Don Henley v. Duluth Holdings - Don a Henley t-shirts.pdf

8/11/2019 Don Henley v. Duluth Holdings - Don a Henley t-shirts.pdf

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^S

THOMAS

P. JIRGAL (SBN 202637)

[email protected]

MELANIE

J.HOWARD

(SBN

218895)

[email protected]

LOEB LOEBLLP

10100 Santa Monica Blvd., Suite 2200

Los Angeles, CA 90067

Telephone: 310.282.2000

Facsimile:

310.282.2200

Attorneys for

Plaintiff

Don Henley

Don Henley,

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT

Plaintiff,

Duluth Holdings Inc., d/b/a Duluth

Trading Company, W cor .v covpo.-a-fr

Defendant.

^m

io

O

I

I

o

en

OF CALIFORNIA

COMPLAINT FOR:

(a)

Trademark

Infringement in

Violation ofU.S.

Lanham

Act, 15

U.S.C. 1114;

(b )

False

Endorsement and

Unfair

Competition in Violation

of

Lanham Act, 15 U.S.C. 1125;

(c) Violation of California Business &

Professions Code 17200;

(d) Violation

of

California

Statutory

Right

of Publicity, Cal. Civ. Code

3344;

(e) Violation

of

Common Law Right

of

Publicity

DEMAND FOR

JURY TRIAL

Plaintiff

Don

Henley

brings

this Complaint against Duluth Holdings

Inc.

d/b/a

Duluth Trading Company ( Duluth Trading Company ) and alleges

for his

Complaint as follows:

COMPLAINT

n

o


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oeb

oeb

A Limited Liability

Partnership

Including Professional

Corporations

o

PREL IM INARY

1. The Eagles are one of the

Don Henley is one of the band's

most

member of the Eagles, Mr. Henley has

public advocate for artists' rights. Hip

portion of the United States population.

2. Duluth Trading Compan

located

in

Wisconsin

that

markets

and

Duluth is a sophisticated marketer that

television stations, by email, and

through

3. In disregard

of

Mr. Henley

violation

of

registered trademarks that

and

distributed

an adver ti semen t

invokes Mr. Henley's name and his

song title) to sell its apparel. Large

Duluth Trading Company's advertisements

Henley is associated

with

and/or has

is untrue.

4. Duluth Trading Company

Henley's name or registered marks, arid

license. To the contrary, Mr. Henley his

that he objects to any unlicensed use of

property rights for commercial purposes

5. Mr. Henley brings this

violation

of

his rights, and to help en$ure

situated

retailers

discontinue

their

unlawful

financial recovery he obtains from this

^ft

STATEMENT

United States' most successful bands, and

well-known members. In addition to being a

achieved fame as a solo performer and is a

name is instantly recognizable by a large

is a highly successful clothing retailer

sells apparel throughout the United States.

advertises its products on national and local

targeted Internet advertising.

's

rights in his name and likeness, and in

he owns, Duluth Trading Company created

ghout the United States that deliberately

association with the Eagles (via an Eagles hit

rfumbers

of

consumers who receive and see

will unquestionably believe that Mr.

en|dorsed the company and its products, which

never sought to obtain a license to use Mr.

Mr. Henley did not grant the company a

publicly made clear on multiple occasions

his name, trademarks, and

other

intellectual

throu;

aption to address a clear and unwarranted

that the defendant and other similarly

violation of his and others' rights. Any

alction will be

donated

to

charity.

COMPLAINT


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Loeb & Loeb

A LimitedLiabilityPartnership


Corporations

A

JURISDICTION AND VENUE

6. This

action

seeks

injunctive relief,

damages, and other appropriate

relief

arises undr the

laws

of

the

Unied

States,

specifically,

the Lanham Act, 15

U.S.C. 1051, et seq. and California state law

7. This Court has original subject matter

jurisdiction over

this action

under 28

U.S.C.

1331

and 1338.

It

has

supplemental

jurisdiction

of

the

common

and state

law

claims pursuant

to 28

U.S.C.

1367 inthat

those claims

are

related

to

claims

under this Court's original

jurisdiction and form

part of

the

same case or

controversy under Article III

of

the United States Constitution.

8. The

Court

has personal jurisdiction over Duluth

Trading

Company

because DuluthTrading Company has established minimum contacts withthe forum

and

the exercise

of

jurisdiction over

Duluth

Trading Company will not offend

traditional

notions of fair

play

and

substantial

justice.

On information

and

belief,

Duluth Trading Company

has

voluntarily conducted

business and

solicited

customers in this District. On information and

belief,

Duluth

Trading

Company

conducts continuous and systematic business in the state of California and

specifically, this District.

9.

Venue is proper in this

District

under

28

U.S.C.

1391(b)(2) because

a substantial part of the events

giving

ise to

Mr.

Henley's claims

occurred

in

this

District.

PART IES

songwriter, recording artist, performer, and

n this District.

11. On information

and

belief,

Defendant

Duluth

Holdings Inc., doing

business

as

Duluth

Trading Company,

is

a

Wisconsin corporation with

its

principal

place of business in Belleville,

Wisconsin.

On

information

and belief, Duluth

Trading

Company has multiple

store loc ations, enjoys a

national customer base, and

COMPLAINT

10. Plaintiff Don Henley is a

public advocate

who

conducts business


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Loeb &

Loeb

A Limited Liability

Partnership


Corporations

A

is a sophisticated national advertiser

in the state

of

California and, specifica

GEN ERAL

12. Mr. Henley is a

drummer, and singer of the Eagles,

musical groups. Every album that

certified platinum, three albums

have

the

Eagles'

Their Greatest Hits 1971

tim e in the Unite d

States

with sales in

hit single Take It Easy was the

album and on the band's best-selling g:

13. As a member of the Eag

list of hits, including Take It Easy,

California. In the 1980s, he launched

Eagles, during which time he wrote anc

Laundry, Boys of Summer, and

performed concerts around the world,

and advocacy on behalf

of

artists' rig

14.

Giv en th e timeless

nature?

Henley, their appeal continues to

culture and their performances routine

result

of

Mr. Henley's undisputed

solo artist, he enjoys instant name reco:

15. Mr. Henley uses his name

performing artist and is the registered

Henley. U.S. Registration Numbers

Apri l 4, 2000

and

June 20, 2000,

registration certificate for

each of

the

o

who markets its clothing nationally, including

ly,

this

District.

ALLEGAT IONS

musician and a founding member,

which is one of the

most successful

American

Eagles has released since 1972 has

been

sjold in excess of

ten million

copies

each,

and

1975 album is the best-selling album

of

all

excess of 29

million

units. The

band's first

lead track on the Eagles' self-titled debut

ileatest hits

album.

, Mr. Henley wrote or performed on a long

'Witchy Woman, Desperado, and Hotel

a successful solo career independent of the

performed a number

of

hits including Dirty

Slunset Grill. During this time, Mr. Henley

;ind became well known for his philanthropy

htt.

of the many hits by the Eagles and Mr.

enduife.

In fact, they

remain

a partof today's pop

y draw large audiences of loyal fans. As a

sucdess as both a member

of

the Eagles and as a

nit ion.

to distinguish his services as a recording and

owner

o f

two tra dema rk s in th e n ame

Don

2337742 and 2359466 were registered on

respectively. A true and correct copy

of

the

se marks is

a tta ch ed a s

Exhib i t A

These

professional

ks,

ir

COMPLAINT


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oeb



Corporations

f}

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registrations were duly and legally

and

constitute

conclusive evidence

o

registration of each mark, Mr,

Henley's exclusive right to use the reg

the goods

and

services l is ted in each re

1057(b). Duluth Trading Company

in his federally registered trademarks.

16. On information and

Trading Company distributed an

directed

to

residents of thi s Dis tr ic t

invoked Don Henley Mr. Henley

Henley style shirts. Specifically, as

Henley and the popularity the Eagles'

Company distributed an email to

customers to Don a

Henley

and Tak

online

version of

th e

Advertisement is

issued.

are valid, subsisting, and incontestable,

the validity of each registered mark, the

s ownership

of

each mark, and

of

Mr.

jstered mark in commerce in

connection

with

gistration certificate.

15

U.S.C. 1115(b),

constructive notice ofMr. Henley's rights

5 U.S.C 1072.

', on or about October 6, 2014, Duluth

in interstate commerce that

was

(the Advertisement ). The Advertisement

s

trademarked

namein

an

effort to sell

a means of exploiting the celebrity of Mr.

hit record, Take It Easy, Duluth Trading

nationwide customer base encouraging

It Easy. A true and correct copy of an

attached as

Exhibit

B.

Henley

had

belief,

advertisement

i ts

COMPLAINT


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Loeb &

Loeb

ALimitedLiability Partnership

Including

Professional

Corporations

Q

o

17. At no

time

has Duluti Trading

Company

obtained a license,

authorization, or other permission

to

exploit Mr.

Henley's

name or registered

trademarks in the

manner

described heiein

or

to

capitalize

on Mr. Henley's celebrity

and

status

as

a

famous

musician for

th;

purpose of

driving sales

of

Duluth

Trading

Company's clothing.

On

information

and

belief, Duluth Trading

Company

knowingly distributed the Advertiseme it to its customers with the knowledge

that

it

lacked a

license

to use Mr. Henley's

likeness and registered trademarks

for its

commercial purposes.

FIRST CLAtM FOR RELIEF

(Trademark Infringement inViolation of Lanham Act, 15 U.S.C. 1114)

18. Mr. Henley incorporates b;

r

reference Paragraphs 1through 17

above

as

though fully set forth herein.

19. On information and belie E

Duluth Trading

Company

has

advertised

and sold goods as a result of the Adverisement. This unauthorized use in interstate

commerce is

the

unlawful use of a re

imitation of Mr. Henley's federally

production, counterfeit, copy, or colorable

registered marks and is likely to cause

confusion, mistake,

or to

deceive

the

consuming public

and

trade

by creating the

erroneous impression

that

Duluth

Trading

Company's

product has been

manufactured,

approved, sponsored, endorsed,

or

guaranteed

by, or is in some way

affiliated with Mr. Henley.

has infringed Mr. Henley's trademarks and

1114.


has and continues to violate 15U.S.C.

21.

Due

to

Duluth Trading

Ccmpany's unauthorized

use

of Mr. Henley's

trademarked name, Mr. Henley has and

22. On information and belief,

continues to be intentional, willful, and

Henley's rights.

will

continueto suffer damages.

Duluth Trading Company's conduct has and

with full knowledge

of

the violation

of

Mr.

COMPLAINT


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ALimited

Liability

Partnership

IncludingProfessional

Corporations

o

23. Duluth Trading

Company

will continue to cause serious and i

proven business success associated

which

hehasno

adequate remedy

at

24. On information and belielf,

will profit by itswrongful conduct and

25. Mr. Henley is entitled to

damages, including attorneys'

fees,

he

profits, and

advantages obtained

by

infringement as alleged above. At

profits, andadvantages

cannot

fully be

i f t

is causing and, unless enjoined

by

the Court,

irreparable

harm to

the

goodwill, reputation,

and

Mr. Henley's registered trademarks for

ith

SECOND

CLAIM

(False Endorsement, Unfair

26. Mr. Henley incorporates b


27. Mr. Henley is a world fambus

g reat success a s both

a

member of th e

success, he benefit s from instant name

Easy is famously associated with Mr

andpersona in the mindof the public.

28.


trademarked name in conjunction

successful single, Take It Easy, was

to increase sales of Duluth Trading

Trading Company's other interests.

29. This unauthorized use

and misleading representations

of

fact

cause confusion, or to cause mistake,

law,

Duluth

Trading Company

has profited or

activities.

recover from Duluth Trading Company the

las sustained andwill sustain, andany gains,

Duluth Trading Company as a result of its

p-esent, the amount of such damages, gains,

iscertained by Mr. Henley.

FO R REL IEF

Competition, 15U.S.C. 1125(a))

y reference Paragraphs 1 through25 above as

musician whohas and

continues

to enjoy

Eagles and as a solo performer. Given his

recognition. Further, the hit song Take It

Henley

and

immediately suggests

his

identity

's advertised use of

Mr.

Henley's

the title of the Eagles'

debut, highly

interstate commerce

and

done specifically

Company's clothing and advance Duluth

with

in

constitutes

a false designation of origin and false

Duluth Trading Company that is likely to

to deceive as to the affiliation, connection,

ty

or

COMPLAINT


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Loeb & Loeb

A LimitedLiability Partnership

Including

Professional

Corporations

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or association of Duluth Trading

origin, sponsorship, or approval of

commercial activities by Mr. Henley,

1125(a).

30. Duluth Trading Comparjy

unauthorized use of Mr. Henley's

the Eagles' hit single, Take It Easy,

the public regarding whether Mr.

associated with, or approved the

31. Due to Duluth Trading

trademarked name,Mr. Henleyhas and

32. On

information and belief

by its wrongful conduct and activities.

33. On information and belief,

continues to be intentional, willful, and

Henley's rights.


will continue to cause Mr. Henley

remedy at law.


15U.S.C. 1117 and prejudgment

o

Coripany and/or with Mr. Henley, or as to the

Dijluth Trading Company's

goods, services,

or

in

violation

of the

Lanham Act,

15

U.S.C.

knew

or should have

known

that its

trademarked

name

in conjunction with the title of

was likely

to

cause confusion

or

mistake

by

Herley endorsed, is affiliated, connected to, or

Adven isement.

Company's

unauthorized use

ofMr.

Henley's

will continue to sufferdamages.

Duluth

Trading Company

has orwillprofit

Duluth Trading Company's conduct has and

with full knowledge of the violation

of

Mr.

s causing and, unless enjoined by the Court,

irreparable harm

for

which

he has no

adequate

his

attorneys' fees and full costs pursuant to

interest according to law.

THIRD

C LA

(Violation

of

California Busihess

36. Mr. Henley incorporates b)


37. As discussed above, Duluth

cause confusion or mistake regarding

connected to or associated with, or

M FOR

REL IEF

& Professions Code 17200)

referenceParagraphs 1 through 35 aboveas

Trading Company's conduct is likely to

whether Mr. Henley endorsed, is affiliated,

approved the message and content

of

the

COMPLAINT


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Loeb & Loeb



Corporations

Advertisement.

The conduct

of

Duluti Trading

Company is

intended to and likely

has produced substantial benefits to Duluth Trading Company

at

the expense

ofMr.

Henley.

38. Duluth Trading Company's conduct is likely to deceive

the

general

public and constitutes willful and

intentional

unlawful, unfair and fraudulent

business practices, in violation of California Business

&

Professions Code

17200

ts q

39. As a direct and proximate result of Duluth Trading Company's

wrongful conduct, Duluth Trading Company

has

and will continue to wrongfully

profit.

40.

As a direct

and

proximate result of Duluth Trading

Company's

wrongful conduct,

Mr. Henley has suffered substantial

injury

in fact. In addition,

Duluth Trading

Company's unlawful conduct has and continues to cause irreparable

injury to Mr.

Henley and

his

reputation

and

goodwill.

Unless

the

improper conduct

is enjoined,

Duluth

Trading

Company will cause further irreparable

injury for

which

aw

an injunction restraining

Duluth

Trading

Company,

its

officers,

agents,

employees,

and all persons

acting

in concert

with

it,

from engaging in further such unlawful conduct.

entitled to restitutionary

recovery

and

Mr.

Henley hasno adequate remedy at

41. Mr. Henley is entitled tc

42. Mr. Henley is further

disgorgement

from


FOURTH

CL;

JM

FOR

RELIEF

Violation ofCalifornia Statutory Bight ofPublicity, Cal. Civ. Code 3344)

43. Mr. Henley incorporates

b>

reference Paragraphs 1through 42 above as


44. Without Mr.

Henley's

consbnt, Duluth Trading Company has

knowingly caused the Advertisement,

wiich prominently

contains Mr. Henley's

COMPLAINT


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& Loeb


Including

Professional

Corporations

name, to be created andprominently

this judicial district.

45. Suchuse of Mr. Henley's

purposes of advertising, selling and

Company's

products, merchandise,

g

46. DuluthTrading Company'

Civil Code Section 3344, since such

47. There was, and is, a direct

ofMr. Henley's name and the commercial

ofDuluthTradingCompany and its

48. As a proximateresult of th|e

has been and will

continue to

be

harrm

49. The use of Mr. Henley's

Henley endorsed theDuluthTrading

goods and services.

50. As a proximate result

Henleyhas sufferedactual damages in

51. Pursuant to California Civil

entitled to disgorgement

of

Duluth

Tradb

Advertisement, resulting fromthe

amount to be proven at trial.

52. Duluth Trade Company's

oppressive; it acted in conscious disreg;

Mr. Henley to unjust hardship. Duluth

required to obtain approval for its use

Henley seeks

an

award

of

punitive

damaj

for

Duluth

Trading Company's wrong

in th e future.

^k

displayed in

interstate

commerce,

including in

Dy

DuluthTradingCompany was for the

solfciting the

purchase

ofDuluth Trading

and

services,

s

conduct

is in direct violation of California

were without

the consent ofMr.

Henley,

connection between the use andexploitation

purposes associated with the promotion

ucts, merchandise, goods and services,

misappropriation ofhis

name,

Mr. Henley

SOcds

ac s

led

n ime

in theAdvertisements impliesthatMr.

C4mpany

and/or its

products,

merchandise,

o fD i l u t h

Trading Company's actions, Mr.

amount to be proven at trial.

Code Section3344,Mr. Henley is also

g Company's profits from the

unauthorized exploitation of his name, inan

qonductwaswillful, malicious and

ofMr. Henly's rights thereby subjecting

rading Company well knew that it was

Henley's name. Accordingly,Mr.

ges in an amount to be determinedat trial,

g andto deterit

from

similar wrongdoing

;ard

o fMr.

xkin i

10

COMPLAINT


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53. Pursuant to California Civtl

to recoverhis attorneys' fees in pursuir

F IFTH

(Common La^

54. Mr. Henley incorporates


55. By using his name in

highly successful single, Take It

Advertisement.


Advertisement in conjunction with the

single, Take It Easy, was in interstate

sales of its clothing and advance Duluth

57. On

information and

belief,

by its wrongful conduct and activities.

58 .

On

information and belief.

Mr. Henley's namewas knowing and

it was a violation

of

his rights.


damages, including attorneys' fees, he

and advantages obtained by Duluth

as alleged

above,

and an awardofp

damages, gains, profits, andadvantages

P R A Y E R

WHEREFORE, Mr. Henley resp

againstDefendantDuluthTrading

a. For temporary, preliminaijy

Duluth Trading Company, prohibitin

ilCode Section

3344,

Mr.

Henley

is

entitled

g this action.

CLAIM

FOR

RELff iF

Right

of

Publicity)

b^

reference Paragraphs

1

through 53 above

as

conjunction with the title of the Eagles' debut,

, Mr. Henley is clearly identified in the

a:y

's use of Mr. Henley's name in the

title of the Eagles' debut, highly successful

commerce and done specifically to increase

Trading Company's other interests.

Duluth

Trading Company

has or will profit

Duluth Trading Company's decision to use

mlalicious,

and done

with

clear knowledge that

-ecover

from Duluth Trading Company the

has and will

sustain,

and any

gains, profits,

ingCompany asa result of its infringement

damages. At present, the amount of such

cannot fully be ascertained by

Mr.

Henley.

FO R REL IEF

>;ctfully

requests that this Court grant relief

as

fol lows:

and permanent injunctive relief against

Duluth Trading Company, its agents, or

Tra i in

junit:

ve

Company

ig

11

COMPLAINT


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Loeb & Loeb

A Limited

Liability

Partnership

Including

Professional

Corporations

^

anyone working for, in concert with oi

advertising for sale any merchandise

trademark.

b.

That Duluth Trading

Corppany

sustained in consequence

of

Duluth Tra'din

c. That Duluth Trading

Com|pany

Duluth Trading Company as a

d.

That Mr. Henley recover

e.

That

Mr.

Henley recove|r

Company.

f. That Mr. Henley have

just and proper.

Dated: October 8, 2014

onbehalfof

Duluth Trading Company from

contains

Mr. Henley's

name

or

registered

ha t

consequence

his

pay Mr. Henley the damages he has

ing Company's conduct.

pay Mr.

Henley

all profits obtained by

of Duluth TradingCompany's conduct,

costs and reasonable attorneys' fees,

punitive

damages from Duluth

Trading

sue l

other

and

further

relief

as the Court deems

LOEB

LOEB

LLP

THOMAS

P. JIRGAL

MELANIE J. HOWARD

Ey::

12

anie 'J . Howard

Attorneys for Plaintiff

Don Henley

COMPLAINT


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& Loeb

A LimitedLiability Partnership


Corporations

Mr. Henley hereby demands a

Dated: October 8, 2014

k

JURY

DEMAND

trial byjuryonall issues so

triable.

tOEB &LOEB LLP

'HOMAS P. JIRGAL

I/ELANIE J. HOWARD J

Attorneys for Plaintiff

Don Henley

13

COMPLAINT


14/23

A

A


15/23

Int CI.:

9

Prior U.S.

Cls.: 21, 23, 26, 36 and 38

Uni ted States Paten t and Trademark

Reg.

No . 2,337,742

Office

Registered Apr.

4, 2000

T R A D E M A R K

PR INC IPAL

REGISTER

D ON HENLEY

HENLEY, DON

(UNITED

STATES CITIZEN)

C/O AZOFF ENTERTA INMENT

3500

W

OL IVE AVENUESU ITE 60 0

BURBANK,

CA 91505

FOR: SER IES

O F M USICAL

SOUND RE

CORDINGS;

AND

A SERIES OF

PRE-RECORD

ED

COMPACT DISCS,

PRE-RECORDED

AUDIO CASSETTES,

PRE-RECORDED VIDEO

TAPES, AND

PRE-RECORDED AUDIO/

VISUAL

DISCS

ALL

FEATURING

MUSIC,

IN

CIASS

9 (U.S. CLS. 21, 23, 26, 36 AND 38).

FIRST

USE

8-19-1982; IN COMMERCE

9-1982.

I5ER. NO. 75-576,475, FILED

10-27-1998.

ANTHONY MERCALDI ,

EXAMINING

ATTOR-

l ^EY


16/23

Int. CL:41

Prior U.S. Cls.: 100,101 and 107

United States Patent

and

Trademark

Reg. No. 2,359,466

Off ice Registered Jane

20,2000

SERVICE MARK

PRINCIPAL

REGISTER

DON

HENLEY

HENLEY, DON UNITED

STATES

CITIZEN)

C/O AZOFF ENTERTAINMENT

3500W. OLIVE AVENUE, SUITE600

BURBANK, CA 91505

FOR: ENTERTAINMENT SERVICES

IN

THE

NA

TURE

OF LIVE

MUSICAL

PERFORMANCES, IN

CLASS 41

U.S.

CLS. 100,101

AND107).

FIRST

THENAME

mo

RECORD

USE 0-0-1981; IN

COMMERCE

0-0-1981.

DON HENLEY IDENTIFIES A

UV-

WHOSE CONSENT IS OF

NDIVIDUAL

SER. NO. 75-576,421, FILED 10-27-1998.

ANTHOl iY MERCALDL EXAMINING

ATTORNEY


17/23

^B

^


18/23


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21/23

UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA

CIVIL COVER

SHEET

I

(a)

PLAINTIFFS (

Check

box ifyou are

representing

yourself )

Don Henley, an individual

DE FENDANTS

(

Check box if you

are

representing yourself

)

Duluth Holdings Inc., d/b/aDuluth

Trading Company,

a

W sconsin corporation ''

(b) County of

Residence

of First Listed Plaintiff

Dallas,

TX

EXCEPT

INUS PLAINTIFF CASES)

(c) Attorneys Firm Name, Address and Telephone Number) If you are

representing yourself, provide th e

same

information.

LOEB &

LOEB LLP

Thomas P. Jirgal (202637); Melanie

Howard

(218895)

10100 Santa Monica Boulevard, Suite 2200

Los Angeles, California 90067

Phone: 310-282-2000; Facsimile: 310-282-2200

nty of Residence of First Listed

Defendant

Dane, Wl

/ S. PLAINTIFFCASES

ONL Y

Attorneys Firm

Name, Address and

Telephone

Number) If you

are

representing

yourself,

provide

the

same

information.

II.

BASIS OFJURISDICTION (Place anX in one box only.)

III.

CITIZENSHIP

OF PRINCIPAL

PARTIES-For

Diversity Cases

Only

an X inone box for plaintiffand one for defendant)

i*

c.o.o II II Incorporated orPrincipal Place If Ef

State LJ1 D1 of Business

in this State D

Documents

Don Henley v. Duluth Holdings - Don a Henley t-shirts.pdf