Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

t-shirt gatling gun.pdf

VIEWS: 28 PAGES: 7

									UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN

                                                          Civil Action No.
Exciting Events, Inc.
                        Plaintiff,                        2:14-cv-156

               v.                                          Complaint for Trademark,
                                                           Infringement, False Designation of
War Machine, Inc.                                          Origin and Unfair Competition
                        Defendants.
                                                           Demand for Jury Trial


       Plaintiff Exciting Events, Inc. (“Exciting Events”) complains of defendants as follows:



NATURE OF LAWSUIT
       1.      This is an action for infringement of federally registered and common law
trademark rights (Counts I and II), false designation of origin under Section 43(a) of the
Lanham Act (Count III) and Unfair Competition (Count IV).



THE PARTIES
       2.      Exciting Events is a Wisconsin Corporation having a principal place of
business at 2020 S. Calhoun Road, New Berlin, WI 53151.


       3.      Exciting Events is engaged in the business of providing audio/video, lighting,
special effects and stage décor. Exciting Events has been using the T-Shirt Gatling Gun
trademark in commerce, since at least as early as June 1, 2007. Exciting Events is the owner

of United States Trademark Registration No. 4,338,334 (duly and legally issued by the United
States Patent and Trademark Office on May 21, 2013). A true and correct copy of the United
States Trademark Registration is attached as Exhibit A. The T-Shirt Gatling Gun product is
sold through the FX in Motion website, www.fxinmotion.com.


                                              -1-


         Case 2:14-cv-00156-JPS Filed 02/13/14 Page 1 of 7 Document 2
        4.      Trademark Registration No. 4,338,334 (the ‘334 registration hereafter) protects
the sale of a compressed-air cannon for distributing promotional items, such as T-Shirts at
sporting events and other entertainment events in international class 007.


        5.      Upon information and belief, War Machine, Inc. (War Machine) is a South
Carolina Corporation having a principal place of business at 3429 Rutherford Road Extension,
Suite B, Taylors, SC 29687.


        6.      War Machine sold a product having the trade name of “T-Shirt Gatling Gun”
to the Milwaukee Bucks NBA basketball team about four years ago. The Milwaukee Bucks

are located in this judicial district.



JURISDICTION AND VENUE


        7.      This Court has exclusive jurisdiction over the subject matter of the Complaint
under 28 U.S.C. §§ 1338(a).


        8.      Personal Jurisdiction over the defendants is proper in this Court. Venue is also
proper in this district under Title 28 U.S.C. §§1391(b), (c) and/or 1400(b) in that War
Machine conducted business in this district, caused damage and injury to Exciting Events in
this district, and are subject to personal jurisdiction in this district.




                                                 -2-
          Case 2:14-cv-00156-JPS Filed 02/13/14 Page 2 of 7 Document 2
DEFENDANTS’ ACTS OF TRADEMARK INFRINGEMENT, FALSE
DESIGNATION OF ORIGIN AND UNFAIR COMPETITION


        9.      Defendant War Machine is engaged in the business of manufacturing, offering

for sale and selling guns that propel objects, such as t-Shirts. The guns are sold a website
having the address of www.tshirtgun.com. The tshirtgun.com website is a division of War
Machine, see Exhibit B. The T-shirt gun sold by War Machine has been sold under the name
of “T-Shirt Gatling Gun, see Exhibit C. The use of the trade name “T-Shirt Gatling Gun” is a
direct infringement of the ‘334 registration.


        10.     Upon information and belief, War Machine began manufacturing; offering for
sale and selling its T-Shirt gun, after Exciting Events first adopted and used its T-Shirt gun,
under the trademark of T-Shirt Gatling Gun. War Machine deliberately and maliciously
adopted the T-Shirt Gatling Gun trademark from www.fxinmotion.com to describe its own T-
Shirt gun product. War Machine’s trademark infringement has confused the clients of
Exciting Events as to the source of the T-Shirt Gatling Gun product.



COUNT I

(INFRINGEMENT OF REGISTERED TRADEMARKS)
        11.     Exciting Events repeats and realleges the allegations in Paragraphs 1 through
10 as if fully set forth herein.


        12.     War Machine’s manufacture, distribution and/or sale of their T-Shirt gun
product, under the trade name of “T-Shirt Gatling Gun” is a direct infringement of the ‘334

registration and infringes Exciting Event’s rights in contravention of Title 15 U.S.C. §1114.




                                                -3-
          Case 2:14-cv-00156-JPS Filed 02/13/14 Page 3 of 7 Document 2
        13.     War Machine’s manufacture, distribution and/or sale of their T-Shirt gun
product, under the trade name of “T-Shirt Gatling Gun has caused and will cause Exciting
Events great and irreparable harm unless enjoined by this court.
        14.     War Machine has caused irreparable harm by causing the Milwaukee Bucks to

cancel their contract with Exciting Events for a period of two years. During the two-year
period, the War Machine T-Shirt product had repeated failures. The Milwaukee Bucks
requested and received money back from War Machine.


        15.     Exciting Events has also suffered irreparable harm and confusion by the use of
their “T-Shirt Gatling Gun product during a 2012 Big 10 Conference Football Championship

game. The War Machine “T-Shirt Gatlin Gun failed miserably. After the Big 10 game,
Exciting Events was contacted by the Big 10 Conference to do special effects at their
women’s and men’s basketball championships and when it was brought to their attention that
Exciting Events have a T-shirt Gatling Gun product, the Big 10 Conference said that they will
never use a T-Shirt Gatling Gun again due to the experience they had at the football
championship game. Proof of the failures of the War Machine T-Shirt Gatlin gun during the

2012 Big 10 Conference Football Championship game may be seen at the following links,
http://www.youtube.com/watch?v=khZWI-rcQIY and
http://www.youtube.com/watch?v=6KRm5vP0-eg.



COUNT II

(INFRINGEMENT OF COMMON LAW TRADEMARK)
        16.     Exciting Events repeats and realleges the allegations in Paragraphs 1 through
15 as if fully set forth herein.


        17.     War Machine’s manufacture, distribution and/or sale of their T-Shirt Gatling
Gun products having the same name as that described in the ‘334 registration infringes


                                              -4-
          Case 2:14-cv-00156-JPS Filed 02/13/14 Page 4 of 7 Document 2
Exciting Event’s trademark rights in contravention of the common law of Wisconsin and
other states in which War Machine sells or otherwise offers such T-Shirt gun products.


        18.     War Machine’s manufacture, distribution and/or sale of T-Shirt Gatling Gun

products having the same name as that described in the ‘334 registration in contravention of
the common law of Wisconsin and other states in which War Machine sells or otherwise
offers such T-Shirt Gatling Gun products, has caused and will cause Exciting Events great and
irreparable harm unless enjoined by this court.



COUNT III

(FALSE DESIGNATION OF ORIGIN)
        19.     Exciting Events repeats and realleges the allegations in Paragraphs 1 through

18 as if fully set forth herein.


        20.     War Machine’s manufacture, distribution and/or sale of their T-Shirt Gatling
Gun products having the same name as that described in the ‘334 registration falsely
designates the origin of Exciting Event’s T-Shirt Gatling Gun products in contravention of
Title 15 U.S.C. §1125(a).


        21.     War Machine’s manufacture, distribution and/or sale of their T-Shirt Gatling
Gun products having the same name as that described in the ‘334 registration falsely
designates the origin of Exciting Event’s T-Shirt Gatling Gun products in contravention of
Title 15 U.S.C. §1125(a), has caused and will cause Exciting Events great and irreparable
harm unless enjoined by this court.




                                              -5-
          Case 2:14-cv-00156-JPS Filed 02/13/14 Page 5 of 7 Document 2
COUNT IV

(UNFAIR COMPETITION)
        22.     Exciting Events repeats and realleges the allegations in Paragraphs 1 through
21 as if fully set forth herein.


        23.     War Machine’s manufacture, distribution and/or sale of their T-Shirt Gatling
Gun products having the same name as that described in the ‘334 registration constitutes
unfair competition under the common law of Wisconsin and other states in which War

Machine sells or otherwise offers such T-Shirt gun products.


        24.     War Machine’s manufacture, distribution and/or sale of their T-Shirt Gatling
Gun products having the same name as that described in the ‘334 registration in contravention
of the common law of Wisconsin and other states, has caused and is causing Exciting Events
great and irreparable harm unless enjoined by this court.



PRAYER FOR RELIEF
        WHEREFORE, Exciting Events demands judgment as follows:
        A.      That War Machine and all their agents, servants, employees, attorneys and all
others holding by, or through them, or controlled by them, or controlling them, or in act of
concert or participation with them, be temporarily and permanently enjoined and restrained
from:

        (1)     selling, advertising or offering for sale T-Shirt gun products having the same or
confusingly similar name as that protected by the ‘334 registration.
        (2)     doing any act or thing in breach of any duty owed Exciting Events; and
        (3)     doing any other act or thing calculate to, tending to, or likely to compete
unfairly with Exciting Events.




                                               -6-
          Case 2:14-cv-00156-JPS Filed 02/13/14 Page 6 of 7 Document 2
          B.     That War Machine be ordered to pay over and account to Exciting Events for
all damages suffered by Exciting Events and all profits wrongfully derived by War Machine
as a result of their misappropriation and misuse of Exciting Event’s trademark and other
rights.

          C.     That Exciting Events be awarded its costs and reasonable attorneys fees.
          D.     That Exciting Events be awarded such other and further relief as the court may
deem just and proper.



JURY DEMAND
          Exciting Events demands a trial by jury on all issues presented in this Complaint.
          Dated this 13th day of February, 2014.




                                                       Respectfully submitted,


                                                       s/Donald J. Ersler

                                                       Donald J. Ersler (Wis. Bar No.1022900)
                                                       725 Garvens Avenue
                                                       Brookfield, Wisconsin 53005
                                                       (262) 785-0160
                                                       Fax (262) 785-0162
                                                       patentl@earthlink.net

                                                       Attorneys for Plaintiff
                                                       Exciting Events, Inc.




                                               -7-
           Case 2:14-cv-00156-JPS Filed 02/13/14 Page 7 of 7 Document 2

								
To top