Marcel Fashion Group v. Cafepress.Com, Inc.

Filing 1

Case 1:06-cv-20097-MGC

Document 1

Entered on FLSD Docket 01/18/2006

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORID A CASE N J)

MARCEL FASHION GROUP, INC ., a Florida corporation , Plaintiff, V. CAFEPRESS .COM, INC ., a Delaware corporation , Defendant .

6-20097 Cl VCO Q
'
MAGISTRATE JUDCA BROWN

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COMPLAINT

CA)

Plaintiff, Marcel Fashion Group, Inc ., by and through their undersigned attorney, sues Defendant, CafePress .com, Inc ., and alleges : JURISDICTION AND VENU E 1 . This is an action for injunctive and other relief under the Federal Trademark Act , 15 U .S .C . § 1051, et seq . (" Lanham Act"), part icularly 15 U .S .C . § 1125, for trademark infringement , false designation of origin , false description or representation, and related unfair competition . Plaintiff also asserts claims under the common law for trademark infringement, an d unfair competition . 2 . This Court has jurisdiction over this action pursu ant to 28 U .S .C . §§ 1331, 1338(a), an d 1338(b) .

Case 1:06-cv-20097-MGC

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3 . Venue is proper under 28 U .S .C . §§ 1391 (b) and 1391 (c) in that, upon information and belief, the wrongful acts commi tt ed by Defendant occurred in and are causing inju ry in the Southern District of Florida.

THE PARTIE S 4 . Plaintiff, Marcel Fashion Group, Inc . is a corporation duly organized under the laws of the State of Florida ("Marcel") with its principal place of business in Miami-Dade County, State of Florida . 5 . Defendant, CafePress .com, Inc . ("CafePress .com"), is a corporation duly organized under the laws of the State of Delaware with its principal place of business in the State of California, is actively doing business in the Southern District of Florida, and is otherwise sui juris . PLAINTIFF'S TRADEMARK 6 . Plaintiff is the owner f U .S . Trademark Registration No . 2765974 . Plaintiff is a maker of clothing, namely, mens and women's jeans and t-shirts, woven's and knits ; baby clothes, namely t-shirts, short sets comprised of tops and shorts, pant sets comprised of tops and pants, and rompers . 7 . Plaintiff has, since at least as early as 1985 and long prior to the acts of Defendant complained of herein, adopted and used in commerce the inherently distinctive designation and trademark "GET LUCKY" ("the mark or trademark") on its goods since at least as early as 1985 and is the owner of the trademark under statutory and common law rights, due to the nationwide sales of Plaintiff's goods under the "GET LUCKY" trademark .

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Case 1:06-cv-20097-MGC

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8 . Such use has been continuous since at least as early as 1985 and Plaintiff ' s use has been nationwide , including , both Florida an d California. 9 . Defendant CafePress .com uses the designation "GET LUCKY" on identical goods as those of Plaintiff, including t-shirts. 10 . Plaintiff is the senior user by vi rtue of its prior use of the mark "GET LUCKY, " since Plaintiff has continuously used the mark since at least as early as 1985 , which pre-dates Defendant ' s first use . 11 . Since long prior to the acts of Defendant complained of herein , Plaintiff has achieved wide-spread and substantial sales of its goods designated by the trademark "GET LUCKY" in commerce . 12 . By virtue of long and continuous use, and since long prior to the acts of Defendant complained of herein , the marks have developed a secondary me an ing and significance, and have been readily recognizable by the public and the trade as a designation associated with Plaintiff . 13 . The trademark , since long prior to the acts of Defendant complained of herein, has been associated in the public mind exclusively with Plaintiff and its goods . The mark had come to identify Plaintiff ' s goods, and furthermore , to distinguish said goods from those of others . DEFENDANT ' S ACTIVITIES 14 . Defend ant operates a website accessible through the domain Cafepress . com ., and upon information and belief, its goods are sold throughout the United States, including the State of Florida. 15 . Defendant delivered goods bearing the GET LUCKY trademark into Florida pursuan t to an order placed by Plaintiff.

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16. Defendant has continuously adve rtised an d sold its goods under the infringing trademark on its website using the designation "GET LUCKY" and despite repeated demands to cease its activity, continues to sell infringing goods unabated . 17 . Long subsequent to Plaintiff ' s adoption and use of the marks in commerce, Defendant has used Plaintiff' s mark in the adve rtisement and sale of identical and closely related goods such that Defendant' s use is likely to cause consumer confusion . 18 . Plaintiff has never permitted nor licensed Defend an t ' s use of Plaintiff' s trademark . 19 . Plaintiff is not affiliated , connected , or associated with Defendant, nor has Plaintiff originated , sponsored , or approved of Defend an t ' s use of the marks . 20 . Defendant has misappropriated the goodwill associated with Plaintiff's mark for their own use . 21 . Defendant ' s use of the marks on identical or closely related products an d services is likely to cause confusion and a false association between Plaintiffs products and se rv ices, and the products and se rvices offered by Defend ant , falsely leading consumers to believe that they em an ate from the same source, or that there is an association between Plaintiff an d Defendant. 22 . Defendant' s use in commerce of the trademarks is designed and calculated and is likely to cause confusion , to cause mistake , and to deceive customers and prospective customers as to the origin or sponsorship of Defend ant ' s products and serv ices , an d to cause them to mistakenly believe that Defendant' s products are the products of Plaintiff or are sponsored, licensed , authori zed , or approved by Plaintiff , all to the detriment of Plaintiff, the trade , and the public .

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Case 1:06-cv-20097-MGC

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23 . Defend an t ' s aforesaid acts have harmed Plaintiffs reputation, severely damaged Plaintiffs goodwill , and upon information and belief, have dive rt ed sales from Plaintiff, and have resulted in diminished sales . 24 . Defend ant ' s aforesaid acts have caused and will cause great and irreparable inju ry to Plaintiff, and unless said acts are restrained by this Cou rt, they will be continued and Plaintiff will continue to suffer great and irreparable injury. 25 . Plaintiff has no adequate remedy at law . COUNT I - FEDERAL TRADEMARK INFRINGEMEN T 26 . Plaintiff incorporates herein each and every allegation set forth in Paragraphs I through 25 as if fully set fo rth herein. 27 . With full knowledge and awareness of Plaintiffs ownership an d prior use of the "GET LUCKY" trademark , Defendant has intentionally used in commerce , and upon information and belief, will continue to intentionally use the trademark and designation , which use is likely to cause confusion, or to cause mistake , or to deceive consumers an d the public at large . 28 . Defend ant ' s aforesaid acts constitute infringement of Plaintiffs rights in violation of §43 of the Lanham Act, 15 U .S .C . § 1125, an d upon information and belief, Defendant' s use of the trademark an d designation is intentional and wilful . 29 . Plaintiff has no adequate remedy at law .

COUNT III - FALSE DESIGNATION, DESCRIPTION, AND REPRESENTATION UNDER THE LANHAM AC T 30 . Plaintiff incorporate herein each and every allegation set forth in Paragraphs 1 through 25, 27-29, as if fully set forth herein .

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31 . Defendant has intentionally used , and upon information and belief, will continue to use in commerce the accused trademark , which use constitutes false designation (s) of origin, false or misleading description (s) of fact, or false or misleading representation (s) of fact, which are likely to cause confusion, or to cause mistake, or to deceive as to affiliation , connection, or association with Plaintiff, or origin, sponsorship , or approval of Defendant' s products by Plaintiff. 32 . Defendant' s aforesaid acts constitute unfair competition , false designation of origin , and/or false desc ri ption or representation in violation of §43(a) of the Lanham Act, 15 U .S .C . §1125(a) . 33 . Plaintiff has no adequate remedy at law .

COUNT IV - COMMON LAW TRADEMARK INFRINGEMEN T 34 . Plaintiff incorporate herein each and every allegation set forth in Paragraphs I through 25, 27-29, 31-33, as if fully set forth herein . 35 . Defendant's aforesaid acts constitute false designation(s) of origin, false or misleading description(s) of fact, or false or misleading representation(s) of fact, which are likely to cause confusion, or to cause mistake, or to deceive as to affiliation, connection, or association with Plaintiff, or origin, sponsorship, or approval of Defendant's products by Plaintiff. 36 . Plaintiff has no adequate remedy at law . COUNT V - UNFAIR COMPETITIO N 37 . Plaintiff incorporate herein each and every allegation set forth in Paragraphs I through 25, 27-29, 31-33 as if fully set forth herein .

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38. Defendant's aforesaid acts constitute infringement , misapprop ri ation, and misuse of Plaintiff' s mark , unfair competition , palming-off and passing-off against Plaintiff , and unjust enrichment of Defendant, all in violation of Plaintiff ' s rights at common law . 39 . Defend an t ' s aforesaid acts has caused and will continue to cause great and irreparable injury to Plaintiff, and unless restrained by this Court, they will be continued and Plaintiff will continue to suffer great and irreparable injury . 40 . Plaintiff has no adequate remedy at law . WHEREFORE, as to Counts 1-4, Plaintiff respectfully prays : a. That this Court will adjudge that the trademark "GET LUCKY" has been infringed as a direct an d proximate result of the acts of Defendant as set forth in this Complaint, in violation of Plaintiff' s rights under the Lanham Act, 15 U . S .C . § 1051 et sea., and the common law, and that such infringement amounts to wilful use by Defendant of Plaintiff' s trademark . b . That this Court will adjudge that Defendant has competed unfairly with Plaintiff as set forth in this Complaint , in violation of Plaintiff' s ri ghts under the L anham Act , 15 U .S .C . § 1125(a), and the common law . c . That Defendant , and all officers , directors, agents , servants , employees, affiliates, subsidiaries , parents , att o rneys , successors , and assigns , and all persons in active conce rt or participation therewith , be preliminarily and permanently enjoined and restrained : 1 . From using the accused trademark "GET LUCKY" or any other designation, service mark, or trademark similar to Plaintiff's mark complained of herein, in any way, including, in connection with clothing, jeans, t-shirts, or any similar goods or services which are likely to cause confusion ; and

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2 . From preparing, manufacturing, linking, publishing , or otherwise acquiring or using an y goods or se rv ices that utilize the "GET LUCKY" trademark, and doing any other act or thing likely to cause the public or the trade to believe that there is any connection between Plaintiff' s an d Defendant ' s goods, or their respective products ; and 3 . From all fu rther sales and commercial dealings that utilize the "GET LUCKY" trademark , or any colorable imitation . 4 . From placing any advertisement or promotion in any medium which utilizes the "GET LUCKY" trademark or designation . d . That Defendan t be required to delete and remove an y metatags or other indexing mean s from its various web sites containing Plaintiff 's "GET LUCKY" trademark or designation, an d that in any way refer to Plaintiff, or dive rt Inte rn et traffic away from web sites actually sponsored , affiliated , or controlled by Plaintiff, or that otherwise refer to Plaintiff. e . That Defendant be directed to file with this Cou rt and to serve upon Plaintiff within thi rty ( 30) days after service of the injunction issued in this action , a wri tten report under oath , setting fo rth in detail the manner of compli ance . f. That Plaintiff recover Defendant' s profits and damages arising from Defendant's acts of trademark infringement, false designation of origin, false description or representation, an d unfair competition . g. That the Court award an amount to Plaintiff for corrective advertisement, based o n

an analysis of the resources expended by Defendant in so saturating the market through Defendant's use of Plaintiff's trademark or designation . h . That the Court treble such damages as awarded in accordance with paragraph f .

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Entered on FLSD Docket 01/18/2006

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I. That Plaintiff recover, in addition to such sums as otherwise awarded, punitiv e damages in an amount that the Court deems just and proper . J. award. k . That Plaintiff recover its reasonable attorney fees incurred in this action , and that this is an exceptional case pursu ant to 15 U.S.C. § 1117 . 1 . That Plaintiffs have and recover its taxable costs and disbursements incurred in thi s
action .

That Plaintiff recover pre judgment and post judgment interest on each and every

M.

That the Cou rt award a reasonable royalty to Plaintiff for Defendant ' s wrongful

misapprop ri ation of Plaintiff's "GET LUCKY" trademark . n . That Plaintiff have other an d such fu rther relief as the Court may deem just an d proper . PLAINTIFF DEMANDS TRIAL BY JURY Date : January 17, 2006 Respectfully submitted ,

By :

Louis R. Gigliotti, E q Florida Bar No . 719 5 Louis R. Gigliotti, PA 1605 Dewey Street Hollywood, FL 33020 Ph/Fax : [phone]

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Case 1:06-cv-20097-MGC
ZaJS 44 (Rev . 11104)

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Entered on FLSD Docket 01/18/2006

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CIVIL COVER SHEE T

The 1S 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules of court . This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of ini tiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM . )

1. (a) PLAINTIFFS

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(EXCEPT IN U. S . PLAINTIFF CASES) (C) Attorney' s (Firm Name, Address, and Telephone Number)

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0 ST. LUCIE (For Diversity Cases Only) Citizen of This State

(d) Check County Where Action Arose: #DADE O MONROE 0 BROTARD o PALM BEACH O MARTI N

0 INDIAN RIVER

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111 . CITIZENSHIP OF PRINCIPAL PARTIE§(Pg& ;~t'xWnc Box for Plaintiff
and One Bfl,s'or Detndanl) TF DEF F DEF 1/1 0 1 Incorporated or Principal Place ~ 4 O 4 (/l~ of Business In This State Incorporated and Principal Place 0 5 5 / of Business In Another Stale

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Diversity (Indicate Citizenship of Part Item III)

Citizen of Another State 0 2

IV . NATURE OF SUIT Place an "X" in One Box Onl
CONTRACT
0 110 Insurance 0 120 Marine 0 130 Miller Act 0 140 Negotiable Instrument 0 150 Recovery of Overpayment & Enforcement of Judgment 0 151 Medicare Act 0 152 Recovery of Defaulted Student Loans (Excl . Veterans) 0 153 Recovery of Overpayment of Veteran's Benefits 0 160 Stockholders' Suits 0 190 Other Contract 0 195 Contract Product Liability O 196 Franchise

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Citizen or Subject of a Foreign Countr y FOR U P N LTY

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BANKRUPTCY
0 422 Appeal 28 USC 158 0 423 Withdrawal 28 USC 157

OTHER S A UT
0 400 State Reapportionment 0 410 Antitrust 0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced an d Corrupt Organization s 0 480 Consumer Credit 0 490 Cable/Sal T V 0 810 Selective Service O 850 Securities/Commodities/ Exchange 0 875 Customer Challeng e 12 USC 341 0 0 890 Other Statutory Action s 0 891 Agricultural Acts 0 892 Economic Stabilization Act 0 893 Environmental Matte rs 0 894 Energy Allocation Ac t 0 895 Freedom of information Ac t 0 900Appeal of Fee Determinatio n Under Equal Acces s to Justic e 0 950 Constitutionality of Stale Statutes

PERSONAL INJURY 0 310 Airplane 0 315 Airplane Product Liability 0 320 Assault, Libel & Slander 0 330 Federal Employers' Liability 0 340 Marine 0 345 Marine Product Liability 0 350 Motor Vehicle 0 355 Motor Vehicle Product Liability 0 360 Other Personal

r REAL PROPERTY
O 210 Land Condemnation 0 220 Foreclosure O 230 Rent Lease & Ejectment O 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

Iniury CIVIL RIGHTS
0 441 Voting 0 442 Employment 0 443 Housing/ Accommodations 0 444 Welfare O 445 Amer. wiDisabilities Employment 0 446 Amer. w/Disabilities Other O 440 Other Civil Rights

PERSONAL INJURY 0 610 Agriculture 0 362 Personal Injury 0 620 Other Food & Drug Med . Malpractice 0 625 Drug Related Seizure 0 365 Personal Injury of Property 21 USC 881 Product Liability 0 630 Liquor Laws 0 368 Asbestos Personal 0 640 RR . & Truck Injury Product 0 650 Airline Regs. Liability 0 660 Occupational PERSONAL PROPERTY Safely/Health 0 690 Other 0 370 Other Fraud 0 371 Truth in Lending I LABOR 0 380 Other Personal 0 710 Fair Labor Standards Property Damage Act 0 385 Property Damage 0 720 Labor/Mgntt. Relations Product Liability 0 730 Labor/MgmtReporting . & Disclosure Act PRISONER PETITIONS 0 740 Railway Labor Act 0 510 Motions to Vacate 0 790 Other Labor Litigation Sentence 0 791 Empl. Ret. Inc . Habeas Corpus: Security Act 0 530 General 0 535 Death Penalty 0 540 Mandamus & Other 0 550 Civil Rights 0 555 Prison Condition

0 820 Copyrights 0 830 Patent 840 Trademark

SOC" SECURITY
O 861 HLA (1395f0 0 862 Black Lung (923) O 863 DIWC/DIWW (405(g)) 0 864 SSLD Title XVI

0 865 RSI (405(g)) FEDERAL TAX SUITS
0 870 Taxes (U .S . Plaintiff or Defendant) 0 871 IRS-Third Party 26 USC 7609

V. ORIGI N
1 Original iX, Proceeding

(Place an "X" in One Box Only )

0 7 Removed from O 3 State Court

Transferred from Remanded from O 4 Reinstated or 0 5 another district Appellate Court Reopened (specify)

0 6 Multidistrict Libation

Appeal to District 0 Judge from Magistrate Judgment

(Cite the U .S . Civil Statute under which you are filing and Write a Brief Statement of Cause ( Do not cite jurisdictional statutes unless diversity) :

Vl. CAUSE OF ACTION VII . REQUESTED IN COMPLAINT : VIII . RELATED CASE(S) IF AN Y
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days es ti mated (for both sides to try entire case)

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(See instructions) :

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JS 44 Reverse (Rev. 11'04 )

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court . This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet . Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed . The attorney filing a case should complete the form as follows : 1. (a) Plaintiffs-Defendants . Enter names (last, first, middle initial) of plaintiff and defendant . If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations . If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title . (b) County of Residence . For each civil case filed, except U .S . plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing . In U .S . plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing . (NOTE : In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved . ) (c) Attorneys . Enter the firm name, address, telephone number, and attorney of record . If there are several attorneys, list them on an attachment, noting in this section "(see attachment)" . (d) County Where Action Arose. Check only one County . II . Jurisdiction . The basis of jurisdiction is set forth under Rule 8(a), F .R .C .P ., which requires that jurisdictions be shown in pleadings. Place an"X" in one of the boxes . If there is more than one basis of jurisdiction, precedence is given in the order shown below . United States plaintiff. (1) Jurisdiction based on 28 U .S .C . 1345 and 1348 . Suits by agencies and officers of the United States are included here . United States defendant . (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box . Federal question. (3) This refers to suits under 28 U .S .C . 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States . In cases where the U .S . is a party, the U .S . plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship . (4) This refers to suits under 28 U .S .C . 1332, where parties are citizens of different states . When Box 4 is checked, the citizenship of the different parties must be checked . (See Section III below ; federal question actions take precedence over diversity cases . ) Ill . Residence ( citizenship ) of Principal Parties . This section of the JS 44 is to be completed if diversity of citizenship was indicated above . Mark this section for each principal party . IV . Nature of Suit . Place an "X" in the appropriate box . If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit . If the cause fits more than one nature of suit , select the most definitive . V . Origin . Place an "X" in one of the seven boxes . Original Proceedings . (1) Cases which originate in the United States district courts . Removed from State Court . (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U .S .C ., Section 1441 . When the petition for removal is granted, check this box . Remanded from Appellate Court . (3) Check this box for cases remanded to the district court for further action . Use the date of remand as the filing date . Reinstated or Reopened . (4) Check this box for cases reinstated or reopened in the district court . Use the reopening date as the filing date . Transferred from Another District . (5) For cases transferred under Title 28 U .S.C . Section 1404(a) . Do not use this for within district transfers or multidistrict litigation transfers . Multidistrict Litigation . (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U .S .C . Section 1407 . When this box is checked, do not check (5) above . Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision . VI . Cause of Action . Report the civil statute directly related to the cause of action and give a brief description of the cause . Do not cite jurisdictional statutes unless diversity . Example : U .S . Civil Statute: 47 USC 55 3 Brief Description : Unauthorized reception of cable servic e VII. Requested in Complaint. Class Action . Place an "X" in this box if you are filing a class action under Rule 23, F .R .Cv .P . Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction . Jury Demand . Check the appropriate box to indicate whether or not a jury is being demanded . VIII . Related Cases . This section of the JS 44 is used to reference related pending cases if any . If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases . Date and Attorney Signature . Date and sign the civil cover sheet .

Case 1:06-cv-20097-MGC
% AO 120 (Rev. 2/9 9

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COMMISSIONER OF PATENTS & TRADEMARKS 2121 CRYSTAL DRIVE SUITE 1100 ARLINGTON , VA 22201

REPORT ON TH E
FILING OR DETERMINATION OF AN ACTION REGARDING A PATENT OR TRADEMAR K

In Compliance with 35 § 290 and/or 15 U .S .C . § 1 116 you are hereby advised that a court action has bee n filed in the U .S . District Court DOCKET NO . 06-20097-CIV-COOKE PLAINTIF F Marcel Fashion Group, Inc . Southern District of Florida DATE FILE D 1/17/06 DEFENDANT Cafepress . Com, Inc. on the following u Patents or X Trademarks :

U .S . DISTRICT COUR T Southe rn District of Florida

PATENT OR TRADEMARK NO . 1 2 3 No .2765974

DATE OF PATEN T OR TRADEMARK 1985

HOLDER OF PATENT OR TRADEMAR K Plaintiff

4
5

In the above-entitled case, the following patent(s) have been included :
DATE INCLUDED PATENT OR TRADEMARK NO . 1 INCLUDED B Y u Amendment DATE OF PATEN T OR TRADEMARK u Answer u Cross Bill u Other Pleadin g

HOLDER OF PATENT OR TRADEMAR K

2 3
4 5

In the above-entitled case , the following decision has been rendered or judgement issued : DECISION/JUDGEMEN T

CLERK CLARENCE MADDOX

(BY) DEPUTY CLERK Lisa I . Streets

DATE

1/18/0 6

Copy 1-Upon initiation of action, mail this copy to Commissioner Copy 3-Upon termination of action , mail this copy to Commissioner Copy 2-Upon filing document adding patent(s), mail this copy to Commissioner Copy 4-Case file copy