Good Sports Inc v. Cafepress.com Inc et al

Filing 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

GOOD SPORTS, INC. Plaintiff, vs. DATE: February 27, 2008 CAFEPRESS.COM, INC. and JOHN DOE(s) Defendants CASE NO.:

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COMPLAINT WITH INJUNCTIVE RELIEF AND ORDER OF SEIZURE SOUGHT Plaintiff GOOD SPORTS, INC. (hereinafter, "Plaintiff" or "GOOD SPORTS"), by and through its undersigned counsel, for its Complaint against defendants CAFEPRESS.COM INC. and JOHN DOE(s) (hereinafter, "Defendants" or "CAFEPRESS") states the following. Allegations are made on belief and are premised on the belief that the same are likely to have evidentiary support after a reasonable opportunity for further investigation and discovery.

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THE PARTIES 1. Plaintiff GOOD SPORTS is a corporation which is organized and doing business under the laws of the State of Connecticut, with its principal place of business located at 349 Progress Drive, Manchester, Connecticut.

2. Defendant CAFEPRESS.COM, Inc., upon information and belief,

is a Delaware

corporation, with an office located at 1850 Gateway Drive Suite 300, San Mateo, California. Defendant CAFEPRESS.COM, upon information and belief, operates an internet business that produces and sells products bearing various artwork designs, including unauthorized copies of the copyrighted artwork of the plaintiff.

3. Defendant(s) JOHN DOE(s), upon information and belief, own the website www.skullshock.com, which is operated on their behalf by defendant CAFEPRESS.COM.

4. The defendants individually and collective have profited and continue to profit from the infringement of the plaintiff's copyrighted artwork.

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BACKGROUND

5.

Plaintiff owns all right, title and interest to several hundred Federal Registered

Copyrights including but not limited to; VAu 568-588 "Skull and Crossbones" (collectively "Copyrighted Artwork").

6.

Plaintiff manufactures, distributes and sells a variety of apparel items, including but not

limited to a shirts, embroidered patches, jackets, bandannas and other items containing the aforementioned Copyrighted Artwork.

7.

Upon information and belief, Defendants operate an online storefront and website over

the internet which offers for sale, produces and distributes a variety of apparel products and other items bearing unauthorized copies of the plaintiff's copyrighted artwork.

NATURE OF ACTION 8. This is an action for copyright infringement under the Copyright Act of 1976, 17 U.S.C.

§101 et seq., and the Lanham Act, 15 U.S.C. §1051 et seq., based on the defendant's misappropriation, copying and creation of derivative works based upon the Copyrighted Artwork .

9.

This is an action for unfair trade practices under the Connecticut Unfair Trade Practices

Act , Conn. Gen. Stat. § 45-110 et seq. , and unfair competition under the common law of the

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State of Connecticut, and is based on the Defendant's adoption and use of the plaintiff's established rights in their Copyrighted Artwork.

JURISDICTION AND VENUE 10. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1338(a) (acts of

Congress relating to copyrights and trademarks) namely, the Copyright Act of 1976, 17 U.S.C. §101 et seq., 28 U.S.C. 1338(b) (pendent unfair competition claims) and 28 U.S.C. § 1332(a) (diversity of citizenship).

11.

Venue is proper in this district pursuant to 28 U.S.C. §1400(a) and 1391(b) and (c), as the

Defendants are businesses subject to personal jurisdiction and is therefore deemed to reside here for purposes of venue.

FACTS COMMON TO ALL COUNTS 12. Plaintiff GOOD SPORTS authored in 1999 and has owned continuously since that time

artwork titled "Skull and Crossbones" as illustrated in Exhibit I which is attached hereto. GOOD SPORTS has published "Skull and Crossbones" in varying derivations using a variety of color schemes however the pre-dominate color scheme associated with the work has been white bones crossed beneath a skeleton skull.

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13.

The Skull and Crossbones artwork is copyrightable subject matter under the laws of the

United States. Plaintiff GOOD SPORTS owns Federal Copyright Registration # VAu-568-588 dated October 30, 2002 for "Skull and Crossbones" for which a copy for the Federal Registration is attached as Exhibit I hereto.

14.

The "Skull and Crossbones" work (hereafter referred to as the "GOODS SPORTS

ARTWORK") is the legally owned work of GOOD SPORTS. The design depicted in the GOOD SPORTS ARTWORK and all the exclusive copyrights including derivative works thereof are entitled to copyright protection.

15.

Plaintiff GOOD SPORTS has manufactured and sold numerous embroidered patches,

decals, tee-shirt and other items incorporating individual designs from the GOOD SPORTS ARTWORK beginning in 2000. GOOD SPORTS has expended substantial resources in designing, promoting, manufacturing and selling products bearing the GOOD SPORTS ARTWORK. Plaintiff GOOD SPORTS has built a valuable business and demand for its distinctively-styled, quality teeshirts, decals, embroidered patches and other items bearing the GOOD SPORTS ARTWORK. GOOD SPORTS has become identified in the minds of the public as the provider of products bearing the designs from the GOOD SPORTS ARTWORK.

15.

At some date, at least as early as September 2008, upon information and belief, Defendants

caused to be offered for sale, manufactured, and sold to the public items bearing the GOOD

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SPORTS ARTWORK . Such CAFEPRESS products are not only substantially similar, but strikingly similar to the design of the GOOD SPORTS ARTWORK.

16. A picture of the SkullShock product no. 104691417 "Value T-Shirt Rebel Flag" which infringes GOOD SPORTS' copyright in "Skull and Crossbones" is attached hereto as Exhibit II and is representative of the defendants' infringement. Defendants have copied the GOOD SPORTS

ARTWORK and created unauthorized derivative works from artwork which are substantially similar to the Good Sports designs and offered its product in the same color combinations as the aforementioned GOOD SPORTS' work.

17. Defendants have offered for sale, manufactured and sold at least fifty-one different items bearing the GOOD SPORTS ARTWORK. An itemized list of the defendants' part numbers is attached as Exhibit III.

18. A picture of the SkullShock product no. 124230435 "Value T-Shirt Rebel Pride" which infringes GOOD SPORTS' copyright in "Skull and Crossbones" is attached hereto as Exhibit IV and is representative of the defendants' infringement. Defendants have copied the GOOD

SPORTS ARTWORK and created unauthorized derivative works from the artwork which are substantially similar to the Good Sports designs and offered its product in the same color combinations as the aforementioned GOOD SPORTS' work.

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19. Defendants have offered for sale, manufactured and sold at least sixty different items bearing the GOOD SPORTS ARTWORK. An itemized list of the defendants part numbers is attached as Exhibit V. COUNT ONE COPYRIGHT INFRINGEMENT 20. Paragraphs 1 through 19 are incorporated herein as though set forth in their entirety.

21.

Defendants unlawfully and willfully copied all or part of the GOOD SPORTS ARTWORK

in violation of GOOD SPORTS' copyright in both design and color combinations.

22.

With full knowledge of Plaintiff's rights herein, Defendants have infringed and continue to

infringe GOOD SPORTS' copyrights by making or having made goods bearing an unauthorized copy of the GOOD SPORTS ARTWORK and then selling and distributing products containing said artwork throughout the United States. Such copying was done by Defendants without the consent, approval or license of GOOD SPORTS. Defendants' products contain wholesale copies of GOOD SPORTS' works, all in violation of its copyrights.

23. The Defendants' products in appearance and color are not only substantially similar, but are strikingly similar to each design of the GOOD SPORTS ARTWORK exuding the same "look and feel" as GOOD SPORTS' copyright.

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24.

Defendants' product dilute the market and serve to destroy the distinctiveness of GOOD

SPORTS' copyrighted works.

25. GOOD SPORTS has lost substantial revenue from Defendants unlawful and willful copying of the GOOD SPORTS ARTWORK and therefore the value of GOOD SPORTS' copyrighted material has been diminished.

26.

GOOD SPORTS sale of it own works and derivative works is prejudiced by Defendants

copyright infringement.

27.

Defendants' acts as aforesaid violate GOOD SPORTS' exclusive rights under §106 of the

Copyright Act of 1976, 17 U.S.C. §106, and constitute infringement of his copyrights. Defendants past and continuing copying, distribution and sale of the products constitutes a willful and

deliberate infringement of GOOD SPORTS' copyrights and is causing irreparable harm and damage to Plaintiff.

COUNT TWO UNFAIR COMPETITON

28.

Plaintiff, GOOD SPORTS, repeats and re-alleges paragraphs 1 through 27 and each

paragraph is incorporated herein as though set forth in their entirety.

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29

This action for unfair competition is a substantial and related claim to Defendant's

infringement of GOOD SPORTS' copyrights and pursuant to § 1338(b) of Title 28 of the United States Code, the court has and should assume pendent jurisdiction of this claim.

30.

Defendants, in the unlawful and willful copying of the GOOD SPORTS ARTWORK

and placing the designs of the GOOD SPORTS ARTWORK on the Defendants' products, creates a likelihood of confusion among the public that the original source of the defendants' products is GOOD SPORTS and have contributed to the dilution of the distinctive quality of GOOD SPORTS' work and products in the marketplace.

31.

Defendants, by their unauthorized appropriation and use of GOOD SPORTS'

copyrighted works, have and are engaging in acts of unfair competition, unlawful appropriation, unjust enrichment, wrongful deception of the purchasing public, and unlawful trading on GOOD SPORTS' good will and the public's acceptance of GOOD SPORTS' copyrighted works, all to GOOD SPORTS' irreparable damage.

32. court.

Defendants' conduct resulting in unfair competition will continue unless enjoined by this

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COUNT THREE TRADE DRESS 33. Plaintiff repeats and re-alleges paragraphs 1 through 32 as though fully set forth herein in

their entirety.

34.

When designing and manufacturing its tee-shirts, embroidered patches, decals, jackets

and other items GOOD SPORTS through the design of its GOOD SPORTS ARTWORK has adopted a particular dress, design and combination of features to produce a particular visual appearance for the purpose of presenting its goods to the public.

35.

Defendants have attempted to imitate GOOD SPORTS' particular design, dress and

combination of features, as they pertain to the graphics on the products it sells, in such a way as to mislead the public.

36.

The multiplicity of similarities between each and every design in the GOOD SPORTS

ARTWORK and those produced and manufactured by Defendants evidence a conscious intent by Defendants to copy and/or imitate GOOD SPORTS.

37.

Defendants use of color and combination of colors when copying and/or imitating the

GOOD SPORTS ARTWORK evidences a conscious intent of Defendant to imitate and copy GOOD SPORTS.

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38.

Defendants actions are intended and/or operate to confuse the public.

39.

GOOD SPORTS' sale of its own works, derivative works, and expanding the use of its

copyrighted artwork on expansion products is prejudiced by Defendants imitation and copying of the GOOD SPORTS ARTWORK, all to GOOD SPORTS' irreparable damage.

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WHEREFORE, Plaintiff requests that the Court grant them the following relief:

A. Defendants be enjoined during the pendency of this action and permanently thereafter from appropriating and using GOOD SPORTS' copyrighted works;

B. Defendants be enjoined during the pendency of this action and permanently thereafter from selling its infringing products to the public;

C. That the Court order the impoundment and destruction of all products containing materials constituting infringement of the GOOD SPORTS ARTWORK and any other GOOD SPORTS' copyrighted works found in the possession of the Defendants;

D. That Defendants be required to pay to Plaintiff such actual damages as they have sustained as a result of Defendants copyright infringement pursuant to 17 U.S.C. §504(b);

E. That Defendants be required to account for and disgorge to Plaintiff all gains, profits, and advantages derived by its copyright infringement pursuant to 17 U.S.C. 504(b);

F. That Defendants be required to pay Plaintiff statutory damages pursuant to 17 U.S.C. §504(c);

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G. That Defendants be required to pay Plaintiff an award of statutory damages due to Defendants' willful infringement pursuant to 17 U.S.C. §504(c)(2);

H. That Defendants be ordered to pay to Plaintiff the costs of this action along with reasonable attorney fees;

J. That Plaintiff be granted such further relief as the Court deems just.

Respectfully submitted, /s/ mario g ceste

MARIO G. CESTE, Esq. Fed. Bar No. CT24859 Law Offices of Mario G. Ceste P.O. Box 82 Wallingford, Connecticut 06492 203-678-6418 801-761-3314 (Fax) Email:[e-mail]

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INDEX OF EXHIBITS I. II. III. IV. V. Good Sports "Skull and Crossbones " Copyright Reg. No. VAu568-588 Defendants' Product No. 104691417 "Value T-Shirt Rebel Flag" Listing of Infringing "REBEL FLAG" Products Defendants' Product No. 124230435 "Value T-Shirt Rebel Pride" Listing of Infringing "REBEL PRIDE" Products

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Exhibit I Good Sports Copyright Reg. No VAu 568-588

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EXHIBIT II

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EXHIBIT III

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Exhibit IIV

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EXHIBIT V

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