Case 1:18-cv-02446 Document 1 Filed 09/25/18 USDC Colorado Page 1 of 15

UNITED STATES DISTRICT COURT

Case No.: 1:18-cv-02446

ANA CHERI and JULIANNE KLAREN,

Defendants.

COMPLAINT AND JURY DEMAND

Plaintiffs, Ana Cheri and Julianne Klaren, by and through their attorneys, BURG

SIMPSON ELDREDGE HERSH & JARDINE, P.C., hereby submit their Complaint and Jury

Demand against Defendants Deja Vu – Colorado Springs, Inc. a/k/a Deja Vu, Inc. d/b/a Déjà Vu

Showgirls, Deja Vu Services, Inc., and Pine Tree Assets, Inc. f/k/a Deja Vu Consulting, Inc., and

allege and aver as follows:

INTRODUCTION

1. This is an action for damages and other relief under The Lanham Act arising from

the misappropriation and misuse of Plaintiffs’ images in order to promote the strip club located at

2145 B Street, Colorado Springs, CO 80906 (hereinafter “Deja Vu”).

2. For the purposes of this Complaint, Defendants Deja Vu – Colorado Springs, Inc.

a/k/a Deja Vu, Inc. d/b/a Déjà Vu Showgirls, Deja Vu Services, Inc., and Pine Tree Assets, Inc.

f/k/a Deja Vu Consulting, Inc. shall hereinafter be collectively referred to as “Defendants.”

3. Defendants use the Deja Vu website and online social media marketing platforms

to market and advertise Deja Vu as having “1000s of Beautiful Girls & 3 Ugly Ones!,” and a place

where “you will scream with joy, watching the incredible nude display of stage talent,” and where

its “showgirl squadron numbers nearly 40+ shapely bombardiers and are ready to blow you off the

map seven, savage days a week.”

4. As a means of illustrating those claims and in an effort to drive traffic and economic

and commercial benefits to Deja Vu, Defendants posted pictures of many women on their website

and social media platforms, including on their Twitter web-page.

5. To promote Deja Vu, and in furtherance of Defendants’ commercial benefit,

Defendants posted, and then continually maintained on their Twitter account, images of Plaintiffs.

6. The use of Plaintiffs’ images, as referred to in the preceding paragraph, created a

false impression that Plaintiffs worked at, would appear at, endorsed, sponsored, or were affiliated

with Deja Vu.

7. Plaintiffs are not employed by Defendants, do not strip or dance at Deja Vu, do not

endorse or sponsor Deja Vu or their promotional activities, and are not affiliated with Deja Vu in

any way.

8. Defendants did not have Plaintiffs’ permission to use their images or likenesses,

nor did Defendants ever request permission.

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9. Defendants have not compensated Plaintiffs for the use of their images or

likenesses for commercial and/or other purposes.

10. Defendants knew that their use of Plaintiffs’ images and likenesses was

unauthorized, and knew that their use of Plaintiffs’ images would cause consumer confusion as to

Plaintiffs’ sponsorship, approval of, affiliation with, and/or employment at Deja Vu.

11. Defendants’ unauthorized use of the Plaintiffs’ images, likenesses and/or

identities, as described herein, violates Section 43 of the Lanham Act, 15 U.S.C. §1125(a).

12. This action seeks all actual and compensatory damages as compensation for

Defendants’ unlawful activities, the Defendants’ profits that are attributable to their unlawful use

of Plaintiffs’ images, likenesses, and identities, treble damages, attorney’s fees and costs, and other

such relief as would be fair and just to remedy Defendants’ unlawful acts, and to ensure that no

such violations occur in the future.

PARTIES

13. Plaintiff Ana Cheri is an internationally known and recognizable talent, model,

actress, host, social media personality, brand ambassador, and business-woman residing in

Westminster, California.

14. Plaintiff Julianne Klaren is an internationally known and recognizable talent,

model, and social media personality residing in San Diego, California.

15. Defendant Deja Vu – Colorado Springs, Inc. a/k/a Deja Vu, Inc. d/b/a Déjà Vu

Showgirls is a Colorado corporation, with a principal office address located at 1530 1st Ave S,

Suite A, Seattle, WA 98134.

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16. Upon information and belief, Defendants Deja Vu – Colorado Springs, Inc. a/k/a

Deja Vu, Inc. d/b/a Déjà Vu Showgirls owns and operates Déjà Vu Showgirls strip club.

17. Defendants Deja Vu Services, Inc. is a Michigan corporation with a registered

office address located at 8252 E. Lansing Road, Durand, Michigan 48429.

18. Upon information and belief, Defendants Deja Vu Services, Inc. is an owner or

operator of Deja Vu.

19. Pine Tree Assets, Inc. f/k/a Deja Vu Consulting, Inc. is a Michigan corporation with

a registered office address located at 8252 E. Lansing Road, Durand, Michigan 48429.

20. Upon information and belief, Defendants Pine Tree Assets, Inc. f/k/a Deja Vu

Consulting, Inc. is an owner or operator of Deja Vu.

JURISDICTION AND VENUE

21. Jurisdiction in this case is based upon 28 U.S.C. § 1331, because Plaintiffs’

claims arise under 15 U.S.C. § 1125(a) (The Lanham Act).

22. The Court has personal jurisdiction over Defendants by virtue of their presence

and operations in Colorado, by their transacting business in Colorado, and by virtue of their

improper acts and violations of The Lanham Act in this state, all of which have caused Plaintiffs’

damages, and through regular, continuous, and systematic contacts with Colorado such that this

Court’s exercise of personal jurisdiction over Defendants is proper, reasonable, and comports

with traditional notions of fair play and substantial justice.

23. Venue is proper in this Court because this district is where a substantial part of the

events or omissions giving rise to the claims stated herein occurred, and Defendants are subject

to personal jurisdiction in this venue.

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GENERAL ALLEGATIONS

Defendants’ Use of Website and Social Media Platforms for Marketing

24. The Defendants coordinate the advertising, marketing and promotional activities

for Deja Vu through, among other things, active and dynamic use of Deja Vu’s website and various

coordinated and linked social media promotions through Facebook, Instagram, and Twitter,

(“social media sites”), among others.

25. Defendants’ marketing and promotional activities are publicly accessible through

the World Wide Web, various social media outlets, and affirmative prospect marketing.

26. Defendants further promote Deja Vu’s business by and through the use of

marketing strategies and channels including, but not limited to, the following: the active use of

social media sites such as Instagram, Facebook, and Twitter.

27. At all times relevant to this Complaint, Defendants had actual and exclusive control

over the contents contained within and/or displayed on each of these marketing channels.

28. Upon information and belief, Defendants manage, operate and/or control a “Twitter

account” (accessible via the Twitter Social Media Platform at

https://www.twitter.com/dejavucolorado), through which they promote, endorse, and market their

business, solicit customers, and advertise events for the Deja Vu strip club, and particularly

through the use of images of women in various stages of undress.

29. Defendants have at all times relevant to this Complaint exercised actual control

over the contents displayed on their Twitter account through their own personal acts of posting

items on the account, or by expressly permitting and condoning another person(s)’ act of posting

items on the Twitter account.

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30. At the time Defendants posted the Plaintiffs’ images, the Deja Vu Twitter

page/account stated, “Hot girls! Hot club! Just tweeting about what we do and random things that

pop into our heads.”

Plaintiffs Are Professional Models and Their Images Are Commercially Valuable

31. Plaintiff Ana Cheri, at all times relevant to the claims herein, is a professional

model, actress, social media personality, brand ambassador, and business-woman who earns her

living by, inter alia, modeling and selling her image to companies and individuals for the

advertisement of products and services.

32. Plaintiff Julianne Klaren, at all times relevant to the claims herein, is a professional

model and social media personality who earns her living by, inter alia, modeling and selling her

image to companies and individuals for the advertisement of products and services.

33. Plaintiffs’ careers in modeling and private enterprise have value stemming from the

goodwill and reputations they have built.

34. Plaintiffs’ goodwill and reputations are critical to establishing a brand, being

selected for jobs, and maximizing earnings.

35. A model’s reputation directly impacts the commercial value associated with the use

of one’s image, likeness, or identity to promote a product or service.

36. Plaintiffs’ images and likenesses have high commercial value and Plaintiffs

command substantial sums of money for the licensed commercial use of their images.

37. Plaintiffs are professional models in the ordinary course; they seeks to control the

commercial use and dissemination of their images and identities, and, thus, actively participate in

vetting and selecting modeling, advertising, brand spokesperson, and/or hosting engagements.

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38. Plaintiffs rely on their professional reputations and own brands for modeling,

hosting, and other professional opportunities.

39. Plaintiffs’ vetting and selection of professional engagements involves a multi-tiered

assessment, to wit:

a. whether the individual or entity seeking a license and release of Plaintiffs’

images, likenesses, or identities is reputable, has reputable products or services,

and, through affiliation therewith, would enhance or harm their stature or

reputations;

b. this reputational information is used in negotiating compensation which

typically turns on the work Plaintiffs are hired to do, the time involved, travel,

and how their images are going to be used (among other variables);

c. to protect their reputations and livelihood, Plaintiffs and/or their agents

carefully and expressly define the terms and conditions of use;

d. the entire negotiated deal is reduced to and memorialized in an integrated,

written agreement that defines the parties’ relationship, the terms and

conditions of which, typically, unless otherwise expressly delineated, bind and

are applicable to only the parties to that Agreement.

40. In the modeling industry, reputation is critical; endorsing, promoting, advertising

or marketing the “wrong” product, brand, business, or service, or working in a disreputable

industry, can severely impact a model’s career by limiting or foreclosing future modeling or brand

endorsement opportunities.

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41. Conversely, association with high-end companies, products, or magazines can

enhance and amplify a model’s earning potential and career opportunities by making a model more

sought after and desirable.

42. As set forth below, Plaintiffs’ images were misappropriated by or at the direction

of the Defendants to advertise and promote Deja Vu in their online marketing scheme without

Plaintiffs’ consent.

The Misappropriated Images

43. On September 25, 2015 and January 4, 2016, without her knowledge, consent, or

authorization, Defendants posted Plaintiff Ana Cheri’s image on Defendants’ Twitter site for the

purpose of advertising and promoting Defendants’ strip club and soliciting patronage of Deja Vu.

44. Attached as Exhibit 1 are copies of Defendants’ use of Plaintiff Ana Cheri’s image

and likeness on their Defendants’ Twitter site, which is hereby incorporated by reference.

45. On October 23, 2015, without her knowledge, consent, or authorization,

Defendants posted Plaintiff Julianne Klaren’s image on Defendants’ Twitter site for the purpose

of advertising and promoting Defendants’ strip club and soliciting patronage of Deja Vu.

46. Attached as Exhibit 2 is a copy of Defendants’ use of Plaintiff Julianne Klaren’s

image and likeness on their Defendants’ Twitter site, which is hereby incorporated by reference.

47. After Defendants used Plaintiffs’ images on their Twitter site, Plaintiffs discovered

that Defendants were knowingly and without prior consent, using their images.

48. Defendants’ use of Plaintiffs’ images and likenesses on their Twitter site falsely

implies and creates the impression that Plaintiffs have worked for, would appear at, have endorsed,

or are otherwise affiliated with Deja Vu.

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49. Defendants’ use of Plaintiffs’ images was unauthorized and intended to attract

customers, promote Deja Vu, and generate revenue for the Defendants.

50. Plaintiffs are readily identifiable in the misappropriated images, and Defendants

could not reasonably believe that Plaintiffs were employees or agents of the Defendants or

otherwise affiliated with the Defendants.

51. Defendants have never contacted the Plaintiffs, either directly or indirectly, to

request permission to use their images, likenesses, or identities.

52. Defendants never hired or contracted with Plaintiffs to advertise, promote, market

or endorse Deja Vu.

53. Plaintiffs have never been employed by Defendants or contracted with Defendants

to participate in events at Deja Vu.

54. Defendants never sought permission or authority to use Plaintiffs’ images,

likenesses, or identities to advertise, promote, market, or endorse Deja Vu.

55. Plaintiffs never gave permission, or assigned, licensed, or otherwise consented, to

Defendants’ use of their images, likenesses, or identities to advertise, promote, market or endorse

Deja Vu.

56. Defendants neither offered nor paid any remuneration to Plaintiffs for the

unauthorized use and misappropriation of their images, likenesses, or identities.

57. Defendants’ use of Plaintiffs’ images created the false perception that Plaintiffs

worked for Deja Vu, would appear at Deja Vu, or had consented or agreed to promote, advertise,

market and/or endorse Deja Vu and their events to the benefit of Defendants’ commercial interests.

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58. Defendants’ use of Plaintiffs’ images, likenesses, and/or identities impugns the

Plaintiffs’ character, embarrasses them, and falsely suggests their support for and participation in

a strip club lifestyle, causing Plaintiffs’ damages.

FIRST CAUSE OF ACTION

Violation of the Lanham Act, 15 U.S.C. § 1125(a)

59. Plaintiffs hereby incorporate by reference each and every allegation set forth in the

foregoing paragraphs as if fully alleged herein.

60. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), applies to Defendants.

61. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), protects Plaintiffs from the

Defendants’ conduct described herein.

62. Defendants used Plaintiffs’ images, likenesses and/or identities as described herein

without authority in order to, inter alia, create the false perception that the Plaintiffs worked at,

would appear at, or were otherwise affiliated with Deja Vu, endorsed Deja Vu or Deja Vu’s

business activities, and/or consented to or authorized Defendants’ usage of their images, likenesses

and/or identities in order to advertise, promote and market Deja Vu’s business activities.

63. Defendants’ use of the Plaintiffs’ images, likenesses and/or identities to advertise,

promote, and market Defendants’ business, events and activities as described in this Complaint

was false, misleading, and a misrepresentation of fact.

64. Defendants’ unauthorized use of the Plaintiffs’ images, likenesses and/or identities

as described herein constitutes false advertising and false endorsement by falsely suggesting or

implying, inter alia, that the Plaintiffs worked at or were otherwise affiliated with, associated with,

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or connected to, Deja Vu, endorsed Deja Vu’s business, events or activities, or consented to or

authorized Deja Vu’s usage of their images in order to advertise, promote, and market Deja Vu’s

business, events and activities.

65. The manner of the Defendants’ unauthorized use of the Plaintiffs’ images,

likenesses and/or identities has a tendency to convey a false impression, confuse, mislead, and/or

deceive consumers, including actual and prospective patrons to Deja Vu, as to the general quality

of attendees and participants at Deja Vu and in their events, as well as specifically whether the

Plaintiffs worked at or were otherwise affiliated or associated with Deja Vu, and whether the

Plaintiffs endorsed, sponsored, or approved of Defendants’ business, Deja Vu, or Deja Vu’s events

or activities, or whether Plaintiffs would appear in person at Deja Vu’s events and activities.

66. Upon information and belief, Defendants’ false and deceptive use of Plaintiffs’

images did, in fact, deceive, and/or cause actual consumer confusion as to:

a. whether the Plaintiffs worked at, would appear at, or were otherwise affiliated

or associated with Deja Vu;

b. whether the Plaintiffs endorsed, sponsored, or approved of Defendants’

business, events and activities; and

c. whether the Plaintiffs consented to or authorized Deja Vu’s usage of their

images, likenesses, and/or identities in order to advertise and promote

Defendants’ business, events and activities.

67. Upon information and belief, such unauthorized use of Plaintiffs’ images,

likenesses, and/or identities misled and deceived consumers, and served to entice consumers and

prospective consumers to visit Deja Vu and participate in and attend events at Deja Vu and had a

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material effect and impact on the decision of patrons and prospective patrons to visit Defendants’

business establishment.

68. Defendants’ advertisements, promotions, and marketing of Deja Vu and events at

Deja Vu occur in and are targeted to interstate commerce.

69. Defendants promote their business and events through interstate promotions and

campaigns to target persons from several different states across the United States.

70. Defendants principally uses the internet, World Wide Web, social media, and other

vehicles of interstate commerce to advertise, market, promote, and entice or lure traffic and

patronage to their establishment and increase revenue.

71. Defendants’ unauthorized use of the Plaintiffs’ images, likenesses, and/or

identities as described herein was designed and intended to benefit Defendants’ commercial and

business interests by, among other things, capitalizing on Plaintiffs’ goodwill by promoting Deja

Vu and their activities and attracting clientele to Deja Vu, thereby generating revenue for the

Defendants to the detriment of the Plaintiffs.

72. Plaintiffs are in the business of commercializing their identities and selling their

images to reputable brands and companies for profit.

73. Defendants’ customers are the same demographic that view Plaintiffs’ images in

print and online.

74. Both Plaintiffs and the Defendants compete in the entertainment industry and utilize

similar marketing channels, their respective endeavors overlap, and they vie for the same dollars

from the same demographic consumer group.

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75. As such, an unauthorized use of Plaintiffs’ images to promote a strip club created

an undeniable confusion in Defendants’ consumers’ minds, leading to competitive injury to

Plaintiffs.

76. Defendants knew or should have known that their unauthorized use of the

Plaintiffs’ images, likenesses, and/or identities would cause consumer confusion as described

herein.

77. Defendants’ unauthorized use of the Plaintiffs’ images, likenesses, and/or

identities, as described herein, violates 15 U.S.C. §1125(a), constitutes false advertising and false

endorsement, and was wrongful.

78. Defendants’ wrongful conduct as described herein was willful.

79. Defendants had actual or constructive knowledge of the wrongfulness of their

conduct, acted with intent to capitalize on Plaintiffs’ goodwill and deprive the Plaintiffs of their

interests and rights, and further acted with actual or constructive knowledge of the high probability

that injury or damage would result to Plaintiffs.

80. The method and manner in which Defendants used the images of Plaintiffs further

evinces that Defendants were aware of and/or consciously disregarded the fact that the Plaintiffs

did not consent to Defendants’ use of their images to advertise Defendants’ business.

81. Defendants have caused and will continue to cause irreparable harm and damage

to the Plaintiffs, their reputations, and their brands, by attributing to the Plaintiffs their involvement

with or endorsement of the Deja Vu strip club and Plaintiffs’ association with events and activities

relating thereto.

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82. Defendants have damaged Plaintiffs as a direct, foreseeable, and proximate result

of their unauthorized use of Plaintiffs’ images, likenesses, and/or identities without compensating

Plaintiffs, thereby entitling Plaintiffs to recover in money damages the actual and fair market value

of each misappropriated use of their images and likenesses in an amount to be established by proof

at trial.

83. As a further direct and proximate result of Defendants’ conduct as alleged herein,

Defendants have earned and withheld profits attributable directly or indirectly to the unlawful use

of Plaintiffs’ images, entitling Plaintiffs to disgorgement of those ill-gotten gains in an amount to

be established by proof at trial.

84. Defendants’ conduct was purposeful and malicious in that Defendants knowingly

violated Plaintiffs’ rights solely to benefit their business, increase profits, and avoid paying money

to legally acquire the right to commercial use of the Plaintiffs’ images and likenesses.

85. Consequently, exceptional relief is warranted pursuant to 15 U.S.C. §§ 1116, and

1117(a), entitling Plaintiffs to treble damages and reasonable attorneys’ fees.

PRAYOR FOR RELIEF

WHEREFORE, the Plaintiffs pray for judgment against Defendants Deja Vu – Colorado

Springs, Inc. a/k/a Deja Vu, Inc. d/b/a Déjà Vu Showgirls, Deja Vu Services, Inc., and Pine Tree

Assets, Inc. f/k/a Deja Vu Consulting, Inc., and each of them, for relief in amounts to be determined

at trial, as follows:

1. All compensatory, general, special, and consequential damages;

2. All damages allowed by 15 U.S.C. §§ 1125, 1116, and 1117, including all actual and

consequential damages sustained by Plaintiffs, including all economic damages and

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losses, disgorgement of profits attributable to Defendants’ misappropriation of the

Plaintiffs’ images and likenesses, and well as treble damages and reasonable attorney’s

fees;

3. Pre and post judgment interest;

4. Costs and expenses, including expert fees and costs;

5. For such further and other relief as the Court deems just.

JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

Respectfully submitted this 25th day of September, 2018.

BURG SIMPSON ELDREGE HERSH & JARDINE, P.C.

(Original signature on file at the offices of Burg

s/ Steven G. Greenlee
Steven G. Greenlee, Reg. No. 24577
Shane Fulton, Reg. No. 52212
40 Inverness Drive East
Englewood, CO 80112
Phone: 303-792-5595
[email protected]
[email protected]

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