Trademark Trial and Appeal Board Electronic Filing System. 3935
`
`ESTTA Tracking number: ESTTA55169
`
`Filing date3
`
`11/28/2005
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`92044585
`Plaintiff
`ARTISTS INTERNATIONAL MANAGEMENT, INC. A
`
`Proceeding
`
`Party
`
`7 S
`
`1 Z
`
`ETH LUBIN
`§ 15751 SW 41ST STREET, SUITE 100
`C°"°SP°“d““°“ FT. LAUDERDALE, FL 33313
`Address
`3
`
`Submission
`Filer's Name
`Filer's e—mail
`
`dprincip@h0dgsonruss.com
`Response to Board Orderllnquiry
`/jeffrey wertmanl
`jwertman@bergersingerman.corn
`
`Attachments
`
`AR-M450_20051l28_142859.pdf( 24 pages )
`
`
`
`ESTTA Tracking number: ESTTA55169
`
`Filing date3
`
`11/28/2005
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`92044585
`Plaintiff
`ARTISTS INTERNATIONAL MANAGEMENT, INC. A
`
`Proceeding
`
`Party
`
`7 S
`
`1 Z
`
`ETH LUBIN
`§ 15751 SW 41ST STREET, SUITE 100
`C°"°SP°“d““°“ FT. LAUDERDALE, FL 33313
`Address
`3
`
`Submission
`Filer's Name
`Filer's e—mail
`
`dprincip@h0dgsonruss.com
`Response to Board Orderllnquiry
`/jeffrey wertmanl
`jwertman@bergersingerman.corn
`
`Attachments
`
`AR-M450_20051l28_142859.pdf( 24 pages )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`____
`
`Cancellation No. 92044585
`Registration No. 2,947,592
`
`Anthony Stevens
`Artists International Management, Inc.
`
`—V_
`
`Petitioners,
`
`Estate of David Peverett
`
` ____:_
`
`Respondent.
`
`PETITONERS’ RESPONSE TO ORDER TO SHOW
`CAUSE VVHY DEFAULT JUDGMENT SHOULD NOT BE
`ENTERED AND REQUEST TO SUSPEND PROCEEDINGS
`
`Petitioners, Anthony Stevens and Artists International Management, Inc., by and through
`their newly—retained counsel, respectfully submit their response to the order to show cause why a
`defaultjudgment should not be entered against Petitioners and request that this proceeding be
`suspended pending disposition ofthe Federal Civil Action detailed below, and in support thereof
`
`state I
`
`On September 21, 2005, the Board issued an order suspending this proceeding in view of
`
`the withdrawal of Petitioners’ counsel.
`
`After a diligent search, Petitioners have now retained the undersigned firm to represent
`
`them in this proceeding.
`
`The undersigned firm has filed a Notice of Appearance of Counsel for Petitioners.
`
`In l.ight ofthe foregoing, as well as the fact that this proceeding involves serious
`allegations concerning Respondent’s improper and fraudulent registration ofthe trademark
`
`Bonn Ralun Fart Laudcrduie Miami Tallahassee
`-
`_
`law
`attorneys at
`350 East Las Olas Boulevard suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872
`
`
`
`FOGI-IAT (Reg. No. 2,947,592), in which Petitioner Anthony Stevens has an ownership interest,
`
`a default judgment against the Petitioners should not be entered.
`The Board has previously suspended this proceeding pending the disposition of a civil
`action pending in the Circuit Court in and for the 15th Judicial Circuit in and for Palm Beach
`
`County, Florida, Case No. C50 2005 CA 001292.
`Subsequently, Petitioners filed an action in the United States District Court for the
`Southern District ofFlorida, Anthony Stevens, er’ al. v. Roger P. Earl‘, er al, Case No. 05-80872
`(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) based upon the
`fraudulently and inequitable registration ofthe trademark FOGI-IAT‘. A copy ofthe Complaint in
`
`the Federal Civil Action is attached hereto as Exhibit “A.”
`Based upon the foregoing, Petitioners respectfully request that a defaultjudgment not be
`entered against Petitioners and this proceeding be suspended pursuant to 37 C.F.R. § 2.117
`
`pending fmal disposition of the Federal Civil Action.
`Respectfully submitted,
`
`BERGER SINGERMAN
`Attorneys for Petitioners
`350 East Las Olas Blvd., Suite 1000
`Fort Lauderdale, Florida 33301
`Tel. (954) 525-9900
`Fax:( 54) 2 -237
`
`I ~
`
`Florida BaINo. 501610
`1san1ue1s@,bergersingernian.com
`Jeffrey S. Wertman
`-
`Florida Bar No. 003093
`jwertnian@bergersingermaneoin
`
`.FarlLauderda1c Miami Tallahassee
`Eoca.3a.tnn
`attorneys at
`law
`350 East Las Olas Eloulevard Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-525-9900 Facsimile 954-523-2872
`
`
`
`CERTIFICATE OF SERVICE
`
`I, Jeffrey S. Wertman, Esq., hereby certify that a true and correct copy ofthe foregoing
`Petitioners’ Response to Order to Show Cause Why Default Judgment Should Not be Entered
`was served on November ;2 g , 2005 by first class mail in a postage prepaid envelope to:
`
`Lara Dickey Lewis, Esq.
`Blackwell Sanders Peper Martin LLP
`4801 Main Street, Suite 1000
`
`Kansas City, Missouri 64112
`
`M
`By: . Wertnian
`
`Fort Lauderdale
`Baas-329-tan
`-attorneys at
`law
`-350 East Las Olas Boulevard Suite 1000 Fort Lauderdale, Florida 33301 Telephone 954-5253900 Facsimile 954-523-2872
`
`Miami Talfallassee
`
`
`
`IN THE UNITED STATES DISTR1&ELWLEP§7§'l‘I§‘*_¢T-1‘E ,_,.,
`FOR THE SOUTHERN DISTRICT OF FLORI AT J’
`
`A -5 -5 A .
`
`MAGISTRATE JU
`JOHNSON BE
`
`ANTHONY STEVENS afkfa TONY STEVENS, and
`ARTISTS INTERNATIONAL MANAGEMENT, INC
`
`Plaintiffs,
`
`— vs —
`ROGERP. EARL, NOISY S.O.D., INC.
`and SETH LUBTN, as PersonalRepresentative ofthe
`ESTATE OF DAVID PEVERETT,
`Defendants.
`...............................................................-—
`
`“
`
`;
`
`'.
`2
`I
`
`COMPLAINT
`
`Plaintiffs, by their undersigned counsel, allege as follows:
`
`
`.
`‘-xii
`-‘:1
`E3
`-.__
`on
`
`I_
`
`i
`
`5‘
`
`'0
`i‘
`2
`
`=.
`
`IN
`
`TRODUCTION
`
`This action concerns the famous mark “Foghat,” which is the subject ofat least
`1.
`two trademark registrations. PlaintiffSTEVENS, originalbass player ofFoghat from 1971, and
`
`Foghat Live, FoghatREIT, and FogKorp. LLC, which own the goodwill associated with themark
`F0ghat, asks the Courtto enjoin andrestraintheba:nd’s drummer, EARL, from utilizing and
`otherwisemisleading thepublic that he is in facttheband “Foghat,” which he has attempted to do
`since the death ofthe band’s founder Dave Peverett in2000. Furthermore, Plaintiffs ask that the
`US. Trademark Office be Orderedto amend or cancel Registration numbers 2,947,592 and
`2,947,591, which werejust issued inMay 2005, to reflect that they are in fact ownedby the
`
`
`
`
`
`corporation Fogliorp, and that EARL be forced to account for
`“Foghat," and further relief as set forth more fully below.
`
`the goodwill associated with the mark
`
`his wrongful misappropriation of
`
`JURISDICTIONAL STATEMENT
`
`2.
`
`This is a civil action p
`
`Declaratory Judgrn
`
`,
`ent Act, 28 U.S.C. § 2201 seeking inter
`and monetary damages. This Court has
`
`cancellation of a federal trademark registration,
`fthis action pursuant to 28 U.S.C. § 1331 and 28 U.S.C.
`
`jurisdiction over the subject matter 0
`
`1338(a).
`
`3.
`
`This Courthas supplemental jurisdiction over the related state law claims under
`s are so related to the above federal claims that they form
`
`28 U.S.C. § 1367(a) in that these claim
`
`pm of the same case or controversy.
`4.
`This Courthas personaljurisdiction over the defendants because the defendants all
`do business in this State and this District. Venue is properly laid in this judicial district pursuant
`to 28 U.S.C. §§ 139103) and (C), and 1400 (a).
`
`T
`
`HE PARTIES
`
`5.
`
`Beach, Flori
`
`6.
`
`Plaintiff, ANTHONY STEVENS (“STEVENS"), is a resident ofNew Smyrna
`da and is a former original member ofthe band “Foghat.”
`TIONAL MANAGEMENT, 1NC. (“ATM”), is a
`Plaintiff, ARTISTS INTERNA
`neipalplace ofbusiness locatedinPalm Beach County, Florida. AIM
`STEVENS and his rights to the name
`
`Florida corporation with its pri
`is the exclusive agent and marketingrepresentative for TONY
`
`
`
`and mark of “Foghat" and has and will be dama
`
`ged by the registrations of the mark “Foghat“ by
`
`defendants.
`
`7.
`
`Defend
`
`ant, ROGER P. EARL (“EARL"), is a re
`eis amanager ofFOGKORP, LLC., a Florida
`
`sident of East Setauket, New York
`
`doingbusiness in Floridabythe virtue ofthefact that h
`and has been receiving the performance payment for
`
`limited liability company that receives
`
`performances by “Foghat.”
`
`PEVERETT, represents the interest of Day
`“Foghat” and may claim an ownership interest in the mark “Foghat” and is located in Broward
`
`County, Florida.
`
`9.
`
`Defendant, NOISY S.O.D., INC.
`
`(“NOISY"), is a New York corporation and may
`
`claim an ownership interest in the
`
`mark “Fo ghat."
`
`
`FACTS
`
`10.
`
`In 1971, David Pever
`
`ett (guitar and vocals), ROGER P. EARL (drums), TONY
`STEVENS (bass) and Rod Price (guitar) (the “Original Members”) began writing, recording and
`playing music together under the name of“Foghat.” (the ‘‘Band’‘).
`11.
`Stevens left the band in 1974 to pursue other interests.
`cl l980‘s the rest ofthe Band had broken up and the Original Members
`gether. Nor were any of the Original
`
`12.
`
`By the rni
`
`were no longer writing, recording and playing music to
`period of disbandment.
`
`13.
`
`After Fogh
`
`'
`
`States for a time for
`
`
`
`England. Earl andPeveretthad agreed not to use the nameFoghat withoutthe other for the time
`
`that Peverett was away.
`
`In the late 1980s, when Peverett returned to the States, upon hearing that Earl has
`14.
`been using the name FOGHAT in his absence, he began 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 SouthemDistrict ofblew York, which was dismissed withprejudice
`in 1993 after the parties were approached to reunite and make a recording together.
`16.
`In 1993, the Original Members reformed the Band and performed continuously
`from 1993 through 1999, under the name “Foghat." in 1993, when the bandreunited, the
`corporationFoghat Live was created to transact all oftheBand’s business, including bookings
`andmerchandising, andto collect all Band revenue and maintain all rights ofthe Band, including
`rights to the name “Foghat” and to the goodwill associated with the name. All four Original
`Members ofthe Band were listed as equal partners and shareholders in this corporate entity.
`17.
`During that time period of 1993 through 1999, all net revenue derived from
`the performances by the Band, as well as royalties from use ofthe name “Foghat," was paid in
`equal shares to each ofthe Original Members through the corporations Foghat Live orFoghat
`R&T (formed in 1996), it being acknowledged and understood that each Original Member owned
`25% ofthe rights, royalties and revenues produced by the Band, as equal shareholders ofthese
`
`corporations.
`
`In 1999, Rod Price voluntarily left the Band, abandoning any interest or
`18.
`rights in the Band or the name “Foghat," and has since passed away-. Afler the departure of
`
`,,l__,
`
`ill
`
`
`
`d to perform under the name “Foghat," with a
`Price, the three original members continue
`replacement guitarist, during which time they continued to equally share in all net revenue,
`eholders of Foghat R&T.
`including performance and trademark royalties, as equal shar
`19.
`In February 2000, original band member David Peverett passed away.
`the Band continued to perform as “Foghat" from
`Notwithstanding the passing of David Peverett,
`2001 through 2004. duringwhich time all net revenue, includingperformance and trademark
`s of the Band as before, as directors and
`royalties, was shared equally among remaining member
`equal shareholders ofFogK_orp., LLC (which was created in 2002).
`20.
`On May 28, 2001, Earl on behalf ofhimself and his own co
`an application for the mark FOGHAT (stylized) in International Class 41 for live
`performances under application number 78f066,0l4. On May 30, 2001, EARL fil
`federal trademark registration for the mark FOGI-IAT (stylized) in International Class 25 under
`-shirts, sweatshirts, tank tops, pants,
`number 78/066,476 for “clothing, namely T
`" On both applications EARL listed himself and
`owners, and falsely stated that no other entity had the right to use such mark in com
`falsely listed the date of first as June 30, 2000.
`
`rporation NOISY
`
`ed a second
`
`NOISY S.O.D. as the
`
`eree and
`
`S.0.D. filed
`
`application
`
`shorts, caps, and scarves.
`
`21.
`
`At the time EARL filed these trademark registrations, E
`filed on behalf ofthe remaining members ofthe band, as equal
`ere already sharing performance
`
`ARL told STEVENS that
`
`the registrations were being
`shareholders ofFoghat R&T. The remaining band members w
`and trademark royalties equally through Foghat R&T. Furthermore, Foghat R&T, ofwhich
`and shareholder, paid the fees and expenses for these trademark
`
`STEVENS was a full partner
`' registrations. The specimens accompanying the registration for T-
`
`shirts and the like were
`
`l
`
`
`
`handise as his specimen for the
`entities. EARL used pictures of STEVENS selling the mere
`
`through its various corporate
`
`applications.
`
`22.
`
`against EAR.L’S marks, Op
`
`ERETT filed an Opposition Proceeding
`
`In 2002, the ESTATE OF DAVID PEV
`positionnumbers 91153419 and 91155885, challenging EARJLRS right
`., LLC‘, ofwhich STEVENS was a full partner.
`
`paid the fees and expenses for the defense ofthis opposition.
`EVENS was wrongfully ousted from the Band,
`
`23.
`
`At the end of 2004, Plaintiff ST
`
`despite havin
`
`'
`
`been an equal partner in Foghat Live, Foghat
`
`s on record and
`
`R&T, and FogKorp.LLC, receiving equal p
`e trademark continuously from 1993 through 2004.
`
`merchandise sales bearing th
`
`24.
`
`On January 5, 2005
`
`, STEVENS applied for the mark FOGHAT (standard
`
`December 1993. That application is still pending.
`
`d AIM sued defendants Earl in the Circuit Court
`25.
`On February 9, 2005, Stevens an
`for Palm Beach county, alleging state law claims and seeking injunctive relief.
`erest in the FOGHAT merchandising
`26.
`In March 2005, EARL assigned his entire int
`
`n1ark(Class 25) to the ESTATE OF DAVID PEVERETT on a qui
`
`
`
`27.
`in April 2005, the Estate ofPeverett, the Estate filed an Amendment ofFirst Use
`requesting that the stated date of first use ofthe marks be amended from 2000 to 1973.
`
`STEVENS’ USE OF THE MARKS
`
`28.
`
`Plaintiffs re~allege paragraphs 1 though 27 as though the same were set forth
`
`below at length.
`
`29.
`PlaintiffSTEVENS, as a shareholder ofthe corporations Foghat Live, Foghat
`R&T, and FogKorp., LLC, and as an original member ofthe Band, has continuously used the
`trademark FOGHAT or variations thereof for live performances by a musical group,
`recordings, and ancillary products such as t—shirts, hats posters, pins and other products typically
`sold at rock music concerts from a date prior to the filing ofthe Respondent’s application, namely
`
`sound
`
`May 30, 2001 and prior to the dates of
`
`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
`use in interstate commerce ofDecember 31, 1993 has not been examined yet, but, it is believed
`that it will be blocked from registration by Defendants U.S. Trademark
`2,947,592, and 2,947,591, which is registered in connection with related goods and services.
`31.
`Since STEVENS first use ofthe mark “Fogl-lat" in 1971 as an original member
`
`Registration No.
`
`oftheBand, his use during the period 1993-1999 when the group formed again with all ofits
`original members, and from 1999 to present, STEVENS has spent substantial sums ofmoney in
`rmartces by a musical group, sound recordings, and
`
`advertising and prcmoting his live perfo
`
`__J__,_
`
`Ila
`
`
`
`ancillary products under the mark “Foghat” or variations thereof.
`32.
`STEVENS has used the mark Foghat throughout the US. And as a result of such
`rendering of live performance by a musical
`
`of, said mark
`
`group, sound recordings and ancillary
`has acquired a substantial reputation and goodwill as indicating STEVENS as the source ofthe
`Foghat or variations thereof is used. The
`goods and services in connection with which the mark
`irtue of its long and extensive use and commercial
`
`term Foghat, as a mark of STEVENS, by V
`success, is a famous mark indicating the musical group Foghat, its sound re
`
`cordings and other
`
`goods and services of Stevens.
`
`DEFENDANT EARLS’ FRAUDULENT PROCUREMENT OF
`
`THE MARKS
`
`33.
`
`Defendant Earl committed fraud upon the U.
`
`declared in his registrations that no other entity had the right to u
`
`se such mark in commerce, and
`
`knowledge ofthe prior rights of Stevens in and to the mark
`as well as ancillary products
`
`Foghat (stylized) were adopted with
`Foghat and variations thereof, in connection with live performances
`such as t-shirts, hats, posters, pins and other products typically sold at rock music concerts.
`fully and fraudulently signed the
`
`34.
`Upon information and belief, Defendants will
`trademark applications supported by a declarations under 37 C.F.R. 2.20, with the knowledge that
`ommerce and that the mark shown in the
`the Plaintiff Stevens had the right to use the mark in c
`
`N‘:
`
`
`
`registration is likely to cause confusion or rnistak
`
`e or to deceive when applied to Defendants‘
`
`goods.
`
`35.
`
`false representatio
`
`Defendant Earl in particular, has obtained these marks fraudulently by making
`ns which he knew to be false at the time and which he intended that plaintiff
`marks Foghat in both Class 25 and Cias s41
`
`Stevens rely upon, to wit, that the procurement of the
`were for the benefit ofthe entire band, ofwhich Stevens was an equal member.
`36.
`Stevens, in reliance upon Earl’s representations, assisted Earl in obtaining these
`marks by expending funds from their corporation, FogKorp, Inc. to pay the cost ofthe application
`process as well as defending the marks after publication in the oppositionproceeding commenced
`by co—defendant Estate ofEverett. Steven, who handled allbusiness concerningFoghat
`g one which contained Stevens
`merchandising, provided Earl with the specimens, includin
`photograph selling the merchandise, for the trademark application process.
`
`37.
`
`Instead ofregistering the Foghat marks in
`
`Stevens had an equal share, unbeknownst to Stevens, Earl applied
`NOISY S.O.D. as registrant/owner.
`
`name and that of his own, privately held company,
`
`for these marks in his own
`
`38.
`
`Stevens never had any reason to believe that the app
`
`lications for these marks did
`
`r was none other than FogKorp or one of the other corporate
`
`not state that the registrantfowne
`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 on
`
`
`
`st letter claiming exclusive rights in the
`
`and for his own use when he received Earl’s cease and desi
`ached hereto as Exhibit “A."
`
`mark. A true and correct copy of this letter is att
`40.
`Defendants’ mark Foghat (stylized) used in connection with clothing, namely t-
`s, caps and scarves in both International Class 25 and
`shirts, sweatshirts, tank tops, pants, short
`e that such goods emanate from andfor are associated, in some
`Class 41 leads consumers to believ
`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 markFoghat in connection with live performances by a musical group, sound recordings and
`
`ancillary products.
`
`DEFENDANTS’ CONFUSING USE OF
`Because the Defendants goods and services identified in the registrations are the
`
`TI-IE MARKS
`
`41.
`
`same or similar andfor so related to Plaintiffs go
`dentified in the registrations is likely to cause confusion
`
`of its mark for the goods and services i
`andfor cause mistake and/or deceive the purchasing public as to the sourc
`
`e or origin of the goods
`
`and services.
`
`42.
`
`Because Defendants
`
`goods and services identified in the registration are
`
`distrib
`
`uted through the same channels oftrade to the same general class ofusers, the continued
`pal Register will work to Plaintiffs disadvantage in
`registration of Defendants mark on the Princi
`that continued registration ofDefendants’ marks would be a source ofdamage and injury to
`Plaintiffs, and that the goodwill attachedto Stevens’ mark is likelyto be extended to Defendants‘
`g Defendants to the detriment of
`mark without Stevens’ knowledge or consent, thereby benefittin
`
`30
`
`..
`
`..
`
`, .....-.
`
`.......
`
`....
`
`._.,._...._A,,_.... A_...
`
`ll
`
`Ll
`
`
`
`the Plaintiffs and Stevens’ mark.
`43.
`Defendants’ use of and registration ofDefendants’ mark in connection with the
`goods and services set forth in Registration Nos.2,947,592 and 2,947,591 is likely to cause
`public as to the origin, sponsorship, andfor
`confusion, mistake and!or deceive the purchasing
`
`s’ mark and/or to
`
`mislead purchasers ofDcfendants‘ goods and services sold under
`rvices sold under the mark are sold by,
`general into believing that Defendants’ goods and se
`emanate from andfor 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 of and registration ofDefendants’ mark for the goods and
`7,592 and 2,947,591 is likely to cause or result in a
`
`services set forth in Registration Nos.?.,94
`n the trade resulting in damage and injury to Plaintiffs because
`le familiar with STEVENS’ mark are
`
`likelihood of confusion i
`
`Defendants’ mark is similar to STEVENS‘ mark. Peop
`likelyto purchase Defendants’ goods and services set forth inRegistration Nos. 2,947,592 and
`2,947,591 as goods being offered for sale and soldbyPlaintiffs aridfor licensed andfor endorsed
`by STEVENS. Any objection or fault foundwith Defendants’ goods and/or services sold under
`its mark would reflect poorly upon and seriously injure STEVENS’ reputation, which STEVENS
`
`has established for the goods
`
`11
`
`
`
`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 reliefis appropriate in this instance as the parties hereto have pursued
`ult in imminent and inevitable harm unless the issue is resolved by
`
`a course of conduct that will res
`
`declaratory relief.
`
`EARL and NOISY S.O.D., LLC claim exclusive use ofthe mark “Foghat", along
`
`t, because
`
`FogK.orp., LLC or previous entities ofwhich STEVENS was an equal shareholder has owned the
`mark“Fogl1at" and associated goodwill since 1993.
`48.
`For the last twelve (12) years STEVENS has continuously been performing under
`the name of“Foghat" and has been paid performance and design royalties as an owner ofthe
`
`name “Foghat.”
`
`49.
`
`Plaintiff STEVENS believes that FogKorp., LLC owns the name “Foghat" and
`
`associated goodw
`
`ill, and that he, as an equal shareholder ofthe corporation FogKorp., LLC
`therefore is entitled to at least 33-18% ofthe performance and the design rights ofand to the
`
`mark “Fogl-tat."
`
`50.
`
`Plaintifftherefore requests the following declarations:
`
`ll
`
`
`
`That the court declare that FogKo1p., LLC is the owner ofthe trademark “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,
`That Plaintiff STEVENS and PlaintiffAll»/1 be permitted to advertise and book live
`acts for STEVENS as “Foghat Original Founding Member Tony Stevens" or
`“Tony Stevens’ Foghat,” or some derivation
`
`“Foghat featuring Tony Stevens,” or
`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 other relief
`
`that this Court deems just and proper.
`
`
`
`
`
`public as to the source ofDefendants’ goods and services,
`ts has been willful and continuous, and has lead
`The conduct of Defendan
`
`62.
`
`consumers to believe that Defendants goods and
`
`sponsored, endorsed or approved by Plaintiffs.
`63.
`The conduct ofDefendants will cause and has caused the goodwill attach
`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
`Defendants‘ goods and
`
`the affiliation or association of the plaintiffs goods and services with
`services, all in violation of section 43(a) ofthe Lanham Act, 15 U.S.C. §l l2S(a).
`ate result of the willful and continuous conduct alleged
`
`65.
`
`As a direct and proxim
`
`herein, plaintiffs have been harmed in an am
`damages and costs and attorneys fees pursuant to the Lanham Act, 15 U.S.C.
`
`ount to be determined by the Court, including treble
`
`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 PEVBRETT, EARL and NOISY S.O.D., or their
`
`!i1
`
`
`
`agents, have contacted numerous organizati
`TONY STEVENS through Plaintiff, AIM to feature STEVENS using the
`olcings for “Foghat" shows
`
`mark “Foghat” and
`
`ons that have been and were under contract with
`
`featuring STEVENS.
`
`68.
`
`contract with AIM
`
`Defendants or their agents, have stated to the third parties under
`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
`
`69.
`
`Defendants or their agent
`
`“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
`
`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
`l and interfere with shows booked featuring TONY STEVENS using the name “Foghat,"
`05 date at the SP1 Bikefest in Texas.
`
`B31103
`
`most recently an upcoming October 15, 20
`
`
`
`7'3.
`
`As a direct result ofthis willful and continuous conduct, Plaintiff STEVENS has
`
`unless defendants and their agents are enjoined from the interference and attempts to exclusively
`
`use the service mark, “Foghat.”
`74.
`Defendants’ conduct is causing confusion, mistakes and deceiving consumers and
`
`the public with regard to the ownership ofthe mark and name of“Foghat."
`75.
`As a direct and proximate result of Defendants’ willful and continuous conduct,
`
`Plaintiffs have been harmed in an amount to be determined by this Court.
`
`Tortious Interference With Business Relationships
`(Against Earl and Noisy, S.0.D.)
`
`76.
`
`Plaintiffs re—allege paragraphs 1 though 75 as though the same wer
`
`e 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.
`
`ill
`
`
`
`WHEREFORE, Plaintiff STEVENS re
`
`favor of Plaintiffs as follows:
`
`S request an award of compensatory damages against
`
`defendants fo
`
`Plaintiffs AIM and STEVEN
`r 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
`y third parties in
`enjoined, directly and indirectly, from soliciting or contacting an
`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
`
`“Foghat.”
`
`That defendants be requi
`
`red to account to STEVENS for all income and benefits
`
`received by Defendants from the use of the trademark
`2005 and that Defendants be required to disclose all such income equal to the
`
`“Foghat" since January,
`
`ownership of STEVENS in and to the Mark.
`That defendants. pay STEVENS all damages suffered by Plaintiffs as a result of
`
`defendants’ violations of STEVENS rights.
`
`That defendants. pay STEVENS costs and all other damages for unfair
`
`competition and unfair trade practice.
`that this Petition be sustained, thatnjudgment be entered in favor ofPlaintiffs, and
`
`l
`
`
`
`that registration ofDefendants’ Mark under Registration No. 2,947,592 and
`
`2,947,591 be cancelled.
`
`treble damages and costs and attorneys fees pursuant to the Lanham Act, 15
`
`U.S.C. §1l17(a).
`
`punitive damages,
`
`any and all other relief that this Court deems appropriate
`
`g.
`
`h.
`
`i.
`
`Date: September 26, 2005
`
`By
`
`'
`
`
`~'
`we
`ff.-;«J
`;
`Scott Shepherd, Esquire
`SHEPHERD, FINICELMAN,
`
`MILLER & SHAH
`
`4400 No. Federal Highway
`Lighthouse Point, Florida 33064
`Te1.: (954) 943-9191
`
`LAWRENCE E. FELDMAN & ASSOC.
`
`Lawrence E. Feldrnan
`
`Roseann E. Weisblatt
`
`Steven G. Tyson
`
`432 Tulpehocken Avenue
`
`Elkins Park, PA 19027
`
`Tel. (215) 885-3302
`
`Fax: (215) 885-3303
`
`Attorneys for Plaintiffs
`
`99.
`
`._
`
`ill
`
`
`
`K»...
`
`K‘ "'
`
`shur-<.=~:r ARBGW HAFEF2 5: WEBER. :..L.fi
`'
`ATTOIIIHEYS AT LAW
`'
`111 INl18"f'1l7'TH"'I‘l'lEFT '
`-
`unu ‘romc. Ntw YORK loath
`
`N..L.l H. A-Rl'.D
`W
`P’
`I-1:’-‘Iv! I.-I'J1U|GAT
`.I. .nu-u-hm‘ HA..|*nr¢
`oconorwv H. wmen
`._:.—
`JONLH E. HItIt.uIIM.I-N
`John L DUCK
`
`.
`
`31
`
`""°°” "vfX"fi’XE%ma1LE N0. E61-4.98-2004
`.3m.EE
`
`Mr. Steve G1-een_
`do Artist; Jntnrnnfionsl lvianngamantz
`9850 Sanflalfuut Bou1avan_i, Suite 453
`Bocn Ratén. FL 33428
`
`BE:
`
`ME
`
`at»
`
`E (Ila
`
`-m'L.xo|-aim-«II: I311! Id!-m-in
`
`'I”¢‘|..I-I51)! Lu mm: in I-I6‘?!
`‘ALI-D hlulv‘ C-5|-IFDHNIA IN
`VIIUTSIVI IH-IAJL:
`
`DaarMr.Green '
`
`rsaprcseina HagarEarl and Nuiay S.O.D., Inc., the own»: oftha Mark
`for antcrtainmnnt services and liveperfurmancea by s. munical group. Plaasahe
`‘
`:1 the Estate urban-dd Paveratt c:xc.'lu.nively own
`
`It has just some to our c1:'.:=nt’s attention that you are uffaring the
`entertainment aervicaa of Tony Stevens as u “Foghnt" per:foI'ma11ce.
`
`Please be advised that mu: client has the aaccluaive fight-5 under the Lanham
`Act touse the Mark and am-variafiansofthemnrktn anyand aflentertainmant
`endeavors. Our c1]enJ: also has 5013 Ind aczchxnive xtanxiingto protect flair; famous
`Mm-1: against 9. likelihood ofdilution under the Federal Dilution Act. vritlwut regard‘
`to whether there is also a. likelihmd of customer mnflusinn.
`
`I-Iowcvex, given the fammand
`utilizing the Mark. them appear: to
`.
`som-ce at spouse:-ah.ip butvraen you or
`Mark in any ‘trademark manner on hi» "soiu" tour.
`ovmnmhill 111961335
`mam be zmzthar advised that Mr. Stcvenanews: had
`in or to thehefark at any time snincehn wassolalynperiormcu: in the group and merely
`an employee. may indication thatMr. Stevens is Fughat or performing as Fug}:-at is a
`willful and Jnaow-Ingly willful infringement of on: clienffa trademark rights.
`
`
`
`
`
`SHUKAT nsmok. 1i,..nt="1'-.:v=< 5: wgasn. L..L.P.
`
`Mr. Steve Green
`Februazy 2, 2005
`Page .2
`
`Demand is hereby mafia thartyonimrnediatcly cease and dc-srintfcomazayuae. of
`our cliamfa Mm.-Jr.
`
`Failura to provide us with this asxuranca. or rniluz-e to comply with the
`applicable law, may wellraault in the institution ofan action againstyou for fadcral
`trademark infringement wheroby our client will seek pralixninnry and paamnnent
`injuuctive 1-_u1ie1'L, In addition to the Io:-egoing. c.ms¢a ocf nation and claims for
`dnmag-es may also be brought ngninatyoxx. and any Uthnr individuals and entities
`act-ing’in boncezt with you in connection with any violations ofour client's legally
`pm1:ected'n'ghts.
`‘
`We bx.-uatauch accruno ofnufionianotmcusmryand tlmtyauwillheguidad
`accordingly to cease and duaist.
`
`'I'lu'.-.2 ietbef is written without prejudice to our client‘:
`of which are hereby expressly‘ reserved.
`
`tights and Iomseiiaa, all
`
` DM'W;i1p
`
`cc:
`
`Ln.raDi¢1:cyLcm's (Via fax: 815-531—7545
`Sonnensnhain Nath 8: Rosenthal (for the Estate ofDa1n'.c1 Pavarettj
`The Robinson Bowling Game: (#111fax: E18-6-£6-1018)
`Linda Axcello (via email)
`
`in
`
`
`
`CIVIL COVER SHEET
`IR" “"°">
`€154“
`er a ers as reuired by law, exec tzts
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`by local rules ofeourl. This form, approved by rheJudit:'taI Conference o he United Lines in September I97-'l,ts rcqutr I. -' _ h -
`the civil docket sheet.
`(SEE INSTRUCTIONS ON THE REVERSE 01-‘THE FOl'..M.)
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`(IN US. PLAINTIFF-_EiASES ONL
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