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Home , The Fab Four (tribute)

Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 1 of 11

1 Mark Borghese, Esq. Nevada Bar No. 6231 2 [email protected] Ryan Gile, Esq. 3 Nevada Bar No. 8807 [email protected] 4 WEIDE & MILLER, LTD. 7251 W. Lake Mead Blvd., Suite 530 5 Las Vegas, NV 89128 Tel. (702) 382-4804 6 Fax (702) 382-4805

7 Attorneys for Plaintiff

8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 THE FAB FOUR CORP., a Nevada corporation, ) Case No.: 2:10-cv-01105 11 ) Plaintiff, ) COMPLAINT 12 ) vs. ) 13 ) THE FAB 4, LLC, a Colorado limited liability ) 14 company; and DOES 1 through 10, ) ) JURY DEMAND 15 Defendants. ) ) 16

17 Plaintiff THE FAB FOUR CORP., a Nevada corporation (hereinafter, “Plaintiff”), 18 alleges against Defendant THE FAB 4, LLC, a Colorado limited liability company, and DOES 1 19 through 10 (together the “Defendants”), as follows:

20 JURISDICTION AND VENUE 21 1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 22 §§ 1331 and 1338(a). 23 2. This Court has personal jurisdiction over Defendant THE FAB 4, LLC because 24 the Defendant operates a website on the Internet that is accessible to residents of the State of 25 Nevada and has committed intentional acts, expressly aimed at Nevada, causing harm, the brunt 26 of which is suffered - and which the Defendant knows is likely to be suffered - in Nevada. 27 3. Venue is proper in this Judicial District pursuant to 28 U.S.C. §§ 1391(b) and 28 1391(c). WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 1 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 2 of 11

1 THE PARTIES 2 4. Plaintiff THE FAB FOUR CORP. is a Nevada corporation with its principal 3 place of business in Westminster, California 4 5. Upon information and belief, Defendant THE FAB 4, LLC, is a Colorado limited 5 liability company having its principal place of business in Mead, Colorado. 6 6. The true names and capacities of the defendants named herein as DOES 1 7 through 10 are other parties or entities who are not currently known to Plaintiff which are liable 8 to Plaintiff for the damages complained of herein. Therefore Plaintiff sues said defendants, 9 whether individuals, corporations, or another type of entity by these fictitious names. Plaintiff 10 will seek leave of this court to amend its complaint to include the actual names of said 11 defendants when their identities are determined during the course of this litigation. Plaintiff 12 incorporates by reference herein all paragraphs of this complaint against said unknown 13 defendants.

14 NATURE OF THE CASE 15 7. This is an action for registered trademark infringement, false designation of 16 origin, and unfair competition under the Trademark Act of 1946, as amended (The Lanham Act, 17 15 U.S.C. §1114(1) and 15 U.S.C. §1125(a)).

18 ALLEGATIONS COMMON TO ALL CLAIMS 19 Plaintiff’s Rights to THE FAB FOUR 20 8. Since at least as early as 1996, Plaintiff (or its predecessors-in-interest) has been 21 in the business of producing and performing live musical performances which pay tribute to the 22 songs and performances made famous by the legendary group in the 1960s and 23 1970s. Unless otherwise specifically identified, any references to Plaintiff shall refer to Plaintiff 24 as well as Plaintiff’s predecessors-in-interest. 25 9. Since at least as early as 1996, Plaintiff has performed such entertainment 26 services under the name “THE FAB FOUR” (the “FAB FOUR Mark”). 27 10. Since at least as early as 1996, Plaintiff has continuously used the FAB FOUR 28 Mark in conjunction with advertising, promoting, and marketing its entertainment services as a

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 2 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 3 of 11

1 Beatles tribute band. 2 11. Through Plaintiff’s extensive marketing efforts, Plaintiff’s performances have 3 achieved great success and renown throughout the United States. 4 12. Since 1996, Plaintiff has performed over two thousand performances of its 5 Beatles tribute show using the FAB FOUR Mark. 6 13. Plaintiff has performed its entertainment services under the FAB FOUR Mark to 7 large audiences in major concert venues throughout the United States, including California, 8 Nevada, New York, Oregon, Colorado, Illinois, Georgia, Arizona, Hawaii, Utah, Washington, 9 Indiana, Pennsylvania, Missouri, Idaho, Florida, Alabama, Massachusetts, Texas, North 10 Carolina, Kentucky, Iowa, Kansas, Ohio, Nebraska, Minnesota, Wisconsin, Connecticut, and 11 even Washington D.C. 12 14. Plaintiff has also performed its entertainment services under the FAB FOUR 13 Mark internationally in such countries as the , , Canada, , 14 Korea, Dubai, , Germany, and as well as on various international cruise ships. 15 15. Plaintiff’s performances have received praise and acclaim from many well- 16 recognized celebrities such as Mickey Dolenz (singer, The Monkees), (singer for 17 KISS), Cynthia Lennon ('s first wife), and Louise Harrison ('s 18 sister). 19 16. Plaintiff’s performances under the FAB FOUR Mark have been showcased on 20 such television programs as “Entertainment Tonight,” “Extra,” “Access Hollywood,” “Good 21 Morning America,” and “Ellen’s Really Big Show.” 22 17. Plaintiff has also performed under the FAB FOUR Mark in many television and 23 movie projects related to the Beatles throughout the years, including being chosen among over 24 600 Beatles tribute bands to perform the music of the Beatles for the CBS made-for-television 25 movie “The Linda McCartney Story” which aired May 21, 2000. Most recently, Plaintiff has 26 been recruited by to provide Beatles performance footage for the planned 27 remake of the classic Beatles’ film Yellow Submarine. 28 18. Plaintiff has performed renditions of The Beatles’ songs under the FAB FOUR

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 3 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 4 of 11

1 Mark on the soundtracks for the 2001 film “Heartbreakers” and the television series “House.” 2 19. In October 2002, Plaintiff put out two CDs of its performances of various Beatles

3 songs -- “A Fab Four Christmas” (a 2 disc CD set) and “Have Yourself A FAB-ulous 4 Christmas.” To date, Plaintiff has sold over 100,000 copies of these CDs and they are still 5 available for sale to the public on such widely viewed websites as Amazon.com. 6 20. Plaintiff’s performance of two Christmas songs combined with a medley of a 7 well-known Beatles song (“Joy to the World/Please Please Me” and “Let It Snow! Let It Snow! 8 Let It Snow!/”) have appeared on the CDs “Have a Fun Christmas” Volume 9 1 and 2 put out by Time Life Music. 10 21. Since December 2000, Plaintiff has made regular appearances on the popular Los 11 Angeles radio talk show “Breakfast with the Beatles,” including an appearance as recently as 12 May 5, 2010. Plaintiff has performed live on several occasions in the studio, including one time 13 in 2001, when Plaintiff was asked to perform as a tribute to the late George Harrison after he 14 passed away. 15 22. Since at least April 2000, Plaintiff has promoted its FAB FOUR Mark in

16 connection with its entertainment services on the Internet – first at www.thefabfour.net and 17 currently at www.thefabfour.com, which receives thousands of hits every day and is the 18 highest rated Beatles-related website listed on The Beatles Internet Resource Guide

19 (www.BeatleLinks.net). 20 23. In addition to performing throughout the United States and worldwide under the 21 FAB FOUR Mark, Plaintiff, from September 2005 to June 2008, also provided entertainment 22 services in the nature of its unique brand of Beatles tribute show under the name FAB FOUR 23 MANIA (the “Las Vegas show”) for venues in Las Vegas. 24 24. Plaintiff’s performances under the FAB FOUR Mark (including Plaintiff’s Las 25 Vegas show) have been widely advertised in and/or received great attention from numerous 26 regional magazines and newspapers including the following: Las Vegas Sun, Las Vegas Review 27 Journal, Times, The Orange County Register, Showbiz Weekly, What’s On – The 28 Las Vegas Guide, Burbank Leader, Southern California LIVE! (Long Beach Press-Telegram),

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 4 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 5 of 11

1 The Cincinnati Post, and the Lewiston Morning Tribune. 2 25. Since its inception, over $1 million in advertising has been spent promoting the 3 FAB FOUR Mark in connection with Plaintiff’s entertainment services (including advertising 4 for Plaintiff’s Las Vegas show). This advertising consists of press kits, Internet advertising, 5 newspaper and magazine advertising, television advertising, and major radio advertising. 6 26. Since its inception, over $15 million in gross revenue has been generated by 7 Plaintiff’s performances of its entertainment services under the FAB FOUR Mark (including 8 revenue from Plaintiff’s Las Vegas show). 9 27. By virtue of Plaintiff’s extensive, long-time, continuous, and exclusive use of the 10 FAB FOUR Mark in connection with its entertainment services, Plaintiff’s FAB FOUR Mark 11 has come to be recognized and relied upon by consumers as identifying the quality 12 entertainment services provided by Plaintiff and distinguishing those services from the services 13 of others. 14 28. By virtue of Plaintiff’s extensive, long-time, continuous, and exclusive use of the 15 FAB FOUR Mark in connection with its entertainment services, Plaintiff’s FAB FOUR Mark 16 has become distinctive of Plaintiff’s entertainment services. 17 29. By virtue of Plaintiff’s extensive, long-time, continuous, and exclusive use of the 18 FAB FOUR Mark in connection with its entertainment services, Plaintiff has developed 19 substantial goodwill in the FAB FOUR Mark throughout the United States and as a result, the 20 FAB FOUR Mark has come to be associated exclusively with Plaintiff and Plaintiff’s 21 performances. 22 30. Plaintiff is the owner of all right, title and interest in and to the FAB FOUR 23 Mark, and the goodwill associated therewith and various registrations and applications 24 therefore, including:

25 • U.S. Registration No. 3,736,064 for THE FAB FOUR THE ULTIMATE 26 TRIBUTE for entertainment, namely, live music concerts (registered 27 January 12, 2010); and

28 • U.S. Trademark Application No. 85/009,153 for THE FAB FOUR for WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 5 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 6 of 11

1 entertainment, namely, live performances by a musical band (filed April 2 8, 2010).

3 Defendants’ Infringing Activities 4 31. Upon information and belief, Defendants are using the name THE FAB 4! (the 5 “Infringing Mark”) to identify their own Beatles tribute show (the “Infringing Show”). 6 32. The Infringing Mark is essentially identical in sound and appearance to 7 Plaintiff’s FAB FOUR Mark. 8 33. The nature of the entertainment services in connection with which Defendants 9 are using the Infringing Mark are identical to the entertainment services rendered by Plaintiff 10 under the FAB FOUR Mark in that both companies provide live entertainment services in the 11 nature of a Beatles tribute band. 12 34. Upon information and belief, Defendants are advertising and promoting the 13 Infringing Show using the Infringing Mark on the websites www.the-fab-4.com and 14 www.gigmasters.com. 15 35. Upon information and belief, Defendants have been performing the Infringing 16 Show under the Infringing Mark in Colorado, Wyoming, Nebraska, Montana, and Switzerland. 17 36. The Infringing Mark is likely to be perceived as the same or similar to Plaintiff’s 18 FAB FOUR Mark by consumers who are likely to believe that the source and origin of the 19 entertainment services rendered therewith emanate from or are sponsored by or affiliated with 20 Plaintiff. 21 37. Upon information and belief, by using the Infringing Mark to promote their 22 entertainment services, Defendants are attempting to trade on Plaintiff’s business, reputation and 23 goodwill in its FAB FOUR Mark. 24 38. Defendants use of the Infringing Mark on Defendants’ website has caused 25 internet search engines to index and rank Defendants’ website high in connection with internet 26 users conducting searches for Plaintiff’s FAB FOUR Mark and has caused initial interest 27 confusion among consumers searching for Plaintiff’s entertainment services. 28 39. Upon information and belief, Defendants’ use of the Infringing Mark in

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 6 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 7 of 11

1 connection with Defendants’ Infringing Show has caused actual confusion among consumers 2 who mistakenly believe that Defendants’ Infringing Show is affiliated with, connected to, or 3 associated with Plaintiff’s show under the FAB FOUR Mark. 4 40. Unless enjoined by this Court, Defendants’ use of the Infringing Mark in 5 connection with Defendants’ Infringing Show is likely to continue to cause consumers to be 6 confused, mistaken, or deceived as to the affiliation, connection or association of Defendants’ 7 Infringing Show with Plaintiff and as to the origin, sponsorship, or approval of Defendants’ 8 Infringing Show by Plaintiff.

9 FIRST CLAIM FOR RELIEF 10 (Federal Trademark Infringement Under 15 U.S.C. §1114) 11 41. Plaintiff repeats and re-alleges each and every allegation set forth in this 12 complaint as if set forth here in full. 13 42. This is a claim for trademark infringement under Section 32 of the Lanham Act, 14 15 U.S.C. §1114. 15 43. Defendants’ Infringing Mark is an imitation of Plaintiff’s federally registered 16 FAB FOUR Mark and Defendants’ use of the Infringing Mark in connection with the 17 advertising and promotion the Infringing Show is without permission, authority or consent of 18 the Plaintiff and said use is likely to cause confusion, to cause mistake and/or to deceive. 19 44. Defendants’ infringing activities have caused and, unless enjoined by this Court, 20 will continue to cause, irreparable injury and other damage to Plaintiff’s business, reputation 21 and goodwill in its federally registered FAB FOUR Mark. Plaintiff has no adequate remedy at 22 law. 23 45. As a direct consequence of Defendants’ actions, Plaintiff has been damaged 24 monetarily in an amount to be determined at trial. 25 46. Plaintiff has been required to retain the services of a law firm to prosecute this 26 action and is entitled to its reasonable costs and attorneys fees for the necessity of bringing this 27 claim. 28 / / /

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 7 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 8 of 11

1 SECOND CLAIM FOR RELIEF 2 (False Designation of Origin and Unfair Competition under 15 U.S.C. § 1125(a)) 3 47. Plaintiff hereby realleges and incorporates by reference the allegations in the 4 preceding paragraphs as if fully set forth herein. 5 48. This is a claim for false designation of origin and unfair competition under 6 Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 7 49. Defendants’ use of the Infringing Mark constitutes a false designation of origin, a 8 false or misleading description and representation of fact which is likely to cause confusion and 9 to cause mistake, and to deceive as to the affiliation, connection or association of Defendant 10 with Plaintiff and as to the origin, sponsorship, or approval of Defendants’ services and 11 commercial activities by Plaintiff. 12 50. Defendants’ use of a mark that is confusingly similar to Plaintiff’s FAB FOUR 13 Mark in connection with Defendants’ services and commercial activities was done willfully, 14 intentionally, and deliberately with full knowledge and willful disregard of Plaintiff’s well- 15 known and prior established rights in the FAB FOUR Mark. 16 51. As a direct and proximate result of Defendants’ false designation of origin and 17 unfair competition, Plaintiff has suffered, and unless enjoined by this Court will continue to 18 suffer, monetary loss and irreparable injury and other damage to Plaintiff’s business, reputation 19 and goodwill in its FAB FOUR Mark for which Plaintiff has no adequate remedy at law. 20 52. As a direct consequence of Defendants’ actions, Plaintiff has been damaged 21 monetarily in an amount to be determined at trial. 22 53. Plaintiff has been required to retain the services of a law firm to prosecute this 23 action and is entitled to its reasonable costs and attorneys fees for the necessity of bringing this 24 claim. 25 /// 26 /// 27 /// 28 ///

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 8 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 9 of 11

1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff respectfully prays for judgment against Defendant as follows: 3 A. That the Court enter judgment in favor of Plaintiff and against the Defendants on 4 all claims for relief alleged herein; 5 B. That a preliminary and permanent injunction issue pursuant to Section 34 of the 6 Lanham Act (15 U.S.C. §1116) restraining the Defendants, each of their officers, agents, 7 servants, employees, successors and assigns and all other persons acting in concert and privity 8 with the Defendants from: 9 1. using Plaintiff’s FAB FOUR Mark or confusingly similar variations 10 thereof, including but not limited to the Infringing Mark, alone or in combination with 11 any other words, letters, phrases or designs, in commerce or in connection with any 12 business or for any other purpose whatsoever, including, but not limited to, use in 13 connection with Defendants’ entertainment services, using Plaintiff’s FAB FOUR Mark 14 or confusingly similar variations thereof, including but not limited to the Infringing 15 Mark, thereof in advertising or promoting Defendants’ services, or using confusingly 16 similar variations of Plaintiff’s FAB FOUR Mark, including but not limited to the 17 Infringing Mark, which are likely to create the impression that the Defendants’ services 18 originate from Plaintiff, are endorsed by Plaintiff, or are connected in any way with 19 Plaintiff; 20 2. otherwise infringing Plaintiff’s FAB FOUR Mark, including infringement 21 of U.S. Trademark Registration No. 3,736,064; 22 3. falsely designating the origin of the Defendants’ services; 23 4. unfairly competing with Plaintiff in any manner whatsoever; and 24 5. causing a likelihood of confusion with Plaintiff’s FAB FOUR Mark or 25 other injury to Plaintiff’s business, reputation, and goodwill. 26 C. That the Defendants, their agents, servants, employees, attorneys, successors and 27 assigns, and all other persons in active concert or participation with any of them who receive 28 actual notice of the injunction by personal service or otherwise, be forthwith preliminarily and

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 9 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 10 of 11

1 permanently enjoined from: 2 1. using Plaintiff’s FAB FOUR Mark or confusingly similar variations 3 thereof, including but not limited to the Infringing Mark, alone or in combination with 4 any other words, letters, phrases or designs, in commerce or in connection with any 5 business or for any other purpose whatsoever, including, but not limited to, use in 6 connection with Defendants’ entertainment services, using Plaintiff’s FAB FOUR Mark 7 or confusingly similar variations thereof, including but not limited to the Infringing 8 Mark, thereof in advertising or promoting Defendants’ services, or using confusingly 9 similar variations of Plaintiff’s FAB FOUR Mark, including but not limited to the 10 Infringing Mark, which are likely to create the impression that the Defendants’ services 11 originate from Plaintiff, are endorsed by Plaintiff, or are connected in any way with 12 Plaintiff; 13 2. otherwise infringing Plaintiff’s FAB FOUR Mark, including infringement 14 of U.S. Trademark Registration No. 3,736,064; 15 3. falsely designating the origin of the Defendants’ services; 16 4. unfairly competing with Plaintiff in any manner whatsoever; and 17 5. causing a likelihood of confusion with Plaintiff’s FAB FOUR Mark or 18 other injury to Plaintiff’s business, reputation, and goodwill. 19 D. That Defendants be directed to file with this Court and serve on Plaintiff within 20 thirty (30) days after the service of the injunction, a report, in writing, under oath, setting forth 21 in detail the manner and form in which the Defendants have complied with the injunction 22 pursuant to 15 U.S.C. §1116; 23 E. That Defendants be required to account to Plaintiff for any and all profits derived 24 by Defendants and all damages sustained by Plaintiff by virtue of the actions of the Defendants 25 complained of herein; 26 F. That Defendants be ordered to pay over to Plaintiff any and all profits derived by 27 Defendants and all damages which Plaintiff has sustained as a consequence of the actions of the 28 Defendants complained of herein pursuant to 15 U.S.C. §1117, subject to proof at trial;

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 10 LAS VEGAS, NEVADA 89128 (702) 382-4804 Case 2:10-cv-01105-PMP-RJJ Document 1 Filed 07/07/10 Page 11 of 11

1 G. That the damages resulting from the actions of the Defendants complained of 2 herein be trebled pursuant to 15 U.S.C. §1117 and awarded to Plaintiff; 3 H. That an award of interest, reasonable costs, expenses and attorneys’ fees be 4 awarded to Plaintiff pursuant to 15 U.S.C. §1117; 5 I. That Defendants be required to deliver and destroy all devices, literature, 6 advertising, goods and other materials bearing the Infringing Marks pursuant to 15 U.S.C. 7 §1118; 8 J. That an award of compensatory, consequential, statutory, exemplary, and/or 9 punitive damages be awarded to Plaintiff in an amount to be determined at trial; 10 K. That an award of interest, costs, and attorneys' fees incurred by Plaintiff in 11 prosecuting this action be awarded to Plaintiff; and 12 L. That Plaintiff be awarded all other relief to which Plaintiff is entitled and such 13 other and further relief as this Court may deem just. 14

15 JURY TRIAL DEMANDED 16 Plaintiff hereby demands a trial by jury on all issues raised in the Complaint which are 17 triable by a jury. 18 19 DATED this 7th day of July, 2010. 20 Respectfully Submitted, 21 WEIDE & MILLER, LTD. 22

23

24 Mark Borghese, Esq. Ryan Gile, Esq. 25 7251 W. Lake Mead Blvd., Suite 530 Las Vegas, NV 89128 26 Attorneys for Plaintiff The Fab Four Corp. 27 28

WEIDE & MILLER, LTD. 7251 W. LAKE MEAD BLVD., SUITE 530 RRG-w-1776r2 11 LAS VEGAS, NEVADA 89128 (702) 382-4804