JAHN Ea’ ASSOCIATE S
`
`PRACTICING PRIMARILY IN INTELLECTUAL PROPERTY LAW
`
`KIRSTIN M- JAHN‘ “ ‘'
`
`Um-=4 i-=
`A N"“’ Y°"l'
`~ Novoolo
`‘ Colorado
`
`NEVADA OFFICE:.
`555 5. Center St.
`Reno, NV 89509
`Tel: 775-329-2282
`
`COLORADO OFFICE:
`1942 Broadway
`Suite 314
`Boulder, co 30302
`Tel: 303-545-5123
`Fax: 303-545-5196
`
`April 27, 2007
`
`Jyll Taylor, Administrative TM Judge
`US Patent & Trademark Office
`
`Trademark Trial & Appeal Board
`P.O. Box 1461
`
`Alexandria, VA 22313-1461
`
`RE: Opposition No. 91164295
`Cash Processing Services v. Ambient Entertainment, Inc.
`
`Dear Ms. Taylor:
`
`Attached you will find a copy of the Complaint filed on March 12, 2007 in the matter of
`Cash Processing Services, LLC v. Ambient Entertainment, Inc. in the US District Court,
`District of Nevada.
`
`We will keep you advised of the progress in this civil litigation.
`
`Sincerely,
`
`JAHN & ASSOCIATES, LLC
`
`
`
`Enclosure
`
`lllllllIllll|l|||llllll||||lllllllllllllllllllllll
`
`04-30-2007
`U.S.Pa1ent &TMO1cfTM Mail RCEX DT. #01
`
`

`
`E14/ZSXZBB7
`
`15: B7
`
`17758291228
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`MARK H GUNDERSDN LTD
`
`PAGE
`
`62/ 45
`
`Case 3:07-cv-0011» 3 Document 1-1
`
`Filed 03/12/2007
`
`5Page 1 of 39
`
`,..:
`
`MARK H. GUNDERSON LTD.
`
`,_.
`
`5.4
`
`.6‘OOO\lCfi-U145-'|.nJl\J
`ts)»-ou-n_Ln—ns—-so---u-—©\OOO\lO\U1-h!.a~)t\J
`
`21
`
`Ix)I\)
`
`Mark H. Gunderson, Esq.
`Nevada State Bar No. 2134
`
`U. Mehi Aholelei-Aonga, Esq.
`Nevada State Bar No. 9743
`
`S345 Kietzke Lane, Suite 200
`Reno, Nevada 89511
`Telephone:
`(775) 829-1222
`Facsimile:
`(775) 829-1226
`Attorneys for Plaintiff
`CASH PROCESSING SERVICES, LLC
`
`IN THE UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
`
`CASH PROCESSING SERVICES. LLC.
`a Nevada limited liability company
`
`Case No. CV— N -
`
`Plaintiff,
`
`v.
`
`AMBIENT ENTERTAINMENT, INC.,
`a Nevada corporation
`
`COMPLAINT FOR
`TRADEMARK INFRINGEMENT,
`UNFAIR COMPETITION AND
`CANCELLATION OF TRADEMARK
`g§GI§TRATION
`
`Defendant,
`
`Plaintiff, CASH PROCESSING SERVICES, LLC (“CPS”) as and for its Complaint against
`
`Defendant AMBIENT ENTERTAINMENT, INC. (“Ambient") alleges the following:
`
`JURISDICTION AND VENUE
`
`1.
`
`This
`
`is
`
`a trademark infiingement action arising under 15 U.S.C. §§ 1125.
`
`Jurisdiction is proper under 15 U.S.C. § 1121,28 U.S.C. §§ 1331,1367 and 1338.
`
`A
`
`2.
`
`Venue is proper under 28 U.S.C. § 1391 in the District of Nevada because all of the
`
`parties are located inthis District.
`
`III
`
`III
`
`28
`
`mm: KOUMDEKBON. LT13.
`unoauwau.
`uuuuuureumn
`TI and
`‘rna LANE
`lacs
`RINQJIEVADA mm
`I77!) 011.132!
`
`~
`
`

`
`84/26/2887
`
`15:87
`
`17758291226
`
`MARK H GUNDERSDN LTD
`
`PAGE B3/45
`
`Case 3:07—cv—0011o Document 14
`
`Filed 03/12/2007
`
`Page 2 of 39
`
`THE PARTIES
`
`3.
`
`CPS is a Nevada limited liability company with a principal place of business in
`
`Sparks, Nevada.
`
`4.
`Nevada.
`
`Upon information and belief, Defendant has a principal place of business in Reno,
`
`A.
`
`History of the MUSTANG RANCH trademark
`
`FACTS
`
`The MUSTANG RANCH trademark (“Mark”) along with the design ofthe Mark
`5.
`(Exhibit A) have been used in Nevada for legal brothel services since at least 1971.
`
`6.
`
`Since at least 1971 to the present the MUSTANG RANCH trademark has become
`
`famous throughout
`Conforte.
`
`the United States for use with prostitution services by Joseph and Sally
`
`7.
`
`Joseph and Sally Conforte owned and operated the brothel and sold various goods
`
`with the Mark until approximately 1990, when they both filed bankruptcy proceedings and all of the
`
`assets were disposed of by the Intcmal Revenue Service ("IRS”) through a public auction on or
`
`about November of I 990.
`
`8.
`
`The highest bid at the IRS auction was_l\/lustang Properties. Inc. who purchased the
`
`property and assets of the Mustang Ranch. Mustang Properties, Inc. sold the business, property and
`
`assets to AGE Corporation, Inc. and AGE Enterprises, Inc. who operated the Mustang Ranch
`
`brothel and sold various goods using the Mark at least between 1990 and 1999.
`
`B.
`
`9.
`
`Forfeiture of Business, Assets and Mark
`
`On or about November of 1995, a superceding indictment was filed against
`
`Conforte, AGE Enterprises, lnc., AGE Corporation, Inc, and others for bankruptcy fraud, wire
`
`fraud, money laundering, and RICO violations among others.
`
`10.
`
`A Preliminary Order of Forfeiture issued on July 12, 1999, granting the United
`
`States twenty million dollars, all the stock, interest in and assets, including accounts receivable and
`
`28 several parcels of real property owned by AGE Corporation, Inc. and AGE Enterprises, Inc.
`MRI H. DUNDIRSON, LTD.
`4 nu:-um-nu.
`I-Mvvanemw
`OM76 HO
`‘III KIITZKQ 1-45$
`RENO, PIVADA II!“
`(775! I294}?!
`
`

`
`84/26/2687 15:67
`
`17758291226"
`
`.
`
`MARK H GUNDERSDN LTD
`
`PAGE
`
`84/45
`
`
`
`._.s
`
`\O®-]O\Lh-lxblhl
`
`5'
`
`Case 3:07-cv-O0118 Document 1-1
`
`Filed 03/12/2007
`
`-ifiage 3 of 39
`
`11.
`
`Any person with an interest in the property listed in the Preliminary Order of
`
`Forfeiture had thirty days from the final publication of the notice to petition the Court fora hearing
`
`to adjudicate the validity of the US. Government’s interest in the property.
`
`I
`
`12.
`
`After disposition on all notices of interest in the AGE entities’ assets, the U.S.
`
`Government applied for a Final Order of Forfeiture to earn clear title to the property and warrant
`
`good title to any subsequent purchaser or transferee.
`
`13.
`
`On March 9, 2001, the United States District Court, District of Nevada, issued a
`
`Final Order of Forfeiture directing that, among other things, all stock,
`
`interests in and assets,
`
`including accounts receivable and certain real property of AGE. Corporation,
`
`Inc. and AGE
`
`Enterprises, Inc. be forfeited to the United States Government.
`
`14.
`
`The Final Order of Forfeiture was stayed pending an Appeal to the Ninth Circuit
`
`Court of Appeals on March 8, 2001. The Ninth Circuit Court of Appeals affirmed the convictions
`
`on June 29, 2001. Although the case was appealed to the U.S. Supreme Court, certiorari was
`
`denied on April 29, 2002.
`
`C.
`15.
`
`U.S. Governmentfs Ownership Of The Mark
`The US. Government worked very quickly to begin disposing of the assets and on
`
`December 14, 2002, held an auction to dispose of the personal property located at the Mustang
`
`Ranch. Upon information and belief, among some of the items sold at the auction which contained
`
`use of the Mark were the following: matches; menus; bar lights; clothing, including tank tops,
`
`sweatshirts, jackets, sweatpants, sweat tops, t-shirts, and polo shirts; furniture; bottle openers;
`
`collectibles; wine; glassware; signs: souvenirs; bumper stickers; postcards; cameras; business cards;
`
`letterhead and envelopes.
`
`16.
`
`On or about September 24, 2003, the U.S Department of Interior (“DOI”) received a
`
`letter
`
`from Attorney Mark Litwak asserting claims to the Mark on behalf of Ambient
`
`Entertainment, Inc.
`
`//I
`
`///
`
`
`
`IARK H. GUNDEREON. LTD.
`lllfllllfllm.
`unvcauuumu
`some an!
`ill‘ KIETZKS LAII
`RENO. NEVADA 89511
`[NE] “$.19!!-
`
`

`
`84/25/2687
`
`15:07
`
`17758291226
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`MARK H GUNDERSDN LTD
`
`PAGE
`
`85/45
`
`,
`
`.
`
`Case 3:07—cv-00118 'Document1-1
`
`Filed 03/12/2007
`
`Page4of39
`
`l
`
`.5:.I.ul\J
`\D%--)O'\KJi
`
`17.
`
`The D01 readily responded to this claim on October 3, 2003, by advising Mr. Litwak
`
`that the U.S. Government owned the rights to the Mark, that the rights were not abandoned and that
`
`the U.S. Government would continue to defend its rights in the Merit.
`
`18.
`
`19.
`
`DOI did not receive any response back from Mr. Litwak or his client.
`
`On or about October 7, 2003, the Bureau of Land Management (“BLM”) and D01
`
`placed the Mustang Ranch buildings, business and trademark up for auction on eBay.
`
`20.
`
`Bidding closed on the auction on October 13, 2003 and the building, business and
`
`trademark were awarded to the highest bidder, who was initially identified as Lance Gilman. The
`
`sale was then made directly with Cash Administrative Services, LLC (“CAS”) and a Bill of Sale
`
`10 and Assignment were entered into on December 22, 2003 between CAS and the U.S. Government.
`
`D.
`
`21.
`
`Current Ownership of the Mark
`
`On December 31, 2004, CAS assigned the Mustang Ranch business associated with
`
`the MUSTANG RANCH trademark, including the goodwill and the Mustang Ranch I buildings, to
`
`a company called TG Investments.
`
`22.
`
`Shortly thereafler, on or about March 10, 2004, TG Investments assigned the
`
`Mustang Ranch business associated with the MUSTANG RANCH trademark,
`
`including the
`
`goodwill and the Mustang Ranch 1 buildings to Cash Processing Services, LLC (“CPS").
`
`23.
`
`CPS and its predecessors in interest have engaged in a long and difficult battle to
`
`move the original Mustang Ranch buildings to their new location as required by the purchase
`.
`agreement and have expended a great deal of resources, experience, hard work, marketing and
`
`commitment of capital to reopen the Mustang Ranch with the same look and feel as the original
`
`Mustang Ranch as soon as practicable. ,
`
`1 1
`
`12
`13
`
`14
`
`15
`
`16
`
`17
`
`l8
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24.
`
`CPS and its predecessors in interest defended against several frivolous claims by
`
`24
`third parties which prevented them from moving the original Mustang Ranch buildings and fiom
`5
`6 constructing the buildings on the new site. The court vacated all the injunctions and, as soon
`27 thereafter as practicable, CPS resumed moving the original buildings from their original location.
`ll!
`
`2 2
`
`28
`
`MARK N. OUNWISDN. LTD-
`Avwrlunwc.
`ulwewwumnu
`sun! no
`KING. IUIVADA Iflfl
`8316 IGITDG MK!
`('70) “I-‘I222
`
`4
`
`

`
`84/26/2807
`
`15:87
`
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`
`MARK H GUNDERSON LTD
`
`PAGE B6/45
`
`Case 3:07-cv—oo11s
`
`‘ Document 1-1
`
`Filed 03/12/2007
`
`Page 5 of 39
`
`I-I
`
`""‘3©%‘-]3.LII-hL#}l\J
`
`p—4——t
`
`..- B.)
`
`u—- U)
`
`I
`
`25.
`
`26.
`
`At present, CPS has successfully moved the original building to the new site.
`
`In December of 2003, David and Ingrid Burgess and Sherwin M. Feilen
`
`(collectively, “Burgess") filed an action in the United States District Court for the District of
`
`Nevada against L. Lance Gilman, CPS and other related entities (the “Burgess action”), disputing
`
`ownership ofthe Mark.
`
`27.
`
`After almost three (3) years, the Burgess action was finally tried in a bench trial
`
`before the Honorable Edward C. Reed, Jr. commencing on December 12, 2006, lasting a total of
`
`three (3) days, ending on December 14, 2006.
`
`28.
`
`On December 15, 2006, the Court announced its verdict, finding in favor of CPS and
`
`against Burgess, concluding that CPS had the legitimate right to use the Mark and Burgess did not
`
`have such a right.
`
`In so finding, the Court dissolved a preliminary injunction that had previously
`
`been granted in favor of Burgess and ordered that Burgess and their agents, representatives and the
`
`like be enjoined and restrained from further use ofthe Mark.
`
`29.
`
`On February 22, 2007, the Court issued a written Order confirming its previous
`
`Verdict, a copy of which is attached as Exhibit B.
`
`E.
`
`30.
`
`Unauthorized Use oi‘ the Mark by Ambient
`
`Ambient has filed at least six trademark applications with the United States Patent &
`
`Trademark Office (USPTO) for the MUSTANG RANCH mark. Attached as included as part of
`
`this Complaint as Exhibit B is a summary of the trademarks filed at the USPTO by Ambient.
`3].
`On December 16, 2003, Ambient received 21 federal trademark registration for use of
`
`the Mark on condoms and clothing under Registration No. 2793458. This registration shows that
`
`Ambient‘s first use of the Mark on condoms and clothing was on June 27, 2002.
`
`32.
`
`On August 13, 2001, Ambient filed an lntentvto-Use trademark application with the
`
`USPTO for use of the Mark on books and screenplays.
`
`33.
`
`On September 22, 2003 Ambient filed an Intent-to-Use trademark application with
`
`the USPTO for use of the trademark MUSTANG BRIDGE RANCH on jewelry, leather products,
`
`28
`
`HAIR K. BUNOIIBON. LTD.
`nfldlfliumlu.
`IAWVFOIMHI
`SUITE an
`M6 KITa(! LANE
`‘KIND. IIVADA "MI
`(775) 920-1332
`
`furniture and clothing.
`
`

`
`84/26/2887
`
`15: e7
`
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`
`MARK H GUNDERSUN LTD
`
`PAGE
`
`37/45
`
`,
`
`.
`
`Case 3:07—cv—001 ‘lb Document 1-1
`
`Filed 03/12/2007
`
`Page 6 of 39
`
`34.
`
`On September 24, 2003, Ambient filed an Intent-to-Use trademark application with
`
`the USPTO to use the Mark on jewelry, leather products and furniture.
`
`35.
`
`On February 20, 2004, Ambient filed an Intent-to-Use trademark application with
`
`the USPTO to use the Mark on non-alcoholic beverages, automobile accessories, games and
`
`gaming machines, carpet cleaners and alcoholic beverages.
`
`36.
`
`On May 12, 2004, Ambient filed an Intent-to-Use trademark application with the
`
`l
`
`2 3 4 5
`
`6
`
`7 -USPT-0 to use the Mark on paper goods.
`
`8
`9
`
`37.
`
`Since at least 1971, a great amount of time, effort and money was expended in
`
`connection with the promotion and advertisement of the goods and services associated with the
`
`10 Mark such that the Mark and its goodwill have become an asset of substantial value.
`
`38.
`
`Subsequent to the first use of the Mark and prior to the acts of Ambient complained
`
`of herein, the Mark has continuously and extensively been used to advertise and/or sell its goods
`
`and services to residents in various states and foreign countries, including clothing and many of the
`
`other goods which Ambient has filed with the USPTO to use in conjunction with the Mark.
`
`11
`12
`
`13
`
`14
`
`15
`
`39.
`
`Notwithstanding CPS’ and its Ptedecessors in interest’s famous and prior common
`
`16
`
`law and statutory rights in the Mark, Ambient with at
`least constructive notice of the prior
`17 ownership rights of United States Government in the Mark, intentionally and willfully adopted and
`18
`used the Marl; and/or the related design as its trademark for use ‘with all of the goods and services
`19 listed in Exhibit B.
`20
`
`40.
`
`Prior to the infringing use of the Mark by Ambient the Mark became recognized
`
`21
`
`22
`
`23
`
`.24
`2
`
`5
`
`26
`
`27
`
`28
`
`IIIRK M. GUIIIDERBDN, LTD.
`Anonupun
`laman-Iv-Infill
`SUITE No
`not KIETZKE Lu!
`NERO. NIVADA sun
`(fill 520-1 22!
`
`world-wide and very famous. The Mark thus represents good will belonging to CPS.
`
`41.
`
`Subsequent to Ambient’s'l<nowledge of the US. Government's rights in and to the
`
`Mark and despite Ambicnt’s actual knowledge of its infiingernent, it has refused to cease and desist
`
`from infiinging upon CPS’ Mark.
`42.
`Ambient‘s unauthorized,
`
`intentional and willful use of CPS‘ Mark creates a
`
`likelihood of confusion, mistake and deception as to the affiliation, connection, association, origin,
`
`6
`
`

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`
`MARK H GUNDERSON LTD
`
`PAGE
`
`as/45
`
`,
`
`-
`
`Case 3:O7~cv-00118 Document 1-1
`
`Filed 03/12/2007
`
`Page 7 of 39
`
`I
`
`sponsorship or approval of the goods and services of CPS with those of Ambient, all to CPS‘
`
`2 irreparable loss and damage.
`
`43.
`
`Upon information and belief, actual confusion of consumers has occurred or will
`
`likely occur and will continue to occur as a result of the acts of Ambient complained of heroin,
`
`unless Ambient is enjoined from continuing said acts. Furthermore, CPS will suffer irreparable
`
`injury to its reputation and goodwill unless Ambient is so enjoined.
`
`Federal Claim for Dilution under Section 43(c}jl}
`
`CLAIM I
`
`_44.
`
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`fully set forth herein.
`
`45.
`
`By the acts complained of herein, Ambient has willfully caused dilution of CPS‘
`
`famous Mark and continues to do so.
`
`46.
`
`Ambient has lessened the capacity of CPS’ famous mark to identify and distinguish
`
`the services of CPS from those of Ambient. Ambient has blurred the unique association which has
`
`heretofore existed between CPS Mark and the goods and services offered by that Mark.
`
`47.
`
`CPS’ Mark is a distinctive and famous mark". The Mark has long been used in
`
`connection with the goods and services on which it appears, has long been the subject of advertising
`
`3
`
`V900‘-'lO\'U1J>
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`is widely recognized by consumers throughout
`
`the United States and is in
`
`19
`20 substantially exclusive use. The acts of Ambient occurred alter the Mark became famous.
`48.
`Ambient committed these acts willfully and with the intent to trade on the reputation
`
`and promotion,
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`llllfl I-I. DUNDIRBDN. LTD.
`anwnnm-u
`Idivwlnhntwtl
`MINI 200
`Mil KITZKI LNJI
`"IO. IEVMIR IIII1
`I7"! 5!!-1223
`
`of CPS and trade on the goodwill associated with the Mark and cause dilution of the famous Mark.
`
`49.
`
`CPS has been damaged as a result of Am bient‘s conduct in an amount according to
`
`proof.
`
`CLAIM II
`
`Common Law- Trademark Infringement
`
`50.
`
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`fully set forth herein.
`
`7
`
`

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`84/25/2807
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`15:67
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`
`MARK H GUNDERSDN LTD
`
`PAGE B9./45
`
`Case 3:07-cv-00118 Document 1-1
`
`Filed 03/12/2007
`
`Page 8 of 39
`
`51.
`
`By the acts complained of herein, Ambient has used a reproduction, counterfeit,
`
`copy or colorable imitation of CPS‘ Mark in connection with the sale, offering for sale, distribution
`
`and advertising of its goods and services, and such use is likely to cause confusion, mistake and
`
`deception among the consuming public.
`
`52.
`
`CPS has been damaged by Ambient‘s willful infringement in an amount according to
`
`proof.
`
`53.
`
`CPS is entitled to an award of its’ reasonable attorney’s fees and costs of suit as a
`
`result of Ambient’s willful infringement.
`
`1,
`
`CLAIM III I
`Lunham Act Violation - Ungalr Competition
`15 U.S.C. §1l2S(a)
`
`54.
`
`CPS repeats, reallcgcs and reiterates each and every paragraph set forth above as if
`
`fully set forth herein.
`
`I
`
`55.
`
`Arnbient’s' use of its infringing mark constitutes a false designation of origin,
`
`description or representation, which is likely to cause confusion, mistake or to deceive as to origin,
`
`affiliation, connection, sponsorship or association of Ambient with CPS, or as to the origin,
`
`sponsorship or approval of Ambient’s use of the Mark by CPS, in violation of 15 U.S.C. § 1 l25(a).
`
`56.
`
`Ambient acted knowingly, willfully, and maliciously with the intent to injure CPS by
`
`engaging in the conduct herein described. Ambient acted to defraud and oppress CPS through its
`
`intentional and willful use of CPS’ Mark.
`
`57.
`
`Said actions of Ambient demonstrate conduct evidencing a willful and conscious
`
`disregard of the rights of CPS, thereby justifying an award of punitive damages in the amount to be
`
`proven at trial.
`
`58.
`
`Common Law Unfgir §._‘om_t_)_etition
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`CLAIM IV
`
`fully set forth herein.
`
`28
`
`am H. GUNDGRSOII. LYD.
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`|-ANaIIl$AI|Ofl
`curve are
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`
`

`
`a4/25/2on7
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`15:a7
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`17758291226
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`MARK H GUNDERSUN LTD
`
`PAGE
`
`121/45"
`
`1
`
`~
`
`Case 3:07-cv-00118 I Document 1-1
`
`Filed 03/12/2007
`
`l5age 9 of 39
`
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`
`59.
`Ambient‘s use of its infringing mark constitutes a false designation of origin,
`description or representation. which is likely to cause confusion, mistake or to deceive as to origin,
`
`affiliation, connection, sponsorship or association of Ambient’s goods and services with those of
`
`CPS, or as to the origin, sponsorship or approval of a third party's use of the Mark by CPS which
`
`constitutes unfair competition in violation of Nevada common law.
`
`60.
`
`Ambient acted knowingly, willfully, and maliciously with the intent to injure CPS by
`
`engaging in the conduct herein described. Ambient acted to defraud and oppress CPS through its
`
`intentional and willful use ofCPS' Mark.
`
`61.
`
`Said actions of Ambient demonstrate conduct evidencing a willful and conscious
`
`disregard of the rights of CPS, thereby justifying an award of punitive damages in the amount to be
`
`proven at trial.
`
`Cancellation under Lanham Act Section Zfel
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`62.
`
`CLAIM V
`
`fully set forth herein.
`
`63.
`
`At the very least, Ambient fraudulently represented to the United States Patent &
`
`Trademark Office that it was the owner of the Mark and entitled to use the Mark in commerce.
`
`64.
`
`65.
`
`-CPS is damaged by registration of the Mark because it rightfully belongs to CPS.
`
`CPS is entitled to cancellation of the applications/registrations made by Ambient and
`
`IN}C injunctive relief as against Ambient.
`
`9;.’
`
`B.)Q
`
`IQ L»)
`
`M A
`
`NI Ll!
`
`(9ON-
`
`CLAIM VI
`Common Law Dilution
`
`66.
`
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`fully set forth herein.
`
`6'7.
`
`CPS’ Mark is a distinctive and famous mark.‘ The Mark has long been used in
`
`connection with the goods and services on which it appears, has long been the subject of advertising
`
`[UNJ
`
`and promotion,
`
`is widely recognized by consumers throughout
`
`the United States and is in
`
`23 substantially exclusive use. The acts of Ambient occurred afier the Mark became famous.
`mm H. consensus. in.
`A KGIIIIQW
`IEHKFWITMI
`SW71 I90
`Iusm-raw um:
`IIIQ
`IIIST
`(mi mam
`
`9
`
`

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`84/26/2887
`
`15: B7
`
`17758291226
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`MARK H GUNDERSIJN LTD
`
`PAGE
`
`11/45
`
`Case 3:07-cv-00118 Dooumentl-1
`
`Filed 03/12/2007
`
`l5age1Oof39
`
`68.
`
`Ambient committed these acts willfully and with the intent to trade on the reputation
`
`of CPS and trade on and goodwill associated with the Mark and to cause dilution of the famous
`
`Mark.
`
`69.
`
`CPS has been damaged as a result of Ambient’s willful conduct in an amount
`
`according to proof.
`70.
`Ambient acted to defraud and oppress CPS through its intentional and willfiil use of
`
`CPS’ Mark. Said actions evidencing a willful and conscious disregard of the rights of CPS, thereby
`
`justifying an award of punitive damages under Nev. Rev. Stat. § NRS 600.430 in the amount to be
`
`proven at trial.
`
`Decegtivg Trggg Practice Vjglgtion
`CPS repeats, realleges and reiterates each and every paragraph set forth above as if
`
`71.
`
`CLAIM VII
`
`fully set forth herein.
`
`72.
`
`Ambient’s use of its infringing mark constitutes a false designation of origin,
`
`description or representation, which is likely to cause confusion, mistake or to deceive as to origin,
`
`affiliation, connection, sponsorship or association of Ambient with CPS, or as to the origin,
`
`sponsorship or approval of Ambient's use of the Mark by CPS, in violation of Nev. Rev. Statute
`
`§598.
`
`73.
`
`Ambient acted knowingly, willfiilly, and maliciously with the intent to injure CPS by
`
`engaging in the conduct herein described.» Ambient acted to defraud and oppress CPS through its
`
`intentional and willful use of CPS’ Mark, and by inducing others to infringe on CPS’ Mark. Said
`
`actions demonstrate conduct evidencing a willful and conscious disregard of the rights of CPS,
`
`thereby justifying an award of punitive damages in the amount to be proven at trial.
`
`74.
`
`CPS is entitled to injunctive relief and restitution according to proof.
`
`PRAYER FOR RELIEF
`
`CPS demands the following relief:
`
`1.
`
`CPS be awarded its damages and Ambienfs profits attributable to Ambient’s
`
`I—l
`
`8~oaox.Icht.n.bh.1t\J
`
`-1
`
`5..
`
`rd BJ
`
`G E n
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`—. Eh
`
`ON.
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`-- \l
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`._a %
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`l\J C
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`NJ I--
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`MN!
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`DJ Lu}
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`
`B.)U‘:
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`
`[0 ‘J
`
`28
`
`IIRKII. GUNDEFWON, LTD.
`1 HOFIMIOIK
`Invnulrcunnl
`WWE 2“
`545 I0!’-flit! LAN!
`nun. REVAM usln
`inn umz:
`
`10
`
`

`
`64/25/2687
`
`15:67
`
`17758291226
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`MARK H GUNDERSUN LTD
`
`PAGE
`
`12/45
`
`.
`
`.
`
`Case 3:0‘/'—cv—00‘l18
`
`Document1—1
`
`Filed 03/12/2007
`
`Piage-11of39
`
`infringement of the Mark under common law, for Unfair Competition under the Federal Lanharn
`
`Act and common law and for Dilution under common law and the Federal Lanham Act;
`
`2.
`
`CPS be awarded three times the profits attributable to Ambient’s infringement and
`
`Unfair Competition under 15 U.S.C. § ill‘? and Nev. Rev. Statute §§S98 and 600.435~450;
`
`3.
`
`CPS be awarded its reasonable attorney's fees and costs of suit, under 15 U.S.C. §
`
`1117 and Nov. Rev. Statute §§59s and 600.435-450;
`
`4.
`
`An accounting be undertaken to determine the amount of a constructive trust to be
`
`1
`
`2 3 4 5 6
`
`'7
`
`8 established for the benefit of CPS, reflecting the value of Ambient's unjust enrichment gained
`9
`
`through its acts complained of herein;
`
`10»
`
`5.
`
`An injunction be issued pursuant to 15 U.S.C. § § 1114 and 1116 and Nev. Rev.
`
`H Statute §§598 and 600.435-450 against Ambient and its servants, agents, employees, successors and
`12 assigns, and all persons acting in concert or privity with them, enjoining each of them, singly and
`13 collectively. from
`M
`(a) any further infringing or contributory infringing use of the Mark, or any mark
`15 confusingly similar thereto,
`16
`(b) further holding itself or inducing others to hold themselves out to the public as
`I
`n
`I
`I
`D
`7 being affiliated with or sponsored by CPS in any manner, or committing any acts likely to imply
`18
`
`any such relationship or affiliation, and
`
`(c) unfairly competing with CPS.
`
`6.
`
`An order requiring Ambient to file with this Court and serve on CPS within thirty
`
`days after the service of an injunction, a report in writing under oath, setting forth in detail the
`
`manner and form in which Ambient has complied with the injunction.
`
`19
`
`20
`
`21
`
`22
`
`23
`
`7.
`
`An order requiring Ambient
`
`.
`to deliver to CPS for destruction all material
`
`in
`
`24
`t
`25 Ambient‘s possession or control bearing Ambie.nt's infringing marks or any other designation
`26 confusingly similar thereto under 15 U.S.C. § 1118.
`//I
`
`27
`
`28
`
`91”‘ H. OUIUIRION. LTD.
`.2..’.'79...’:-'.1".’i.’2.
`IIIITEEMI
`ISIIKIITEKEIJHE
`nun. IIWADA um
`I7?!) 1:10-1:22
`
`i I
`
`

`
`4/26/2887 15:87
`
`17758291226
`
`MARK H GUNDERSQN LTD
`
`PAGE
`
`13/45
`
`,
`
`.
`
`Case 3:07—cv-00118
`
`'Document 1-1
`
`Filed 03f12i2007
`
`Page 12 of 39
`
`1
`
`8.
`
`An order preventing Ambient's unfair competition and awarding damages necessary
`
`2 to restore to CPS any money or property which Ambient has acquired by means of its unfair
`
`3 competition;
`
`9.
`
`10.
`
`11.
`
`12.
`
`4
`
`5
`
`5
`
`7
`
`8 and
`
`Compensatory damages in an amount to be proven at trial;
`
`Punitive damages in an amount to be proven at trial;
`
`An order awarding CPS prejudgmcnt interest on any monetary award;
`
`An order that Ambient‘s applications and registrations for the Mark be cancelled.
`
`13.
`
`Such other and further relief as this Court dccms just and proper.
`
`DATED this
`
`| 2»
`
`day ofMarch, 2007.
`
`MARK H. GUNDERSON, LTD.
`
`
`
`-
`
`.-
`
`‘El .
`-
`-A
`arNo. 2134
`U. MehiAho1e1ei-Aonga, Esq.
`Nevada State Bar No. 9743
`
`By:
`
`Attorneys for Plaintiff
`Cash Processing Services, LLC
`
`9
`
`10
`
`1 1
`12
`
`13
`
`14
`15
`
`1 6
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`MONK H. BUlDIIm:'O.N. LTD.
`534‘ KETIKB LAPI
`I\I:No.uIvAna um
`(775) I134!!!
`
`12
`
`

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`‘1
`Case 3:07-cv—00118' Document 1-1
`
`Filed 03/12/2007
`
`3
`Page 13 of 39
`
`:':xHmirA
`
`

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`PAGE
`
`15/45
`
`Case-3:07-cv-00118 Document1-1
`Filed 03/12/2007
`Page14of39
`
`
`

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`15/45
`
`-
`
`Case 3:07-cv-00113 Docurnent1-1
`
`Filed 03/12/2007
`
`Page 15 of 39
`
`EXHIBIT B
`
`EXHIBIT 1!
`
`

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`84/25/2867
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`15:87
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`
`17/'45
`PAGE
`MARK H GUNDERSDN LTD
`
`
`»-
`
`Case 3:07-cv-00118 Document‘!-1
`
`Filed 03/12/2007
`
`Page16 of 39
`
`
`
`UNITED smarts DISTRICT COURT
`DISTRICT 05' NEVADA
`auto, NEVADA
`
`
`
`2 3 4 5
`
`6
`
`7
`
`)
`DAVID and INGRID BURGESS,
`8 husband and wife: and SHERWIN )
`9 M. PELLEN. an individual:
`)3
`10
`Piaintitfs,
`)
`)
`)
`)
`I
`L. LANCE GILMAN: CASH
`)
`12 ADMINISTRATION SERVICES, LLC:
`CASH MANAGEMENT SERVICES, LLC;)
`13 CASH PROCESSING SERVICES: and )
`4 CASH ASSET MANAGEMENT, LLC;
`}
`J
`Defendants.
`
`
`
`
`1]
`
`I
`
`15
`
`I6
`
`17
`
`I8
`
`19
`
`V3.
`
`3:03-ev-070‘7—ECR—RAM
`
`QBQE3
`
`))
`
`This case involves the disputed ownership of the Mustang
`
`Ranch’s service marks after the government seized that brothel in
`
`conjunction with criminal proceedings against the former owner.
`
`we
`
`now enter a written version of the order we issued from the bench
`
`on December 15, 2006 (# 271).
`
`changes from the decision on the
`
`record have been limited to very minor formatting and grammatical
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`edits necessary to render a written decision. These changes in no
`
`
` way affect the substance of any part of the decision.
`
`
`
`Q
`
`Iv
`
`1‘
`
`This is the time set for the Court to announce its decision in
`this case.
`
`20
`
`21
`
`23
`
`24
`
`25
`
`26
`
`27
`
`
`
`
`
`

`
` iVV'V7V
`64/25/2067
`15:67
`17758291226
`MARK H GUNDERSON LTD
`
`PAGE
`
`18/45
`
`Case 3:07-cv-00118
`
`‘Document 1-1
`
`Filed 03/12/2007
`
`———n
`Page 17 of 39
`
`c so 3:03-cv-00707-ECR-RAM Document 292
`
`Filed 02/22/2007 Fae zor 22
`
`1
`
`Plaintiffs David and Ingrid Burgess and Sherwin M. Fallen
`
`2 3 4 5
`
`filed their Complaint
`
`(#2) on December 23, 2003, and a Second
`
`Amended Complaint
`
`(#42) on April 26, 2004, seeking a declaratory
`
`judgment that Mr. Fallen was the owner of the Mustang Ranch service
`
`mark, and that the Burgesses bad the oxclusive right to use that
`6 mark in oonjunction with prostitution.
`
`7
`
`8
`
`Defendants L. Lance Gilman: Cash Administration Services, LLC:
`
`and Cash Management Services, LLC, answered (#26)
`
`the Second
`
`9 Amended Complaint
`
`(#42) on February 20, 2004. Defendant cash
`
`10 Processing Services (“CPS”) answerod and filed a counterclaim for
`
`H infringement and unfair competition under the Lanham Act on May 20,
`I2 2004.
`
`13
`
`Plaintiffs filed a Third Amended complaint
`
`(9114). on January
`
`14 28, 2005, and cash Processing services again answered and counter~
`
`The parties have stipulated
`I5 claimed (#121) on February 18, 2005.
`16
`that Mr. Fallen, subject to certain conditions stated in the
`
`17 stipulation,
`
`is dismissed from the action.
`
`18
`I9
`
`Cash Processing Services filed a motion for a preliminary
`injunction on July 14, 2004.
`(#54.]
`Judge Hagen denied
`
`20 Defendants’ motion on September 27, 2004.
`
`IHBE.) Plaintiff then
`
`21
`22
`
`filed motions for a temgorary restraining order and a preliminary
`injunction on December 21, 2004 (##94, 95). and CPS renewed its
`
`23 xnotion for a preliminary injunction shortly thereafter on December
`
`On December 30, 2004. Judge Hagen granted
`(# 98.)
`24 27, 2004.
`25 Plaintiffs’ motion for a preliminary injunction and denied
`
`26 Defendants’
`
`renewed motion.
`
`(#101.) Defendants filed a motion for
`
`
`
`

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`
`19/45
`
`Case 3:07-cv-00118 Document 1-1
`Filed 03/12/2007
`se 3:O3—ov-0070'}-ECR-RAM Document 292
`Filed 02/22/2007
`
`Page 18 of 39
`Page 3 of22
`
`reconsideration on January 18, 2005 {#109}, which Judge Hagen
`2 denied on January 25, 2005 (#113).
`
`Defendants filed a Notice of Appeal of these decisions on,»
`3
`4 February 2, 2005 (#115), and the Ninth Circuit affirmed in a
`
`§fl£Q§§£_£h.JiLlEiDr 134 Fed.
`memorandum decision on June 17, 2005.
`Appx. 200 (9th Cir. 2005).
`It is likely that this appeal explains
`why this case has been pending so long.
`It sounds like this case
`
`has been here over three.years, and it has, but a considerable
`
`‘O@*~IO1I.n
`
`portion of that time can be explained by the appeal.
`The Plaintiff, on the one hand, and Cash Asset Management and
`)0
`I1 CPS on the ether, filed motions, being cross-motions for summary
`12
`judgment. {###l49, 150, 151.) We denied all of these motions on
`13 February 23, 2006.
`(£198.)
`
`Defendants then filed a motion to dissolve the preliminary
`14
`injunction, on July 20, 2006.
`(#222.)
`on November 13, 2006,
`the
`15
`16 parties stipulated to resolve this motion at the same time that
`the
`I? merits were resolved.
`They also agreed that all claims for damages
`18 were to be dismissed,
`leaving the remaining claims for declaratory
`I9
`relief,
`injtnctive relief, and attorneys fees and costs.
`(##25B,
`20 259.)
`
`21
`22
`23
`
`A bench trial was held before this court on December 12
`through 14, 2006.
`‘
`
`24
`
`I.
`
`zammananaqgim
`
`A party seeking a permanent injunction in these circumstances
`25
`26 nmst meet a four-factor test, demonstrating:
`27
`(1)
`that it has suffered an irreparable injury;
`28
`
`3
`
`

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`28/45
`PAGE
`MARK H GUNDERSDN LTD
`———?-
`
`--
`
`Case 3:07-cv—00118 Document 1-1
`
`Filed 03/12/2007
`
`Page 19 of 39
`
`e se 3:03-ov-00707-ECR-RAM Document 292
`
`1-"uea o2/22/zoo?
`
`Page4of 22
`
`(2)
`
`that remedies available at law, such as monetary damages.
`
`are inadequate to compensate for that injury;
`
`(3)
`
`that, considering the balance oi hardships between the
`
`plaintiff and defendant. a remedy in equity is warranted; and
`
`(4)
`
`that the public interest would not be disserved by a
`
`permanent injunction.
`
`EEA¥_InE&—¥&_M£z£Ex§hann§b«lUlE£AI 126 S. Ct- 1837: 1839 (20061-
`
`“[O]nca the plaintiff establishes a likelihood of confusion, it is
`
`ordinarily presumed that the plaintiff will suffer irreparable harm
`
`I
`
`2 3 4 5
`
`6 7 8
`
`9
`
`10
`
`if injunctive relief is not granted.” Mi§ign_£g:9L§;_1n§*mLL
`
`U uel2ille_£nr2.. 888 F.2d 609, 612 n.3 (9th Cir. 1989:.
`
`12
`
`-
`
`The evidence is virtually undisputed that there will be
`
`13 confusion if both parties seek to use the mark at issue in this
`
`14 case. There was evidence presented at the trial that there has
`
`IS been actual confusion between Plaintiffs’ and Defendants’
`
`16 operations respecting emergency calls to the County,
`
`that
`
`17
`
`independent contractors have bee