AVELA v. Fleischer Studios, Arent Fox, Manatt Phelps - Betty Boop malicious prosecution...

8/10/2019 AVELA v. Fleischer Studios, Arent Fox, Manatt Phelps - Betty Boop malicious prosecution complaint.pdf

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GregoryJ. Goodheart, SB

226501

GOODHEART

L A W

OFFICES

22736 Vanowen Street, Suite 303

West Hills,

CA

91307

Phone:(818)992-4463

Fax: (818)992-7629

[email protected]

Shorn

coonty

NOV13 2014

\ **ACv^s vena/Oak

_

Deputy

Attorney for Plaintiffs A.V.E.L.A. INC. ^ \

OttfKfZ*^

SUPERIOR COURT FOR THE STATE OF

CALIFORNIA

COUNTY OF

LO S

ANGELES

A.V.E.L.A., INC., a Nevada Corporation,

Plaintiffs,

C A S E

NO.:

BC 6aS49

vs .

COMPLAINT FOR:

FLEISCHER

STUDIOS, INC., a

California Corporation; ARENT FOX

LLP;

MANATT,

PHILLIPS & PHELPS

LLP;

and DOES 1

THROUGH

50,

Inclusive,

1.

Malicious

Prosecution

2. Interference

with

a Prospective Business Advantage

Amount

in controversy exceeds 25,000)

I.

Defendants,

T H E P A RT IE S

A.V.E.L.A.,

Inc.

(hereinafter AVELA or Plaintiff )

is

a

corporation duly organêâ^d^

g q

rn s m m -^ -v.

i C * o o

existing under

the laws

of

the

State

of

Nevada

and

maintains

its

principagp^^

^ûiln^ssât

J $

to 3> v m ' u *

O z x o .

1135 Terminal Way,

209,

Reno,

Nevada,

89502.

S ' J ~8 S

t


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ofCalifornia that maintains its principal

place

ofbusiness at 10160

Cielo

Drive,

Beverly

Hills, California,

90210.

3. Plaintiffis informedand believes and thereon allegesthat defendantARENTFOX,

LLP.,

(hereinafter

ARENT

FOX)

isa business entity doing business in the State ofCalifornia, County of

Los Angeles, with a principal place ofbusiness located at 555 West Fifth Street, 48th Floor, Los

Angeles, California

90013. Plaintiff is informed

and

believes

and

thereon

alleges

that defendant

MANATT, PHILLIPS

&

PHELPS LLP (hereinafter MANATT)

is a business entity

doing

business

in the

State

ofCalifornia,

County

of

Los

Angeles, with a principal place of business

located at 11355 W.Olympic Blvd., LosAngeles, CA90064.

4. Plaintiffdoesnot knowthetrue names of defendants

DOES

1 through 50, inclusive, and therefore

sues them

by those

fictitious

names. Plaintiff

is

informed and believes, and on the

basis ofthat

information

and

belief al leges, that each of

those

defendants were in

some

manner intentionally,

negligently and proximately responsible for the events and happenings alleged

in

this complaint

and for Plaintiffs injuriesand

damages.

5. Plaintiff is informedand believes,and on the basis

of

that informationand belief alleges, that at

all

times

mentioned inthiscomplaint, defendants

were

the

agents

andemployees of their co-

defendants, andin

doing

the

things

alleged inthis complaint

were

acting

within

the

course

and

scopeof that agencyand employment.

PRIOR LITIGATION

A.V.E.L.A. wasa nameddefendantandprevailing party in the following actions:Fleischer

Studios

Inc

v. A

V E L A

Inc

772 F. Supp. 2d 1135(CD. Cal. 2008);Fleischer

Studios

Inc

v.

A V E L A Inc 772 F. Supp. 2d 1155(CD. Cal. 2009);Fleischer

Studios

Inc v.

A V EL A

Inc

636

F.3d

1115

(9*

Cir.

2011);

Fleischer Studios Inc v. A V E L A Inc 654

F.3d

958

(9th

C O M P L A I N T


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Cir.

2011);

Fleischer

Studios Inc

A V E L A Inc 925

F. Supp. 2d 1067

(CD. Cal.

2012)

(hereafter collectively

referred toas the Boop action ).

7. FSI

initiated

the

Boop

action

against

A.V.E.LA.

in

2006.

The

Boop

action

was

finally

determined

on

November

14,2012, in the

form

ofan

order granting

a

motion

for

summary

judgmentin AVELA'sfavor.

8. MANATT andARENT FOX wereat all timescounsel on behalfof FSIin theabovementioned

prioractions.

9. On September 29,2006, FSI, by

and

through its

counsel,

MANATT, filed suit, contending,

among

other

things, that AVELA infringed

FSI s Betty Boop

word mark and sought a

permanent injunction. At some point in

litigation

ARENT FOX took over litigation on behalf

of FSI.

10.

There was

never

a

final judgment

onthe

issue

of

whether

AVELA infringed onFSI s

word

mark until United States District Court Judge Audrey B. Collins

issued

anorderonNovember

14,2012, granting AVELA s motion and denying FSI s motion

as

to the word

mark

trademark infringement

claim.

F A C T S

11.

Plaintiff is in thebusiness ofcreating newartisticworks inprint,

graphic,

and lithographic

media that are based onmaterials found in the publicdomain. Inmanycases, these old

public domain

materials

have

fallen

intodisrepairand

have

losttheir

original

lusteror

attractiveness.

AVELA

registered copyrights withtheUnited States

Copyright Office

forits

artistic works

an d

indicated

these

w or ks a re b as ed on

an d

derivative

of materials

that have

been previously published.

12. Sinceas early as 1989,

AVELA

acquired, restored, and reprinted a number ofpublicitymovie

__3

C O M P L A I N T


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posters featuringBetty

Boop

that were originallycreated in the 1930s.

13.

Before modifying and restoring the oldworks,AVELA took meticulous steps to comply with

copyright

law.

AVELA

does not desire to infringe onany copyrights. Inthis regard,

AVELA

conducted considerable research to make sure that there were no recorded copyright

claimants for any of the old movie posters it restored. AVELA obtained actual copyright

reports fromthe U.S. Copyright

Office

whichidentified hundreds ofoldcartoons andmovies

forwhichnocopyrightrenewal had been recorded,and henceentered into the public

domain.

More

than 50 Betty

Boop

cartoons appeared on the list ofcartoons in the public

d o m a i n .

14. In 1998 and 2005,

AVELA

obtained formalwritten search reports from the U.S. Copyright

Office

verifying that there were no registered claimantsor copyrightowners, including

DefendantFSI, forany ofthe oldmovie posters AVELA hadacquired and restored, including

an y Betty Boop movie posters.

15. AVELA obtained registration with the U.S. Copyright

Office

for its own copyrightedworks,

makingclear that AVELA s works are based on and derivative ofmaterials that have been

previously published.

16.

AVELA has sold copies ofthe restored Betty Boopposters for manyyears. Morerecently,

AVELA has licensed third parties to produce and distribute merchandise, which utilizes the

restored Betty Boopposter image.The products licensed by

AVELA

are based on these

restored vintage posters.

AVELA

does not license the production and distribution of

merchandise utilizing anything other materials relating to Betty Boopexcept for the

restored poster artwork.

17. AVELA does no t license to third parties any rights to use the name Betty Boop or any

imagery of Betty Boop other

than

how it is depicted in the poster artwork. The actual

C O M P L A I N T


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merchandise licensedby

AVELA

use,as part ofproduct package, onlythe actual Betty

Boop

poster artwork, or a portion thereof.

18.

AVELA

does not license the production and distribution ofmerchandise utilizinganything

other than the poster artwork.

19.

AVELA

does not use the TM symbol next to or in connection with the words Betty Boop.

AVELA

does not label nor has it ever labeled its Betty Boopmerchandise as Official

merchandise or otherwise affirmatively indicate sponsorship.

20.

AVELA

does not use the word Betty

Boop

in connection with the sale ofgoods.The only

time the nameappears as part ofany product iswhen Betty

Boop

appeared as part ofthe

original poster artwork. Oneachof

AVELA s

licensed products, there is a tag,label, or other

textual identification of the source of the product Noneof these labels identify or suggest in

anymanner that

FSI

is the sourceor originof themerchandise.

AVELA s

licensing

agreements also requiretheproducers and/or distributors to identify themselves as the

source o f th e merchandise.

21. Betty Boopis a prominently and centrally displayed feature ofeach item. Boopis the clear

subject matter of each merchandise item, so as to be immediately visible to others when

wor

22. Until the prior actions,

AVELA

never received any complaints or correspondences indicating

that

there has been any consumer confusion in the marketplace as to the source, origin,

affiliation, or sponsorship ofany of

AVELA s

licensed products as it relates to FSI's licensed

products.

23. FSIhas no legal relationship with

an d

is

no t

the same entity as the company named

Fleischer Studios, Inc.,which existed when the BettyBoop character was created in the early

1930s

( Original FSI ). In 1929, Dave

an d

Max Fleischer formed Original FSI. Original FSI

C O M P L A I N T


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wasdissolved in1946for failure to paytaxesunder Florida

law.

24.

Between

1929 and

1946,

Original FSI created andproduced various Betty Boop cartoon

films.

Prior

to

its

dissolution,

Original

FSI,

by

agreement dated

May

24,1941, assigned

to

Paramount Pictures all ofits

assets,

including all the rights inall

cartoon

films and all

characters contained therein. Despite the dissolution ofOriginal Fleischer Studios, the

Fleischer brothers, in their

individual

capacities, continued to claim

or

attempt to claim

rights

in

the Betty Boop character. Dave

Fleischer

has gone so far as initiated

dozens

of

lawsuits,

the

ovemhelming majority ofwhich

ended

incrushing defeats.

25. In the

November

14,2012 decision, theCourt found, as a

matter or

law, that AVELA s use ofthe

Betty Boop word mark

is

not

atrademark use. In finding that the

use

ofthe

word mark

Betty

Boop

was an aesthetically

functional use and not

source-identifying trademark

use,

the court

noted

that FSI failed

to present a single

instance

ofaconsumer

who

was

misled about the origin or

sponsorship ofDefendants products. (Fleischer Studios.

Inc.

v. A.V.E.L.A., Inc., (2012) 925

F.Supp.2d1067,1074.)

26. Inthe

November

14,2012 decision,

the Court

found asa

matter

of

law that

AVELA s use ofBetty

Boop was

fair

use and hence could not be

a

trademark violation. The Court

stated

Here,

Defendants

use the

phrase

Betty Boop

in connection with

their

products bearing

the image of

Betty Boop. It is

extremely unlikely that

aprospective customer would understand

those

words as

identifying the source

of

the

goods

rather

than

merely naming the character. (Fleischer Studios.

Inc.

v.A.V.E.L.A..

Inc.. (2012) 925

F.Supp.2d

1067,

1076.)

27.

In ruling in

favor

ofAVELA, Judge Collins found that as a

matter

of

law that

AVELA s use ofthe

word

Betty Boop does not indicate a source ororigin ofthe products, and is

therefore

not a

trademark use. The finaldetermination of the issueof trademarkviolationwasdetermined in

favor

o f AVELA on November

14, 2012.

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C O M P L A I N T


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28.

Defendants FSI,

MANATT

and ARENT FOX

didnotactona

good faith

belief

when

filing

and

prosecuting the underlying action. FSI's purpose for filing the unsupportable lawsuit described

herein

was

to

interfere

with business

relationships

AVELA

hadwithretailers

who

were

selling

AVELA's BettyBoopmerchandise. The lawsuitwasmade for thepurpose

of

scaringand

intimidating retailers who would like to do business with FSI.

29. Therewas no probablecausefor the prior actionin regards to the allegations regarding

infringement of theBettyBoopword

mark.

The nameddefendants, and eachof them,had no

reasonable beliefas to the validityof theprior action. Therewereno groundsuponwhicha

reasonable attorneywouldbelievethereis a meritorious claimas to theallegedwordmark

infringement. TheCourtmadea simplefinding that the phraseBettyBoopdescribesor

identifies by namethe characterDefendants depicton theproducts, that is, that this use is

'otherwise than a mark,' descriptive,and not in bad faith. (FleischerStudios. Inc. v. A.V.E.L.A..

Inc.. (2012) 925 F.Supp.2d 1067,1076.) No reasonable attorney could believe that use of the

wordBettyBoop,as usedbyAVELAindescribingthe characterBetty Boop,was in anywayan

infringement

of

FSI's alleged trademark.

30. Therewas

malice

on the partof the named defendants, andeachof them,in that the

underlying

actionwas filedforan improper purposeof harassing the

AVELA

and AVELA'S clients. FSI,

withtheaidof

MANATT

and

ARENT

FOX,

made

a decision to goafterAVELA and threaten

AVELA's customers withthreats of

lawsuits

which had no reasonable degree of success asto

trademarkclaims. In fact, the allegationsregardingtrademarkinfringementwere decided in

AVELA's favor asa matterof law in theNovember 14,2012 rulingonAVELA'smotionfor

summary judgment on that issue.

31. FSI,MANATT andARENT FOX

threatened

and

brought

the

underlying

actionfor

trademark

infringement

inanattemptto

illegally

and improperly monopolize the useofanything

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C O M P L A I N T


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related to Betty

Boop.

The veiled threatwas sent to AVELA and any client of

AVELA

that if

you dare use anything related to Betty Boop,you will be sued unless you pay off FSI.

FSI

MANATT

and

ARENT

FOX

knew that

AVELA

in no way violated the Betty Boopword mark

an d nonetheless brought an d maintained the underlying

lawsuit

32.

FSI

engages in the perverse practice of using or threatening to use the court system to

threaten its competitors into submission. Through the years, FSI has sent hundreds, if not

thousands, of cease and desist letters to competitors. The cease and desist letters have no

substantive value and are simply meant to intimidate and scare offlegitimate competitors.

33.

FSI

abuses the legal system by indiscriminately filing lawsuits to see what willeventually

stick. It is essentially a continuous, sustained, and aggressive fishing expedition the purpose

ofwhich is not to protect any alleged trademark, but rather to try to scare off competitors

and their client's by threat of lawsuits and actual lawsuits.

MANATT

and ARENTFOXare

awareof and helpadvancethis improper use of the legal system.

34. FSI'sheavy handed and litigious behavior has the effect of exhorting money from its

competitors, who are conducting business lawfully. FSI,MANATT andARENT FOXforced

AVELA to spend years in litigation at significant cost to defend a claim of trademark

infringementwhich hadno likelihoodof successand was brought inan attempt to try to bleed

AVELA dry.

35. Since the early 1990s, FSI has initiated over thirty-eight lawsuits in federal court The bulk

of these lawsuits allege copyright infringement, trademark infringement, and unfair

competition. The vast

an d

overwhelming majority of these cases

ended

in voluntary

dismissal of the case or, at the very least, voluntary dismissal ofmultiple defendants within

the case. The vast remainder of the cases ended in court ordered default judgments.

36.

MANATT

and ARENTFOXwereawareof thispast litigation historyof FSI and chose to help

8

COMPLAINT


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FSI in its

attempt

to intimidate and

improperly

file

claims which

had

no

likelihood ofsuccess.

MANATrand

ARENT

FOX didinfact file, maintain and argue the

underlying matter

onbehalf

of

FSI,

which

upon

review

of

the facts,

a

reasonable law

firm

should

know had

no

chance

of

success

on itsmerits.

ARENT FOX, MANATT

andFSIhadnoconcern withthe

merits

ofthe

underlying case and instead chose to attempt to game the system and use lawsuits, such as the one

filed

against AVELA,

asaweapon and

warning

toothers that if they dare use Betty Boop,

properly

or not,

they

will be

tied

upinyears of

costly litigation.

37.

The

extreme

and

outrageous behavior

of

FSI

has

continued

since court

rulings decided

that

FSI

had

no trademark protection asit related

to

AVELA s use ofBetty

Boop.

FSI

has

continued its

malicious behavior by erecting billboards

which

claim exclusive rights of

Betty

Boop and intimate

that

any use ofBetty Boop not

authorized

by FSI isa

trademark

violation and

such

use

will be

challenged

in

a

court

of

law. The

threats

are directly meant to hurt

AVELA

and intimate

businesses whowouldotherwise do businesswith

AVELA.

FSI is aware that the threatsmadeon

thebillboards, andelsewhere, arenot true but theypersist

anyway.

38.

After FSI

hadbecome

aware

of the limitations of its

alleged trademark

a billboard surfaced in

Brazil

which stated

that theBetty Boop character andworldwide trademarkis the exclusive

property ofFSI andthatanymisuse ofthecharacter isa

serious

violation.

The

billboard

went on to claim, All violatorswillbe pursued to the fullest extent of the law. Thepurpose

of this untruthful Billboard wa s to intimidate

those businesses

wh o would otherwise engage

in c o m m er c e w i th AVELA.

39. Defendant FSI is not a successor in anyway to the 1930s company. Bytaking the exact name

as the original FSI, Defendant FSI sought tocreatethe impression that itwasin fact the

same FSI that existingwhenBetty Boop andotherwell-known characterswere created.

Defendant has a known habit ofmanipulating facts to exaggerate the extent of its rights. The

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following footnote illustrates this point.

TheCourt is troubled by Plaintiffs casual conflation in its submissions of itself and the

unrelated, long-defunctOriginalFleischer that initiallyowned the rights in Betty

Boop...As

this Court a nd t he Ninth Circuit have noted, the present Fleischer Studios is legally

unrelated to the original 1930s Fleischer Studios. Evidently,Plaintiff used this sleight-of-

hand attempt to persuade the reader that its legal interest in Betty Boopis oflonger

standing than it actually is.The Court is not persuaded or favorably impressed by this

tactic. Fleischer Studios. Inc.v.

A.V.E.L.A..

Inc. 925 F.Supp. 2d 1067,1070

n. l

(CD.

Cal.

2012).

40.

Defendants

FSI,MANATTand ARENT FOX

knew or s ho ul d h av e k n ow n that

FSI

lacked

exclusive rights to the Betty Boopname. Defendant

FSI,

MANATT and ARENT

FOX

knew or

should have known there was no continuity of trademark rights from the Original FSI.

41. With all intellectual property rights, to the extent they still exist, having been long since

transferred to others, and with the knowledge that others held such rights, FSI nevertheless

decided to create a new company, taking the exact name as the Original FSI, and apparently

began to license Betty Boopmerchandise. Despite losingat every stage in the prior

litigation, Defendant FSI nonethelesscontinuesto threaten AVELA with legal actionover the

alleged copyright and trademark infringement of Betty

Boop.

42. Notwithstanding the judgments stating the contrary,

FSI

nonetheless continues to threaten

AVELA,

its licensees,

an d

potential licensees with legal action

an d

accuse

AVELA,

without

merit or justification, of breaking the law.

43. With

legal

defeats in theU.S.,

Defendant

FSIshifted its attention

towards

interferingwith

AVELA s domestic and international business relations.

With

this goalinmind, Defendant FSI

sent threatening letters to AVELA's clients, licensees andpotential licensees, inwhich

they

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mislead readers as to FSI's copyright and trademark rights.

44. Defendant FSI did not stopat sendingmisleadingletters.Rather, Defendant initiated additional

lawsuits,

throughout

the

world,

based

onthe

already

litigated

issues

of

copyright

and

trademark

infringement of the BettyBoopcharacterrights. These suits were initiated internationally

despite all of

AVELA s

contracts being signed in the UnitedStates.

45. After the district court granted summaryjudgment in favor of AVELAon the trademarkmatter,

Plaintiff receivednoticefromItalythat itwas to bejoined as a party in a BettyBoop trademark

infringement suit in the courtof Bari,

Italy.

A fewmonths aftertheNinthCircuit's favorable

ruling, Defendant FSIandHearst Holdings, Inc. ( Hearst ) filedan actionfor copyright

infringement against

AVELA

beforetheHighCourtof Justice,Chancery Division, in theUnited

Kingdom. The actionalsoallegedtrademark infringement arisingout of BettyBoop imagery, an

issuethatFSIalready litigated and lost in theU.S. AVELA has further beendragged into

litigation in Brazil overits

alleged

infringement of the

Betty Boop character

copyrights and

trademarks.

FIRST CAUSE OF ACTION

Malicious

Prosecution

Against FSI,MANATT

and

ARENT FOXand DOES1

through

50)

46. Plaintiffsre-allege and incorporate herein by reference each and every allegation contained

in

the preceding paragraphs

as though fully se t forth.

47. On November 14,2012, the underlying action was concluded and resulted in a ruling in

favorofAVELA. TheCourt ruled on summary judgment that AVELA did not infringeon any

alleged word mark FSImay have had as a matter of law. The court found there was no

grounds upon which FSI's trademark violation allegations could proceed.

n

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48. There was no probable cause inbringing

the

trademark

infringement claim

inthe

underlying lawsuit There

was no reasonable

belief

as

to

the

validity of

the prior action and

claim by

FSI, MANATT

or

ARENT

FOX.

There

is

no

conceivable way

a

reasonable

attorney

would believe therewasa meritorious claim fortrademarkviolations in the underlying

action.

Thelawwasclearandwelldefined that useofa word

mark,

suchas the use by

AVELA

ofBetty Boop, isdescriptive,

fair

use and

not

a

trademark

violation. FSI isa

sophisticated entity who

is very litigious and

knew that

the use of

Betty

Boop

by

AVELA

did

not infringe onanyalleged trademark.

49. FSI MANATT and

ARENT FOX

didnothave probable

cause

to instigate and/or continue the

Boop litigation once

it

was underway. Defendants knew

orreasonably should

have know

that the Boop litigation

was

without merit

from the

moment

the

original Complaint had

been file andat all times

while

the action was

pending.

Furthermore, Defendants pursued

the action even though they

knew

or

reasonably

shown

have

know the claims they were

advancing were

meritless

andbased onnoevidence or rights.

50.

FSI acted primarily

for

a purpose

other than

securing a

proper

adjudication. That purpose

included, butwasnot limited to,actual hostility or ill will towards

AVELA,

and thedesireto

unjustly exclude AVELA

from

the

market

and ruin the

finances

and reputation ofLeo

Valencia, AVELA s

owner. Theunderlyingactionwasbroughtwithmalice in that FSI

sought, in bring the action,

to

threaten AVELA

and

any

businesses

doing

business

with

or

wanting

to

do

business

with

AVELA ARENT

FOX

and

FSI

knew

thatthe

claim

of

trademark

infringementwasnotsupportable butbrought it anyway because thepurpose wasnotto

winincourtandseekto righta legal wrong but rather to cause damage toAVELA andruin

AVELA s

relationshipwith other businesses. Themalice is further shown byFSI continuing

to threaten and bringlawsuits onmattersalreadyadjudicated inother jurisdictions.

12

C O M P L A I N T


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3

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25V

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51 .

52.

5 3 .

The

actions of

FSI MANATT and ARENT FOX in

bringing the

meritless

and

unsupportable

underlying

claim

for

trademark

infringementwas

malicious, intentional

and oppressive

conduct and

was

a

substantial

factor and proximate cause

in

bringing

about

AVELA s

harm.

AVELA

was

damaged by

having to pay great sums to

defend

meritless claims

brought

by the

nameddefendantsand lost businessas a result ofthe threatened claims. Defendants intent

in bringing

the underlying lawsuitwas to bleed AVELA of funds and

to

intimidate anyone

wising todo

business with AVELA AVELA

was

damaged

bythe

named

defendants asa

result

ofthe bringing of

the

underlying

claim in

a

sum

to

be

proved at trial.

As

a

result

oftheaforementioned

conduct,

AVELA suffered

damages in

anamount tobe

proved at trial. AVELA s suffered

damages

include, but are not limited to: out ofpocket

expenditures, including attorney s fee and other

legal

fees, business

losses,

general harm

to

good

will reputation andcredit, andmental anguish. The aforementioned conduct was

oppressive,

malicious,

duplicitous, and

performed with willful

and

conscious

disregard

ofthe

multiple court decision with the intent to deprive AVELA ofits

rights.

Accordingly, AVELA is

entitled to

an award

ofpunitive and exemplary

damages.

SECOND CAUSE OF ACTION

Interference With

aProspective

Economic Advantage

(Against

FSI

and

DOES

1 through50)

Plaintiffs

re-allege and incorporate herein

by

reference each

and

every allegation contained

in the preceding paragraphs as though

fully

set

forth.

13

COMPLAINT


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2 8

54. AVELA and anexpansive

network

ofdomestic and

international

licensing agencies and

retailers were inan economicrelationship that would have resulted inan economicbenefit

t o

AVELA.

AVELA is informed andbelieves andthereon alleges that FSI knew ofthe relationship

between

AVELA andthe aforementioned licensing

agencies

and retailers.

FSI

intended to

disrupt this

relationship by

threatening unsupported legal

actions against

AVELA andits business partnersinanattempttodisruptthis relationship.

FSI engaged in

and continues to engage in

wrongful

conduct by

threatening

tosue and bring

lawsuits based on an allegedclaimof trademark violationswhen

FSI

knowssuch claimsto

beunfounded. FSI s purpose inthreatening

lawsuits

andbringing lawsuits based on

trademark infringement

claims

is for the purpose of intimidating those

businesses

that

would otherwise

engage

incommerce with

AVELA

and to run costsup for

AVELA.

FSI

knows these otherbusinesses donotwanttogetembroiled in litigation and therefore

would likelyshy away fromdoingbusiness withAVELA even ifthe claimsare meritless.

58. The relationship between AVELA and

many

ofits licensing partners andretailers has

been

disrupted

asa

result

ofthe

wrongful conduct

ofFSI.

The

treatof

litigation

stresses

and

often

breaks the relationship AVELA has formed with these other businesses.

FSI

misrepresents

that

AVELA is infringing on FSI s trademark as

it

relates to Betty Boop even

though

they

know such claims are

not

true and have

already been

adjudicated and

the rulings

were in

AVELA s

favor.

59. FSI intended to and

has

in fact harmed the name

and

reputation ofAVELA by repeatedly

alleging that

AVELA

is infringing on

FSI s

trademarkwhen FSI knowsthat

AVELA s

use does

not infringe on any such word mark trademark.

55 .

56 .

57 .

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C O M P L A I N T


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2l

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2i

28

60. The wrongful

conduct

of

FSI in

alleging trademark

infringement

as itrelates to AVELA s use

of

Betty

Boop

is

asubstantial factor

in

causing harm

to AVELA.

AVELA has lost business,

sales and

contacts

as

a

result

fo

the

threats

and unfounded

allegations

of

FSI.

61. As

a

result of

the aforementioned

conduct, AVELA suffered damages in

an amount

to be proved

at

trial, but which

includes the loss of customers,

licensing

agreements,

royalties, and good will

reputation. Moreover,

Defendant s

misconduct will continue unabated barring relief,

and

AVELA

is therefore

entitled to

injunctive

relief

to

prevent

further such

misconduct.

62.

The aforementioned conduct was oppressive, malicious, duplicitous,

and

performed with

willful

and

conscious

disregard

of

the multiple

court decision with the intent

to

deprive

AVELA

ofits

rights. Accordingly, AVELA

is

entitled to an

aware

ofpunitive and

exemplary damages.

PRAYER FOR RELIEF

Wherefore, Plaintiffprayforjudgment as

follows:

1. ForGeneral Damages according to

proof;

2.

For

special

damages

according

to proof;

3. For Punitive

/ Exemplary damages according to

proof;

4. Foran award ofattorneys

fees;

5. Forthe costofthesuit hereinincurred; and

6. For

such

other and further reliefas the court may

deem

proper.

Dated: November 13, 2014 GOODHEART LAW OFFICES

Gregory

J. Goodheart,

Esq.

Attorneys for AVELA

AVELA v. Fleischer Studios, Arent Fox, Manatt Phelps - Betty Boop malicious prosecution...

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