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TECHLAW LLP Dana B. Robinson (Bar No. 208265) [email protected] Kayla Jimenez (Bar No. 292365) [email protected] P.O. Box 1416 La Jolla, CA 92038 Telephone: (858) 488-2545 Facsimile: (858) 777-3347
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
DAKOTA SCHUETZ, an individual, Plaintiff, vs. LUCKY SCOOTER PARTS, LLC, and BRIAN JEIDE, an individual, and ROLAND PAUL CORRIVEAU, an individual, Defendants.
Case No.: 5:15-cv-0416 COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL RELIEF 1. False Association, 15 U.S.C. 1125(a); 2. Breach of Contract; 3. Breach of the Duty of Good Faith & Fair
Dealing; 4. Breach of Fiduciary Duty; 5. Fraud; 6. Negligent Misrepresentation; 7. Deceit; 8. Unjust Enrichment; 9. Intentional Interference with Contractual
Relations; 10. Intentional Interference with Prospective
Economic Advantage; 11. Violation of the Right of Publicity, Cal.
Civ. Code 3344; 12. Common Law Trademark Infringement; 13. State Unfair Competition, Cal. Bus. &
Prof. Code 17200; 14. State False Advertising, Cal. Bus. & Prof.
Code 17500.
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Plaintiff Dakota Schuetz (herein referred to as Kota or Plaintiff) alleges
the following against Defendants Lucky Scooter Parts, LLC (Lucky) Brian Jeide
(Jeide) and Roland Paul Corriveau (Corriveau) (collectively, Defendants):
NATURE OF THE CASE
This is an action for False Association under the Lanham Act, Breach of
Contract, Breach of the Duty of Good Faith and Fair Dealing, Breach of Fiduciary
Duty, Fraud, Negligent Misrepresentation, Deceit, Unjust Enrichment, Intentional
Interference with Contractual Relations, Intentional Interference with Prospective
Economic Advantage, Violation of the Right of Publicity, Common Law
Trademark Infringement, State Unfair Competition and False Advertising. Plaintiff
seeks actual damages, Defendants profits, and/or statutory damages, punitive
damages, an award of attorneys fees and costs, and preliminary and permanent
injunctive relief.
PARTIES
1. Kota resides in Temecula, California. Kota is a professional athlete and the
International Scooter Association World Champion for 2012, 2013 and 2014.
2. Upon information and belief, Defendant Lucky is a Washington limited
liability company that distributes and sells scooters and scooter parts and
accessories. It is believed that Lucky does business at 8429 154th Ave., NE
Redmond, WA, 98052, and distributes products worldwide.
3. Upon information and belief, Defendant Jeide is a Washington resident and a
principle of Lucky.
4. Upon information and belief, Defendant Corriveau is a Washington resident
and a principal of Lucky.
JURISDICTION AND VENUE
5. This is an action for False Association under Section 43(a) of the Lanham
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Act, 15 U.S.C. 1125(a), Breach of Contract, Breach of the Duty of Good Faith
and Fair Dealing, Breach of Fiduciary Duty, Fraud, Negligent Misrepresentation,
Deceit, Unjust Enrichment, Intentional Interference with Contractual Relations,
Intentional Interference with Prospective Economic Advantage, Violation of the
Right of Publicity, Common Law Trademark Infringement, and State Unfair
Competition and False Advertising.
6. This Court has subject matter jurisdiction over this case pursuant to 28
U.S.C. 1331 and 1332. Further, complete diversity of citizenship exists, and the
amount in controversy exceeds $75,000.
7. This Court has personal jurisdiction over Defendants based upon: (a)
transaction of business by Defendants by promoting and selling products in this
judicial district; (b) commission by Defendants of the infringing and other tortious
conduct underlying Plaintiffs claims, directed into this judicial district; and (c)
entering into a contractual relationship with Plaintiff in this judicial district which
was breached in this judicial district.
8. Venue is proper in the United States District Court for the Central District of
California under 28 U.S.C. 1391(b) & (c) and 1400.
BACKGROUND FACTS
Kotas Professional Career
9. Kota is a professional scooter athlete and the winner of the past three
International Scooter Association World Championships (2012-2014).
10. Kota has been a professional scooter athlete since the age of 10. Kota won
his first Scooter Association World Championship at the age of 16.
11. Kota is also listed as the current world record holder of the most backflips
in one minute in the Guinness Book of World Records.
12. While Kota is certainly a celebrity in the scooter world, his popularity
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extends far beyond the sport of scootering. Kota has over 67,000 likes on
Facebook and signs thousands of autographs a year. Kota has appeared on
numerous magazine covers and television programs, including The Ellen Show
in 2013. Kotas YouTube videos have been viewed over 60 million times. Kota
was also featured in BBCs Amazing Achievements program.
13. In 2012, Kota decided to seek out a sponsorship with a family-friendly
scooter company.
14. On or about July 2012, Defendant Jeide approached Kota about signing a
sponsorship agreement. Jeide represented he was the president of Lucky, claiming
further that Lucky was an extremely profitable scooter manufacturing and
distribution company. Defendants Jeide and Corriveau promised Kota that if Kota
signed the sponsorship agreement with Lucky, Kota would receive a financial
interest in Lucky and royalties from a KOTA complete signature scooter and
parts that would make Kota a millionaire.
15. At the time Defendants approached Kota, Kota was 16 years old and had
several other offers from sponsors. However, Kota decided to accept a sponsorship
deal with Lucky based on Jeide and Corriveaus statements.
Kotas Negotiations with Defendants and the Sponsorship Agreement
16. Corriveau, on behalf of Lucky, proposed a three-year sponsorship
agreement, where Lucky would pay Kota $2,000.00 a month for the first year of
the sponsorship agreement. Corriveau, on behalf of Lucky, also agreed that Kota
would receive a 1% membership interest per year in Lucky and 10% of net sales
from KOTA signature scooter and parts.
17. Kota informed Defendants that he was concerned about supporting himself
for the remaining 2 years of the sponsorship agreement. However, Jeide and
Corriveau told Kota that Kota would make much more than $2,000 per month
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after the first year, as Kota would receive distributions from his ownership in
Lucky as well as 10% of net sales from the KOTA signature scooter and parts.
18. Defendants promised to feature Kota on all Lucky marketing materials that
were displayed in stores. This promise was important to Kota, because it would
further bolster Kotas name recognition and brand.
19. Jeide and Corriveau promised Kota that if Kota signed the sponsorship
agreement with Lucky, the financial interest in Lucky and the royalties from the
KOTA products would make [Kota] a millionaire.
20. Corriveau specifically told Kota that Kotas membership interest in Lucky
would result in a huge payout for Kota because Defendants were planning on
selling Lucky for a huge profit within two to three years to a larger entity, such as
the Trek Bicycle Corporation.
21. Relying on Defendants representations, Kota signed a sponsorship
agreement with Lucky on September 7, 2012. A true and correct copy of the
sponsorship agreement is attached hereto as Exhibit A to the Complaint (the
Sponsorship Agreement).
22. Kota had other sponsorship offers, including one offer for $5,000 per month
plus a percentage of scooter sales. However, Kota relied on Defendants
representations that a sponsorship deal with Lucky would be in his best interest
and make him a millionaire.
23. The time that Kota was contracted with Lucky under the Sponsorship
Agreement was the prime of Kotas career. The sport of scootering was growing,
and Kota won three world championships during his time at Lucky.
Kotas Ownership Interest in Lucky
24. The Sponsorship Agreement provides that SPONSOR will grant
ATHLETE 3 percentage points of ownership (equity) in SPONSOR. One percent
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of equity in SPONSOR will be granted at the end of each year of the sponsorship
for three years. (Exhibit A, p. 3).
25. Defendants promised Kota that his financial interest in Lucky would result
in income for Kota, and help fund Kotas retirement.
26. Kota never received distributions related to his ownership interest in Lucky.
In fact, Defendants never intended for Kota to receive any distributions from his
interest in Lucky, as evidenced by an email from Jeide to Kota dated January 7,
2015. Jeide stated in this email, I also want you to be aware that the only time
your equity will pay anything is if the company does a distribution or we sell the
company. We dont plan on selling and we have never done distributions and dont
plan on it in the future.
27. Defendants never rendered an accounting to Kota regarding Lucky.
28. Defendants also terminated Kota two days before the completion of his
second year of the Sponsorship Agreement.
29. Upon information and belief, Defendants terminated Kota to avoid having
Kotas ownership interest in Lucky continue to vest.
30. According to the Sponsorship Agreement, Kotas ownership interest in
Lucky would fully vest at the time of any ownership change. (Exhibit A, p. 3 at
12(a)).
31. Upon information and belief, Luckys ownership changed in 2013, and
therefore, Kotas 3% ownership interest in Lucky is fully vested.
Issues with Lucky Products
32. The Sponsorship Agreement states, SPONSOR shall provide ATHLETE
with customized products that meet his specifications within 30 days so he can
practice and test them. (Exhibit A p.3).
33. Kota did not receive customized products in a condition satisfactory for his
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athletic purposes from Defendants until August 10th, 2014.
34. Frequently, the products Defendants provided to Kota did not meet Kotas
specifications. For instance, several scooter decks broke after test-rides.
The KOTA Complete Signature Scooter and Royalties
35. The Sponsorship Agreement provided that SPONSOR will build and
launch a KOTA complete signature scooter within six months... (emphasis
added). Given that the Sponsorship Agreement was executed September 7, 2012,
Defendants were required to complete the KOTA complete signature scooter by
March 7, 2013.
36. The KOTA Complete Signature Scooter was not completed until September
2014, which is after Defendants terminated Kota and cancelled Kotas
Sponsorship Agreement.
37. The Sponsorship Agreement also states that Defendants shall remit to
ATHLETE 10% of net sales of [the KOTA Complete Signature Scooter] for the
duration of the Agreement, paid quarterly. Should SPONSOR choose to build
KOTA signature parts, SPONSOR will remit to ATHLETE 10% of net sales of
each signature part. (Exhibit A p.3, emphasis added).
38. On or about summer 2013, Defendant Jeide, on behalf of Lucky, agreed that
instead of 10% of net sales on KOTA signature parts and the KOTA Complete
Signature Scooter, Kota would receive 15% of net sales on KOTA signature parts
and the KOTA Complete Signature Scooter. Jeide reiterated this in an email to
Kota on January 25, 2014.
39. Defendants terminated Kota, and launched the KOTA Complete Signature
Scooter after Kotas termination. Thus, Kota was not able to make the amount of
royalties Defendants promised.
40. Furthermore, upon information and belief, Kota has not received all of his
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15% of net sales on the KOTA signature scooter and the KOTA signature parts.
Kotas Travel Expenses
41. Defendants also agreed to pay Kotas travel expenses for competitions,
events and promotional activities. Specifically, the Sponsorship Agreement states,
SPONSOR will fund travel and lodging expenses of ATHLETE for agreed upon
competitions, events, and promotional activities.
42. Defendants agreed that Kota should attend the 2014 International Scooter
Association World Championship in England. Kota attended the event, but Lucky
did not reimburse Kota for all his expenses.
43. Lucky also did not reimburse Kota for the mileage, maintenance and repair
costs that Kota incurred while using his vehicle for Lucky.
44. Lucky requested that Kota attend the East Coast Sprinter Tour 2013, but did
not reimburse Kota for the vehicle maintenance that was done in preparation for
this tour. Lucky cancelled the East Coast Sprinter Tour 2013 after Kota already
performed and paid for the vehicle maintenance.
Defendants Additional Promises to Kota
45. Defendants promised to promote Kota as their number-one rider, and send
him to competitions around the world.
46. Defendants specifically promised to send Kota to several countries and
trade shows, including: Germany for ISPO (the worlds largest trade show for
scooters) in 2013, 2014 and 2015; Australia; China; the Scooter World
Championships; the InterBike Trade Show in Las Vegas; and the East Coast
Sprinter Tour in 2013.
47. Defendants cancelled the trip to Australia as well as the trips to Germany
for the ISPO in 2013, 2014 and 2015. Defendants also cancelled the East Coast
Sprinter Tour in 2013 and the InterBike Trade Show Las Vegas in 2012, 2013 and
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2014.
48. Defendants did not promote Kota as their number-one rider. Defendants
instead promoted a different kind of professional scootering called street
scootering instead of promoting park scootering. Kota is a scooter rider known
for park scootering.
49. Defendants also failed to feature Kota in all marketing materials as was
promised back when Defendants approached Kota about signing the Sponsorship
Agreement.
50. Additionally, Defendants promised to pay for Kotas vehicle to be wrapped
with Luckys design work, and reimburse Kota for the cost of taking off the
previous wrap. Kotas previous wrap cost over $6,400, but Kota took the wrap off
his vehicle based on Defendants promises. The cost to remove the old wrap alone
totaled $1,000. Defendants did not reimburse Kota for the cost to remove the
wrap. Defendants also did not put new wrap on Kotas vehicle. As such, Kota lost
the opportunity to generate revenue from sponsors that would have otherwise paid
to have wrap, stickers and decals on Kotas vehicle.
Tukno Bars Dispute
51. Kota designed and created a scooter product, which Kota named the Tukno
Bar.
52. Defendants agreed that Kota could sell Tukno Bars under Kotas own brand
and business.
53. The Tukno Bars are extremely popular with consumers.
54. Kota had an agreement with Anthony Baker to manufacture the Tukno Bars.
When Kota went to order more Tukno Bars, Mr. Baker informed Kota that he did
not have any Tukno Bars ready because Defendants bought out the entire supply.
55. The above-mentioned action damaged Kota and Mr. Bakers professional
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relationship.
56. Defendants also began to manufacturer the Tukno Bars in China, sacrificing
quality for price. The cheap Tukno Bars are advertised as KOTA products even
though Kota did not approve of the Tukno Bars being manufactured anywhere but
the United States. These cheap Tukno Bars have flooded the market, and
affected Kotas customers, including distributors that are trying to sell the higher
quality Tukno Bars.
57. Upon information and belief, Defendants continue to sell Kotas Tukno Bars
using Kotas name, without Kotas permission and without paying Kota any
licensing or royalty fees.
Kotas Performance
58. While Defendants have disregarded their obligations in the Sponsorship
Agreement and broken their promises to Kota, Kota has gone above and beyond
his obligations in the Sponsorship Agreement.
59. The Sponsorship Agreement requires Kota to make himself available to
promote SPONSORS products and services for up to 45 days per year. Kota has
promoted Lucky an average of 290 days per year.
60. Kota has also saved Defendants money by traveling using his mothers free
flight passes, as his mother is a flight attendant.
61. During the time Kota was contracted with Lucky, Kota signed tens of
thousands of autographs, won three world championships, set two Guinness Book
of World Records, and appeared in countless magazines. Kota also appeared on
The Ellen Show at this time, wearing a Lucky brand shirt.
62. Kota won his third International Scooter Association championship on
August 10, 2014. When Kota returned from the championship, Lucky fired Kota.
Defendants Misuse of Kotas Name and Image
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63. While the Sponsorship Agreement provides that All videos and
photographs of ATHLETE taken or created by SPONSORshall be considered
the intellectual property of SPONSOR, the Sponsorship Agreement does not
grant Defendants an interest in Kotas name, image or likeness. See Exhibit A to
the Complaint.
64. After Kota was fired, Defendants continued to use Kotas name and image
to promote their business.
65. In one instance, Defendants fabricated several quotations and attributed
these quotations to Kota. Defendants then published the false Kota quotations
without informing Kota or obtaining Kotas consent.
66. Defendants still continue to sell KOTA named scooters and scooter
products.
67. Upon information and belief, Defendants continue to use Kotas name,
image and likeness to promote their products.
68. Kota did not give permission to Defendants to continue to use his name,
image or likeness after the contract terminated, yet Defendants continue to use
Kotas name, image and likeness to promote their products.
Defendants Current Actions
69. Defendants refuse to send Kota his royalty payments for sales up to the
fourth quarter of 2014.
70. On or about January 7, 2015, Jeide told Kota that he would only pay Kota
royalties if Kota agreed to release Defendants from everything Defendants owed
Kota in the past, and all royalty payments moving forward. This was unacceptable
to Kota.
71. Defendants continue to sell Kotas signature scooter and Kota signature
scooter parts, using Kotas name and brand, without Kotas permission and
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without paying Kota royalties.
72. The sale of the Kota signature scooter and parts is damaging Kotas
reputation. For example, on social media, Kotas fans are questioning why Kota
has a signature scooter but does not ride it.
73. Defendants have not announced that Kota is no longer riding for Lucky.
Upon information and belief, Defendants have done so in order to continue
profiting from Kotas popularity without compensating Kota.
COUNT I
(False Association Lanham Act, 15 U.S.C. 1125(a) et seq.)
74. Plaintiff incorporates the preceding allegations as if fully set forth herein.
75. Defendants use in commerce of Plaintiffs name, image, likeness and
trademarks, including the KOTA trademark, as used on goods that do not emanate
from Plaintiff, constitutes a false designation of origin and false association by
representing that Defendants goods are associated or sponsored by Plaintiff, when
in fact they are not.
76. Defendants use in commerce of Plaintiffs name, image, likeness and
trademarks with knowledge that Plaintiff owns, has used, and continues to use
Plaintiffs name, image, likeness and trademarks constitutes intentional conduct by
Defendants to make false designations of origin, false associations and false
descriptions about Defendants goods.
77. Defendants have deliberately and willfully attempted to trade on Plaintiffs
well-established goodwill in Plaintiffs name, image, likeness and trademarks that
Plaintiff has developed in connection with his products and unique brand.
Defendants have done so to confuse consumers as to the origin, association and
sponsorship of Defendants goods.
78. Defendants conduct has confused or is likely to confuse consumers as to
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the origin, association, connection or sponsorship of Defendants products in
violation of 15 USC 1125(a).
79. As the direct and proximate result of such false association, Plaintiff has
suffered, and will continue to suffer, monetary loss and irreparable injury to his
business, reputation, and goodwill.
COUNT II
(Breach of Contract)
80. Plaintiff incorporates the preceding allegations as if fully set forth herein.
81. A valid agreement between Plaintiff and Defendants existed.
82. The Defendants breached the agreement by failing to render distributions
from Lucky to Plaintiff as promised, failing to remit the proper royalties to
Plaintiff, failing to provide Plaintiff with customized products that met Plaintiffs
specifications within 30 days, failing to provide Plaintiff with evidence of his 3%
interest in Lucky, failing to launch the KOTA complete signature scooter within
six months, failing to reimburse Plaintiff for travel expenses, failing to send
Plaintiff to the countries promised, failing to properly promote Plaintiff as
promised, and failing to reimburse Plaintiff for replacing the vehicle wrap.
83. Defendants breach was not excused by any conduct of Plaintiff or any third
party.
84. Defendants breach was not the result of Plaintiffs failure to perform a
condition precedent.
85. The Plaintiff was damaged by Defendants breach of the agreement.
86. The damages sustained by Plaintiff are reasonably ascertainable.
87. The damages sustained by Plaintiff were a foreseeable consequence of the
Defendants breach.
COUNT III
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COMPLAINT5:15-cv-0416
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416
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(Breach of the Duty of Good Faith and Fair Dealing)
88. Plaintiff incorporates the preceding allegations as if fully set forth herein.
89. Plaintiff and Defendants entered into a contract.
90. Plaintiff has not breached any element of the contract with Defendants.
91. Defendants have breached the letter and spirit of the contract by continuous
breach thereof, culminating in a refusal to pay Plaintiff what was promised,
terminating the contract right before the release of the scooter which would
generate royalties for Plaintiff, interfering with Plaintiffs business, and
withholding distributions for his membership interest in Lucky after they had
promised the distributions would make Plaintiff rich.
92. Defendants acted willfully and maliciously, intending to lock Plaintiff into a
contract with promises of wealth they never intended Plaintiff to receive.
93. Defendants acted in bad faith, looking out for their own interests, knowing
full well that the negative consequences to the Plaintiff would be substantial.
94. As the direct and proximate result of Defendants violation, Plaintiff has
suffered monetary damages in an amount to be determined at trial.
COUNT IV
(Breach of Fiduciary Duty)
95. Plaintiff incorporates the preceding allegations as if fully set forth herein.
96. Defendants owed a fiduciary duty to Plaintiff to manage Lucky, and to
account to Plaintiff for the activities of Lucky as Plaintiff owned a membership
interest in Lucky.
97. Defendants have not accounted to Plaintiff for the activities of Lucky.
98. By virtue of the above stated acts, Defendants have, in bad faith, breached
their fiduciary duty to Plaintiff.
99. As the direct and proximate result of Defendants bad faith breach of their
Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 14 of 23 Page ID #:14
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Page 15 of 23
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duties, Plaintiff has been damaged in an amount to be determined at trial.
COUNT V
(Fraud)
100. Plaintiff incorporates the preceding allegations as if fully set forth herein.
101. Defendants have defrauded Plaintiff by falsely representing that Plaintiffs
membership interest in Lucky and royalties from the KOTA Lucky products would
provide Plaintiff with the income promised.
102. Defendants knew that Plaintiffs membership interest in Lucky would not
result in any payment to Plaintiff, and in fact never intended to pay Plaintiff any
distributions from Lucky.
103. Defendants also knew the royalties from the KOTA Lucky products would
not make Plaintiff a substantial sum of money.
104. Defendants intended Plaintiff to rely on the aforementioned representations
in order to induce Plaintiff to sign the Sponsorship Agreement.
105. Plaintiff justifiably relied on Defendants representations, signing the
Sponsorship Agreement on Defendants word.
106. Defendants fraudulent activities have damaged Plaintiff in an amount to be
determined at trial.
COUNT VI
(Negligent Misrepresentation)
107. Plaintiff incorporates the preceding allegations as if fully set forth herein.
108. Defendants negligently made false allegations and misrepresentations about
Lucky to Plaintiff.
109. Defendants knew or should have known that the statements were false and
misrepresentative.
110. Plaintiff justifiably relied on Defendants representations.
Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 15 of 23 Page ID #:15
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Page 16 of 23
COMPLAINT5:15-cv-0416
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(858
) 48
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: (8
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777-
3347
111. Defendants negligent misrepresentations have damaged Plaintiff in an
amount to be determined at trial.
COUNT VII
(Deceit)
112. Plaintiff incorporates the preceding allegations as if fully set forth herein.
113. Defendants have deceived Plaintiff and Plaintiffs fans and customers to the
detriment of everyone involved.
114. Defendants deceitful activities have damaged Plaintiff in an amount to be
determined at trial.
COUNT VIII
(Unjust Enrichment)
115. Plaintiff incorporates the preceding allegations as if fully set forth herein.
116. Plaintiffs contract specified that he is required to work 45 days of the year
for Defendants, but Plaintiff actually worked over 200 days a year for the
Defendants.
117. Plaintiff was not compensated for the additional days he worked for
Defendants.
118. Plaintiff was not paid for the travel and automobile expenses that he
incurred to the benefit of Defendants.
119. Plaintiff also developed and popularized the Tukno Bars, which Defendants
then sold to their profit.
120. Defendants have benefitted from Plaintiffs hard work and actions to the
detriment of Plaintiff in an amount to be determined at trial.
COUNT IX
(Intentional Interference with Contractual Relations)
121. Plaintiff incorporates the preceding allegations as if fully set forth herein.
Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 16 of 23 Page ID #:16
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Page 17 of 23
COMPLAINT5:15-cv-0416
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122. Plaintiff had a contractual relationship with the manufacturer of the Tukno
Bars that was beneficial to Plaintiff.
123. Defendants knew Plaintiff had a contractual relationship with the
manufacturer of the Tukno Bars, Mr. Baker.
124. Defendants intentionally disrupted the relationship between Plaintiff and
Mr. Baker by buying the entire supply of Tukno Bars from the manufacturer so
that the manufacturer could not fill Plaintiffs orders.
125. Defendants bought the entire supply of Tukno Bars so that Plaintiffs
business relationship and reputation would suffer.
126. Defendants actions have disrupted or are intended to disrupt Plaintiffs
relationship with Mr. Baker.
127. Defendants have no legal right, privilege or justification for their conduct.
128. As the direct and proximate cause of Defendants actions, Plaintiff has
suffered damages in an amount to be determined at trial.
129. Based on the intentional, willful and malicious nature of Defendants
actions, Plaintiff is entitled to recover exemplary damages and reasonable
attorneys fees and costs incurred in connection with this action.
COUNT X
(Intentional Interference with Prospective Economic Advantage)
130. Plaintiff incorporates the preceding allegations as if fully set forth herein.
131. Plaintiff had a longstanding economic relationship with his customers who
were purchasing the Tukno Bars.
132. Defendants knew Plaintiff had an economic relationship with his customers.
133. Defendants intentionally disrupted the relationship between Plaintiff and the
manufacturer of the Tukno Bars by taking Plaintiffs design for the Tukno Bars
and having cheaper versions manufactured in China so that Defendants could
Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 17 of 23 Page ID #:17
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Page 18 of 23
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3347
undercut Plaintiff and Plaintiffs customers, who were distributing the Tukno Bars.
134. Defendants actions have disrupted or are intended to disrupt Plaintiffs
relationship with his customers.
135. Defendants have no legal right, privilege or justification for its conduct.
136. As the direct and proximate cause of Defendants actions, Plaintiff has
suffered damages in an amount to be determined at trial.
137. Based on the intentional, willful and malicious nature of Defendants
actions, Plaintiff is entitled to recover exemplary damages and reasonable
attorneys fees and costs incurred in connection with this action.
COUNT XI
(Violation of the Right of Publicity Cal. Civ. Code 3344)
138. Plaintiff incorporates the preceding allegations as if fully set forth herein.
139. Plaintiff has a right in his name, image and likeness.
140. Defendants have used and continue to use Plaintiffs name, image and
likeness without Plaintiffs permission on Defendants website and in Defendants
advertising and marketing materials.
141. Defendants use of Plaintiffs name, image and likeness without Plaintiffs
permission is deliberate and willful.
142. Plaintiffs reputation has been damaged by Defendants use of Plaintiffs
name, image and likeness.
143. Defendants have also profited from the use of Plaintiffs name, image and
likeness but have not compensated Plaintiff for this use.
144. Plaintiff is entitled to a permanent injunction against Defendants, as well as
all other remedies available under the law, including, but not limited to
disgorgement of profits.
COUNT XII
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Page 19 of 23
COMPLAINT5:15-cv-0416
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(Common Law Trademark Infringement)
145. Plaintiff incorporates the preceding allegations as if fully set forth herein.
146. By virtue of having used and continuing to use the KOTA trademark, the
Plaintiff has acquired common law rights in the KOTA trademark.
147. Defendants infringing use of the KOTA trademark is likely to cause
confusion, mistake, or deception among consumers, who will believe that
Defendants services and/or goods originate from, or are affiliated with or
endorsed by, Plaintiff when, in fact, they are not.
148. As the direct and proximate result of Defendants infringement of Plaintiffs
common law trademark rights, Plaintiff has suffered, and will continue to suffer,
monetary damages and irreparable injury to his business, reputation, and goodwill.
COUNT XIII
(State Unfair Competition Cal. Bus. & Prof. Code 17200 et seq.)
149. Plaintiff incorporates the preceding allegations as if fully set forth herein.
150. Upon information and belief, Defendants engaged in the sale of products
that use Plaintiffs trademarks, name, image and likeness without Plaintiffs
permission to do so.
151. Defendants have profited from the use of Plaintiffs trademarks, name,
image and likeness.
152. Defendants advertising and sale of these products has caused irreparable
harm to Plaintiff, and will continue to do so unless enjoined by this Court.
COUNT XIV
(False Advertising & Deceptive Trade Practices Cal. Bus. & Prof. Code 17500)
153. Plaintiff incorporates the preceding allegations as if fully set forth herein.
154. Defendants have made false statements about Defendants goods and
services on Defendants websites and in Defendants advertising materials.
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Page 20 of 23
COMPLAINT5:15-cv-0416
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155. Defendants have made false statements about Defendants goods to third
parties.
156. In the course of conducting its business, Defendants knowingly made false
representations as to affiliation, connection and/or association with Plaintiff by
using Plaintiffs trademark, name, image and likeness without Plaintiffs
permission.
157. Upon information and belief, Defendants have profited from these false
statements and misrepresentations.
158. As a direct and proximate result of Defendants false statements, Plaintiff
has suffered and will continue to suffer monetary damages and irreparable injury
to his business, reputation, and goodwill.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays that the Court grant the
following relief:
A. Injunctive relief to prevent ongoing infringement, false association
and unfair competition consisting of:
1. An order prohibiting Defendants from using Plaintiffs name, image
and likeness;
2. An order prohibiting Defendants from using name KOTA or any
similar mark;
3. An order instructing Defendants to deliver to Plaintiff any and all
goods bearing the KOTA name;
4. An order instructing Defendants to cease sale of the Tukno Bars;
5. An order instructing Defendants to deliver to Plaintiff any and all
goods bearing Plaintiffs name, image and likeness;
6. An order requiring Defendants to cease all conduct which implies
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Page 21 of 23
COMPLAINT5:15-cv-0416
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that Plaintiff or his entities are associated with, endorsed by or
sponsored by Plaintiff;
7. An order prohibiting Defendants from falsely advertising their
companys products or services;
B. An accounting by Defendants to Plaintiff for Lucky;
C. An order to deliver evidence of Plaintiffs ownership of 3% of Lucky;
D. Compensatory damages for past trademark infringement;
E. Compensatory damages for past false association;
F. Compensatory damages for past unfair competition;
G. Compensatory damages for breach of contract;
H. Compensatory damages for intentional interference with contractual
relations;
I. Compensatory damages for intentional interference with prospective
economic advantage;
J. Compensatory damages for fraud;
K. Compensatory damages for deceit;
L. Compensatory damages for unjust enrichment;
M. Pursuant to 17 U.S.C. 505 and 1203(b)(4) and (5), and 1125(a), full
costs in litigating this matter, including reasonable attorneys fees;
N. Punitive damages for Defendants willful and malicious conduct; and
O. All other relief to which Plaintiff is entitled.
DATED this 5th day of March, 2015.
TECHLAW, LLP
By___/s/ Dana B. Robinson_______ Dana B. Robinson (Bar No. 208265)
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Page 22 of 23
COMPLAINT5:15-cv-0416
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) 48
8-25
45 F
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: (8
58)
777-
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P.O. Box 1416 La Jolla, CA 92038 [email protected] Attorney for Plaintiff
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COMPLAINT5:15-cv-0416
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DEMAND FOR JURY TRIAL
Plaintiff Dakota Schuetz hereby demands a jury trial as provided by Rule
38(a) of the Federal Rules of Civil Procedure.
DATED this 5th day of March, 2015.
TECHLAW, LLP
By___/s/ Dana B. Robinson_______ Dana B. Robinson (Bar No. 208265) P.O. Box 1416 La Jolla, CA 92038 [email protected] Attorneys for Plaintiff
Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 23 of 23 Page ID #:23
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