Case NONUI Document 1 Filed 08/31/10 Page 1 of 13 Page ID Ell Ralph C. Loeb (#38381) Email: KEANE 1011111331 16255 Ventura Boulevard, Suite 600 . :1 COURT Encino, Callfornla 91436 ?Egg-j; ,f ELCAUF. Tel: (8188) 382-4000 W. .- Fax: (81 382?4001 Attorneys for Plaintiff DALLAS PAGE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA DALLAS PAGE, an individual, CAEE 18?! 1 0 65 2 2 Plaintiff, PLAINTIFF DALLAS COMPLAINT FOR: vs. . (1) TRADE MARK INFRINGEMENT 3OHIO3, LLC, a Colorado limlted UNDER LANHAM ACT ?32; liabillty company, 15 U.S.C. 1114; (2) VIOLATI OF LANHAM ACT 4392, 15 U.S.C. 1125(a Defendant. (3) MON LAW RAD MARK AND (4) UNFAIR DEMAND FOR TRIAL BY JURY 3 . COMPLAINT Cases Ui-bbJN Document 1 Filed 08/31/10 Page 2 of 13 Page ID Plaintiff DALLAS PAGE, alleges as follows: JURISDICTION AND VENUE 1. This Court has federal question jurisdiction over this matter pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338(a) and and supplemental jurisdiction over Dallas Page?s claims arising under state law pursuant to 28 U.S.C. 1367. 2. Venue in this Court is proper under 28 U.S.C. 1391 because Defendant does business in this district and a substantial portion of the events or omissions giving rise to Dallas Page?s claims occurred in this district. PARTIES 3. Plaintiff Dallas Page, a/k/a ?Diamond Dallas Page? and ?Page Falkinburg,? is an individual residing in this district. Dallas Page has been in the entertainment industry since 1988 as a professional wrestler, actor, inspirational speaker, health and ?tness instructor and author. 4. Plaintiff is informed and believes, and on that basis alleges, that Defendant 3 (?Defendant?), is a Colorado limited liability company which offers goods and services of the musical group known as 30Hl3 in this district. GENERAL ALLEGATION A. Plaintiff Dallas Page and The Diamond Cutter Trademark 5. Since 1988, Dallas Page has been an active participant in the entertainment industry. Plaintiff began his entertainment career as a professional wrestling manager, became a commentator and eventually became one of the professional wrestling?s most popular and recognizable world champions. 6. Beginning in 1995, Dallas Page created and developed a hand sign consisting of two hands touching at the index ?nger and thumb to form the shape of a diamond (?Diamond Cutter Trademark?), to promote his persona in the .w?pd 2 COMPLAINT Case Document 1 Filed 08/31/10 Page 3 of 13 Page ID entertainment industry. Dallas Page has continuously used variations of the Diamond Cutter Trademark in commerce since that time. Two variations of the Diamond Cutter Trademark displayed on t-shirts being sold by Dallas Page are attached hereto as Exhibit 7. Furthermore, Dallas Page is the owner of Federal Registrations of variations of the Diamond Cutter Trademark on the Principal Register of the United States Patent and Trademark Of?ce, U.S. Reg. Nos. 3295332 and 3418802 (?Registered Diamond Cutter Trademarks?). 8. As Plaintiffs popularity increased, so did the Diamond Cutter Trademark, which had become associated with Dallas Page. At every wrestling event, Plaintiff?s ?ash of the Diamond Cutter Trademark would cause the entire crowd to jump out of their seats and put there hands together in the shape of a diamond towards Plaintiff mimicking the Diamond Cutter Trademark. 9. Plaintiff continually used his hand symbol, the Diamond Cutter Trademark, in conjunction with the execution of his signature ?nishing move, the Diamond Cutter, at every wrestling match. Dallas Page also used the Diamond Cutter Trademark at every appearance, inside and outside of the wrestling arena, to promote his image and entertainment persona. Plaintiff?s appearances and use of the Diamond Cutter Trademark in wrestling matches and at wrestling events have been taped, broadcasted and watched by millions of Viewers around the world. 10. Plaintiff?s pOpuIarity and association with his Diamond Cutter Trademark has not been limited to only the general public, but is also well recognized by celebrities, entertainers, and sports ?gures. Celebrities such as Whoopi Goldberg, members of the band KISS, and Jay Leno have flashed Plaintiff the Diamond Cutter Trademark at public appearances. As a further example, in Game 6 of the 1998 NBA ?nals against the Chicago Bulls, Karl Malone, the Utah .wpd 3 COMPLAINT Case Document 1 Filed 08/31/10 Page 4 of 13 Page ID Jazz star basketball player, ?ashed the Diamond Cutter Trademark during the game and referred to the symbol as Plaintiffs hand sign. Similarly, former professional football player and Dallas Cowboy star running back, Herschel Walker used the Diamond Cutter Trademark after a 64 yard touchdown run and also acknowledged that it was Plaintiffs signature trademark. 11. Due to his enormous popularity, Plaintiff has sold merchandise, including t-shirts, hats, stationary, posters and action ?gures, of his persona bearing his Diamond Cutter Trademark. A true and correct copy of a page from the store on Plaintiffs website, displaying merchandise bearing the Diamond Cutter Trademark is attached hereto as Exhibit 12. Over the years, Plaintiff has expanded the use of the Diamond Cutter Trademark outside of his wrestling career to his entertainment services as an actor, inspirational speaker, health and ?tness instructor and author. 13. As an actor, Plaintiff has already starred in twelve feature ?lms, including ?Vengeance?, ?Snoop Dogg?s Hood of Horrow?, ?Devil?s Rejects?, ?The Rat Race? and ?Ready to Rumble?, and has appeared in numerous television shows, including ?The Tonight Show?, ?Larry King Live?, ?The Martin Short Show?, ?Live! with Regis Kathie Lee?, ?Roseanne?, and ?Hollywood Squares?. 14. As a health and ?tness instructor and author, Plaintiff has published and created an instructional guide called Yoga For Regular Guys, which features a variation of his Diamond Cutter maneuver as one of the exercises. Plaintiffs Diamond Cutter Trademark is featured throughout Yoga For Regular Gu?, and in prior books of Plaintiff. 15. Dallas Page is known to the public through the Diamond Cutter Trademark, not only as a result of Plaintiffs use and promotion of the mark, but also as a result of receiving substantial unsolicited media attention. For example, Dallas Page and the Diamond Cutter Trademark have been featured in the F: OH . 4 COMPLAINT Case 5 Document 1 Filed 08/31/10 Page 5 of 13 Page ID following publications, among others The Los Angeles Times, Daily Variety, Hollywood Reporter and Screen International. Plaintiff also appeared on multitudes of magazine publications showing the Diamond Cutter Trademark. 16. As a result of Dallas Page?s use and promotion of the Diamond Cutter Trademark, the quality of the products and services offered under the Diamond Cutter Trademark and media recognition of the Diamond Cutter Trademark, the Diamond Cutter Trademark is well-known to those in the entertainment and Sports industries. Furthermore, the Diamond Cutter Trademark enjoys signi?cant goodwill throughout the United States. 17. By Virtue of his nationwide use of the Diamond Cutter Trademark, Dallas Page is the owner of the Diamond Cutter Trademark, and has the right to bar the use of confusingly similar marks for the same or related goods and services as those Dallas Page offers under his mark. B. Defendant and Its Infringement and Misappropriation of The Diamond Cutter Trademark 18. Notwithstanding, Plaintiff?s rights in and to the Diamond Cutter Trademark, Defendant has Plaintiff 3 Diamond Cutter trademark hand sign to promote its apparel, entertainment services, and other products. 19. On information and belief, at the time Defendant began using Diamond Cutter Trademark, it knew of Plaintiff? 3 prior adoption, ownership, and wideSpread use of his Diamond Cutter Trademark, and knew of the valuable goodwill and reputation acquired by Dallas Page in his Diamond Cuter Trademark. 20. Upon information and belief, Defendant has used and continues to use, the Diamond Cutter Trademark, which is Plaintiff?s trademark, in order to capitalize on the goodwill of Plaintiff. 21. Upon information and belief, Defendant?s use in commerce of the F: 3 .wpd 5 COMPLAINT Casii Document 1 Filed 08/31/10 Page 6 of 13 Page Diamond Cutter Trademark for apparel, entertainment services and other products and services, has caused and is likely to continue to cause, confusion, deception, and mistake in the minds of the public with respect to the source and origin of Defendant?s products and services, in that the public and those in the entertainment and apparel industry will believe that Plaintiff is the source of origin of such products and services, is af?liated with Defendant and/or Defendant?s products or services, or has sponsored, approved, or licensed Defendant?s use of the Diamond Cutter Trademark and/or Defendant?s products and services offered under such marks. Upon information and belief, the respective marks used by the parties are confusingly similar and have caused, and are likely to continue to cause, confusion amongst potential purchasers of the parties? goods and services. 22. Alternatively, Defendant?s use in commerce of the Diamond Cutter Trademark for entertainment and apparel services has caused, and is likely to continue to cause, a reverse confusion, deception, and mistake in the minds of the public with respect to the source and origin of Defendant?s services and products, in that the public and those in the entertainment and apparel industry believe that Defendant is the source of origin of Plaintiff 3 services and products, are affiliated with Plaintiff and/or Plaintiff?s services and products, or has sponsored, approved, or licensed Plaintiff?s use of the Diamond Cutter Trademark and/or Plaintiff?s services and products offered under such mark. Upon information and belief, the respective marks used by the parties are confusingly similar and have caused, and are likely to continue to cause, reverse confusion amongst potential purchasers of the parties? goods and services. FIRST CLAIM FOR RELIEF (Trademark Infringement Under Lanham Act ?32, 15 U.S.C. 23. Dallas Page hereby incorporates by reference the statements and allegations contained in paragraphs 1?22 as if fully stated herein. 6 COMPLAINT Case Document 1 Filed 08/31/10 Page 7 of 13 Page ID 24. The aforesaid acts of Defendant constitute infringement of the Registered Diamond Cutter Trademarks, in violation of Section 32(1) of the Lanham Act of 1946, as amended, 15 U.S.C. ?1114(1). 25. By reason of the acts of Defendant alleged herein, Dallas Page has suffered, is suffering and will continue to suffer damages and irreparable injury. Unless Defendant is restrained from continuing its wrongful acts, the damage to Dallas Page will increase. Dallas Page has no adequate remedy at law. 26. Dallas Page is further entitled to recover from Defendant his actual damages sustained as a result of Defendant?s wrongful acts. Dallas Page is presently unable to ascertain the full extend of the monetary damages he has suffered by reason of Defendant?s wrongful acts. 27. Dallas Page is further entitled to recover from Defendants the gains, pro?ts and advantages that Defendant has obtained as a result of its wrongful acts. Dallas Page is presently unable to ascertain the extent of the gains, pro?ts and advantages Defendant has realized by reason of its wrong?Jl acts. 28. Because of the willful nature of Defendant?s wrongful acts, Dallas Page is entitled to an award of treble damages pursuant to 15 U.S.C. ?1117. SECOND CLAIM FOR RELIEF (Violation of Lanham Act 15 U.S.C. ?1125(a)) 29. Dallas Page hereby incorporates by reference the statements and allegations contained in paragraphs 1?28 as if fully stated herein. 30. Defendant?s actions constitute unfair competition and a false designation of origin in violation of 15 U.S.C. ?1 125(a). 31. As a direct and proximate result of Defendant?s wrongful acts, Dallas Page has suffered and continues to suffer damages and irreparable injury. Defendant will continue, unless restrained, to use the Diamond Cutter Trademark and will cause irreparable damage to Dallas Page. Plaintiff has no adequate .wpd 7 COMPLAINT Case Document 1 Filed 08/31/10 Page 8 of 13 Page ID #:10 remedy at law and is entitled to an injunction restraining Defendant, its partners, managers, representatives, businesses, agents and employees, and all persons acting in concert with Defendant, from engaging in further acts of unfair competition and false designation of origin. 32. Dallas Page is further entitled to recover from Defendant his actual damages sustained as a result of Defendant?s wrongful acts. Dallas Page is presently unable to ascertain the full extend of the monetary damages he has suffered by reason of Defendant?s acts of unfair competition and false designation of origin. 33. Dallas Page is ?lrther entitled to recover from Defendants the gains, pro?ts and advantages that Defendant has obtained as a result of its wrongful acts. Dallas Page is presently unable to ascertain the extent of the gains, pro?ts and advantages Defendant has realized by reason of its acts of unfair competition and false designation of origin. 34. Because of the willful nature of Defendant?s wrongful acts, Dallas Page is entitled to an award of treble damages pursuant to 15 U.S.C. ?1 1 17. THIRD CLAIM FOR RELIEF (Common Law Trademark Infringement) 35. Dallas Page hereby incorporates by reference the statements and allegations contained in paragraphs 1-34 as if fully stated herein. 36. Upon information and belief, Defendant?s use in commerce of the Diamond Cutter Trademark has caused, and is likely to continue to cause, confusion with respect to the source and origin of Defendant?s goods and services, and has caused and is likely to continue to cause, confusion or mistake and to deceive consumers as to the affiliation, connection, or association of Dallas Page with Defendant. 37. Defendant?s acts constitute infringement of the Diamond Cutter 3 .wpd 8 COMPLAINT Case Document 1 Filed 08/31/10 Page 9 of 13 Page ID #:11 Trademark in violation of common law. 38. As a direct and proximate result of Defendant?s wrongful acts, Dallas Page has suffered and continues to suffer damage to his business reputation and goodwill. Defendant will continue, unless restrained, to use the Diamond Cutter Trademark or designs or marks confusingly similar thereto, and will cause irreparable damage to Plaintiff. Plaintiff has no adequate remedy at law and is entitled to an injunction restraining Defendant, its partners, managers, representatives, businesses, agents and employees, and all persons acting in concern with Defendant, from engaging in further acts of trademark infringement. 39. Dallas Page is further entitled to recover from Defendant his actual damages sustained as a result of their wrongful acts. Plaintiff is presently unable to ascertain the full extent of the monetary damages he as suffered by reason of Defendant?s acts of trademark infringement. 40. Dallas Page is further entitled to recover from Defendant the gains, pro?ts and advantages that Defendant has obtained as a result of its wrongful acts. Dallas Page is presently unable to ascertain the extent of the gains, pro?ts and advantages Defendant has realized by reason of its acts of trademark infringement. 41. Upon information and belief, because of the willful nature of Defendant?s wrongful acts, Dallas Page is entitled to an award of punitive damages under the common law. FOURTH CLAIM FOR RELIEF (California Unfair Competition) 42. Dallas Page hereby incorporates by reference the statement sand allegations contained in paragraphs 1?4] as if fully stated herein. 43. Defendant?s actions constitute unfair competition under the statutory law of California, including Cal. Bus. Prof. Code ?l7200, et seq., and under the common law of the State of California. URI 3 . 9 COMPLAINT Case Document 1 Filed 08/31/10 Page 10 of 13 Page ID #:12 44. As a direct and proximate result of Defendant?s wrongful acts, Dallas Page has suffered and continues to suffer damage to his business reputation and goodwill. Defendant will continue, unless restrained, to use the Diamond Cutter Trademark and will cause irreparable damage to Dallas Page. Dallas Page has no adequate remedy at law and is entitled to an injunction restraining Defendant, its of?cers, agents and employees, and all persons acting in concert with Defendant, from engaging in further acts of unfair competition. 45. Dallas Page is further entitled to recover from Defendant his actual damages sustained as a result of Defendant?s wrongful acts. Dallas Page is presently unable to ascertain the full extent of the monetary damages he has suffered by reason of Defendant?s acts of unfair competition. 46. Dallas Page is further entitled to recover from Defendant the gains, pro?ts and advantages that Defendant has obtained as a result of its wrong?il acts. Dallas Page is presently unable to ascertain the extent of the gains pro?ts and advantages Defendant has realized by reason of its acts of unfair competition. 47. Because of the willful nature of Defendant?s wrongful acts, Dallas Page is entitled to an award of punitive damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff Dallas Page prays that this Court enter judgment against Defendant as follows: 1. Finding that Defendant has infringed Dallas Page?s Diamond Cutter Trademark under 15 U.S.C., ?ll l4 and the common law, have violated 15 U.S.C. ?1 125(a), have unfairly competed with Dallas Page by falsely designating the origin of its services and products, has engaged in other acts of unfair competition under Cal. Bus. &Prof. Code ?17200 and the common law; 2. Ordering that Defendant and its partners, managers, representatives, businesses, of?cers, agents, servants, employees, and attorneys and all persons in .de COMPLAINT Case Document 1 Filed 08/31/10 Page 11 of 13 Page ID #:13 active concert or participation with Defendant, or with any of the foregoing, be enjoined preliminary during the pendency of this action and permanently thereafter from: 3. Promoting, advertising, publicizing, offering for sale, or selling any entertainment services, or any other services or products under the Diamond Cutter Trademark, or any other mark, name symbol, or logo that incorporates or is confusingly similar or substantially similar to the Diamond Cutter Trademark; b. Promoting, advertising, publicizing, offering for sale, or selling any entertainment services, apparel or any other services or products under the Diamond Cutter Trademark or any other mark, name, symbol, or logo which is likely to cause confusion or cause mistake or to deceive persons into the erroneous belief that Defendant?s services originate from Dallas Page, that Defendant or its services are authorized by Dallas Page, endorsed by Dallas Page, sponsored or licensed by Dallas Page, or connected in some way with Dallas Page or his trademark; c. Using false designating of origin or engaging in any act or series of acts which, either alone or in combination, constitutes unfair methods of competition with Dallas Page and from otherwise interfering with, or injuring the Diamond Cutter Trademark or the goodwill associated therewith; d. Engaging in any act which dilutes the distinctive quality of the Diamond Cutter Trademark and/or injures Dallas Page?s business reputation; e. Representing or implying that Defendant is in any way sponsored by, af?liated with, or endorsed or licensed by Dallas Page. 3. Ordering that Defendant be required to deliver to Dallas Page or destruction all products, advertisements, promotional materials, business cards, stationery, and promotional items which bear the Diamond Cutter Trademark, or any other trademarks, names, or logo that are confusingly similar or substantially F: 3 . COMPLAINT Case Document 1 Filed 08/31/10 Page 12 of 13 Page ID #:14 similar to the Diamond Cutter Trademark; 4. Granting an award of damages suffered by Dallas Page according to proof at the time of trial herein; 5. Ordering that Defendant?s account to Dallas Page for any and all profits earned as a result of Defendant?s aforesaid acts of infringement in violation of Dallas Page?s rights under the Lanham Act, Cal. Bus. Prof. Code ?17200, et seq, and the common law; 6. Granting an award of three times the amount of compensatory damages and pro?ts; and 7. Granting statutory damages for willful use of a counterfeit mark pursuant to 15 U.S.C. ?1117(c). 8. Granting an award of punitive damages for the willful and wanton nature of Defendant?s aforesaid acts; 9. Granting an award of prejudgment interest. 10. Granting an award of Dallas Page?s costs, expenses and reasonable attorneys? fees; and l. Granting such other and further relief as is just and proper. DATED: August 31, 2010 KRANE SMITH . i Attorneys for Plaintiff DALLAS PAGE F: OH 13 2 COMPLAINT Case Document 1 Filed 08/31/10 Page 13 of 13 Page ID #:15 DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial in this action. DATED: August 31, 2010 KRANE SMITH Attorneys for Pleintiff DALLAS PAGE F: 3 COMPLAINT