Case Document 1 Filed 01/31/11 Page 1 of 11 PageID 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION BIG CAT RESCUE CORR, a Florida not for pro?t corporation, Plaintiff, vs. CASE NO. BIG CAT RESCUE ENTERTAINMENT GROUP, INC., an Oklahoma Corporation, G.W. EXOTIC MEMORIAL ANIMAL FOUNDATION d/b/a Big Cat Rescue Entertainment Group, an Oklahoma Corporation, JOE SCHREIBVOGEL, a/k/a Joe Exotic a/k/a Aarron Alex a/k/a Cody Ryan, individually, BETH CORLEY, individually, and VICKY WELCH, individually, Defendants. COMPLAINT Plaintiff, BIG CAT RESCUE CORP., a Florida not-for-pro?t corporation, sues Defendants, BIG CAT RESCUE ENTERTAINMENT GROUP, INC., an Oklahoma corporation, G.W. EXOTIC MEMORIAL ANIMAL FOUNDATION d/b/a Big Cat IBVOGEL a/k/a Rescue Entertainment Group, an Oklahoma Corporation, JOE SC Joe Exotic a/k/a Aaron Alex a/k/a Cody Ryan, individually. BETH CORLEY, individually, and VICKY WELCH, individually, and alleges: PARTIES 1. Plaintiff, BIG CAT RESCUE CORP. Corp"), is a not-for-pro?t corporation duiy organized under the laws of the state of Fiorida which maintains its Case Document 1 Filed 01/31/11 Page 2 of 11 PageID 2 principal place of business at 12802 Easy Street, Tampa, Florida 33625. BCR Corp?s Chief Executive Of?ce is Carole Baskin. 2. Defendant, BIG CAT RESCUE ENTERTAINMENT GROUP, INC., Entertainment"), is a corporation organized under the laws of the State of Oklahoma with its principal place of business at 25803 N. CR 3250, Wynnewood, Oklahoma 73098. 3. Defendant, G.W. EXOTIC ANIMAL MEMORIAL FOUNDATION is a corporation organized under the laws of the State of Oklahoma with its principal place of business at 25803 N. CR 3250, Wynnewood, Oklahoma 73098. In the Spring of 20:0, GWE ?led the trade names ?Big Cat Rescue Entertainment? and ?The Caroll Baskin Entertainment Group? with the Oklahoma Secretary of State. 4. Defendant JOE SCHREIBVOGEL (?Schreibvogel?) is an individual residing in Wynnewood, Oklahoma. At various times, Schriebvogel has employed the following aliases: ?Joe Exotic,? ?Aarron Alex? and ?Cody Ryan.? Schreibvogel is an incorporator of both BCR Entertainment and GWE. Upon information and belief, Schreibvogel is an of?cer and shareholder in, and employee of both BCR Entertainment and GWE and all of his actions which are the subg'ect of this iawsuit were undertaken in his capacity as an of?cer and agent of BCR Entertainment and GWE. 5. Defendant BETH CORLEY (?Corley?) is an individual who, upon information and belief, resides in Wynnewood, Oklahoma. Corley holds a license from the U.S. Department of Agriculture for the breeding and exhibition of exotic animals. Upon information and belief, BCR Entertainment has exhibited exotic animals using Corley?s USDA license. Coriey has been identi?ed altemativeiy as ?Director? and a Case Document 1 Filed 01/31/11 Page 3 of 11 PageID 3 ?worker? for BCR Entertainment. Corley maintains and houses he? exotic animals at the GWE facility in Wynnewood, Oklahoma. 6. Defendant VICKY WELCH (?Welch?) is an individual who, upon information and belief, resides in Wynnewood, Oklahoma. Welch is the registered owner of the URL BCR Entertainment uses the wwtigersinneedcom URL on its business cards and advertising materials. JURISDICTION AND VENUE 7. This Court has jurisdiction under the provisions of 15 U.S.C 1121, 28 U.S.C. 1338(a) 1367. 8. Defendants are subject to the personal jurisdiction of this Court pursaant to the Florida Long Arm Statute, Fla. Stat. Speci?cally, at all times relevant, Defendants have continuously and regularly engaged in substantial and not isolated business activities within the State of Florida. For example, the only telephone member advertised for Defendant BCR Entertainment is in area code 813. The website used and promoted by Defendant BCR Entertainment and registered to Defendant Welch, solely lists a Florida of?ce. Additionally, Defendants are personally subject to the jurisdiciion of this Court because they have committed tortious acts causing injury within the State of Florida by advertising, promoting, marketing and offering the exhibition of exotic animals which infringe and violate BCR Corp?s trademark and service mark rights. 9. Venue is appropriate in this district parsuant to 28 U.S.C. 1391(b) 1391(c) and in this Division pursuant to Local Rule 1.02, Local Rules. . n'rl Case Document 1 Filed 01/31/11 Page 4 of 11 PageID 4 GENERAL ALLEGATION 10. Initially formed in 1995, BCR Corp is a not for pro?t organization registered with the IRS as a ?501(c)(3) entity. The mission of BCR Corp is to provide the best home they can for the animals in their care and to reduce the number of cats that suffer the fate of abuse, abandonment or extinction by teaching people about the plight of the cats, both in the wiid and in captivity, and how they can help through their behavior and support of better laws to protect the cats. 11. Since at least as early as November 2003, BCR Corp has prominently advertised, marketed and promoted itself under the mark: BIG CAT RESCUE. Due to pervasive, continuous and exclusive use of the BIG CAT RESCUE mark by BCR Corp in interstate commerce, the not for pro?t services offered by BCR Corp in ful?lling its mission have come to be associated exclusively with BCR Corp. The BIG CAT RESCUE mark has come to be recognized by the relevant public as identifying the services offered by BCR Corp. Indeed, the BIG CAT RESCUE mark constitutes an asset of signi?cant goodwill fer BCR Corp. 12. BCR is the owner of the federally registered mark: Reg. No. 2,918,642. While BCR Corp?s registered design mark disclaims exclusive rights to the words: ?Big Cat Rescue,? BCR Corp expressly claims rights to the words in the design mark depicted above. BCR Corp?s registered mark is on the Principal Register Case Document 1 Filed 01/31/11 Page 5 of 11 PageID 5 of the United States Patent and Trademark Of?ce, remains in full force and good standing, and has achieved incontestable status under 15 U.S.C. 1065. 13. As part of its mission, BCR Corp engages in a public awareness campaign seeking to call attention to the exploitation of exotic feline animals such as lions and tigers. As a direct consequence of its public awareness campaign, BCR Corp has incurred the ire of those who seek to pro?t and reap pecuniary gain from the exploitation of such exotic animals. Among the exploiters of exotic animals that BCR Corp has exposed to public scrutiny are Defendants GWE and Schreibvogel. 14. Defendants GWE and Schreibvogel have been engaged in a counter- campaign of disinformation, misinformation and disparagemeat seeking to de?ect criticism of their exploitative CO?dliCt by attempting to diminish the credibility and goodwili of BCR Corp. 15. In eariy 2010, Defendants GWE and Schreibvogel conceived of a plan to harm the credibility and goodwill of BCR Corp by causing public confusion through the adoption of a misleading and confusing name, BIG CAT RESCUE ENTERTAINMENT, to be utilized in the very exploitative exhibition of exotic animals that BCR Corp seeks to eradicate. By so doing, Defendants sought to disparage BCR Corp and diiute she goodwill in its BIG CAT RESCUE mark and federally registered mark by causing the public to mistakerily believe that BCR Corp was engaged in the despicable exploitation of exotic animals. Indeed, while employing one of his aliases, Joe Exotic, Defendant Schreibvogel boasted on acebook.com that he ?registered the Big Cat Rescue Entertainment? name so BCR Corp ?could ruin? its goodwill ?on google all by your self [sic], and it is working." 16. Initially, Defendant GWE sought to register the deceptive and confusingly Case Document 1 Filed 01/31/11 Page 6 of 11 PageID 6 similar BIG CAT RESCUE ENTERTAINMENT name itself in Oklahoma. Upon information and belief, the Defendants concluded that they could create a legal buffer for themselves by incorporating tinder the BIG CAT RESCUE ENTERTAINMENT name. To effect this strategy, Defendant GWE dropped its trade name ?ling, although it retained its trade name filing for ?The Carol] Baskin Entertainment Group;? presumainly a back-up ?ling to allow Defendant GWE to disparage BCR Corp?s CEO in a similar fashion, if required. 17. After enlisting the aid of Defendants Corley and Welch, Defendants embarked on a conscious plan to exploit exotic animals through commercial exhibitions across the United States {indes- the deceptive and confusingly similar name BIG CAT RESCUE ENTERTAINMENT. As components of this scheme, Defendants: a. Adopted a design depiction of the deceptive and confusingly similar BEG CAT RESCUE ENTERTAINMENT name in a style intended to copy BCR Corpis federally registered design mark: i??tT ED UCATLNG THE WORLD mounamnms YOU ARE THEIR VOICE FLORIDA OFFICE itulaisrsux'uno-RG 813-361-9611 b. Utilized a photo of a snow Ieopard?s eyes virtually identical to the photograph of a snow leopard that is used as the focal point of BCR Corp?s Case Document 1 Filed 01/31/11 Page 7 of 11 PageID 7 website: c. Purchased a Florida telephone number in the 813 area code and have ?Florida Of?ce? printed above it on marketing materials to further cause the public to mistakenly believe that Defendants? business was the same as or af?liated with BCR Corp. 18. Since at least October 27 2010, Defendants have conducted commercial exhibitions of exotic animals using animals from Defendant GWE and/or Defendant Corley at various locations under the deceptive and confusingly similar name: BIG CAT RESCUE ENTERTAINMENT. COUNT I Infringement of Federallv Registered Trademark 19. Paragraphs 1 through 18 are incorporated and reaileged by reference. 20. This is a suit for trademark infringement and arises under the trademark iaws of the United States, namely, Title 15 of the United States Code and more particularly, 15 U.S.C. 1116-18, inclusive. 21. Defendants? use of the BIG CAT RESCUE ENTERTAINMENT mark in advertising and promoting its exhibitions of exotic animals constitutes the use, withoat the Plaintiff/Registrant's approval, of a colorable imitation of Plaintiffs registered mark in connection with the saie, offering for sale, distribution or advertising of goods and services in a manner likeiy to cause confusion or mistake, or to deceive as to the source or origin of such goods or services. 22. Defendants? conduct has created and will create confusion among the members of the relevant consuming pubiic and will cause irrepara?31e and immediate injury Case Document 1 Filed 01/31/11 Page 8 of 11 PageID 8 to Plaintiff for which Plaintiff has no adequate remedy at law. 23. Plaintiff has been damaged by Defendants? infringement of its registered mark. 24. Defendants? condect was willful. intentional and with full knowledge of BCR Corp?s superior rights. COUNT II False Designation of Origin Under 8 43(a) of the Lagham Act 25. Paragraphs 1 through 24 are incorporated and realleged by reference. 26. This is an action for false designation of origin under 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 27. BCR Corp?s marks have become uniquely associated with and identi?es - BCR Corp and its services. 28. Defendants? use of BCR Corp?s stylized BIG CAT RESCUE mark along with the prominent snow leopard photograph and 813 area code telephone number and ?Florida Of?ce? printed above the phone number on marketing materials constitutes the use of false designation of origin in violation of 15 U.S.C. 1125(a). 29. Defendants? conduct is Iikeiy to cause confusion or to cause mistake or to deceive as to the af?liation. connection or association of Defendants and their exploitative exhibition of exotic animals with BCR Corp or as to the origin sponsorship, or approvai of Defendants? commercial activities by BCR Corp. 30. Defendants? infringing and violative conduct has caused irreparable and immediate injury to BCR Corp for which it has no adequate remedy at law. 31. BCR Corp has suffered damages as a result of Defendants? Violation of 15 Case Document 1 Filed 01/31/11 Page 9 of 11 PageID 9 U.S.C. 1125(a). 32. Defendants? conduct was willful, intentional and with knowle?ge of Plaintiffs superior rights. COUNT, EII Common Law Unfair Competition 33. Paragraphs 1 through 32 are incorporated and realleged by reference. 34. This count arises under the Florida commorl law of unfair competition. Jurisdictior: is pendant to Count I pursuant to 28 U.S.C. 1338(b). 35. By committing the acts herein alleged, Defendants are guilty of unfair competition, deceptive advertising and unfair trade practices, in Violation of the Florida common law of unfair competition. 36. Defendants? acts of unfair competition are likely to cause constion, deception and mistake, and have caused, and will continue to cause, irreparable and immediate injury to BCR Corp for which it has no adequate remedy at law. 37. BCR Corp has suffered damage as a result of Defendants? acts of unfair competition. 38. Defendants? acts of unfair competition are in willful and wanton disregard Corp?s rights. COUNT IV Common Law Trademark Infringmeet 39. Paragraphs 1 throagh 38 are incorporated and realleged by reference. 40. This count arises under Fiori?a common law trademark infringement. Jurisdiction is pendant to Count I pursuant to 28 U.S.C. 1338(b). Case Document 1 Filed 01/31/11 Page 10 of 11 PageID 10 BCR Corp?s BIG CAT RESCUE mark is subject to common law trademark protection. 42. Defendants: conduct is likely to cause confusion, deception and mistake, and has caused, and will continue to cause, irreparable and immediate injury to BCR Corp for which it has no adequate remedy at law. 43. BCR Corp has suffered damage as a result of Defendants? acts of unfair competition. 44. Defendants? acts of common law trademark infringement are in willful and wanton disregard of BCR Corp?s rights. PRAYER AS TO ALL COUNTS WHEREFORE, Plaintiff demands: a. That Defendants, their agents, servants. employees and, attorneys, and all those persons in active concert or participation with it, be temporarily and thereafter, permanently enjoined and restrained from: (1) Using the CAT design mark, the phrase BIG CAT or any confusingly similar design alone or in combination with other words as a service mark, trademark, trade name, component or otherwise, to mark is, advertise or otherwise identify Defendants" services; (2) Otherwise infringing the BIG CAT mark; (3) Unfairly competing with Plaintiff in any manner whatsoever; and (4) Causing likelihood of confusion, injury to bus'mess reputation, or dilution of the distinctiveness of Plaintiff? mark; 10 .. .. a. Case Document 1 Filed 01/31/11 Page 11 of 11 PageID 11 b. That Defendants be required to recall from their customers and deliver up and destroy all devices, literature and advertising and other material bearing the infringing designation: c. That Plaintiff be awarded its damages and Befendants? pro?ts, and that this award of damages and pro?ts be trebled pursuant to 15 U.S.C. 1117(a); (1. That Plaintiff be awarded a reasonable attorney's fee pursuant to 15 U.S.C. 1117; e. Tilat Plaintiff has and recover its costs in this action pursuant to 15 U.S.C. 1117 an? Fed. R. Civ. P. f. That Plaintiff be awarded punitive damages in excess of $1 million; and g. That Piaintiff has such other and further reiief as this court may deem just arid proper. DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury on all issues so triable. Frank R. Jakes Frank R. akes Florida Bar No. 372226 E-Mail: OHNSON, POPE, BOKOR, RUPPEL BURNS, LLP PO. Box 1100 Tampa, FL 33601-1100 TEL: (813) 225?2500 FAX: (813) 223-7118 Attorneys for Plaintiff 11