Trademark Trial and Appeal Board Electronic Filing System. 3935
`
`ESTTA Tracking number: ESTTA55173
`
`Filing date3
`
`11/28/2005
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`92044580
`Plaintiff
`ANTHONY STEVENS, ARTISTS INTERNATIONAL M
`
`Proceeding
`
`Party
`
`7 A
`
`1 Z
`
`NTHONY STEVENS
`Correspondence POST OFFICE BOX 248
`Address
`NEW SMYRNA BEACH, FL 32170
`
`Submission
`
`Other Motions/’Papers
`
`Filer's Name
`
`/jeffrey wertmanl
`
`Filer's e—mail
`Signature
`
`jwertman@bergersingerman.com
`/jeffrey Wertmanl
`
`Attachments
`
`AR-M450_20051128_143013.pdf( 23 pages )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` §*_
`
`Anthony Stevens
`Artists International Management, Inc.
`Petitioners,
`
`Cancellation No. 92044580
`Registration No. 2,947,591
`Registered May 10, 2005
`Mark: FOGHAT (stylized)
`
`
`
`Petitioners move to suspend the above—captioned proceeding pending disposition of Case
`No. 05-80872, Anthony Stevens, et al. v. Roger P. Earl, er al., pending in the United States
`District Court for the Southern District ofFlorida, filed by Petitioners (the “Federal Civil
`
`Action”).
`
`Respondent has fraudulently and inequitably obtained Federal Registration ofthe
`trademark FOGI-IAT. Petitioners have filed a petition to cancel Reg. No. 2,947,591 due to
`
`partial ownership in the mark F0GI-IAT.
`Petitioners have filed the Federal Civil Action seeking, inter alia, declaratory and
`injunctive relief and cancellation of federal trademark registrations (Nos. 2,947,591 and
`2,947,592). A copy ofthe Complaint filed in the Federal Civil Action is attached hereto as
`
`Exhibit “A.”
`
`Disposition ofthe Federal Civil Action will determine the relevant rights to the marks
`
`and whether Petitioners are entitled to cancel the same.
`
`aoca Ralan Fa1‘tLaud'crda'le Miami Tallahassee
`attorneys at
`law
`350 East Las Olas Bou1eva__r;:_1 Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872
`
`

`
`Accordingly, it is respectfiilly requested that all fiirther proceedings in Cancellation No.
`
`92044580 be suspended pending final disposition of the Federal Civil Action.
`
`Respectfully submitted,
`
`BERGER SINGERMAN
`Attorneys for Petitioners
`350 East Las Olas Blvd., Suite 1000
`Foit Lauderdale, Florida 33301
`Tel. (954) 525-9900
`
`
`
`Florida Bar No. 501610
`lsamuels@bergersingerman.corn
`Jeffrey S. Wertnian
`Florida Bar No. 003093
`1'we1't1na.n@,berge1-singerman.coin
`
`CERTIFICATE OF SERVICE
`
`1, Jeffrey S. Wertman, Esq., hereby certify that a true and correct copy ofthe foregoing
`Request to Suspend Proceedings Pursuant to 37 C.F.R. § 2.117 was served on November
`gii, 2005 by first class mail in a postage prepaid envelope to:
`
`Noisy S.O.D. Inc.
`46 Shore Road
`East Setauket, NY. 11733
`
`Dorothy M. Weber, Esq.
`Shulcat, Arrow, I-lafer & Weber, LLP
`111 West 57”‘ Street
`Suite 1120
`
`New York, New York 10019
`
`FaJ'lLau'd'erda'J'e Miami Tallahassee
`aaca2?nton
`attorneys at
`law
`350 East Las 01a_5 Boulevard Suite 1000 Fort Lauclerclalc, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872
`
`

`
`IN THE UNITED STATES D1sTTz1fiE&rLts§.f_r_.t'g‘rJ-Igry,-, TE‘3,
`roa THE SOUTHERN DISTRICT or FLOR1 it“ -—’~'‘
`
`,,.,
`
`ii
`
`GKS
`
`MAGISTRATE Jup
`JOHNSON ‘Q5
`‘_
`
`STEVENS, and
`ANTHONY STEVENS afk/a TONY
`GEMENT, INC
`ARTISTS INTERNATIONAL MANA
`
`Plaintiffs,
`
`-
`
`..
`
`ROGER P. EARL, NOISY S.O.D., INC.
`and SETH LUBTN, as PersonalRepresentative ofthe
`ESTATE OF DAVID PEVERETT,
`Defendants.
`_______________________________________________________________._
`
`:
`
`:
`:
`:
`‘_
`
`
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`.
`‘~32
`-‘'
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`\_
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`1:.
`
`E
`
`COMPLAINT
`
`Plaintiffs, by their undersigned c
`
`ounsel, allege as follows:
`
`INTRODUCTION
`“Foghat," which is the subject of at least
`This action concerns the famous mark
`strations. PlaintiffSTEVENS, original bass player ofFoghat from 1971, and
`and operated by the Band Foghat, including
`as a shareholder ofthree corporations owned
`11 associatedwith themark
`FoghatLive, FoghatR&T,
`and FogKorp. LLC, which own the goodwi
`’s drummer, EARL, from utilizing and
`the Court to enjoin and restrain the hand
`is in fact the band “Foghat," which he ha
`otherwise misleading the public that he
`d‘s founder Dave Peverett in 2000. F
`Plaintiffs ask that the
`ancel Registration numbers 2,947,592 and
`
`s attempted to do
`
`urtherrnore,
`
`1.
`
`two trademark regi
`
`since the death of the ban
`
`'
`'
`2,947,591, which were just issu
`
`ed in May 2005, to reflect that they are in fact owned by the
`
`it
`
`
`
`

`
`corporation FogKorp,
`
`the goodwill associated with the mark
`
`and that EARL be forced to
`“Foghat," and further relief as set forth
`
`account for his wrongful misappropriation of
`more fully below.
`
`JURISDICTIONAL STATEMENT
`
`U.S.C. §ll2S(a) and the
`
`Declaratory ludgrn
`
`,
`ent Act, 28 U.S.C. § 2201 seeking inter
`and monetary damages. This Court has
`cancellation of a federal trademark registration,
`jurisdiction over the subjectmatter ofthis actionpursuantto 28 U.S.C. § 1331 and 28 U.S.C.
`
`l33 8(a).
`
`3.
`
`28 U.S.C. § 1367(a) in that these claims
`
`This Court has supplemental jurisdi
`are so related to the above federal claims that they form
`
`ction over the related state law claims under
`
`part of the same case or controversy.
`4.
`This Court has personaljurisdiction over the defendants because the defendants all
`ct. Venue is properly laid in this judicial district pursuant
`
`do business in this State and this Distii
`
`to 23 U.S.C. §§ 139l(b) and (c), and 1400 (a).
`
`T
`
`HE PARTIES
`
`Plaintiff, ANTHONY STEVENS (“STEVENS"), is a resident ofNew Smyrna
`5.
`Beach, Florida and is a former original member ofthe band
`
`Florida corporation with its princip
`ent and marketingrepresentative forTONY STEVENS and his rights to the name
`
`is the exclusive ag
`
`

`
`at heis arnanager ofFOGKORP, LLC., aFlo1-ida
`doingbusiness in Floridabythe virtue ofthe factth
`es and has been receiving the performance payment for
`
`limited liability company that receiv
`
`performances by “Foghat."
`Defendant, SETH LUBIN as Personal
`avid Peverett, a former Original M
`
`Representative of the ESTATE OF DAVE)
`ember of the band
`
`8.
`
`PEVERETT, represents the interest of D
`
`County, Florida.
`
`9.
`
`Defendant, NOISY S.O.D., INC.
`
`(“NO1SY”), is a New York corporation and may
`
`claim an ownership interest in the mark “Foghat.”
`
`10.
`
`In 1971, David Pev
`
`STEVENS (bass) and Rod Price (guitar) (the
`
`FACTS
`erett (guitar and vocals), ROGER P. EARL (drums), TONY
`“Original Members”) began writing, recording and
`
`Stevens left the band in l974 to pursue other interests.
`11.
`Bythe mid 1980's the rest ofthe Band hadbroken up andthe Original Members
`12.
`were no longerwriting, recording and playing music together. Nor were any ofthe Original
`Members using the name Foghat for this period ofdisbandrnent.
`13.
`After Foghat disbanded, Dave Peverett left the Uni
`
`ted States for a time for
`
`

`
`England. Earl andPeveretthad agreednotto usethe nameFoghatwithoutthe other forthe time
`
`that Peverett was away.
`
`In the late 1980s, when Peverett returned to the States, uponhearing that Earl has
`14.
`been usingthe name FOGHAT in his absence, hebegan touring on his own without the other
`Original Members, as “Lonesome Dave’s Foghat.”
`15.
`Thereafter, In 1991, defendant EARL filed a federal trademark infringement suit
`againstDave Peverett, in the SouthernDistrictofNewYork,whichwas dismissedwithprejudice
`in 1993 after the parties were approached to reunite and make a recordingtogether.
`16.
`In 1993, the Original Members reformedthe Band and performed continuously
`from 1993 through 1999, under the name “Foghat." In 1993, whenthebandreunited, the
`corporationFoghatLivewas createdto transact all oftheBand’sbusiness, includingbookings
`andmerchandising, andto collect allBand revenue andmaintain all rights ofthe Band, including
`rights to thename “Foghat" andtothe goodwill associatedwiththename. All four Original
`Members ofthe Band were listed as equal partners and shareholders inthis corporate entity.
`17.
`During that time period of 1993 through 1999, all netrevenue derived from
`the performancesbytheBand, aswell asroyalties fromuse ofthename“Foghat,” waspaid in
`equal shares to each ofthe Original Membersthroughthe corporationsFoghatLive orFoghat
`R&T (formed in 1996), it being acknowledged and understood that each Original Member owned
`25% ofthe rights, royalties and revenuesproduced by theBand, as equal shareholders ofthese
`
`corporations.
`
`In 1999, Rod Price voluntarily left the Band, abandoning any interest or
`18.
`rights in theBand orthe name“Foghat," andhas sincepassed away. After the departureof
`
`

`
`“Fo ghat," with a
`
`eholders of Foghat R&T.
`
`20.
`
`S.O.D. filed an appli
`
`filed a second
`
`under
`
`replacement guitarist, during which time they continued to equally share in all net revenue,
`including performance and trademark royalties, as equal shar
`19.
`In February 2000, original band member David Peverett passed away.
`Notwithstanding thepassing ofDavid Peverett, the Band continued to perform as “Foghat" from
`2001 through 2004. during which time all net revenue, includingperformance and trademark
`royalties,was shared equally amongremaining members oftheBand as before, as directors and
`equal shareholders ofFogKorp., LLC (which was created in 2002).
`1, Earl on behalf ofhimself and his own corporation NOISY
`On May 28, 200
`cation for the mark FOGI-IAT (stylized) in International Class 41 for live
`er 78/'066,0l4. On May 30, 2001, EARL
`(stylized) in International Class 25
`sweatshirts, tank tops, pants,
`
`application number 78
`
`shorts, caps, and scarves." On b
`
`owners, and falsely stated that no other ent
`
`NOISY S.O.D. as the
`
`mmerce and
`
`#066,476 for “clothing, namely T-shirts,
`oth applications EARL listed himself and
`ity had the right to use such mark in co
`
`falsely listed the date of first as June 30, 2000.
`21.
`At the time EARL filed these trademark registrations, E
`n behalfofthe remaining members ofthe band, as equal
`ere already sharing performance
`
`ARL told STEVENS that
`
`the registrations were being filed o
`shareholders of Foghat RSLT. The remaining band members w
`R&T. Furthermore, Foghat R&T, of which
`
`and trademark royalties equally through Foghat
`
`these trademark
`
`T-shirts and the like were
`
`regislrations. The specimens accompanying the registration for
`
`

`
`provided by STEVENS,who handled all merchandisingforthebandthrough its various corporate
`entities. EARLused pictures of STEVENS selling the merchandise as his specimen for the
`
`applications.
`
`of which STEVENS was a full partner.
`
`In 2002, the ESTATE OF DAVID PEVERETT filed an Opposition Proceeding
`22.
`againstEARJJS marks, Oppositionnumbers 91153419 and 91155885, challengingEARIJS right
`to the marks and accusing him of fraud. FogKorp.,1JL(‘,
`paid the fees and expenses for the defense ofthis opposition.
`23.
`At the end of2004, PlaintiffSTEVENS was wrongfully ousted from theBand,
`despite havingbeen a founding member and havingbeen an equal partner in Foghat Live, Foghat
`R&T, and F0gK01'p.LLC, receiving equal payment forperformances androyalties onrecord and
`merchandise sales bearing the trademark continuously from 1993 through 2004.
`24.
`On January 5, 2005, STEVENS applied for the mark FOGHAT (standard
`character), stating the date offirst use as December 1993. That application is still pending.
`25.
`On February 9, 2005, Stevens and AIM sued defendants Earl in the Circuit Court
`for Palm Beach county, alleging state law claims and seeking injunctive relief.
`26.
`In March 2005, EARL assigned his entire interest in the FOGI-IAT merchandising
`marl: (Class 25) to the ESTATE OF DAVID PEVERETT on a quitclaim basis in exchange for
`termination ofthe Opposition proceedings, numbers 91153419 and 91155885. The markwas
`registered onMay 10, 2005, withNOISY S.O.D., INC. and the ESTATE OF DAVID
`
`PEVERETT as ‘joint applicants.
`
`

`
`27.
`
`In April 2005, the Estate of Pever
`
`ett, the Estate filed an Amendment ofFirst Use
`
`requesting that the stated date of first use of the marks he
`
`amended from 2000 to 1973.
`
`STEVENS’ USE OF THE MARKS
`
`28.
`
`Plaintiffs 1-e—allege paragraphs 1 though 27 as though the
`
`same were set forth
`
`below at length.
`
`29.
`
`Plaintiff STEVENS, as a shareholder ofthe corporations Foghat Live, Foghat
`
`trademark FOGHAT or variations thereof for live performances by a musical group,
`'
`other products typically
`
`May 30, 2001 and prior to the dates of first 11
`
`No. 2,947,592, and 2,947,591, namely July 2000.
`30.
`The application filed by Stevens on January 6, 2005, with a date of first
`31, 1993 has not been examined yet, but, it is believed
`
`use in interstate commerce of December
`that it will be blocked from registration by Defendants U.S. Trademark Registration No.
`2,947,592, and 2,947,591, which is registered in connection with related goods and services.
`31.
`Since STEVENS first use ofthe mark “Foghat" in 1971 as an original member
`ofthe Band, his use during the period 1993-1999 when the group formed again with all ofits
`original members, and fiom 1999 to present, STEVENS has spent substantial sums ofmoney in
`advertising and promoting his "live performances by a musical group, sound recordings, and
`
`lit
`
`

`
`ancillary products under the mark “Foghat” or variations thereof.
`32.
`STEVENS has used the mark Foghat throughoutthe US. And as a result ofsuch
`ndering oflive perforrnancs by a musical
`
`use the advertising of the mark and the sales and re
`roducts under the mark or variations thereof, said mark
`group, sound recordings and ancillary p
`has acquired a substantial reputation and goodwill as indicating STEVENS as the source ofthe
`ghat or variations thereof is used. The
`goods and services in connection with which the mark Fo
`ue ofits long and extensive use and commercial
`term Foghat, as a mark of STEVENS, by virt
`
`goods and services of Stevens.
`
`DEFENDANT EARLS’ FRAUDULENT PROCUREMENT OF THE MARKS
`
`33.
`
`Defendant Earl committed fi'aud upon the U.S. Trademark Office, when he
`se such mark in commerce, and
`
`declared in his registrations that no other entity had the right to u
`on and belief, Defendants‘ marks, namely
`that the date of first use was 2000. Upon informati
`Foghat (stylized) were adopted withknowledge ofthepriorrights ofStevens in and to the mark
`Foghat and variations thereof, in connectionwith liveperformances as well as ancillaryproducts
`such as t—shi1‘ts, hats, posters, pins and other products typically sold at rock music concerts.
`fully and fraudulently signed the
`
`Upon information and belief, Defendants will
`34.
`trademark applications supportedby a declarations under 37 C.F.R. 2.20, withthe knowledge that
`ommerce and that the mark shown in the
`the Plaintiff Stevens had the right to use the mark in c
`
`ll
`
`

`
`registration is likely to cause confusion or mistake
`
`or to deceive when applied to Defendants’
`
`goods.
`
`35.
`
`Defendant Earl in particular, has obt
`
`'
`
`false representations which he knew to be false at the time an
`Stevens rely upon, to wit, that the procurement ofthe
`ich Stevens was an equal member.
`
`tion, Fo gKorp,
`
`g one which contained Stevens
`
`were for the benefit of the entire band, of wh
`36.
`Stevens, inreliance upon Earl’s representations, assisted Earl in obtaining these
`Inc. to pay the cost of the application
`process as well as defendingthemarks afterpublicationinthe oppositionproceeding commenced
`who handled all business concerning Foghat
`by co—defendant Estate ofEverett. Steven,
`merchandising, provided Earl with the specimens, includin
`mark application process.
`
`photograph selling the merchandise, for the trade
`
`3'7.
`Instead ofregistering the Foghat marks in
`Stevens had an equal share, unbeknownstto Stevens, Earl applied for these marks in his own
`NOISY S.O.D. as registrant/owner.
`name and that ofhis own, privately held company,
`
`one of the corporate entities in which all
`
`3 8.
`
`Stevens never had any reason to believe that the ap
`as none other than FogKorp or one ofthe other corporate
`
`plications for these marks did
`
`not state that the registrantfowner w
`entities in existence at the time which handles all facets ofthe band’s business.
`sted from the band and
`39.
`It was not until February 2, 2005, after Stevens had been ou
`(1 Earl had procured the trademark in his own name
`
`was forced to tour on his own, that he learne
`
`

`
`and for his own use whenhe received Earl's cease and desist letter claiming exclusive rights in the
`mark. A true and correct copy ofthis letter is attached hereto as Exhibit “A."
`40.
`Defendants‘ markFoghat (stylized) used in connection with clothing, namely t-
`shirts, sweatshirts, tank tops, pants, shorts, caps and scarves inboth International Class 25 and
`Class 41 leads consumers to believe that such goods emanate from andjor are associated, in some
`way directly or indirectly with STEVENS or are in some manner sponsored, endorsed or
`approvedby Stevens. This is particularly true in view ofSTEVENS long and widespread use of
`the markPoghat in connection with live performances by a musical group, sound recordings and
`
`ancillary products.
`
`DEFENDANTS° CONFUSING USE OF THE MARKS
`Because the Defendants goods and services identified in the registrations are the
`
`41.
`
`ofits mark for the goods and services identified in the registrations is likelyto cause confusion
`andfor cause mistake aridfor deceive the purchasingpublic as to the source or origin ofthe goods
`
`and services.
`
`Because Defendants goods and services identified in the registration are
`42.
`distributed through the same channels oftrade to the same general class ofusers, the continued
`registration ofDefendants mark on thePrincipal Registerwillworkto Plaintiffs disadvantage in
`that continued registration ofDefendants’ marks wouldbe a source ofdamage and injury to
`Plaintiffs, and that the goodwill attachedto Stevens’ mark is likely to be extended to Defendants‘
`mark without Stevens’ knowledge or consent, thereby benefitting Defendants to the detriment of
`
`is
`
`Ii
`
`

`
`the Plaintiffs and Stevens’ mark.
`
`ation ofDefendants’ mark in connection with the
`
`fendants’ mark and/or to
`
`43.
`Defendants’ use of and registr
`ds and services set forth in Registration Nos.2,947,592 and 2,947,591 is likely to cause
`confusion, mistake andlor deceive the purchasing public as to the origin, sponsorship, andlor
`association of Defendants‘ goods and services being sold under the De
`mislead purchasers ofDefendants‘ goods and services sold under the mark and-‘or the public in
`general into believing thatDefendants’ goods and services sold under the mark are sold by,
`emanate from and}or are associated, in some way directly or indirectly, with the Plaintiffs and}or
`Stevens’ mark or goods and services, to the damage and detriment ofPlaintiffs.
`44.
`Defendants’ use ofand registration ofDefendants’ mark for the goods and
`services set forth in Registration Nos.2,947,592 and 2,947,591 is likely to cause or result in a
`sion in the trade resulting in damage and injury to Plaintiffs because
`People familiar with STEVENS’ mark are
`
`likelihood of confu
`
`Defendants’ mark is similar to STEVENS’ mark.
`s and services set forth in Registration Nos. 2,947,592 and
`
`likely to purchase Defendants’ good
`2,947,591 as goods being offered for sale and sold by Plaintiffs an
`by STEVENS. Any objection or fault found with Defendants’ goods and/or services sold under
`d seriously injure STEVENS’ reputation, which STEVENS
`
`its mark would reflect poorly upon an
`
`has established for the go
`
`ll
`
`

`
`Count I
`Declaratory Relief Pursuant to 28 U.S.C. 2201
`(Against All Defendants)
`
`45.
`
`Plaintiffs re—allege paragraphs 1 through 44 as though the same were set forth
`
`below at length.
`
`46.
`
`Declaratory relief is appropriate in this instance as the p
`Imminent and inevitable harm unless the issue is resolved by
`
`arties hereto have pursued
`
`a course of conduct that will result in i
`
`declaratory relief.
`
`47.
`
`EARL and NOISY S.O.D., LLC claim exclusive use ofthe
`RETT, but such claim is wholly without merit, because
`with the ESTATE OF DAVID PEVE
`1 shareholder has owned the
`FogKorp., LLC or previous entities ofwhich STEVENS was an equa
`mark “Foghat" and associated goodwill since 1993.
`
`mark “Foghat", along
`
`48.
`
`For the last twelve (12) years STEVENS has c
`
`ontinuously been performing under
`
`the name of “Foghat" and has been paid performance and design roy
`
`alties as an owner of the
`
`name “Foghat.”
`
`49.
`
`associated goodwill, and
`
`therefore is entitled to at least 33-1/3“/o of the perform
`
`Plaintiff STEVENS believes that FogKorp., LL
`that he, as an equal shareholder ofthe corporation FogKorp., LLC
`ance and the design rights of and to the
`
`C owns the name “Foghat" and
`
`mark “Foghat."
`
`50.
`
`Plaintiff therefore requests the following declarations:
`
`lit
`
`

`
`That the court declare that FogKorp., LLC is the owner of the tra
`
`dernark “Foghat”
`
`in International Classes 25 and 41;
`
`That the court declare that Plaintiff, STEVENS, as an equal member ofFogKorp.,
`LLC is entitled to at least 33-13% ofFoghat recording and performance royalties
`and revenue from use of the mark “Foghat,” including the sale of ancillary
`poster, souvenir items and the like;
`
`products, including but not limited to clothing,
`cl Plaintiff AIM be permitted to advertise and book live
`
`That Plaintiff STEVENS an
`acts for STEVENS as “Foghat Original Founding Member Tony Stevens" or
`“Foghat featuring Tony Stevens,” or “Tony Stevens’ Foghat,” or some derivation
`thereof, including the stylized name “Foghat,” free from the interference of
`
`Defendants;
`
`That Defendants be prohibited from advertising and booking live acts for EARL as
`“Foghat” without qualifying such advertising with the name “Roger Earl;" and
`
`That the Court award Plaintiff STEVENS his costs in this action, and or
`
`her relief
`
`that this Court deems just and proper.
`
`
`
`

`
`public as to the source ofDefendants‘ goods and services,
`62.
`The conduct ofDefendants has been willful and continuous, and has lead
`consumers to believe that Defendants goods and services are associated with or in some manner
`
`sponsored, endorsed or approved by Plaintiffs.
`63.
`The conduct ofDefendants will cause and has caused the goodwill attached to
`Stevens’ mark to be extended to Defendants’ mark, without Stevens’ knowledge or consent.
`64.
`Defendants’ conduct is likely to cause confusion or mistake, and deceives as to
`the affiliation or association ofthe plaintiffs goods and services with Defendants’ goods and
`services, all in violation of section 43(a) ofthe Lanham Act, 15 U.S.C. §l12S(a).
`65.
`As a direct and proximate result ofthe willful and continuous conduct alleged
`herein, plaintiffs havebeen harmed in an amount to be determined by the Court, including treble
`damages and costs and attorneys fees pursuant to the Lanharn Act, 15 U.S.C. §11l’7(a).
`
`Count IV
`
`Common Law Unfair Competition
`(Against All Defendants)
`
`66.
`
`Plaintiffs re-allege paragraphs 1 through 65 as though the same were set forth
`
`below at length.
`
`67.
`
`Defendants ESTATE OF DAVE PEVERETT, EARL and NOISY S.O.D., or their
`
`Ii
`
`

`
`agents, have contacted numerous organizations that have been and were under contract with
`TONY STEVENS through Plaintiff, AJM to feature STEVENS using the mark “Foghat" and
`have attempted to or actually have obtained cancellation ofbookings for “Foghat" shows
`
`featuring STEVENS.
`
`68.
`Defendants or their agents, have stated to the third parties under
`contract with AIM and STEVENS that EARL and NOISY S.O.D. alone own the name “Foghat".
`s be cancelled and have threatened lawsuits.
`
`Defendants or their agents, have demanded that show
`Plaintiffs have lost bookings as a result ofthreats, unfair competition and interference with the
`
`business relationships of Plaintiffs.
`69.
`Defendants or their agents, have contacted radio stations that are advertising the
`
`“Foghat” show featuring STEVENS and have demanded that the radio stations stop advertising
`
`the “Foghat” show and threatening legal action.
`
`70.
`EARL, NOISY S.O.D. or their agents, have contacted disc jockeys, newspapers
`and employees of show promoters ofthe “Foghat" show featuring STEVENS, demanding that
`any performances be stopped and threatening legal action.
`71.
`Defendants or their agents, have accused Steven Green, the President
`
`of AIM, of fraud and other nefarious conduct.
`
`72.
`
`Defendants or their agents, are doing everything in their power to
`
`cancel and interfere with shows booked featuring TONY STEVENS using the name "F0ghat,”
`most recently an upcoming October 15, 2005 date at the SP1 Bikefest in Texas.
`
`

`
`As a direct result ofthis willful and continuous conduct, Plaintiff STEVENS has
`73.
`suffered substantial harm, including but not limited to irreparable harm that cannot be remedied
`unless defendants and their agents are enjoined from the interference and attempts to exclusively
`
`use the service mark, “Foghat.”
`74.
`Defendants’ conduct is causing confiision, mistakes and deceiving consumers and
`
`the public with regard to the ownership of the mark and name of“Foghat.“
`75.
`As a direct and proximate result ofDefendants’ willful and continuous conduct,
`
`Plaintiffs have been harmed in an amount to be determined by this Court.
`
`Count V
`Tortious Interference With Business Relationships
`(Against Earl and Noisy, 80.1).)
`
`76.
`
`Plaintiffs re-allege paragraphs 1 though 75 as though the same were set forth
`
`below at length.
`
`'77.
`
`Defendants’ conduct of contacting venues that Stevens and AIM have contracted
`
`with for live performances of Steven’s band constitutes tortious interference with the business
`
`relationships of Plaintiffs AIM and STEVENS.
`78.
`As a direct and proximate result ofthe willful and continuous conduct alleged
`
`herein, plaintiffs have been harmed in an amount to be determined by the Court.
`
`L,_Lr.__
`
`_.
`
`.135
`
`Ill
`
`

`
`WI-IEREFORE, PlaintiffSTEVENS request this Honorable Court to enter ajudgment in
`
`favor of Plaintiffs as follows:
`Plaintiffs AIM and STEVENS request an award of compensatory damages against
`defendants for an amount in excess ofFifteen Thousand ($15,000.00) Dollars, pre
`and postjudgment interest, court costs and Plaintiffs reserve the right to amend
`pursuant to Florida Law to request a claim for punitive damages.
`That defendants, their partners, directors, officers, agents, servants, employees and
`all other persons, in concert, privity or in participation with defendants being
`enjoined, directly and indirectly, from soliciting or contacting any third parties in
`order to or in such a way as to be likely to cause confusion, mistake or deception
`to consumers or the public as to the rights of STEVENS in and to the name
`
`b.
`
`“Foghat.”
`
`That defendants be required to account to STEVENS for all income and benefits
`received by Defendants from the use ofthe trademark “Foghat" since January,
`2005 and that Defendants be required to disclose all such income equal to the
`
`ownership of STEVENS in and to the Mark.
`That defendants. pay STEVENS all damages suffered byPlaintiffs as a result of
`
`defendants’ violations of STEVENS tights.
`
`That defendants. pay STEVENS costs and all other damages for unfair
`
`competition and unfair trade practice.
`that this Petition be sustained, thatjudgment be entered in favor ofPlaintiffs, and
`
`cl.
`
`e.
`
`f.
`
`_J_-J.__-
`
`

`
`U.S.C. §1117(a).
`
`h.
`
`punitive damages,
`
`any and all other relief that this Court deems appropriate
`
` Date: September 26, 2005
`
`Scott Shepherd, Esquire
`SHEPHERD, FINKELMAN,
`
`MILLER & SHAH
`
`4400 No. Federal Highway
`Lighthouse Point, Florida 33064
`Te1.: (954) 943-9191
`
`LAWRENCE E. FELDMAN & ASSOC.
`
`Lawrence E. Feldman
`
`Roseann E. Weisblatt
`
`Steven G. Tyson
`
`432 Tulpehocken Avenue
`
`Elkins Park, PA 19027
`
`Tel. (215) 885-3302
`
`Fax: (215) 885-3303
`
`Attorneys for Plaintiffs
`
`%9.
`
`Itl
`
`

`
`kt.
`
`SHUKAT ARROW HAFEF? 5: WEBER. 1--LP.
`_
`'
`.A'1"l'OKNK‘4'S ATLAW
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`Ntaw *-ramc. Nlzw ‘ID!’-‘(K IOOII
`
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`
`ALLEN H. M'Il'lDW'
`FETITN I. -Enid-HEAT
`.1. JEFYHIH’ HAFHH
`a:>I=o'rmr H. sunken
`
`JCIMI.-.| E. Hill-u-In-1M-«I
`..:I:iv-I L nus!
`
`“°°" ‘\7fK"§Si%’SmnLE N0. I561-‘$98-B004
`
`
`Mr. Stcve G1-een_
`do AI'bInt|_i jintarnafi «anal Managamant
`9350 Saniialfuot Boulevard, Suits 45::
`Boat: Ratén. FL 33423
`
`Re:
`
`Dear Mr. Green '
`
`It has just come to our cJim1.t'a attention that you are-. nfl’:-.r:lng tha
`c.'n.|:B:rtain.Inent services of Tony Stevens as u “Fog'hat" performance.
`
`Please be ads.-1% that our client has the exclusive rights under the Lanham
`anions oft-.h¢M.ar1:i:: any and allenlzartainmant
`andaavurs. On: climax: also has. 5013 Ind ezmhlsive stanflingto protect thin famous
`Marl: against 9. likalilmod ofdilution under the Federa] Dilution Act. without regs:-&
`to whether there. is 11154: alflcehihund of customer aonfiusinn.
`However, given the famn.a.nd scope ofactxivifiesundartokonby Mr.
`utilizing the Mark, then appears to be an inevitable Hkalihood of canfusian as to
`source at sponsorship bltvraen you orMr. Stamus shopld you or Mr. Btavcnn us: the
`Mark in any 1::adem.ar1: manner an bin "solo" tour.
`ovrnnmbip interest
`rlenaa be fa:-char advised that Mr. Stevens never had
`innxtothamarkaxugytimeadnnehnwassolalyaperformmrinthagroup mdmntaly
`an employee. Any iudicnfian thatMr. Steven: is Foghat or pa.'rfor!m.ing as Fogbat is a
`wiflfui and Jmowingly wfllihl int:-inaszxnent of our t'Jie:nt’a tradn-mark dahta.
`
`
`
`Ill
`
`

`
`SHUKAT n.:=mo\.
`
`lip.-«.l."'E'£'-‘t 5. wgaafit. |...L..F'.
`
`Mr. Steve Green
`'.F'eb1-um-y 2, 2005
`Page 2
`
`Failure to provide us with this uasuranca, or failure to comply with the
`applicable law, may wellraault in the institution of an action against you for fademl
`trademark infringement whereby our client will seek pmljzminxucy and pa:-mzmetut
`i1Jjuuz:L~iva 1-_a1ie1'L_ In addition to the Ioregutng, mums of action and claims for
`dxmngas may also be brought againstyou. and any arthcr individuals and entities
`acting‘in cfzcmcerh with you in cannection with any violations ofour cJiant'slaga11y
`pmtectecf rightal.
`‘
`We Hunt such acuuna nfnotinninnotnrccaanryand thatynu willbsguidacl
`accuxdingly to came and dnalst.
`
`This iettef is written without I.E!'E-jtitlica to our t-.1ien1:'s
`of which are hereby expressly reserved.
`
`tights and remecfiua, all
`
` BM‘-Vzjlp
`
`cc:
`
`Lara Dickey Lcwifi (via fax: 816531-7545
`Sonnensnhsin Natl: &-. Rosanthal (for the Estate ufDaviti1-"averett)
`The Robinson Bowling Center (via fax: 613-546-1018)
`Linda Amello (via email)
`
`

`
`CIVIL COVER SHEET
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