kramer v. hysteric glamour.pdf

8/10/2019 Kramer v. Hysteric Glamour.pdf

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Heat er L. B a se, SBN 261619LAW OFFICE OF HEATHER L. BLAISE, P.C.20 N. Clark St. Suite 3100Chicago, Illinois 60602Telephone: (312) 448-6602Facsimile: (312) 803-1940

E-Mail: [email protected] Righettini, SBN 245305BRYAN CAVE LLP120 Broadway, Suite 300Santa Monica, CA 90401-2386Telephone: (310) 576-2100Facsimile: (310) 576-2200E-Mail: [email protected]

Attorneys for PlaintiffsWAYNE KRAMER and MARGARET SAADI KRAMER

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WAYNE KRAMER, an n v ua , anMARGARET SAADI KRAMER anIndividual,

Plaintiffs,

vs.

HYSTERIC GLAMOUR, a JapaneseCorporation, HYSTERIC GLAMOURUSA, a California Corporation, KenKawaminami, an individual, Atom AgeIndustries, LLC, a California LimitedLiability Company, Robert Arce, anindividual, and DOES 1 through 10,inclusive,

Defendants.

Case No. __________

COMPLAINT FOR:1. COPYRIGHT INFRINGEMENT2. CONTRIBUTORY COPYRIGHTINFRINGEMENT3. VIOLATION OF STATUTORYRIGHT OF PUBLICITY (CAL.CIV. CODE 3344.1)4. FALSE ENDORSEMENT(SECTION 43(A) OF THELANHAM ACT, 15 U.S.C. 1125(A))5. EQUITABLE ESTOPPEL

Date:

Time:Courtroom:

Case 2:14-cv-08665-BRO-SH Document 1 Filed 11/07/14 Page 1 of 23 Page ID #:1


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JURISDICTION AND VENUE

1. This action arises under the Copyright Act of 1976, 17 U.S.C. 101 et

seq.and the Lanham Act, 15 U.S.C. 1051 et seq. This Court has subject matter

jurisdiction over this action pursuant to 28 U.S.C. 1331 and 1338(a).2. This Court also has subject matter jurisdiction under 28 U.S.C.

1367(a) over Plaintiffs claims seeking damages for violations of state law because

said claims arise out of the same case or controversy for which, as set forth above,

this Court already has proper subject matter jurisdiction.

3. This Court has personal jurisdiction over Defendants in that, among

other things, Defendants do business in this Judicial District, and Plaintiffs do

business and are suffering harm in this Judicial District.

4. Venue is proper in this Judicial district pursuant to 28 U.S.C.

1391(b)-(d) and 1400(a).

THE PARTIES

5. Plaintiff WAYNE KRAMER is now, and at all times mentioned in this

Complaint was, a citizen of the United States, residing in Studio City, California.

6.

Plaintiff MARGARET SAADI KRAMER, and at all times mentioned

in this Complaint was, a citizen of the United States, residing in Studio City,

California.

7. Defendant HYSTERIC GLAMOUR LTD (HYSTERIC JAPAN), is

now, and at all times mentioned in this complaint was, a corporation organized and

existing under the laws of Japan.

8.

Defendant HYSTERIC GLAMOUR USA (HYSTERIC USA), isnow, and at all times mentioned in this Complaint was, a corporation organized and

existing under the laws of the state of California, with its principal place of business

in Los Angeles, California.

9. Defendant ATOM AGE INDUSTRIES, LLC (ATOM AGE), is now,

and at all times mentioned in this Complaint was, a limited liability company



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organized and existing under the laws of the state of California, with its principal

place of business in Lakewood, California.

10. Defendant KEN KAWAMINAMI (KAWAMINAMI) is now, and at

all times mentioned in this complaint was, an individual residing in Los Angeles,California.

11. Defendant ROBERT ARCE (ARCE) is now, and at all times

mentioned in this complaint was, an individual residing in Lakewood, California.

12. Plaintiffs are informed and believe that HYSTERIC JAPAN,

HYSTERIC USA, ATOM AGE, KAWAMINAMI, and ARCE were and are

working in conjunction with respect to the use of publicity rights, trademarks, and

copyrighted materials owned or controlled (via exclusive license) by Plaintiffs. All

of the Defendants have engaged in deeds, acts, or conduct in connection with the use

of publicity rights owned by Plaintiff, along with plaintiffs trademarks and other

copyrighted materials in the United States and in the state of California through one

or more of their officers, directors, agents, employees or representatives.

13. Plaintiffs are informed and believe that HYSTERIC USA is an agent or

representative of HYSTERIC JAPAN doing business in the State of California.

14. At all times herein mentioned, Defendants, HYSTERIC USA and

HYSTERIC JAPAN, both individually and collectively, are and were agents and/or

joint venturers of each other, and in doing the acts alleged herein were acting within

the course and scope of such agency.

15. Each of the Defendants had actual and/or constructive knowledge of

the acts of the other Defendants as described herein, and ratified, approved, joinedin, acquiesced in, and/or authorized the acts of the other, and/or retained the benefits

of said acts.

BACKGROUND

16. Plaintiff Wayne Kramer was the founder of legendary band the MC5.

Kramer is widely cited by both critics and fellow musicians as having co-created the



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prototype for the musical genres punk rock and heavy metal. In 1969, the MC5

released the politically incendiary and musically revolutionary hit album Kick Out

The Jams on Elektra Records. In addition to having an illustrious musical career as

well as being cited byRolling StoneMagazineas a Top 100 Guitarist of All Time,Mr. Kramer is a prominent and vigorous social activist. A true music legend, Mr.

Kramer is much more than a widely respected sonic innovator. He is also a devoted

activist who has channeled his personal journey into a commitment to social change

spanning decades. In furtherance of his activism, Mr. Kramer co-founded Jail

Guitar Doors, a Los Angeles based 501(c)(3) non-profit organization that provides

guitars for use in prisoner rehabilitation.

17. Guided by a deep belief in the power of positive personal

transformation through music, Mr. Kramers work with the incarcerated through Jail

Guitar Doors serves as an inspiration for artists everywhere to use their platforms

toward positive social change. Mr. Kramer has been the subject of several

documentaries and television programs highlighting both his musical and

philanthropic endeavors, including the PBS Special Series Lifecasters: The Beast

and The Angel. Mr. Kramer is the recipient of a number of prestigious awards,

including: (1) a special recognition proclamation by the City of Los Angeles for his

accomplishments and service to Los Angeles County via Jail Guitar Doors; (2) a

California Lawyers for the Arts Artistic License Award in recognition of his work

using music as rehabilitation in the communities of both male and female adult and

juvenile incarcerated population; (3) The Future of Music Coalition Voice of

Change honor in recognition of his lifelong commitment to creative expression;(4) the Psychiatric Rehabilitation Association Board of Directors Award for the

use of his experience and talent to advance recovery; and (5) the recipient of various

music awards including the prestigious Kerrang Magazines Icon Award. He is

also a guest lecturer at California Institute of the Arts, University of California Los



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Angeles, Loyola University New Orleans, Georgetown University, and numerous

others.

18. John Sinclair is a prolific American poet from Detroit, the one-time

manager of the MC5, and co-founder of the White Panther Party from November1968 to July 1969. The White Panther Party was a progressive countercultural

group formed to give young people a voice in national affairs in the turbulent 1960s.

Sinclair is the author of the book Guitar Army: Street Writings, Prison Writings

(Guitar Army) published and copyrighted in 1972. A recognized manifesto of the

times, Guitar Armywas written partly during Sinclairs imprisonment and the rest

written in the form of cultural observation as a bona fide voice of young America.

Guitar Armyis considered one of the few literary holy grails of that era. The book

contains photographs taken by Mr. Sinclairs then-wife Leni Sinclairrenowned

in her own rightthat feature both Mr. Kramer and Mr. Sinclair. Along with the

literary prose by John Sinclair, and illustrations of Mr. Sinclairincluding the

Nation illustration that has come to be known as Guitar Armys insignia, (Nation

Illustration) the book includes phrases of special counter-cultural significance

that were written by Sinclair while imprisoned.

19. Margaret Saadi Kramer is the wife and manager of Mr. Kramer and,

based on a written agreement, the exclusive licensee of Mr. Sinclairs right to use

content embodied in the literary work Guitar Armyin various products and

merchandise, including t-shirts, jeans, jerseys, sweatshirts, programs, posters,

pictures, buttons, and lights. By way of the same written agreement, Mr. Sinclair

granted Mrs. Saadi Kramer an exclusive license to use his publicity rights ascaptured in the photographs embodied in the literary work in connection with

merchandising, including the right to seek redress for past, present, and future

infringements of the copyrights in and to the copyrighted materials contained in the

literary work and Mr. Sinclairs publicity rights.



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20. Mr. Kramers image and likeness is captured in a collection of

photographs taken by Michael Barich during a 1969 MC5 concert.

21. Photographer Barich assigned all interests in said photographs to Mr.

Kramer and the latter owns all right, title, and interest in and to the copyrights insaid photographs, including the right to seek redress for past, present, and future

infringements of the copyrights in and to the photographs.

22. Mr. Kramer is a joint owner of the MC5 trademark first used in

commerce in 1967 and registered on November 25, 2003 under number 2785351

and is incontestable pursuant to Section 15 of the Lanham Act. Among others, the

MC5 trademark is registered under the following description of goods:

IC 025. US 022 039. G & S: CLOTHING AND SPORTSWEAR,NAMELY, T-SHIRTS, SWEATSHIRTS, [ POLO SHIRTS, GOLFSHIRTS, JOGGING SUITS, ] ATHLETIC SHIRTS [ AND ] *, *PANTS, [ TENNIS WEAR, BEACH WEAR, SHORTS, CYCLINGSHORTS, BATHING SUITS, SWIMMING SUITS, WETSUITS, ]JACKETS, [ WIND-RESISTANT JACKETS, SOCKS, PANTS, ]BELTS, [ FOOTWEAR, ] HATS, CAPS, [ HEADBANDS AND ]WRISTBANDS.

23. In or about 2010, Defendants created, manufactured, marketed, and

distributed a t-shirt identified by Defendants as MC5/Rama Lama Fafafa pt T-SH,

which contained a silk-screen image of a photograph taken by Rae Anne Rubinstein

of the MC5 band and included the image and likeness of Mr. Kramer.

24. Defendants did not have a license or any other form of consent to use

Mr. Kramers image.



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25. As a result of Defendants unauthorized use of Mr. Kramers image on

the MC5/Rama Lama Fafafa pt T-SH, Mr. Kramer and Defendants entered into a

settlement agreement wherein Defendant Hysteric Glamour USA paid Mr. Kramers

charity, Jail Guitar Doors, for Defendants unauthorized image use and wouldcontinue to provide Mr. Kramer a royalty for the sell-thru of the unauthorized

MC5/Rama Lama Fafafa pt T-SH.

26. In or about February 2011, Defendant Ken Kawaminami contacted

Mrs. Saadi Kramer, seeking authorization to produce apparel items featuring Mr.

Kramers image.

27. On or about March 2011, Defendant Ken Kawaminami sent Justin

McCormack, Mr. Kramers merchandising consultant and agentfor that purpose, the

material terms of Defendants proposed license/royalty agreement for t-shirts and

requested approval of one (1) t-shirt design.

28. On or about March 18, 2011, Justin McCormack approved via e-mail a

license for only one (1) group band photograph that contained Mr. Kramers image

and likeness for one (1) t-shirt and expressly rejected any other further license of

any of Mr. Kramers rights. During that March 18, 2011 email correspondence,

Defendant Ken Kawaminami expressly stated: At this time we only want to use the

one image and further states that Defendants [w]ill comply with Plaintiffs

approval of only one (1) design.

29. Based on the on or about March 18, 2011 approval, Defendants created

manufactured, marketed, and distributed the t-shirt identified by Defendants as the

MC5/High Times pt T-SH.30. As a result of Defendants sales of the MC5/Rama Lama Fafafa pt T-

SH and the MC5/High Times pt T-SH, Defendants provided Mr. Kramer with

royalty checks for the third and fourth quarters of 2011 to Count Time, Inc., Mr.

Kramers agent for accepting authorized royalty payments.



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31. None of the Defendants hold a license for the Barich photographs taken

during the 1969 MC5 concert.

32. None of the Defendants hold a license for any of the copyrighted

materials authored by Mr. Sinclair and contained in the literary work, Guitar Army.33. None of the Defendants hold a license for Mr. Kramers publicity

rights.

34. None of the Defendants hold a license for Mr. Sinclairs publicity

rights.

35. On information and belief, Defendants downloaded the copyrighted

materials at issue in this case from servers that were located in the United States.

36. Defendants reproduced, without authorization, the following

copyrighted works at issue in this case (Copyrighted Works):

a. One of the Barich photographs from the 1969 MC5 concert,

which photograph contains Mr. Kramers image and likeness

(Barich Photograph);

b. Elements from Mr. Sinclairs literary work, Guitar Army,

including his wholly original prose and pictorial and/or graphic

images, including the Nation Illustration.



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37. Without authorization by Mr. Kramer, Mr. Barich, and/or Mr. Sinclair,

Defendants created several apparel and fashion accessory items containing the

Copyrighted Works, the MC5 Trademark, Mr. Kramers image, and Mr. Sinclairs

image. Namely, Defendants created, manufactured, marketed, and distributed at

least the following items:

c. T-shirts identified by Defendants as the John Sinclair/GA MC5

pt T-SH, which contains silk-screen images of the Barich

Photograph and the Nation Illustration available in at least the

two (2) colors, and that reads on the back of the t-shirt: Guitar

Army, along with the Nation Illustration. The inside neck of the

t-shirt contains the Nation Illustration and provides photo

copyright credit to Leni Sinclair and states that MC5 is used

under license to Defendant Atom Age Industries, LLC.;



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d. T-shirts identified by Defendants as the MC5/66 Breakout! Pt

T-SH and offered by Defendants in three (3) colors, which

contain a silk-screen image of a photograph of the MC5 band

members, including Mr. Kramers image, the MC5 trademark,

the title of a self-released MC5 record: 66 Breakout!;

e. T-shirts identified by Defendants as the MC5/We are all

outlaws pt T-SH and offered by Defendants in three (3) colors,which contain a silk-screen image of a photograph of the MC5

band members, including Mr. Kramers image, a silk-screen

image of a photograph of John Sinclair, the MC5 trademark, and

the following text from Mr. Sinclairs Guitar Army: We are all

outlaws in the eyes of Amerika [sic];



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f. T-shirts identified by the Defendants as MC5/Detroit 1969 ptT-

SH and offered by Defendants in three (3) colors, which contain

a silk-screen image of a photograph prominently featuring Mr.

Kramer and the MC5 trademark on the back of the t-shirt and in

the inside of the neck of the t-shirt;

g. T-shirts identified by the Defendants as John Sinclair/GA

Alive! Pt T-SH and offered in two (2) color combinations,

which contain a silk-screen image of the deceased Abbie

Hoffman,1prominently features the Nation Illustration, and that

reads on the back of the t-shirt: Guitar Army;

1Defendants, however, erroneously marketed the image as being that of John Sinclair.



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h. T-shirts identified by the Defendants as MC5/ Rocket Reducer

No. 62 pt T-SH, which contain the MC5 trademark and the title

of an original song co-written by Wayne Kramer and created by

the MC5: Rocket Reducer No. 62;

i. T-shirts identified by the Defendants as Ann Arbor 1969 USA

pt T-SH and USA pt T-SH, which, on information and belief,

contain the MC5 trademark and infringe upon Mr. Kramers

copyrights, Mr. Kramers right to publicity, and/or Mrs. SaadiKramers exclusive license to John Sinclairs right of publicity.

j. Denim jeans identified by Defendants as the Guitar Army pt S

Denim pt, which contain silk-screen images of the Barich

Photograph containing Mr. Kramers image, the Nation

Illustration, the MC5 Trademark, and the following text from



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Mr. Sinclairs Guitar Army: We are all outlaws in the eyes of

Amerika [sic];

k. Various jewelry containing the elements from Mr. Sinclairs

Guitar Army; and

l. Any and all other apparel items and accessories created,

marketed and/or distributed by Defendants that infringe on

Plaintiffs rights as discovered by Plaintiffs and to be shown at

trial.

38.

During the 2012 calendar year, Defendants continued to send royalty

payments to Count Time, Inc. for the MC5/Rama Lama Fafafa pt T-SH and

MC5/High Times pt T-SH t-shirts. Plaintiffs believed that said royalty checks

were for the two (2), then-authorized, t-shirt designs, MC5/Rama Lama Fafafa pt

T-SH and the MC5/High Times pt T-SH.

39. On or about February 11, 2013, Mr. Kramer first became aware that

Defendants had impermissibly created, manufactured, marketed, and distributedseveral apparel and fashion accessory items containing the Copyrighted Works, the

MC5 Trademark, Mr. Kramers image, and Mr. Sinclairs image, including some of

the items identified in Paragraph 37, above.

40. When Plaintiffs confronted Defendants about the infringing uses,

Defendants claimed that the uses were authorized because they had issued royalty



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checks for the manufacture and distribution of the unauthorized apparel and

accessories identified in Paragraphs 37, above.

41. When Plaintiffs, however, requested proof of effective licenses for the

apparel and fashion accessories, Defendants were unable to produce the same.42. Defendants further claimed that they did not know that the Barich

Photograph contained Mr. Kramers image when they placed the Barich Photograph

on merchandise that also contained the MC5 Trademark.

43. In a February 12, 2013 email to Plaintiffs, Defendant Ken Kawaminami

claimed that Defendants did not know that the Barich Photograph contained

Waynes image, stating: We meant no harm and would have asked for permission

from you if we had known it was Wayne in the photo.

44. Despite Defendants claims that they did not know the Barich

Photograph contained Mr. Kramers image, Defendants send Mr. Kramer purported

royalty payments for the unauthorized merchandise.

45. Only after Defendants became aware that their infringing and

impermissible uses of the Copyrighted Works, the MC5 Trademark, Mr. Kramers

image, and Mr. Sinclairs image had been revealed to Plaintiffs, did Defendants

attempt to obtain license(s) from Mr. Sinclair, which he refused to grant and could

not grant as a result of the exclusive license he granted Mrs. Saadi Kramer.

46. Plaintiffs are informed and believe that Defendants routinely engage in

a business practice wherein they intentionally infringe upon intellectual and

publicity rights holders and attempt to conceal their infringing and malicious

business practice by issuing such rights holders unsolicited and un-negotiatedpayments in the form of checks in hopes that such right holders will unknowingly

cash the checks and/or not seek further compensation for the prior and continued

impermissible use[.] See, e.g., Weisman v. Sanrio Far East Co., et al., 11-cv-

06033 GW (JC) (C.D. Cal. 2011), Cmplt., dated Jul. 21, 2011, at 20.



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47. Plaintiffs are informed and believe that Defendants offered for sale and

distributed apparel containing the Copyrighted Works at issue in this case to

locations within the United States.

48.

Defendants displayed the apparel and accessories containing theCopyrighted Works over the Internet to public audience located in the United States.

49. Plaintiffs are informed and believe that Defendants continue to use the

Copyrighted Works, the MC5 Trademark, Mr. Kramers image and Mr. Sinclairs

image, which belong to and/or are controlled by Plaintiffs Kramer, for their own

gain.

50. The actions taken by Defendants amount to acts of oppression, fraud,

and/or malice consistent with the definitions of those terms as provided by Cal Civ.

Code 3294.

FIRST CLAIM FOR RELIEF

COPYRIGHT INFRINGEMENT (17 U.S.C. 101, ET SEQ.)

(Against All Defendants)

51. Plaintiffs repeat, allege, and incorporate by reference Paragraphs 1

through 50, as though fully set forth herein.

52. Plaintiffs Copyrighted Works have been unlawfully reproduced,

adapted, and are prominently featured in Defendants apparel and accessories.

53. Plaintiffs have complied in all respects with the United States

Copyright Acts of 1909, 1976, and all other laws governing copyright, including by

applying for registration of claims to copyright in: (a) the Barich Photograph on

October 29, 2014 and (b) the Guitar Armybook on October 29, 2014.54. Defendants deliberately and intentionally used the Barich Photograph

and Guitar Armybook, owned by Plaintiffs without Plaintiffs permission and in

violation of Plaintiffs copyright rights. Specifically, the infringed images have

been printed on designer apparel sold in numerous retail stores and online.



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55. Defendants acts of infringement are willful, in disregard of, and with

indifference to the rights of Plaintiffs.

56. Defendants have substantially profited from the illegal use of Plaintiffs

work. As a direct and proximate result of Defendants infringements, Plaintiffs areentitled to actual damages and disgorgement of Defendants non-duplicative profits

attributable to the infringement in amounts to be proven at trial.

SECOND CLAIM FOR RELIEF

CONTRIBUTORY COPYRIGHT INFRINGEMENT




58. Defendants, with actual knowledge, have materially contributed to,

intentionally induced, and/or caused unauthorized reproductions and adaptations of

Plaintiffs Copyrighted Works in Defendants apparel and accessories.

59. Defendants acts of infringement were willful, in disregard of and with

indifference to the rights of Plaintiffs.

60.

As a direct and proximate result of Defendants infringements,

Plaintiffs are entitled to actual damages and disgorgement of Defendants non-

duplicative profits attributable to the infringement in amounts to be proven at trial.

THIRD CLAIM FOR RELIEF

VIOLATIONS OF CALIFORNIA STATUTORY RIGHT OF PUBLICITY-

CAL. CIV. CODE 3344.1

(Against All Defendants)61. Plaintiffs repeat, allege, and incorporate by reference Paragraphs 1


62. No one other than Mr. Kramer holds his publicity rights, including the

use of Mr. Kramers name, likeness, image, and identity for commercial purposes.



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63. On January 8, 2007 and again on January 20, 2014 Mr. Sinclair granted

Mrs. Saadi Kramer an exclusive license to John Sinclairs publicity rights, including

the use of John Sinclairs name, likeness, image, and identity for commercial

purposes, which includes the right to seek redress for past violations of JohnSinclairs publicity rights.

64. Plaintiffs are informed and believe that in or about 2012, and

continuing to this date, Defendants have willfully and knowingly infringed on the

publicity rights of Mr. Kramer and Mr. Sinclair by appropriating the name, likeness,

image and identity of Mr. Kramer and Mr. Sinclair for their own purpose of

advertising or selling, or soliciting purchases of products, merchandise, and goods.

65. The appropriations were unauthorized and without Plaintiffs consent.

66. The appropriations usurped Plaintiffs ability to control the subject

publicity rights and diluted their ability to effectively market such images, all to the

detriment of Plaintiffs.

67. Plaintiffs are informed and believe, and on that basis, allege that as a

proximate result of the advantage accruing to Defendants from said appropriation,

Plaintiffs have been and/or will be deprived of monetary sums in an amount to be

determined at trial.

FOURTH CLAIM FOR RELIEF

UNFAIR COMPETITION AND FALSE ENDORSEMENT

(SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. 1125 (A))

(Against All Defendants)68. Plaintiffs repeat, allege, and incorporate by reference Paragraphs 1


69. Since approximately on or about 2012 to the date of this Complaint,

Defendants have created, manufactured, marketed and sold, in interstate and

international commerce, apparel and accessories prominently featuring Mr.



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Kramers image and likeness in conjunction with the MC5 trademark, all without

permission. Making matters worse, Defendants charge exorbitant prices for their

unauthorized merchandise. By way of example, Defendants charged $525.00 USD

per pair of jeans.70. Defendants, by their intentional and unauthorized appropriation and use

of the Mr. Kramers image and likeness and the MC5 trademark have engaged,

and are continuing to engage, in acts of the wrongful deception of the purchasing

public, including by falsely representing that Mr. Kramer and MC5 have authorized

the apparel and merchandise enumerated in Paragraph 37, above, wrongful

designation as to the source and sponsorship of goods, along with wrongful

deprivation of Mr. Kramers good name and reputation.

71. Defendants use of the image and likeness of Mr. Kramer and the

MC5 trademark constitutes a false designation or origin, false or misleading

description of fact, or false or misleading representation of fact, which is likely to

cause confusion, mistake, or to deceive as to the endorsement, affiliation,

connection, or association of Defendants with Mr. Kramer or the band, MC5,

including as to the sponsorship or approval of Defendants activities, in violation of

Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). By way of one example, the

t-shirts identified by Defendants as John Sinclair/GA MC5 pt T-SH contain the

unauthorized Barich Photograph and the MC5 Trademark, and falsely states that

the Barich Photograph was taken by Leni Sinclair. The t-shirt also falsely states that

it was created, manufactured, marketed and sold pursuant to a license in favor of

Defendant Atom Age Industries, LLC.72. Based on the scope and nature of the Defendants use of Mr. Kramers

image and likeness, as well as the MC5 trademark, the potential for likelihood of

confusion is great.

73. Defendants unauthorized and infringing activities as described herein

has been knowing, intentional, and malicious, and its misuses were carried out with



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the intent to trade upon the goodwill and reputation of Mr. Kramer and the band,

MC5, and/or to unfairly compete with the same.

74. Defendants acts of false endorsement against Plaintiffs have caused

Plaintiffs damage in that the value of merchandise actually authorized by Plaintiffsis diluted in the marketplace.

75. In addition, Mr. Kramers and MC5s goodwill, reputation, and

business has been and will continue to be irreparably harmed by Defendants unless

they are enjoined from their exploitative and infringing commercial business

practices and from using Mr. Kramers image and likeness and the MC5

trademark. Given Mr. Kramers established brand and image, professional

reputation, and moral commitment as a champion for the working class, he never

would have licensed his image or the MC5 trademark in connection with the sale of

Defendants exorbitantly priced merchandise.

76. As a result, Mr. Kramer is appalled, disgusted, and embarrassed to see

his image and the MC5 trademark falsely endorsing Defendants products because

such unauthorized use trademark creates a perception of hypocrisy in the public eye

and irreparably undermines the important international social work that has been

Mr. Kramers adult lifes mission, the value of which is immense and cannot be

overstated.

77. Importantly, the Wayne Kramer and MC5 fans are disappointed to see

Mr. Kramers image and the MC5 trademark offered in connection with purported

luxury goods, thereby tarnishing the reputation of Mr. Kramer and the MC5

trademark.FIFTH CLAIM FOR RELIEF

EQUITABLE ESTOPPEL






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79. Defendants knew that they had impermissibly infringed upon Plaintiffs

publicity and intellectual property rights when Defendants sent purported royalty

checks for the unauthorized merchandise, as explained in Paragraphs 38-40, above.

80.

When sending the purported royalty checks for the unauthorizedmerchandise, Defendants intended for Count Time, Inc. to cash the checks to: (a)

provide Defendants with a defense to a resulting lawsuit in claiming that such

infringing uses were implicitly consented to or waived by Plaintiffs; and/or (b) to

induce Plaintiffs to not seek additional compensation for such infringing uses, as

described in Paragraph 46, above.

81. When Count Time, Inc. received the purported royalty checks, as

described in Paragraphs 38-40, Count Time, Inc. assumed that the purported royalty

checks were for the two (2) then-authorized t-shirts.

82. As a result, Plaintiffs were ignorant to the fact that Defendants were

actually providing purported royalty payments for unauthorized uses of Plaintiffs

publicity and intellectual property rights.

83. As a result of Defendants concealment of their infringinguses, Count

Time, Inc. inadvertently cashed some of Defendants purported royalty checks

believing that such purported royalty checks were for authorized uses as described

in Paragraphs 38-40, above.

84. When Plaintiffs discovered that Defendants purported royalty

payments were actually for unauthorized merchandise, Plaintiffs immediately

contacted Defendants and refused to cash any of the purported royalty checks that

Defendants continued to send.85. Defendants now claim that the acceptance of the purported royalty

checks amount to: (a) consent, (b) an implied non-exclusive license, and/or (c) a

waiver of Plaintiffs claims.



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86. As a result of the foregoing, Defendants should be equitably estopped

from arguing that Plaintiffs have waived any of their rights or otherwise granted

Defendants an implicit license to use their publicity and intellectual property rights.

WHEREFORE, Plaintiffs Wayne Kramer and Margaret Saadi Kramer, by andthrough their attorneys, respectfully pray for judgment against the Defendants

HYSTERIC GLAMOUR, a Japanese Corporation, HYSTERIC GLAMOUR USA,

Inc., a California Corporation, Ken Kawaminami, an individual, Atom Age

Industries, LLC, a California Corporation, Robert Arce, an individual, and DOES 1

through 10, inclusive, jointly and severally, for:

A. Compensatory damages for Defendants unauthorized use of the

Copyrighted Materials;

B. Compensatory damages for Defendants unauthorized use of the Mr.

Kramers and Mr. Sinclairs images;

C. Compensatory damages for Defendants unauthorized use of theMC5

trademark;

D. An accounting for, and payment to the Plaintiffs as actual damages, all

the following sums:

i. All gains, profits and advantages derived by Defendants as a

result of their copyright infringements, unfair trade practices,

unfair competition, and false endorsement;

ii. All gains, profits, and advantages derived by Defendants as a

result of their infringement of Plaintiffs copyrights, owned or

controlled rights of publicity, and the MC5 trademark;E. Additional damages for an amount determined at trial for unfair and

deceptive trade practices, competition, and false endorsement;

F. Punitive damages for willful violation of Cal Civ. Code 3344.1;

G. Punitive damages for Defendants oppression, fraud, or malice as those

terms are defined by Cal Civ. Code 3294;



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H. Reasonable attorney fees;

I. The costs of this action including, but not limited to, expert fees;

J. A permanent injunction enjoining Defendants from infringing upon Mr.

Kramer and Mr. Sinclairs publicity rights, the MC5 trademark, andthe Copyrighted Works in any manner whatsoever.

K. Equitably estopping Defendants from asserting any defense relating to

their issuance of purported royalty checks for infringing uses;

L. Pre-judgment interest according to law; and

M. Such other and further relief as the Court deems just and proper.

Dated: November 6, 2014 Heather L. BlaiseLAW OFFICE OF HEATHER L.BLAISE, P.C.

Justin RighettiniBRYAN CAVE LLP

By: /s/ Heather L. BlaiseHeather L. Blaise

Attorneys for PlaintiffsWAYNE KRAMER and MARGARET

SAADI KRAMER



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JURY TRIAL DEMANDED

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

Dated: November 6, 2014 Heather L. BlaiseLAW OFFICE OF HEATHER L.BLAISE, P.C.

Justin RighettiniBRYAN CAVE LLP

By: /s/ Heather L. BlaiseHeather L. Blaise

Attorneys for PlaintiffsWAYNE KRAMER and MARGARETSAADI KRAMER


kramer v. hysteric glamour.pdf

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