Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 1 of 24 Page ID #:43

1 TODD W. BONDER, ESQ. (Cal. Bar No. 116482)

[email protected]
2 RYAN M. LAPINE, ESQ. (Cal. Bar No. 239316)
[email protected]
3 JOSHUA H. HERR, ESQ. (Cal. Bar No. 301775)
[email protected]
4 ROSENFELD, MEYER & SUSMAN LLP
232 North Canon Drive
5 Beverly Hills, California 90210-5302
Telephone: (310) 858-7700
6 Facsimile: (310) 860-2430
7 Attorneys for Plaintiff
HASTINGS, CLAYTON & TUCKER, INC.
8 dba STILETTO ENTERTAINMENT
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12 HASTINGS, CLAYTON & TUCKER, ) Case No. 16-cv-01831-GHK-JEM
)
INC., a Nevada corporation, dba
) FIRST AMENDED COMPLAINT
13 STILETTO ENTERTAINMENT,
) FOR:
)
Plaintiff,
14
)
(1) DIRECT AND
)
vs.
CONTRIBUTORY COPYRIGHT
15
)
INFRINGEMENT;
)
16 PRINCESS CRUISE LINES, LTD.,
)
WHICH WILL DO BUSINESS IN
(2) DIRECT AND
)
CONTRIBUTORY VIOLATION
17 CALIFORNIA AS PRINCESS
)
CRUISES, a Bermuda corporation;
OF SECTION 43(a) OF LANHAM
TRADEMARK ACT UNFAIR
18 SWANK MOTION PICTURES, INC., a )
Missouri corporation; and DOES 1-10, )
COMPETITION;
)
19 inclusive,
)
(3) UNFAIR COMPETITION;
)
Defendants.
20
)
(4) DILUTION AND/OR INJURY
)
TO BUSINESS REPUTATION;
21
)
and
)
22
)
(5) STATUTORY AND
)
COMMON LAW RIGHT OF
23
)
PUBLICITY
)
24
)
)
25
26
27
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 2 of 24 Page ID #:44

Plaintiff, HASTINGS, CLAYTON & TUCKER, INC. (hereinafter referred to

2 as HCT), complains and alleges as follows:

JURISDICTION

3
1.

The first and second claims hereof each arise under the Copyright Act

5 of 1976, 17 U.S.C. 101 et seq. This Court has jurisdiction over the subject matter
6 of these claims pursuant to 28 U.S.C. Sections 1331 and 1338(a).
2.

The third and fourth claims hereof arise under the provisions of the

8 Lanham Trademark Act of 1946, as amended, in 15 U.S.C. Section 1125(a). This

9 Court has jurisdiction over the subject matter of these claims pursuant to 15 U.S.C.
10 Section 1121 and 28 U.S.C. Sections 1331 and 1338.
3.

11

The fifth, sixth, seventh, and eighth claims hereof each arise under the

12 common law and statutory law of California relating to trademark infringement,

13 unfair competition, and right of publicity. This Court has jurisdiction over the
14 subject matter of such claims pursuant to the provisions of 28 U.S.C. Section 1338(b)
15 and 28 U.S.C. Section 1367.
4.

16

Each of the claims hereof at least in part involve conduct that took

17 place on the high seas. This Court has jurisdiction over the subject matter of such
18 claims pursuant to the provisions of 28 U.S.C. Section 1333.
VENUE IS PROPER

19
5.

20

Venue is proper in this judicial district pursuant to 28 U.S.C. Sections

21 1391(b) through (c), 1392 and 1400(a), and 18 U.S.C. Section 3238.
THE PARTIES

22
6.

23

HCT is, and at all times material hereto was, a Nevada corporation

24 doing business in Los Angeles County, California.

7.

25

HCT does business as STILETTO ENTERTAINMENT ("Stiletto"),

26 having properly registered that Fictitious Business Name with the California
27 Secretary of State. (As used herein, "Plaintiff" refers to HCT and Stiletto, which are
28 in fact and in law the same entity).
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 3 of 24 Page ID #:45

8.

Plaintiff is informed and believes, and upon that basis alleges, that at all

2 times relevant hereto:

a. Defendant SWANK MOTION PICTURES, INC. (hereinafter

4 Swank) is a Missouri corporation doing business in Los Angeles County,

5 California, with its principal place of business in St. Louis, Missouri;
b. Defendant PRINCESS CRUISE LINES, LTD., WHICH WILL DO

7 BUSINESS IN CALIFORNIA AS PRINCESS CRUISES (hereinafter Princess

8 Cruises) is a Bermuda corporation doing business in Los Angeles County,
9 California, with its principal place of business in Santa Clarita, California in this
10 District.
9.

11

The true names and capacities of DOES 1-10, inclusive, whether

12 corporate, associate, individual or otherwise, are unknown to Plaintiff at this time.

13 Plaintiff will, with leave of court, amend this First Amended Complaint to show the
14 true names and capacities of these DOES if and when the same have been
15 ascertained. Plaintiff is informed and believes, and upon that basis alleges, that each
16 of these fictitiously named Defendants is legally responsible in some manner for the
17 events and occurrences herein alleged and that Plaintiff's damages as alleged herein
18 were proximately caused thereby. (Swank, Princess Cruises, and DOES 1-10,
19 inclusive, are referred to collectively as Defendants.)
20

PLAINTIFF EXISTS TO MANAGE BARRY MANILOW'S AFFAIRS, OWNS

21 THE MANILOW TRADEMARK AND COMMISSIONED THE COPYRIGHTED

WORK MUSIC AND PASSION LIVE FROM LAS VEGAS

22
23

10.

Barry Manilow writes the songs that make the whole world sing.

24

11.

Plaintiff manages Barry Manilow's business and financial affairs.

25

12.

Born Barry Alan Pincus, Barry Manilow, one of the best selling

26 musical artists of all time, is an entertainment icon. At present, he is on his final

27 concert tour.
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 4 of 24 Page ID #:46

13.

"Barry Manilow" is registered as a trademark with the United States

2 Patent and Trademark Office with Serial Number 73606430; Plaintiff owns that
3 mark. (That mark is referred to herein as Plaintiffs Trademark.)
14.

Plaintiff has openly and actively used Plaintiff's Trademark as a

5 distinctive mark. The mark has developed a distinctive meaning among members of
6 the public, who have come to identify its use as designating music, performances,
7 and services associated with that singer and performer known as Barry Manilow.
15.

Barry Manilow assigned to Plaintiff all of his rights of publicity for use

9 of his name and likeness in connection with the sale of his music, performances, or
10 the marketing of his music or performances.
16.

11

Plaintiff hired Barry Manilow and a cadre of background musicians,

12 employing them to perform, as a work made for hire, a concert entitled Barry
13 Manilow: Music and Passion Live from Las Vegas (hereinafter Music and
14 Passion Live).
17.

15

Music and Passion Live is wholly original with Plaintiff and constitutes

16 copyrightable subject matter under the Copyright Act of 1976, 17 U.S.C. 101 et
17 seq.
18.

18

Plaintiff owns and controls all right, title and interest in and to Music

19 and Passion Live, including all related intellectual property rights.

19.

20

Plaintiff has complied in all respects with the laws governing Music

21 and Passion Live's intellectual property rights and has registered Music and Passion
22 Live with the United States Copyright Office.
20.

23

Plaintiff has at no time, directly or indirectly, granted Defendants, or

24 any of them, the authority, permission, license or consent to use Plaintiff's

25 Trademark, Music and Passion Live, or any aspect thereof, or the name and likeness
26 of Barry Manilow.
27
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 5 of 24 Page ID #:47

SWANK SOLICITED AND PROFITED FROM

PLAINTIFF'S INTELLECTUAL PROPERTY

21.

On information and belief, on an ongoing basis and within the last three

4 years, Swank willfully endeavored to sell Plaintiff's copyrighted work Music and
5 Passion Live and profit from it in this judicial district.
22.

On information and belief, on an ongoing basis and within the last three

7 years, Swank willfully used Plaintiff's Trademark and his likeness and name to
8 solicit sales of Music and Passion Live and profit from it in this judicial district.
23.

Swank never obtained from Plaintiff any rights, permission, authority

10 or consent to market or sell Music and Passion Live, to use Plaintiff's Trademark in
11 the marketing or sale of goods or products, or to use Barry Manilow's name or
12 likeness to sell or market goods or products.
24.

13

Indeed, prior to receiving a cease and desist letter in 2015, Swank never

14 once contacted Plaintiff or Barry Manilow to assess whether it may market or

15 sell Music and Passion Live, use Plaintiff's Trademark to market or sell goods or
16 products, or use Barry Manilow's name or likeness to market or sell goods or
17 products.
25.

18

Swank intentionally and willfully, within the last three years, and

19 within this judicial district, marketed for sale and sold to, among others, Princess
20 Cruises "rights" to broadcast Music and Passion Live along with copies of that
21 copyrighted work, using Plaintiff's Trademark and Barry Manilow's name and
22 likeness in the solicitation of that sale, all without Plaintiff's authority, permission,
23 or consent.
24

PRINCESS CRUISES REPEATEDLY, WILLFULLY AND INTENTIONALLY

25

INFRINGED PLAINTIFF'S INTELLECTUAL PROPERTY

26.

26

Without Plaintiff's authority, permission or consent, Princess Cruises

27 repeatedly broadcast Music and Passion Live on the lido deck of its cruise ships to
28 entertain its customers.
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 6 of 24 Page ID #:48

27.

On information and belief, Princess Cruises used Plaintiff's Trademark

2 and Barry Manilow's name and likeness to market its broadcasts of Music and
3 Passion Live.
28.

In 2014, Plaintiff discovered that Princess Cruises was repeatedly

5 broadcasting Music and Passion Live on the lido deck of its ships as a key
6 component of its entertainment of its cruise customers.
29.

Plaintiff wrote Princess Cruises in March of 2014, informed Princess

8 Cruises that Princess Cruises did not have any rights to broadcast Music and
9 Passion Live on any of its cruise vessels or in any forum for its customers
10 entertainment and consumption, and demanded that it cease and desist from
11 broadcasting Music and Passion Live immediately.
30.

12

Princess Cruises acknowledged that cease and desist letter, refused to

13 cease and desist, and instead willfully and intentionally continued to broadcast
14 Music and Passion Live on its cruise vessels while, on information and belief,
15 continuing to use Plaintiff's Trademark and Barry Manilow's name and likeness to
16 advertise and market that entertainment.
17

PRINCESS CRUISES' INFRINGEMENT ACTIVITY DIRECTLY COMPETED

18

WITH PLAINTIFF'S BUSINESS ENDEAVORS

31.

19

Plaintiff is currently producing Barry Manilow's final concert tour for

20 which it is selling tickets and merchandise.

32.

21

It expressly would not and did not intend to concomitantly make

22 available live concert footage for repetitive screenings on cruise ships that would
23 provide direct competition to the live concerts it was and is seeking to sell.
24

FIRST CLAIM

25

(For Direct Copyright Infringement

26

-- Against Defendants)
33.

27

Plaintiff repeats, realleges and incorporates the allegations contained in

28 paragraphs 1 through 32, inclusive, hereof as if fully set forth herein.

LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 7 of 24 Page ID #:49

34.

Defendants infringed Plaintiffs copyrights in Music and Passion Live

2 by, among other things, advertising, displaying, promoting, marketing, distributing,

3 providing, publicly performing, offering for license, licensing, offering for rental
4 and/or renting, offering for sale and/or selling within this judicial district and
5 elsewhere, including on cruise lines, Music and Passion Live. This specifically
6 includes, but is not limited to, Swank's solicitation, sale, licensing and/or renting of
7 Music and Passion Live to, among others, Princess Cruises; Defendants' copying
8 and loading of Music and Passion Live for broadcast on its cruise ships and
9 elsewhere; and Princess Cruises' repeated and willful public broadcast of Music and
10 Passion Live on the lido deck of its cruise ships for the entertainment of its
11 customers.
35.

12

The production or manufacture of Music and Passion Live is an

13 unauthorized reproduction of Plaintiffs copyrighted work by Defendants violating

14 17 U.S.C. Section 106(1).
36.

15

The licensing, renting, selling and/or screening of Music and Passion

16 Live by Defendants is an unauthorized distribution of copies of Plaintiffs

17 copyrighted work violating 17 U.S.C. Section 106(3).
37.

18

The public performance of Music and Passion Live by Defendants is an

19 unauthorized performance of Plaintiff's copyrighted work violating 17 U.S.C.

20 Section 106(4).
38.

21

The advertising and/or display of Music and Passion Live by

22 Defendants is an unauthorized public display of Plaintiffs copyrighted work

23 violating 17 U.S.C. Section 106(5).
39.

24

Plaintiff has fully complied with its obligations under the copyright

25 laws, and as stated above Plaintiff has at all times been and still is the sole proprietor
26 of all right, title and interest in and to Music and Passion Live.
40.

27

The manufacture, production, advertisement, display, promotion,

28 marketing, distribution, public performance, licensing, rental and/or sale of Music

LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 8 of 24 Page ID #:50

1 and Passion Live by Defendants is without any permission, license or other

2 authorization from Plaintiff.
41.

Defendants were notified of their infringing and illegal activity.

4 Despite clear requests to Defendants, Defendants, and each of them, willfully and
5 knowingly continued at least certain of their respective unlawful infringing activities.
6 On information and belief, the unlawful infringing activities have now ceased.
42.

Plaintiff has no adequate remedy at law and has suffered, and is

8 continuing to suffer, irreparable harm and damage as a result of the aforesaid acts of
9 infringement. Defendants are each liable in amounts within the jurisdiction of this
10 Court.
43.

11

These damages include, but are not limited to, the devaluing of Barry

12 Manilow's concert tours Plaintiff is presently producing and that Plaintiff produced
13 at times relevant hereto that Defendants' repetitive broadcasting of Barry Manilow's
14 Music and Passion Live in a public setting competed directly against.
44.

15

Plaintiff is informed and believes, and upon that basis alleges, that the

16 aforesaid infringements by Defendants of Music and Passion Live was and

17 continues to be with the knowledge that Music and Passion Live is copyrighted, and
18 that the Defendants, and each of them, in doing the acts complained of herein, have
19 willfully infringed Plaintiffs rights under the Copyright Laws of the United States,
20 17 U.S.C. Section 101 et seq.
45.

21

Plaintiff is informed and believes, and upon that basis alleges, that

22 Defendants have each obtained gains, profits and advantages as a result of their
23 respective wrongful acts in amounts within the jurisdiction of this Court.
46.

24

Plaintiff is informed and believes, and upon that basis alleges, that it

25 has suffered, and is continuing to suffer, direct and actual damages as a result of
26 Defendants wrongful conduct as alleged herein, in amounts within the jurisdiction
27 of this Court. In order to determine the full extent of such damages, including such
28 profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 9 of 24 Page ID #:51

1 accounting from each Defendant of all monies generated from the manufacture,
2 production, distribution, provision, public performance, licensing, rental and/or sale
3 of infringing goods as alleged herein.
47.

Plaintiff is informed and believes, and upon that basis alleges, that each

5 Defendant's acts as described above are in willful violation of Plaintiffs rights, and
6 statutory damages against each such willfully infringing Defendant in the Courts
7 discretion up to the amount of $150,000.00 for the infringement of Music and
8 Passion Live should be assessed by the Court pursuant to 17 U.S.C. Section
9 504(c)(2).
48.

10

By reason of the foregoing, Plaintiff has incurred, and will continue to

11 incur, attorneys fees and other costs in connection with the prosecution of his
12 claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
13 and each of them, herein.
14

SECOND CLAIM

15

(For Contributory Copyright Infringement)

49.

16

Plaintiff repeats, realleges and incorporates the allegations contained in

17 paragraphs 1 through 48, inclusive, hereof as if fully set forth herein.

50.

18

Plaintiff is informed and believes, and upon that basis alleges, that

19 Defendants, and each of them, with knowledge of the infringing activities of their
20 third-party customers and other of the Defendants, as well as with the ability to
21 control the same and the intent to themselves benefit, either directly or indirectly,
22 therefrom, have infringed Plaintiffs copyrights in Music and Passion Live by,
23 among other things, participating in or otherwise knowingly contributing to the
24 manufacture, production, advertisement, display, promotion, marketing, distribution,
25 provision, public performance, offering for license, licensing, offering for rental
26 and/or renting, offering for sale and/or selling within this judicial district and
27 elsewhere Music and Passion Live, and have induced, caused and materially
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 10 of 24 Page ID #:52

1 contributed to the infringing conduct by such third party customers and other
2 Defendants.
51.

The participation in or otherwise knowing contribution by Defendants

4 to the production or manufacture of Music and Passion Live is an unauthorized

5 reproduction of Plaintiffs copyrighted work violating 17 U.S.C. Section 106(1).
52.

The participation in or otherwise knowing contribution by Defendants

7 to the marketing of Music and Passion Live is an unauthorized distribution of copies

8 of Plaintiffs copyrighted work violating 17 U.S.C. Section 106(3).
53.

The participation in or otherwise knowing contribution by Defendants

10 to the advertisement and/or display of Music and Passion Live is an unauthorized

11 public display of Plaintiffs copyrighted work violating 17 U.S.C. Section 106(5).
54.

12

The manufacture, production, importation, exportation, advertisement,

13 display, promotion, marketing, distribution, provision, public performance, licensing,

14 rental and/or sale of Music and Passion Live by Defendants and/or their third party
15 customers and others for resale or other use(s) in commerce is without any
16 permission, license or other authorization from Plaintiff.
55.

17

Defendants have been notified of their infringing and illegal activity.

18 Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
19 that basis alleges, that Defendants, and each of them, have willfully and knowingly
20 undertaken and continued at least certain of their unlawful infringing activity.
56.

21

Plaintiff has no adequate remedy at law and has suffered, and is

22 continuing to suffer, irreparable harm and damage as a result of the aforesaid

23 respective acts of contributory infringement. Defendants are liable in an amount
24 within the jurisdiction of this Court.
57.

25

Plaintiff is informed and believes, and upon that basis alleges, that the

26 aforesaid contributory infringements by Defendants of Music and Passion Live was

27 and continues to be with the knowledge that Music and Passion Live is copyrighted,
28 and that Defendants, in doing the acts complained of herein, has willfully infringed
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

10

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 11 of 24 Page ID #:53

1 Plaintiffs rights under the Copyright Laws of the United States, 17 U.S.C. Section
2 101 et seq.
58.

Plaintiff is informed and believes, and upon that basis alleges, that

4 Defendants have obtained gains, profits and advantages as a result of their

5 respective wrongful acts of contributory infringement in amounts within the
6 jurisdiction of this Court.
59.

Plaintiff is informed and believes, and upon that basis alleges, that he

8 has suffered, and is continuing to suffer, direct and actual damages as a result of
9 Defendants wrongful conduct as alleged herein, in amounts within the jurisdiction
10 of this Court. In order to determine the full extent of such damages, including such
11 profits as may be recoverable under 17 U.S.C. Section 504, Plaintiff will require an
12 accounting from each Defendant of all monies generated from the manufacture,
13 production, importation, exportation, distribution, provision, public performance,
14 licensing, rental and/or sale of infringing goods and/or services as alleged herein.
60.

15

Plaintiff is informed and believes, and upon that basis alleges, that each

16 Defendant's respective acts as described above are in willful violation of Plaintiffs

17 rights, and statutory damages against each such willfully infringing Defendant in the
18 Courts discretion up to the amount of $150,000.00 for the contributory
19 infringement of Music and Passion Live should be assessed by the Court pursuant to
20 17 U.S.C. Section 504(c)(2).
61.

21

By reason of the foregoing, Plaintiff has incurred, and will continue to

22 incur, attorneys fees and other costs in connection with the prosecution of his
23 claims herein, which attorneys' fees and costs Plaintiff seeks from the Defendants,
24 and each of them, herein.
25 ///
26 ///
27
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

11

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 12 of 24 Page ID #:54

THIRD CLAIM

(For Direct Violation of Section 43(a)

of the Lanham Act -- Unfair Competition

-- Against All Defendants)

62.

Plaintiff repeats, realleges and incorporates the allegations contained

6 in paragraphs 1 through 61, inclusive, hereof as if fully set forth herein.

63.

Plaintiff owns all right, title and interest in and to Plaintiffs

8 Trademark.
64.

Barry Manilow assigned to Plaintiff his rights of publicity, including all

10 rights associated with use of his name, his likeness, his reputation and his goodwill.
65.

11

Plaintiff has openly and actively used Plaintiff's Trademark as a

12 distinctive mark. The mark has developed a distinctive meaning among members of
13 the public, who have come to identify its use as designating goods, performances,
14 and services endorsed by that singer and performer known as Barry Manilow.
66.

15

Defendants used Plaintiff's Trademark to market their solicitation, sale,

16 licensing, and broadcast of Music and Passion Live. Plaintiff did not know of this
17 solicitation, sale, licensing and broadcast, did not approve of it and did not endorse
18 it.
67.

19

The conduct complained of herein has damaged and diluted the

20 goodwill and reputation of Plaintiff and of Barry Manilow, and, thus, the value of
21 Plaintiff's Trademark.
68.

22

Defendants' unauthorized use of Plaintiff's Trademark for their own

23 gain and advantage constitute acts of unfair competition and false representation of
24 affiliation, all in violation of Section 43(a) of the Lanham Trademark Act, 15 U.S.C.
25 1125(a), as amended. Plaintiff is informed and believes, and upon that basis
26 alleges, that each Defendants respective acts of reputational appropriation and
27 unfair competition was willful and intentional.
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

12

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 13 of 24 Page ID #:55

69.

Defendants' respective unauthorized and unlawful acts of federal unfair

2 competition, and each of them, have enabled Defendants, and each of them, to trade
3 unlawfully upon the established goodwill, reputation and artistic skill of Plaintiff
4 and Barry Manilow and upon the value and worth of Plaintiff's Trademark.
70.

Defendants, and each of them, thereby unjustly enriched themselves at

6 the expense and to the damage and injury of Plaintiff, of Barry Manilow, and of
7 Plaintiff's Trademark.
71.

The continued use by any of the Defendants of Plaintiffs Trademark

9 has caused, and unless restrained will continue to cause, serious irreparable injury to
10 Plaintiff.
72.

11

Plaintiff is informed and believes, and upon that basis alleges, that

12 Defendants, and each of them, have willfully and knowingly continued at least
13 certain of their wrongful conduct in violation of Plaintiffs rights through the date of
14 the filing of this First Amended Complaint.
73.

15

Plaintiff has no adequate remedy at law and has suffered, and is

16 continuing to suffer, irreparable harm and damage as a result of Defendants'

17 respective acts of federal unfair competition in amounts thus far not determined but
18 within the jurisdiction of this Court, which amounts should each be trebled pursuant
19 to 15 U.S.C. Section 1117.
74.

20

Plaintiff is informed and believes, and upon that basis alleges, that

21 unless enjoined by the Court, the unfair competition and false representation of
22 affiliation noted above, and the likelihood thereof, will continue with irreparable
23 harm and damage to Plaintiff. Accordingly, Plaintiff seeks preliminary and
24 permanent injunctive relief pursuant to 15 U.S.C. Section 1116.
75.

25

Plaintiff is informed and believes, and upon that basis alleges, that

26 Defendants have each obtained gains, profits and advantages as a result of their
27 wrongful acts of federal unfair competition in amounts thus far not determined but
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

13

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 14 of 24 Page ID #:56

1 within the jurisdiction of this Court, which amounts should each be trebled pursuant
2 to 15 U.S.C. Section 1117.
76.

In order to determine the full extent of such damages, including such

4 profits as may be recoverable, Plaintiff will require an accounting from each

5 Defendant of all monies attributable to their unfair competition and false designation
6 of affiliation.
77.

By reason of the foregoing, Plaintiff has incurred, and will continue to

8 incur, attorneys fees and other costs in connection with the prosecution of his
9 claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from the
10 Defendants, and each of them, herein.
78.

11

Defendants' conduct was willful, wanton, malicious and deliberate such

12 that punitive damages should be awarded.

13

FOURTH CLAIM

14

(For Contributory Violation of Section 43(a)

15

of the Lanham Act -- Unfair Competition

16

-- Against All Defendants)

79.

17

Plaintiff repeats, realleges and incorporates the allegations contained in

18 paragraphs 1 through 78, inclusive, hereof as if fully set forth herein.

80.

19

Plaintiff is informed and believes, and upon that basis alleges, that

20 Defendants have, without permission, authority or license from Plaintiff,

21 participated in or otherwise knowingly contributed to the affixation, application
22 and/or use by others, including other Defendants, of Plaintiffs Trademark including,
23 but not limited to, third-party use of Plaintiff's Trademark in the advertising,
24 solicitation, sale, licensing and broadcast of Music and Passion Live.
81.

25

Plaintiff did not know of this third-party use of Plaintiff's Trademark,

26 did not approve of it and did not endorse it.

82.

27

Defendants' contributory conduct in connection with this third-party

28 unauthorized and unlawful act of federal unfair competition, and each of them, have
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

14

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 15 of 24 Page ID #:57

1 enabled, assisted, aided and abetted the these third-parties to trade unlawfully upon
2 the established goodwill and reputation of Plaintiff, of Barry Manilow, and of
3 Plaintiff's Trademark.
83.

Defendants are thereby unjustly enriching themselves at the expense

5 and to the damage and injury of Plaintiff, and unless enjoined by this Court will
6 further impair the value of Plaintiffs Trademark and goodwill.
84.

By reason of the aforesaid, the continued use by any of the Defendants

8 customers of Plaintiffs Trademark, and/or the likenesses thereof, has caused, and
9 unless restrained will continue to cause, serious irreparable injury to Plaintiff.
85.

10

Plaintiff has no adequate remedy at law and has suffered, and is

11 continuing to suffer, irreparable harm and damage as a result of Defendants

12 respective acts of contributory federal unfair competition in amounts thus far not
13 determined but within the jurisdiction of this Court, which amounts should each be
14 trebled pursuant to 15 U.S.C. Section 1117.
86.

15

Defendants have been notified of their infringing and illegal activity.

16 Despite clear requests to Defendants, Plaintiff is informed and believes, and upon
17 that basis alleges, that Defendants willfully and knowingly continued at least certain
18 of their wrongful conduct in violation of Plaintiffs rights well after they were
19 notified of their illegal and infringing activity.
87.

20

Plaintiff is informed and believes, and upon that basis alleges, that

21 Defendants have obtained gains, profits and advantages as a result of their

22 respective wrongful acts of contributory federal unfair competition in amounts thus
23 far not determined but within the jurisdiction of this Court, which amounts should
24 each be trebled pursuant to 15 U.S.C. Section 1117.
88.

25

In order to determine the full extent of such damages, including such

26 profits as may be recoverable, Plaintiff will require an accounting from each

27 Defendant and others of all monies attributable to their unfair competition and false
28 designation of affiliation.
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

15

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 16 of 24 Page ID #:58

89.

By reason of the foregoing, Plaintiff has incurred, and will continue to

2 incur, attorneys fees and other costs in connection with the prosecution of his
3 claims herein, which attorneys' fees and costs Plaintiff is entitled to recover from
4 Defendants herein.
90.

Defendants' conduct was willful, wanton, malicious and deliberate such

6 that punitive damages should be awarded.

7

FIFTH CLAIM

(For State Law Unfair Competition

-- Against All Defendants)

91.

10

Plaintiff repeats, realleges and incorporates the allegations contained in

11 paragraphs 1 through 90, inclusive, hereof as if fully set forth herein.

92.

12

Plaintiff owns all right, title and interest in and to Plaintiffs

13 Trademark.
93.

14

Barry Manilow assigned to Plaintiff his rights of publicity, including all

15 rights associated with use of his name, his likeness, his reputation and his goodwill.
94.

16

Defendants have, without authority, permission or consent, traded upon

17 and profited from Plaintiff's Trademark, Barry Manilow's name, his likeness, his
18 reputation and his goodwill by using each of the same to sell products, to promote
19 their own products, including Princess Cruises' entertainment offerings on its cruise
20 lines and Swank's catalog of entertainment titles, and to benefit from their affiliation
21 with them.
95.

22

As such, Defendants have each committed trademark infringement,

23 misleading advertising, breach of the right of publicity, and unfair competition

24 under the common law and under the California Unfair Business Practices Act, Cal.
25 Bus. & Prof. Code 17200 et seq.
96.

26

Plaintiff is informed and believes, and upon that basis alleges, that

27 these deceptive, unfair and fraudulent practices have been undertaken with
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

16

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 17 of 24 Page ID #:59

1 knowledge by each defendant of their wrongfulness, in violation of the California

2 Unfair Business Practices Act, Cal. Bus. & Prof. Code 17200 et seq.
97.

Defendants acted for the willful and calculated purpose of

4 misappropriating Barry Manilow's goodwill, the value of Plaintiff's Trademark, and

5 the value of Barry Manilow's right of publicity.
98.

Plaintiff has no adequate remedy at law and has suffered, and is

7 continuing to suffer, irreparable harm and damage as a result of each Defendants

8 acts in amounts thus far not determined but within the jurisdiction of this Court.
99.

Plaintiff is informed and believes, and upon that basis alleges, that

10 Defendants have each unlawfully and wrongfully derived, and will continue to
11 derive, income, gains, profits and advantages as a result of their wrongful acts of
12 unfair competition in amounts thus far not determined but within the jurisdiction of
13 this Court.
100. In addition, Plaintiff is informed and believes, and upon that basis

14

15 alleges, that it has lost and will continue to lose profits and goodwill as a result of
16 Defendants respective conduct.
101. By reason of the foregoing acts of unfair competition, Plaintiff is

17

18 entitled to restitution from each Defendant of all income, gains, profits and
19 advantages resulting from their wrongful conduct in amounts to be determined
20 according to proof at trial.
102. In order to determine the full extent of such damages, including such

21

22 profits as may be recoverable, Plaintiff will require an accounting from each

23 Defendant of all monies attributable to their tortuous conduct.
103. Plaintiff is informed and believes, and upon that basis alleges, that

24

25 Defendants, and each of them, committed the acts alleged herein intentionally,
26 fraudulently, maliciously, willfully, wantonly and oppressively with intent to injure
27 Plaintiff in his business and with conscious disregard of Plaintiffs rights, thereby
28 justifying awards of punitive and exemplary damages against each Defendant.
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

17

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 18 of 24 Page ID #:60

SIXTH CLAIM

(For Dilution and/or Injury To Business Reputation

-- Against All Defendants)

104.

Plaintiff repeats, realleges and incorporates the allegations contained

5 in paragraphs 1 through 103, inclusive, hereof as if fully set forth herein.

105. Plaintiffs business reputation, the name Barry Manilow, and Music

7 and Passion Live, and each of them, are entitled to protection pursuant to Section
8 14330 of the California Business and Professions Code.
106. Each Defendants unauthorized appropriation(s) of part or all of

10 Plaintiffs Trademark and copyrighted product Music and Passion Live, as alleged
11 hereinabove, which are each valid at common law, are acts likely to injure
12 Plaintiffs business reputation and/or dilute the distinctive quality of Plaintiffs
13 trademark interests, and each Defendants unauthorized acts should be enjoined
14 pursuant to California Business and Professions Code Section 14330 as a result
15 thereof.
16

SEVENTH CLAIM

17

(For Violation of California Statutory Right of Publicity

18

-- Against All Defendants)

107.

19

Plaintiff repeats, realleges and incorporates the allegations contained

20 in paragraphs 1 through 106, inclusive, hereof as if fully set forth herein.

108. Barry Manilow assigned to Plaintiff his rights of publicity, including all

21

22 rights associated with use of his name, his likeness, his reputation and his goodwill.
109. On information and belief, Swank used Barry Manilow's name, voice,

23

24 photograph and/or likeness to market Music and Passion Live and sell, license
25 and/or rent it to consumers, including Princess Cruises.
110. Swank did not have Plaintiff's or Barry Manilow's authority,

26

27 permission or consent to use his name, voice, photograph or likeness to market

28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

18

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 19 of 24 Page ID #:61

1 Music and Passion Live and sell, license and/or rent it to consumers, including
2 Princess Cruises.
111. Swank profited from this unauthorized use of Barry Manilow's name,

4 voice, photograph and/or likeness.

112. Princess Cruises, on information and belief, used Barry Manilow's

6 name, voice, photograph and likeness to market the entertainment offerings on

7 board its ship(s).
113. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,

9 permission or consent to use his name, voice, photograph or likeness to market the
10 entertainment offerings on board its ship(s).
114. Princess Cruises profited from this unauthorized use of Barry

11

12 Manilow's name, voice, photograph and/or likeness.

115. Defendants misappropriation of Barry Manilow's name and/or likeness

13

14 for their own purposes, commercial or otherwise, is a violation of California Civil

15 Code Section 3344 and afforded them ill-begotten profits, the recovery of which
16 Plaintiff seeks.
116. As a result of Defendants' actions, Plaintiff has suffered, and continues

17

18 to suffer, damages in an amount to be proven at trial.

117. Defendants' conduct was willful, wanton, malicious and deliberate such

19

20 that punitive damages should be awarded.

21

EIGHTH CLAIM

22

(For Violation of California Common Law Right of Publicity

23

-- Against All Defendants)

118.

24

Plaintiff repeats, realleges and incorporates the allegations contained

25 in paragraphs 1 through 117, inclusive, hereof as if fully set forth herein.

119. Barry Manilow assigned to Plaintiff his rights of publicity, including all

26

27 rights associated with use of his name, his likeness, his reputation and his goodwill.
28 / / /
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

19

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 20 of 24 Page ID #:62

120. On information and belief, Swank used Barry Manilow's name, voice,

2 photograph and/or likeness to market Music and Passion Live and sell, license
3 and/or rent it to consumers, including Princess Cruises.
121. Swank did not have Plaintiff's or Barry Manilow's authority,

5 permission or consent to use his name, voice, photograph or likeness to market

6 Music and Passion Live and sell, license and/or rent it to consumers, including
7 Princess Cruises.
122. Swank profited from this unauthorized use of Barry Manilow's name,

9 voice, photograph and/or likeness.

123. Princess Cruises, on information and belief, used Barry Manilow's

10

11 name, voice, photograph and/or likeness to market the entertainment offerings on

12 board its ship(s).
124. Princess Cruises did not have Plaintiff's or Barry Manilow's authority,

13

14 permission or consent to use his name, voice, photograph or likeness to market the
15 entertainment offerings on board its ship(s).
125. Princess Cruises profited from this unauthorized use of Barry

16

17 Manilow's name, voice, photograph and/or likeness.

126. Further, Defendants, and each of them, gained a commercial advantage

18

19 by using Barry Manilow's name, voice, photograph, and/or likeness as part of their
20 respective entertainment portfolios without his authority, permission or consent.
127. As a result of Defendants' actions, Plaintiff has suffered, and continues

21

22 to suffer, damages in an amount to be proven at trial.

128. Defendants' conduct was willful, wanton, malicious and deliberate such

23

24 that punitive damages should be awarded.

25 / / /
26 / / /
27 / / /
28 / / /
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

20

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 21 of 24 Page ID #:63

PRAYER FOR RELIEF

WHEREFORE, Plaintiff demands judgment as follows:

1.

That Defendants, and each of them, be adjudged to have infringed,

4 willfully or otherwise, Plaintiffs copyrighted work, Music and Passion Live.

2.

That Defendants, and each of them, be adjudged to have contributorily

6 infringed, willfully or otherwise, Plaintiffs copyrighted work, Music and Passion

7 Live.
3.

That Defendants, and each of them, be adjudged to have infringed,

9 willfully or otherwise, Plaintiffs Trademark.

4.

10

That Defendants, and each of them, be adjudged to have contributorily

11 infringed, willfully or otherwise, Plaintiffs Trademark.

5.

12

For a full and complete accounting from each Defendant of all infringing

13 activities, including reproduction, use, distribution, marketing, publicly performing,

14 licensing, renting and/or sale of Plaintiff's intellectual property, and of all income,
15 profits, gains and advantages received by such Defendant therefrom;
6.

16

That judgment be rendered jointly and severally against Defendants, and

17 each of them, for:

a.

18

All profits, gains and advantages received by any of the

19 Defendants as a result of any of the Defendants' respective acts of copyright

20 infringement, as provided by 17 U.S.C. Section 504;
b.

21

All damages suffered by Plaintiff as a result of any of the

22 Defendants' respective acts of copyright infringement, as provided by 17 U.S.C.

23 Section 504;
c.

24

Statutory damages against each of the Defendants for its

25 infringing activities where available; and

d.

26

All income, gains, profits and other advantages received by any

27 of the Defendants and all damages sustained by Plaintiff, on account of the

28 Defendants' respective acts of unfair competition under the Lanham Act; and
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

21

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 22 of 24 Page ID #:64

1 furthermore, that such profits and damages as found herein be trebled pursuant to 15
2 U.S.C. Section 1117;
e.

All income, gains, profits and other advantages received by any

4 of the Defendants and all damages sustained by Plaintiff on account of the

5 Defendants' respective acts of state law unfair competition, dilution or injury to
6 business reputation, and breach of Barry Manilow's rights of publicity; and
g.

Such other and further damages as may be available in accord

8 with California Business and Professions Code Sections 14330 and/or 17200 et seq.
7.

That judgment be further rendered jointly and severally against the

10 Defendants, and each of them, for:

a.

11

All profits, gains and advantages received by any of the

12 Defendants as a result of any of the Defendants' respective acts of contributory

13 copyright infringement, as provided by 17 U.S.C. Section 504;
b.

14

All damages suffered by Plaintiff as a result of any of the

15 Defendants' respective acts of contributory copyright infringement, as provided by

16 17 U.S.C. Section 504;
c.

17

Statutory damages against each of the Defendants for its

18 contributory infringing activities where available; and

d.

19

All income, gains, profits and other advantages received by any

20 of the Defendants and all damages sustained by Plaintiff, on account of the

21 Defendants' respective acts of contributory unfair competition; and furthermore, that
22 such profits and damages as found herein be trebled pursuant to 15 U.S.C. Section
23 1117.
8.

24

That judgment be further rendered jointly and severally against each of

25 the Defendants for restitutionary damages in amounts to be determined at trial, but

26 in no event less than all income, gains, profits and other advantages derived as a
27 result of such defendants direct and/or contributory unfair business activities.
9.

28

The imposition of exemplary and punitive damages against Defendant.

LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

22

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 23 of 24 Page ID #:65

10. That Plaintiff recover its costs and disbursements incurred in this action,

2 including an award of its reasonable attorneys and investigators fees.

11. That Plaintiff recover prejudgment interest on all profits and damages

4 awarded by this Court.

12. That the Court grant such other and further relief as it may deem just and

6 proper.
7
8 DATED: March 22, 2016
9

TODD W. BONDER, ESQ

RYAN M. LAPINE, ESQ.
JOSHUA H. HERR, ESQ.
ROSENFELD, MEYER & SUSMAN LLP

10
11

By:

/s/ Ryan M. Lapine

Ryan M. Lapine
Attorneys for Plaintiff,
HASTINGS, CLAYTON & TUCKER, INC.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

23

FIRST AMENDED COMPLAINT

Case 2:16-cv-01831-GHK-JEM Document 9 Filed 03/22/16 Page 24 of 24 Page ID #:66

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff HASTINGS,

3 CLAYTON & TUCKER, INC. hereby demands trial by jury of all issues so triable.
4
5 DATED: March 22, 2016
6

TODD W. BONDER, ESQ.

RYAN M. LAPINE, ESQ.
JOSHUA H. HERR, ESQ.
ROSENFELD, MEYER & SUSMAN LLP

7
8

By:

/s/ Ryan M. Lapine

Ryan M. Lapine
Attorneys for Plaintiff,
HASTINGS, CLAYTON & TUCKER, INC.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LAW OFFICES

ROSENFELD,
MEYER &
SUSMAN LLP

508028.01

24

FIRST AMENDED COMPLAINT