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MICHAEL A. PAINTER, Bar #43600 ainter a;ik law.com SAAC A ,KAUFMAN & PAINTER

10250 Constellation Boulevard, Suite 2900 Los Angeles, California 90067 (310) 881-6800 - Telephone (310) 881-6801 - FacsImile

Attorneys for Plaintiff, GEORGETHOROGOOD

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UNITED STATES DISTRICT COURT'. ~ . CENTRAL DISTRICT OF CALIFORNIA

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GEORGE THOROGOOD, an r V 11 2 3 I: 8 j A I( fot

1 JURISDICTION 2 1. This is a civil action which arises under Sections 32(1) [15 U.S.C. 3 lll4(1)] and 43(a) [15 U.S.C. 1125(a)] of the United States Trademark Act. 4 Jurisdiction is based upon 15 U.S.C. Section 1121 and 28 U.S.C. Section 1338(a). 5 THE PARTIES

6 2. Plaintiff, GEORGE THOROGOOD, is an individual and citizen of the

7 United States, having his principal place of business in Los Angeles,

8 California (hereinafter referred to as "Thorogood"). 9 3. Plaintiff is informed and believes and, based on such information and

10 belief, alleges that defendant, MUZZY PRODUCTS CORP. is a Georgia corpora-

11 tion and has its principal place of business in Cartersville, Georgia and does busi-

12 ness throughout the United States in general and in the Central District of

13 California in particular (hereinafter referred to as "Muzzy"). 14 4. The true names or capacities, whether individual, corporate, associate,

15 representative, or otherwise, of the defendants named herein as DOES I - X,

16 inclusive, are unknown to plaintiff who therefore, pursuant to Local Rule 19-1 of

17 this Court, sues said defendants by such fictitious names and plaintiff will amend

18 this Complaint to show their true names and capacities when the same have been

19 ascertained.

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21 5.

FIRST COUNT FOR TRADEMARK INFRINGEMENT

Plaintiff hereby repeats and realleges Paragraphs 1 - 4, inclusive, as

22 though set forth in full herein again.

23 6. In 1983, and long prior to any of the acts of the defendants com-

24 plained of in this Complaint, Thorogood, by and through his predecessor-in-

25 interest, adopted the mark BAD TO THE BONE as a trademark to designate

26 clothing, namely, T-shirts, tank tops, jackets and hats, said mark being extensively 27 used, advertised and promoted throughout the United States in general and in the

28 State of California in particular.

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-1 7. Since long prior to any of the acts of Muzzy complained of in this

2 Complaint, Thorogood, by and through his predecessor-in-interest, applied for and

3 registered its BAD TO THE BONE trademark on the Principal Register in the

4 United States Patent and Trademark Office, a copy of Certificate of Trademark

5 Registration No. 3,684,749 being attached hereto as Exhibit 1. Based upon the

6 rights accorded registration of the trademark and the trademark's long and contin-

7 uous use by Thorogood, and his predecessor-in-interest, to designate clothing,

8 namely, T-shirts, tank tops, jackets and hats, Thorogood owns the exclusive right 9 to manufacture and sell clothing, namely, T-shirts, tank tops, jackets and hats

10 designated by the BAD TO THE BONE trademark and to advertise and promote

11 the sale of clothing, namely, T-shirts, tank tops, jackets and hats through the use of 12 the BAD TO THE BONE trademark.

13 8. Since long prior to the acts of Muzzy complained of in this Com-

14 plaint, Thorogood and his predecessor-in-interest, extensively marketed, sold,

15 advertised and promoted the sale of clothing, namely, T-shirts, tank tops, jackets 16 and hats under the trademark BAD TO THE BONE. Thorogood has gained a

17 substantial reputation in connection with clothing, namely, T-shirts, tank tops,

18 jackets and hats marketed and sold under the BAD TO THE BONE trademark. By 19 reason of the marketing and sale of products under the above trademark, the trade

20 and public, prior to said acts of defendants complained of in this Complaint, have

21 come to recognize the trademark BAD TO THE BONE, when used in connection

22 with clothing, namely, T-shirts, tank tops, jackets and hats as identifying such 23 products as being exclusively supplied by, authorized or affiliated with Thorogood.

24 9. Long after Thorogood's first use of the BAD TO THE BONE trade-

25 mark in commerce, Muzzy first commenced use of the trademark BAD TO THE

261 BONE to manufacture, identify, distribute, advertise and/or promote the sale of 27 hats, T-shirts and sweatshirts in the United States. Muzzy has used the trademark

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-BAD TO THE BONE despite the fact the identified trademark wrongfully appro-

2 priates Thorogood's registered BAD TO THE BONE trademark and is confusingly

3 : similar thereto.

4 10. Muzzy's act of manufacturing, distributing, advertising, marketing

5 and promoting the sale of hats, T-shirts and sweatshirts through the use of the

6 trademark BAD TO THE BONE is directed to the same segment of the purchasing

7 public to which Thorogood directs his products.

8 11. Muzzy's use of the trademark BAD TO THE BONE as alleged above

9 to distribute, designate, adve11ise and/or promote the sale of hats, T-shirts and

10 sweatshirts is likely to cause confusion or mistake or to deceive the purchasers of

11 its products as to the source of origin of defendants' products and to cause defen-

12 dants' products to be passed off or viewed as those which are provided or autho-

13 rized by Thorogood.

14 12. That unless restrained by this COUl1, Muzzy will continue to use the

15 trademark BAD TO THE BONE to manufacture, identity, distribute, advertise

16 and/or promote the sale of hats, T-shirts and sweatshirts and, as a result thereof, the

17 public generally will be misled and deceived into believing that the products of

18 defendants, and each of them, are those of, or are affiliated with Thorogood, to the

19 irreparable damage and injury of the business of Thorogood. 20 13. Thorogood has duly demanded that Muzzy cease and desist from the

21 aforesaid violation of Thorogood's rights, defendant having refused to do so. This

22 is therefore an exceptional case within the meaning of 35 of the United States 23 Trademark Act, 15 U.S.C. 1117, entitling Thorogood to recover reasonable 24 attorneys' fees

25 14. The aforesaid actions of Muzzy has irreparably damaged Thorogood

26 and will, unless restrained, continue to so damage the business of Thorogood and

27 its good will, for all of which there is no adequate remedy at law.

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1 SECOND COUNT FOR FEDERAL UNFAIR COMPETITION

2 AND FALSE DESIGNATION OF ORIGIN

3 15. Plaintiff hereby repeats and realleges Paragraphs 1 - 4, and 5 - 14,

4 inclusive, of the First Count as though set forth in full herein again inclusive, of the

5 First Count as though set forth in full herein again.

6 16. Muzzy's above-alleged actions constitute the use in connection with

7 goods of false or misleading descriptions and representations with respect to the

8 origin, sponsorship or approval of its products and the publicity therefor by

9 suggesting that such goods and the advertising thereof are connected with or

10 associated, sponsored or affiliated with Thorogood, or that the same truly origi-

11 nated with Thorogood. Muzzy has caused its hats, T-shirts and sweatshirts, and the

12 distributing, designating, advertising and/or promotion thereof, to enter United

13 States commerce. The misappropriation and use of Thorogood's BAD TO THE

14 BONE trademark by Muzzy as well as Muzzy's other actions described above

15 constitute false and misleading descriptions of fact and representations of fact that

16 are likely to give the public a false impression and to confuse the public as to the

17 source of defendants' goods.

18 17. Thorogood is informed and believes and, based on such information

19 and belief, alleges that Muzzy adopted and used the trademark BAD TO THE

20 BONE to identify hats, T-shirts and sweatshirts with actual knowledge of

21 Thorogood's long prior use of the BAD TO THE BONE trademark and with the

22 intent to trade on the reputation and good will of that mark.

23 18. Although Muzzy has been requested by Thorogood to cease the

24 advertising and promotion of the sale of T-shirts through the use of the trademark

25 BAD TO THE BONE, Muzzy has, nevertheless, refused said request and have

26 continued to use said mark in connection with advertising, marketing and promot-

27 ing the sale of its products. This is therefore an exceptional case within the

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meaning of 35 of the United States Trademark Act, 15 U.S.C. 1117, entitling ,

2 I Thorogood to recover reasonable attorneys' fees.

3 19. The aforesaid actions of Muzzy has irreparably damaged Thorogood

4 and will, unless restrained, continue to so damage the business of Thorogood and

5 its good will, for all of which there is no adequate remedy at law.

6 WHEREFORE, plaintiff seeks judgment against Muzzy as follows: 7 1. That Muzzy and its officers, agents, servants, employees, attorneys,

8 confederates, related companies, and all persons acting in concert or participation

9 with it, be enjoined and restrained during the pendency of this action, and perma-10 nently thereafter:

11 (a) from using in any manner as a trademark or trade name the 12 mark BAD TO THE BONE, alone or in combination with any other word or words

13 or design, in connection with designating, distributing, advertising, promoting

14 and/or offering for sale or the sale of hats, T-shirts and sweatshirts not produced by

15 Thorogood, or not authorized by Thorogood to be sold in connection with said

16 mark;

17 (b) from passing off, inducing or enabling others to sell or pass off 18 hats, T-shirts and/or sweatshirts which are not Thorogood's or not offered under

19 the control and supervision of Thorogood and approved by Thorogood, through the

20 use of the mark BAD TO THE BONE, or formatives thereof;

21 ( c) from committing any acts calculated to cause purchasers to 22 believe that Muzzy's hats, T-shirts and/or sweatshirts are sponsored by or ap-

23 proved or connected with or guaranteed by or offered and sold under the control

24 and supervision of Thorogood; and

25 (d) from otherwise competing unfairly with Thorogood in any 26 manner.

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-2. That Muzzy be required to deliver up to Thorogood or destroy any

2 and all price lists, labels, signs, prints, packages, wrappers, receptacles, advertising

3 matter, promotional and other material in the possession of Muzzy, or under its

4 control bearing the mark BAD TO THE BONE alone, or in combination with any

5 other word or words or design used in connection with the distributing, designat-

6 ing, advertising, promotion or sale of hats, T-shirts and/or sweatshirts not produced

7 by Thorogood or not made under the supervision and control of Thorogood.

8 3. That Muzzy account for and pay over to Thorogood all damages

9 sustained by Thorogood and all profits realized by Muzzy by reason of Muzzy's

10 unlawful acts and that the amount of damages for infringement of Thorogood's

11 trademark be increased by a sum not exceeding three times the amount thereof as

12 provided by Section 35 of the United States Trademark Act, 15 U.S.C. 1117. 13 4. That Thorogood be awarded exemplary damages in the amount of

14 $100,000. 15 5. That Thorogood be awarded its costs of suit, including reasonable

16 attorneys' fees and have such other and further relief as to the Court may deem

17 equitable, including but not limited to, any relief set forth under Section 34-39 of

18 the United States Trademark Act.

19 PLAINTIFF DEMANDS A JURY TRIAL OF THIS ACTION. 20 Respectfully submitted,

21 ISAACMAN, KAUFMAN & PAINTER

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