ROLLING THUNDER MOTORCYCLE RALLY, WASHINGTON, D.C., INC. v. DOES et al

Filing 1

COMPLAINT against ABC COMPANIES, JANE DOES, JOHN DOES ( Filing fee $ 350, receipt number 4616047985) filed by ROLLING THUNDER MOTORCYCLE RALLY, WASHINGTON, D.C., INC.. (Attachments: # 1 Civil Cover Sheet)(dr)

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA ROLLING THUNDER MOTORCYCLE RALLY, WASHINGTON,D.C., INC., 34597 Harry Byrd Highway Suite 1 Round Hill, VA 20141 Civil Action No. Plaintiff, v. JOHN DOES 1-100, JANE DOES 1-100, and ABC COMPANIES 1-100, individuals and business entities, Defendants. VERIFIED COMPLAINT FOR COPYRIGHT INFRINGEMENT Plaintiff, ROLLING THUNDER MOTORCYCLE RALLY,WASHINGTON,D.C., INC., as and for its Complaint against Defendants, JOHN DOES 1-100, JANE DOES 1-100, and ABC COMPANIES 1-100, allege as follows: Parties 1. Plaintiff, ROLLING THUNDER MOTORCYCLE RALLY, WASHINGTON, "Rolling Thunder-DC"), is anon-profit Washington, D.C. corporation, with a D.C., INC.( business address at 34597 Harry Byrd Highway, Suite 1, Round Hill, VA 20141. 2. On information and belief, Defendants John Does 1-100, Jane Does 1-100 and ABC Companies 1-100 are either residents of, or are present in this judicial district, are transacting and doing business at premises in this judicial district, and are subject to the jurisdiction of this Court. Defendants, alone or through their agents, servants, or employees, are manufacturing, distributing, selling and/or offering for sale goods and merchandise that infringe upon the copyrighted work of Plaintiff Rolling Thunder-DC. The identities of the various John Does, Jane Does and ABC Companies are unknown to Plaintiff at this time, but the Defendants are expected to be seen engaged in their illegal activities in or around Washington, D.C. during Memorial Day 2012. This Complaint will be amended to include the names of the Defendants when they are identified. 3. John Does 1-100, Jane Does 1-100 and ABC Companies 1-100 inclusive, are hereinafter collectively referred to as "Defendants." 4. Upon information and belief, Defendants are individuals or business entities that are acting alone or in concert and active participation with each other in committing the wrongful acts alleged herein. Jurisdiction and Venue 5. This is a civil action arising under the copyright laws of the United States. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1338(a). 6. Venue in this district is proper under 28 U.S.C. §§ 1391(b) and (c), and 28 U.S.C. § 1400(a). The ROLLING THiJNDER Motorcycle Rally 7. In 1987, the founders of what is today Rolling Thunder-DC conceived of the idea to host a motorcycle rally in the Nation's Capitol on Memorial Day to raise the public's awareness that American servicemen had been abandoned in Southeast Asia at the end of the Vietnam War. This public demonstration of unity and solidarity was intended show that our "POWs/MIAs still mattered to their fellow ") Nation's Prisoner's of War and Missing in Action( servicemen and the country for which they sacrificed their freedom. -2- 8. On Memorial Day in 1988, in response to numerous letters, flyers, and by word-of-mouth, thousands of motorcycles poured onto the streets of Washington, D.C. for the first ROLLING THiJNDER motorcycle rally. 9. The first ROLLING THUNDER rally struck a chord in the hearts of veterans everywhere and from all walks of life. Ever more veteran motorcyclists came and returned. to ROLLING THUNDER rallies year after year —and as a result it continued to grow. 10. Now celebrating its 25th Anniversary, ROLLING THiJNDER has grown into the world's largest single-day motorcycle event, with riders from around the nation, and from around the world. The rally continues to achieve its initial mission of greater POW/MIA awareness, and each year encourages the public's support of veterans from all wars. Rolling Thunder-DC is proud to proclaim that POW/MIA numbers from wars following the Vietnam War have greatly diminished, and the treatment ofreturning veterans has greatly improved. 11. The next ROLLING THUNDER rally is scheduled to take place in Washington, D.C. on Monday, May 28, 2012. Rolling Thunder-DC expects tens of thousands of veteran motorcyclists to participate. 12. Each year, Rolling Thunder-DC creates unique artwork to symbolize and commemorate the ROLLING THUNDER rally, and the POW/MIA awareness causes associated with it. This artwork is prominently displayed on clothing, posters, flyers and other items. Unfortunately, with near regularity and ever-greater frequency, hundreds of illicit merchants promote and sell unauthorized clothing items and merchandise bearing piratical imitations of the IUNDER artwork. ROLLING TI- -3- 13. Rolling Thunder-DC owns all right, title and interest in and to the work that is the subject of the following valid, existing and uncancelled copyright registration in the United States Copyright Office: Couvright Reg. No. Work VAu 1-095-559 See copies of the copyright registration and artwork deposit with the Register of Copyrights collectively attached as Exhibit A. 14. The ROLLING THiJNDER artwork has considerable value, is uniquely associated with Plaintiff, and is a work of authorship whose copyright ownership therein vests solely in Rolling Thunder-DC. 15. Rolling Thunder-DC has authorized certain contributors and suppliers of goods to use the copyrighted ROLLING THUNDER artwork in advertising or on goods or merchandise. Permitted use of the copyrighted ROLLING THUNDER artwork in advertising, or on goods or merchandise, is intended to signify to the public that the goods, apparel, merchandise or products bearing this artwork were supplied, furnished, approved, selected or used by Rolling -4- Thunder-DC. Accordingly, Plaintiff has established a policy and practice of restricting use of the ROLLING THiJNDER artwork to goods, merchandise and products of high quality. 16. Each year during the ROLLING THUNDER motorcycle rally, Rolling Thunder-DC has distributed within this District authorized and licensed goods and merchandise bearing prior versions of the ROLLING THiJNDER artwork. There is a substantial public demand for such goods during the rally, and as a result of this public demand, genuine goods and merchandise bearing the ROLLING THUNDER artwork have become valuable commercial properties. 17. Each year during the ROLLING THUNDER motorcycle rally, genuine goods and merchandise bearing the ROLLING THUNDER artwork have been advertised to the purchasing public throughout this District. At the upcoming rally, genuine goods bearing the ROLLING THUNDER artwork will be sold only at Thunder Alley, which is located at 22nd Street, NW, between C Street &Constitution Avenue, NW,Washington, D.C. 18. Genuine goods and merchandise bearing the ROLLING THiJNDER artwork, by reason of their style, design, excellence and quality of workmanship, and by reason of their approval by Plaintiff, have come to be well and favorably known to the purchasing public during the ROLLING THiJNDER motorcycle rally, including this District, as representing goods and merchandise of quality in workmanship. 19. Unfortunately, during ROLLING THUNDER motorcycle rallies in years past, at hastily erected booths and folding tables throughout the District of Columbia, persons and companies not authorized by Rolling Thunder-DC have sold, marketed and distributed apparel and other items that infringe Plaintiffs' copyright in prior versions of ROLLING THUNDER artwork. These unauthorized items include or bear emblems, symbols, designs, terminology -5- and/or designations identical to, substantially similar to, or virtually indistinguishable from the ROLLING THUNDER artwork. Typically, this merchandise is of inferior quality and is made available for public purchase within a few hours after Rolling Thunder-DC's genuine merchandise bearing the ROLLING THiJNDER artwork has been placed on display. 20. When Rolling Thunder-DC discovered this unauthorized and infringing merchandise at past ROLLING THUNDER motorcycle rallies, it attempted to secure the assistance of law enforcement authorities to stop the sales of these goods. However, without a court order, law enforcement would not get involved. Before Rolling Thunder-DC would ever have time to secure a court order, the ROLLING THUNDER RALLY would be over and the street-sellers ofthis infringing merchandise would be long-gone. 21. From past experience, Rolling Thunder-DC has learned that, in the absence of an injunction and impoundment order (without prior notice to the infringers), there is a strong possibility that, at the upcoming ROLLING THUNDER XXV rally, the sellers of the unauthorized and infringing merchandise will attempt to conceal, dispose of, destroy, remove, or hide their infringing merchandise or other evidence oftheir unlawful conduct. 22. Further, because the infringers' merchandise typically is of poor quality, every year this inferior merchandise is sold, Rolling Thunder-DC suffers substantial reputational and financial harm as a result ofthe infringers' wrongdoing. Defendants' Unlawful Conduct 23. On information and belief, Defendants manufacture, sell, market or distribute apparel and other items that infringe Plaintiffs' copyright in the ROLLING THUNDER artwork in that they either include or bear emblems, symbols, designs, terminology andlor designations identical to, substantially similar to, or virtually indistinguishable from the ROLLING THUNDER artwork. 24. On information and belief, Defendants are manufacturing or trafficking in such piratical and infringing goods and merchandise, in that they have caused such goods and merchandise to enter into commerce andlor be transported or used in commerce. 25. Defendants are not licensed or authorized by Plaintiff or any authorized agent of Plaintiff to use, reproduce or otherwise make use of copyrighted works, emblems, symbols, terminology and/or designations identical to, substantially similar to, or virtually indistinguishable from the ROLLING THiJNDER artwork in connection with the manufacture, distribution, advertisement, sale or offering for sale of any goods or merchandise. 26. Defendants are blatantly attempting to confuse and mislead the public as to the source ofthe goods and merchandise they are offering. 27. Defendants are being unjustly enriched by their actions in appropriating unfairly the benefits of Plaintiff's own use, advertising and licensing of the ROLLING THiJNDER ,FTi"C~ti~!~ 28. Defendants' conduct constitutes copyright infringement. 29. Defendant's conduct is willful and in knowing violation of law. 30. The harm caused by Defendants' conduct is immediate, continuing and irreparable by law. FIRST CLAIM (Infringement of Copyright) 31. Plaintiff restates and incorporates by reference each and every allegation set forkh in the prior paragraphs. 32. Plaintiff is the sole owner ofthe copyright in the ROLLING THUNDER artwork. -7- 33. Defendants have infringed, and will continue to infringe, Plaintiff's exclusive artwork, in violation ofthe Copyright Act, 17 U.S.C. §§ 101, et 34. seq. right to reproduce and to authorize the reproduction of its copyrighted ROLLING THUNDER Defendants have infringed, and will continue to infringe, Plaintiff's exclusive right to distribute and to authorize distribution of its copyrighted ROLLING THUNDER artwork. 35. Defendants have infringed, and will continue to infringe, Plaintiff's exclusive right to prepare derivative works based on its copyrighted ROLLING THUNDER artwork. 36. Defendants' conduct is knowing, willful and intentional. 37. The harm caused by Defendants' conduct is immediate, continuing and irreparable at law. 38. By reason of the foregoing, Plaintiff hereby asserts a claim against Defendants for injunctive and monetary relief pursuant to 17 U.S.C. §§ 502 through 505. PRAYER WHEREFORE,Plaintiff demands judgment in its favor and against Defendants,jointly and severally, as follows: (a) as provided by 17 U.S.C. § 502, enjoining Defendants, their agents, servants, employees, attorneys, representatives, successors and assigns and all persons, firms or corporations in active concert or participation with any of Defendants during the pendency of this action and permanently from: (1) directly or indirectly infringing the above described copyrighted ROLLING THUNDER artwork in any manner, including, but not limited to using, reproducing, manufacturing, advertising, selling, offering for sale or distributing any -8- goods or merchandise which picture, reproduce, or utilize the copyrighted ROLLING THUNDER artwork, or any other artwork that is identical to, substantially similar to, or virtually indistinguishable therefrom; (2) applying the copyrighted ROLLING THUNDER artwork, or any reproduction, piratical copy or colorable imitation of the same to any label, sign, print, package, wrapper, receptacle or advertisement used in connection with the manufacture, distribution, sale or offering for sale of any goods, apparel, merchandise or products; (3) using any simulation, reproduction, piratical copy or colorable imitation of the copyrighted ROLLING THUNDER artwork in connection with the promotion, advertisement, display, marketing sale, offering for sale, manufacture, production, importation, exportation or distribution of any goods, apparel, merchandise or products in the United States; or which relate, connect, associate or tend to relate, connect or associate such goods, apparel, merchandise or products in any way to Plaintiff, the ROLLING THiJNDER motorcycle rally, or any supplier or distributor of authentic goods, apparel, merchandise or products bearing the ROLLING TI~LTNDER artwork that is authorized or licensed by Plaintiff, or to any goods, apparel, merchandise or products sold, manufactured, sponsored, approved by or connected with Plaintiff; (4) using any logo or design that tends to falsely to represent, or is likely to confuse, mislead or deceive purchasers, Defendants' customers or members of the public that the unauthorized goods, apparel, merchandise or products manufactured, distributed, advertised, sold or offered for sale by Defendants originate from Plaintiff, or that said goods, apparel, merchandise or products are sponsored, approved, licensed, associated, connected or affiliated with Plaintiff or the ROLLING THUNDER motorcycle rally; (5) engaging in any conduct that tends falsely to represent, or is likely to confuse, mislead or deceive purchasers, Defendants' customers or members of the public that the actions of Defendants or Defendants themselves are sponsored, approved, licensed, connected or affiliated with Plaintiff or the ROLLING THiJNDER motorcycle rally; (6) affixing, applying, annexing or using in connection with the manufacture, distribution, advertising, sale, offering for sale or other use of any goods, apparel, merchandise or products, any works, emblems, symbols, terminology and/or designations identical to, substantially similar to, or virtually indistinguishable from the copyrighted ROLLING THUNDER artwork that would tend to falsely describe or represent such goods, apparel, merchandise or products as being those of Plaintiff or authorized by Plaintiff; and (7) communicating about this action, directly or indirectly, with any person or persons from whom they purchased, to whom they sold, or whom they know to possess, control or have access to goods, apparel, merchandise or products, or parts or components thereof, bearing any piratical copy, reproduction, imitation, or simulation of, or likeness to the copyrighted ROLLING THUNDER artwork; (b) as provided by 17 U.S.C. § 503(b), and within thirty (30) days of entry of judgment for Plaintiff, requiring Defendants, their agents, servants, employees, attorneys, representatives, successors and assigns and all persons, firms or corporations in active concert or participation with any of Defendants to deliver up for destruction or distribution to Plaintiff: (1) any and all goods, apparel, merchandise, products, labels, signs, packaging, wrappers, containers, advertising materials, letterhead, business cards, and -10- any other writings or materials used in their business(es), which falsely display, reproduce, copy, imitate or bear the copyrighted ROLLING THiJNDER artwork or any other works, emblems, symbols, terminology and/or designations identical to, substantially similar to, or virtually indistinguishable therefrom; (2) any screens, patterns, plates or negatives used specifically for making or manufacturing goods, apparel, merchandise or products bearing the copyrighted ROLLING THiJNDER artwork or any other works, emblems, symbols, terminology and/or designations identical to, substantially similar to, or virtually indistinguishable therefrom; and (c) as provided by 17 U.S.C. § 504, awarding to Plaintiff and against Defendants, jointly and severally, Plaintiff's actual damages and Defendants' profits or, as elected, those damages provided by 17 U.S.C. § 504(c), plus Plaintiff's attorneys' fees and.expenses pursuant to 17 U.S.C. § 501; and (d) awarding Plaintiff its attorneys' fees, allowable costs and such other and further relief as to the Court may seem just and proper. Respectfully submitted, OBLON,SPIVAK, MCCLELLAND, MAIER & NEUSTADT,L.L.P. By: Jeffrey H. Kaufman(DC Bar No. 955286) Jonathan Hudis(DC Bar No. 418872) 1940 Duke Street Alexandria, Virginia 22314 (703)413-3000 fax (703)413-2220 e-mail:jkau an eoblon.com e-mail:„ 'hudis ~ ,oblon.com Dated: Counsel for Plaintiff ROLLING THUNDER MOTORCYCLE RALLY, WASHINGTON,D.C., INC. May 4,2012 JHK/JH/klb {6793683_1.DOC} -12- Verification 1 DECLARE, under the penalty of perjury as an authorized agent and representative of ROLLING THiJNDER MOTORCYCLE RALLY, WASHINGTON, D.C., INC., that the matters and facts contained in this Complaint are true and correct. ROLLING THUNDER MOTORCYCLE RALLY, WAS By: Title: Executed on • • X 11 Certificate of Registration This Certificate issued under the seal of the Copyright Ot}ice in accordance with title i7, U~iited States Code, attests that registration has been made for the work identified below. The information on this certificate has been made a part of the Cop~•right Office records. `~`~ •STA?'E~, CrJ „ ~ n ,< T °• Y VAu 1-095-559 ,,,. ,~_ Registration Number ~ ys•~A~o.~- au~....~- a.~Q~ Register of Copyrights, United States of America Effective date of registration: Apri120,2012 Title Title of Work: ROLLING THUNDER XXV Memorial Day -May ?012 Washington D.C. Amy-ork Completion/Publication Year of Completion: 2012 Author Author: Hot Action Sportswear,Inc. s Author Created: 2-dimensional artwork Work made for hire: Yes Domiciled iv: United States Author: Rolling Thunder s Motorcycle Rally, Washington D.C.,Inc. Author Created: 2-dimensional artwork York made for hire: Yes Citizen of: United States Copyright claimant Copyright Claimant: Rolling Thunder Motorcycle Rally, Washington D.C., Inc. P.O. Box 1873, Winchester, VIRGINIA 22604, United States Transfer Statement: Written agreement Limitation of copyright claim DZaterial excluded from this claim: artwork,2-dimensional artwork of Vietnam Memorial Statue (three soldiers), Washington, D.C. New material included in claim: 2-dimensional artwork Certification Page 1 of 2 Name: Walt Sides Date: April 19, 2012 Applicant's Tracking Number: 398097US-312620 Correspondence: Yes ~_. 0 °o 0 C~0 0 o~~ c~ o,~~ co O N O ~~ ~~ Page 2 of 2 Registration #: VAUOOl095559 Sen~ice Request #: 1-757038903 ~~ .-~-0 a 0 G~"~ D C~ 0 0 ~~~' ~~ cn o N,,,,~ O N Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. Attn: 3effrey I1. Kaufman 1940 Duke Street Alexandria, VA 223Z4