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Duffey v Perseus - Complaint

Duffey v Perseus - Complaint

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Published by slburstein
Duffey v Perseus - Complaint
Duffey v Perseus - Complaint

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Published by: slburstein on Mar 01, 2013
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03/01/2013

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JUDGE OETKEN
13
CIV
1354
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKTODD DUFFEY,Plaintiff,
-against-
PERSEUS, L.L.C. AND JOHN DOES 1-10,Defendants.ECF CaseJury Trial DemandedCOMPLAINTCase#:
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The Plaintiff, by and through his undersigned attorney, alleges upon knowledge
as
tohimself and his own acts, and as to all other matters upon information and belief, and brings thisComplaint against the above-named Defendants, and in support thereof alleges the following:PRELIMINARY STATEMENT
1.
This action is brought by the Plaintiff, the actor who portrayed the character"Chotchkie's Waiter" in the 1999 movie
Office Space.
The Plaintiff seeks monetary andinjunctive relief against the Defendants for the unauthorized use
of
his photograph.JURISDICTION AND VENUE
2.
Jurisdiction is conferred on this Court pursuant to 28 U.S.C.
§§
1331 as
thePlaintiffs claim is brought pursuant to Section 43(a)
ofthe
Lanham Act (15 U.S.C. § 1125(a)).
3.
Venue is proper in this District pursuant to 28 U.S.C. §
1391
because theDefendants are located within this district.PARTIES
4.
The Plaintiff, Todd Duffey (the "Plaintiff'), is an individual residing in LosAngeles County, California.
5.
Based upon information and belief, the Defendant, Perseus, L.L.C. is a Delawarecorporation with a principal place
of
business located at 250 West 57th St., 15th Floor, New
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York, New York 10107.
6.
Based upon information and belief, John Does 1-10 are affiliates and/orsubsidiaries
of
Perseus who, in conjunction with Perseus, manufactured and sold merchandisewhich used the
Plaintiffs
photograph without his authorization.FACTUAL ALLEGATIONS
7.
On or about May 12, 1998, the Plaintiff entered into a "Theatrical Motion PictureDay Player Employment Agreement" with Cubicle, Inc. (the "Agreement") to portray thecharacter "Chotchkie's Waiter" (the "Character") in the movie
Office Space
(the "Film").
8.
The Agreement was silent as to the Producer's right to use the Plaintiffsphotograph for purposes
of
producing consumer merchandise related to the Film.
9.
The Film was released by Twentieth Century Fox Film Corporation on or aboutFebruary 19, 1999.
10.
According to the Defendants' website, the Defendants began selling the
OfficeSpace Box
of
Flair
by Jennifer Leczkowski in interstate commerce on or about October 2, 2007(the
"Box
of
Flair").
(A picture
of
the
Box
of
Flair
is attached as Exhibit
"A"
hereto).
11.
The
Plaintiffs
photograph appears on the front
of
the
Box
of
Flair.
12.
The
Box
of
Flair
includes a 32-page book and fifteen "flair" buttons. The
I
Plaintiffs photograph appears on one
of
the "flair" buttons.
13.
In 2010, the Plaintiff learned for the first time that his photograph was being usedon the
Box
of
Flair.
14.
On or about January 24, 2013, the Plaintiff requested a full accounting
ofthe
sales
of
the
Box
of
Flair.
15.
The Defendants refused to provide an accounting
of
sales.2
j
 
!
i
l
.
1
l
16.
The Defendants' use
of
the Plaintiffs photograph is likely to cause confusion,mistake or deception as to: (i) the affiliation, connection, or association
of
the Plaintiff to theDefendants; and/or (ii) as to the origin, sponsorship, or approval
of
the Defendants' goods,services or commercial activities by the Plaintiff.
17.
The Plaintiff has been and is likely to be damaged by the Defendants'manufacture and sale
of
the
Box
of
Flair
using his photograph
CAUSES OF ACTION
COUNT IFALSE DESIGNATIONS OF ORIGIN(15 U.S.C. § 1125(a))
18.
The Plaintiff repeats and realleges each
of
the allegations set forth above asthough they were fully set forth herein.
19.
15
U.S.C. § 1125(a) prevents a person from using another's photograph in a falseor misleading way that is likely to cause confusion, mistake and/or deceive as to an affiliation,connection or association20. The Defendants' use
of
the Plaintiffs photograph constitutes a false designation
of
origin, false or misleading description
of
fact, or false or misleading representation
of
fact inviolation
of
15
U.S.C. § 1125(a).21. The Plaintiff has suffered actual damages and the Plaintiff is likely to be damagedby the Defendants' manufacture and sale
of
the
Box
of
Flair
using the
Plaintiffs
photograph.3

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