Roger Cleveland Golf Company Inc v. Prince et al

Filing 25

Consent MOTION to Amend/Correct 1 Complaint, by Christopher Prince, Prince Distribution LLC, Roger Cleveland Golf Company Inc. Response to Motion due by 4/8/2010 (Attachments: # 1 Exhibit - Proposed Amended Complaint)No proposed order(McElwaine, John)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Roger Cleveland Golf Company, Inc., Plaintiff, vs. Christopher Prince, Sheldon Shelley, Prince Distribution, LLC, and Bright Builders, Inc. Defendants. ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 2:09-cv-02119-MBS [Proposed] First Amended Complaint Jury Trial Requested INTRODUCTION Plaintiff, Roger Cleveland Golf Company, Inc. (the "Plaintiff" or "Cleveland Golf"), as and for its Complaint against defendants, Christopher Prince, Sheldon Shelley, Prince Distribution, LLC and Bright Builders, Inc. (collectively, the "Defendants"), alleges upon personal knowledge as to its own acts and as to events taking place in its presence, and upon information and belief as to all other facts, as follows: NATURE OF THIS ACTION 1. This is an action for: (i) infringement of registered trademarks in violation of Section 32(1) of the Lanham Act, 15 U.S.C. § 1114; (ii) false designation of origin and trademark infringement in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (iii) contributory trademark infringement in violation of 15 U.S.C. § 1051, et seq. and the common law; (iv) common law unfair competition; (v) common law trademark infringement; and (vi) violations of the South Carolina Unfair Trade Practices Act, S.C. Code Ann. § 39-5-10, et seq. As described more fully below, Defendants have sold, offered for sale, or otherwise contributed to the sale of counterfeit Cleveland Golf brand golf clubs, and are therefore liable for direct and/or contributory or vicarious infringement of Cleveland Golf's lawfully owned trademarks. Defendants' conduct has produced and, unless enjoined by this Court, will continue to produce a likelihood of consumer confusion and deception to the irreparable injury of Cleveland Golf. 2. As a result of Defendants' actions, Cleveland Golf is suffering a loss of the enormous goodwill Cleveland Golf has created in its trademarks and is losing profits from lost sales of genuine products. This action seeks permanent injunctive relief and damages for Defendants' infringement of Cleveland Golf's intellectual property rights. 3. The substantial profits to be reaped from piracy and counterfeiting have led to the creation, development and proliferation of business models, the object of which is to capitalize on world famous trademarks owned by others, including those owned by Plaintiff. The opportunities created by the Internet have led to a dramatic increase in the opportunities to profit from such activity. These opportunities rely upon the active participation and contribution of third parties which make such illegal activities possible. JURISDICTION AND VENUE 4. This Court has jurisdiction over the subject matter of this Complaint pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) and (b), as these claims arise under the Trademark Laws of the United States. 5. This Court also has supplemental jurisdiction over the pendent state law claims pursuant to 28 U.S.C. § 1367(a). 6. This Court has personal jurisdiction over Defendants in this district, as Defendants are domiciled within this district, and/or as Defendants transact substantial and continuing business within this district. Among other things, Defendants Christopher Prince, Prince Distribution LLC, and Sheldon Shelley are believed to own, control, and/or operate the 2 websites, copycatclubs.com, worldtimegolf.com, and legacygolfclubs.com within this district. Upon information and belief, said Defendants have used the Websites to advertise and solicit purchases in this district. Defendant Bright Builders, Inc. has transacted substantial and continuing business within the district by soliciting and conducting substantial business within the district. Because some of the Defendants' wrongful acts involved the offering for sale and sale of products that infringe Cleveland Golf's trademarks, venue is proper in this judicial district under 28 U.S.C. § 1391. PARTIES 7. Plaintiff, Cleveland Golf, is a California corporation with its principal place of business located at 5601 Skylab Road, Huntington Beach, California, 92647. Cleveland Golf is a forerunner in golf club innovation and is widely recognized as the golf industry's leading manufacturer of wedges, earning the distinction of being the "number one" wedge in golf. 8. Defendant Christopher Prince ("Prince") is a resident of South Carolina with an address of 2427 Scholar Lane, North Charleston, South Carolina, 29406. Prince has sold, offered for sale, or otherwise contributed to the sale of counterfeit Cleveland Golf brand golf clubs. 9. On information and belief, the Defendant Sheldon "Ashley" Shelley ("Shelley") is a resident of South Carolina with an address of 919 South Cashua Dr., Ste. D, Florence, South Carolina 29501. Shelley has sold, offered for sale, or otherwise contributed to the sale of counterfeit Cleveland Golf brand golf clubs. 10. On information and belief, the Defendant Prince Distribution, LLC, ("Prince Distribution") is a South Carolina limited liability company with an address of 8819 Tigershark 3 Avenue, North Charleston, South Carolina, 29406. Prince Distribution has sold, offered for sale, or otherwise contributed to the sale of counterfeit Cleveland Golf brand golf clubs. 11. On information and belief, the Defendant Bright Builders, Inc. ("Bright") is a Utah corporation with an address of 503 East Timpanogos Parkway Building S, Suite 2100, Orem, UT 84097. Bright is an business that provides tools, services, and software packages to assist clients in building and hosting websites. Bright has sold, offered for sale, or otherwise contributed to the sale of counterfeit Cleveland Golf brand golf clubs. FACTS GIVING RISE TO THIS ACTION A. 12. Cleveland Golf And Its Trademark Usage Cleveland Golf manufactures and sells high-quality golf clubs, golf equipment, and apparel. Cleveland Golf is world-renowned for its production of high quality golf wedges, among other products. 13. Cleveland Golf products are sold throughout South Carolina, the United States, and worldwide, through a vast network of authorized resellers. 14. Since at least as early as 1979, long prior to the infringing acts alleged herein, Cleveland Golf and/or its predecessors in interest, have continuously used the trademarks CLEVELAND and CLEVELAND GOLF in commerce in the state of South Carolina in this judicial district and throughout the United States and the world, in connection with the manufacture and sale of a wide variety of golf clubs and golf related products. 15. Cleveland Golf uses, owns and has registered on the Principal Register of the United States Patent and Trademark Office the following marks relevant to this action (hereinafter, the "Cleveland Marks"): Mark Registration No. 4 Registration Date Class/Goods Mark CLEVELAND GOLF Registration No. 3,286,218 Registration Date August 28, 2007 Class/Goods 18. Carry all bags, duffel bags, backpacks, shoe bags for travel, and umbrellas. 24. Towels. 25. Caps, hats, visors, shirts, wind shirts, wind vests, rain jackets, rain vests and rain pants. 28. Golf gloves; golf clubs, golf balls, golf club heads, golf club shafts, golf club grips, golf bags, golf bag covers, golf ball shag bags used to store golf balls, golf club head covers, and golf ball bags. 18. Carry all bags and umbrellas. 25. Golf apparel, namely, shirts, caps, visors, sweatshirts and sweater vests. 28. Golf clubs, golf club heads, golf club shafts, golf club grips, golf bags, golf bag covers, and golf club head covers. 18. Carry all bags and umbrellas. 25. Golf apparel, namely, shirts, caps, visors, sweatshirts and sweater vests. 28. Golf clubs, golf club heads, golf club shafts, golf club grips, golf bags, golf bag covers, and golf club head covers. 28. Golf clubs, namely, wood-type and hybridtype golf club heads and CLEVELAND 2,070,054 June 10, 1997 CLEVELAND (stylized) 2,070,051 June 10, 1997 3,613,586 April 28, 2009 5 Mark Registration No. Registration Date Class/Goods CG14 CG12 ZIP GROOVES 3,575,685 3,501,697 3,463,468 588 3,447,556 CG10 HIBORE SPEED CONTROL TOUR ACTION GUTCHECK GUNMETAL CG (stylized) 3,421,090 3,262,726 3,042,313 3,036,153 2,810,226 2,793,222 2,302,251 golf clubs, and golf club head covers. February 17, 28. Golf clubs, namely, 2009 wedges. September 28. Golf clubs, namely, 16, 2008 wedges. July 8, 2008 28. Golf clubs and golf club heads, namely, wedges, iron-type golf clubs and metal woodtype golf clubs and heads. June 17, 28. Iron-type golf clubs 2008 and golf club heads, namely, wedges. May 6, 2008 28. Golf clubs and golf club heads. July 10, 2007 28. Golf clubs and golf club heads. January 10, 28. Golf clubs, namely 2006 golf putters. December 28. Golf balls. 27, 2005 February 3, 28. Golf clubs, namely, 2004 putters. December 9, 28. Golf clubs. 2003 December 28. Golf clubs, and golf 21, 1999 club heads, namely, woods, irons and putters. November 20, 28. Golf clubs. 1984 C (stylized) 1,306,203 GRAY MATTER HIGH BORE 2,276,667 2,269,074 September 7, 28. Golf clubs. 1999 August 10, 28. Golf clubs, namely, 1999 metal wood-type golf clubs. 6 Mark Registration No. Registration Date Class/Goods Launcher 1,511,907 November 8, 28. Golf clubs. 1988 14. Cleveland Golf's Federal trademark registrations were duly and legally issued, are valid and subsisting, and constitute prima facie evidence of Cleveland Golf's exclusive ownership of the Cleveland Marks. 15. Cleveland Golf has invested many millions of dollars and has expended significant time and effort in advertising, promoting and developing its Cleveland Marks throughout the United States and the world. As a result of such advertising and promotion, Cleveland Golf has established substantial goodwill and widespread recognition in its Cleveland Marks, and those marks have become associated exclusively with Cleveland Golf by both customers and potential customers, as well as the general public at large. 16. Increasing such fame and goodwill, many players on the Professional Golf Association tour and the Ladies Professional Golf Association tour use and endorse Cleveland Golf products. 17. To create and maintain such goodwill among its customers, Cleveland Golf has taken substantial steps to ensure that products bearing its Cleveland Marks are of the highest quality. As a result, the Cleveland Marks have become widely known and are recognized throughout the United States and the world as symbols of high quality products. Customers throughout the United States and throughout the world recognize the Cleveland Golf name and logo, upon which they rely for high quality products and attentive customer service. 7 18. As a result of, inter alia, the care and skill exercised by Cleveland Golf in the conduct of its business, the high quality of the goods sold under the Cleveland Marks and the extensive advertising, sale, and promotion by Cleveland Golf of its Cleveland Golf branded products, the Cleveland Marks have acquired secondary meaning in the United States, including in the State of South Carolina. B. 19. Defendants' Sale of Counterfeit Golf Clubs Defendant Bright provides services and products that assist individuals in designing, constructing, marketing, and growing online businesses. 20. Bright states that each of its products and services--from its web storefront builder, to the shopping cart and checkout systems, to market research tools, to web-based training, and unparalleled customer support--is dedicated to helping its clients connect with the world and grow their businesses. 21. Defendant Prince, on behalf of himself and Prince Distribution (collectively, the "Prince Venture"), hired Bright to design, build, market, and grow his copycatclubs.com webpage. 22. Bright charged Prince $10,000.00 to assist the Prince Venture in designing, constructing, marketing, and growing Prince's online businesses. 23. As part of the agreement between Bright and the Prince Venture, Bright forwarded Prince certain educational materials, including materials on search engine optimization and how to embed certain keywords into metadata within websites. A sample of the materials sent to Prince are attached hereto as Exhibit A. 24. Similarly, as part of the package purchased, Bright provided the Prince Venture with the "Bright Builder Help Team." The Bright Builder Help Team provides personal, day-to- 8 day contact to Bright through a Coach and a Builder Trainer provided by Bright. The Coach was provided to, inter alia, find vendors to supply the products sold through copycatclubs.com and to use online marketing techniques to gain visibility for the website. The Builder Trainer taught Prince how to create copycatclubs.com and embed metadata within the website. 25. An account representative from Bright was also assigned to personally assist the Prince Venture in each step of setting up their online business. The account representative from Bright was available to Prince daily for eight months to assist in the building of the Prince Venture's online business. 26. Through Bright's program and utilizing Bright's Coach, Builder Trainer resources, and account representative, Prince created copycatclubs.com, worldtimegolf.com, and legacygolfclubs.com (hereinafter, the "Websites"). The Websites each resolve to an online store advertising and offering the "newest clubs from brands such as: Callaway golf, Ping golf, Nike golf, Taylor Made golf, Titleist golf, Cobra golf, Mizuno golf, Cleveland golf, Yes and Odyssey putters...Along with our exceptional customer service, we are your one stop shop for the best COPIED and ORIGINAL golf equipment on the internet." See screenshot of Websites' home page attached hereto as Exhibit B. 27. Bright provided Prince with recommendations of drop-shippers that the Prince Venture could use to supply products to their online business. 28. Upon information and belief, Bright extensively advertised and promoted the Websites for the Prince Venture. For instance, the Bright materials provided to Prince state that the Prince Venture was provided a marketing package that included: (a) expert review of the Websites for search engine visibility and acceptability, (b) a "quick start" on the Websites' marketing, (c) keyword research for the Websites to discovery the words Internet-users enter 9 when looking for the products sold by the Websites, (d) a "tune-up" of the Websites, including recommending changes to the Websites to increase their marketability and creating a "keywordrich title and description" of the Websites, and (e) submission of the Websites to over 2,500 search engines and directories. 29. Bright and Prince had discussions about using the Websites to sell golf clubs. Bright advised Prince that this sales channel may be his niche. The Bright account representative went so far as to say that he was going to build an online golf website for a family member and that he thought it was a good idea. 30. 31. Bright hosted the Websites for a monthly charge paid by Prince. To lure additional Internet traffic to the Websites from search engine results, the federally registered trademark, CLEVELAND® was placed in metadata embedded within the Websites. 32. The Websites also offer a dropshipping service whereby the Websites offered to fulfill golf clubs orders placed at other online stores. See screenshot of Websites' dropshipping offer attached hereto as Exhibit C. 33. To protect its trademarks and to ensure that consumers are getting authentic Cleveland Golf products, Cleveland Golf hires a Mystery Shopper to purchase its products from a variety of sources in the marketplace. 34. In 2009, at the direction of Cleveland Golf, a Mystery Shopper made a purchase of a Cleveland® HiBore® driver, a Cleveland® CG14® Black Pearl wedge, a Cleveland® CG10® wedge, a Cleveland® CG12® wedge, and a Cleveland® 588® wedge from www.copycatclubs.com. 10 35. The Mystery Shopper sent payment to Defendant Sheldon Shelley's PayPal account, which listed an address of 2427 Scholar Lane, North Charleston, South Carolina, 29406. PayPal's transaction records indicate that Defendants' email address is ashelley502@hotmail.com. 36. Upon information and belief, Shelley was aware that his PayPal account was being used for golf club purchases and/or refunds from the Websites and that he was participating with the Prince Venture, as a co-venturer, in the sale of counterfeit Cleveland Golf products. 37. The Mystery Shopper received the Cleveland® HiBore® driver, Cleveland® CG14® Black Pearl wedge, Cleveland® CG10® wedge, Cleveland® CG12® wedge, and Cleveland® 588® wedge via an EMS (a worldwide air freight service) package. According to the box the clubs came within, the clubs were shipped to the Mystery Shopper directly from China. 38. Cleveland Golf has determined that the golf clubs received by the Mystery Shopper from the Defendants were counterfeit. The sale by Defendants of counterfeit Cleveland Golf products to the Mystery Shopper is a violation of Federal trademark law. 39. The Defendants in this action have knowingly sold counterfeit Cleveland Golf branded golf clubs to unsuspecting consumers. C. 40. The Likelihood of Confusion and Injury Caused by Defendants' Actions Counterfeit Cleveland Golf clubs are not the same or of the same quality as those manufactured and sold by Cleveland Golf under the Cleveland Marks. As such, consumers who purchase counterfeit golf clubs bearing the Cleveland Marks are likely to be confused and/or disappointed by obtaining counterfeit golf clubs when they intended to purchase genuine Cleveland Golf clubs. In addition, the sale of counterfeit Cleveland Golf clubs is likely to cause confusion among consumers regarding Cleveland Golf's sponsorship or approval of the 11 counterfeit clubs. As a result of Defendants' actions, Cleveland Golf is suffering a loss of the enormous goodwill Cleveland Golf has created in its Cleveland Marks and is losing profits from lost sales of genuine product. 41. Defendants are likely to continue to commit the acts complained of herein, and unless restrained and enjoined, will continue to do so, all to Cleveland Golf's irreparable harm. COUNT I Trademark Counterfeiting and Infringement under 15 U.S.C. §§ 1114(1)(a), 1116 and 1117 (As to Defendants Prince, Prince Distribution and Shelley) 42. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 43. The acts of Defendants Prince, Prince Distribution and Shelley (collectively, the "Copycat Clubs Parties") alleged herein constitute the use in commerce, without the consent of Cleveland Golf, of a reproduction, counterfeit, copy, or colorable imitation of one or more of the Cleveland Marks in connection with the sale, offering for sale, distribution, or advertising of goods, which use is likely to cause confusion or mistake, or to deceive consumers and therefore infringe Cleveland Golf's rights in one of more of the Cleveland Marks in violation of the Lanham Act. 44. Copycat Clubs Parties' use of the counterfeit versions of the Cleveland Marks was willful, intentional and done with the knowledge that the marks used were counterfeit marks, as defined in Section 34(d)(1)(B) of the Lanham Act, 15 U.S.C. § 1116(d)(1)(B). 45. Specifically, upon information and belief, the Copycat Clubs Parties have knowingly purchased counterfeit goods bearing the Cleveland Marks, and are knowingly importing the goods for re-sale in the United States and/or are manufacturing, promoting, and 12 otherwise advertising, selling, offering for sale and distributing counterfeit and infringing goods bearing the Cleveland Marks. 46. The conduct of the Copycat Clubs Parties' counterfeiting and infringing activities is likely to cause, is actually causing, and was willful and intended to cause, confusion, mistake, and deception among members of the trade and the general consuming public as to the origin and quality of such products and constitutes trademark counterfeiting under 15 U.S.C. § 1114(1)(b). 47. As a direct and proximate result of the Copycat Clubs Parties' actions, Plaintiff has suffered substantial damages. Cleveland Golf is entitled to an injunction and to recover the Copycat Clubs Parties' profits, all damages sustained by Cleveland Golf, trebling of those profits or damages, and the cost of this action, plus interest, under 15 U.S.C. §1117(a) and §1117(b), which amounts are yet to be determined. 48. As a direct and proximate result of the Copycat Clubs Parties' acts of willful trademark counterfeiting, Plaintiff is entitled to elect statutory damages, under 15 U.S.C. § 1117(c)(2), of $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed by the Copycat Clubs Parties. COUNT II Federal Unfair Competition and False Designation of Origin under 15 U.S.C. § 1125(a) (As to Defendants Prince, Prince Distribution and Shelley) 49. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 50. The acts of the Copycat Clubs Parties alleged herein constitute the use in interstate commerce of a word, term, name, symbol, or device, or any combination thereof, or false designation of origin, in connection with the sale, or offering for sale, of goods in violation of Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A). These acts of the Copycat 13 Clubs Parties are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of Copycat Clubs Parties with Cleveland Golf, or as to the origin, sponsorship, or approval of counterfeit golf clubs by Cleveland Golf. 51. The Copycat Clubs Parties' counterfeit goods are seemingly identical in appearance to each of Cleveland Golf's genuine goods. The Copycat Clubs Parties' counterfeit goods, however, are different and inferior in quality. As such, the Copycat Clubs Parties' conduct is likely to cause confusion in the trade and among the general public as to the origin or sponsorship of the counterfeit goods. 52. As a direct and proximate result of Copycat Clubs Parties' actions, Plaintiff has suffered damages. 53. Such conduct on the part of the Copycat Clubs Parties has caused and will continue to cause irreparable injury and harm to Plaintiff. COUNT III Contributory and/or Vicarious Trademark Infringement (As to Defendant Bright) 54. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 55. The Websites are engaging in illegal conduct, including but not necessarily limited to, the promotion, advertisement, offer for sale, sale and distribution of counterfeit goods in violation of the Lanham Act. 56. Bright has actual knowledge of the Websites' illegal activities from, among other things, assisting in their creation and promotion. 57. Upon information and belief, Bright materially encouraged, enabled, and contributed to the infringing conduct at the Websites by, among other things, creating, 14 marketing, promoting, and growing the business of the Websites, providing hosting services for the Websites, facilitigating in the embedding of trademarks owned by Cleveland Golf in the Websites, and facilitating communications by and between the sellers of counterfeit goods over the Websites. 58. Upon information and belief, Bright also served as the Prince Venture's agent in creating listing related to the Websites and placing advertising for the Websites in more than 2,500 online directories and search engines 59. Bright knew or should have known or acted in reckless disregarding of the fact that the Copycat Clubs Parties were selling or contributing to the sale of counterfeit golf clubs when it participated in and encouraged the creation of a website entitled "copycatclubs.com" that used Chinese wholesalers to provide clubs for resale. Furthermore, the Websites advertised and promoted that they were the top website for copied clubs. 60. Bright therefore bears contributory and vicarious liability for the Copycat Club Parties use of Plaintiff's trademarks in violation of 15 U.S.C. § 1051, et seq. and the common law. 61. Plaintiff has no adequate remedy at law and has suffered irreparable harm and damage as a result of the contributory and/or vicarious unlawful conduct of Bright. 62. Plaintiff has sustained damages as a result of the Defendants' wrongful contributory conduct in an amount to be ascertained at trial but in no event less than Two Million Dollars ($2,000,000) per trademark per counterfeit. COUNT IV Unfair Competition under South Carolina Common Law (As to All Defendants) 15 63. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 64. By reason of the foregoing, the Defendants have engaged, and continue to engage, in acts of unfair competition in violation of the common law. 65. Such conduct on the part of the Defendants has caused and will continue to cause irreparable injury to Plaintiff, for which Plaintiff has no adequate remedy at law. 66. Such conduct on the part of the Defendants has caused and will continue to cause irreparable harm to Plaintiff. COUNT V Trademark Infringement Under South Carolina Common Law (As to All Defendants) 67. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 68. As alleged above, the Copycat Clubs Parties have infringed Plaintiff's senior common law trademark rights in the Cleveland Marks with the intent to deceive the public into believing that their products were manufactured by, approved by, sponsored by or affiliated with Cleveland Golf. 69. As alleged above, Bright is contributorily liable for the Copycat Clubs Parties' infringement because it knew or should have known of the Copycat Club Parties' unlawful use of Plaintiff's trademarks. As alleged above, Bright is vicariously liable for the Copycat Clubs Parties' infringement because of its relationship and involvement with the Copycat Club Parties' unlawful use of Plaintiff's trademarks,. 70. By reason of Defendants' acts alleged herein, the distinctiveness of the Cleveland Marks has been diluted and their reputation has been harmed. Consequently, Plaintiff has and 16 will suffer damage and injury to its business, reputation and goodwill, for which Plaintiff has no adequate remedy at law. 71. Such conduct on the part of the Defendants has caused and will continue to cause irreparable harm to Plaintiff. COUNT VI Violation of SCUPTA - S.C. Code § 39-5-10, et seq. (As to All Defendants) 72. Plaintiff hereby realleges each and every allegation contained in the foregoing paragraphs as if fully set forth herein. 73. The facts alleged above, including Defendants' infringement of Plaintiff's trademarks with the intent to deceive and defraud the public into believing that counterfeit golf clubs were manufactured by, approved by, sponsored by or affiliated with Cleveland Golf, constitute unfair and deceptive acts or practices in the conduct of trade or commerce in violation of S.C. Code Ann. § 39-5-10 et seq. (the South Carolina Unfair Trade Practices Act). 74. 75. Said conduct affects the public's interest and is capable of repetition. Defendants' actions are a willful and knowing violation of S.C. Code Ann. § 39- 5-10, with total disregard for the rights of Plaintiff and the public interest. 76. As a direct result of Defendants' unfair trade practices, Plaintiff has been injured and damaged, and is entitled to recover treble damages, costs, and attorney's fees. WHEREFORE, the Plaintiff, Cleveland Golf, requests that this Honorable Court: 1. Enter judgment in favor of the Plaintiff, Cleveland Golf, against the Defendants Christopher Prince, Sheldon Shelley, Prince Distribution, LLC, and Bright Builders, Inc. on all Counts and account for and pay over to Cleveland Golf all of 17 Defendants' profits derived from its unlawful conduct, to the full extent provided for by Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), including treble damages where appropriate, or as an the alternative to profits, $2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed by Defendants as provided for by 15 U.S.C. § 1117(c); 2. Enter a permanent injunction restraining and enjoining Defendants and their divisions, subsidiaries, officers, agents, employees, attorneys, and all those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise, from (i) purchasing, distributing, selling, or offering for sale, counterfeit Cleveland Golf clubs, or assisting, aiding, or abetting any other person or entity in doing so; or (ii) using the Cleveland Marks or marks confusingly similar to the Cleveland Marks in connection with the sale of golf clubs or golf related equipment; 3. Award punitive and exemplary damages against Defendants in favor of Plaintiff by reason of Defendants' intentional or reckless disregard for Plaintiff's rights and the rights of those defrauded; 4. 5. 6. Award treble damages pursuant to S.C. Code Ann. § 39-5-140; Award the Plaintiff its reasonable attorneys' fees and costs; Award the Plaintiff pre-judgment and post-judgment interest in the maximum amount allowed under the law; and 7. Award such other and further relief as it deems just and reasonable. 18 Jury Trial Claim The Plaintiff, Cleveland Golf, claims a trial by jury on all issues so triable. NELSON MULLINS RILEY & SCARBOROUGH LLP By: John C. McElwaine Federal Bar No. 6710 E-Mail: john.mcelwaine@nelsonmullins.com Janene B. Smith Federal Bar No. 9960 E-Mail: janene.smith@nelsonmullins.com 151 Meeting Street / Sixth Floor Post Office Box 1806 (29402-1806) Charleston, SC 29401-2239 (843) 853-5200 Admitted Pro Hac Vic Christopher S. Finnerty Massachusetts Bar No. 65732 E_mail: chris.finnerty@nelsonmullins.com Morgan T. Nickerson Massachusetts Bar No. 667290 E_mail: morgan.nickerson@nelsonmullins.com One Boston Place, 40th Floor Boston, MA 02108 (617) 573-4723 Charleston, South Carolina _________________, 2010 19

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