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IN the UNITED STATES DISTRICT COURT for the SOUTHERN DISTRICT of FLORIDA Fort Lauderdale Division

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IN the UNITED STATES DISTRICT COURT for the SOUTHERN DISTRICT of FLORIDA Fort Lauderdale Division Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 1 of 51 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Fort Lauderdale Division CASE NO. 1:13-CV-61678-COHN-SELTZER The CELLER LAW ORGANIZATION, ) ) INC., a Florida corporation, d/b/a/ THE CELLER ORGANIZATION, CELLER ) LAW, P.A., a Florida Professional ) Association, and CELLER ) ENTERTAINMENT, INC., a Florida ) corporation, ) ) Plaintiffs, ) ) ) JOINT PRETRIAL v. STIPULATION ) SONY PICTURES TELEVISION INC., a ) foreign corporation, ) ) Defendant. ) ) ) SONY PICTURES TELEVISION INC., a ) ) foreign corporation, ) Counter-Claimant, ) ) v. ) ) ) The CELLER LAW ORGANIZATION, ) INC., a Florida corporation, d/b/a/ THE ) CELLER ORGANIZATION, CELLER ) LAW, P.A., a Florida Professional ) Association, CELLER ENTERTAINMENT, ) INC., a Florida corporation, and BOBBIE ) CELLER, an individual, ) ) Counter-Defendants. ) ) ) Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 2 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER Plaintiffs/Counter-Defendants, The CELLER LAW ORGANIZATION, INC. d/b/a THE CELLER ORGANIZATION, CELLER LAW, P.A., CELLER ENTERTAINMENT, INC. and BOBBIE CELLER (collectively, “Celler”) (The Celler Law Organization, Inc. d/b/a Celler Organization, Celler Law, P.A. and Celler Entertainment, Inc. shall sometimes be referred to collectively herein as “Plaintiffs”), and Defendant/Counter-Claimant, SONY PICTURES TELEVISION INC. (“SPT” or “Defendant”) (“Celler” and “SPT” shall sometimes be referred to collectively herein as the “Parties”), by and through their respective undersigned counsel, and pursuant to the Court’s Scheduling Order [ECF No. 20] and S.D. of Fla. L.R. 16.1(e), hereby file this Joint Pre-Trial Stipulation: 1. SHORT CONCISE STATEMENT OF THE CASE a. Plaintiffs’ Statement In early 2013, Plaintiffs recognized an opportunity to further market Celler Law, P.A. and increase its market share through a speaking tour of personalities known for their business success. Plaintiffs decided to engage successful business personalities in order to attract as broad a base of attendees as possible to the speaking tour. The Celler parties initially contracted four individuals for purposes of conducting a live tour known as “Shark Tour and Entrepreneur Expo Presented by Bobbie Celler” (“Shark Tour”). Specifically, in mid June of 2013, Celler Parties contracted with Daymond John, Barbara Corcoran, Robert Herjavec, and Kevin Harrington (collectively referred to as the “Sharks”) for their live appearances at the Shark Tour scheduled to take place on November 2, 2013, at the Orlando Convention Center. Daymond John, Barbara Corcoran, and Robert Herjavec are current members of the A.B.C. Television Show Shark Tank. Kevin Harrington was a former participant Page 2 of 51 Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 3 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER on the show. However, a few weeks later, Daymond John and Robert Herjavec, without warning, due to pressure from Sony, advised that they would not appear at Shark Tour. The Celler Parties filed suit against Sony on or about July 25, 2013, alleging that Sony had tortiously interfered with The Celler Parties’ respective business and/or contractual relationships with the Sharks, thereby causing Plaintiff to incur damages. Shortly thereafter, Barbara Corcoran also cancelled. In it’s Answer, Sony set forth Four Affirmative Defenses alleging: that its communications with the Sharks were privileged and therefore justified; that The Celler Parties cannot seek damages for contracts terminable at will; that Plaintiff’s claims are barred by the doctrine of unclean hands as well as estoppel due to the alleged usage of trademarks and intellectual property. Also in response to Plaintiff’s Amended Complaint, Sony filed a six-count Counterclaim1 against The Celler Parties based upon its registered standard character service mark SHARK TANK, and its purported ownership of an unregistered logo and unregistered Shark Tank Trade Dress, which Sony claims to use in connection with a website and a reality television series depicting people making requests for capital investments into their business. Sony asserts that its unregistered logo consists of “the SHARK TANK mark written in all-capital letters and presented in blue and black colors.” Sony contends that its unregistered trade dress consists of “a distinctive blue and black color theme, the words SHARK TANK written in all-capital letters on the upper left-had portion of the screen, menu options presented horizontally across the top of the screen in gray, a depiction of the characters in the show immediately below the masthead, and depiction of 1 The various counts included in the Counterclaim are for: federal trademark infringement; federal false designation and unfair competition, federal trademark dilution, Florida trademark dilution, Florida unfair competition, and common law trademark infringement and unfair competition. ECF No. 32. Page 3 of 51 Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 4 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER water in the background of the page,” which are displayed on a website located at http://abc.go.com/shows/shark-tank. Sony alleges that The Celler Parties are infringing its SHARK TANK mark, the Shark Tank logo, and the Shark Tank Trade Dress through the advertisement and marketing of The Celler Parties’ SHARK TOUR & Entrepreneur Expo. In defending against the Counterclaim, The Celler Parties are asserting that Sony’s Counterclaim is a “shotgun” pleading presented in contravention of the Rules of Civil Procedure because each Count incorporates, every prior allegation and claim set forth earlier in the Counterclaim, which renders those Counts subject to dismissal. The Celler Parties also assert that Sony’s Counterclaim is barred by the doctrine of unclean hands because Sony tortiously interfered with The Celler Parties’ business relationships and efforts to complete the planning and presentation of the Shark Tour & Entrepreneur Expo. If Sony’s claims are not entirely barred or otherwise subject to dismissal, The Celler Parties nevertheless contend that Sony fails to state a claim under 15 U.S.C. 1114 for infringement of its Shark Tank logo and its Shark Tank trade dress because neither are registered on the USPTO’s Principal Register. Additionally, The Celler Parties assert that the trade dress Sony is seeking to enforce is not protectable. The Celler Parties further contend that their use of the SHARK TOUR mark is in its primary, descriptive sense to describe The Celler Parties’ services, not Sony’s television show. The Celler Parties also contend that, even if Sony were to meet its burden to prove its claims, Sony cannot recover it damages or The Celler Parties profits, if any, because Sony failed to give notice of its registered rights in the SHARK TANK mark, or otherwise comply with 15 U.S.C. § 1111, by displaying with the words "Registered in U.S. Patent and Trademark Office" or "Reg. U.S. Pat. & Tm. Off." or the letter R enclosed within a circle with its SHARK TANK mark, Page 4 of 51 Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 5 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER and The Celler Parties had no actual knowledge of Sony’s registration of the SHARK TANK mark with the USPTO. Therefore, pursuant to 15 U.S.C. § 1111, Sony may not receive an award of any profits or damages The Celler Parties contend that, even if Sony could recover damages in this action, Sony is not entitled to any award of enhanced damages because The Celler Parties actions were not willful, intentional or deliberate. Finally, The Celler Parties assert that, should Sony prevail on its Lanham Act Counterclaims, Sony is not entitled to attorneys’ fees or costs under Section 35 of the Lanham Act, 15 U.S.C. §1117, because its claims, allegations and facts do not set forth an exceptional case. b. Defendant’s Statement This litigation was filed by Plaintiffs after Defendant learned of Plaintiffs’ misuse and exploitation of Defendant’s valuable trademark, trade dress and other intellectual property relating to the hit television show Shark Tank in an effort to launch a copycat “Shark Tour” live event. Plaintiffs repeatedly used SPT’s registered SHARK TANK trademark and the distinctive Shark Tank logo and trade dress in promoting Plaintiffs’ proposed Shark Tour, and allege that they entered into contracts with some of the talent (called “Sharks”) who appear or appeared on the Shark Tank show to appear at the live Shark Tour event, all to create the appearance of an affiliation between Plaintiffs’ event and SPT’s Shark Tank show. When the Sharks learned how Plaintiffs were using the intellectual property of the Shark Tank show, some of them informed Plaintiffs that they would not be appearing on the Shark Tour and returned their deposits. Plaintiffs then canceled their proposed Shark Tour (having not sold a single ticket). Instead, before Defendants could initiate a lawsuit against Plaintiffs for infringing their intellectual Page 5 of 51 Case 0:13-cv-61678-JIC Document 71 Entered on FLSD Docket 04/07/2014 Page 6 of 51 CASE NO. 1:13-CV-61678-COHN-SELTZER property, Plaintiffs filed suit against Defendant in Broward County Circuit Court and Defendant promptly removed the case to this Court and filed its Counterclaims. This lawsuit was filed preemptively by Plaintiffs (in advance of the deadline on their threat to Defendant to “partner up or be sued”) to try to head off federal claims for trademark and trade dress infringement. Plaintiffs’ Amended Complaint asserts one count against Defendant for Tortious Interference. The evidence at trial will confirm that Defendant did not wrongfully interfere with Plaintiffs’ purported business or contractual relationships and that any communications it had with regard to the subject of Plaintiffs were privileged and justifiable given Plaintiffs’ intentional efforts to hijack Defendant’s well known brand, including its registered trademark and distinctive logo and trade dress.
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