Arrow Productions, Ltd. v. V.C.X. Ltd. et al
Filing
1
COMPLAINT against V.C.X. Ltd., David H. Sutton (Filing fee $ 350 receipt number 09780000000001210747), filed by Arrow Productions, Ltd.. Certificate of Interested Parties due by 5/4/2009. Proof of service due by 8/22/2009. (Attachments: # 1 Summons to David H Sutton, # 2 Summons to V.C.X. Ltd., # 3 Civil Cover Sheet)(DeWitt, Clyde)
1
2
3
4
5
6
7
Clyde DeWitt
Nevada State Bar No. 9791
California State Bar No. 117911
Law Offices of Clyde DeWitt,
A Professional Corporation
732 South Sixth Street, Suite 100
Las Vegas, NV 89101
(702) 386-1756
2800 28th Street, Suite 321
Santa Monica, CA 90405-6201
(310) 392-2600; Fax: (310) 362-8667
clydedewitt@earthlink.net
8
9
10
11
12
13
Allen Lichtenstein
Allen Lichtenstein Esq.
Nevada State Bar No. 3992
3315 Russell Road, No. 222
Las Vegas, NV 89120
(702) 433-2666; Fax: (702) 433-9591
alichtensteinlaw@aol.com
Counsel for Plaintiff,
Arrow Productions, Ltd.
14
15
IN THE UNITED STATES DISTRICT COURT
16
FOR THE DISTRICT OF NEVADA – SOUTHERN DIVISION
17
18
ARROW PRODUCTIONS, LTD., a
Nevada Corporation,
19
20
Plaintiff,
v.
Case Number ________________
ORIGINAL COMPLAINT
1. TRADEMARK INFRINGEMENT BY
INFRINGEMENT OF REGISTERED MARKS,
FEDERAL AND NEVADA;
21
22
23
24
25
V.C.X. LTD., a Nevada Corporation,
DAVID H. SUTTON, an Individual and
DOES 1-10,
Defendants
2. TRADEMARK INFRINGEMENT AND
UNFAIR COMPETITION AT COMMON LAW;
3. UNFAIR COMPETITION BY VIOLATING
SECTION 43(a) OF THE LANHAM ACT;
4. TRADEMARK DILUTION, BY VIOLATING
LANHAM ACT 43(c) AND NEV. REV. STAT.
ANN. § 600.435
26
27
5. COUNTERFEIT GOODS VIOLATING
LANHAM ACT §§ 34(d) AND 35(b)
28
6. COPYRIGHT INFRINGEMENT
1
TABLE OF CONTENTS
Page
2
3
ORIGINAL COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4
SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5
JURISDICTION AND VENUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7
FACTS COMMON TO ALL CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8
TRADEMARK CLAIMS – DEEP THROAT®
9
10
FIRST CLAIM FOR RELIEF
INFRINGEMENT OF A REGISTERED MARK – DEEP THROAT®
[15 U.S.C. § 1117(a)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11
12
SECOND CLAIM FOR RELIEF
INFRINGEMENT OF COMMON-LAW
TRADEMARK RIGHTS – DEEP THROAT® . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13
14
THIRD CLAIM FOR RELIEF
VIOLATION OF SECTION 43(a) OF THE LANHAM ACT –
DEEP THROAT® [15 U.S.C. § 1125(a)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15
16
FOURTH CLAIM FOR RELIEF
FEDERAL TRADEMARK DILUTION – DEEP THROAT®
[15 U.S.C. § 1125(c)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
17
18
FIFTH CLAIM FOR RELIEF
INFRINGEMENT OF A NEVADA REGISTERED TRADEMARK
– DEEP THROAT® [Nev. Rev. Stat. § 600.420] . . . . . . . . . . . . . . . . . . . . . . . . . 13
19
20
SIXTH CLAIM FOR RELIEF
NEVADA TRADEMARK DILUTION – DEEP THROAT®
[Nev. Rev. Stat. § 600.435] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21
22
ALLEGATION OF DAMAGES FOR FIRST THROUGH FIFTH
CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23
INADEQUATE REMEDY AT LAW FOR THE FIRST THROUGH
SIXTH CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page i
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
2
3
TRADEMARK CLAIMS – LINDA LOVELACE™
SEVENTH CLAIM FOR RELIEF
INFRINGEMENT OF COMMON-LAW
TRADEMARK RIGHTS – LINDA LOVELACE™ . . . . . . . . . . . . . . . . . . . . . . 16
4
5
EIGHTH CLAIM FOR RELIEF
VIOLATION OF SECTION 43(a) OF THE LANHAM ACT
– LINDA LOVELACE™ [15U.S.C. § 1125(a)] . . . . . . . . . . . . . . . . . . . . . . . . . 17
6
7
NINTH CLAIM FOR RELIEF
FEDERAL TRADEMARK DILUTION
– LINDA LOVELACE™ [15U.S.C. § 1125(c)] . . . . . . . . . . . . . . . . . . . . . . . . . 18
8
9
10
11
12
13
TENTH CLAIM FOR RELIEF
INFRINGEMENT OF A NEVADA
REGISTERED TRADEMARK – LINDA LOVELACE™
[Nev. Rev. Stat. § 600.420] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ELEVENTH CLAIM FOR RELIEF
NEVADA TRADEMARK DILUTION
– LINDA LOVELACE™ [Nev. Rev. Stat. § 600.435] . . . . . . . . . . . . . . . . . . . . 20
ALLEGATION OF DAMAGES FOR THE SIXTH THROUGH
TENTH CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
14
15
INADEQUATE REMEDY AT LAW FOR THE SIXTH THROUGH
ELEVENTH CLAIMS FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
16
COUNTERFEITING CLAIM
17
18
TWELFTH CLAIM FOR RELIEF
COUNTERFEITING [15 U.S.C. §§ 1117(b) & 1116(d)] . . . . . . . . . . . . . . . . . . 22
19
ALLEGATION OF DAMAGES FOR THE TWELFTH CLAIM FOR RELIEF . . . . . . 23
20
INADEQUATE REMEDY AT LAW FOR THE TWELFTH CLAIM FOR RELIEF . . 23
21
22
23
COPYRIGHT CLAIM
THIRTEENTH CLAIM FOR RELIEF
COPYRIGHT INFRINGEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page ii
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
ALLEGATION OF DAMAGES FOR THE THIRTEENTH
CLAIM FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2
3
INADEQUATE REMEDY AT LAW FOR THE THIRTEENTH
CLAIM FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page iii
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
2
ORIGINAL COMPLAINT
COMES NOW Plaintiff Arrow Productions, Ltd. and, based upon knowledge with
3
respect to its own acts and information and belief with respect to acts of others,
4
complains:
5
SUMMARY
6
7
This case arises from Deep Throat® – Plaintiff’s trademark for the titles to a series
8
of motion pictures – along with the trademark Linda Lovelace® and Plaintiff’s copyright
9
on the famous motion picture with the name Deep Throat® – he first of the series. This
10
action is to cause the defendants to cease violating those rights and to recover damages
11
for past violations.
12
JURISDICTION AND VENUE
13
14
1.
This Court has jurisdiction over the federal trademark claims pursuant to
15
28 U.S.C. § 1331 (general federal question), 15 U.S.C. § 1121(a)(trademark) and
16
28 U.S.C. § 1338(a)(trademark).
17
18
19
2.
This Court has jurisdiction over the copyright claims pursuant to
28 U.S.C. § 1331 (general federal question) and 28 U.S.C. § 1338(a).
3.
Further, because this Court has jurisdiction to address the controversy
20
before it, 28 U.S.C. § 2201 grants the Court authority to declare the rights of the parties
21
before it, and 28 U.S.C. § 2202 authorizes the Court to grant such further relief, including
22
injunctive relief, as the Court may deem necessary and proper.
23
24
4.
Further, this Court has supplemental jurisdiction over the trademark claims
brought under Nevada law pursuant to 28 U.S.C. § 1367 because those claims are so
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 1
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
related to claims in the action over which the court has original jurisdiction that they form
2
part of the same case or controversy under Article III of the United States Constitution.
3
5.
Venue is proper because all of the individual defendants reside in Clark
4
County, Nevada and all of the entity defendants have their principal offices in Clark
5
County, Nevada and because a substantial part of the events or omissions giving rise to
6
the claim occurred in Clark County, Nevada. 28 U.S.C. § 1391(b)(1-2).
7
6.
Venue is proper in this division of this district because all individual
8
defendants reside in Clark County, Nevada and all of the entity defendants have their
9
principal offices in Clark County, Nevada. Local Rules IA 6-1 and IA 8-1(a).
10
PARTIES
11
12
7.
Plaintiff Arrow Productions, Ltd. (“Arrow” or “Plaintiff”) is a corporation,
13
organized and existing under the laws of State of Nevada with its principal office in the
14
City of Las Vegas, Clark County, Nevada. “Arrow” or “Plaintiff” as used herein includes
15
the company under its prior ownership before 1996 when Arrow Productions, Ltd. was
16
formed and acquired the entire business from its previous ownership.
17
8.
V.C.X. Ltd. (“VCX”) is a is a corporation, organized and existing under the
18
laws of the State of Nevada with its principal office in the City of North Las Vegas,
19
Clark County, Nevada.
20
21
22
9.
Defendant David H. Sutton (“Sutton”) is an individual who is a resident and
citizen of Clark County, Nevada. He is the sole officer, director and shareholder of VCX.
10.
On information and belief, individuals other than Sutton are involved in
23
VCX’s unlawful and improper activities described in this Complaint. The true names or
24
capacities, of those persons presently are unknown to Plaintiff. Consequently they are
25
referred to herein as John Does 1 through 5 (collectively the “John Doe Individual
26
____________________________________________________________________________________________________________________________________________________________
27
Page 2
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
Defendants”). On information and belief, the John Doe Individual Defendants are various
2
individuals who have participated in the acts alleged in this Complaint that give rise to
3
liability. Plaintiff will seek leave to amend this complaint to show the unknown John Doe
4
Individual Defendants’ true names and capacities when they are ascertained.
5
11.
On information and belief, entities other than VCX are involved in VCX’s
6
unlawful and improper activities described in this Complaint. The true names, capacities
7
and form of those entities presently are unknown to Plaintiff. Consequently they are
8
referred to herein as John Does 6 through 10 (collectively the “John Doe Entity
9
Defendants”). On information and belief, the John Doe Entity Defendants are various
10
entities of unknown form who have participated in the acts alleged in this Complaint that
11
give rise to liability. Plaintiff will seek leave to amend this complaint to show the
12
unknown John Doe Entity Defendants’ true names and capacities when they are
13
ascertained.
14
15
12.
“Defendants” hereafter refers collectively to Defendant VCX and
Defendant Sutton, along with any Doe defendants later added to the complaint.
16
17
18
FACTS COMMON TO ALL CLAIMS FOR RELIEF
13.
Plaintiff and VCX are competitors, both in the business of selling
19
prerecorded sexually oriented motion pictures for personal home use, presently and, in
20
recent years, in DVD format and previously in VHS videotape format.
21
14.
Plaintiff also has been in the business from time to time of making its own
22
sexually oriented motion pictures for personal home use, presently and in recent years in
23
DVD format and previously in VHS videotape format. Plaintiff also, going back to at
24
least the early 1970s, made sexually oriented motion pictures for theatrical exhibition at
25
auditorium-style theaters that specialized in that genere , although by the 1990s, such
26
____________________________________________________________________________________________________________________________________________________________
27
Page 3
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
theaters largely ceased to exist, as prerecorded videotapes of the same motion pictures
2
had captured the market.
3
15.
VCX was incorporated in 1996. Originally, however, V C X Incorporated,
4
a California corporation, was created in 1979, along with related corporations called
5
Direct Video Corporation and Showcase Video Corporation, during the early stages of the
6
home videotape era. In approximately 1986, one or all of those corporations went into
7
bankruptcy and Rudy Sutton, now deceased, who had been an employee and part owner
8
there, purchased the rights to that corporation’s film library from the corporation’s
9
bankruptcy trustee. In 1996 Rudy Sutton incorporated his ongoing business to its present
10
corporate form. On December 14, 2006, Rudy Sutton died. Defendant David M. Sutton
11
has been the sole shareholder, director and officer of VCX since at least then, and was
12
heavily involved in the company at least several years before then.
13
16.
VCX’s stock and trade is marketing sexually oriented motion pictures in
14
DVD format and over the Internet, which motion pictures primarily were made in the
15
1970s and 1980s, although it produced some movies of its own beginning in about 2004.
16
Its library of films includes those that Rudy Sutton bought from the bankruptcy trustee of
17
the original VCX, others that VCX has acquired rights to by copyright assignment or
18
license and others that VCX believes are in the public domain, generally because of a
19
belief that they were exhibited or sold prior to March 1, 1989, the effective date of the
20
Berne Convention Implementation Act of 1988, 17 U.S.C. § 101, when the copyright law
21
required affixation of a copyright notice as a requisite to maintaining an enforceable
22
copyright.
23
17.
The “Deep Throat® Motion Picture” is a motion picture work created in
24
approximately 1971. It is a famous motion picture, having enjoyed immense popularity
25
since it was first made. Numerous subsequent motion pictures made and released by
26
____________________________________________________________________________________________________________________________________________________________
27
Page 4
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
Plaintiff have also carried the title “Deep Throat,” all with an additional subtitle,
2
collectively the “Deep Throat® Series,” beginning with the Deep Throat® Motion Picture,
3
and as follows:
4
a.
Deep Throat®
5
b.
Deep Throat® # 21
6
c.
Deep Throat® # 3
7
d.
Deep Throat® # 4
8
e.
Deep Throat® # 5
9
f.
Deep Throat® # 6
10
g.
Deep Throat® the Quest Begins
11
h.
Deep Throat® the Quest Jailbreak
12
i.
Deep Throat® the Quest #3
13
j.
Deep Throat® the Quest #4
14
k.
Deep Throat® the Quest #5
15
l.
Deep Throat® the Quest #6
16
m.
Deep Throat® the Quest Best of 3-way
17
n.
Deep Throat® the Quest Best of Anal
18
o.
Deep Throat® the Quest Best of Oral
19
p.
Deep Throat® the Quest Best of Orgies
20
18.
The “Deep Throat® Mark” is a common-law mark under Nevada law, a
21
registered mark under Nevada law, Registration Number E0094112009-8 and a mark
22
registered with the United States Patent and Trademark Office, Registration Number
23
24
1
25
26
As noted, infra, there were two versions of this motion picture, albeit having
substantial much in common.
____________________________________________________________________________________________________________________________________________________________
27
Page 5
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
2993913. The Deep Throat® Mark is a famous trademark, as that term is defined and
2
understood under NEV. REV. STAT. § 600.435 and 15 U.S.C. § 1125(c).
19.
3
The central character in the Deep Throat® Motion Picture was Linda
4
Lovelace™, portrayed in that original motion picture by an actress whose real name was
5
Linda Susan Boreman, according to a book she published in 1980 about the making of
6
Deep Throat® Motion Picture.2
20.
7
The Deep Throat® Motion Picture was without exception billed as “Deep
8
Throat, Starring Linda Lovelace.” Two subsequent movies other than the Deep Throat
9
series with the Linda Lovelace™ character in the title are is follows:
10
a.
Linda Lovelace – Confessions of Linda Lovelace
11
b.
Linda Lovelace – Stars Who Do Hardcore Throat-F***3
21.
12
Additionally, the Linda Lovelace™ character was played by Linda Susan
13
Boreman in Deep one version of Throat #2. Different actresses portrayed Linda
14
Lovelace™ in Deep Throat #2 when it was re-edited, as well as in Deep Throat #3, Deep
15
Throat #4 and Deep Throat #5.
22.
16
In neither of those two, subsequent Linda Lovelace™ motion pictures was
17
the Linda Lovelace™ character played by Linda Susan Boreman, who died in April,
18
2002, although Linda Susan Boreman’s portrayal of that character appeared in trailers
19
associated with those motion pictures.4
20
21
22
23
2
1980).
M. McGrady and L. Boreman, ORDEAL (Citadel - Kensington Publishing Corp.
3
The last word of this title replaces with symbols the last three letters of a fourletter word that is generally considered offensive in formal settings.
4
24
25
26
A “trailer”, notwithstanding its name, generally appears prior to the feature
motion picture, its function being to show highlights of and advertise other motion pictures.
In mainstream motion picture theaters, they typically are promotions of upcoming motion
pictures or motion pictures currently showing in other theaters operated as a part of the same
____________________________________________________________________________________________________________________________________________________________
27
Page 6
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
23.
Linda Lovelace™ is thereby a trademark the “Linda Lovelace™ Mark;” it
2
is registered as such with the Secretary of State of the State of Nevada, Registration
3
Number E0139232009-6; an application has been filed in the United States Patent and
4
Trademark Office, Serial Number 78869507, has been published there for opposition in
5
2008 with no opposition filed, and is awaiting the filing of an affidavit of use. Linda
6
Lovelace™ is a famous trademark.
7
24.
The Deep Throat® Motion Picture was made in or about 1971 by Plaintiff.5
8
It was filmed on color motion picture film. Plaintiff remains in possession of the
9
internegative.6
25.
10
For the Deep Throat® Motion Picture, after it was made and answer prints
11
struck, Plaintiff maintained control of all of those prints. Each time the Deep Throat®
12
Motion Picture played in a theatre, the print never left Plaintiff’s control. Rather, it was
13
“four-walled,” meaning that Plaintiff’s employees rented the theater, sold tickets to the
14
theatergoers, collected the tickets and operated the projector.
26.
15
16
Therefore the theatrical exhibition of the motion picture by Plaintiff did not
constitute “publication” under the Copyright Act.
17
18
19
20
21
22
23
24
25
26
chain.
5
The motion picture was actually created and directed by the late Gerard
Damiano as a work for hire of the predecessor corporation to Plaintiff Arrow Productions,
Ltd.
6
An internegative is motion picture film stock used to make release prints for
distribution to movie theaters. After a film is shot, the original negatives – taken directly
from the camera equipment – are edited into correct sequence and printed onto fresh stock
as a cohesive film, creating an interpositive print used for color timing. From the
interpositive, answer prints, which include the color-corrected imagery and a properly synced
sound track are made. Once approved by the studio, the final answer print is made into an
internegative used for striking copies that will be delivered to theaters for viewing.
____________________________________________________________________________________________________________________________________________________________
27
Page 7
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
27.
When home videotape was introduced in the late 1970s, Plaintiff created
2
videotapes of the Deep Throat® Motion Picture , always containing a copyright notice as
3
required. By that time, all prints also contained a copyright notice.
4
28.
The first time that Plaintiff voluntarily relinquished control of any copy of
5
the Deep Throat® Motion Picture was on videotape, and those videotapes all included
6
copyright notices.7
7
29.
The copyright on the Deep Throat® Motion Picture was registered in March
8
of 1979 in the name of Plaintiff and a copyright certificate subsequently issued in due
9
course.
10
11
12
30.
In sum, Plaintiff owns the copyright on the Deep Throat® Motion Picture
and the trademark rights to the Deep Throat® Mark and the Linda Lovelace™ Mark.
31.
In early 2009, Defendants caused thousands of copies of the Deep Throat®
13
Motion Picture using the Deep Throat® Mark and the Linda Lovelace™ Mark that were
14
made and distributed throughout at least Nevada and the rest of the United States, and
15
possibly world-wide.
16
17
TRADEMARK CLAIMS – DEEP THROAT®
18
FIRST CLAIM FOR RELIEF
19
INFRINGEMENT OF A REGISTERED MARK – DEEP THROAT®
20
[15 U.S.C. § 1117(a)]
21
22
32.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
23
24
7
25
26
Plaintiff has been made aware of “pirated” copies – that is copies made without
permission from the copyright owner – in violation of Plaintiff’s copyright.
____________________________________________________________________________________________________________________________________________________________
27
Page 8
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
33.
Plaintiff adopted the mark Deep Throat® in 1972 and has since used it
2
regularly in interstate commerce for a series of motion picture works using “Deep Throat”
3
as the title with those motion pictures subsequent to the first one in 1972 each adding a
4
subtitle. On June 10, 2004, Plaintiff filed an application for registration of said mark in
5
the United States Patent and Trademark Office. On September 13, 2005, said mark was
6
registered in the United States Patent and Trademark Office on the Principal Register
7
under the Act of 1946 covering the use of said mark on pre-recorded videotapes and
8
DVDs featuring adult entertainment programs and movies, registration number 2993913.
9
Said registration is now outstanding and valid.
10
34.
Continuously since on or about June 11, 1972, Plaintiff has used the mark
11
Deep Throat® to identify its adult entertainment movies and to distinguish them from
12
those made and sold by others, by, among other things, prominently displaying the mark
13
Deep Throat® on the goods, their containers and the displays associated therewith. In
14
addition, Plaintiff has prominently displayed said mark on its motion pictures, point-of-
15
purchase displays, posters and in periodicals distributed throughout the United States as
16
well as on the Internet.
17
35.
Defendants have infringed Plaintiff’s mark in interstate commerce by
18
various acts, including advertising and distributing prerecorded DVDs under the name
19
Deep Throat®, and selling, offering for sale and advertising prerecorded DVDs containing
20
the Deep Throat® Motion Picture name and mark Deep Throat®. Said use of said name
21
and mark by Defendants is without permission or authority of Plaintiff and said use is
22
likely to cause confusion, to cause mistake and to deceive.
23
36.
Defendant’s heretofore alleged acts of trademark infringement and unfair
24
competition have been committed with the intent to cause confusion, mistake and to
25
deceive.
26
____________________________________________________________________________________________________________________________________________________________
27
Page 9
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
37.
Since on or about 2004, Plaintiff has given notice that its mark is registered
2
in the U.S. Patent and Trademark Office by displaying with the mark as used the letter R
3
enclosed within a circle. Defendants know that they are violating Plaintiff’s trademark
4
rights.
5
6
SECOND CLAIM FOR RELIEF
7
INFRINGEMENT OF COMMON-LAW
8
TRADEMARK RIGHTS – DEEP THROAT®
9
10
11
12
13
38.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
39.
Said acts constitute unfair competition and an infringement of Plaintiff’s
common-law rights in said mark, Deep Throat®.
40.
Continuously since on or about June 11, 1972, Plaintiff has used the mark
14
Deep Throat® to identify its goods and to distinguish them from those made and sold by
15
others, by, among other things, prominently displaying the mark Deep Throat® on the
16
goods, their containers and the displays associated therewith. In addition, Plaintiff has
17
prominently displayed said mark on its motion pictures, point-of-purchase displays,
18
posters and in periodicals distributed throughout the United States as well as on the
19
Internet. Said goods and advertising have been distributed in the trade area where
20
Defendants are doing business. As a result of said sales and advertising by Plaintiff under
21
said mark, said mark has developed and now has a secondary and distinctive trademark
22
meaning to purchasers in Defendants’ trade area. Said mark has come to indicate to said
23
purchasers a meaning of motion pictures originating only with Plaintiff. As a result of
24
said association by purchasers of the mark Deep Throat® with Plaintiff, Defendants’ said
25
use of the mark and name Deep Throat® is likely to cause confusion of said purchasers.
26
____________________________________________________________________________________________________________________________________________________________
27
Page 10
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
41.
Defendants have infringed Plaintiff’s mark as alleged herein with the intent
2
to deceive the public into believing that goods sold are made by, approved by, sponsored
3
by or affiliated with, Plaintiff. Defendants’ acts as alleged herein were committed with
4
the intent to pass off and palm off Defendants’ goods as the goods of Plaintiff, and with
5
the intent to deceive and defraud the public.
6
7
THIRD CLAIM FOR RELIEF
8
VIOLATION OF SECTION 43(a) OF THE LANHAM ACT – DEEP THROAT®
9
[15 U.S.C. § 1125(a)]
10
11
12
42.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
43.
Defendants have caused prerecorded motion picture DVDs to enter into
13
interstate commerce with the designation and representation “Deep Throat” connected
14
therewith. Said use of “Deep Throat” is a false designation of origin which is likely to
15
cause confusion, to cause mistake and to deceive as to the affiliation, connection or
16
association with Plaintiff and as to the origin, sponsorship, or approval of such motion
17
pictures by Plaintiff. These acts are in violation of 15 U.S.C. § 1125(a), in that
18
Defendants have used in connection with goods and services a false designation of origin,
19
a false or misleading description and representation of fact which is likely to cause
20
confusion, and to cause mistake, and to deceive as to the affiliation, connection, or
21
association with Plaintiff and as to the origin, sponsorship, and approval of Defendants’
22
goods, services and commercial activities by Plaintiff.
23
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 11
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
FOURTH CLAIM FOR RELIEF
2
FEDERAL TRADEMARK DILUTION – DEEP THROAT®
3
[15 U.S.C. § 1125(c)]
4
5
6
44.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
45.
The Deep Throat® mark is strong and distinctive, has long been used in
7
connection with the goods on which it appears, has long been the subject of substantial
8
advertising and promotion, has been used and advertised throughout the United States, is
9
widely recognized by consumers and those in the trade, is in substantially exclusive use
10
by Plaintiff and is federally registered, as alleged above. Plaintiff’s mark Deep Throat® is
11
recognized by the general consuming public of the United States as a designation of
12
source for the goods of Plaintiff and is therefore a famous mark. The acts of Defendants
13
alleged herein were commenced from a time after Plaintiff’s mark became famous.
14
46.
Defendants have made use of Deep Throat® as a mark in connection with
15
goods which Defendants have sold and transported in United States interstate commerce.
16
Defendants’ use of Deep Throat® as a mark or trade name creates a likelihood of
17
association with Plaintiff’s famous mark Deep Throat® arising from its similarity to
18
Plaintiff’s famous mark.
19
47.
Defendants’ acts are in violation of Lanham Act § 43(c) in that they are
20
likely to cause dilution by blurring by impairing the distinctiveness of Plaintiff’s famous
21
mark Deep Throat®, all to the irreparable injury to and damage of Plaintiff. Defendants’
22
acts are also in violation of Lanham Act § 43(c) in that they are likely to cause dilution by
23
tarnishment by harming the reputation of Plaintiff’s famous mark Deep Throat®, all to the
24
irreparable injury to and damage of Plaintiff.
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 12
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
48.
Defendants committed these acts willfully and with the intent to create an
2
association with Plaintiff’s famous mark. Defendants willfully intended to trade on the
3
recognition of Plaintiff’s famous mark. Defendants willfully intended to harm the
4
reputation of the famous mark.
5
6
FIFTH CLAIM FOR RELIEF
7
INFRINGEMENT OF A
8
NEVADA REGISTERED TRADEMARK – DEEP THROAT®
9
[NEV. REV. STAT. § 600.420]
10
11
12
49.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
50.
Without consent of Plaintiff, the Registrant, Defendants used a
13
reproduction, counterfeit, copy and colorable imitation of a mark registered in this State,
14
namely, Deep Throat®, in connection with the sale, offering for sale and advertising of
15
goods, namely, the Deep Throat which use is likely to cause confusion or mistake or
16
result in deception as to the source of origin of such goods or services.
17
51.
Without consent of Plaintiff, the Registrant, Defendants reproduced,
18
counterfeited, copied and colorably imitated a mark registered in this State, namely, the
19
Deep Throat® Motion Picture, and applied and or caused to apply that reproduction,
20
counterfeit, copy and colorable imitation to labels, signs, prints, packages, wrappers,
21
receptacles and advertisements intended to be used in conjunction with the sale or other
22
distribution in this State of goods or services.
23
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 13
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
SIXTH CLAIM FOR RELIEF
2
NEVADA TRADEMARK DILUTION – DEEP THROAT®
3
[NEV. REV. STAT. § 600.435]
4
5
6
52.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
53.
The Deep Throat® mark is strong and distinctive, has long been used in
7
connection with the goods on which it appears, has long been the subject of substantial
8
advertising and promotion, has been used and advertised throughout Nevada, is widely
9
recognized by consumers and those in the trade, is in substantially exclusive use by
10
Plaintiff and is federally and Nevada registered, as alleged above. Plaintiff’s mark Deep
11
Throat® is recognized by the general consuming public of the United States as a
12
designation of source for the goods of Plaintiff and is therefore a famous mark. The acts
13
of Defendants alleged herein were commenced from a time after Plaintiff’s mark became
14
famous.
15
54.
Defendants have made use of Deep Throat® as a mark in connection with
16
goods which Defendants have sold and transported in Nevada commerce. Defendants’
17
use of Deep Throat® as a mark creates a likelihood of association with Plaintiff’s famous
18
mark Deep Throat® arising from its similarity to Plaintiff’s famous mark.
19
55.
Defendants’ acts are in violation of NEV. REV. STAT. § 600.435 in that they
20
are likely to cause dilution by blurring and impairing the distinctiveness of Plaintiff’s
21
famous mark Deep Throat®, all to the irreparable injury to and damage of Plaintiff.
22
Defendants’ acts are also in violation of NEV. REV. STAT. § 600.435 in that they are likely
23
to cause dilution by tarnishment by harming the reputation of Plaintiff’s famous mark
24
Deep Throat®, all to the irreparable injury to and damage of Plaintiff.
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 14
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
56.
Defendants committed these acts willfully and with the intent to create an
2
association with Plaintiff’s famous mark. Defendants willfully intended to trade on the
3
recognition of Plaintiff’s famous mark. Defendants willfully intended to harm the
4
reputation of the famous mark.
5
6
ALLEGATION OF DAMAGES
7
FOR FIRST THROUGH FIFTH CLAIMS FOR RELIEF
8
9
10
57.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
58.
By reason of Defendants’ acts alleged herein, Plaintiff has and will suffer
11
damage to its business, reputation and good will and the loss of sales and profits Plaintiff
12
would have made but for Defendants’ acts.
13
14
INADEQUATE REMEDY AT LAW
15
FOR THE FIRST THROUGH SIXTH CLAIMS FOR RELIEF
16
17
18
59.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
60.
Defendants threaten to continue to do the acts complained of herein, and
19
unless restrained and enjoined, will continue to do so, all to Plaintiff’s irreparable
20
damage. It would be difficult to ascertain the amount of compensation which could afford
21
Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
22
proceedings would be required. Plaintiff’s remedy at law is not adequate to compensate it
23
for injuries threatened.
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 15
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
TRADEMARK CLAIMS – LINDA LOVELACE™
2
SEVENTH CLAIM FOR RELIEF
3
INFRINGEMENT OF COMMON-LAW
4
TRADEMARK RIGHTS – LINDA LOVELACE™
5
6
7
8
9
61.
Plaintiff here re-alleges, as if fully set forth, the allegations of all the
previous paragraphs of this complaint.
62.
Said acts constitute unfair competition and an infringement of Plaintiff’s
common-law rights in said mark, “Linda Lovelace™.”
63.
Continuously since on or about June 11, 1972, Plaintiff has used the mark
10
“Linda Lovelace™” to identify its goods and to distinguish them from those made and
11
sold by others, by among other things, prominently displaying the mark “Linda
12
Lovelace™” on the goods, their containers and the displays associated therewith. In
13
addition, Plaintiff has prominently displayed said mark on its motion pictures, point-of-
14
purchase displays, posters and in periodicals distributed throughout the United States as
15
well as on the Internet. Said goods and advertising have been distributed in the trade area
16
where Defendants are doing business. As a result of said sales and advertising by
17
Plaintiff under said mark, said mark has developed and now has a secondary and
18
distinctive trademark meaning to purchasers in Defendants’ trade area. Said mark has
19
come to indicate to said purchasers a meaning of motion pictures originating only with
20
Plaintiff. As a result of said association by purchasers of the mark “Linda Lovelace™”
21
with Plaintiff, Defendants’ said use of the mark and name “Linda Lovelace™” is likely to
22
cause confusion of said purchasers.
23
64.
Defendants have infringed Plaintiff’s mark as alleged herein with the intent
24
to deceive the public into believing that goods sold are made by, approved by, sponsored
25
by or affiliated with, Plaintiff. Defendants’ acts as alleged herein were committed with
26
____________________________________________________________________________________________________________________________________________________________
27
Page 16
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
the intent to pass off and palm off Defendants’ goods as the goods of Plaintiff, and with
2
the intent to deceive and defraud the public.
3
4
EIGHTH CLAIM FOR RELIEF
5
VIOLATION OF SECTION 43(a) OF THE LANHAM ACT
6
– LINDA LOVELACE™
7
[15U.S.C. § 1125(a)]
8
9
65.
Plaintiff here re-alleges, as if fully set forth, the allegations of all the
previous paragraphs of this complaint.
10
66.
Defendants have caused prerecorded motion picture DVDs to enter into
11
interstate commerce with the designation and representation “Linda Lovelace™”
12
connected therewith. Said use of “Linda Lovelace™” is a false designation of origin
13
which is likely to cause confusion, to cause mistake and to deceive as to the affiliation,
14
connection or association with Plaintiff and as to the origin, sponsorship, or approval of
15
such motion pictures by Plaintiff. These acts are in violation of 15 U.S.C. § 1125(a), in
16
that Defendatns have used in connection with goods and services a false designation of
17
origin, a false or misleading description and representation of fact which is likely to cause
18
confusion, and to cause mistake, and to deceive as to the affiliation, connection, or
19
association with Plaintiff and as to the origin, sponsorship, and approval of Defendants’
20
goods, services and commercial activities by Plaintiff.
21
///
22
///
23
///
24
///
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 17
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
NINTH CLAIM FOR RELIEF
2
FEDERAL TRADEMARK DILUTION – LINDA LOVELACE™
3
[15U.S.C. § 1125(c)]
4
5
6
67.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
68.
The “Linda Lovelace™” mark is strong and distinctive, has long been used
7
in connection with the goods on which it appears, has long been the subject of substantial
8
advertising and promotion, has been used and advertised throughout the United States, is
9
widely recognized by consumers and those in the trade, is in substantially exclusive use
10
by Plaintiff and is federally registered, as alleged above. Plaintiff’s mark “Linda
11
Lovelace™” is recognized by the general consuming public of the United States as a
12
designation of source for the goods of Plaintiff and is therefore a famous mark. The acts
13
of Defendants alleged herein were commenced from a time after Plaintiff’s mark became
14
famous.
15
69.
Defendants have made use of “Linda Lovelace™” as a mark in connection
16
with goods which Defendants have sold and transported in United States interstate
17
commerce. Defendants’ use of the “Linda Lovelace™” as a mark or trade name creates a
18
likelihood of association with Plaintiff’s famous mark “Linda Lovelace™” arising from
19
its similarity to Plaintiff’s famous mark.
20
70.
Defendants’ acts are in violation of Lanham Act § 43(c) in that they are
21
likely to cause dilution by blurring by impairing the distinctiveness of Plaintiff’s famous
22
mark “Linda Lovelace™,” all to the irreparable injury to and damage of Plaintiff.
23
Defendants’ acts are also in violation of Lanham Act § 43(c) in that they are likely to
24
cause dilution by tarnishment by harming the reputation of Plaintiff’s famous mark
25
“Linda Lovelace™,” all to the irreparable injury to and damage of Plaintiff.
26
____________________________________________________________________________________________________________________________________________________________
27
Page 18
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
71.
Defendants committed these acts willfully and with the intent to create an
2
association with Plaintiff’s famous mark. Defendants willfully intended to trade on the
3
recognition of Plaintiff’s famous mark. Defendants willfully intended to harm the
4
reputation of the famous mark.
5
6
TENTH CLAIM FOR RELIEF
7
INFRINGEMENT OF A
8
NEVADA REGISTERED TRADEMARK – LINDA LOVELACE™
9
[NEV. REV. STAT. § 600.420]
72.
10
11
Plaintiff here re-alleges, as if fully set forth, the allegations of all the
previous paragraphs of this complaint.
73.
12
Without consent of Plaintiff, the Registrant, Defendants used a
13
reproduction, counterfeit, copy and colorable imitation of a mark registered in this State,
14
namely, Linda Lovelace™, in connection with the sale, offering for sale and advertising
15
of goods, namely, the Deep Throat which use is likely to cause confusion or mistake or
16
result in deception as to the source of origin of such goods or services.
74.
17
Without consent of Plaintiff, the Registrant, Defendants reproduced,
18
counterfeited, copied and colorably imitated a mark registered in this State, namely, the
19
Linda Lovelace™ Motion Picture, and applied and/or caused to apply that reproduction,
20
counterfeit, copy and colorable imitation to labels, signs, prints, packages, wrappers,
21
receptacles and advertisements intended to be used in conjunction with the sale or other
22
distribution in this State of goods or services.
23
///
24
///
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 19
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
ELEVENTH CLAIM FOR RELIEF
2
NEVADA TRADEMARK DILUTION – LINDA LOVELACE™
3
[NEV. REV. STAT. § 600.435]
4
5
6
75.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
76.
The “Linda Lovelace™” mark is strong and distinctive, has long been used
7
in connection with the goods on which it appears, has long been the subject of substantial
8
advertising and promotion, has been used and advertised throughout Nevada, is widely
9
recognized by consumers and those in the trade, is in substantially exclusive use by
10
Plaintiff and is federally registered, as alleged above. Plaintiff’s mark “Linda
11
Lovelace™” is recognized by the general consuming public of the United States as a
12
designation of source for the goods of Plaintiff and is therefore a famous mark. The acts
13
of the Defendants alleged herein were commenced from a time after Plaintiff’s mark
14
became famous.
15
77.
Defendants have made use of “Linda Lovelace™” as a mark in connection
16
with goods which Defendants have sold and transported in Nevada commerce.
17
Defendants’ use of “Linda Lovelace™” as a mark or trade name creates a likelihood of
18
association with Plaintiff’s famous mark “Linda Lovelace™” arising from its similarity to
19
Plaintiff’s famous mark.
20
78.
Defendants’ acts are in violation of NEV. REV. STAT. § 600.435 in that they
21
are likely to cause dilution by blurring and impairing the distinctiveness of Plaintiff’s
22
famous mark “Linda Lovelace™,” all to the irreparable injury to and damage of Plaintiff.
23
Defendants’ acts are also in violation of NEV. REV. STAT. § 600.435 in that they are likely
24
to cause dilution by tarnishment by harming the reputation of Plaintiff’s famous mark
25
“Linda Lovelace™,” all to the irreparable injury to and damage of Plaintiff.
26
____________________________________________________________________________________________________________________________________________________________
27
Page 20
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
79.
Defendants commited these acts willfully and with the intent to create an
2
association with Plaintiff’s famous mark. Defendants willfully intended to trade on the
3
recognition of Plaintiff’s famous mark. Defendants willfully intended to harm the
4
reputation of the famous mark.
5
6
ALLEGATION OF DAMAGES
7
FOR THE SIXTH THROUGH TENTH CLAIMS FOR RELIEF
8
9
10
80.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
81.
By reason of Defendants’ acts alleged herein, Plaintiff has and will suffer
11
damage to its business, reputation and good will and the loss of sales and profits Plaintiff
12
would have made but for Defendants’ acts.
13
14
INADEQUATE REMEDY AT LAW
15
FOR THE SIXTH THROUGH ELEVENTH CLAIMS FOR RELIEF
16
17
18
82.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
83.
Defendants threaten to continue to do the acts complained of herein, and
19
unless restrained and enjoined, will continue to do so, all to Plaintiff’s irreparable
20
damage. It would be difficult to ascertain the amount of compensation which could
21
afford Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
22
proceedings would be required. Plaintiff’s remedy at law is not adequate to compensate it
23
for injuries threatened.
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 21
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
COUNTERFEITING CLAIM
2
TWELFTH CLAIM FOR RELIEF
3
COUNTERFEITING
4
[15 U.S.C. §§ 1117(b) & 1116(d)]
5
6
7
84.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
85.
Defendants knew that the goods, namely copies of the Deep Throat®
8
Motion Picture bearing the Deep Throat® Mark, were counterfeit and intended to offer,
9
did offer and are offering them for sale.
10
86.
The defendants intentionally used in commerce and are using in commerce
11
on goods, namely, copies of the Deep Throat® Motion Picture, a counterfeit mark,
12
namely, the Deep Throat® Mark, knowing that the mark was counterfeit, in connection
13
with the sale, offering for sale and distribution of said goods, which use was and is likely
14
to cause confusion, mistake and to deceive.
15
87.
In so doing, the Deep Throat® Mark was a counterfeit mark because (1) the
16
mark on Defendants’ goods was a non-genuine mark which were identical with and
17
substantially indistinguishable from the Deep Throat® Mark; (2) the Deep Throat® Mark
18
is registered on the Principal Register for the same goods in connection with which
19
Defendants’ mark is being used and has been used;(3) the Deep Throat® Mark has been
20
and is in use; and (4) Defendants’ use is not and was not on or in connection with goods
21
or services of which either of them was, at the time of production, authorized by the
22
holder of the mark, Plaintiff, to use the mark for those types of good or services, namely,
23
pre-recorded videotapes and DVDs featuring adult entertainment programs and movies.
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 22
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
ALLEGATION OF DAMAGES
2
FOR THE TWELFTH CLAIM FOR RELIEF
3
4
5
88.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
89.
By reason of Defendants’ acts alleged herein, Plaintiff has and will suffer
6
damage to its business, reputation and good will and the loss of sales and profits Plaintiff
7
would have made but for Defendants’ acts.
8
9
INADEQUATE REMEDY AT LAW
10
FOR THE TWELFTH CLAIM FOR RELIEF
11
12
13
90.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
91.
Defendants threaten to continue to do the acts complained of herein, and
14
unless restrained and enjoined, will continue to do so, all to Plaintiff’s irreparable
15
damage. It would be difficult to ascertain the amount of compensation which could
16
afford Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
17
proceedings would be required. Plaintiff’s remedy at law is not adequate to compensate it
18
for injuries threatened.
19
20
COPYRIGHT CLAIM
21
THIRTEENTH CLAIM FOR RELIEF
22
COPYRIGHT INFRINGEMENT
23
24
92.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 23
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
2
3
93.
Defendants had access to the original work of authorship, the Deep Throat®
Motion Picture, of which tens of thousands of copies are in circulation.
94.
Defendants violated specific, exclusive rights granted in section 106(1-2) of
4
the Copyright Act and owned by Plaintiff at the time of the infringement, namely, making
5
copies of the motion picture Deep Throat and making derivative works of the Deep
6
Throat® Motion Picture.
7
95.
The foregoing acts of infringement occurred within the statute of limitations
8
period, namely, within three (3) years prior to the filing of this Complaint, and they
9
continue.
10
96.
The statutory requirements of registration have been fulfilled, namely, in
11
1979 Plaintiff submitted the required registration form, fee and deposit copy to the United
12
States Copyright Office which thereafter issued a copyright certificate.
13
14
ALLEGATION OF DAMAGES
15
FOR THE THIRTEENTH CLAIM FOR RELIEF
16
17
18
97.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
previous paragraphs of this complaint.
98.
By reason of Defendants’ acts alleged herein, Plaintiff has and will suffer
19
damage to its business, reputation and good will and the loss of sales and profits Plaintiff
20
would have made but for Defendants’ acts.
21
22
INADEQUATE REMEDY AT LAW
23
FOR THE THIRTEENTH CLAIM FOR RELIEF
24
99.
Plaintiff here re-alleges, as if fully set forth, the allegations of all of the
25
previous paragraphs of this complaint.
26
____________________________________________________________________________________________________________________________________________________________
27
Page 24
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
100.
Defendants threaten to continue to do the acts complained of herein, and
2
unless restrained and enjoined, will continue to do so, all to Plaintiff’s irreparable
3
damage. It would be difficult to ascertain the amount of compensation which could
4
afford Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial
5
proceedings would be required. Plaintiff’s remedy at law is not adequate to compensate it
6
for injuries threatened.
7
8
9
10
11
12
13
14
PRAYER FOR RELIEF
Therefore, Plaintiff prays for a judgment as follows:
A.
A preliminary and permanent injunction against using the mark, Deep
Throat®.
B.
A preliminary and permanent injunction against using the mark, Linda
Lovelace™.
C.
an order to deliver to Plaintiff’s attorney within thirty (30) days after
15
issuance of a Judgment, to be impounded or destroyed by Plaintiff, all signs, labels,
16
packages, wrappers and advertisements and DVDs bearing the mark Deep Throat®,
17
including that Defendants recall all copies distributed to their trade customers and include
18
those returned copies in that to be turned over to Plaintiff’s attorney either at the time that
19
the copies are initially turned over or within thirty (30) days of Defendant’s receipt of
20
copies returned from trade customers.
21
D.
An order to deliver to Plaintiff’s attorney within thirty (30) days after
22
issuance of a Judgment, to be impounded or destroyed by Plaintiff, all signs, labels,
23
packages, wrappers and advertisements and DVDs bearing the mark Linda Lovelace™,
24
including that Defendants recall all copies distributed to their trade customers and include
25
those returned copies in that to be turned over to Plaintiff’s attorney either at the time that
26
____________________________________________________________________________________________________________________________________________________________
27
Page 25
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
the copies are initially turned over or within thirty (30) days of Defendant’s receipt of
2
copies returned from trade customers.
3
E.
On the trademark and counterfeiting claims, damages in an amount to be
4
proven at trial.
5
F.
On the counterfeiting claim, damages in an amount to be proven at trial or,
6
alternatively, statutory damages pursuant to 15 U.S.C. § 1117(c) of $1,000,000.00, as to
7
be elected by Plaintiff.
8
9
10
11
G.
On the counterfeiting claim, a preliminary and permanent injunction against
copying and against distributing unauthorized copies of the motion picture, “Deep
Throat.”
H.
On the counterfeiting claim, an order to deliver to Plaintiff’s attorney within
12
thirty (30) days after issuance of a Judgment, to be impounded and destroyed by Plaintiff,
13
all copies not authorized by Plaintiff of the motion picture work “Deep Throat”
14
containing the counterfeit mark, the Deep Throat® Mark as herein alleged, including that
15
Defendants recall all copies distributed to their trade customers and include those returned
16
copies in that to be turned over to Plaintiff’s attorney either at the time that the copies are
17
initially turned over or within thirty (30) days of Defendant’s receipt of copies returned
18
from trade customers.
19
I.
On the copyright claim, Damages in an amount to be proven at trial, or
20
alternatively, statutory damages pursuant to 17 U.S.C. § 504 of $150,000.00, as to be
21
elected by Plaintiff.
22
J.
On the copyright claim, an order to deliver to Plaintiff’s attorney within
23
thirty (30) days after issuance of a Judgment, to be impounded and destroyed by Plaintiff,
24
all copies not authorized by Plaintiff of the Deep Throat® Motion Picture copied without
25
Plaintiff’s authorization, including that Defendants recall all copies distributed to their
26
____________________________________________________________________________________________________________________________________________________________
27
Page 26
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
1
trade customers and include those returned copies in that to be turned over to Plaintiff’s
2
attorney either at the time that the copies are initially turned over or within thirty (30)
3
days of Defendant’s receipt of copies returned from trade customers.
4
Dated: April 24, 2009.
5
Respectfully Submitted,
CLYDE DeWITT
LAW OFFICES OF CLYDE DeWITT, APC
6
7
By:
8
/s/Clyde DeWitt
Clyde DeWitt
Counsel for Plaintiff,
Arrow Productions, Ltd.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
____________________________________________________________________________________________________________________________________________________________
27
Page 27
28
ORIGINAL COMPLAINT
K:\Files\Pistol 0518\VCX 002\09-001 - Complaint.wpd
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?