Papa v. Highspot.com, Inc.
Filing
1
COMPLAINT James Papa against Highspot.com, Inc. filed by James Papa. Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. (Filing fee $350; Receipt number 0539-4213830) Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership (Attachments: # 1 Exhibit(s)) (McHam, Chris)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES PAPA
PLAINTIFF,
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V.
HIGHSPOT.COM INC.
DEFENDANT.
CIVIL ACTION NO. 3:11-CV-03003
PLAINTIFF’S ORIGINAL COMPLAINT
AND REQUEST FOR PRELIMINARY INJUNCTION
Plaintiff,
JAMES
PAPA
files
this
Complaint
against
Defendant
HIGHSPOT.COM, INC.
I. PARTIES
1. Plaintiff JAMES PAPA is an individual who resides in Irving, Dallas County,
Texas.
2. Defendant HIGHSPOT.COM INC. is a North Carolina Corporation and may be
served by delivering process to its registered agent for service of process, Michael
Bochicchio at 709 Queen Charlottes Court, Charlotte, North Carolina 28211-2091.
II. JURISDICTION
3. This Court has jurisdiction under 28 U.S.C. §§1331, 1338(a), and 1338(b) as this
cases raises a Federal question in that this is an action for copyright infringement under
the Copyright Act of 1976, Title 17 U.S.C. §§101 et seq and the Lanham Act, 15 U.S.C.
§1125(a), as hereinafter more fully appears.
PLAINTIFF’S ORIGINAL COMPLAINT AND REQUEST FOR PRELIMINARY INJUNCTIONN
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4. Plaintiff JAMES PAPA is a citizen of the State of Texas and Defendant
HIGHSPOT.COM INC. is a North Carolina Corporation. The matter in controversy
exceeds, exclusive of interest and costs, the sum of seventy-five thousand dollars
($75,000.00).
III. VENUE
5. The claims asserted herein arose in this judicial district and Defendant does
business in this judicial district. Venue in this judicial district is proper under 28 U.S.C.
§§1391(c) and 1400(a) in that this is the judicial district in which a substantial part of the
acts and omissions giving rise to the claims occurred.
IV. FACTS
6. Plaintiff JAMES PAPA has been engaged in the business of marketing and
promoting professional wrestling. IN the course of his business Plaintiff has created
several trademarks as well as written numerous original musical works subject to
copyright and common law copyright. Over the past twenty years, Plaintiff has created
substantial goodwill and public trust in his marks and musical works.
7. Plaintiff began using the trademark “Freebirds” in association with professional
wrestling in 1984.
8. Plaintiff began using the trademark “Bad Street USA” in association with
professional wrestling in 1983.
PLAINTIFF’S ORIGINAL COMPLAINT AND REQUEST FOR PRELIMINARY INJUNCTIONN
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9. Plaintiff has written the lyrics, composed the music and produced the recording of
numerous musical works. These works were used as “introduction” or “entry” music by
numerous professional wrestlers. Such works were subject to copyright and common law
copyright and include:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
Don’t Step to Ron
Man Called Sting
Mr. Bang Bang
Master of the DDT
Freebirds Forever
Simply Ravishing
Johnny B. Badd
The Natural
The Dragon
He’s Smokin’
Steinerized
10. Plaintiff has written the lyrics, composed the music and produced the recording of
numerous musical works. These works were used as “introduction” or “entry” music by
numerous professional wrestlers. Many of these works were registered with Broadcast
Music Incorporated, from whom Plaintiff receives royalties and include:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Everything is Allright
When the Love Comes Down
The Night You Can’t Remember
Ain’t Superstitious
Touch My Level
Boys are Back in Town
Blue Jean Queen
Heartbeat Away
Badstreet USA
11. In addition to writing the lyrics, composing the music and producing the
recording for Badstreet U.S.A. the Plaintiff produced in 1983 an original music video
based on the song.
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12. Defendant HIGHSPOT.COM INC. is the owner of an internet site highspot.com
that specializes in selling wrestling and mixed martial arts products. Among the products
offered on Defendant’s website are compact discs containing music that Plaintiff
composed, wrote the lyrics for and produced. Examples of Defendant’s websites
featuring copyrighted materials belonging to Plaintiff are attached as “Exhibit A.”
13. Defendant also offers for sale numerous products using the Plaintiff’s trademark
“Badstreet USA”. Examples of Defendant’s websites featuring trademarked materials
belonging to Plaintiff are attached as “Exhibit B.”
14. Additionally, Defendant is selling videos in which professional wrestling bouts
are shown. These matches begin with each wrestler or team of wrestlers entering the ring
to their “introduction” music. Many of Plaintiff’s original musical creations were used by
these wrestlers for their live performances as well as the televised versions. The videos
Defendant is selling contain Plaintiff’s original music. Defendant was never granted a
license to reproduce these recordings for sale or otherwise. Examples of Defendant’s
websites featuring copyrighted materials belonging to Plaintiff are attached as “Exhibit
C.”
15. Defendant is not privileged to reproduce any of the copyrighted materials
belonging to Plaintiff.
Nor are they privileged to use any trademark belonging to
Plaintiff. Defendant has not sought license or permission to offer any of the above listed
copyrighted or trademarked materials for sale.
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16. The infringement of Plaintiff’s trademarks and copyrighted materials is causing
Plaintiff irreparable harm.
17. Plaintiff has performed all conditions precedent required for recovery in the
instant action.
V. CAUSE OF ACTION NO. 1 — COPYRIGHT INFRINGEMENT
18. Plaintiff repeats and reiterates each and every allegation of paragraphs of the
Complaint marked as 1 through 17 above, as if more fully set forth at length herein.
19. Upon information and belief the Defendant has access to Plaintiff’s work via
licensed television broadcast.
20. The music, lyrics and video contained in the video recordings offered for sale by
Defendant copy the original expression of the above listed music, lyrics and video
written, performed or produced by Plaintiff and therefore infringe on Plaintiff’s copyright
in said music, lyrics and video.
21. Defendant has infringed on Plaintiff’s copyright by copying Plaintiff’s music,
lyrics and video and producing and distributing videotapes containing Plaintiff’s music,
lyrics and video without Plaintiff’s permission.
22. By reason of Defendant’s acts of copyright infringement, Plaintiff is entitled to
recover all profits received or otherwise achieved, directly or indirectly, by Defendants in
connection with his manufacturing, importing, advertising and sale of the accused
products which are copies of Plaintiff’s works.
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VI. CAUSE OF ACTION NO. 2 — CONTRIBUTORY COPYRIGHT INFRINGEMENT
23. Plaintiff repeats and reiterates each and every allegation of paragraphs of the
Complaint marked as 1 through 22 above, as if more fully set forth at length herein.
24. Upon information and belief, Defendant used and copied Plaintiff’s music
without Plaintiff’s permission.
25. . Upon information and belief, Defendant used and copied Plaintiff’s lyrics
without Plaintiff’s permission.
26. Upon information and belief, Defendant used and copied Plaintiff’s video without
Plaintiff’s permission.
27. Upon information and belief, Defendant’s use of the music, lyrics and video and
copying of Plaintiff’s music, lyrics and video was done so that Defendant would be able
to take over, for their own profit and advantage Plaintiff’s music, lyrics and video.
28. Upon information and belief, Defendant induced, participated and aided and
abetted in, and profited from, the copying of Plaintiff’s music, lyrics and video.
29. By reason of the foregoing copying, Defendant copied or aided and assisted in the
copying and performing of Plaintiff’s music, lyrics and video in various media without
permission of Plaintiff, which is an infringement of Plaintiff’s copyright.
30. By reason of Defendant’s acts of copyright infringement, Plaintiff is entitled to
recover all profits received or otherwise achieved, directly or indirectly, by Defendants in
PLAINTIFF’S ORIGINAL COMPLAINT AND REQUEST FOR PRELIMINARY INJUNCTIONN
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connection with his manufacturing, importing, advertising and sale of the accused
products which are copies of Plaintiff’s works.
V. CAUSE OF ACTION NO. 3 — LANHAM ACT VIOLATIONS
31. Plaintiff repeats and reiterates each and every allegation of paragraphs of the
Complaint marked as 1 through 30 above, as if more fully set forth at length herein.
32. By reason of the foregoing, Defendant failed to designate Plaintiff as the author of
Plaintiff’s music, lyrics and video in advertising and publicizing.
33. Upon information and belief Defendant’s actions promoting video recordings
containing music, lyrics and video created by Plaintiff without crediting Plaintiff as the
author of the music, lyrics and video constitutes unfair competition under the legal
doctrine of passing off.
34. By reason of the foregoing, Defendant has willfully and intentionally caused
damage to Plaintiff by affixing and using in commerce such false descriptions or
representations in violation of Plaintiff’s rights under Section 43(a) of the Lanham Act,
15 U.S.C. section 1125(a).
35. By reason of Defendant’s acts of copyright infringement, Plaintiff is entitled to
recover all profits received or otherwise achieved, directly or indirectly, by Defendants in
connection with his manufacturing, importing, advertising and sale of the accused
products which are copies of Plaintiff’s works.
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VII. CAUSE OF ACTION NO. 4 – TRADEMARK INFRINGEMENT
36. Plaintiff repeats and reiterates each and every allegation of paragraphs of the
Complaint marked as 1 through 35 above, as if more fully set forth at length herein.
37. Upon information and belief Defendant’s actions selling products containing the
phrase “Badstreet USA” infringe upon Plaintiff’s trademark in such term. Specifically the
overall impression created by the products Defendant is selling are exactly the same as
the mark owned by Plaintiff. There is no variation between them and as such consumers
are unable to distinguish between Plaintiff’s mark and the items Defendant is selling. It is
clearly Defendant’s intent that consumers assume that the products Defendant is selling
are original “Badstreet USA” products similar to products that have been sold by Plaintiff
in the past.
38. By reason of Defendant’s acts of trademark infringement, Plaintiff is entitled to
recover all profits received or otherwise achieved, directly or indirectly, by Defendants in
connection with his manufacturing, importing, advertising and sale of the accused
products which are copies of Plaintiff’s trademark.
VIII. REQUEST FOR PRELIMINARY INJUNCTION
39. Defendant’s conduct has caused and is causing Plaintiff incalculable harm.
Plaintiff seeks a preliminary and permanent injunction to halt Defendant’s use of
Plaintiff’s trademark and copyrighted materials.
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IX. REQUEST FOR RELIEF
40. With respect to Plaintiff’s Request for Preliminary Injunction Plaintiff asks the
Court:
(1) For an order preliminarily and permanently enjoining the Defendant, and his
agents, servants, attorneys, and employees and all other persons acting in
concert with him from committing any further acts of infringement, including
but not limited to copying, manufacturing, importing, advertising, selling and
distributing the accused products, or aiding or abetting or assisting others in
such infringing activities
(2) For an order directing Defendant to file with this Court and to serve on
Plaintiff within 30 days after service on Defendant of the injunction granted
herein, or such extended period as the Court may direct, a report in writing,
under oath, setting forth in detail the manner and form in which Defendant
has complied with the injunction and order of the Court.
(3) For an order seizing and impounding all Accused Products.
(4) For an order requiring Defendant to account to Plaintiff for all profits derived
by Defendant from the manufacture, importation, advertisement and sale of
the Accused Products.
(5) For a judgment of damages against Defendant in an amount to be proven at
trial or in the alternative a reasonable royalty, and for prejudgment and post
judgment interest until the award is fully paid.
(6) For a judgment that Defendant has willfully and deliberately infringed
Plaintiff’s rights and that this is an exceptional case entitling Plaintiff to
enhanced damages.
(7) Attorney fees as available under the Copyright Act, 17 U.S.C. section 101 et.
seq.
41. With respect to Plaintiff’s requests for relief Plaintiff asks the Court:
(8)
(9)
(10)
(11)
For an order awarding actual damages.
For an order awarding exemplary and punitive damages.
That Plaintiff be granted costs, disbursements, and reasonable attorney fees.
That Defendant account to Plaintiff for his profits and any damages sustained
by Plaintiff arising from the foregoing acts of infringement and false
representation.
(12) That in accordance with such accounting, Plaintiff be awarded judgment for
three times such profits and damages pursuant to 15 U.S.C. section 117.
(13) For such other and further relief as the Court deems just and proper.
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DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury on all issues raised by the complaint.
Respectfully submitted,
McHam Law
1000 Heritage Center Circle
Round Rock, Texas 78664
Tel: (512) 788-3554
Fax: (512) 852-4560
By:
Chris McHam
State Bar No. 24041447
ATTORNEY FOR PLAINTIFF
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