Hells Angels Motorcycle Corporation v. Headgear, Inc. et al

Filing 1

COMPLAINT against Headgear, Inc., 20/20 Fashions, Inc. ( Filing fee $ 350, receipt number 34611018450.). Filed byHells Angels Motorcycle Corporation. (gsa, COURT STAFF) (Filed on 4/23/2008) (gsa, COURT STAFF).

INTRA-DISTRICT ASSIGNMENT

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This intellectual property action is assigned on a district-wide basis pursuant

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to Civil L.R. 302(c). The action arises in Alameda and Contra Costa Counties, and may be

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assigned to the San Francisco Division pursuant to Civil L.R. 302(d).
PARTIES AND VENUE

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3.

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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4.

Defendant HEADGEAR, INC. (“HEADGEAR”) is a Virginia corporation

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with offices at 3409 Chandler Creek Road, Virginia Beach, VA 23453.

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HEADGEAR is a manufacturer of clothing items with the brand “Blac Label.”

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5.

Defendant

Defendant 20/20 FASHIONS, INC. (“20/20”) is now, and at all times

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mentioned was, a California corporation with offices at 660 Southland Mall, Ste. 660,

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Hayward, CA 94545. Defendant 20/20 is a clothing retailer with outlets in Alameda and

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Contra Costa Counties, California.

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Venue as to each defendant is proper under 28 U.S.C. §1391(b). Defendant

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20/20 resides within this district, and both Defendants have been selling within this district

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the infringing items complained of herein.
PLAINTIFF’S MARK

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7.

For over sixty years, the Hells Angels Motorcycle Club has continuously

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employed the word mark HELLS ANGELS as a collective membership mark, trademark

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and service mark. The HELLS ANGELS mark is used in connection with the promotion,

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advertising, conduct and expansion of a motorcycle club, and as indicia of active

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membership in a motorcycle club; on authorized goods such as posters, adhesive labels,

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motion pictures, and sound recordings; and in connection with authorized services such as

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promotional and entertainment services.

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8.

Plaintiff HAMC is the owner of U.S. Trademark Registration Nos.

1,136,494, 1,214,476, 1,294,586, 1,301,050, and 1,943,341 for the HELLS ANGELS word
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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mark. Attached to this complaint as Exhibit A and incorporated by this reference is a copy

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of the certificate of ownership in Reg. No. 1,294,586 for HELLS ANGELS in International

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Class 25 (for t-shirts).
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Plaintiff's registrations have become incontestable under 15 U.S.C. §1065.

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These registrations are, therefore, conclusive evidence of Plaintiff's exclusive right to use

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the registered Mark.
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Through continuous and conspicuous usage by Plaintiff HAMC and its

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authorized licensees, the HELLS ANGELS word mark (the “Mark”) is famous. The Mark

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is widely known and recognized by the public as indicating the membership and

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organization of motorcycle enthusiasts exclusively using the mark. Plaintiff HAMC has

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exercised legitimate control over the uses of the Mark by its duly authorized licensees, and

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has been diligent in abating the use of the Mark by unauthorized third parties.
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Through publicity, fact and fiction, the word mark HELLS ANGELS has

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acquired widespread public recognition, and it evokes strong and immediate reactions

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whenever it is uttered or used. The impact of this mark is virtually incomparable, and as a

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result it has great commercial value. Defendants seek to exploit that value for their own

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gain.

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DEFENDANTS’ UNAUTHORIZED USAGE OF PLAINTIFF’S MARK

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12.

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

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and 20/20 have caused to be manufactured, distributed and sold, certain shirts bearing the

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HELLS ANGELS Mark. Specimens of the designs employed by Defendants on shirts are

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shown in Exhibit B to this complaint, incorporated by reference.

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13.

Plaintiff HAMC has never approved Defendants’ use of the HELLS

ANGELS Mark, and Defendants have never sought permission for use of the Mark.
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As a result of Defendants’ use as complained herein, public confusion has

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

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incorporating Plaintiff’s Mark.

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15.

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

COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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alleges, that Defendants had actual knowledge of Plaintiff's ownership of the HELLS

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ANGELS Mark, prior to their first use of the Mark on shirts.

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On or about March 10, 2008, Plaintiff put Defendant HEADGEAR on actual

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notice of Plaintiff's rights and claims, and demanded that Defendant HEADGEAR cease its

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unauthorized and improper use of the HELLS ANGELS Mark, recall and sequester the

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infringing items, and account for the infringing items manufactured, sold and on hand. A

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copy of said written notice is attached to this complaint as Exhibit C and incorporated by

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reference.

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Despite Plaintiff’s aforesaid notice and other repeated demands, Defendants

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have wilfully continued to distribute and sell the infringing items, have failed to sequester

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the unsold items, and have failed to account for the infringing items.

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Unless restrained and enjoined, Defendants will continue the acts

complained of herein.

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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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19.

Plaintiff incorporates by reference paragraphs 1 through 18 above.

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20.

Defendants' use of the HELLS ANGELS Mark is likely to cause confusion,

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mistake, or deception at common law and within the meaning of 15 U.S.C. §1114, thereby

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infringing Plaintiff's registered Mark to Plaintiff's immediate and irreparable damage.

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The conduct of Defendants continues to damage Plaintiff and unless enjoined

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

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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 18 above.

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21.

Defendants' commercial use of Plaintiff's HELLS ANGELS Mark has and

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will cause dilution of the mark by “blurring.”
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By their acts as herein alleged, Defendants willfully intended to trade on the

COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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fame and reputation of Plaintiff HAMC and to cause dilution of Plaintiff's famous 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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WHEREFORE, Plaintiff HAMC prays that this court order and adjudge that:
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indirectly using Plaintiff's Mark, pursuant to 15 U.S.C. §1116(a);

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B.

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Defendants be required to account to Plaintiff for any and all revenues
derived from the use of Plaintiff's Mark;

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All infringing articles bearing Plaintiff's Mark in Defendants' possession be
delivered up and destroyed as the Court may direct;

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Defendants be preliminarily and permanently enjoined from directly or

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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.

Dated: April 22, 2008
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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: April 22, 2008
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FRITZ CLAPP
Attorney for Plaintiff HELLS ANGELS
MOTORCYCLE CORPORATION
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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Exhibit A

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COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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Exhibit B
COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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Exhibit C

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COMPLAINT FOR TRADEMARK INFRINGEMENT AND DILUTION; DEMAND FOR JURY TRIAL

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FRITZ CLAPP
Attorney at Law
544 Pawali Street
Kihei, Maui, HI 96753

Telephone [phone]
Facsimile 888-467-2341
<[e-mail]>

ADMITTED TO PRACTICE IN CA

10 March 2008
Jeff Watson, President
Headgear Blac Label
3409 Chandler Creek Road
Virginia Beach, VA 23453
VIA EXPRESS MAIL AND FACSIMILE TO 757-858-1204
Re:

Hells Angels Motorcycle Corporation
Trademark infringement notice and demand

Dear Mr. Watson:
It is our privilege to represent Hells Angels Motorcycle Corporation (“HAMC”) in trademark
and related business matters. HAMC is the owner of collective membership marks, trademarks and
service marks, including the word mark HELLS ANGELS which is used exclusively by the
corporation’s chartered clubs and their active members. HAMC has been diligent in the protection
of its famous marks and is the owner of numerous federal and foreign registrations. We have been
instructed to enforce our client's rights in its marks with all the remedies available under state and
federal law.
Having been employed continuously and conspicuously for over fifty years as the indicia of
membership in the chartered motorcycle clubs, HAMC’s marks are very well known by the public
and have been consistently recognized as “famous” marks by federal courts. Accordingly, HAMC’s
marks are accorded the highest level of protection against dilution from unauthorized use.
It has been brought to our attention that your company is distributing and selling shirts which
infringe the membership indicia and mark of our client. We refer in particular to the word mark
HELLS ANGELS used and registered by our client (U.S. Registration. Nos. 1,136,494, 1,214,476,
1,294,586, 1,301,050, and 1,943,341), and whose affixation on apparel is reserved exclusively for
active members of the elite motorcycle clubs. Shirts fabricated by your company and bearing this
word mark were displayed at last month’s MAGIC trade show in Las Vegas, presumably for
distribution and sale. An image of the infringing shirt is shown below.
On behalf of our client, we demand the immediate cessation of your company’s
unauthorized, improper and infringing use of our client's registered mark on shirts or apparel of any
kind, and the recall of all such items.

Your company’s unauthorized use of HAMC’s famous mark on shirts is obviously calculated
to evoke and therefore trade on the reputation of the famous motorcycle club. Such usage is likely to
cause confusion, constitutes false designation of origin and dilution under the trademark laws, and
will not be tolerated.
Under relevant law, you are deemed to have had constructive notice of our HAMC's rights in
the mark from its registration date. Through this letter, you are placed on actual notice of our client's
registered rights and we shall consider any further use of the HELLS ANGELS mark as willful and
deliberate. The Trademark Act of 1946, and the case law emanating therefrom, authorize courts to
grant attorney fees and treble damages to registered trademark owners upon such showings of willful
infringement.
Demand is hereby made that you reply by email or facsimile transmission no later than
Friday, 14 March 2008, confirming exactly what steps you have taken to cease all commerce in the
infringing shirts, and providing an accounting of all such shirts manufactured, distributed and sold,
so that we may determine the measure of damages to be assessed. The timeliness and quality of
your response, and your cooperation in recalling and sequestering the existing inventory, will be
important factors in our determination whether judicial intervention is required.
Your immediate attention to this matter is therefore expected.
Very truly yours,

Fritz Clapp
FHC/hp
hamc_237
cc:
Neal C. Schulwolf, Esq. (via facsimile to 757-491-1518)