Complaint Cavern Club Nevada

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complaint d nevada cavern city v hard rock CAVERN CLUB
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  B ORGHESE L EGAL ,   L TD . 10161   P ARK R UN D RIVE ,S UITE 150L AS V EGAS ,N EVADA 89145(702)   382-0200 2011-11-27-Complaint.doc 112345678910111213141516171819202122232425262728Paul C. Rapp, Esq. (Pro Hac Vice to be Filed  ) T HE L AW O FFICE OF P AUL C.   R  APP   348 Long Pond RoadHousatonic, MA 01236Phone: (413) 553-3189Mark Borghese, Esq. Nevada Bar No. 6231 B ORGHESE L EGAL ,   L TD .  10161 Park Run Drive, Suite 150Las Vegas, Nevada 89145Tel. (702) 382-0200Fax (702) 382-0212Attorneys for Plaintiff  UNITED STATES DISTRICT COURTDISTRICT OF NEVADA CAVERN CITY TOURS LTD., d/b/aTHE CAVERN CLUB, a United Kingdomcorporation,Plaintiff,v.HARD ROCK CAFÉ INTERNATIONAL(USA), INC., a Florida corporation,Defendant. ))))))))))))Case No.: 2:11-cv-1901COMPLAINT Plaintiff, Cavern City Tours Ltd. d/b/a The Cavern Club (the “Plaintiff”) alleges asfollows: NATURE OF ACTION & PROCEDURAL HISTORY 1. This is an action seeking de novo judicial review of a final decision of theTrademark Trial and Appeal Board (“TTAB”), an administrative agency of the United StatesPatent and Trademark Office (“USPTO”), in Cancellation Proceeding No. 92044795, under 15U.S.C. § 1071(b)(1); for cancellation of Defendant’s federal trademark Registration No.2324683 for the mark CAVERN CLUB pursuant to 15 USC §§ 1119, 1052(a), and 1064(c)(false suggestion and fraud); and for unfair competition under 15 USC § 1125(a); for trademark   B ORGHESE L EGAL ,   L TD . 10161   P ARK R UN D RIVE ,S UITE 150L AS V EGAS ,N EVADA 89145(702)   382-0200 2011-11-27-Complaint.doc 212345678910111213141516171819202122232425262728dilution under 15 § 1125(c); and for unfair competition and deceptive business practices under the statutory and common law of the state of Nevada, all of which justify that the Court enjoinDefendant’s further use of the mark CAVERN CLUB.2. Plaintiff commenced the underlying action at the Trademark Trial and AppealBoard (“TTAB”) on August 9, 2005 by filing a Petition to Cancel the Registration of U.S.Federal Trademark Registration No. 2324683 for the mark CAVERN CLUB alleging, amongother things, fraud under 15 USC § 1064(c) and false suggestion under 15 USC §1052(a). Thematter was fully litigated and on September 29, 2011 the TTAB issued an order dismissingPlaintiff’s petition. The order is attached hereto as Exhibit A. The entire record below can beaccessed in the Internet at  . THE PARTIES 3. Plaintiff, Cavern City Tours Ltd. d/b/a The Cavern Club is a corporationorganized and existing under the laws of the United Kingdom, having its principal place of  business at 31 Mathew Street, Liverpool, England.4. Defendant Hard Rock Café International (USA), Inc., is a corporation organizedunder the laws of the State of Florida with its principal place of business located in Orlando,Florida, USA. JURISDICTION AND VENUE 5. This Court has srcinal jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338 and15 USC § 1021. This Court also has jurisdiction over the state and common law infringementclaims pursuant to 28 U.S.C. § 1367.6. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) and (c) in thatDefendant resides in this district and because a substantial part of the events or omissions givingrise to the claims occurred in this district. FACTUAL BACKGROUND 7. The Cavern Club is a legendary nightclub that opened in Liverpool, England in1957. Plaintiff and its predecessors in interest have used the mark THE CAVERN CLUB for  bar, restaurant, and entertainment related services and for promotional merchandise since that  B ORGHESE L EGAL ,   L TD . 10161   P ARK R UN D RIVE ,S UITE 150L AS V EGAS ,N EVADA 89145(702)   382-0200 2011-11-27-Complaint.doc 312345678910111213141516171819202122232425262728time.8. In 1961, The Beatles made their first appearance at the Cavern Club. Between1961 and 1963, The Beatles performed at the Cavern Club nearly 300 times. In the years thatfollowed, a number of legendary rock and roll bands played at the club, including The RollingStones, The Yardbirds, The Kinks, Elton John and The Who.9. Plaintiff Cavern City Tours Ltd. owns and operates the Cavern Club and themark THE CAVERN CLUB.10. Plaintiff currently owns registrations for THE CAVERN CLUB in classes 25, 41and 42 in the U.K., in all 25 European Community countries, and in Australia, Hong Kong,Brazil, and Canada.11. The Cavern Club has been hailed as “The Most Famous Club in the World” andis commonly known as the birthplace of The Beatles. Plaintiff has been responsible for themaintenance and popularity of the mark THE CAVERN CLUB.12. Plaintiff has had hundreds of thousands of U.S. visitors to the Cavern Club, manyof whom bought their tickets in the U.S., including via Plaintiff’s website, inresponse to Plaintiff’s U.S. advertising and promotion of the Cavern Club.13. Sir Paul McCartney of The Beatles performed before a packed house of 300 atthe Cavern Club in December of 1999 because, as he said, he wanted to end the millennium“where it all began.” The concert was promoted extensively in the United States and throughoutthe world. The concert was aired on PBS, ABC and the BBC and was broadcast live over theInternet, including to the U.S. The Internet broadcast had the largest internet audience of anyinternet event to date and remains among the most-watched internet live events of all time.Amazon’s U.S. website continues to sell the DVD of the show “Paul McCartney Live at theCavern Club.”14. Cavern Club is also the owner and operator of the “Magical Mystery Tour,” atravel destination in which Beatles fans from all over the world travel to Liverpool, England tovisit various Beatles-related sites, and particularly the Cavern Club.15. For over 25 years, the “Magical Mystery Tour” has been sold directly by  B ORGHESE L EGAL ,   L TD . 10161   P ARK R UN D RIVE ,S UITE 150L AS V EGAS ,N EVADA 89145(702)   382-0200 2011-11-27-Complaint.doc 412345678910111213141516171819202122232425262728Plaintiff or through numerous U.S. tour operators to thousands of U.S. rock and roll fans. Thetour has been promoted extensively in the United States and throughout the world. The CavernClub is promoted in the U.S. and throughout the world as a feature of the tour.16. Plaintiff also organizes the annual Mathew Street Festival / Beatle Week inLiverpool. This event has grown to become the largest free music festival in all of Europe.Hundreds of thousands of visitors, including many from the United States, attend the festivaleach year. A focus of the festival is the Cavern Club, where Beatles tribute bands from all over the word perform around the clock, and fans line the block around the clock for the opportunityto stand inside the Cavern Club.17. The Cavern Club has been the subject of several books, film documentaries, andtelevision shows, has been used as a location set for various Beatles-related films, has been andcontinues to be mentioned in every kind of media, is a setting for the computer game Rock Band, and is part of the lexicon of every serious fan of rock and roll.18. In 2007, the Universal and EMI record companies jointly released the 3 CD setThe Cavern: The Most Famous Club In The World in recognition of and to celebrate TheCavern Club’s 50th anniversary. The set was comprised of tracks from groups that had performed at The Cavern Club over the years including The Beatles, The Rolling Stones, TheWho, Queen, Oasis and The Arctic Monkeys.19. In 2007, SAF Publishing Company released the book The Cavern: The MostFamous Club In The World , by Spenser Leigh, with a forward by Sir Paul McCartney.20. In January 2012, the Ludwig Drum Company, the 100 year-old premier U.S.drum manufacturer, will unveil the Cavern Club Liverpool drum set, pursuant to a license fromthe Plaintiff.21. As a result of the extensive promotional efforts of Plaintiff, the substantialunsolicited media attention it has received, and the relevance of the Cavern Club in the historyof The Beatles and rock and roll and the attention generated thereby, the public has come toknow and recognize Plaintiff’s mark THE CAVERN CLUB and associate it with a singlesource. THE CAVERN CLUB mark is famous as a matter of law, and it belongs to, and is the
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