. .... ~ ; :;l 8 P ~ ... 0 90: LO o.-co o o ~ ...J<;t O ~ L l . . o ( O Q 0 LO z . - ;:J0O:( ) o : o ~ ~ ~ ~ P::::J;tLl.. ~ : : > O • g <i 0 1-1 u O zw- co a:ZO ~ - 0 . I ~ ( O ~ 0 N ~ « L O 8 1- ... zO ~ c o « - ~ O ( / ) ( ) co J w j ; :;l 00 z ... r . - . J ~ . I j r ;1 g; A c J) 0 - : : 0 1 KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP JENNIFER J. McGRATH (SBN 211388) 2 [email protected]808 Wilshire Boulevard, 3 f Floor 3 Santa Monica, Califor nia 904 01 ClE FJ/.Etj Telephone: 310.566.9800 RK u.s. D STRICTCOUAT 4 FacsImile: 310.566.9850 5 Attorneys for Plai ntiff ELVH, INC. OCT 02013 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 9 EL VH, INC., a California corpriraev J a ~ 7 5 ~ ~ ~ W 0 11 Plaintiff, COMPLA OR: 12 vs. 1. INFRINGEMENT O F REGISTERED TRADEMARK 13 KELL Y V AN HALEN, an individual, ~ E C T I O N 32qj O F THE ANHAMAC ; 14 Defendant. 2. TRADEMARK DILUTION 15 ~ E C T I O N 4 3 ~ O F THE ANHAMAC 16 3 FALSE DESIGNATION 17 ~ E C T I O N 43W O F THE ANHAMAC ; 18 4. COMMON LAW TRADEMARK 19 INFRINGEMENT; - - ~ O 5. UNFAIR COMPETITION C A L . 12 1 BUS. & PROF. CODE § 17 00); 6. COMMON LAW UNFAIR COMPETITION; 7. CALIFORNIA STATE TRADEMARK DILUTION \CAL. BUS. & PROF. CODE § 4247); 8. DECLARATO RY ACTION 26 27 DEMAND FOR TRIAL BY JURY 28 99911 00009/190851 1
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COMPLAINT
EL VH, Inc. (hereinafter "Plainti ff' ), by and through its undersigned counsel
4 for its Complaint against Kelly Van Halen (hereinafter "Defendant") states the5 following allegations made on belief that the same are likely to be proven after
6 further investigation and discovery.
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NATURE OF THE ACTION
This is an action for trademark infringement, trademark dilution, false
designation of origin and unfair competition arising out ofDefendant 's unauthorize
and confusingly similar use of Plaintiffs federally registered VAN HALEN
trademarks and service marks as part ofDefendant's "Kelly Van Halen" mark.
Plaintiff also seeks a declaratory judgment that Defendant's eventual use ofKelly
Van Halen for construction services and interior design services would be an
infringing use and therefore subject to injunctive relief Plaintiff seeks in this case .
JURISDICTION AND VENUE
1. Jurisdiction of the Court is invoked under 28 USC §1121 and § 1338(a
as an action arising under Acts ofCongress relating to trademarks, namely, the
Lanham Act, 15 USC § 1051 et seq. This Court has pendent jurisdiction over claim
arising under state law pursuant to 28 USC §1338(b) and 28 §USC 1367(a).
2. Venue is proper in this district pursuant to 28 USC § 1391(b) and (c),
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because this is the judicial district in which the Defendant resides and a substantialpart of the events giving rise to Plaintiffs claims have occurred and are continuing
25 to occur in the District.
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999\1.00009/\9085 L \
THE PARTIES
Plaintiff is a corporation organized and doing business under the laws
2 e. Design of specialty interior and exterior environment settings;
3 Interior design services; Interior design services including space planning, furnitur
4 selection, material and surface selection in Int 'l Class 42 (herein "interior design
5 services").
6 14. Plaintiff filed with the PTa's Trademark Trial and Appeal Board an
7 opposition (Opposition No. 91195961) against both KELLY VAN HALEN
8 applications but not against Defendant's KVH mark for Int'l Class 24 and Class 25
9 items, which has since registered.
10 15. The basis of the opposition is the same arguments found in this11 Complaint and the Opposition proceeding is currently pending before the Tradema
12 Trial and Appeal Board.
13 16. Defendant's mark KELLY VAN HALEN is confusingly similar to
14 Plaintiffs VAN HALEN Marks in sound, appearance and commercial impression.
15 17. Defendant's goods are apparel, blankets and other fashion accessories
16 They are either identical or closely related to the goods sold by Plaintiff or represe
17 a natural zone of expansion for Plaintiff and such goods would travel and be
18 promoted through the same channels of trade for sale to, and use by, the same class
19 of purchasers.
20 18. Defendant 's use of the mark KELLY VAN HALEN in connection wi
21 her goods is likely to cause confusion, mistake or deception as to the source of
22 origin of Defendant's goods in that the public, the trade and others are likely to
23 believe that Plaintiffs goods are: (a) the same as Plaintiffs; or (b) provided by,
24 sponsored by, approved by, licensed by, affiliated with or in some other way
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1 has caused confusion as to the source ofDefendant's products, in that customers w
2 be likely to associate or have associated such products as originating with Plaintiff,
3 all to the detriment of Plaintiff.
4 33. By reason ofDefendant's actions alleged herein, Plaintiff has suffered
5 and will continue to suffer, irreparable injury to its rights, and has suffered, and wi
6 continue to suffer, substantial loss of goodwill and loss in the value ofPlaintiffs
7 trademarks, unless and until Defendant is enjoined from continuing her wrongful
8 acts.
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34. By reason ofDefendant's actions alleged herein, Plaintiff has been
damaged in an amount not presently ascertained, and such damage will continue anincrease unless and until Defendant is enjoined from continuing her wrongful acts.
FIFTH CAUSE OF ACTION
(Unfair Competition)
Cal. Bus. & Prof. Code § 17200, et seq.
35. Plaintiff repeats and realleges each and every allegation in the
foregoing paragraphs as fully set forth herein.
36. Defendant's actions complained of herein are unlawful and/or
fraudulent business acts or practices, constituting unfair competition in violation of
California Business and Professions Code § 17200, et seq.
37. As a direct, proximate, and foreseeable result ofDefendant's wrongfu
conduct as alleged above, Plaintiff has suffered injury and is entitled to relief,
including disgorgement of all revenues, earnings, profits, compensation, and
benefits obtained by Defendant as a result of her unlawful and/or fraudulent
24 business acts or practices.
25 38. Defendant's unlawful and/or fraudulent business acts or practices
26 described above are a serious and continuing threat to Plaintiff, and ifDefendant is
27 allowed to continue her wrongful conduct, Plaintiff will suffer further immediate
28 and irreparable injury, loss, and damage. In the absence of preliminary and
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DEMAND FOR TRIAL BY JURY
Plaintiffs hereby demand trial by jury on all issues and causes of action triab
by jury.
DATED: October \0 ,2013-
KINSELLA WEITZMAN ISER
KUMP & ALDISERT LLP
By: ~ " , , ~ , Q { \ \ ~ . @ , . )J nifer J. cGrath