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					      Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 1 of 14



                      IN THE UNITED STATES DISTRICT COURT
                         SOUTHERN DISTRICT OF GEORGIA
                                AUGUSTA DIVISION

REGENT UNIVERSITY,

              Plaintiff                           Civil Action No.

       V.


BOARD OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA, BOARD OF
REGENTS OF THE UNIVERSITY SYSTEM                  Jury Trial Demanded
OF GEORGIA d/b/a AUGUSTA STATE
UNIVERSITY, BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA d/b/a
GEORGIA HEALTH SCIENCES
UNIVERSITY, C. DEAN ALFORD,
Individually and in the capacity as a Member of
the BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
KENNETH R. BERNARD, JR., Individually and
in the capacity as a Member of the BOARD OF
REGENTSOF THE UNIVERSITY SYSTEM OF
GEORGIA, LARRY R. ELLIS, Individually and
in the capacity as a Member of the BOARD OF
REGENTS OF THE UNIVESITY SYSTEM OF
GEORGIA, RUTLEDGE A. GRIFFIN, JR.,
Individually and in the capacity as a Member of
the BOARD OF REGENTS OF THE
UNIVERSITYSYSTEM OF GEORGIA,
ROBERT F. HATCHER, Individually and in the
capacity as Member of the BOARDOF
REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA, C. THOMAS HOPKINS, Jr.,
MD, Individually and in the capacity of a
Member of the BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA, W.
MANSFIELD JENNINGS, JR., Individually and
in the capacity as Member of the BOARD OF
REGENTSOF THE UNIVERSITY SYSTEM OF
GEORGIA, JAMES R. JOLLY, Individually and
in the capacity as a Member of the BOARD OF
REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA, DONALD M. LEEBERN, JR.,
Individually and in the capacity as a Member of
      Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 2 of 14



the BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
WILLIAM H. NESMITH, JR., Individually and
in the capacity as a Member of the BOARD OF
REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA, DOREEN STILES POITEVINT,
Individually and in the capacity as a Member of
the BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
WILLIS J. POTTS, JR., Individually and In the
capacity as a Member of the BOARD OF
REGENTS OF THE UNIVERSITY SYSTM OF
GEORGIA, NEIL L. PRUITT, JR., Individually
and in the capacity as a Member of the BOARD
OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA, KESSEL STELL1NG,
JR., Individually and in the capacity as Member
of the BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF GEORGIA,
BENJAMIN J. TARBUTTON, III, Individually
and in the capacity as a Member of the BOARD
OF REGENTS OF THE UNIVERSITY
SYSTEM OF GEORGIA, RICHARD L.
TUCKER, Individually and in the capacity as a
Member of the BOARD OF REGENTSOF THE
UNIVERSITY SYSTEM OF GEORGIA,
LARRY WALKER, Individually and in the
capacity as a Member of the BOARD OF
REGENTSOF THE UNIVERSITY SYSTEM OF
GEORGIA, PHILIP A. WILHEIT, SR.,
Individually and in the capacity as a Member of
the BOARD OF REGENTSOF THE
UNIVERSITY SYSTEM OFGEORGIA,

              Defendants




                           COMPLAINT AND JURY DEMAND


       This action arises under the Trademark Laws of the United States, Title 15, United States

Code §1051 et seq., and seeks damages, declaratory and injunctive relief for federal trademark



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       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 3 of 14



infringement and common law and statutory unfair competition. This action also arises under

The 14' Amendment of the United States Constitution and Title 42, United States Code § 1983,

and seeks damages, declaratory and injunctive relief for violations of due process and the takings

clause of the United States Constitution. This action further arises under The Constitution of the

State of Georgia, Section 1, Paragraphs I and II. The plaintiff, Regent University ("Regent"),

demands trial by jury of all issues raised in this complaint against the defendants named above

(collectively "Defendants") and alleges as follows:

                                          THE PARTIES

        1.     Regent is a corporation duly organized and existing under the laws of the

Commonwealth of Virginia, and has its principal place of business at 1000 Regent University

Drive, Virginia Beach, Virginia 23464.

       2.      Defendant Board of Regents of the University System of Georgia ("Board of

Regents") is a body politic of the State of Georgia.

       3.      Defendant Board of Regents of the University System of Georgia dlb/a Augusta

State University ("Augusta State University") is a branch of the Board of Regents.

       4.      Defendant Board of Regents of the University System of Georgia d/b/a Georgia

Health Sciences University ("Georgia Health Sciences University") is a branch of the Board of

Regents.

       5.      All remaining Defendants named herein are the eighteen members of the Board of

Regents. For purposes of Ex parte Young, 209 U.S. 123 (1908), all remaining Defendants are

specifically named in their capacity as officials of the Board of Regents, as well as in their

individual capacity.




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        6.     Defendants may all be served with process by delivering copies of the Summons

and Complaint to the Secretary or Assistant Secretary of the Board of Regents.

        7.     The Georgia Attorney General may be notified of this action pursuant to

O.C.G.A. § 9-10-2 by delivering a copy of the Summons and Complaint to his office by certified

mail.

                                         JURISDICTION

        8.     Subject matter jurisdiction is conferred on the Court by 28 U.S.C. §§ 1331 and

1338 for claims arising under 15 U.S.C. §§ 1114 and 1125 of the Lanham Act. Subject matter

jurisdiction is conferred on the Court by 28 U.S.C. §§ 1331 and 1343 for claims arising under the

14th Amendment of the U.S. Constitution and 42 U.S.C. § 1983. Subject matter jurisdiction is

conferred on the Court by 28 U.S.C. § 2201 for the declaratory judgment claims. The Court has

supplemental jurisdiction over the common law and state claims pursuant to 28 U.S.C. §§ 1338

and 1367.

        9.     Venue in this court is based upon 28 U.S.C. §§ 1391.

        10.    Defendants have entered into and conducted business in the Southern District of

Georgia in matters relating to the subject in dispute.

                                      REGENT'S CLAIMS

        11.    Regent has been since at least as early as January 1990 and still is using the mark

REGENT UNIVERSITY in interstate commerce in connection with educational services,

namely, providing courses of study at the university level.

        12.    Regents educational services have been marketed and advertised nationwide

under the mark REGENT UNIVERSITY, Regent has invested a significant amount of time,

effort, resources, and money publicizing its REGENT UNIVERSITY mark over these many
       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 5 of 14



years. Regent has marketed its undergraduate, graduate, and professional educational services

throughout the United States and the world, including the State of Georgia, through use of the

REGENT UNIVERSITY mark. Regent offers educational services on line and in a classroom

setting, and has offered such services to the residents of Georgia. Through widespread and

favorable public acceptance and recognition, the REGENT UNIVERSITY mark has become an

asset of substantial value as a symbol of Regent, its quality services, and its good will.

        13.    On November 5, 1990, Regent filed United States Trademark Application Serial

No. 74112380 for registration of the mark REGENT UNIVERSITY and Design. The

Application issued as U.S. Trademark Registration No. 1,682,259 on April 7, 1992, as shown in

Exhibit A.

        14.    U.S. Registration No. 1,682,259 is valid, subsisting, uncancelled and unrevoked,

and has also become incontestable.

        15.    On May 1, 2007, Regent filed United States Trademark Application Serial No.

77170134 for registration of the standard character mark REGENT UNIVERSITY. The

Application issued as U.S. Trademark Registration No. 3,460,434 on July 8, 2008, as shown in

Exhibit B.

        16.    U.S. Registration No. 3,460,434 is valid, subsisting, uncancelled and unrevoked.

        17.    On June 6, 2007, Regent filed United States Trademark Application Serial No.

77204144 for registration of the mark REGENT UNIVERSITY and Design. The Application

issued as U.S. Trademark Registration No. 3,465,808 on July 15, 2008, as shown in Exhibit C.

        18.    U.S. Registration No. 3,465,808 is valid, subsisting, uncancelled and unrevoked.

        19.    Defendants are each involved in providing educational services, namely,

providing courses of study at the university level.




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       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 6 of 14



        20.    On or about August 3, 2012, Regent learned that the Defendants were intending to

approve a name change whereby Augusta State University and Georgia Health Sciences

University would be merged and thereafter named GEORGIA REGENTS UNIVERSITY.

Indeed, a review of the Augusta Chronicle website reveals that Defendants had previously

received a copy of a nationwide survey showing that the name University of Augusta was widely

preferred. Instead of honoring the historic and rich tradition of the Augusta community,

Defendants decided on the name GEORGIA REGENTS UNIVERSITY without regard to

Regent's well-known trademark rights. On August 4, 2012, Regent sent a cease and desist letter

to Defendant Board of Regents informing Defendants of Regent's trademark rights and

requesting that Defendants select another name.

       21.     The Board of Regents announced in a press release dated August 7, 2012,

however, its decision to begin using the name GEORGIA REGENTS UNIVERSITY to refer to

Augusta State University and Georgia Health Sciences University after the planned merger

between the two educational institutions. As announced by the Defendants, Augusta State

University and Georgia Health Sciences University intend to continue to offer educational

services under the GEORGIA REGENTS UNIVERSITY name. A copy of the press release is

attached as Exhibit D.

       22.     Defendants have already taken steps to begin marketing their educational services

under the GEORGIA REGENTS UNIVERSITY name, as evidenced at least by the public

announcement of the merger and new name. Not only will Defendants continue its activities to

the detriment of Regent's trademark rights, but Defendants are likely to license private parties to

use the GEORGIA REGENTS UNIVERSITY trademark, also to the detriment of Regent's

trademark rights.




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       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 7 of 14



       23.     15 U.S.C. § 1122(b) provides that "Any State, instrumentality of a State or any

officer or employee of a State or instrumentality of a State acting in his or her official capacity,

shall not be immune, under the eleventh amendment of the Constitution of the United States or

under any other doctrine of sovereign immunity, from suit in Federal court by any person,

including any governmental or nongovernmental entity for any violation under this chapter."

This provision, enacted by Congress, is congruent and proportional to the injury to be prevented

so as to qualify as valid prophylactic legislation under City of Boerne v. Flores, 521 U.S. 507

(1997). This provision was genuinely necessary to prevent States from infringing federal

trademarks of others, which federal trademarks constitute property. This provision only affects

States which have used trademarks in commerce. Defendant Board of Regents has availed itself

of the trademark property rights provided by the federal Lanham Act, as evidenced by the

numerous trademarks which it has applied to register or registered federally. See Exhibit E.

Defendant Board of Regents has also availed itself of the federal courts to enforce trademark

rights as evidenced at least by the attached Exhibit F showing examples of lawsuits filed by

Defendant Board of Regents for federal trademark infringement.

                                          COUNT I
                               Federal Trademark Infringement

       24.     Regent realleges paragraphs 1-23 as though fully set forth here.

       25.     Defendants' use of the name GEORGIA REGENTS UNIVERSITY as alleged

above is likely to cause confusion, mistake or deception and will injure and damage Regent and

the goodwill and reputation symbolized by Regent's registered standard character mark for

REGENT UNIVERSITY and design marks for REGENT UNIVERSITY and Design. These

acts constitute willful federal trademark infringement under 15 U.S.C. § 1114, and are ongoing.




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       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 8 of 14



       26.     Defendants' use of the tenii GEORGIA REGENTS UNIVERSITY has already

caused irreparable injury to Regent and will continue to cause irreparable injury to Regent if

Defendants are not restrained by this Court from further violation of Regent's federal trademark

rights. Regent has no adequate remedy at law.

                                         COUNT LI
                                 Federal Unfair Competition

       27.    Regent realleges paragraphs 1-26 as though fully set forth here.

       28.    Defendants' use of the name GEORGIA REGENTS UNIVERSITY as alleged

above is likely to cause confusion, mistake, or deception as to the affiliation, connection, or

association of Defendants with Regent, or as to the origin, sponsorship, or approval of

Defendants' educational services by Regent. These acts constitute willful federal unfair

competition under 15 U.S.C. § 1125(a), and are ongoing.

       29.    Defendants' use of the term GEORGIA REGENTS UNIVERSITY has already

caused irreparable injury to Regent and will continue to cause irreparable injury to Regent if

Defendants are not restrained by this Court from further violation of Regent's federal trademark

rights. Regent has no adequate remedy at law.

                                      COUNT III
                              Common Law Unfair Competition

       30.    Regent realleges paragraphs 1-29 above as though fully set forth here.

       31.    By virtue of Defendants' acts as alleged, Defendants have engaged in willful

unfair competition with Regent in violation of Georgia state common law. These acts are

ongoing.

                                         COUNT IV
                                  Deceptive Trade Practices

       32.    Regent realleges paragraphs 1-31 as though fully set forth here.
       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 9 of 14



       33.     Defendants' use of the name GEORGIA REGENTS UNIVERSITY as alleged

above is likely to cause confusion or misunderstanding as to the affiliation, connection,

association or certification of Defendants with Regent, or as to the source, sponsorship, approval,

or certification of Defendants' educational services by Regent. These acts constitute deceptive

trade practices under Georgia's Uniform Deceptive Trade Practices Act (UDTPA), O.C.G.A. §

10-1-370 et seq., and are ongoing.

       34.     Defendants' use of the term GEORGIA REGENTS UNIVERSITY has already

caused irreparable injury to Regent and will continue to cause irreparable injury to Regent if

Defendants are not restrained by this Court from further violation of Regent's rights. Regent has

no adequate remedy at law.

                                          COUNT V
                          Violation of 42 U.S.C. § 1983 and The 14th
                         Amendment of the United States Constitution

       35.     Regent realleges paragraphs 1-34 as though fully set forth here.

       36.     Regent enjoys a constitutionally protected property interest in its REGENT

UNIVERSITY trademarks.

       37.     Defendants have deprived and will deprive Regent of its constitutionally protected

property interest in its REGENT UNIVERSITY trademarks through their use of the GEORGIA

REGENTS UNIVERSITY mark.

       38.     Defendants acted under the color of state law when Defendants deprived Regent

of its constitutionally protected property interest in its REGENT UNIVERSITY trademarks.

       39.     Defendants' deprivation of Regent's constitutionally protected property interest in

its REGENT UNIVERSITY trademarks was done without due process of the law.




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      Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 10 of 14



          40.   After a reasonable opportunity for further investigation and discovery, the

evidence will likely support that Defendants developed and maintained policies or customs

exhibiting deliberate indifference to the constitutional rights of trademark owners, which caused

the violation of Regent's rights.

          41.   After a reasonable opportunity for further investigation and discovery, the

evidence will likely support that it was the policy and/or custom of Defendants to fail to exercise

reasonable care in adopting trademarks and service marks, thereby failing to adequately prevent

constitutional violations.

       42.      The above described policies and customs demonstrate deliberate indifference on

the part of Defendants to the constitutional rights of trademark owners, and were the cause of the

violations of Regent's rights alleged herein.

       43.      Defendants have also failed to establish adequate post-deprivation remedies to

compensate or remedy trademark owners, such as Regent, who are injured by Defendants'

policies and customs that exhibit deliberate indifference to the constitutional rights of trademark

owners.

       44.      Defendants have failed and refused, and continue to fail and refuse, to pay to

Regent just compensation for the taking of its REGENT UNIVERSITY trademarks.

Defendants' actions constitute a taking of Regent's private property for public use without just

compensation.

       45.      As a direct and proximate result of Defendants' violation, Regent has sustained

injuries and damages.




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       Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 11 of 14



                                       COUNT VI
  Violation of 42 U.S.C. 1983 and The 14th Amendment of the United States Constitution
                          By The Individually Named Defendants

       46.     Regent realleges paragraphs 1-45 as though fully set forth here.

       47.     Regent enjoys a constitutionally protected property interest in its REGENT

UNIVERSITY trademarks.

       48.     By voting and/or taking other actions to approve the new name GEORGIA

REGENTS UNIVERSITY, with deliberate indifference to Regent's trademark rights, the

individual Defendants named herein as Members of the Defendant Board of Regents have

deprived and/or will deprive Regent of its constitutionally protected property interest in its

REGENT UNIVERSITY trademarks through their use of and/or inducement of Defendant Board

of Regents to use the GEORGIA REGENTS UNIVERSITY mark.

       49.     The individual Defendants' deprivation of Regent's constitutionally protected

property interest in its REGENT UNIVERSITY trademarks was done without due process of the

law.

       50.     The individual Defendants have also failed to establish any adequate post-

deprivation remedies to compensate or remedy the infringement of Regent's trademarks and

Regent has thus been injured by the individual Defendants' deliberate indifference to Regent's

constitutional property rights in its REGENT UNIVERSITY trademarks.

       51.     The individual Defendants have failed and refused, and continue to fail and

refuse, to pay to Regent just compensation for the taking of its REGENT UNIVERSITY

trademarks. The individual Defendants' actions constitute a taking of Regent's private property

for public use without just compensation.




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      Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 12 of 14



       52.    As a direct and proximate result of the individual Defendants' violation, Regent

has sustained injury and damages.

                                         COUNT VU
                                    Declaratory Judgment

       53.    Regent realleges paragraphs 1-52 as though fully set forth here.

       54.    An actual controversy has arisen and now exists between Regent and Defendants

concerning their respective rights in that Regent contends it has rights to the REGENT

UNIVERSITY trademark and Defendants' use of the GEORGIA REGENTS UNIVERSITY

trademark infringes those rights, whereas Defendants dispute these contentions and contend that

they are entitled to use the GEORGIA REGENTS UNIVERSITY trademark.

       55.    Regent desires a judicial determination of its rights in the REGENT

UNIVERSITY trademark, and a declaration as to Defendants' infringement of those rights

through use of the GEORGIA REGENTS UNIVERSITY trademark.

       56.    A judicial declaration is necessary and appropriate at this time under the

circumstances in order that Regent may ascertain its rights in the REGENT UNIVERSITY

trademark and its rights to exclude Defendants from using the GEORGIA REGENTS

UNIVERSITY trademark.

       57.    Defendants' use of the GEORGIA REGENTS UNIVERSITY trademark has and

will continue to harm the goodwill Regent has developed in its REGENT UNIVERSITY

trademark.

       58.    Regent has exhausted available administrative remedies.

                                        COUNT VIII
                       Violation of Georgia Constitutional Guarantees

       59.    Regent realleges paragraphs 1-58 as though fully set forth here.




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      Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 13 of 14



        60.    In appropriating Regent's common law and federally protected trademark and

trade name to their own benefit, without resort to the power of eminent domain, Defendants are

acting in violation of the Constitution of the State of Georgia, Section 1, Paragraphs I and II,

causing irreparable injury to Regent.

       61.     Regent has no adequate remedy at law and is entitled to an injunction prohibiting

Defendants from the use of the word "Regents" as a part of the name of the merged Georgia

Health Sciences University and Augusta State University or of either entity.

                                     PRAYER FOR RELIEF

       WHEREFORE, Regent prays that judgment be entered in its favor and against

Defendants and for an order providing as follows:

       A.      preliminarily and permanently enjoining Defendants from using the name

GEORGIA REGENTS UNIVERSITY or any confusingly similar designation, alone or in

combination with other words, as a trademark or trade name or otherwise, to market, advertise,

or identify Defendants' educational services;

       B.      preliminarily and permanently enjoining Defendants from otherwise infringing

Regent's trademark REGENT UNIVERSITY;

       C.      preliminarily and permanently enjoining Defendants from unfairly competing

with Regent in any manner whatsoever;

       D.      directing Defendants to deliver up and destroy all literature, advertising, and other

material bearing the name GEORGIA REGENTS UNIVERSITY in connection with Defendants'

educational services;

       E.      awarding Regent three times the damages (plus interest) it has suffered by reason

of Defendants' federal trademark infringement and federal and common law unfair competition;




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        Case 1:12-cv-00141-JRH-WLB Document 1 Filed 09/20/12 Page 14 of 14



         F.   awarding Regent all of Defendants' profits as a result of Defendants'

infringement and unfair competition;

        G.    awarding Regent its attorneys' fees, expenses, and costs in this suit;

        H.    declaring that Regent has rights in the REGENT UNIVERSITY trademark and

Defendants' use of the GEORGIA REGENTS UNIVERSITY mark infringes those rights; and

        I.    awarding Regent such other and further relief as this Court may deem proper and

just.

                                       JURY DEMAND

              Regent demands a trial by jury on all issues so triable.

                                             Respectfully submitted,



Dated: September 20th 2012
                                           abins,'fly
                                           Georgia Bar No. 677350
                                           Nathan E. Huff
                                           Ga. Bar No. 773611
                                           Warlick, Tritt, Stebbins & Murray, LLP
                                           P.O. Box 1495
                                           Augusta, Georgia 30903
                                           209 Seventh Street, 3rd Floor
                                           Augusta, Georgia 30901
                                           (706) 722-7543

                                             Patrick J. Arnold Jr. (pro hac vice pending)
                                             Ronald A. Dicerbo (pro hac vice pending)
                                             Sarah A. Biggs (pro hac vice pending)
                                             McANDREWS, HELD & MALLOY, LTD.
                                             500 W. Madison Street
                                             34th Floor
                                             Chicago, Illinois 60661

                                             Attorneys for Plaintiff,
                                             Regent University




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Description: regent v regents university trademark complaint