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UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND OREGON
Heidie
S.
McCall Factory West Studio
2712 Esther Street
Vancouver, WA. 98660
Tel. (360) 693-7085
Plaintiff s),
v.
Ronny Shany, Eric Klein, HIGHTV 3D a privately held company.
New York Office; The Seagram Building
375 Park Avenue, Suite 2607
New York, NY 10152 Tel. (212) 634-7482
Defendant s),
Civil Case No. 5
Cij
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COMPLAINT
FOR FEDERAL TRADEMARK INFRINGEMENT;
UNFAIR COMPETITION; FEDERAL TRADEMARK
DILUTION; FEDERAL TRADEMARK CONFUSION
Jury Trial Demanded
YES X NO
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This action seeks to
stop
the use of and
pray
for remedy in
regard
to
the
infringement of
the service trademark
HIGHTV
registered to Heidie McCall)
by
Ronny Shany and Eric Klein
and
the privately held company HIGHTV
3D
(Page 9)
PlaintiffHEIDIE MCCALL (hereinafter referred to as HIGHTV or Plaintiff ')
for the causes
of
action against Defendants ERIC KLEIN & RONNY SHANY HIGHTV 3D
(hereinafter referred
to
as HIGHTV 3D or Defendant )
COMPLAINT
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NATURE OF
THE ACTION
This is a civil action for trademark infringement, dilution, confusion, and unfair competition
under the Lanham Act, 15 U.S.C. 1114 and 1125
THE PARTIES
1
Plaintiff: Heidie McCall producer
of
television programming in conjunction with the
HIGHTV service trademark and her company Factory West Studio a multi media production
company with her principal place of business at 2712 Esther Street Vancouver W A, 98660.
Factory West Studio has been in operation since 1985 and is widely recognized in the United
States.
2 Defendants: Eric Klein (chief executive officer) and Ronny Shany senior vice
president)
HIGHTV
3D is a TV entertainment channel
that
takes common television
programming and runs said
programming
through
3D software
they
then
offer this
reformatted
3D
programming for worldwide television distribution as
HIGHTV 3D
Defendant s United States place of business is The Seagram Building 372 Park Avenue,
Suite 2607
-New
York City, New York 10152.
3
Plaintiff has been using
HIGHTV
a registered service trademark to
open
all video
and
television
productions
since
Nov
12th
2008
to
present
aired on broadcast
television
and
currently on the Internet. (Page 9a)
COMPLAINT
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To
ddress
32 15 U.S.C.
1114).
CLAIM
DEFENDANT S INFRINGEMENT OF HIGHTV AS HIGHTV 3D
4
HIGHTV 3D
was
launched March 16th 2011. Evidently a successful trademark search
was not done because
HIGHTV was already registered
to
the
plaintiff July
1st
2008.(Page
10
5
Plaintiff is currently building the Internet HIGHTV network. The Defendants use of
HIGHTV 3D
must
stop
because its use is greatly impeding
the
progress
of
this venture.
HIGHTV 3D
is visually extremely close to Plaint iffs version of
HIGHTV
This
creates
confusion in the
broadcast and
Internet marketplace,
to
say the least. (Page 11)
6 The Defendant's use of
HIGHTV 3D
(if
not removed
from the
Internet
will continue to
cause confusion to the service
the
Plaintiffs
trademark
provides.
7 The Plaintiff proudly uses the U S government attorney Jennifer Martin's description
( your guide
to
an
altered
state of mind ) of the service HIGHTV provides. HIGHTV 3D is
causing confusion
with
Plaintiffs network
and programming
style
because
for
one
thing
HIGHTV
is not in 3D (Page 12 )
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8 HIGHTV 3D
is causing confusion because Plaintiffs service trademark is to guide
the
viewer into an altered state of mind for relaxation and pain management, in no way does
HIGHTV offer 3D programming.
9
The Defendant's
are
luring viewers away that are looking for Plaintiffs service and
marginalizes
the HIGHTV
effort to guide viewers into
an
altered
state of
mind with
Plaintiffs
HIGHTV
programming style.
HIGHTV 3D
implies
HIGHTV
services
are
in
3D
(Page 13)
10. Confusion will occur
when the
HIGHTV service is explained to potential sponsors.
Sponsors do not
want their
ad money to be used in a confusing manner. The Plaintiff will
be
offering the concept of guiding the viewer into an altered state of mind for relaxation,
accelerated learning and pain
management
not
3D
programming as HIGHTV
3D
implies.
The Defendants themselves add to
the
confusion in their lengthy explanation. Further
confusing the issue by failing to add the 3D when explaining
HIGHTV
3D (Page 14
11.
HIGHTV 3D
is viewed over
the
world via satellite
and marketed
via
the Internet-
in
the very near future
the
Plaintiffs HIGHTV network will be marketed on
the
Internet by
satellite and aired on
broadcast
television. There most assuredly will
be
further confusion.
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12.
HIGHTV
and HIGHTV 3D
are not
from a common source. The similarities
are
such
that the two services could be easily interpreted as originating from a common source
causing further confusion in the minds of viewers, consumers and sponsors.
13. HIGHTV will be subject to dilution from HIGHTV
3D
similarities and
the
Defendant's
use on Facebook diminishes
the
strength and distinctiveness
of HIGHTV
(Page 15 )
14.
By
adding 3D to
the
end HIGHTV-
that
addition of 3D very much blurs
the
registered
HIGHTV
service your guide
to
an
altered state of
mind .
15. A
DVD
of
the TV
series produced
by the
Plaintiff using
the HIGHTV
service
trademark
is currently on
the
market on the nternet and in brick and mortar stores. The Defendant's
use of the Internet, advertising their network productions in HIGHTV
3D
causes confusion
in regard to
the
service
the
Plaintiffs programming provides because
HIGHTV
programs
are not
in
3D
(Page 16)
16. Ronny Shany explains his vision for expansion of
HIGHTV 3D
in an article from
the
nternet
that will cause further confusion to viewers,
sponsors
and television
broadcast
networks who will
be
making decisions as to airing Plaintiffs
HIGHTV
programming
and
as
to
the
service
the
Plaintiffs
HIGHTV
provides. (Page 17)
COMPLAINT
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16a. Plaintiff has contacted the defendants in this case by mail and has not received a
reply. Plaintiff has spoken with Eric Klein and Ronny Shany on the phone in November
2014 and was summarily dismissed by both of them. (Page 18 & 18a
35
(15 U S C
1117 .
Recovery
of
profits, damages,
and costs
17. Plaintiff has invested one hundred
and
fifty thousand U S dollars into the production
and completion of Patrishaa's Workshop that includes thirteen
twenty-two minute
episodes (four
hours
of broadcast
ready
television
programming
which includes closed
captioning) each episode opening visually with the registered service trademark HIGHTV
to identify the style of programming. Any
and
all of the Plaintiffs productions have
and
will
continue to open
with
the tag five- second video HIGHTV along with the service description
your guide to an
altered
state of mind .
18. Plaintiffs Internet HIGHTV TV network has been stalled for months, along
with
approaching broadcasting
networks
and sponsors
due
to this
major
confusion and the
intransigence of the Defendants. The confusion
over
services provided by
the
Plaintiffs
programming and the slow down
of
attracting sponsorship due to confusion created by the
Defendants.
FIRST CLAIM
FOR
RELIEF
Infringement of Federally Registered Trademarks and Service Marks 15 U.S.C. 1114(1)(a)
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19
Plaintiff realleges and incorporates each and every allegation contained in the
paragraphs above with the same force and effect as if said allegations were fully set forth herein.
20. Plaintiffhas been injured by this action. Plaintiff borrowed 60,000.00 U.S. dollars to
produce a TV series and upon completion of the production which took four years 2010-2014 for
a grand total of 150,000.00 U.S. dollars (this total is the time, equipment and the afore
mentioned loan) Plaintiff now enters the broadcast market with a TV series with the service
trademark HIGHTV that provides a service, however it is not 3D programming. Plaintiff has
been damaged in that the Plaintiff cannot calculate how many hours and if it is even possible to
enter the broadcast market now with the registered HIGHTV service trademark to successfully
sell sponsorship and provide the HIGHTV service after the Defendants have globally usurped
Plaintiffs service trademark for over four years.
21a. Due to
the
Defendant's infringement of HIGHTV ttr cting viewers nd sponsors will
be difficult nd take longer to realize a return on the Plaintiffs investment, as
the
Plaintiff
will have to continually explain HIGHTV is not HIGHTV 3D for
n unknown
mount
of
time.
21 b Plaintiff pr ys for relief for d m ges in the amount of 150,000.00 U.S. dollars to be
used to rehabilitate the duly registered trademark HIGHTV.
COMPLAINT
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SECOND CLAIM FOR RELIEF
Infringement
of
Federally Registered Trademarks and Service Marks 15 U.S.C. 1114 l) a)
21. Plaintiff realleges and incorporates each and every allegation contained in the paragraphs
above with the same force and effect as if said allegations were fully set forth herein.
22. As a result
of
Defendants infringement, Plaintiff has suffered substantial damages,
as
well as the continuing loss
of
the goodwill and reputation established by Plaintiff in its
Federally registered mark.
22a. The continuing confusion caused by the Defendants cannot be properly calculated and
thus constitutes irreparable harm and an injury for which Plaintiff has no adequate remedy at
law.
23. Plaintiff will continue
to
suffer irreparable harm unless this Court enjoins Defendants
conduct by issuing an immediate cease and desist order issued against Ronny Shany, Eric Klein
and
HIGHTV
3
the
media distribution outlets Plaintiffs HIGHTV registration covers.
COMPL INT
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THIRD CLAIM FOR RELIEF
24. Plaintiff realleges and incorporates each and every allegation contained in the paragraphs
above with the same force and effect as
if
said allegations were fully set forth herein.
25. Defendants actions constitute knowing, deliberate, and willful infringement of Plaintiffs
federally registered mark. The knowing and intentional nature of the acts set forth herein renders
this an exceptional case under 5 U.S.C. 1117 a).
26. Ordering Defendants to pay a judgment in the amount of laintiffs actual damages
under 15 U.S.C. 1117 as well as Defendants profits, and pre- and post-judgment interest
pursuant to 15 U.S.C. 1117, in a amount to be accessed by the court.
27. Ordering Defendants to pay laintiffs (should they arise) reasonable attorneys fees and
costs
ofthis
action under 15 U.S.C. 1117
28. Ordering Defendants to pay a judgment for enhanced damages under 15 U .S.C. 1117
and;
29
Granting Plaintiff such other and further relief as the Court deems
just
and proper.
RESPECTFULLY SUBMITTED this r :J
2
2 \ s
HEIDIE McCall
COMPLAINT
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