throbber
Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1222274
`
`Filing date:
`
`07/15/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`92079178
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Estate of Ruth C. Bisignano
`
`SCOTT WADDING
`SEASE & WADDING
`104 SW FOURTH STREET
`SUITE A
`DES MOINES, IA 50309
`UNITED STATES
`Primary email: swadding@seasewadding.com
`Secondary email(s): scott.wadding@gmail.com
`515-883-2222
`
`Other Motions/Submissions
`
`Scott Wadding
`
`swadding@seasewadding.com
`
`/Scott Wadding/
`
`07/15/2022
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`Ruthie Notice of District Court Pleadings.pdf(45829 bytes )
`1 - Trial Scheduling Order.pdf(203037 bytes )
`2 - Complaint and Answer.pdf(196449 bytes )
`3 - Motion to Dismiss Filings.pdf(375347 bytes )
`4 - Order Denying Motion to Dismiss.pdf(146766 bytes )
`5 - Summary Judgment Filings.pdf(1506607 bytes )
`6 Order re Summary Judgment.pdf(164622 bytes )
`7 Summary Judgment Reconsideration Filings.pdf(281025 bytes )
`8 Order Denying Motion to Reconsider Summary Judgment Order.pdf(40272
`bytes )
`9 Probate Motion to Dismiss Filings.pdf(715259 bytes )
`10 Probate Order Denying Exile Motion to Dismiss.pdf(165109 bytes )
`11 Probate Reconsideration of Motion to Dismiss Filings.pdf(152372 bytes )
`12 Probate Order Denying Reconsidertion of Motion to Dismiss.pdf(144221
`bytes )
`
`

`

`
`ESTATE OF RUTH C. BISIGNANO,
`by and through its administrator, Fred
`Huntsman,
`
`Petitioner,
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Cancellation No. 92079178
`
`
`
`PETITIONER’S NOTICE OF
`OPERATIVE PLEADINGS IN CIVIL
`ACTION
`
`
`Registration No. 6,292,054
`
`
`vs.
`
`EXILE BREWING COMPANY, LLC,
`
`Registrant.
`
`
`
`
`
`Pursuant to the Board’s June 13, 2022 correspondence, Petitioner, the Estate
`
`of Ruch C. Bisignano, provides true and correct copies of the following pleadings in
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`the district court proceedings1:
`
`1. Trial Scheduling Order
`
`2. Second Amended Complaint and Answer
`
`3. Motion to Dismiss Filings
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`4. Order Denying Motion to Dismiss
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`5. Summary Judgment Filings
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`6. Order Denying Motions for Summary Judgment
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`7. Summary Judgment Reconsideration Filings
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`8. Order Denying Motion to Reconsider Estate’s Motion to Reconsider Denial of
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`Summary Judgment
`
`
`On April 8, 2022, Registrant removed the underlying litigation to the United
`1
`States District Court for the Southern District of Iowa. See Estate of Ruth C.
`Bisignano et al. v. Exile Brewing Co., 4:22-cv-00101 (S.D. Ia.).
`
`
`
`1
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`

`

`9. Filings in In re Estate of Ruth C. Bisignano, Polk County No. ESPR 33730,
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`on Registrant’s Motion to Vacate, Dismiss, and Close
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`10. Order in In re Estate of Ruth C. Bisignano, Polk County No. ESPR 33730, on
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`Registrant’s Motion to Vacate, Dismiss, and Close denying Registrant’s
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`Motion to Vacate, Dismis and Close
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`11. Filings in In re Estate of Ruth C. Bisignano, Polk County No. ESPR 33730,
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`on Registrant’s Motion to Reconsider Denial of Motion Vacate, Dismiss, and
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`Close
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`12. Order in In re Estate of Ruth C. Bisignano, Polk County No. ESPR 33730,
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`Denying Registrant’s Motion to Reconsider
`
`Dated: July 15, 2022
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`Respectfully submitted,
`
`By:
`
`
`
`
`
`
`/s/ Scott M. Wadding
`Scott M. Wadding
`SEASE & WADDING
`104 Southwest Fourth Street, Suite A
`Des Moines, Iowa 50309
`Telephone: (515) 883-2222
`Facsimile:
`(515) 883-2233
`swadding@seasewadding.com
`
`Counsel for Petitioner
`THE ESTATE OF RUTH C.
`BISIGNANO
`
`
`
`
`2
`
`

`

`CERTIFICATE OF TRANSMISSION UNDER TBMP 110
`
`I HEREBY CERTIFY that the foregoing document and Attachments 1 through
`12 are being filed electronically through http://estta.uspto.gov via the Trademark
`Trial and Appeal Board Electronic Filing System on Tuesday, the 11th day of April,
`2022.
`
`Jordan E. Meggison-Decker
`BROWN WINICK LAW FIRM
`666 Grand Avenue
`Suite 2000, Ruan Center
`Des Moines, Iowa 50309
`Phone No.: 515-242-2400
`Fax No.: 515-242-2488
`Email: IP@brownwinick.com
`
`Nathan J. Borland
`BROWN WINICK LAW FIRM
`666 Grand Avenue
`Suite 2000, Ruan Center
`Des Moines, Iowa 50309
`Phone No.: 515-242-2400
`Fax No.: 515-242-2488
`Email: nate.borland@brownwinick.com
`
`
`/s/ Scott M. Wadding
`
`
`
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`3
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`

`

`CERTIFICATE OF SERVICE UNDER TBMP 113
`
`I HEREBY CERTIFY that a true and complete copy of the foregoing document
`and Attachments 1 through 12 have been served on the attorney/correspondent of
`record for the Registrant by sending said copy on July 15, 2022 by electronic mail, to:
`
`Jordan E. Meggison-Decker
`BROWN WINICK LAW FIRM
`666 Grand Avenue
`Suite 2000, Ruan Center
`Des Moines, Iowa 50309
`Phone No.: 515-242-2400
`Fax No.: 515-242-2488
`Email: IP@brownwinick.com
`
`Nathan J. Borland
`BROWN WINICK LAW FIRM
`666 Grand Avenue
`Suite 2000, Ruan Center
`Des Moines, Iowa 50309
`Phone No.: 515-242-2400
`Fax No.: 515-242-2488
`Email: nate.borland@brownwinick.com
`
`
`
`
`
`
`
`/s/ Scott M. Wadding
`
`
`
`
`
`4
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`

`

`Case 4:22-cv-00121-RGE-SBJ Document 37 Filed 06/01/22 Page 1 of 2
`
`UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF IOWA
`CENTRAL DIVISION
`
`
`
`
`
`
`ESTATE OF RUTH C. BISIGNANO, by
`and through its administrator, FRED
`HUNTSMAN; and ESTATE OF FRANK
`BISIGNANO, as successor in interest to
`RUTHIE BISIGNANO, by and through its
`administrator, FRED HUNTSMAN,
`
`
`Plaintiffs,
`
`v.
`
`
`EXILE BREWING COMPANY, LLC,
`
`
` *
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`*
`Defendant.
`___________________________________ * ___________________________________
`
`
`
`
`CIVIL NO. 4:22-cv-00121-RGE-SBJ
`
`
`
`
`
`
`
`
`
`
`
`
`SCHEDULING AND
`
`TRIAL SETTING ORDER
`
`
`
`A scheduling conference was conducted pursuant to Fed. R. Civ. P. 16 on June 1, 2022.
`
`Based on the discussions during the conference and the parties’ proposed schedule (Dkt. 35), it is
`
`hereby ordered:
`
`A Jury Trial will be set to begin on January 16, 2024, at 9:00 a.m., before United
`States District Judge Rebecca Goodgame Ebinger, in the United States Courthouse
`in Des Moines, Iowa. The trial will be scheduled for 9 days.
`
`A Final Pretrial Conference will be held on December 6, 2023, at 9:00 a.m., in the
`United States Courthouse in Des Moines, Iowa, before United States District Judge
`Rebecca Goodgame Ebinger.
`
`The parties must exchange initial disclosures by July 1, 2022.
`
`Motions to add parties must be filed by September 26, 2022.
`
`Motions for leave to amend pleadings must be filed by September 26, 2022.
`
`Plaintiffs must designate expert witnesses and disclose their written reports by
`October 26, 2022.
`
`Defendant must designate expert witnesses and disclose their written reports by
`January 13, 2023.
`
`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`

`

`Case 4:22-cv-00121-RGE-SBJ Document 37 Filed 06/01/22 Page 2 of 2
`
`8.
`
`9.
`
`Plaintiffs must designate rebuttal expert witnesses and disclose their written reports
`by February 14, 2023.
`
`Discovery must be completed by March 27, 2023. Written discovery shall be
`propounded so that the time for response is not later than this date.
`
`10.
`
`Dispositive motions and Daubert motions under Fed. R. Evid. 702 must be filed by
`April 27, 2023.
`
`
`
`
`
`
`
`
`
`IT IS SO ORDERED.
`
`Dated June 1, 2022.
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`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 1 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`
`
`
`IN THE IOWA DISTRICT COURT FOR POLK COUNTY
`
`
`ESTATE of RUTH C. BISIGNANO, by
`and through its administrator, FRED
`HUNTSMAN; and ESTATE of FRANK
`BISIGNANO, as successor in interest to
`RUTHIE BISIGNANO, by and through
`its administrator, FRED HUNTSMAN,
`
`
`Plaintiffs,
`
`
`v.
`
`EXILE BREWING COMPANY, LLC,
`
` Defendant.
`
`
`
`
`CASE NO. CVCV060249
`
`
`SECOND AMENDED PETITION FOR:
`
`1) APPROPRIATION OF NAME
`AND/OR LIKENESS
`
`2) RIGHT OF PUBLICITY
`
`
`3) MISAPPROPRIATION OF
`TRADE VALUES
`
`
`4) CONSUMER FRAUD
`
`5) FALSE AND DECEPTIVE
`MARKETING UNDER IOWA
`COMMON LAW
`
`6) FEDERAL DECEPTIVE
`MARKETING AND FALSE
`DESIGNATION OF ORIGIN,
`15 U.S.C. § 1125 (§ 43 OF THE
`LANHAM ACT)
`
`JURY DEMANDED
`
`
`
`
`
`
`
`
`
`COME NOW, Plaintiffs, the Estate of Ruth C. Bisignano and the Estate of
`
`Frank Bisignano, and for their causes of action against Defendant Exile Brewing
`
`Company, LLC, state as follows:
`
`
`
`
`
`
`
`1
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 2 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`PRELIMINARY STATEMENT
`
`1.
`
`The following causes of action arise from the Defendant’s unjustified and
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`unpermitted knowing, willful, and intentional misappropriation of the interests and
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`rights in the name, identity, persona, likeness, and symbol of the famous Des Moines
`
`bartender and tavern operator Ruthie Bisignano.
`
`2.
`
`This case seeks to redress that misappropriation under common law and
`
`statutory law on the bases of the right of publicity, misappropriation of trade values,
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`consumer fraud, false and deceptive marketing, and false designation of origin.
`
`JURISDICTION AND VENUE
`
`3.
`
`The Iowa District Court in and for Polk County has proper jurisdiction
`
`over the parties pursuant to Iowa Code § 602.6101.
`
`4.
`
`5.
`
`The amount in controversy exceeds the jurisdictional requirements.
`
`Venue for filing is appropriate in the Iowa District Court in and for Polk
`
`County under Iowa Code § 616.14.
`
`PARTIES AND PERTINENT INDIVIDUALS
`
`6.
`
`Ruth C. Bisignano (“Ruthie” or “Ruthie Bisignano”) is deceased and this
`
`action is brought by the administrator of her estate, Fred Huntsman, a resident of
`
`Seattle, Washington. Ruthie died intestate, with her interest in claims passing to
`
`her husband, Frank Bisignano.
`
`7.
`
`Frank Bisignano is deceased and this action is brought by the
`
`administrator of his estate, Fred Huntsman, a resident of Seattle, Washington.
`
`
`
`2
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 3 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`8.
`
`The Estate of Ruth C. Bisignano and the Estate of Frank Bisignano
`
`(collectively “Plaintiffs”) are the exclusive owners of those rights in and to Ruthie
`
`Bisignano’s identity, persona, name, and likeness arising under common law and/or
`
`statute.
`
`9.
`
`Pursuant to the Code of Iowa, Plaintiffs have a right to recover for losses
`
`due to the wrongful appropriation and use of Ruthie Bisignano’s name, likeness, and
`
`persona. See Iowa Code §§ 611.20 and .22.
`
`10. Defendant Exile Brewing Company, LLC (Exile) is a limited liability
`
`company organized and existing under the laws of the State of Iowa with a registered
`
`home office of 1514 Walnut Street, Des Moines, Polk County, Iowa 50309.
`
`11. At all times material, Defendant was engaged in the production,
`
`promotion, advertising, selling, and commercial distribution of its flagship beer,
`
`“Ruthie,” named after Ruthie Bisignano.
`
`12. At all times material, Defendant was engaged in the production,
`
`promotion, advertising, selling, and commercial distribution of merchandise,
`
`including but not limited to apparel, tap handles, and posters, featuring or for the
`
`“Ruthie” beer.
`
`13. At all times material, Defendant’s production, promotion, advertising,
`
`selling, and commercial distribution of or for the “Ruthie” beer featured Ruthie
`
`Bisignano’s identity or persona.
`
`
`
`
`
`
`
`3
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 4 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`STATEMENT OF THE CLAIM
`
`14. Ceva Ruth-Lucille Bisignano (aka Ruth C. Bisignano) was a famous
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`bartender from Des Moines who went by the professional name of Ruthie.
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`15. From 1950 to 1971, Ruthie owned and operated a bar called Ruthie’s
`
`Lounge in Des Moines.
`
`16. Ruthie became famous, statewide, nationally, and internationally, for
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`her bar trick of filling two pint glasses while balancing them on her breasts and
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`serving them without ever touching them with her hands.
`
`17. Ruthie’s serving skill attracted significant numbers of patrons who
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`sometimes traveled across the country for the opportunity to see her in person.
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`18. For example, Cecil B. DeMille, the most commercially successful
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`producer-director in Hollywood history, came to see her twice.
`
`19. Ruthie was featured in several articles along with photos of her
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`performing her beer-balancing trick.
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`20.
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`Signs on her tavern’s walls instructed patrons to “Ask for the well
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`balanced beer.”1
`
`21. Due to her fame and notoriety, Ruthie was able to charge almost three
`
`times as much for drinks at her bar than elsewhere in town.
`
`22. Ruthie was also famous for being charged and acquitted of indecency—
`
`as a result of performing her serving trick—multiple times in 1953.
`
`
`Indecent Show!,
`Times
`Charleville
`1
`https://trove.nla.gov.au/newspaper/article/77003067.
`
`(Aug.
`
`6,
`
`1953),
`
`
`
`4
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 5 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
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`23. The story of Ruthie, her serving trick, and the repeated charges made
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`national and international news.
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`24. Another aspect to her famous persona was her reputation as a sassy,
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`tough, quick witted, independent, and confident business operator, bartender, and
`
`woman.
`
`25.
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`In 1971, Ruthie sold Ruthie’s Lounge and closed the door on her
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`bartending and tavern-operating days.
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`26. Thereafter, she lived a relatively quiet life with her husband, Frank
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`Bisignano, until her death in 1993.
`
`27. Nevertheless, Ruthie remained famous for her beer-pouring talent after
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`she retired from the tavern business and even after her death.
`
`28. Exile is a brewery and brewpub restaurant in Des Moines, Iowa.
`
`29. At all times material, Exile has featured and continues to feature a
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`flagship beer called “Ruthie,” which is a reference to Ruthie Bisignano.
`
`30. Exile heavily relies on Ruthie’s persona, identity, and name in its
`
`advertising, marketing, and promoting of the “Ruthie” beer.
`
`31. For example, Exile describes the “Ruthie” beer as “[t]he world’s best
`
`balanced beer,”2 a slogan drawn from Bisignano’s balancing trick.
`
`32.
`
`Similarly, Exile’s initial label and image for the “Ruthie” beer featured
`
`a catchphrase of “Incredible Balance.”
`
`
`2 Ruthie, Exile Brewing Co., https://exilebrewing.com/beer_list/ruthie/ (last
`visited Mar. 17, 2020).
`
`
`
`5
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 6 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`33. Additionally, Exile’s labels and advertisements for the “Ruthie” beer
`
`feature images of Ruthie’s likeness, engaging in her famous beer-pouring trick, in
`
`conjunction with her professional name, Ruthie.
`
`34. A few years after Exile began selling the “Ruthie” beer, it redesigned the
`
`label and imagery for the beer.
`
`35. The image in the redesigned label drew on Ruthie’s reputation and
`
`persona of a confident, independent, powerful female bartender.
`
`36. Beyond the “Ruthie” beer, Exile sells other merchandise, including but
`
`not limited to, apparel and beer tap handles, that feature Ruthie’s likeness
`
`performing her signature move along with her professional name.
`
`37. Exile regularly uses Ruthie’s persona, identity, and name—along with
`
`images of Bisignano, in particular, the image of Ruthie that Exile has associated with
`
`the beer—to promote its business, goods, services, and own name, including but not
`
`limited to the following examples:
`
`a. Since 2014, Exile has organized and promoted its annual “Ruthie 10
`
`kilometer run” event.
`
`b. On its social media pages, Exile has, inter alia, used the hashtag
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`“CheerstoRuthie” and the caption “Ruthie o’clock” in its posts promoting
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`its business, brewpub, and product; has reposted and shared videos,
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`interviews, and articles discussing Exile, its business, the “Ruthie” beer,
`
`and Bisignano’s story that inspired the beer’s name and associated
`
`imagery; has encouraged users to celebrate Ruthie’s birthday by
`
`
`
`6
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 7 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`drinking a beer in her honor; and, most recently, has suggested users
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`could imbibe a few “Ruthie” beers during the time period they are at
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`home as a result of social distancing practices related to the spread of
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`the novel coronavirus.
`
`c. In 2018, Exile began its “Ruthie Breast Cancer Campaign.”
`
`i. During the month of October, Exile uses pink “Ruthie” beer labels
`
`and 6-pack carriers, sells pink “Ruthie” shirts at its brewpub with
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`a portion of the proceeds going to Susan G. Komen Greater Iowa,
`
`and donates $1.00 to Susan G. Komen Greater Iowa for every case
`
`of “Ruthie” beer sold.
`
`ii. Exile benefits from the use of Ruthie’s name, persona, and
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`identity in connection with the campaign, including, inter alia,
`
`profits that are not donated from the sales of the “Ruthie” beer
`
`and shirts, the goodwill generated for the business by engaging in
`
`and advertising its philanthropic endeavor, and tax benefits from
`
`making donations.
`
`38. At all times material, Exile has induced and continues to induce third
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`parties—such as distributors and retailers—to use, without Plaintiffs’ permission,
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`Ruthie’s image, likeness, and/or other indicia of identity in connection with the
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`marketing and promotion of goods and services bearing Ruthie’s image, likeness, and
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`other indicia of identity.
`
`
`
`7
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 8 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
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`39. Exile has incurred substantial benefits from its appropriation and use
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`of Ruthie’s name, identity, likeness, and persona.
`
`a. The “Ruthie” beer has become Exile’s best-selling beer and comprises
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`more than half of Exile’s annual production.
`
`b. Exile sells more than 7,000 barrels of “Ruthie” beer per year, making
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`the “Ruthie” beer the best-selling Iowa-made beer in Iowa.
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`c. According to a 2015 article in The Des Moines Register, one source
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`indicated the “Ruthie” beer was fifth biggest seller in the country.3
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`40. Exile’s appropriation of Ruthie’s name, identity, and persona has
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`substantially helped it expand its market and customer-base as well as promote its
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`business.
`
`a. For example, the “Ruthie” beer was named the official craft beer of the
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`2019 Iowa State Fair.
`
`b. And the “Ruthie” beer was recently named the official beer of the Iowa
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`Wild hockey team.
`
`c. The “Ruthie” beer is readily available on tap in bars and restaurants
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`across the state of Iowa.
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`i. The taps for which feature a figurine of Ruthie and were designed,
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`produced, distributed, and sold for Exile’s benefit.
`
`
`
`3 Exile’s Ruthie Lager Is a Big Hit, Des Moines Reg. (Apr. 1, 2015),
`https://www.desmoinesregister.com/story/entertainment/dining/2015/04/01/exile-
`brewing-ruthie-craft-beer-lager/70795996/.
`
`
`
`8
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 9 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
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`ii. Additionally, Exile has capitalized on Ruthie’s name, identity,
`
`and persona in marketing the “Ruthie” beer, oftentimes relying
`
`on only Ruthie’s name, identity, and persona to promote its
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`product when other brands promote their beer products by
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`describing their taste, finish, aroma, and calory-count.
`
`41. The “Ruthie” beer has become famous throughout Iowa and the United
`
`States because of its association with the unique and compelling persona and identity
`
`of Ruthie.
`
`a. The “Ruthie” beer has been featured in articles in national publications,
`
`including The New Yorker and on online forums with national
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`readership, such as Vice.com and Brewbound.com.
`
`b. These articles focus more on the inspiration for Exile’s product—
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`Ruthie’s identity and persona—than on the characteristics of the actual
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`beer.
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`42. On the whole, in its marketing, promotion, and advertisement for the
`
`“Ruthie” beer, Exile relies significantly more on its appropriation of Ruthie’s name,
`
`identity, and persona than on the particular characteristics of the beer as a beverage.
`
`COUNT I
`APPROPRIATION OF NAME AND/OR LIKENESS
`
`43. Plaintiffs incorporate all paragraphs above as though fully set forth
`
`herein.
`
`
`
`9
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`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 10 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
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`44. At all times material, Exile has used and continues to use Ruthie’s name
`
`and/or likeness for its own purposes and benefits, including but not limited to,
`
`advertising, marketing, selling, and promoting its goods and/or services.
`
`45.
`
`In so doing, Exile has sought to obtain for itself the values and benefits
`
`of Ruthie’s name and/or likeness, which include but are not limited to, the reputation,
`
`prestige, social and/or commercial standing, and/or public interest of her name and/or
`
`likeness.
`
`46. Exile has obtained and continues to obtain for itself the values and
`
`benefits of Ruthie’s name and/or likeness.
`
`47. Exile has neither sought nor received permission to appropriate Ruthie’s
`
`name and/or likeness.
`
`48. Exile’s unlawful appropriation has caused Plaintiffs to suffer damages,
`
`including but not limited to, loss of the exclusive use of the values and benefits of
`
`Ruthie’s name and/or likeness.
`
`49. Exile knowingly and willfully used and continues to use, without
`
`Plaintiffs’ permission, Ruthie’s name and likeness for its purposes and benefits and
`
`in reckless and wanton disregard for Plaintiffs’ rights and interests.
`
`50. Accordingly, in addition to the actual damages herein alleged, Plaintiffs
`
`are entitled to an award of exemplary damages because of Exile’s conduct.
`
`51. Further, unless Exile in enjoined from further appropriation of Ruthie’s
`
`name and/or likeness, Plaintiffs will suffer further irreparable injury.
`
`
`
`10
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 11 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
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`WHEREFORE, Plaintiffs respectfully request this Court enter judgment
`
`against Exile in an amount that will fully and fairly compensate Plaintiffs for the
`
`damages they have sustained, disgorgement of pecuniary gain resulting from the
`
`appropriation, exemplary damages, and interest as provided by law; assess the costs
`
`of this action, including attorney fees and litigation expenses, to Exile; enjoin Exile
`
`from using Ruthie’s image, likeness, and other indicia of identity for any purpose
`
`without Plaintiffs’ prior written consent; and order such other relief as this Court
`
`may deem just and proper.
`
`COUNT II
`RIGHT OF PUBLICITY
`
`
`
`52. Plaintiffs incorporate all paragraphs above as though fully set forth
`
`herein.
`
`53. At all times material, Exile, without permission, has used and continues
`
`to use Ruthie’s name, likeness, and other indicia of identity in advertisements,
`
`promotions, and other marketing medium, inter alia, to promote its brewery,
`
`brewpub restaurant, and beer product.
`
`54. Ruthie is identifiable from Exile’s individual and/or combined use of her
`
`name, likeness, and/or indicia of identity.
`
`55. Exile has gained great pecuniary benefit from the unauthorized use of
`
`Ruthie’s name, likeness, and other indicia of identity to advertise, promote, and
`
`market its business, products, and services.
`
`
`
`11
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 12 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`56. By the unauthorized use of Ruthie’s name, likeness, and other indicia of
`
`identity to advertise, promote, and market its business, products, and services, Exile
`
`invaded Plaintiffs’ interest in Ruthie’s right of publicity.
`
`57. As a result of Exile’s infringement on Plaintiffs’ interest in Ruthie’s right
`
`of publicity, Plaintiffs have suffered damages including but not limited to loss of
`
`payment of any licensing opportunities for Exile’s advertisements and promotions
`
`that use Ruthie’s name, likeness, and/or other indicia of identity.
`
`58. As a result of Exile’s infringement on Plaintiffs’ interest in Ruthie’s right
`
`of publicity, Exile has obtained significant pecuniary gain.
`
`59. Exile knowingly and willfully used and continues to use, without
`
`Plaintiffs’ permission, Ruthie’s name, likeness, and/or other indicia of identity to its
`
`benefit in reckless and wanton disregard for Plaintiffs’ rights and interests.
`
`60. Accordingly, in addition to the actual damages herein alleged, Plaintiffs
`
`are entitled to an award of exemplary damages because of Exile’s conduct.
`
`61. Further, unless Exile in enjoined from further use and publication of
`
`Ruthie’s name, likeness, and other indicia of identity, Plaintiffs will suffer further
`
`irreparable injury.
`
`WHEREFORE, Plaintiffs respectfully request this Court enter judgment
`
`against Exile in an amount that will fully and fairly compensate Plaintiffs for the
`
`damages they have sustained, disgorgement of pecuniary gain resulting from the
`
`appropriation, exemplary damages, and interest as provided by law; assess the costs
`
`of this action, including attorney fees and litigation expenses, to Exile; enjoin Exile
`
`
`
`12
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 13 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`from using Ruthie’s image, likeness, and other indicia of identity for any purpose
`
`without Plaintiffs’ prior written consent; and order such other relief as this Court
`
`may deem just and proper.
`
`COUNT III
`MISAPPROPRIATION OF TRADE VALUES
`
`62. Plaintiffs incorporate all paragraphs above as though fully set forth
`
`herein.
`
`63. There are intangible trade values in Ruthie’s right of publicity.
`
`64. Plaintiffs, as the owners of that right of publicity, are entitled to the
`
`exclusive use, control, and benefit from the right’s intangible trade values.
`
`65. As detailed above, Exile, without justification, infringed on Plaintiffs’
`
`interests in that right of publicity.
`
`66.
`
`In so doing, Exile misappropriated the intangible trade values in that
`
`right.
`
`67. As a result of Exile’s misappropriation of trade values, Exile has
`
`obtained significant pecuniary gain.
`
`68. Exile’s misappropriation has caused and continues to cause Plaintiffs to
`
`suffer damages, including but not limited to loss of payment of any licensing,
`
`endorsement, and/or sponsorship opportunities as well as expenditures made to
`
`prevent, correct, and/or mitigate Exile’s deception.
`
`69. Exile knowingly and willfully misappropriated and continues to
`
`misappropriate Plaintiffs’ interests in Ruthie’s right of publicity and in reckless and
`
`wanton disregard for Plaintiffs’ rights and interests.
`
`
`
`13
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 14 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`70. Accordingly, in addition to the actual damages herein alleged, Plaintiffs
`
`are entitled to an award of exemplary damages because of Exile’s conduct.
`
`71. Further, unless Exile in enjoined from further misappropriation,
`
`Plaintiffs will suffer further irreparable injury.
`
`WHEREFORE, Plaintiffs respectfully request this Court enter judgment
`
`against Exile in an amount that will fully and fairly compensate Plaintiffs for the
`
`damages they have sustained, disgorgement of pecuniary gain resulting from the
`
`appropriation, exemplary damages, and interest as provided by law; assess the costs
`
`of this action, including attorney fees and litigation expenses, to Exile; enjoin Exile
`
`from misappropriating Plaintiffs’ interests; and order such other relief as this Court
`
`may deem just and proper.
`
`COUNT IV
`CONSUMER FRAUD
`
`72. Plaintiffs incorporate all paragraphs above as though fully set forth
`
`herein.
`
`73. Exile has used and continues to use Ruthie’s name, likeness, and/or
`
`other indicia of identity in connection with the marketing and promotion of its goods
`
`and services.
`
`74.
`
`In doing so, Exile has and continues to falsely represent that Ruthie
`
`and/or her successors in interest endorse, sponsor, and/or approve Exile’s goods
`
`and/or services.
`
`75. Neither Ruthie nor her successors in interest have agreed to endorse,
`
`sponsor, and/or approve Exile’s goods and/or services.
`
`
`
`14
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 15 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`76. Exile’s false representations have been and are made with the intent to
`
`deceive others in connection with the advertisement and/or sale of Exile’s consumer
`
`merchandise, including but not limited to, the “Ruthie” beer.
`
`77. Accordingly, Exile has engaged in prohibited practices and acts under
`
`Iowa Code section 714H.3.
`
`78. Plaintiffs are consumers who have suffered an ascertainable loss of
`
`money and/or property, including but not limited to, in the form of their interests in
`
`the right to privacy and right of publicity.
`
`79. Exile’s willfully and knowingly has and continues to make the above-
`
`described false representations and in reckless and wanton disregard of Plaintiffs’
`
`interests and rights.
`
`80. Accordingly, in addition to the actual damages herein alleged, Plaintiffs
`
`are entitled to an award of exemplary damages because of Exile’s conduct.
`
`81. Further, unless Exile in enjoined from continuing to make these false
`
`representations that deceive consumers, Plaintiffs will suffer further irreparable
`
`injury.
`
`WHEREFORE, Plaintiffs respectfully request this Court enter judgment
`
`against Exile in an amount that will fully and fairly compensate Plaintiffs for the
`
`damages they have sustained, disgorgement of pecuniary gain resulting from the
`
`consumer fraud, treble damages pursuant to Iowa Code section 714H.5(4), and
`
`interest as provided by law; assess the costs of this action, including attorney fees
`
`and litigation expenses, to Exile, pursuant to Iowa Code section 714H.5(2); enjoin
`
`
`
`15
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 16 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`Exile from falsely suggesting and representing Ruthie or her successors in interest
`
`are connected with Exile’s goods or services or endorse, sponsor, and/or approve
`
`Exile’s goods or services; and order such other relief as this Court may deem just and
`
`proper.
`
`COUNT V
`DECEPTIVE MARKETING UNDER IOWA COMMON LAW
`
`82. Plaintiffs incorporate all paragraphs above as though fully set forth
`
`herein.
`
`83. Exile has used and continues to use Ruthie’s name, likeness, and/or
`
`other indicia of identity in connection with the marketing and promotion of its goods
`
`and services.
`
`84.
`
`In so doing, Exile has and continues to falsely suggest and represent
`
`that Ruthie and/or her successors in interest endorse, sponsor, approve, or are
`
`connected to Exile’s goods and/or services.
`
`85. Neither Ruthie nor her successors in interest have any connection to
`
`Exile’s goods and/or services or have agreed to endorse, sponsor, or approve Exile’s
`
`goods or services.
`
`86. Exile’s false representations are to Plaintiffs’ commercial detriment
`
`because:
`
`a. They are likely to deceive and/or mislead prospective purchasers and
`
`affect their conduct, and
`
`
`
`16
`
`

`

`Case 4:22-cv-00121-RGE-SBJ Document 1-5 Filed 04/08/22 Page 17 of 20
`E-FILED 2022 FEB 11 12:11 PM POLK - CLERK OF DISTRICT COURT
`
`b. They have caused and/or are likely to cause harm to Plaintiffs’ pecuniary
`
`interests, including but not limited to, Plaintiffs’ interests in licensing,
`
`endorsement, and sponsorship opportunities.
`
`87. As a result of Exile’s false representations, Plaintiffs have suffered
`
`damages including, but not limited to, loss of payment for licensing, endorsement,
`
`and/or sponsorship opportunities as well as expenditures made to prevent, correct,
`
`and/or mitigate the confusion or deception of prospective purchasers.
`
`88. Exile knowingly and willfully has and continues to make the above-
`
`described false representations and in reckless and wanton disregard of Plaintiffs’
`
`interests and rights.
`
`89. According, in addition to the actual damages herein alleged, Plaintiffs
`
`are entitled to an award of exemplary damages because of Exile’s conduct.
`
`90. Further, unless Exile in enjoined from continuing to ma

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