Hells Angels Motorcycle Corporation v. Ecko Unltd, et al.

Filing 1

COMPLAINT against Ecko Unltd., Federated Retail Holdings, Inc. by Hells Angels Motorcycle Corporation. Attorney Clapp, Fritz added.(Clapp, Fritz)

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FRITZ CLAPP (Cal. Bar No. 99197)
Attorney at Law
544 Pawali Street
Kihei, Maui, HI 95673
Telephone: [phone]
Facsimile: [phone]
E-mail:
<[e-mail]>
Attorney for Plaintiff
HELLS ANGELS MOTORCYCLE
CORPORATION

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

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HELLS ANGELS MOTORCYCLE
CORPORATION, a Nevada corporation,
Plaintiff,

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Case No. _____________________

COMPLAINT FOR TRADEMARK
INFRINGEMENT AND DILUTION;
DEMAND FOR JURY TRIAL

v.
ECKO UNLTD. and FEDERATED
RETAIL HOLDINGS, INC.,
Defendants.

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Plaintiff, HELLS ANGELS MOTORCYCLE CORPORATION, by and through its
undersigned attorney, complains and alleges as follows:
JURISDICTION

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1.

This action arises under the trademark laws of the United States, 15 U.S.C.

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§1051 et seq. (Lanham Act). This court has federal question jurisdiction pursuant to 15

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U.S.C. §1121(a), 28 U.S.C. §1331 and 28 U.S.C. §1338(a).
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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PARTIES AND VENUE

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2.

Plaintiff HELLS ANGELS MOTORCYCLE CORPORATION (“HAMC”)

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is now, and at all relevant times was, a non-profit corporation organized and existing under

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the laws of the State of Nevada. HAMC is the owner of the trademarks described herein.

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3.

Defendant ECKO UNLTD. (“ECKO”) is a business entity of unknown form,

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with offices located at 40 West 23rd Street, New York, New York 10010. Defendant

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ECKO is found and transacts business within this district in Sacramento County.

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4.

Defendant FEDERATED RETAIL HOLDINGS, INC. (“FEDERATED”) is

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now, and at all times mentioned was, a corporation with offices located at 151 West 34th

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Street, New York, New York 10001. Defendant FEDERATED is found and transacts

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business within this district in Sacramento County.

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5.

PLAINTIFF’S MARK

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Venue as to each defendant is proper under 28 U.S.C. §1391.

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For over half a century, members of the Hells Angels Motorcycle Club have

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continuously employed a design mark depicting the side view of a helmeted, horned and

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feathered human skull (“the death head mark”) as a collective membership mark, service

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mark and trademark. The death head mark is used on patches, jewelry and other personal

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property for the exclusive purpose of indicating active membership in the elite

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organization of motorcycle enthusiasts.

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7.

Through continuous and conspicuous usage, the death head mark is famous.

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Plaintiff HAMC and its predecessors in interest have exercised legitimate control over the

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uses of the death head mark by the duly authorized affiliates and licensees, namely, the

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chapters and members of Hells Angels Motorcycle Club, and have been diligent in abating

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the use of the death head mark by unauthorized persons.

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8.

Plaintiff HAMC is the owner of United States trademark registration number

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2,588,116 for the death head mark, a copy of which is attached hereto as Exhibit A and

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incorporated by reference. The death head mark was previously the subject of registration

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number 1,582,050, issued on February 6, 1990.
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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9.

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The death head mark is also a component of U.S. Registrations 1,136,494

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and 1,301,050, in combination with the word mark HELLS ANGELS, which registrations

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are incontestible and currently in full force and effect.

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DEFENDANTS’ UNAUTHORIZED USAGE OF PLAINTIFF’S MARK

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10.

Within a year prior to the filing of this complaint, Defendants ECKO and

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FEDERATED have caused to be manufactured, distributed and sold, certain shirts bearing

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a design incorporating the death head mark. The design employed by Defendants on shirts

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and the registered mark of Plaintiff are shown in Exhibit B to this complaint, incorporated

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by reference.
11.

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Plaintiff HAMC has never approved Defendants’ use of the death head mark,

and Defendants have never sought permission for use of the death head mark.
12.

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Since Defendants’ use as complained herein, public confusion has arisen,

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and is likely to continue, as to the source, origin or sponsorship of the shirts incorporating

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Plaintiff’s death head mark.
13.

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Plaintiff is informed and believes, and upon such information and belief

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alleges, that Defendants had constructive and actual knowledge of Plaintiff's ownership of

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the death head mark, prior to their first use of the death head mark on shirts.
14.

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On or about July 19, 2006, Plaintiff put Defendants on actual notice of

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Plaintiff's rights and claims, and demanded that Defendants cease their unauthorized and

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improper use of the death head mark, recall and sequester the infringing items, and account

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for the infringing items manufactured, sold and on hand.
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Despite Plaintiff’s notice and demand, Defendants have continued to

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distribute and sell the infringing items, have failed to sequester the unsold items, and have

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failed to account for the infringing items.
16.

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Unless restrained and enjoined, Defendants will continue the acts

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complained of herein.

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//

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//
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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FIRST CAUSE OF ACTION

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(Lanham Act §43(a) – 15 U.S.C. §1125(a) – Trademark Infringement)

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17.

Plaintiff incorporates by reference paragraphs 1 through 16 above.

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18.

Defendants' use of the death head mark and similar designs is likely to cause

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confusion, mistake, or deception at common law and within the meaning of 15 U.S.C.

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§1114, thereby infringing Plaintiff's registered mark to Plaintiff's immediate and

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irreparable damage.

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19.

The conduct of Defendants continues to damage Plaintiff and unless enjoined

will further impair the value of Plaintiff's mark and the goodwill which Plaintiff has
acquired in the mark.

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SECOND CAUSE OF ACTION

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(Lanham Act §43(c) – 15 U.S.C. §1125(c) – Trademark Dilution)

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Plaintiff incorporates by reference paragraphs 1 through 16 above.

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Defendants' commercial use of Plaintiff's death head mark has and will cause

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dilution of the mark by “blurring.”
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Plaintiff HAMC’s reputation and to cause dilution of Plaintiff's famous death head mark.
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As a consequence of Defendants' violations, Plaintiff HAMC is entitled to

injunctive and other relief as prayed.
PRAYER FOR RELIEF

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By their acts as herein alleged, Defendants willfully intended to trade on

WHEREFORE, Plaintiff HAMC prays that this court order and adjudge that:
A.

Defendants shall be preliminarily and permanently enjoined from directly or

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indirectly using Plaintiff's death head mark, or any design similar thereto,

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pursuant to 15 U.S.C. §1116(a);

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B.

All infringing articles bearing Plaintiff's death head mark, or any mark

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similar thereto, in Defendants' possession be delivered up and destroyed as

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the Court may direct;

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C.

Defendants be required to account to Plaintiff for any and all revenues

COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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derived from the use of Plaintiff's death head mark;

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D.

Defendants be required to pay to Plaintiff damages and profits under 15
U.S.C. §1117(a);

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E.

Plaintiff be awarded treble damages pursuant to 15 U.S.C. §1117(b);

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F.

The costs of this action be awarded to Plaintiff;

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G.

Plaintiff be awarded its reasonable attorney's fees pursuant to 15 U.S.C.
§1117(a); and

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H.

Such other and further relief be granted as the court deems just.

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Dated: June 7, 2007
________________________________
FRITZ CLAPP
Attorney for Plaintiff HELLS ANGELS
MOTORCYCLE CORPORATION

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DEMAND FOR JURY TRIAL

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Plaintiff hereby demands trial by jury of all issues triable herein.
Dated: June 7, 2007
________________________________
FRITZ CLAPP
Attorney for Plaintiff HELLS ANGELS
MOTORCYCLE CORPORATION

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COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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Exhibit A

Exhibit B

MARC ECKŌ
Style 99321

HELLS ANGELS MOTORCYCLE CORPORATION
U.S. Reg. No. 2,588,116 (prior 1,582,050)