rendered by Plaintiff under the FAB FOUR Mark in that both companies provide live entertainment services in the nature of a Beatles tribute band.. Upon information and belief, Defendants are advertising and promoting the Infringing Show using the Infringing Mark on the websites www.the-fab-.com and www.gigmasters.com.. Upon information and belief, Defendants have been performing the Infringing Show under the Infringing Mark in Colorado, Wyoming, Nebraska, Montana, and Switzerland.. The Infringing Mark is likely to be perceived as the same or similar to Plaintiff s FAB FOUR Mark by consumers who are likely to believe that the source and origin of the entertainment services rendered therewith emanate from or are sponsored by or affiliated with Plaintiff.. Upon information and belief, by using the Infringing Mark to promote their entertainment services, Defendants are attempting to trade on Plaintiff s business, reputation and goodwill in its FAB FOUR Mark.. Defendants use of the Infringing Mark on Defendants website has caused internet search engines to index and rank Defendants website high in connection with internet users conducting searches for Plaintiff s FAB FOUR Mark and has caused initial interest confusion among consumers searching for Plaintiff s entertainment services.. Upon information and belief, Defendants use of the Infringing Mark in RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 connection with Defendants Infringing Show has caused actual confusion among consumers who mistakenly believe that Defendants Infringing Show is affiliated with, connected to, or associated with Plaintiff s show under the FAB FOUR Mark. 0. Unless enjoined by this Court, Defendants use of the Infringing Mark in connection with Defendants Infringing Show is likely to continue to cause consumers to be confused, mistaken, or deceived as to the affiliation, connection or association of Defendants Infringing Show with Plaintiff and as to the origin, sponsorship, or approval of Defendants Infringing Show by Plaintiff. FIRST CLAIM FOR RELIEF (Federal Trademark Infringement Under U.S.C.. Plaintiff repeats and re-alleges each and every allegation set forth in this complaint as if set forth here in full.. This is a claim for trademark infringement under Section of the Lanham Act, U.S.C... Defendants Infringing Mark is an imitation of Plaintiff s federally registered FAB FOUR Mark and Defendants use of the Infringing Mark in connection with the advertising and promotion the Infringing Show is without permission, authority or consent of the Plaintiff and said use is likely to cause confusion, to cause mistake and/or to deceive.. Defendants infringing activities have caused and, unless enjoined by this Court, will continue to cause, irreparable injury and other damage to Plaintiff s business, reputation and goodwill in its federally registered FAB FOUR Mark. Plaintiff has no adequate remedy at law.. As a direct consequence of Defendants actions, Plaintiff has been damaged monetarily in an amount to be determined at trial.. Plaintiff has been required to retain the services of a law firm to prosecute this action and is entitled to its reasonable costs and attorneys fees for the necessity of bringing this claim. / / / RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 SECOND CLAIM FOR RELIEF (False Designation of Origin and Unfair Competition under U.S.C. (a. Plaintiff hereby realleges and incorporates by reference the allegations in the preceding paragraphs as if fully set forth herein.. This is a claim for false designation of origin and unfair competition under Section (a of the Lanham Act, U.S.C. (a.. Defendants use of the Infringing Mark constitutes a false designation of origin, a false or misleading description and representation of fact which is likely to cause confusion and to cause mistake, and to deceive as to the affiliation, connection or association of Defendant with Plaintiff and as to the origin, sponsorship, or approval of Defendants services and commercial activities by Plaintiff. 0. Defendants use of a mark that is confusingly similar to Plaintiff s FAB FOUR Mark in connection with Defendants services and commercial activities was done willfully, intentionally, and deliberately with full knowledge and willful disregard of Plaintiff s wellknown and prior established rights in the FAB FOUR Mark.. As a direct and proximate result of Defendants false designation of origin and unfair competition, Plaintiff has suffered, and unless enjoined by this Court will continue to suffer, monetary loss and irreparable injury and other damage to Plaintiff s business, reputation and goodwill in its FAB FOUR Mark for which Plaintiff has no adequate remedy at law.. As a direct consequence of Defendants actions, Plaintiff has been damaged monetarily in an amount to be determined at trial.. Plaintiff has been required to retain the services of a law firm to prosecute this action and is entitled to its reasonable costs and attorneys fees for the necessity of bringing this claim. /// /// /// /// RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays for judgment against Defendant as follows: A. That the Court enter judgment in favor of Plaintiff and against the Defendants on all claims for relief alleged herein; B. That a preliminary and permanent injunction issue pursuant to Section of the Lanham Act ( U.S.C. restraining the Defendants, each of their officers, agents, servants, employees, successors and assigns and all other persons acting in concert and privity with the Defendants from:. using Plaintiff s FAB FOUR Mark or confusingly similar variations thereof, including but not limited to the Infringing Mark, alone or in combination with any other words, letters, phrases or designs, in commerce or in connection with any business or for any other purpose whatsoever, including, but not limited to, use in connection with Defendants entertainment services, using Plaintiff s FAB FOUR Mark or confusingly similar variations thereof, including but not limited to the Infringing Mark, thereof in advertising or promoting Defendants services, or using confusingly similar variations of Plaintiff s FAB FOUR Mark, including but not limited to the Infringing Mark, which are likely to create the impression that the Defendants services originate from Plaintiff, are endorsed by Plaintiff, or are connected in any way with Plaintiff;. otherwise infringing Plaintiff s FAB FOUR Mark, including infringement of U.S. Trademark Registration No.,,0;. falsely designating the origin of the Defendants services;. unfairly competing with Plaintiff in any manner whatsoever; and. causing a likelihood of confusion with Plaintiff s FAB FOUR Mark or other injury to Plaintiff s business, reputation, and goodwill. C. That the Defendants, their agents, servants, employees, attorneys, successors and assigns, and all other persons in active concert or participation with any of them who receive actual notice of the injunction by personal service or otherwise, be forthwith preliminarily and RRG-w-r
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page 0 of W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 0 permanently enjoined from:. using Plaintiff s FAB FOUR Mark or confusingly similar variations thereof, including but not limited to the Infringing Mark, alone or in combination with any other words, letters, phrases or designs, in commerce or in connection with any business or for any other purpose whatsoever, including, but not limited to, use in connection with Defendants entertainment services, using Plaintiff s FAB FOUR Mark or confusingly similar variations thereof, including but not limited to the Infringing Mark, thereof in advertising or promoting Defendants services, or using confusingly similar variations of Plaintiff s FAB FOUR Mark, including but not limited to the Infringing Mark, which are likely to create the impression that the Defendants services originate from Plaintiff, are endorsed by Plaintiff, or are connected in any way with Plaintiff;. otherwise infringing Plaintiff s FAB FOUR Mark, including infringement of U.S. Trademark Registration No.,,0;. falsely designating the origin of the Defendants services;. unfairly competing with Plaintiff in any manner whatsoever; and. causing a likelihood of confusion with Plaintiff s FAB FOUR Mark or other injury to Plaintiff s business, reputation, and goodwill. D. That Defendants be directed to file with this Court and serve on Plaintiff within thirty (0 days after the service of the injunction, a report, in writing, under oath, setting forth in detail the manner and form in which the Defendants have complied with the injunction pursuant to U.S.C. ; E. That Defendants be required to account to Plaintiff for any and all profits derived by Defendants and all damages sustained by Plaintiff by virtue of the actions of the Defendants complained of herein; F. That Defendants be ordered to pay over to Plaintiff any and all profits derived by Defendants and all damages which Plaintiff has sustained as a consequence of the actions of the Defendants complained of herein pursuant to U.S.C., subject to proof at trial; RRG-w-r 0
Case :0-cv-00-PMP-RJJ Document Filed 0/0/0 Page of 0 G. That the damages resulting from the actions of the Defendants complained of herein be trebled pursuant to U.S.C. and awarded to Plaintiff; H. That an award of interest, reasonable costs, expenses and attorneys fees be awarded to Plaintiff pursuant to U.S.C. ; I. That Defendants be required to deliver and destroy all devices, literature, advertising, goods and other materials bearing the Infringing Marks pursuant to U.S.C. ; J. That an award of compensatory, consequential, statutory, exemplary, and/or punitive damages be awarded to Plaintiff in an amount to be determined at trial; K. That an award of interest, costs, and attorneys' fees incurred by Plaintiff in prosecuting this action be awarded to Plaintiff; and L. That Plaintiff be awarded all other relief to which Plaintiff is entitled and such other and further relief as this Court may deem just. JURY TRIAL DEMANDED Plaintiff hereby demands a trial by jury on all issues raised in the Complaint which are triable by a jury. DATED this th day of July, 0. Respectfully Submitted, W. LAKE MEAD BLVD., SUITE 0 NEVADA (0-0 RRG-w-r Mark Borghese, Esq. Ryan Gile, Esq. W. Lake Mead Blvd., Suite 0 Las Vegas, NV Attorneys for Plaintiff The Fab Four Corp.