Documentos de Académico
Documentos de Profesional
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CHILDRENS MIRACLE
NETWORK, a Utah non-profit
corporation
______________________________
)
)
) CASE NO. '15CV0499 AJB DHB
)
)
)
Plaintiff,
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COMPLAINT
vs.
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)
)
(Demand for Jury Trial)
MIRACLE BABIES, a California
)
non-profit corporation,
)
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Defendants.
)
_____________________________ )
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1.
origin, unfair competition and related claims against Miracle Babies based on its
infringement of Plaintiffs Miracle-based trademarks that CMN uses in
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COMPLAINT
connection with raising money for childrens hospitals throughout the United
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business in Salt Lake City, Utah. CMN is a charitable organization that raises
money for childrens hospitals throughout the United States and Canada. CMN
also creates awareness and educates the public about childrens health care issues,
the shortage of available resources, and good health care practices to prevent
accidents and disease, and the hospitals, institutions and people who provide
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corporation with its principal place of business in San Diego, California. Miracle
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Babies raises money to support the families of infants requiring health care.
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Miracle Babies also operates the Miracle Babies Family Network to provide
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support to the families of ill newborns, and Raising Miracles to provide support
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under the Lanham Act (15 U.S.C. 1051-1127), common law trademark
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This Court has subject matter jurisdiction over this action under 28
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1121 (trademarks). This Court has supplemental jurisdiction over CMNs state
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law claims under 28 U.S.C. 1367(a) because those claims arise from a common
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COMPLAINT
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Diego, California.
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GENERAL ALLEGATIONS
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hospitals throughout the United States and Canada. CMN also creates awareness
and educates the public about childrens health care issues, the shortage of
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available resources, and good health care practices to prevent accidents and
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disease, and the hospitals, institutions and people who provide childrens health
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care.
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CMN has relationships with about 200 television stations, 250 radio
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stations, 100 corporate sponsors, and a number of celebrities and sports figures.
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education mission for more than 30 years through, among other things, fundraising
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Walmart, Marriott, Delta Airlines, Costco, Dairy Queen, RE/MAX, Ace Hardware,
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celebrity appearances promoting CMN and its mission on major national television
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news and talk shows, fundraising through a national network of credit unions,
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COMPLAINT
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www.childrensmiraclenetworkhospitals.org.
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involving the word MIRACLE that are used in connection with charitable
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production of radio and television programs in the field of children and childrens
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issues;
c.
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services;
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COMPLAINT
g.
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information;
l.
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services;
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m.
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o.
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COMPLAINT
p.
associates, sponsors and member hospitals in the field of charitable fundraising and
eleemosynary services.
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prima facie evidence of the validity of the foregoing marks and registrations, and
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of CMNs ownership of and exclusive right to use these marks in connection with
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the services set forth in the registrations. Moreover, most of the above
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validity of the marks and the registrations and of CMNs ownership of and
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exclusive right to use the marks in connection with the services set forth in the
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used and is currently using numerous other marks, both registered and
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described services.
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and promoting its goods and services under its registered and non-registered marks
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and as a result, CMN has acquired substantial good will and consumer recognition.
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services, including raising funds for and providing financial assistance to the
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COMPLAINT
critically-ill newborns using the names Miracle Babies, Miracle Babies Family
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Raising Miracles marks (the Infringing Marks) are confusingly similar to CMNs
word that is identical to a word used in CMNs marks Miracle coupled with a
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confusion and a false association between CMNs services and the services offered
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by Defendant, falsely leading consumers to believe that the services emanate from
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the same source or that CMN and Miracle Babies are affiliated.
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in and will continue to result in substantial and irreparable harm to CMN and to
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consumers.
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CMNs marks.
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determined at trial. These acts will result in further damage and irreparable injury
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if Miracle Babies is not restrained by this Court from further violation of CMNs
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COMPLAINT
a.
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which its goods and services are presented to the general public;
b.
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officers, agents, servants, employees, attorneys, and all persons acting in concert
with them, from engaging in any further acts in violation of CMNs rights.
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interest, and attorneys fees and costs CMN has sustained and will sustain as a
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result of Miracle Babies acts as alleged herein. At present, the amount of such
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CAUSES OF ACTION
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COUNT I
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paragraphs.
30.
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COMPLAINT
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Babies has derived and received, and will continue to derive and receive, gains,
profits, and advantages from Miracle Babies false designation of origin, false or
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representations of fact, CMN has been damaged and is entitled to monetary relief
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reputation. CMN has no adequate remedy at law because damages are continuing
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34.
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35.
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is entitled to an award of attorneys fees under 35(a) of the Lanham Act (15
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U.S.C. 1117(a)).
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37.
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COMPLAINT
COUNT II
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paragraphs.
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CMN owns and possesses valid registrations issued by the USPTO for
Babies use of the Infringing Marks in interstate commerce to promote its services,
are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection or association of Miracle Babies with CMN, or as to the origin,
sponsorship or approval of Miracle Babies services and products by CMN.
Miracle Babies conduct constitutes trademark infringement in violation of 32 of
the Lanham Act (15 U.S.C. 1114).
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cause damage and irreparable injury to the value and goodwill of CMNs
Miracle-based marks, as well as damages and irreparable injury to CMNs
business, goodwill, and reputation. CMN has no adequate remedy at law because
damages are continuing and difficult to ascertain. On information and belief,
Miracle Babies continued use of the Infringing Marks is deliberate, willful,
fraudulent, and constitutes a knowing infringement of CMNs Miracle-based
marks, and makes this case exceptional.
42.
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COMPLAINT
COUNT III
COMPETITION)
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paragraphs.
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based marks.
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consumer confusion and therefore infringes CMNs common law trademark rights
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under federal common law, California common law, and constitutes unfair
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competition.
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Babies acts complained of herein are willful and deliberate and committed with
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knowledge that Miracle Babies unauthorized use of the CMN Marks and CMNs
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Babies has derived and received and will continue to derive and receive, gains,
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that is not presently known to CMN. By reason of Miracle Babies wrongful acts
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as alleged in this Complaint, CMN has been damaged and is entitled to monetary
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and continues to suffer great and irreparable injury for which CMN has no
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and California common law constitute fraud, oppression, and malice. Accordingly,
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COMPLAINT
COUNT IV
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paragraphs.
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based marks.
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consumer confusion and therefore infringes CMNs common law trademark rights
under federal common law, California common law, and constitutes unfair
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competition.
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the public as to the origin or sponsorship of Miracle Babies goods, services, and
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activities.
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activities have caused, and unless enjoined by this Court will continue to cause,
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irreparable injury and other damages to CMNs business, reputation, and good will
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COUNT V
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paragraphs.
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COMPLAINT
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mark, or any mark that is confusingly similar, within any domain name, or as a
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Babies use of marks and terms which are confusingly similar to CMNs
Miracle-based marks, of which Miracle Babies was well aware before creating
its website, in its domain names, was and continues to be a deliberate, willful and
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bad faith intent to profit from CMNs goodwill, divert the public for Miracle
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By reason of the above actions, CMN has suffered and will continue
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to suffer irreparable injury to its rights and substantial loss of goodwill and
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reputation unless and until Miracle Babies is restrained from continuing its
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wrongful acts and required to transfer ownership of the offending domain name to
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CMN.
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to recover monies Miracle Babies derived through the infringing domain, any
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damages sustained by CMN, and costs of this action under 15 U.S.C. 1117.
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COMPLAINT
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COUNT VI
(UNJUST ENRICHMENT)
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paragraphs.
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and knowingly copied and infringed upon CMNs Miracle-based marks for its
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own illegal and unlawful purposes and as a direct and proximate result of Miracle
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Babies unlawful and improper acts, Miracle Babies has been unjustly enriched.
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revenues by virtue of Miracle Babies conduct and its unlawful and illegal acts
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have caused and are continuing to cause irreparable injury to CMN. Unless
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Miracle Babies is restrained, it will continue to infringe upon CMNs marks to the
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account for and turn over to CMN an amount equal to the value of any benefits
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COMPLAINT
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persons participating or acting in concert with it, from infringing any of CMNs
rights in the Miracle-based marks;
B.
persons participating or acting in concert with it, from using the Infringing Marks
or any other marks confusingly similar to CMNs Miracle-based marks;
C.
all literature, advertisements, business forms, signs, and any other representations,
regardless of form, which are in, or come to be in, Miracle Babies possession,
custody, or control and which bear the Infringing Marks or any other confusingly
similar variant to CMNs Miracle-based marks, and an order from the Court
compelling Miracle Babies to notify their direct customers, agents, and
representatives that its misuse of the Infringing Marks or any confusingly similar
variant is not connected with CMN;
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accounting of all revenues gained by Miracle Babies while engaging in the acts
complained of in this Complaint;
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COMPLAINT
G.
additional damages that the Court deems just and equitable under the
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(15 U.S.C. 1117) on the claim asserted under 43(a) of the Lanham Act (15
U.S.C. 1125(a));
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I.
obtained by Miracle Babies wrongful acts, to be held for the benefit of CMN;
J.
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U.S.C. 6621(a)(2) from the date of service of the Complaint through the date of
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judgment;
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L.
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M.
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equitable.
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JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Local
Rule 38.1, CMN hereby demands trial by jury on all issues triable by a jury.
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COMPLAINT