Finito Services LLC v. Charlee & Associates, Ltd. et al

Filing 1

COMPLAINT for Copyright Infringement and False Designation of Origin and Unfair Competition against defendant(s) All Defendants (Receipt # 0981-2420576), filed by Finito Services LLC. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Charlee & Associates, # 3 Summons Cindy Schutz, # 4 Summons Jon Schutz, # 5 Report on Copyrights (AO Form121))(Lowe, David) (Entered: 05/06/2011)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
FINITO SERVICES LLC dba SUNSPOT
INNS, RESORTS & VACATION RENTALS,

Civil Action No. 11-776
COMPLAINT FOR COPYRIGHT
INFRINGEMENT AND FALSE
DESIGNATION OF ORIGIN AND
UNFAIR COMPETITION

Plaintiff,
v.
CHARLEE & ASSOCIATES, LTD. DBA
GARDEN ISLAND RENTALS,
JON SCHUTZ, and CINDY SCHUTZ,
individually,

JURY TRIAL REQUESTED
Defendants.
Plaintiff Finito Services LLC dba Sunspot Inns, Resorts & Vacation Rentals (“Sunspot”)
hereby alleges the following causes of action against Defendants:
I.
1.

PARTIES

Plaintiff Sunspot is a Washington limited liability company having a place of

business in Seattle, Washington.
2.

Defendant Charlee & Associates, Ltd. Charlee & Associates, Ltd. is a Hawaii

corporation with a mailing address of P O Box 57, Koloa, Hawaii 96756 and a registered agent,
Louis Abrams, with an address of P O Box 1040, 2-3850 Kaumualii Hwy, Lawai, Hawaii 96765.

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3.

Defendant Jon Schutz is an individual who, on information and belief, resides

and/or does business at 1513 Copper Rose Drive, Golden, Colorado, 80401.
4.

Defendant Cindy Schutz is an individual who, on information and belief, resides

and/or does business at 1513 Copper Rose Drive, Golden, Colorado, 80401.
II.
5.

JURISDICTION AND VENUE

This action arises under the copyright and trademark laws of the United States of

America, 17 U.S.C. § 101 et seq. and 15 U.S.C. § 1051 et seq., respectively. Jurisdiction over the
copyright, false designation of origin and federal unfair competition claims is conferred upon this
Court by 28 U.S.C. §§ 1331 and 1338.
6.

Venue is proper in this Court pursuant to 28 USC §§ 1391(b) and (c) and 1400(a).

Defendants reside in, have transacted business in and have had continuous and systematic
contacts with the Western District of Washington. A substantial part of the events or omissions
giving rise to the claims occurred in this district.
III.
7.

SUNSPOT’S BUSINESS AND COPYRIGHTS AND TRADEMARKS

Sunspot is a network of independently owned inns, resorts and vacation rental

management companies. Sunspot provides support services to assist with reservations,
accounting, administration and front office services for home owner associations, resorts and
individual vacation property owners.
8.

As part of its services, Sunspot commissions non-stock, high-dynamic range

(HDR), commercial photographs of properties it manages for use in their marketing and rental.
Among others, Sunspot is the copyright owner of such high quality photographs to the vacation
rental property referred to as the “Kauai Five O” located in Kauai, Hawaii. Sunspot secured
federal copyright protection of its photographs under U.S. Copyright Registration
Nos. VAu1010970 and/or VAu1025789 (hereinafter “Kauai Five O photographs”). Sunspot has
not licensed any Kauai Five O photograph to any Defendants herein.

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9.

Sunspot has and continues to brand its services and its high quality photographs

with its distinctive Sunspot logo. Sunspot is the owner of geographically based common law
rights in the trademark stemming from more than five years of continuous and exclusive use of
the mark. Sunspot’s promotion, advertising and use of its trademark serves to identify Sunspot’s
services and photographs throughout the country and the world, distinguish these services and
photographs from those provided by others, and identify Sunspot as the source of those services
and photographs. As a result, the Sunspot logo trademark has become a valuable asset of Sunspot
and a symbol of goodwill to the public. Among the photographs branded with the Sunspot logo
trademark are the Kauai Five O photographs.
10.

Without the permission of Sunspot, Defendants selected, modified and placed one

or more Kauai Five O photographs in their rental marketing materials on multiple Internet
vacation

rental

websites,

including

www.kauairentals.com,

www.vrbo.com,

and

www.homeaway.com. Defendants maintained on the photographs Sunspot’s highly prominent
and distinctive trademark logo. On information and belief, Defendants widely distributed and
publicly displayed one or more Sunspot’s Kauai Five O photographs. Defendants used Sunspot’s
copyrighted works for the purpose of marketing and renting the property for commercial gain.
11.

Defendants have at all relevant times been aware of Sunspot’s copyrighted

photographs. Defendants have no license from Sunspot and despite notice of their wrongful
activities Defendants deliberately and willfully infringed Sunspot’s copyrights.
12.

Defendants have removed infringing Kauai Five O photographs from at least

certain of their rental marketing materials but have refused to compensate Sunspot for the
unauthorized use.
IV.

CAUSES OF ACTION

COUNT I: COPYRIGHT INFRINGEMENT
13.

Sunspot realleges the preceding paragraphs of this complaint.

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14.

By copying, modifying and creating one or more derivative works and/or

displaying and distributing Sunspot’s Kauai Five O photographs, Defendants’ actions constitute
copyright infringement in violation of 17 U.S.C. § 101 et seq.
15.

Defendants have facilitated possible infringement of others by failing to display

Sunspot’s work with a credit and copyright notice attached and by publishing one or more Kauai
Five O photographs on the Internet.
16.

Defendants have profited from their unauthorized use of Sunspot’s copyrighted

17.

Defendants had access to Sunspot’s copyrighted materials and knowledge of

work.

Sunspot’s ownership rights in the Kauai Five O photographs and their infringing activities were
deliberate, knowing, willful, and malicious, and were designed to provide Defendants with an
economic advantage over Sunspot or benefit at Sunspot’s expense. As a result of Defendants’
willfully infringing acts, Sunspot has been injured and has suffered damages in an amount to be
proved at trial.
18.

In addition to actual damages, Sunspot claims such other remedies to which it

may be entitled by law, including Defendants’ revenues and profits pursuant to 17 U.S.C. 504(b);
at Sunspot’s election and in the alternative, statutory damages up to $150,000 pursuant to
17 U.S.C. § 504(c); injunctive relief pursuant to 17 U.S.C. § 502; impounding and destruction of
infringing articles pursuant to 17 U.S.C. § 503; and attorney’s fees and costs pursuant to
17 U.S.C. § 505 and otherwise allowed by law.
COUNT II: FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION
19.

Sunspot realleges the preceding paragraphs of this complaint.

20.

In connection with Defendants’ marketing activities, Defendants have used a false

designation of origin, false or misleading description of fact or false or misleading representation
of fact and have advertised and offered services using the Sunspot logo on one or more

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infringing copies of the Kauai Five O photographs, without giving Sunspot credit, instead
passing off Sunspot’s work as Defendants’ own or as the work of third parties.
21.

Defendants’ use of the Sunspot logo trademark on infringing copies of the Kauai

Five O photographs has a high likelihood of creating confusion with Sunspot’s business and has
and will create a false impression in the minds of the public as to the source of Defendants’
rental marketing materials and services.
22.

Defendants have engaged in false designation of origin and unfair competition by

knowingly and willfully using Sunspot’s photographs and the Sunspot logo trademark even
though Sunspot owns the exclusive rights to their use in association with the provision of its
services and on its photographs. Defendants’ acts are likely to cause confusion or to cause
mistake or to deceive as to affiliation, connection or association or as to the origin, sponsorship
or approval of Sunspot’s work in violation of the Lanham Act, 15 U.S.C. § 1125(a). Sunspot has
been injured and suffered damages in an amount to be proved at trial.
V.

PRAYER FOR RELIEF

WHEREFORE, Sunspot prays for the following alternative and cumulative relief:
1.

An order preliminarily and permanently enjoining Defendants and all persons in
active concert or participation with any of them from copying or creating
derivative works based on Sunspot’s copyrights, and in using or displaying the
Sunspot logo trademark or any other marks confusingly similar thereto, as a
service mark, trademark, trade name or part thereof alone or in combination with
other words, symbols, styles, titles or marks in connection with the provision of
Internet content and related services;

2.

An order, as specifically provided by 17 U.S.C. § 503 and other applicable law,
for seizure to recover, impound, and destroy all things infringing Sunspot’s
copyrighted materials, including any video, written, or digitally maintained
materials Defendants may possess or have under their control, or under the
control of any of Defendants’ respective officers, agents, servants, employees,
attorneys, or any other person acting in concert or participation with Defendants;

3.

An order that Defendants deliver up for destruction all products, printed material,
stationery, business forms, signs, advertisements, brochures, promotional
material, manuals, pamphlets, labels, packages, containers, and all other materials

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bearing the Sunspot logo trademark, or any derivative, colorable imitation, or
confusingly similar marks, together with all means for making or reproducing the
same, pursuant to 15 U.S.C. § 1118 and other applicable law;
4.

An order requiring Defendants to file with this Court and serve on Sunspot, within
30 days of service of this order, a report in writing under oath setting forth in
detail the manner and form in which Defendants have complied with the terms of
the ordered relief;

5.

Damages in an amount sufficient to compensate Sunspot for all injury sustained
as a result of Defendants’ wrongful activities, including wrongful profits of
Defendants, as provided under applicable law;

6.

Treble the amount of damages recovered by Sunspot or other exemplary damages
and all of its litigation expenses, including reasonable attorneys’ fees and costs, as
provided under applicable law; and

7.

Such other and further relief as the Court may deem just.

RESPECTFULLY SUBMITTED this 6th day of May, 2011.
s/David A. Lowe, WSBA No. 24,453
Email: [e-mail]
BLACK LOWE & GRAHAMPLLC
701 Fifth Avenue, Suite 4800
Seattle, WA 98104
Attorneys for Finito ServicesLLC dba
Sunspot Inns, Resorts & Vacation Rentals

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