Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA219503
`ESTTA Tracking number:
`06/23/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91184751
`Plaintiff
`Mile, Inc. and L.D. Management Company
`Jeremy J. Thornton
`Schottenstein, Zox & Dunn Co., L.P.A.
`250 West Street
`Columbus, OH 43215
`UNITED STATES
`jthornton@szd.com
`Other Motions/Papers
`Jeremy J. Thornton
`jthornton@szd.com
`/Jeremy J. Thornton/
`06/23/2008
`LDCS - Motion to Suspend (Application No. 77-303,797) (H1264484).PDF ( 60
`pages )(1856249 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA219503
`ESTTA Tracking number:
`06/23/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91184751
`Plaintiff
`Mile, Inc. and L.D. Management Company
`Jeremy J. Thornton
`Schottenstein, Zox & Dunn Co., L.P.A.
`250 West Street
`Columbus, OH 43215
`UNITED STATES
`jthornton@szd.com
`Other Motions/Papers
`Jeremy J. Thornton
`jthornton@szd.com
`/Jeremy J. Thornton/
`06/23/2008
`LDCS - Motion to Suspend (Application No. 77-303,797) (H1264484).PDF ( 60
`pages )(1856249 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`MILE, INC.
`
`and
`
`L.D. MANAGEMENT COMPANY
`
`Opposers,
`
`v.
`
`PRIDE MANAGEMENT, INC.
`
`Applicant
`
`%§/§/%/&/\./\)\2§/%/§/§/%§/\—/A
`
`Opposition No. 91184751
`
`Application No. 77/303,797
`Mark: LIONSDEN CABARET &
`
`STEAKHOUSE
`
`MOTION TO SUSPEND
`
`Opposers, Mile,
`
`Inc. and L.D. Management Company move to suspend this
`
`proceeding until further notice from Opposers pursuant to Trademark Rule 2.117(a). The
`
`grounds for this motion are that an action styled Mile, Inc. v. Pride Management, Inc.,
`
`No. 0:08-cv-60509-CMA is pending in the United States District Court, Southern District
`
`of Florida, Ft. Lauderdale Division ("the Florida Action") involving issues common to
`
`this opposition proceeding.
`
`In particular,
`
`the Florida Action involves the issue of
`
`whether Pride Management, Inc.'s use of the mark that is the subject matter of the instant
`
`Application conflicts with Mile, Inc.’s trademark, among others, owned by Opposers. A
`
`true and accurate copy of the complaint in the Florida Action is attached hereto as Exhibit
`
`{Hl2S42‘)2 I
`
`)
`
`
`
`1. The Board should exercise its discretion to suspend this proceeding, because the
`
`resolution of the Florida Action could resolve some or all of the issues in this proceeding,
`
`which resolution could be binding on the Board.
`
`Respectfully submitted,
`
`Dated: June 23, 2008
`
`Schottenstein, Zox & Dunn Co., L.P.A.
`250 West Street
`
`Columbus, OH 43215
`
`Telephone: (614)462-1077
`Facsimile: (614) 224-3998
`
`Attorneys for Opposers
`
`(Hl254292 l
`
`)
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that the foregoing MOTION TO SUSPEND is being deposited on
`June 23, 2008 with the United States Postal Service as first class mail, postage prepaid,
`upon the following counsel of record for Applicant:
`
`Edward M. Livingston
`THE LIVINGSTON FIRM
`
`963 Trail Terrace Drive
`
`NAPLES FL 34103-2329
`
`Phone: 239-262-8502
`
`Fax: 239-261-3773
`
`5-L
`
`Jer
`
`y J.
`
`nton
`
`(Hl254292 l
`
`)
`
`
`
`Case 0:08-cv—60509-CMA Document 1
`\—V
`
`Entered on FLSD Docket 04/09/2008
`\i
`
`Page ‘I of 55
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`L.D. MANAGEMENT COMPANY
`110 East Wilson Bridge Road,
`Worthington, Ohio 43085,
`
`:
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`
`MAGISTRATE J'U‘DGI
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`
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`
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`CLERK u.s. over.
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`
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`
`Judge
`
`MILE, INC.,
`110 East Wilson Bridge Road
`Worthington, Ohio 43085,
`
`*
`
`Plaintiffs,
`
`v.
`
`PRIDE MANAGEMENT, INC.,
`711 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`BEE LINE ENTERTAINMENT, INC.,
`711 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`CHARLES H. VEIGLE, SR.,
`711 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`CHARLES H. VEIGLE, JR.,
`1042 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`JAMES VEIGLE,
`401 SR 436,
`
`Casselberry, Florida 32746,
`
`[Hll930022)
`
`
`
`Case 0:08-cv—60509—CMA Document 1
`
`Entered on FLSD Docket 04/09/2008
`\/
`
`Page 29 of 55
`
`1.
`
`Such other relief as the court may deem appropriate.
`
`
`
`Lee & Amtzis, P.L.
`5550 Glades Road, Suite 401
`Boca Raton, Florida 33431
`
`Telephone: 561-981-9988
`Facsimile: 561-981-9980
`
`Counsel for Plaintiffs L.D. Management Company
`and Mile, Inc.
`
`OF COUNSEL:
`
`T. Earl LeVere (Oh. Sup. Ct. 0063515)
`Jeremy J. Thornton (Oh. Sup. Ct. 0076907)
`Schottenstein Zox & Dunn Co., LPA
`250 West Street
`
`Columbus, Ohio 43215
`
`Telephone: 614-462-2700
`Facsimile: 614-228-4847
`
`VERIFICATION
`
`1, Michael F. Moran, being first duly sworn and cautioned, hereby verify and affirm
`
`under penalty of perjury that the facts alleged in the foregoing Plaintiffs’ Verified Complaint are
`
`true and accurate to the best of my knowledge and belief.
`
`
`
`
`ichael F. Moran
`Chief Executive Offic r,
`
`
`
`L.D. Management Company
`
`Sworn to and subscribed in my presence this
`
`IE
`day of April 2008.
`
`77512142,,
`
`NOTARY PUBLIC
`
`(Hll9300Z2)
`
`€
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`Case NO.
`
`Judge
`
`L.D. MANAGEMENT COMPANY
`
`110 East Wilson Bridge Road,
`Worthington, Ohio 43085,
`
`and
`
`MILE, INC.,
`110 East Wilson Bridge Road,
`Worthington, Ohio 43085,
`
`Plaintiffs,
`
`v.
`
`PRIDE MANAGEMENT, INC.,
`711 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`BEE LINE ENTERTAINMENT, INC.,
`
`711 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`CHARLES H. VEIGLE, SR.,
`
`711 Shadowmoss Circle,
`Lake Mary, Florida 32746,
`
`and
`
`CHARLES H. VEIGLE, JR.,
`
`1042 Shadowmoss Circle,
`
`Lake Mary, Florida 32746,
`
`and
`
`JAMES VEIGLE,
`
`401 SR 436,
`Casselberry, Florida 32746,
`
`{HI]930022)
`
`
`
`and
`
`NANCY VOEGTLIN,
`
`401 SR 436,
`Casselberry, Florida 32746,
`
`and
`
`KATHLEEN S. GREENE,
`
`711 Shadowmoss Circle,
`Lake Mary, Florida 32746,
`
`and
`
`KATHY S. VEIGLE,
`
`711 Shadowmoss Circle,
`Lake Mary, Florida 32746,
`
`Defendants.
`
`PLAINTIFFS’ VERIFIED COMPLAINT
`
`Now come Plaintiffs L.D. Management Company and Mile, Inc. (collectively “The
`
`Lion’s Den”), by their undersigned attorneys and,
`
`for
`
`their verified complaint against
`
`Defendants, hereby allege and aver as follows upon actual knowledge with respect to themselves
`
`and their own acts and upon infomiation and belief as to all other matters:
`
`Nature of the Case
`
`1.
`
`This is an action for trademark infringement, false designation of origin, unfair
`
`competition, and cybersquatting arising under federal, state, and common law. The Lion’s Den,
`
`a leading provider of adult retail entertainment, brings this action against Defendants Pride
`
`Management, lnc., Bee Line Entertainment, lnc., Charles H. Veigle, Sr., Charles H. Veigle, Jr.,
`
`James Veigle, Nancy Voegtlin, Kathleen S. Greene, and Kathy S. Veigle (individually and
`
`collectively “Defendants”) because Defendants have knowingly misappropriated The Lion’s
`
`Den’s name and trademarks for use in their competing “Lion’s Den Cabaret & Steakhouse”
`
`establishment.
`
`{Hl]93002.2)
`
`2
`
`
`
`The Parties
`
`2.
`
`Plaintiff L.D. Management Company (“L.D. Management”)
`
`is an Ohio
`
`corporation with its principal place of business at 110 East Wilson Bridge Road, Worthington,
`
`Ohio 43085. Plaintiff operates nearly 40 adult entertaimnent venues and retail stores under its
`
`distinctive THE LION’S DEN® and lion imagery marks. Plaintiff L.D. Management has
`
`business
`
`locations
`
`in sixteen states
`
`as well
`
`as
`
`a national online business via its
`
`LionsDenAdult.com and LionsDenGold.com Internet websites.
`
`3.
`
`Plaintiff Mile, Inc. (“Mile”) is an Ohio corporation with its principal place of
`
`business at 110 East Wilson Bridge Road, Worthington, Ohio 43085. Plaintiff Mile is the
`
`registered owner and licensor of certain of the trademarks at issue herein.
`
`4.
`
`Defendants, on information and belief,
`
`intend to open an adult entertainment
`
`venue at 1350 SW 2nd Street, Pompano Beach, Florida 33069 under the name LIONS DEN
`
`CABARET & STEAKHOUSE
`
`[sic]
`
`and
`
`are
`
`operating
`
`an
`
`Internet website
`
`at
`
`LionsDenCabaret.com.
`
`5.
`
`Defendant Pride Management, Inc.
`
`is a Florida corporation with its principal
`
`place of business at 711 Shadowmoss Circle, Lake Mary, Florida 32746.
`
`6.
`
`Defendant Bee Line Entertainment, Inc. is a Florida corporation with its principal
`
`place of business at 711 Shadowmoss Circle, Lake Mary, Florida 32746.
`
`7.
`
`Defendant Charles H. Veigle, Sr.
`
`is, upon infonnation and belief, a Florida
`
`resident whose last known address is 711 Shadowmoss Circle, Lake Mary, Florida 32746.
`
`Defendant Charles H. Veigle, Sr. is, upon infonnation and belief, a director and vice president of
`
`Pride Management, Inc. Defendant Charles H. Veigle, Sr. is, upon information and belief, a
`
`{H} 193002.22)
`
`3
`
`
`
`director of Bee Line Entertainment, Inc. Upon information and belief, Defendant Charles H.
`
`Veigle, Sr. is married to Defendant Kathleen S. Greene.
`
`8.
`
`Defendant Charles H. Veigle, Jr.
`
`is, upon information and belief, a Florida
`
`resident whose last known address is 1042 Shadowmoss Circle, Lake Mary, Florida 32746.
`
`Defendant Charles H. Veigle, Jr.
`
`is, upon information and belief, a director and president of
`
`Pride Management, Inc. Defendant Charles H. Veigle, Jr. is, upon information and belief, a
`
`director of Bee Line Entertainment, Inc.
`
`9.
`
`Defendant James Veigle is, upon information and belief, a Florida resident whose
`
`last known address is 401 E. State Road, 436 Casselberry, Florida 32707. Defendant James
`
`Veigle is, upon information and belief, a director of Bee Line Entertainment, Inc.
`
`10.
`
`Defendant Nancy Voegtlin is, upon information and belief, a Florida resident
`
`whose last known address is 401 E. State Road, 436 Casselberry, Florida 32707. Defendant
`
`Nancy Voegtlin is, upon information and belief, secretary of Bee Line Entertainment, Inc.
`
`11.
`
`Defendant Kathleen S. Greene is, upon information and belief, a Florida resident
`
`whose last known address is 711 Shadowmoss Circle, Lake Mary, Florida
`
`32746. Upon
`
`information and belief, Defendant Greene is married to Defendant Charles H. Veigle, Sr.
`
`12.
`
`Defendant Kathy S. Veigle is, upon information and belief, a Florida resident
`
`whose last known address is 711 Shadowmoss Circle, Lake Mary, Florida 32746. Defendant
`
`Kathy S. Veigle is, upon information and belief, secretary and treasurer of Pride Management,
`
`Inc. Defendant Kathy S. Veigle is, upon information and belief, secretary of Bee Line
`
`Entertainment, Inc.
`
`{HH93002 2 )
`
`4
`
`
`
`Jurisdiction and Venue
`
`13.
`
`This action arises under the federal Trademark Act, 15 U.S.C. § 1051, et seq.; the
`
`Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204 (“FDUTPA”); and the
`
`common law of Florida. This Court has subject matter jurisdiction over this action pursuant to
`
`15 U.S.C. § 1121, and 28 U.S.C. §§ 1331,1338(a), 1338(b), and 1367. Pursuant to 28 U.S.C. §§
`
`l338(b) and 1367, this Court has supplemental jurisdiction over The Lion’s Den’s state law
`
`claims because those claims are substantially related to The Lion’s Den’s federal Lanham Act
`
`claims.
`
`14.
`
`This Court has personal jurisdiction over the Defendants because each of the
`
`Defendants resides in the State of Florida. Additionally, each of the Defendants has had
`
`substantial contacts with Florida sufficient to justify their having to respond to this action here.
`
`The Lion’s Den is being harmed in this District, Defendants are doing business in this District,
`
`and specific actions about which The Lion’s Den complains have taken place in this District.
`
`15.
`
`Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. §
`
`1391(a) and (b) because all of the Defendants reside within the State of Florida and at least one
`
`of the Defendants resides in this judicial district. Additionally, a substantial part of the events or
`
`omissions giving rise to the Plaintiffs’ claims occurred in this judicial district. Pursuant to 28
`
`U.S.C. § 1391(0), venue is also proper in this judicial district as to all claims asserted against
`
`Defendants Pride Management, Inc. and Bee Line Entertainment, Inc. because these corporate
`
`defendants are subject to personal jurisdiction in this judicial district.
`
`The Lion’s Den and its Retail Adult Entertainment Services
`
`16.
`
`The Lion’s Den is a leading provider of retail adult entertainment goods and
`
`services throughout the United States.
`
`(H1193002.2 )
`
`5
`
`
`
`17.
`
`Through its retail outlets, The Lion’s Den sells a variety of adult-oriented
`
`products including, for example, adult videos, books, periodicals, novelties, and intimate apparel.
`
`18.
`
`Since opening its first store in 1971, The Lion’s Den has endeavored to create an
`
`opportunity for interested adults to purchase adult-oriented materials in a safe and non-
`
`judgmental environment. The Lion’s Den has established a reputation for offering quality
`
`products and for having a professional, courteous, and knowledgeable sales staff, while
`
`protecting the privacy and discretion of its customers.
`
`19.
`
`Recognizing the mature nature of its products and services, The Lion’s Den is
`
`actively involved in ensuring that the adult-oriented products and services it sells are available
`
`exclusively to adults. For example, The Lion’s Den is a corporate member and sponsor of the
`
`Association of Sites Advocating Child Protection (ASACP), which is a non-profit organization
`
`dedicated to eliminating child pornography from the Internet.
`
`20.
`
`The Lion’s Den is also a strong public proponent of First Amendment rights and
`
`is proud that its former Chief Operating Officer, Jim Everett, was recently appointed as the
`
`president of the board of The Free Speech Coalition. The Lion’s Den is a corporate sponsor of
`
`The Free Speech Coalition.
`
`21.
`
`Beginning with a single store in Columbus, Ohio, in 1971, The Lion’s Den has
`
`grown to an expansive network of nearly 40 retail adult superstores located in sixteen states
`
`throughout the United States.
`
`22.
`
`For several years, The Lion’s Den previously operated a retail adult superstore in
`
`southern Florida and is currently in negotiations to purchase and operate five additional retail
`
`superstore outlets in the Miami area.
`
`{Hll93002.2)
`
`6
`
`
`
`23.
`
`In addition to its brick-and-mortar stores, The Lion’s Den operates a substantial
`
`national online business via its LionsDenAdult.com and LionsDenGold.co1n Internet websites.
`
`24.
`
`Through the LionsDenAdult.com and LionsDenGold.co1n Internet websites,
`
`customers are able to purchase the same types of adult-oriented items available at The Lion’s
`
`Den’s brick-and—mortar adult superstores.
`
`25.
`
`Additionally, visitors to the LionsDenAdult.com and LionsDenGold.com Internet
`
`websites can utilize The Lion’s Den’s “video-on-demand” services to purchase and immediately
`
`view adult videos via the Internet using streaming video technology.
`
`The Lion’s Den’s Trademarks
`
`THE LION’S DEN® and THE LION’S DEN Stylized Silhouette Marks
`
`26.
`
`Since 1971, The Lion’s Den has continuously and actively promoted and used
`
`THE LION’S DEN® name and trademark in connection with its various retail adult
`
`entertainment services.
`
`27.
`
`The Lion’s Den owns United States Trademark Registration No. 2,301,567 for its
`
`THE LION’S DEN® mark for retail stores featuring adult books, videos, novelties, leather, CD-
`
`ROMS, and lingerie. A true and accurate copy of a printout from the United States Patent and
`
`Trademark Office TARR website showing the status of United States Trademark Registration
`
`No. 2,301,567 is attached as Exhibit A.
`
`28.
`
`The Lion’s Den’s United States Trademark Registration No. 2,301,567 for its
`
`THE LION’S DEN® mark is incontestable pursuant
`
`to 15 U.S.C.
`
`§ 1065 and provides
`
`constructive nationwide notice of its ownership of THE LION’S DEN® mark pursuant to 15
`
`U.S.C. §l072.
`
`(I-lll93002.Z)
`
`7
`
`
`
`29.
`
`In addition, for over a decade, The Lion’s Den has actively used and promoted a
`
`distinctive stylized version of its THE LION’S DEN® mark consisting of a male lion and female
`
`lioness silhouetted together in black against a backdrop of a sun that appears in various hues of
`
`orange, yellow, and brown (hereinafter, “THE LION’S DEN Stylized Silhouette”) to identify its
`
`retail adult entertainment services. The Lion’s Den also uses variants of THE LION’S DEN
`
`Stylized Silhouette in black-and-white and black-and-yellow two-tone color combinations.
`
`30.
`
`Following is a true and accurate copy of a print advertisement containing
`
`Plaintiffs’ black-and-white version of THE LION’S DEN Stylized Silhouette mark:
`
`_Q§_
`LIONS DEN
`
`~ ‘-1l~l..tir.;<r:\.'n -mm lmn«.dm.vdul1iwr.
`
`.\ .\H RI('.»\‘S lA\'()Rl'l l- ADI l.'l" SL'l’l"RSTORli
`m 5 \ 1‘ H’
`~'*
`
`31.
`
`THE LION’S DEN Stylized Silhouette is inherently distinctive when considered
`
`in light of or used to identify The Lion’s Den’s retail adult entertainment services.
`
`{H1 1930012)
`
`8
`
`
`
`32.
`
`The Lion’s Den prominently features its THE LION’S DEN Stylized Silhouette at
`
`the top of each of the web pages available from its LionsDenAdult.com and LionsDenGold.com
`
`Internet websites,
`
`in its retail adult Superstores, and on other advertising and promotional
`
`materials. Following is a true and accurate screenshot of the Plaintiffs’ LionsDenAdult.com web
`
`page, on or about April 1, 2008:
`
`Qaack '
`.:«.u~ ,, gjhttnzl/www.|iI7nsdenadLl.cornJ
`
`‘
`
`Seavch
`
`Favortes
`
`-
`
`.
`
`-
`
`v flea
`
`..
`
`'
`
`J 1
`
`"..1rv:.'.vu.x.<ll)':'r(-Hie,-:1 rr1.c1t:rx.-4|
`Md-. d for ;«::ult 4.4- o'\’,.
`
`LN 1 .;;s Univ
`
`{Hll930022)
`
`9
`
`
`
`The Lion’s Head Mark
`
`33.
`
`As a complement to its lion-themed name, marks, and marketing motif, The
`
`Lion’s Den also created and uses the following stylized representation of a lion head (“Lion’s
`
`Head Mark”) to identify its retail adult entertainment services:
`
`
`
`34.
`
`Since at least as early as 1992, the Lion’s Den has used its registered Lion’s Head
`
`Mark in connection with its retail adult entertainment services.
`
`35.
`
`The Lion’s Den owns United States Trademark Registration No. 2,428,085 for its
`
`Lion’s Head Mark for retail stores featuring adult books, videos, novelties, leather, CD-ROMS,
`
`and lingerie. A true and accurate copy of a printout from the United States Patent and
`
`Trademark Office TARR website showing the status of United States Trademark Registration
`
`No. 2,428,085 is attached as Exhibit B.
`
`36.
`
`The Lion’s Den’s registration for its Lion’s Head Mark is incontestable pursuant
`
`to 15 U.S.C. § 1065 and provides constructive nationwide notice of its ownership of Lion’s Head
`
`Mark pursuant to 15 U.S.C. §1072.
`
`ll-lll9300Z.2)
`
`
`
`Advertising, Promotion, and Commercial Success of The Lion’s Den Marks
`
`37.
`
`THE LIONS DEN® name and mark, THE LION’S DEN Stylized Silhouette
`
`mark, and the Lion’s Head Mark are collectively referred to as “The Lion’s Den Marks.”
`
`38.
`
`Plaintiffs’ methods of promoting The Lion’s Den Marks include advertisements in
`
`newspapers and other printed publications,
`
`in television and radio commercials,
`
`in print
`
`brochures and flyers, on billboards and other signage, and on the Internet.
`
`39.
`
`The Lion’s Den also regularly promotes The Lion’s Den Marks through, and in
`
`conjunction with, in-person guest appearances by celebrity adult film entertainers at its network
`
`of THE LION’S DEN® retail outlets. Celebrity adult entertainers who have recently appeared at
`
`The Lion’s Den’s venues include Carmen Luvana, Kelly Madison, Flower Tucci, Brandy Talore,
`
`and Gina Lynn. A true and accurate copy of a flyer advertising one such guest appearance is
`
`attached as Exhibit C.
`
`40.
`
`The Lion’s Den further promotes THE LION’S DEN® and THE LION’S DEN
`
`Stylized Silhouette name and marks through printed flyers and commercial announcements
`
`distributed and displayed at third-party cabarets featuring nude/erotic dancing.
`
`41.
`
`In 2007 alone, The Lion’s Den spent in excess of $2,000,000 advertising and
`
`promoting The Lion’s Den Marks.
`
`42. With respect to their online promotion of The Lion’s Den Marks, in 2007 alone,
`
`Plaintiffs’ LionsDenAdult.com and LionsDenGold.com Internet websites had a combined total
`
`of 71 million hits from nearly 450,000 unique Visitors.
`
`43.
`
`In 2007 alone, Plaintiffs’ network of THE LION’S DEN® retail outlets enjoyed
`
`over $40 million in sales in connection with Plaintiffs’ The Lion’s Den Marks throughout the
`
`United States and Via its LionsDenAdult.com and LionsDenGold.com Internet websites.
`
`{H1l930022)
`
`11
`
`
`
`44.
`
`The Lion’s Den’s efforts and expenditures of time and money in promoting and
`
`offering its retail adult entertainment services under The Lion’s Den Marks have created
`
`substantial and valuable goodwill in those marks.
`
`Defendants’ Wrongful Acts
`
`45.
`
`One or more of the Defendants operates Rachel’s Adult Entertainment and
`
`Steakhouse——a multiple-location cabaret featuring nude/erotic dancing and dining.
`
`46.
`
`Defendants are currently preparing to open a new cabaret under the name “LIONS
`
`[sic] DEN CABARET & STEAKHOUSE” that will also feature nude/erotic dancing and dining.
`
`47.
`
`Defendants intend to open their new adult-oriented LIONS [sic] DEN CABARET
`
`& STEAKHOUSE at 1350 SW 2nd Street, Pompano Beach, Florida.
`
`48.
`
`In January 2008, the following sign appeared outside Defendants’ new location:
`
`LIONS DEN &
`ADULT CABARET 5’ STEAK HOUSE
`?‘lC\'L" V511-5551313 1‘/WWlfC.'lSD'.'N[AlAkf‘|’.CON
`ADULT ENTERTAINMENT
`P C)‘ *
`
`I
`
`1 As detailed below, Defendants use and have applied to register multiple variations of phrases comprised of or
`containing the term “LION’S DEN” including “LION’S DEN,” “LIONS DEN,” and “LIONSDEN.” As used in this
`Verified Complaint and accompanying Motion, the phrase “LIONS [sic] DEN” shall be understood to encompass
`each of Defendants’ varying uses. For the reasons detailed in the accompanying Motion, the slight variations and
`inconsistencies of Defendants’ varying uses are inconsequential to their liability on the claims asserted herein.
`
`{Hll930022)
`
`
`
`Recently, Defendants unveiled the following additional signage bearing the mark LIONS [sic]
`
`DEN CABARET & STEAKHOUSE:
`
`eakh'o
`
`,
`
`49.
`
`To promote their new adult-oriented entertainment services, Defendants have
`
`also, without The Lion’s Den’s authorization, registered the domain name LionsDenCabaret.com
`
`and are using that website to advertise the LIONS [sic] DEN CABARET & STEAKHOUSE.
`
`50.
`
`According to Defendants’ LionsDenCabaret.con1 Internet website, “Lions [sic]
`
`Den Cabaret & Steakhouse is a 17,000 square foot premier adult entertainment complex. The
`
`club features a full liquor menu, total nudity and a prime steakhouse. The main show bar has
`
`four stages surrounded by plush seating for your viewing pleasure.”
`
`(1-111930022)
`
`13
`
`
`
`51.
`
`Defendants’ LionsDenCabaret.com Internet website
`
`further
`
`indicates
`
`that
`
`Defendants’ “Lions [sic] Den Cabaret and Steakhouse” is “South Florida’s Premier Adult Club.”
`
`52.
`
`Prior to April 3, 2008, Defendants’ LionsDenCabaret.com Internet website
`
`indicated that Defendants’ “Lion’s Den” is “Coming Soon!”
`
`53.
`
`On or about April 3, 2008, Defendants’ LionsDenCabaret.co1n Internet website
`
`was updated to indicate that the LIONS [sic] DEN CABARET & STEAKHOUSE “Grand
`
`Opening” will be “April 9th!”
`
`54.
`
`Defendants’ LionsDenCabaret.com Internet website prominently features the
`
`LIONS [sic] DEN CABARET & STEAKHOUSE name. Following is a true and accurate
`
`screenshot of the LionsDenCabaret.com web page, on or about April 1, 2008:
`
` File Edk VIBW Favorites Tools Heb
`
`
`
`
`
`
`
`
`
`_
`(J Buck '
`{Q hm-::IIwv4vv.|iorxsdencabaret.corrnJ
`
`.
`
`Search
`
`Favurkes
`
`v
`
`'
`
`[II-.‘
`
`V
`
`Go
`
`.
`
`'v-
`
`"
`
`
`
`{H11930022)
`
`
`
`55.
`
`Defendants’ LionsDenCabaret.com Internet website also displays a stylized
`
`depiction of the words “Lion’s Den” along with a stylized depiction of a male lion and female
`
`lioness silhouetted together in black against a backdrop of the sun that appears in various hues of
`
`orange, yellow, and brown (“Infringing Silhouetted Lions Mark”). Following is a true and
`
`accurate screenshot of the LionsDenCabaret.com web page, on or about April 1, 2008:
`
`l.4'.".i:'{I' «Li
`
`,
`
`[.inn'.s <l)cr1 ()< t.'F('ica'
`
`Deveiopcrs of Rachels Steakhouse do it again
`bringing South Florida a premier gcnticmcfis club
`with a prime five-star steakhouse.
`
`‘cm! [il2"V.'I|Pl
`
`wine cellar
`""“ " ‘ “"
`
`fiur mm
`
`.
`
`lg] Dune
`
`.
`
`;
`
`fl Internet
`
`56.
`
`Additionally, also without The Lion’s Den’s authorization, Defendants have filed
`
`United States Trademark Application No. 77/129,135 for the mark LION’S DEN CABARET &
`
`STEAKHOUSE for “theatrical and musical floor shows provided at nightclubs” and “restaurant
`
`and bar services.”
`
`(1-111930022)
`
`15
`
`
`
`57.
`
`Further still, Defendants have, without The Lion’s Den’s authorization, filed
`
`United States Trademark Application No. 77/303,797 for the mark LIONSDEN [sic] CABARET
`
`& STEAKHOUSE and Design for “theatrical and musical floor shows provided at nightclubs”
`
`and “restaurant and bar services.”
`
`58.
`
`Defendants’ United States Trademark Application Nos.
`
`77/303,797 and
`
`77/129,135 each include a disclaimer of “CABARET & STEAKHOUSE.”
`
`Plaintiffs’ Attempts to Resolve the Dispute
`
`59.
`
`The Lion’s Den first became aware of Defendants and Defendants’ activities
`
`involving the LIONS [sic] DEN CABARET & STEAKHOUSE in late January 2008 when Frank
`
`Arstone, a former vendor to The Lion’s Den, saw Defendants’ sign and called mistakenly
`
`thinking that the Defendants’ Pompano Beach LIONS [sic] DEN CABARET & STEAKHOUSE
`
`was one of Plaintiffs’ stores.
`
`60.
`
`Through its counsel, The Lion’s Den wrote Defendants on February 13, 2008,
`
`demanding that Defendants cease-and-desist their use of the name and mark LION’S DEN
`
`CABARET & STEAKHOUSE and the Infringing Silhouetted Lions Mark. The Lion’s Den’s
`
`cease-and-desist letter demanded a response by February 25, 2008. A copy of The Lion’s Den’s
`
`letter is attached hereto as Exhibit D.
`
`61.
`
`On February 25, 2008, counsel for Defendants contacted counsel for Plaintiffs to
`
`discuss this matter.
`
`62.
`
`As a result of the parties’ conversation, Plaintiffs agreed to give Defendants until
`
`March 7, 2008, to propose a satisfactory resolution of this matter.
`
`{H1193oo2.z )
`
`16
`
`
`
`63.
`
`Thereafter, the parties’ counsel engaged in further discussions and, at Defendants’
`
`counsel’s request, The Lion’s Den allowed Defendants until March 18, 2008, to propose a
`
`satisfactory resolution of this matter.
`
`64.
`
`Defendants were unwilling to cease-and-desist their use of the name and mark
`
`LIONS [sic] DEN CABARET & STEAKHOUSE and the Infringing Silhouetted Lions Mark.
`
`As a result, the parties were unable to reach an amicable resolution of this matter.
`
`The Parties’ Related Services, Identical Customers, and Identical Channels of Trade
`
`65.
`
`Adult entertainment services such as the nude/erotic dancing advertised on
`
`Defendants’ LionsDenCabaret.com Internet website and the retail adult entertainment services
`
`offered by The Lion’s Den both target consumers seeking adult entertainment.
`
`66.
`
`Adult entertaimnent services such as the nude/erotic dancing advertised on
`
`Defendants’ LionsDenCabaret.com Internet website and the retail adult entertainment services
`
`offered by The Lion’s Den are advertised through the same advertising media.
`
`67.
`
`Adult film entertainers such as those who have made personal appearances in
`
`connection with the advertising and promotion of The Lion’s Den’s retail outlets also appear as
`
`entertainers at adult cabarets like the Defendants’.
`
`68.
`
`Adult entertainment
`
`facilities such as The Lion’s Den retail outlets and
`
`nude/erotic dancing facilities such as the Defendants’
`
`frequently appear in close physical
`
`proximity to each other.
`
`69.
`
`The Lion’s Den’s retail outlets and the Defendants’ location at 1350 SW 2nd
`
`Street, Pompano Beach, Florida, are constructed in a marmer so as to prevent members of the
`
`public from viewing the goods or services provided within those buildings from the exteriors of
`
`those buildings.
`
`:1-m93oo2.2)
`
`17
`
`
`
`70.
`
`It is not uncommon for the same enterprise to operate or license the operation of
`
`both an establishment offering the retail sale of adult-oriented products (such as those operated
`
`by The Lion’s Den) and an establishment featuring nude/erotic dancing (such as the Defendants’
`
`cabaret).
`
`71.
`
`Adult videos available at
`
`the Lion’s Den’s
`
`retail
`
`locations and on its
`
`LionsDenAdult.co1n and LionsDenGold.com Internet websites feature nude/erotic performances
`
`by adult entertainers.
`
`72.
`
`Adult cabarets such as the Defendants’ feature nude/erotic performances by adult
`
`entertainers.
`
`Defendants’ Bad Faith
`
`73.
`
`Defendants used the LIONS [sic] DEN CABARET & STEAKHOUSE mark and
`
`Infringing Silhouetted Lions Mark with constructive notice of The Lion’s Den’s ownership of a
`
`federal registration for THE LION’S DEN.
`
`74.
`
`Defendants used the LIONS [sic] DEN CABARET & STEAKHOUSE mark and
`
`Infringing Silhouetted Lions Mark with constructive notice of The Lion’s Den’s ownership of a
`
`federal registration for the Lion’s Head Mark.
`
`75.
`
`Defendants filed United States Trademark Application Nos. 77/303,797 and
`
`77/129,135 with constructive notice of The Lion’s Den’s ownership of federal registrations for
`
`THE LION’S DEN and the Lion’s Head Mark.
`
`76.
`
`Defendants used the LIONS [sic] DEN CABARET & STEAKHOUSE mark and
`
`Infringing Silhouetted Lions Mark with actual notice of The Lion’s Den’s trademark rights since
`
`at least February 13, 2008, when The Lion’s Den objected to Defendants’ actions in writing.
`
`(H11930022 )
`
`
`
`77.
`
`Despite actual notice of The Lion’s Den’s trademark rights, Defendants declined
`
`to cease their infringing activities.
`
`78.
`
`On information and belief, Defendants’ adoption and use of the LIONS [sic] DEN
`
`CABARET & STEAKHOUSE mark with knowledge of The Lion’s Den’s prior use of THE
`
`LION’S DEN name and mark and Lion’s Head Mark are deliberate, intentional and willful
`
`attempts to trade upon and misappropriate the goodwill and commercial appeal associated with
`
`The Lion’s Den’s trademarks without proper compensation to The Lion’s Den.
`
`79.
`
`On information and belief, Defendants’
`
`registered the LionsDenCabaret.com
`
`domain name with bad faith intent to profit from THE LION’S DEN name and mark.
`
`Injug to The Lion’s Den and the Public
`
`80.
`
`Defendants’ use of the LIONS [sic] DEN CABARET & STEAKHOUSE mark
`
`and the Infringing Silhouetted Lions Mark is without Plaintiffs’ consent or authorization.
`
`81.
`
`Defendants’ misappropriation of The Lion’s Den’s THE LION’S DEN and THE
`
`LION’S DEN Stylized Silhouette marks is likely to cause confusion, mistake, and deception as
`
`to the source or origin of Defendants and their services.
`
`82.
`
`Defendants’ misappropriation of The Lion’s Den’s THE LION’S DEN and THE
`
`LION’S DEN Stylized Silhouette marks is likely to falsely suggest
`
`that a sponsorship,
`
`connection, license, or association exists between Defendants, their services, their commercial
`
`activities and the Plaintiffs.
`
`83.
`
`Defendants’ wrongful acts are willful and in wanton disregard of Plaintiffs and
`
`their valuable intellectual property rights. Defendants knowingly sought to deceive Plaintiffs’
`
`valued customers and to enjoy and profit from The Lion’s Den’s goodwill and reputation.
`
`{Hll9300Z.Z)
`
`
`
`84.
`
`Defendants’ wrongful acts have caused actual damage to Plaintiffs in an amount
`
`to be proven at trial.
`
`85.
`
`Defendants’ wrongful acts have irreparably injured Plaintiffs and, if not enjoined,
`
`will continue to injure Plaintiffs irreparably.
`
`86.
`
`Defendants’ wrongful acts have irreparably injured the public and, if not enjoined,
`
`will continue to injure the public irreparably because, as the Eleventh Circuit has recognized, the
`
`public has an interest in being free from confusion, mistake, and deception as to the source,
`
`affiliation, or sponsorship of goods and services available in the marketplace.
`
`87.
`
`Plaintiffs have no adequate remedy of law.
`
`FIRST CLAIM FOR RELIEF
`Federal Trademark Infringement of THE LION’S DEN Mark and Lion’s Head Mark
`Section 32(1) of the Lanham Act,
`15 U.S.C. § 1114(1)
`
`88.
`
`The Lion’s Den repeats and re-alleges every allegation set forth in Paragraphs 1
`
`through 87 of Plaintiffs’ Complaint as if fully set forth here.
`
`89.
`
`Defendants have used in commerce the marks LIONS [sic] DEN CABARET &
`
`STEAKHOUSE (including, but not limited to the marks depicted in United States Trademark
`
`Application Nos. 77/303,797 and 77/129,135),
`
`the Infringing Silhouetted Lions Mark, and
`
`associated lion imagery marks.
`
`90.
`
`Defendants
`
`have
`
`used
`
`the marks LIONS
`
`[sic] DEN CABARET &
`
`STEAKHOUSE (including, but not limited to the marks depicted in United States Trademark
`
`Application Nos. 77/303,797 and 77/129,135),
`
`the Infringing Silhouetted Lions Mark, and
`
`associated lion imagery marks in connection with the sale, offering for sale, distribution, and/or
`
`advertising of adult-oriented entertairmient services.
`
`(l-lll93002.2 )
`
`
`
`91.
`
`Defendants’ LIONS [sic] DEN CABARET & STEAKHOUSE mark (including,
`
`but not limited to the marks depicted in United States Trademark Application Nos. 77/303,797
`
`and 77/129,135), the Infringing Silhouetted Lions Mark, and associated lion imagery marks are
`
`reproductions, counterfeits, copies, and colorable imitations of The Lion’s Den’s registered THE
`
`LION’S DEN mark and The Lion’s Den’s registered Lion’s
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