Docstoc

brahma hockey

Document Sample
brahma hockey Powered By Docstoc
					     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 1 of 31 PageID 1




                              UNITED STATES DISTRICT COURT
                           FOR THE NORTHERN DISTRICT OF TEXAS
                                  FORT WORTH DIVISION

THE TEXAS BRAHMAS, L.P. dba TB                             §             Civil Action No. _____________
HOCKEY, L.P. and CENTRAL                                   §
PARTNERS, LLC dba CENTRAL                                  §
HOCKEY LEAGUE                                              §
                                                           §
         Plaintiffs                                        §
                                                           §
v.                                                         §                   ORIGINAL COMPLAINT
                                                           §
LONE STAR BRAHMAS, LLC, TEXAS                              §                           Jury Trial Requested
HOCKEY PARTNERS, LLC, NYTEX                                §
SPORTS, LLC, TEXAS BRAHMAS                                 §
YOUTH HOCKEY ASSOCIATION,                                  §
FRANK TRAZERRA Individually,                               §
SALVATORE TRAZERRA, Individually,                          §
NORTH AMERICAN HOCKEY LEAGUE,
WESTERN STATES HOCKEY LEAGUE
    Defendants




              PLAINTIFFS’ ORIGINAL COMPLAINT, JURY DEMAND AND APPLICATION
                   FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF



TO THE HONORABLE JUDGE OF SAID COURT:

        The Texas Brahmas, L.P. dba TB Hockey, L.P. (hereinafter “Texas Brahmas” or

“Plaintiff”) and Central Partners, LLC dba Central Hockey League (hereinafter “CHL” or

“Central Hockey League” or “Plaintiff”) (collectively “Plaintiffs”), hereby file this their Original

Complaint, Jury Demand and Application for Preliminary and Permanent Injunctive Relief

(“Original Complaint”) supported by the Declarations of Michael Barack and Rodney Steven

(contained in a separately filed Appendix) and Plaintiffs’ Brief in Support of Their Motion for

Preliminary Injunction filed concurrently herewith, complaining of Lone Star Brahmas, LLC,

Texas Hockey Partners, LLC, NYTEX Sports, LLC, Texas Brahmas Youth Hockey Association,

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 1 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 2 of 31 PageID 2



Frank Trazerra, Salvatore Trazerra, North American Hockey League and Western States Hockey

League (collectively “Defendants”), and upon personal knowledge as to their own acts and

circumstances, and upon information and belief as to the acts and circumstances of others, allege

as follows:

                                                     I.
                                                THE PARTIES

        1.       Plaintiff The Texas Brahmas, L.P. dba TB Hockey, L.P. is a limited partnership

duly organized and existing under the laws of the State of Delaware, with its principal place of

business located at 2653 Juniper Lane, Grapevine, Texas 76051.

        2.       Plaintiff Central Partners, LLC dba the Central Hockey League is a Nevada

limited liability company with its principal place of business located at 6751 Sunset Blvd., Ste.

200, Glendale, Arizona 85305-3124

        3.       Upon information and belief, Defendant Lone Star Brahmas, LLC is a Texas

limited liability company with its registered office located at 3355 Bee Cave Road, Suite 307,

Austin Texas 78746. Lone Star Brahmas, LLC may be served with process through its registered

agent, Rivas Goldstein, LLP at 3355 Bee Cave Road, Suite 307, Austin Texas 78746 or wherever

it may be found.

        4.       Upon information and belief, Defendant Texas Hockey Partners, LLC is a Texas

limited liability company with its principal place of business located at 8851 Ice House Drive,

North Richland Hills, Texas 76180. Texas Hockey Partners, LLC may be served with process

through its registered agent, Frank Trazzera at 8851 Ice House Drive, North Richland Hills,

Texas 76180 or wherever it may be found.

        5.       Upon information and belief, Defendant NYTEX Sports, LLC is a Texas limited

liability company with its principal place of business located at 8851 Ice House Drive, North

Richland Hills, Texas 76180. NYTEX Sports, LLC may be served with process through its

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 2 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 3 of 31 PageID 3



registered agent, Frank Trazzera at 804 Meandering Woods Dr., Keller, Texas 76248 or

wherever he may be found.

        6.       Upon information and belief Defendant Texas Brahmas Youth Hockey

Association is a Texas nonprofit corporation with its principal place of business located at 8851

Ice House Drive, North Richland Hills, Texas 76180.                         Texas Brahmas Youth Hockey

Association may be served with process through its registered agent Frank Trazzera at 8851 Ice

House Drive, North Richland Hills, Texas 76180 or wherever he may be found.

        7.       Upon information and belief, Defendant Frank Trazzera is an individual citizen of

the State of Texas who may be served at his primary place of business, 8851 Ice House Drive,

North Richland Hills, Texas 76180 or wherever he may be found.

        8.       Upon information and belief, Defendant Salvatore Trazzera is an individual

citizen of the State of New York who may be served at his primary place of business, 470

Woodbury Rd., Cold Spring Harbor, New York 11724 or wherever he may be found. Because

Salvatore Trazzera engages in business in this state but does not maintain a regular place of

business in this state or a designated agent for service of process, and because this suit arose out

of his business in this state, he may be served through the Texas Secretary of State, John Steen,

as his agent for service, at Secretary of State, Citations Unit, P.O. Box 12079, Austin, Texas

78711-2079, Travis County, Texas.

        9.       Upon information and belief, Defendant North American Hockey League, is a

Texas nonprofit corporation with its principal place of business located at 2601 Ave. of the Stars,

Suite 400, Frisco, Texas 75034. Defendant North American Hockey League may be served with

process through its registered agent, Mark Frankenfeld at 2601 Ave. of the Stars, Suite 400,

Frisco, Texas 75034 or wherever it may be found.

        10.      Upon information and belief, Defendant Western States Hockey League, Inc. is a

California corporation with its principal place of business located at 17602 17th Street, Suite 102-
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 3 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 4 of 31 PageID 4



241, Tustin California 92780. Defendant Western States Hockey League, Inc. may be served

with process through its registered agent, Ronald R. White at 17602 17th Street, Suite 102-241,

Tustin California 92780 or wherever he may be found.

                                                 II.
                                       JURISDICTION AND VENUE

         11.     Plaintiff brings this action pursuant to the Lanham Act, 15 U.S.C. §1050, et seq.

This Court has original jurisdiction pursuant to 15 U.S.C. §1121, 28 U.S.C. §1331 and 28 U.S.C.

§1338, and has supplemental jurisdiction over all other claims asserted herein pursuant to 28

U.S.C. §1367 due to the fact that such claims are so related to the claims in the action within the

original jurisdiction that they form part of the same case or controversy.

         12.     Personal jurisdiction exists over Defendants Lone Star Brahmas, LLC, Texas

Hockey Partners, LLC and NYTEX Sports, LLC in that upon information and belief said

Defendants are Texas limited liability companies which conduct business in the State of Texas

and within the Northern District of Texas, including maintaining offices at 8851 Ice House

Drive, North Richland Hills, Texas 76180.

         13.     Personal jurisdiction exists over Defendant Texas Brahmas Youth Hockey

Association in that upon information and belief said Defendant is a Texas nonprofit corporation

which conducts business in the State of Texas and within the Northern District of Texas,

including maintaining offices at 8851 Ice House Drive, North Richland Hills, Texas 76180.

         14.     Personal jurisdiction exists over Defendant Frank Trazzera in that he is an

individual resident of the State of Texas or otherwise regularly conducts business in the State of

Texas.

         15.     Personal jurisdiction exists over Defendant Salvatore Trazzera in that he has

sufficient contacts with the forum as a result of business conducted within the State of Texas and

within the Northern District of Texas, including, upon information and belief, ownership and

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 4 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 5 of 31 PageID 5



control of Defendants Lone Star Brahmas, LLC, Texas Hockey Partners, LLC and NYTEX

Sports, LLC.

        16.      Personal jurisdiction exists over Defendant North American Hockey League in

that upon information and belief it is a Texas nonprofit corporation which conducts business in

the State of Texas and within the Northern District of Texas, including maintaining offices at

2601 Ave. of the Stars, Suite 400, Frisco, Texas 75034.

        17.      Personal jurisdiction exists over Defendant Western States Hockey League in that

it has sufficient minimal contacts with the forum as a result of business conducted within the

State of Texas and within the Northern District of Texas.

        18.      Venue is proper in this Court under 28 U.S.C. § 1391 because a substantial part of

the events or omissions giving rise to this lawsuit occurred in this Judicial District and

Defendants are subject to personal jurisdiction within this Judicial District.

                                           III.
                         THE PLAINTIFFS’ BUSINESS, THE BRAHMAS
                          TRADEMARKS AND PRODUCTS/ SERVICES

        19.      Since about 1999 Texas Brahmas, LP and/or its predecessors has been developing

and providing high-quality hockey exhibitions and related merchandise. The Brahmas’ franchise

and products have been extensively advertised locally which advertising has led to wide

consumer recognition.

        20.      Texas Brahmas, LP has owned and operated a team in the Central Hockey League

and/or its predecessors since 1999 (the “Brahmas Hockey Club”). Central Partners, LLC dba

Central Hockey League (“CHL” or “Central Hockey League”) by reason of a license agreement

by and between Texas Brahmas, LP and the Central Hockey League, has rights in and to the

marks described herein. While the Brahmas Hockey Club is not fielding a team in the upcoming

season, Plaintiffs are currently actively seeking an appropriate venue for the Brahmas Hockey

Club and intend to return to play in the 2014-15 or 2015-2016 season.
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 5 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 6 of 31 PageID 6



        21.      The Texas Brahmas, L.P. has expended substantial time, money and other

resources in developing, advertising and otherwise promoting the legally-protected trademarks,

trade dresses and design elements which they use on or in connection with the advertisement and

sale of their services and products.            As a result, services and products bearing the herein

described marks are widely recognized and exclusively associated by consumers, the public, and

the trade as being high quality services and products sourced from Plaintiffs, and have acquired

strong secondary meaning.

        22.      Plaintiff has marketed and sold its Brahmas services and products throughout the

United States. In connection with these efforts Plaintiff Texas Brahmas, LP owns and operates

an internet website under the domain name www.brahmas.com.

        23.      Texas Brahmas, LP is the owner of the federally registered mark TEXAS

BRAHMAS, Registration Number 3,517,233 for the goods/services “Entertainment services,

namely, providing professional ice hockey exhibitions and other related sports exhibitions” in

International Class 41 which was registered on October 14, 2008.

        24.      Texas Brahmas, LP is the owner of the federally registered mark FORT WORTH

BRAHMAS, Registration Number 2,707,709 for the goods/services “trading cards, posters,

magazines and books regarding hockey, postcards, calendars, wrapping paper, paper gift boxes,

paper stickers, paper napkins, paper towels, poster books, notepads, paper hats, greeting cards

and student planners” in International Class 16 which was registered on April 15, 2003.

        25.      Texas Brahmas, LP is the owner of the federally registered mark FORT WORTH

BRAHMAS, Registration Number 2,707,710 for the goods/services “stuffed toy animals, hockey

pucks, hockey goals, hockey targets, hockey sticks, mini goalie masks, mini toy vehicles,

namely, model ice rink resurfacers, toy banks, board games and in-line skates” in International

Class 28 which was registered on April 15, 2003.


_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 6 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 7 of 31 PageID 7



        26.      Texas Brahmas, LP also owns common law marks, including, among others

TEXAS BRAHMAS, FORT WORTH BRAHMAS, BRAHMAS, a stylized mark comprised of a




stylized bull over the stylized word “BRAHMAS” depicted as:                                     , a stylized mark

comprised of a stylized bull with a hockey stick over the stylized word “BRAHMAS” with

“FORT WORTH” in a banner over the stylized bull with a hockey stick, depicted as:




                   , a stylized mark comprised of a stylized bull depicted as:                                and a

stylized mark comprised of the stylized word “Texas” with the upper portion of the “T” in

“Texas” forming bulls horns with the word “BRAHMAS” in a banner underneath the stylized




“Texas” depicted as:                             used in connection with ice hockey exhibitions and

hockey related products.          (See “Appendix in Support of Plaintiffs’ Motion/Application for

Preliminary Injunctive Relief” [hereinafter “Appx.”] at p. 4-6, ¶ 10, and Appx. p. 25, 26, 27, 28,

29, 30, 31). The federally registered TEXAS BRAHMAS Registration Number 3,517,233,

FORT WORTH BRAHMAS, Registration Number 2,707,709, FORT WORTH BRAHMAS,

Registration Number 2,707,710 and the common law marks described herein are hereinafter

referred to collectively as the “Brahmas’ Marks”.

        27.      FORT WORTH BRAHMAS Registration Number 2,707,709 and                                        FORT

WORTH BRAHMAS Registration Number 2,707,710 (hereinafter referred to collectively as the

(“FORT WORTH BRAHMAS Marks”) have become incontestable and are conclusive evidence

of the validity of the FORT WORTH BRAHMAS Marks, the registration of the FORT WORTH
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 7 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 8 of 31 PageID 8



BRAHMAS Marks, Plaintiff’s ownership of the FORT WORTH BRAHMAS Marks, and of its

exclusive right to use the FORT WORTH BRAHMAS Marks in commerce on or in connection

with the goods and/or services specified in the registrations.

        28.      Defendants have no license, authority or other permission to use any of the

Brahmas’ marks including the federally registered TEXAS BRAHMAS and FORT WORTH

BRAHMAS trademarks and/or the marks: TEXAS BRAHMAS and/or FORT WORTH




BRAHMAS and/or BRAHMAS and/or                                               and/or                           and/or




                   and/or                       .


                                  IV.
          FACTUAL OVERVIEW AND DEFENDANTS’ UNLAWFUL CONDUCT

        29.      Defendants’ entire business model is predicated upon the unauthorized and willful

exploitation and infringement of the Brahmas’ Marks.

        30.      The fact that Defendants are using the Brahmas’ Marks with the intent to cause

confusion and/or to cause mistake and/or to deceive is demonstrated by, among other things,

Defendants’ relationship with Plaintiff Texas Brahmas, LP.

        31.      Defendant NYTEX Sports, LLC is a limited partner of Plaintiff Texas Brahmas,

LP. Upon information and belief Defendants Lone Star Brahmas, LLC, Texas Hockey Partners,

LLC and NYTEX Sports, LLC are Texas limited liability companies owned and controlled by

Defendants Frank Trazzera and Salvatore Trazzera.



_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 8 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 9 of 31 PageID 9



        32.      Upon information and belief, Defendants Frank Trazzera and Salvatore Trazzera

are individuals who are and have been doing business in their individual and corporate capacity

and hold themselves out to the public as the “owners” of and/or as the owners and/or operators of

or in concert with Defendants Lone Star Brahmas, LLC and/or Texas Hockey Partners, LLC

and/or NYTEX Sports, LLC, and are individually, contributorily and vicariously liable for the

infringing activities described herein.

        33.      Upon information and belief, at all relevant times, Defendants Frank Trazzera

and/or Salvatore Trazzera personally participated in and/or had the ability and right to supervise,

direct, and control the infringing activities of Defendants Lone Star Brahmas, LLC and/or Texas

Hockey Partners, LLC and/or NYTEX Sports, LLC and/or Texas Brahmas Youth Hockey

Association alleged herein and are individually, contributorily and vicariously liable for the

infringing activities described herein.

        34.      Upon information and belief, Defendants Frank Trazzera and Salvatore Trazzera

derived direct financial benefits from the infringing activities alleged herein and are individually,

contributorily and vicariously liable for the infringing activities described herein.

        35.      For the period from April 30, 2007 through May 31, 2008 NYTEX Hockey

Management, LLC, upon information and belief a Texas limited liability company owned

operated and controlled by Defendants NYTEX Sports, LLC, Frank Trazzerra and Salvatore

Trazzera managed the Brahmas Hockey Club pursuant to a management agreement by and

between Texas Brahmas, LP and NYTEX Hockey Management, LLC.

        36.      For several years the Brahmas Hockey Club played its home games at the

NYTEX Sports Centre located at 8851 Ice House Dr. North Richland Hills, Texas 76180. Upon

information and belief, NYTEX Sports Centre is owned and operated by Defendant NYTEX

Sports, LLC.


_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 9 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 10 of 31 PageID 10



        37.      In connection with its ownership and operation of the Brahmas Hockey Club in

the Central Hockey League Plaintiff Texas Brahmas, LP by agreement had granted permission to

junior teams and/or programs to use the Brahmas name and logo (“Junior Brahmas Programs”).

From 2001 through 2006 Plaintiff Texas Brahmas, LP by agreement granted the Cowtown

Amateur Hockey Association permission to use the Brahmas name and logo for its

youth/amateur hockey program. In 2007 the Junior Brahmas Programs continued at NYTEX

Sports Centre located at 8851 Ice House Dr. North Richland Hills, Texas 76180.                                Upon

information and belief, NYTEX Sports Centre is owned and operated by Defendant NYTEX

Sports, LLC. On or about 2008 the amateur hockey association at the NYTEX Sports Centre

was established as the Texas Brahmas Amateur Hockey Association, which association, upon

information and belief, is under the control of Defendants NYTEX Sports, LLC, Frank Trazerra

and Salvatore Trazerra. As with the Cowtown Amateur Hockey Association, the Texas Brahmas

Amateur Hockey Association was permitted, under the direction and control of Plaintiff Texas

Brahmas, LP to use the Brahmas name and logo in connection with the Junior Brahmas

Programs.

        38.      When it became apparent that Defendants were planning on and intending to own

and operate a team in Defendant North American Hockey League, Plaintiff Texas Brahmas, LP,

on or about July 27, 2013 informed Defendants NYTEX Sports, LLC, Frank Trazerra and

Salvatore Trazerra that they no longer had any permission or authorization to use any of the

Brahmas’ Marks and should cease and desist any and all use of any of the Brahmas’ Marks and

refrain from any further use of any of the Brahmas’ Marks.

        39.      Demand has been made upon Defendants that they cease and desist using any of

the Brahmas’ Marks and/or marks confusingly similar to any of the Brahmas’ Marks.

        40.      Plaintiff Texas Brahmas, LP confidential proprietary information was and upon

information and belief, remains on a server and several laptop computers/hard drives owned and
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 10 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 11 of 31 PageID 11



controlled by Defendant NYTEX Sports, LLC. Specifically, financial information, season ticket

lists, sponsor lists, marketing materials, sponsorship proposals and contracts, vendor contracts

and Plaintiff Texas Brahmas, LP’s Telemagic database (“Proprietary Materials”).

        41.      Plaintiff Texas Brahmas, LP has demanded that Defendant NYTEX Sports, LLC

transfer all such Proprietary Materials to Plaintiff Texas Brahmas, LP and that any electronic or

hard copies of any of Plaintiff Texas Brahmas, LP’s Proprietary Materials in Defendants’

possession be permanently deleted or destroyed and that Defendants not make any use of such

Proprietary Materials.

        42.      Upon information and belief, in June of 2013 Defendant Texas Hockey Partners,

LLC was formed. In July of 2013 Defendant North American Hockey League announced that its

Texas Tornado membership had been sold to Texas Hockey Partners, LLC and “will become the

Lone Star Brahmas.” According to the NAHL press release Defendant Texas Hockey Partners,

LLC is owned by Defendants Frank Trazzera and Salvatore Trazzera.

        43.      Upon information and belief Defendants Lone Star Brahmas, LLC, Texas Hockey

Partners, LLC, NYTEX Sports, LLC, Texas Brahmas Youth Hockey Association, Frank Trazerra

and Salvatore Trazerra are making use of the Texas Brahmas, LP Proprietary Materials.

        44.      Despite the fact that Defendants have no license, authority or other permission to

use any of the Brahmas’ Marks and have no legitimate interest or rights regarding the use of any

of the Brahmas’ Marks, in furtherance of their business Defendants have begun to employ

numerous infringing marks, in particular “TEXAS BRAHMAS” “LONE STAR BRAHMAS”




“JR.    BRAHMAS”            “JUNIOR         BRAHMAS”,                                   ,                           ,




_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 11 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 12 of 31 PageID 12




                   ,                     ,                    ,                     and                       . Set

forth below is a comparison of the Brahmas’ Marks and the infringing marks being used by

Defendants:

                 Plaintiffs’ Marks                                Infringing Marks Used by Defendants

                                                                           TEXAS BRAHMAS
TEXAS BRAHMAS
(Reg. No. 3,517,233)                                                    LONE STAR BRAHMAS
TEXAS BRAHMAS




FORT WORTH BRAHMAS
(Reg. No. 2,707,709)

FORT WORTH BRAHMAS
(Reg. No. 2,707,710)

FORT WORTH BRAHMAS

BRAHMAS




_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 12 OF 31
     Case 4:13-cv-00865-O Document 1 Filed 10/22/13                          Page 13 of 31 PageID 13




See Appx. p. 11-14 at ¶ 22(a) – (k).

        45.      Despite the fact that Defendants have no license, authority or other permission to

use any of the Brahmas’ Marks and have no legitimate interest or rights regarding the use of any

of        the        Brahmas’            Marks,          Defendants           employ           the        domains

www.lonestarbrahmas.pointstreaksites.com, www.brahmaland.com, and www.jrbrahmas.com

which incorporate Plaintiff’s federally registered trademarks as part of their scheme to divert

consumers seeking genuine Texas Brahmas products and/or services to their multiple

commercial websites where Defendants promote, market and sell their competing products and

services.

        46.      Upon information and belief Defendants have made use of and continue to make

use of Plaintiff Texas Brahmas, LP’s Proprietary Materials, including season ticket lists,

marketing information and sponsorship information in order to promote, market and sell their

competing products and/or services.

        47.      Defendants have no license, authority or other permission to use any of the

Brahmas’ Marks including the federally registered TEXAS BRAHMAS and FORT WORTH

BRAHMAS trademarks and/or the marks: TEXAS BRAHMAS and/or FORT WORTH




_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 13 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 14 of 31 PageID 14




BRAHMAS           and/or          BRAHMAS                                    and/or                          and/or




                   .

        48.      Defendants’ past history with Plaintiffs leaves no doubt that, with respect to

conduct complained of herein, Defendants have acted knowingly, willfully, deliberately and in

bad faith. Defendants have intentionally sought to cause confusion, to cause mistake and/or to

deceive.

        49.      Defendants have been informed they have no express or implied license or

authority or permission to use the Brahmas’ Marks including the TEXAS BRAHMAS, FORT

WORTH BRAHMAS Marks and the stylized mark comprised of a stylized bull over

“BRAHMAS”. Multiple demands have been made upon Defendants to cease and desist from

using the Brahmas’ Marks and/or confusingly similar marks in any manner. Despite numerous

demands Defendants refuse to cease the use of the Brahmas’ Marks and/or marks confusingly

similar to the Brahmas’ Marks and continue their unlawful conduct and have been, and currently

are promoting and advertising their goods and/or services directly in the Tarrant County, Texas

area, including but not limited to the following:

              a. Established a new webpage (www.lonestarbrahmas.pointstreaksites.com) which
                 prominently displays and uses infringing such as a stylized bull and the wording
                 “Lone Star Brahmas”, “Lone Star Brahmas”. The website contains links to the
                 Lone Star Brahmas facebook and twitter pages.                    See screenshot of Lonestar
                 Brahmas home page, www.lonestarbrahmas.pointstreaksites.com attached as
                 Exhibit 8 to Barack Declartion. Clicking on the “TICKETS” on the menu bar
                 opens a page where information regarding ticket pricing can be found and tickets

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 14 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 15 of 31 PageID 15



                  can be purchased and a Season Ticket Order Form for “LONE STAR BRAHMAS
                  HOCKEY CLUB” can be downloaded. See Appx. p. 14 at ¶ 23(a).
             b. A Twitter account ( https://twitter.com/lonestarbrahmas) which utilizes the marks




                  “Lone Star Brahmas” and                                  . Also accessible from the twitter
                  account under “Photos and videos” are depictions of the team jerseys bearing the




                  stylized      bull      from       Plaintiffs’      Marks        and                              :




                                                                      See Appx. p. 15 at ¶ 23(b).
             c.   A Facebook page (https://www.facebook.com/lonestarbrahmas) which utilizes




                  the marks “Lone Star Brahmas” and                                  . The Facebook page also
                  links to the Lone Star Brahmas webpage. See Appx. p. 15 at ¶ 23(c) and Appx. p.
                  95      -      printout      of      Lone        Star      Brahmas         Facebook         page,
                  https://www.facebook.com/lonestarbrahmas attached as Exhibit 35 to Barack
                  Declaration.
             d.   A webpage for Junior Brahmas/Texas Brahmas Youth Hockey Association
                  (http://www.jrbrahmas.com) which utilizes the marks “Junior Brahmas” “Texas




                  Brahmas              Youth          Hockey              Association”
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 15 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                               Page 16 of 31 PageID 16




                                                         .   See Appx. p. 16 at ¶ 23(d).              Clicking on
                 “Forms” under the “Related Pages” menu on the left side of the page opens a
                 “Document Finder” page. (See Id. - screenshot of “Document Finder” page from
                 the Junior Brahmas webpage attached as Exhibit 36 to Barack Declaration). The
                 first linked pdf document is “Midget Minor Tryout Registration” which when
                 clicked opens a pdf Jr Brahmas Try Out form which includes the Plaintiffs’ mark




                                     . See Appx. p. 16 at ¶ 23(d). The second linked pdf document is
                 “Scholarship Application & Guidelines” which when clicked opens the pdf



                 document which includes the mark                                  which is simply Plaintiffs’



                 mark                        with purple replacing the blue used by Plaintiffs. (See
                 Appx. p. 16 at ¶ 23(d)). The third linked pdf document is “Brahma’s Billet
                 Handbook” which when clicked opens the pdf document which includes “Texas
                 Brahma’s” and discusses the “mission and purpose of the Texas Brahma’s
                 Hockey Club”. (See Appx. p. 16 at ¶ 23(d)).
             e. The NYTEX Sports webpage (http://www.nytexsports.com) which prominently
                 states on the top of the homepage “Home of Texas Brahmas Hockey” under
                 “NYTEX SPORTS CENTRE and below which are displayed the marks




                                           and                       .   (See Appx. p. 16-17 at ¶ 23(e)).
                 Clicking on the “Ice Hockey” “Hockey Programs” menu leads to a page with
                 links          to          the          Lone            Star         Brahmas             webpage
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 16 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 17 of 31 PageID 17



                 (www.lonestarbrahmas.pointstreaksites.com),                the     Jr.    Brahmas        webpage
                 (http://www.jrbrahmas.com).
             f. The North American Hockey League webpage (http://nahl.com) which lists the
                 Lone Star Brahmas as one of the teams in the league. (See Appx. p. 17 at ¶ 23(f)).
                 Clicking either on the Lone Star Brahmas logo or selecting the Lone Star
                 Brahmas from the “Teams” drop down menu leads to a page for “Lone Star




                 Brahmas” displaying the mark:                                 , providing contact information
                 and providing a link (“lonestarbrahmas.com”) which opens the Lone Star
                 Brahmas website (www.lonestarbrahmas.pointstreaksites.com). (See Appx. p. 17
                 at ¶ 23(f)). The “Lone Star Brahmas” team page on the North American Hockey
                 League website also links to “Recent News” articles: “Texas Hockey Partners
                 purchase and relocate Texas Tornado membership”, “Wildfong named head coach
                 of the NAHL’s Lone Star Brahmas”, “Brahmas to select team this weekend”, “24
                 teams in 24 days: Lone Star Brahmas”.                    “Brahmas split pair of weekend
                 exhibition games with Odessa”. (See Appx. p. 17-18 at ¶ 23(f)).
             g. The Western States Hockey League’s webpage (http://wshl.org) which on its
                 homepage references in its “League Headlines”, the “Texas Brahmas” (See Appx.
                 p. 18 at ¶ 23(g) - screenshot of Western States Hockey League homepage attached
                 as Exhibit 26 to Barack Declaration). Clicking on the “Texas Brahmas 2013-
                 2014 Season Preview” link on the Western States Hockey League homepage
                 opens      another      page,     “Texas      Brahmas       2013-2014       Season      Preview”
                 (http://wshl.org/2013/08/30/texas-brahmas-2013-2014-season-preview/)                        which
                 includes among other things, includes numerous references to the “Texas
                 Brahmas” and “Brahmas” and references the fact that the “Texas Brahmas” are
                 “now sharing their facility with a Tier II North American Hockey League team by
                 the same name…” (See Appx. p. 18 at ¶ 23(g)).




_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 17 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 18 of 31 PageID 18



                                                  V.
                                           CAUSES OF ACTION

                                      COUNT ONE
                Trademark Infringement – Lanham Act § 32(a), 15 U.S.C. § 1114

        50.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        51.      This claim for relief is brought pursuant to §32 of the Federal Lanham Act, 15

U.S.C. §1114(1) for infringement.

        52.      Defendants’ use of the Brahmas’ Marks, including the Brahmas’ Marks in domain

names which are identical to and/or confusingly similar to the Brahmas’ Marks, use of the

Brahmas’ Marks and/or marks confusingly similar to the Brahmas’ Marks in association with the

products and/or services Defendants sell constitutes the reproduction, counterfeiting, copying or

colorable imitating of a registered mark and application of such reproduction, counterfeit, copy

or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements

intended to be used in commerce upon or in connection with the sale, offering for sale,

distribution, or advertising of goods on or in connection with which is likely to cause confusion,

or to cause mistake or to deceive.

        53.      Defendants, upon information and belief, have committed and are committing

these acts with knowledge and intent to cause confusion, to cause mistake and/or to deceive and

with knowledge that such imitation is intended to be used to cause confusion, or to cause

mistake, or to deceive.

        54.      Upon information and belief, Defendants’ unlawful conduct as set forth herein has

been and continues to be willful, deliberate and in bad faith.

        55.      Defendants, by virtue of their actions described above, have caused and are likely

to continue causing Plaintiffs to suffer irreparable injury. Remedies available at law, such as

monetary damages, are inadequate to compensate for that injury. Considering the balance of
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 18 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 19 of 31 PageID 19



hardships between Plaintiffs and Defendants, a remedy in equity is warranted. Public interest

would not be disserved by a preliminary and permanent injunction.

        56.      Pursuant to 15 U.S.C. §1117, Plaintiffs are also entitled to recover (i) Defendants’

profits, (ii) Plaintiffs’ ascertainable damages, (iii) Plaintiffs’ costs of suit, and (iv) treble damages

according to law.         Defendants’ willful use of the Brahmas’ Marks is without excuse or

justification and renders this an exceptional case and entitles Plaintiffs to their reasonable

attorneys’ fees.

                                         COUNT TWO
                         False Designation of Origin /False Descriptions –
                      Lanham Act § 43(a)&(b); 15 U.S.C. § 1125(a)(1)(A)&(B)

        57.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        58.      This claim for relief is brought pursuant to §43(a) & (b) of the Federal Lanham

Act, 15 U.S.C. §1125(a)(1)(A) & (B) for false designation of origin and false descriptions.

        59.      Defendants’ promotion, advertising, distribution, sale, and/or offering for sale of

their products and/or services as described herein, and in particular their products and/or services

which are directly competitive with Plaintiffs’ products and/or services through and/or linked to

websites whose domain names incorporate the Brahmas’ Marks and/or are confusingly similar to

the Brahmas’ Marks together with Defendants’ unauthorized use of the Brahmas’ Marks and/or

marks confusingly similar to the Brahmas’ Marks is intended, and is likely to confuse, mislead,

or deceive consumers, the public, and the trade as to the origin, source, sponsorship, or affiliation

of the Defendants’ products and/or services, and is intended, and is likely to cause such parties to

believe in error that the Defendants’ products and/or services have been authorized, sponsored,

approved, endorsed or licensed by Plaintiffs, or that Defendants are in some way affiliated with

Plaintiffs.


_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 19 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 20 of 31 PageID 20



        60.      Furthermore, Defendants, in promoting, advertising, distributing, selling and

offering for sale their competing products and/or services as described herein, have been and are

also misrepresenting the nature, characteristics, and quality of their own products and/or services

by, among other things, falsely and fraudulently implying approval, association or sponsorship

by Plaintiffs thereby deceiving the general public and the consumers.

        61.      The foregoing acts of Defendants constitute a false designation of origin, and

false and misleading descriptions and representations of fact, all in violation of §43(a) & (b) of

the Federal Lanham Act, 15 U.S.C. §1125(a)(1)(A) & (B).

        62.      Upon information and belief, Defendants’ unlawful conduct as set forth herein has

been and continues to be willful, deliberate and in bad faith.

        63.      Defendants, by virtue of their actions described above, have caused and are likely

to continue causing Plaintiffs to suffer irreparable injury. Remedies available at law, such as

monetary damages, are inadequate to compensate for that injury. Considering the balance of

hardships between Plaintiffs and Defendants, a remedy in equity is warranted. Public interest

would not be disserved by a preliminary and permanent injunction.

        64.      Pursuant to 15 U.S.C. §1117, Plaintiffs are also entitled to recover (i) Defendants’

profits, (ii) Plaintiffs’ ascertainable damages, (iii) Plaintiffs’ costs of suit, and (iv) treble damages

according to law.         Defendants’ willful use of the Brahmas’ Marks is without excuse or

justification and renders this an exceptional case and entitles Plaintiffs to their reasonable

attorneys’ fees.




                                      COUNT THREE
              Cyber Piracy Pursuant to Lanham Act - § 43(d), 15 U.S.C. § 1125(d)



_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 20 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 21 of 31 PageID 21



        65.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        66.      Defendants have registered, trafficked in, and/or used a domain name that was

distinctive and/or famous at the time of registration of the domain name, and was identical to,

confusingly similar to, or dilutive of the Brahmas’ Marks

        67.      The lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com

domain names that Defendants have registered and/or use incorporate the Brahmas’ Marks and

are confusingly similar to the Brahmas’ Marks which were distinctive and/or famous at the time

Defendants       registered     the    lonestarbrahmaspointstreaksites.com,             brahmaland.com,         and

jrbrahmas.com domain names.

        68.      Defendants have registered and/or use the lonestarbrahmas.com, brahmaland.com,

and jrbrahmas.com domain names with a bad faith intent to profit from Plaintiff’s Marks.

        69.      By      registering     and/or      using     the     lonestarbrahmas.pointstreaksites.com,

brahmaland.com, and jrbrahmas.com domain names, Defendants intended to divert consumers

away from Plaintiffs and legitimate authorized distributors of Plaintiffs’ products and/or services

and divert those consumers to Defendants’ websites for commercial gain by creating a likelihood

of confusion as to the source, sponsorship, affiliation or endorsement of Defendants’ websites in

a manner that harms the goodwill represented by the Brahmas’ Marks.

        70.      Plaintiffs have no adequate remedy at law that will compensate for the continued

and irreparable harm that will be caused if Defendants’ acts are allowed to continue, and are thus

entitled to both a preliminary and permanent injunction.

        71.      Pursuant to 15 U.S.C. §1125(d)(1)(C), the Court should order the transfer of the

registration of the domain names lonestarbrahmas.pointstreaksites.com, brahmaland.com, and

jrbrahmas.com to Plaintiffs. Alternatively, pursuant to 15 U.S.C. §1125(d)(1)(C), the Court


_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 21 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 22 of 31 PageID 22



should         order    the      forfeiture       or      cancellation        of     the      domain         names

lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com.

         72.      Plaintiffs are entitled to an injunction preventing Defendants from using or

holding or controlling the internet domain names lonestarbrahmas.com, brahmaland.com, and

jrbrahmas.com to anyone but Plaintiffs and ordering Defendants to transfer the domain names

lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com and any other

domain names Defendants have registered or caused to be registered or which Defendants

control containing any of the Brahmas’ Marks to Plaintiffs.

         73.      Pursuant to 15 U.S.C. §1117(a) and 15 U.S.C. §1125(d)(1), Plaintiffs are entitled

to damages and Defendants’ profits with respect to the registration and maintenance of the

domain names lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com and

any other domain names Defendants have registered or caused to be registered or which

Defendants control containing any of the Brahmas’ Marks.

         74.      As an alternative to its actual damages, Plaintiffs are entitled to recover statutory

damages in an amount up $300,000.00 and not less than $3,000.00 due to Defendants’

registration and use of the domain names lonestarbrahmas.com, brahmaland.com, and

jrbrahmas.com as well as Plaintiffs’ attorneys’ fees and costs.

                                         COUNT FOUR
                                Common Law Trademark Infringement

         75.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

         76.      Plaintiffs own all rights, title and interest in and to the Brahmas’ Marks, including

all common law rights in such marks.

         77.      Defendants, without authorization or permission from Plaintiffs have used and are

continuing to use marks that are identical to and/or confusingly similar to the Brahmas’ Marks.

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 22 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 23 of 31 PageID 23



        78.      Defendants’ unauthorized use of the Brahmas’ Marks and/or marks confusingly

similar to the Brahmas’ Marks is intended, and is likely to confuse, mislead, or deceive

consumers, the public, and the trade as to the origin, source, sponsorship, or affiliation of the

Defendants’ products and/or services, and is intended, and is likely to cause such parties to

believe in error that the Defendants’ products and/or services have been authorized, sponsored,

approved, endorsed or licensed by Plaintiffs, or that Defendants are in some way affiliated with

Plaintiffs.

        79.      Defendants, upon information and belief, have committed and are committing

these acts with knowledge and intent to cause confusion, to cause mistake and/or to deceive and

with knowledge that such imitation is intended to be used to cause confusion, or to cause

mistake, or to deceive.

        80.      Upon information and belief, Defendants’ unlawful conduct as set forth herein has

been and continues to be willful, deliberate and in bad faith.

        81.      Defendants, by virtue of their actions described above, have caused and are likely

to continue causing Plaintiffs to suffer irreparable injury. Remedies available at law, such as

monetary damages, are inadequate to compensate for that injury. Considering the balance of

hardships between Plaintiffs and Defendants, a remedy in equity is warranted. Public interest

would not be disserved by a permanent injunction.

        82.      Plaintiffs are also entitled to recover (i) Defendants’ profits, (ii) Plaintiffs’

ascertainable damages, (iii) Plaintiffs’ costs of suit, and (iv) exemplary damages according to

law.



                                           COUNT FIVE
                               Misappropriation and Unfair Competition



_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 23 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 24 of 31 PageID 24



        83.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        84.      The foregoing acts of Defendants permit Defendants to use and benefit from the

goodwill and reputation earned by Plaintiffs and obtain a ready customer acceptance of

Defendants’ products and/or services, and constitutes unfair competition, pawning off, and

misappropriation in violation of Texas common law, for which Plaintiffs are entitled to recover

any and all remedies provided by such common law.

        85.      Upon information and belief, Defendants have made and will continue to make

profits and gains to which they are not entitled.

        86.      Upon information and belief, Defendants intend to continue their infringing acts

unless restrained by the Court.

        87.      Defendants’ acts have damaged and will continue to damage Plaintiffs and

Plaintiffs have no adequate remedy at law.

                                                COUNT SIX
                                              Unjust Enrichment

        88.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        89.      By reason of the foregoing, Defendants have unjustly enriched themselves and

continue to do so, in an unknown amount.

        90.      Plaintiffs are entitled to just compensation (including restitution of benefits

unjustly received) under the common law of the State of Texas.




                                             VI.
                           APPLICATION FOR PRELIMINARY INJUNCTION
                                 AND PERMANENT INJUNCTION

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 24 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 25 of 31 PageID 25



        91.      Plaintiffs hereby reallege and hereby incorporate by reference the allegations of

paragraphs 1 - 49 of this Original Complaint as if fully set forth herein.

        92.      Plaintiffs seek a preliminary injunction pursuant to Federal Rule of Civil

Procedure 65 and 15 U.S.C. §1116 to enjoin Defendants their officers, agents, servants,

employees, attorneys, confederates, and all persons acting for, with, by, through, under or in

active concert and participation with them from using any of the Brahmas’ Marks and

Proprietary Materials.

        93.      As a direct and proximate result of Defendants’ unauthorized activities as

described herein Plaintiffs have suffered and will continue to suffer immediate and irreparable

harm through the loss of goodwill, business opportunities and protection of the Brahmas Hockey

Club franchise and business. The extent of the infringement by Defendants cannot be accurately

measured in dollars and cents but the actual damage to Plaintiffs and the Brahmas’ Marks is

substantial.

        94.      Furthermore, there is a substantial likelihood that Plaintiffs will prevail on the

merits. Defendants have no license, authority or other permission to use any of the Brahmas’

Marks, including the federally registered TEXAS BRAHMAS and FORT WORTH BRAHMAS

trademarks and/or the marks TEXAS BRAHMAS, and/or FORT WORTH BRAHMAS and/or




BRAHMAS and/or                                and/or                       and/or                        and their

actions to date, especially their continued use of the Brahmas’ Marks and/or marks confusingly

similar to the Brahmas’ Marks and Plaintiff Texas Brahmas, LP’s Proprietary Materials despite

notice of the unlawfulness of their conduct constitutes intentional violations of the Lanham Act

and Texas statutory and common law.

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 25 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 26 of 31 PageID 26



        95.      If the Court does not grant a preliminary injunction, Defendants will continue

their unlawful activities which infringe upon Plaintiffs’ protected intellectual property. Plaintiffs

will continue to suffer irreparable injury if the Court does not enjoin Defendants from the

unauthorized use of the Brahmas’ Marks and/or marks confusingly similar to the Brahmas’

Marks and Plaintiff Texas Brahmas, LP’s Proprietary Materials because actual confusion in the

market is occurring and will continue to occur.

        96.      Defendants will not suffer undue hardship or loss as a result of the issuance of a

preliminary injunction. Defendants can simply conduct their business without the use of the

Brahmas’ Marks and/or marks confusingly similar to the Brahmas’ Marks and Plaintiff Texas

Brahmas, LP’s Proprietary Materials.

        97.      Issuance of a preliminary injunction would not adversely affect the public interest

because it will eliminate the confusion that exists in the marketplace and minimize future

confusion.

        98.      Plaintiffs ask the Court to set its application for preliminary injunction for hearing

at the earliest possible time and after hearing the request issue a preliminary injunction against

the Defendants in the manner specified below.

        99.      Further, Plaintiffs ask the Court to set its application for permanent injunctive

relief for a full trial on the issues in this application and after the trial to issue a permanent

injunction against the Defendants in the manner specified below.

        100.     Plaintiffs request that the Court find that no bond is necessary for facilitating the

injunctive relief requested herein.




                                                VII.
                                       CONDITIONS PRECEDENT

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 26 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 27 of 31 PageID 27



        101.     All conditions precedent have been performed or have occurred or have been

waived.

                                                   VIII.
                                               JURY DEMAND

        102.     In accordance with Federal Rules of Civil Procedure 38 and 39, Plaintiffs assert

their right under the Seventh Amendment to the United States Constitution and demands a trial

by jury on all issues so triable.

                                          PRAYER FOR RELIEF

        Plaintiffs The Texas Brahmas, L.P. and Central Hockey Partners, LLC dba the Central

Hockey League respectfully request that judgment be entered in their favor on all claims against

Defendants, and that the Court enter an order containing the following relief:

        1.       That Defendants, their officers, agents, servants, employees, attorneys,

confederates, and all persons acting for, with, by, through, under or in active concert and

participation with them, and each of them who receives notice directly or otherwise of such

injunctions, be temporarily, preliminarily and permanently enjoined and restrained from:

             a. using any of the Brahmas’ Marks, including the marks: TEXAS BRAHMAS,

                 Reg. No. 3,517,233; FORT WORTH BRAHMAS, Reg. Nos. 2,707,709; FORT

                 WORTH BRAHMAS, Reg. No. 2,707,710; TEXAS BRAHMAS; FORT




                 WORTH          BRAHMAS;            BRAHMAS;                               ;                        ;




                                      and/or                       or any reproductions, counterfeit copy or

_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 27 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 28 of 31 PageID 28



                 colorable imitation thereof or any mark confusingly similar thereto in any manner

                 in connection with the distribution, advertising, offering for sale, or sale of any

                 product and/or service not authorized by Plaintiffs to be distributed, advertised,

                 offered and/or sold in connection with any of the Brahmas’ Marks;

             b. committing any acts calculated to cause consumers to believe that Defendants’

                 products and/or services are those sold under the authorization, control or

                 supervision of Plaintiffs, or sponsored or approved by, or connected or associated

                 with Plaintiffs;

             c. further infringing the Brahmas’ Marks and damaging Plaintiffs’ goodwill and/or

                 engaging in any activity that will cause the distinctiveness of any of the Brahmas’

                 Marks to be diluted;

             d. engaging in any other activity constituting unfair competition with Plaintiffs or

                 acts and practices that deceive consumers, the public, and/or trade including

                 without limitation the use of any of the Brahmas’ Marks and/or any

                 reproductions, counterfeit copy or colorable imitation thereof or any mark

                 confusingly similar thereto and/or Plaintiff Texas Brahmas, LP’s Proprietary

                 Materials or otherwise competing unfairly with Plaintiffs in any manner;

             e. shipping, delivering, holding for sale, transferring or otherwise moving, storing,

                 distributing, returning, or otherwise disposing of, in any manner, products or

                 inventory not manufactured by or for Plaintiffs, nor authorized by Plaintiffs to be

                 sold or offered for sale, and which bear any of the Brahmas’ Marks or any

                 reproductions, counterfeit copy or colorable imitation thereof;

             f. using any of the Brahmas’ Marks and/or any reproductions, counterfeit copy or

                 colorable imitation thereof or any mark confusingly similar thereto and/or


_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 28 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 29 of 31 PageID 29



                 Plaintiff Texas Brahmas, LP’s Proprietary Materials in any way or manner to

                 open, operate, support, or maintain any hockey team or organization;

             g. utilizing advertising, promotional or marketing materials (including via

                 newspapers, magazines, newsletters, the internet, television, radio and any other

                 mediums), websites, blogs, online links to other websites, direct mailings and/or

                 emailing, Twitter accounts, Facebook pages or business cards (collectively

                 “Promotional Materials”) that in any way or manner indicate to the public that

                 any of the Defendants’ uses of any of the Brahmas’ Marks and/or any

                 reproductions, counterfeit copy or colorable imitation thereof or any mark

                 confusingly similar thereto and/or Plaintiff Texas Brahmas, LP’s Proprietary

                 Materials is/are licensed, authorized, endorsed and/or permitted or that any of the

                 Defendants is in some way affiliated with, associated with and/or sponsored by

                 Plaintiffs;

             h. using, linking, transferring, selling, exercising control over or otherwise owning

                 the infringing domain names lonestarbrahmas.com, brahmaland.com, and

                 jrbrahmas.com;

             i. registering, using and/or trafficking in any other domain names that incorporate,

                 in whole or in part, whether alone or in combination with other terms any of the

                 Brahmas’ Marks and/or uses names, words, designations or other symbols

                 confusingly similar to any of the Brahmas’ Marks and/or registering, using and/or

                 trafficking in any other domain names that incorporate, in whole or in part,

                 whether alone or in combination with other terms “Brahmas”;

             j. transferring       to     anyone      other     than     Plaintiffs     the      domain      names

                 lonestarbrahmas.pointstreaksites.com,             brahmaland.com,         and     jrbrahmas.com

                 and/or any other domain names that incorporates, in whole or in part, any of the
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 29 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 30 of 31 PageID 30



                 Brahmas’ Marks and/or              use names, words, designations or other symbols

                 confusingly similar to any of the Brahmas’ Marks;

             k. effecting assignments or transfers, forming new entities or associations or

                 utilizing any other device for the purpose of circumventing or otherwise avoiding

                 the prohibitions set forth in any judgment or order in this action; and

             l. instructing, assisting, aiding, or abetting any other person or business entity in

                 engaging in or performing any of the activities referred to in subparagraphs (a)

                 through (k) above.

        2.       An Order directing each of the Defendants, within thirty (30) days after the entry

and service upon Defendants of a preliminary injunction, to file with the Court and serve upon

Plaintiffs a written report under oath setting forth in detail the manner and form in which each of

the Defendants have complied with the provisions of the preliminary injunction;

        3.       That Defendants, their officers, agents, servants, employees, attorneys,

confederates, and all persons acting for, with, by, through, under or in active concert and

participation with them deliver up and destroy all labels, signs, prints, packages, wrappers,

receptacles and advertisements in their possession bearing any of the Brahmas’ Marks or any

reproductions, counterfeit copy or colorable imitation thereof or any mark confusingly similar

thereto;

        4.       That Defendants account for and pay to Plaintiffs all profits realized by

Defendants by reason of Defendants’ unlawful acts herein alleged and that the amount of

damages for infringement of the Brahmas’ Marks be increased by a sum not exceeding three

times the amount thereof as provided by law;

        5.       For an award of Plaintiffs’ damages, statutory damages, including statutory

damages of in an amount up to $300,000.00 and not less than $3,000.00 pursuant to the

Anticybersquatting Consumer Protection Act, and other damages arising out of Defendants’ acts.
_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 30 OF 31
   Case 4:13-cv-00865-O Document 1 Filed 10/22/13                            Page 31 of 31 PageID 31



        6.       For an award to Plaintiffs of their ascertainable damages, costs, and attorneys’

fees;

        7.       Such other and further relief to which Plaintiffs may show themselves to be justly

entitled to, such other and further relief as equity may require and/or that this Court may

determine to be just and proper.


                                             Respectfully submitted,

                                              /s/ David J. Pels
                                              David J. Pels
                                              State Bar No. 15732875
                                              Paul F. Gianni
                                              State Bar No. 00784124

                                              Shannon, Gracey, Ratliff & Miller, L.L.P.
                                              777 Main Street, Suite 3800
                                              Fort Worth, Texas 76102
                                              Telephone: (817) 336-9333
                                              Facsimile: (817) 336-3735
                                              dpels@shannongracey.com
                                              pgianni@shannongracey.com

                                              ATTORNEYS FOR PLAINTIFFS




_____________________________________________________________________________________________________________________
PLAINTIFFS’ ORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF                                                             PAGE 31 OF 31

				
DOCUMENT INFO
Shared By:
Tags:
Stats:
views:843
posted:10/25/2013
language:
pages:31