United States Fallen Heroes Foundation Suit

Case 3:11-cv-00872-P Document 1 Filed 04/26/11 Page 1 of 21 PageID 1
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
UNITED STATES FALLEN HEROES §

FOUNDATION §
§
Plaintiff, § CIVIL ACTION NO.
§
vs. §
§
AMERICAN FALLEN WARRIOR §
MEMORIAL FOUNDATION §
§
Defendant, §
§
TONYA EVANS A/KA/ TONYA MUNDY §
§
Defendant, §
§
KATHRYN TAYLOR A/K/A KAT §
TAYLOR §
§
Defendant §
§
PLAINTIFF’S ORIGINAL COMPLAINT
COMES NOW, Plaintiff United States Fallen Heroes Foundation (“USFHF”), and files
this ORIGINAL COMPLAINT against the American Fallen Warrior Memorial Foundation
(“AFWMF”), Tonya Evans a/k/a Tonya Mundy (“Evans”), and Kathryn Taylor a/k/a Kat Taylor
and would respectfully show the Court as follows:
I. NATURE OF THE CASE
This is an action for cybersquatting, trademark infringement, unfair competition, and
trademark dilution under federal statutes, with pendent state and/or common law claims for
trademark infringement, deceptive trade practices, breach of contract, breach of fiduciary duty,
1 | PLAINTIFF’S ORIGINAL COMPLAINT

and intentional interference with prospective economic advantage. Plaintiff seeks damages,
attorneys’ fees, costs, and preliminary and permanent injunctive relief.
II. PARTIES
1. The United States Fallen Heroes Foundation is a corporation organized under the
laws of the State of Texas with a principal place of business in Kennedale, Texas. The USFHF is
in good standing with the Texas Comptroller of Accounts as shown by a print of the Franchise
Tax Certification of Account Status from the Texas Comptroller of Accounts website which is
attached hereto as Exhibit 1, Appendix pp. 2-3.
2. Defendant American Fallen Warrior Memorial Foundation is, upon information
and belief, a not for profit corporation organized under the laws of the state of Kansas with an
address of 3514 Clinton Parkway #370, Lawrence, Kansas 66047.
3. Defendant Tonya Evans a/k/a Tonya Mundy is, upon information and belief, an
individual having an address of 1471 Legends Cir, Lawrence, Kansas 66049 or 110 E. Sixth
Avenue, Eskridge, Kansas, 66423.
4. Defendant Kathryn Taylor a/k/a Kat Taylor is, upon information and belief, an
individual having an address of 2453 South Forrest Heights Ave, Springfield, Missouri 65809.
5. Defendant Evans is, upon information and belief, the registered name holder of
the domains <wegave50cents.com>, <igavemycoins.com>, and <afwmf.org>.
III. JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because
this action arises under 15 U.S.C. §§ 1051-1127, 15 U.S.C. § 1125, and pursuant to 28 U.S.C. §
1338 because the action arises under federal law relating to trademarks.

7. Personal jurisdiction over Defendants is proper under §§ 17.041 -17.045 of the
State of Texas’s Civil Practice and Remedies Code, pursuant to Rule 4 of the Federal Rules of
Civil Procedure and under the Due Process Clause of Fourteenth Amendment to the Constitution
of the United States of America. On information and belief, this Court has personal jurisdiction
over Defendants who have sufficient contacts with Dallas County, have engaged in tortuous
conduct within the state of Texas, and have caused harm to Plaintiff within this jurisdiction by
targeting the USFHF, a Texas based business, by infringing upon its marks “United States Fallen
Heroes Foundation” and “I Gave 50 Cents” and cyber-squatting by registering domain names
nearly identical to that used by the USFHF for the “I Gave 50 Cents” campaign as well as its
home website for the United States Fallen Heroes Foundation.
8. The exercise of jurisdiction over Defendants is reasonable, consistent, with the
constitutional principles of due process, and comports with the principles of fair play and
substantial justice.
9. A substantial part of the events or omissions giving rise to this action occurred in
the Northern District of Texas. Accordingly, venue is proper pursuant to 28 U.S.C. § 1391.
IV. STATEMENT OF FACTS
THE USFHF’S HISTORY AND TRADEMARK RIGHTS
10. On or about March 31, 2010, the USFHF filed a certificate of formation as a
nonprofit organization with the Texas Secretary of State. The USFHF was formed to construct a
memorial that will honor all United States military service members who have served in the Gulf
War, Desert Storm, Desert Shield, Operation Iraqi Freedom, Enduring Freedom, and all
peripheral U.S. military actions in the War on Terror, and that have died as a result of combat or
non-combat injuries, suicides, and/or trauma. Individual fallen soldiers will be represented by

plaques or laser-etched photographs. The USFHF uses the marks “United States Fallen Heroes
Foundation” and “I Gave 50 Cents” for its fundraising campaign.
11. Subsequent to its formation, the then-chairman Evan Walter Coleman, a/k/a
Walter Evan Coleman a/k/a Walter Raleigh Coleman, Jr. (“Coleman”) engaged in a pattern of
wrongdoing including using a forged letter from the Internal Revenue Service reflecting approval
of tax exempt status. This and Coleman’s other actions resulted in a lawsuit brought by the
Texas Attorney General. The USFHF, like those taken in by the fraudulent actions of Coleman,
was a victim as well. Pursuant to a cross-claim filed by the USFHF, the Texas Attorney General
and the USFHF reached an agreement which is attached hereto in Exhibit 2, Appendix pp.4-17
where the USFHF could continue as a lawful entity and could raise funds for its mission but
could not disburse any funds until the Internal Revenue Service granted approval of the
USFHF’s 501(c)(3) application. On April 3, 2011, the Internal Revenue Service approved the
USFHF’s status as a tax-exempt entity which is attached hereto as Exhibit 3, Appendix pp. 18-
20.
12. Subsequent to the action brought by the Texas Attorney General, the USFHF
registered the domain name <igave50cents.com> to assist in its fundraising efforts. A copy of
the WHOIS page from GoDaddy.com is attached hereto as Exhibit 4, Appendix pp. 21-23. The
goal of the I Gave 50 Cents campaign was to involve schools, communities, organizations and
individuals in fundraising efforts so that the burden of giving was minimal but widespread. A
representative sample of coverage of the launch of the campaign from the local NBC affiliate in
Tulsa, Oklahoma is attached hereto as Exhibit 5, Appendix pp. 24-26.
13. To date, the USFHF has received donations from the states of Georgia, Utah,
Texas, Montana, Wyoming, Tennessee, Colorado, Nevada, Missouri, Michigan, Virginia,

Arizona, Florida, California, Idaho, South Carolina, New York, Alabama, Wisconsin, Oklahoma,
Kansas, and Indiana as well as from the nation of Canada.
14. In addition to its extensive use of the marks “United States Fallen Heroes
Foundation” and “I Gave 50 Cents” via the websites <usfhf.org> and <igave50cents.com>, the
USFHF has partnered with schools in Utah, Oklahoma, Virginia, and Kansas to raise funds for
the USFHF memorial. A representative sample of coverage from the Fox affiliate in Tooele,
Utah is attached hereto as Exhibit 6, Appendix pp. 27-30.
15. On or about February 9, 2011, representatives of the USFHF, including Defendant
Evans traveled to Tooele, Utah to participate in a ceremony honoring six (6) fallen soldiers and
to present plaques to the families of these fallen soldiers. A copy of the invitation from the
USFHF Facebook page is attached hereto as Exhibit 7, Appendix pp. 31-32. In addition, a copy
of the advance notice given this ceremony by the local Fox affiliate in Tooele, Utah is attached
hereto as Exhibit 8, Appendix pp. 33-36.
16. The USFHF sought and obtained designs for the memorial from architects
including Nicolas Cascarano of Milwaukee, Wisconsin, Austin Hess of Mechanicsburg,
Pennsylvania, Norman Schwartz of Plantation, Florida, Teri Relyea Berbel of Mansfield, Texas,
and Troy Hines of Arlington, Texas
17. As of the date of the filing of this Complaint, the USFHF continues to extensively
use both marks “United States Fallen Heroes Foundation” and “I Gave 50 Cents” in its efforts to
continue its mission to honor the fallen soldiers.
DEFENDANTS’ WRONGFUL ACTIONS
18. On or about November 22, 2010, Defendant Evans agreed to act as Executive
Director of the USFHF. The agreement was that the position would be a volunteer position at

first due to the strictures of the settlement with the Texas Attorney General but that the position
would, as time went on, become a paid position. Defendant Evans, as Executive Director, was
intimately involved in the discussion and planning of all activities of the USFHF as well as
learning all about the workings of both the USFHF and the “I Gave 50 Cents” campaign.
19. At some point thereafter, Defendant Taylor became the Executive Assistant to
Defendant Evans. A sample email from Defendant Taylor to Defendant Evans using the email
address assigned to her by the USFHF showing the work she performed for the USFHF is
20. At first the business relationship worked to the benefit of both parties. Defendant
Evans worked tirelessly on behalf of the USFHF and, in fact, defended the USFHF in various
postings on the social website Facebook as evidenced attached hereto as Exhibits 10 and 11,
Appendix pp. 39-42.
21. After the event in Tooele, Utah on February 9, 2011, the Chairman and President
of the USFHF, Larry Summers, was approached by several individuals who inquired as to when
he would be resigning from the USFHF. As he had no plans to do so, Mr. Summers responded
he was not resigning.
22. From February 9, 2011 until the week of February 21, 2011, it became
increasingly clear that unfounded rumors were being circulated about misuse of the funds raised
at the event in Tooele and that the necessary and proper paperwork from the schools which were
to participate in the “I Gave 50 Cents” campaign had not been received. In addition, Defendants
Evans and Taylor had received but not yet signed the USFHF’s Code of Conduct as well as its
Confidentiality and Conflict of Interest policies, respectively. Defendants Evans and Taylor

were notified via email to cease all actions on behalf of the USFHF until these issues were
cleared up.
23. On or about February 24, 2011, a conference call was held between the Board of
the USFHF, its attorney, Defendants Evans and Taylor, and their counsel. During this call it was
agreed that Defendants Evans and Taylor would sign and return the USFHF’s Code of Conduct
as well as its Confidentiality and Conflict of Interest policies, respectively, as well as secure the
necessary and proper paperwork from the schools participating in the “I Gave 50 Cents”
campaign.
24. Instead of returning the paperwork as promised during the conference call
mentioned above, on or about February 25, 2011 at 12:11 p.m. (CST), Defendant Evans sent an
email attached hereto as Exhibit 12, Appendix pp. 43-44 demanding that Mr. Summers step
down as President of the USFHF by 4:00 p.m. that same day and that if he failed to do so,
Defendant Evans would resign as Executive Director. Since Mr. Summers had no plans to
resign, Defendant Evans’ resignation was accepted via email, a copy of which is attached hereto
as Exhibit 13, Appendix pp. 45-51. Defendant Taylor submitted her resignation as well which
25. Subsequent to these resignations, Defendants Evans began a campaign via the
social website Facebook to “save” the USFHF and began posting incorrect and erroneous
information about the USFHF. A sample of two such postings are attached hereto as Exhibits
15, 16, & 17, Appendix pp. 54-60 where Defendant Evans alleged that money was being spent
by the USFHF in violation of the terms of the settlement agreement between the USFHF and the
Texas Attorney General. In addition, Defendant Evans alleged that she had “100% proof” of all
these alleged wrongdoings and that she was releasing “all records, emails, recorded calls, and

documentation” to the Texas Attorney General with the clear implication that these were not
mere allegations but accusations which could be substantiated.
26. Defendants Evans and Taylor, since they were intimately involved in the
discussion and planning of all activities of the USFHF as well as learning all about the workings
of both the USFHF and the “I Gave 50 Cents” campaign used that information to create the
“American Fallen Warrior Memorial Foundation” as a not for profit corporation in Kansas as can
be seen in the print from the Kansas Secretary of State attached hereto as Exhibit 18, Appendix
pp. 61-63. A print from the website <afwmf.org> showing Defendants Evans and Taylor as
“founders” of the “American Fallen Warrior Memorial Foundation” can be seen in Exhibit 19,
Appendix pp. 64-66 which is attached hereto.
27. Defendant Evans made no attempt to hide the fact that she was attempting to co-
opt and use the USFHF’s intellectual property, mission, goodwill, and business plans. As
Exhibit 20, Appendix pp 67-68 which attached hereto shows, Defendant Evans posted that:
“We are doing everything the way it was minus the name. The name of the
foundation will change and the new website will be <wegave50cents.com>. We
are moving to Kansas and have that support as of this morning for acquiring (sic)
land. Kat and I are the only two who built this foundation from ashes. Not even
the board was involved. 501c3 (sic) filing on Monday with new name and all
promises to the schools will remain the same. The architects are coming to us.
So, i (sic) expect it will be one of their designs that you will see on the
igave50cents site. Mr. Summers made a very bad decision! Thank you for
following us. I have an email going out in a bit to the schools to let them know.”

28. As seen in Exhibit 21, Appendix pp. 69-71 which is attached hereto, Defendant
Evans even bragged to the NBC affiliate in Kansas City, Missouri that her “vision” for the “new”
memorial includes individual plaques for the service members killed, one of the primary, if not
the primary, components of the USFHF’s planned memorial.
29. A reporter from the Muskogee Phoenix, Wendy Burton, reported that one of the
schools participating in the “I Gave 50 Cents” campaign was aware of this new foundation and
was holding the funds raised pending clarification of the wrongdoings alleged by Defendant
Evans. The story can be seen in Exhibit 22, Appendix pp. 72-74 which is attached hereto and
which notes that two of the allegations made by Defendant Evans are untrue, in particular that
the Texas Attorney General was investigating the USFHF.
30. Not content to confuse consumers as to the origin and sponsorship of her “new”
yet “same” foundation, Defendant Evans interfered with the business relationships already
existing between the USFHF and one, or perhaps more, of its architects. As Exhibit 23,
Appendix pp. 75-78 which is attached hereto shows, one of the architects engaged by the
USFHF, Nicolas Cascarano, in an email to the President of the USFHF noted that “I have been
reading the facebook postings between the people and the USFHF. I was also called or contacted
by Tonya Evans last week. She did not had (sic) specific allegations but according to her you or
the fallen heroes foundation member (sic) acted inappropriate or misused funds."
31. In addition as seen in Exhibit 24, Appendix pp. 79-81 which is attached hereto,
one of the original architects engaged by the USFHF, Norman Schwartz, is now listed on the
website of the “American Fallen Warrior Memorial Foundation” as the architect of the planned
memorial. The email exchange between Mr. Schwartz and the President of the USFHF where

Mr. Schwartz expresses his concern that he cannot “ethically” have his design involved with the
USFHF is attached hereto as Exhibit 25, Appendix pp. 82-84.
32. On or about March 4, 2011, Defendant Evans registered the domain <afwmf.org>
through the domain registrar GoDaddy.com. A copy of the WHOIS report from GoDaddy.com
showing Defendant Evans as the registered name holder of the domain is attached hereto as
Exhibit 26, Appendix pp 85-87.
33. Despite the USFHF’s extensive use of its marks “United States Fallen Heroes
Foundation” and “I Gave 50 Cents”, Defendant Evans registered the domain <afwmf.org> using
the USFHF’s marks without authorization or consent. Upon information and belief, Defendant
Evans intends to use the domain as the home page for the American Fallen Warrior Memorial
Foundation and to conduct business operations she formed using the USFHF’s intellectual
property.
34. On or about March 3, 2011, Defendant Evans registered the domain
<wegave50cents.com> through the domain registrar GoDaddy.com. A copy of the WHOIS
report from GoDaddy.com showing Defendant Evans as the registered name holder of the
domain is attached hereto as Exhibit 27, Appendix pp. 88-90.
Foundation” and “I Gave 50 Cents”, Defendant Evans registered the domain
<wegave50cents.com> using the USFHF’s marks without authorization or consent. Upon
information and belief, Defendant Evans intends to use the domain as a fundraiser for the
business operations she formed using the USFHF’s intellectual property.
36. On or about March 5, 2011, Defendant Evans registered the domain
<igavemycoins.com> through the domain registrar GoDaddy.com. A copy of the WHOIS report

from GoDaddy.com showing Defendant Evans as the registered name holder of the domain is
Foundation” and “I Gave 50 Cents”, Defendant Evans registered the domain
<igavemycoins.com> using the USFHF’s marks without authorization or consent. Upon
information and belief, Defendant Evans intends to use the domain as a fundraiser for the
business operations she formed using the USFHF’s intellectual property.
COUNT I
15 U.S.C § 1114 -- FEDERAL TRADEMARK INFRINGEMENT
38. Paragraphs 1-37 are incorporated herein by reference for the purpose of providing
the initial factual allegations for this cause of action.
39. On information and belief, Defendant Evans’ unauthorized use of the domain
names <afwmf.org>, <wegave50cents.com>, and <igavemycoins.com> which do not emanate
from, or are approved or sponsored by, or affiliated with the USFHF, are calculated to and are
likely to deceive, mislead, and confuse relevant consumers. Such actions constitute trademark
infringement in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114.
40. As a proximate result of the acts of Defendant Evans as alleged herein, the
USFHF has suffered and will continue to suffer great damage to its business, goodwill,
reputation, and profits.
41. The USFHF has no adequate remedy at law for the infringement of its trademark
as alleged herein. Unless Defendant Evans’ use of the domain <afwmf.org>,
<wegave50cents.com>, and <igavemycoins.com> are permanently enjoined by the Court and the
infringing domain name transferred to the USFHF, the USFHF will continue to suffer irreparable
harm.
COUNT II
15 U.S.C § 1125(a) – FEDERAL UNFAIR COMPETITION
43. Upon information and belief, Defendant’s unauthorized, misleading, and willful
use of the USFHF marks “United States Fallen Heroes Foundation” and “I Gave 50 Cents”
and/or designations or domain name confusingly similar thereto constitutes:
(i) unfair competition/passing off;
(ii) false designation of origin;
(iii) false or misleading descriptions or representations of fact;
(iv) trademark infringement; and
(v) false advertising
which is likely to cause confusion, or to cause mistake or to deceive consumers as to an
affiliation, connection, or association between the USFHF and Defendant Evans and Taylor and,
as to the origin, sponsorship, or approval of Defendant Evans’ and Taylor’s website, in and
affecting interstate commerce, all in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §
1125(a).
44. As a proximate result of the acts of Defendant Evans and Taylor as alleged herein,
the USFHF has suffered and will continue to suffer great damage to its business, goodwill, and
reputation.
45. The USFHF has no adequate remedy at law for the infringement of its trademark
as alleged herein. Unless Defendant Evans’ and Taylor’s use of the domains <afwmf.org>,
<wegave50cents.com>, and <igavemycoins.com> are permanently enjoined by the Court

pursuant to 15 U.S.C. § 1116 and the infringing domain name transferred to the USFHF, the
USFHF will continue to suffer irreparable harm.
COUNT III
15 U.S.C. § 1125(d)(1) – ANTICYBERSQUATTING PROTECTION ACT
47. Without regard to the goods or services of the USFHF, Defendant Evans has
registered, trafficked in, and has used the domain names <afwmf.org>, <wegave50cents.com>,
and <igavemycoins.com> with a bad faith intent to profit from the USFHF mark “I Gave 50
Cents.”
48. The USFHF’s marks “United States Fallen Heroes Foundation” and “I Gave 50
Cents” are arbitrary and/or highly distinctive and are strong as a result of the USFHF’s use
within the jurisdictional limits of this Court as well as the states of Georgia, Utah, Texas,
Montana, Wyoming, Tennessee, Colorado, Nevada, Missouri, Michigan, Virginia, Arizona,
Florida, California, Idaho, South Carolina, New York, Alabama, Wisconsin, Oklahoma, Kansas,
and Indiana as well as the nation of Canada
49. Subsequent to the USFHF’s first use of the USFHF marks “United States Fallen
Heroes Foundation” and “I Gave 50 Cents” and the acquired distinctiveness of the USFHF
marks, Defendant Evans created, adopted, registered, and used the domain names <afwmf.org>,
<wegave50cents.com>, and <igavemycoins.com>
50. Such actions constitute cyperpiracy in violation of Section 43(d) of the Lanham
Act, as amended, 15 U.S.C. § 1125(d).

51. As a proximate result of the acts of Defendant Evans as alleged herein, the
USFHF has suffered and will continue to suffer great damage to its business, goodwill,
reputation, and profits.
52. The USFHF has no adequate remedy at law for the infringement of its trademarks
as alleged herein. Unless Defendant Evans’ use of the domains <afwmf.org>,
<wegave50cents.com>, and <igavemycoins.com> are permanently enjoined by the Court
pursuant to 15 U.S.C. § 1116 and the infringing domain names transferred to the USFHF
pursuant to 15 U.S.C. § 1125(d)(C), the USFHF will continue to suffer irreparable harm.
53. Accordingly, the USFHF is entitled to preliminary and permanent injunctive
relief, actual damages, statutory damages, and an order transferring the <afwmf.org>,
<wegave50cents.com>, and <igavemycoins.com> domains from Defendant Evans or her proxy
agent to the USFHF, and prohibiting Defendant Evans or her agents from using any domain
name incorporating, in any way, the USFHF marks “United States Fallen Heroes Foundation”
and “I Gave 50 Cents” or using any domain name confusingly similar to the USFHF marks.
COUNT IV
COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION
55. The unauthorized use of the <afwmf.org>, <wegave50cents.com>, and
<igavemycoins.com> domains by Defendant Evans constitutes common law service mark and
unfair competition, in violation of the common and statutory law of Texas.

COUNT V
TEX. BUS. & COM. CODE ANN. § 16.29
57. The unauthorized use of the <afwmf.org>, <wegave50cents.com>, and
<igavemycoins.com> domains as well as the continued operation of the American Fallen
Warrior Memorial Foundation by Defendant Evans and Defendant Taylor in Texas, as set out
hereinabove, has injured, and, unless enjoined, is likely to continue to injure the USFHF’s
business reputation and good will and has diluted and, unless enjoined, is likely to continue to
dilute, the distinctive quality of the USFHF marks “United States Fallen Heroes Foundation” and
“I Gave 50 Cents” by, inter alia, blurring the distinctiveness of the USFHF marks.
58. Pursuant to TEX. BUS. & COM. CODE ANN. § 16.29, the USFHF is therefore
entitled to have the Defendant Evans’ and Defendant Taylor’s unauthorized use enjoined to
prevent further injury to the USFHF’s business reputation, and goodwill, and to prevent further
dilution of the USFHF marks.
COUNT VI
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS, BUSINESS
OPPORTUNITIES, AND CONTRACTS
60. Defendant Evans has tortiously interfered with the USFHF’s existing and
potential prospective clients by virtue of her deliberate and willful actions to induce architects
and others to breach their respective contracts with the USFHF and

61. In addition, the USFHF may lose prospective fundraising opportunities from
those who deal with Defendant Evans, assume she is affiliated with the USFHF, and choose do
business with her based upon that erroneous belief.
62. Further, the manner in which Defendant Evans has acted indicates that these
actions were done with malice, such that the USFHF is entitled to recover exemplary damages
from Defendant in accord with the laws of the state of Texas.
COUNT VII
BREACH OF CONTRACT
64. The USFHF and Defendant Evans entered into a valid and enforceable oral
contract that was performable in one year. By this contract, the parties agreed that the USFHF
would engage the services of Defendant Evans as Executive Director with the understanding that
the position would be at first on a volunteer basis and, when funds were available, Defendant
Evans’ position would become a paid position. Defendant Evans agreed to act as Executive
Director.
65. The USFHF fully performed its obligation under the contract and had, in fact,
voted to make the Executive Director position a paid position and voted Defendant Evans on the
Board of Directors as an ex officio member while Defendant Evans was already planning the
theft of the USFHF’s intellectual property.
66. Defendant Evans breached the contract by using the information, contacts, and
designs she obtained while acting as Executive Director to her own advantage. Further,
Defendant Evans’ actions in planning to use all of this information was inconsistent with her
obligations under the contract she had with the USFHF to act as Executive Director.
67. Defendant Evans’ breach was material in that the USFHF had just voted to make
Evans both an ex officio member of the Board of Directors as well as to make her position as
Executive Director a paid position thus depriving the USFHF of the benefit it sought to obtain
via the contract with Defendant Evans.
68. Defendant Evans’ breach caused injury to the USFHF, which resulted in the
following damages:
(i) Cost of a substitute replacement;
(ii) Loss of business opportunity while a replacement is sought; and
(iii) Cost of delay in performance.
69. The USFHF seeks unliquidated damages within the jurisdictional limits of this
Court.
COUNT VIII
BREACH OF FIDUCIARY DUTY
71. The USFHF had a fiduciary relationship with Defendant Evans in that Evans was
given authority to act on behalf of the USFHF as its Executive Director which required
Defendant Evans to, among other responsibilities, help develop a long term strategy for the
USFHF, to provide leadership in developing programs as well as organizational and financial
plans with the Board of Directors, and to promote active and broad participation by volunteers in
all areas of the USFHF’s work.
72. In addition, Defendant Evans’ position as Executive Director carried with it the
added duties:

(i) Not to usurp corporate opportunities for personal gain;
(ii) Utmost good faith in her relationship with the USFHF;
(iii) Loyalty; and
(iv) Full disclosure of any personal interest in the subject matter she negotiated
on behalf of the USFHF.
73. Defendant Evans breached this fiduciary duty to the USFHF by failing to refrain
from self-dealing by using the privileged information she obtained via her close relationship with
the Board of the USFHF in planning, developing, and carrying out the USFHF’s mission. In
addition, Defendant Evans’ actions to undermine the Board of the USFHF and to make
scurrilous unfounded allegations against both the Board of the USFHF as well as individual
members of the Board exhibit a distinct lack of loyalty as well as a lack of good faith.
74. Defendant Evans’ breach of fiduciary duty benefited Defendant Evans in the
following ways:
(i) A ready-made and fully formed business plan;
(ii) Fundraising contacts who could be easily confused that Evans was still
acting on behalf of the USFHF; and
(iii) Architects with plans drawn up on behalf of the USFHF.
75. The USFHF’s injury resulted from Defendant Evans’ intentional act which
entitles the USFHF to exemplary damages under Texas Civil Practices and Remedies Code §
41.003(a) in that Defendant Evans deliberately intended to gain an additional, unwarranted
benefit.

COUNT IX
DEFAMATION
77. Defendant Evans published a statement by oral and written communication
asserting that both the Board of the USFHF as well as at least one member of the Board were
operating outside the law and that funds had been misused.
78. Defendant Evans written and oral statements were libel per se as defined by Texas
Civil Practices and Remedies Code § 73.001. Defendant Evans’ statement impeached the
honesty, integrity, virtue, or reputation of both the USFHF and individual members of the Board
of the USFHF.
79. Defendant Evans’ statement is false in that the USFHF acted in accord with the
settlement negotiated with the Texas Attorney General and all funds raised and spent can easily
be accounted for and were in furtherance of the mission of the USFHF.
80. Defendant Evans’ false statements injured the USFHF’s reputation and has lead to
financial injury in that certain schools who raised funds for the USFHF while Defendant Evans
was the Executive Director have refused to turn those funds over to the USFHF and some have
indicated they may give the funds to Defendant Evans and her new organization.
81. The USFHF’s injury resulted from Defendant Evans’ malice and reckless
disregard for the truth entitles the USFHF to exemplary damages under Texas Civil Practices and
Remedies Code § 41.003(a) in that Defendant Evans, as Executive Director, was in a position to
know what actions the USFHF was taking and could have, at any time, viewed the financial
records of the USFHF.

COUNT X
COMMON LAW TORT OF PASSING OFF
83. The actions by Defendant AFWMF, Defendant Evans, and Defendant Taylor, in
particular the creation of a new and competing Foundation which was presented as a mere
renaming and restructuring of the USFHF, show that the goodwill owned by the USFHF is being
damaged by the operations of all of the Defendants.
V.
PRAYER FOR RELIEF
The USFHF prays that this Court:
1. Enter judgment enjoining and restraining all Defendants and their respective
agents, servants, employees, representatives, and all other persons, firms, corporations in active
concert or participation with them, from operating or opening any business using any of the
USFHF’s marks.
2. Enter judgment enjoining and restraining all Defendants and their respective
agents, servants, employees, representatives, and all other persons, firms, corporations in active
concert or participation with them, from registering any domain identical or confusing similar to
any of the USFHF’s marks.
3. That Defendants be ordered to assign and transfer to the USFHF the domains
<afwmf.org>, <wegave50cents.com>, and <igavemycoins.com> and any and all other
registrations for any domain containing the USFHF marks, or any variant thereof, or any name or
mark confusingly similar thereto;

4. Enter judgment granting the USFHF statutory damages of $100,000.00 per
domain name for cybersquatting pursuant to 15 U.S.C. § 1117(d);
5. Enter judgment deeming this an exceptional case pursuant 15 U.S.C. § 1117(a)
and (b) and that the USFHF recover its reasonable attorneys’ fees and costs expended in
connection therewith;
6. Enter judgment in favor of the USFHF and for actual and statutory damages in an
amount to be determined by the Court, and that such damages be trebled because of the willful
acts described herein in disregard of the USFHF’s known rights;
7. That the USFHF have such other and further relief that this Court deems just,
equitable, and proper.
Respectfully submitted,
LAW OFFICE OF GARY TUCKER
/s/ Gary Tucker_______________

Gary Tucker
State Bar No. 24047002
P.O. Box 4291
Dallas, Texas 75208
Telephone: [972] 523-6158
Telecopier: [214] 666-3945
Attorney for Plaintiff

United States Fallen Heroes Foundation Suit

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United States Fallen Heroes Foundation Suit

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Case 3:11-cv-00872-P Document 1 Filed 04/26/11 Page 1 of 21 PageID 1

IN THE UNITED STATES DISTRICT COURT

UNITED STATES FALLEN HEROES §

PLAINTIFF’S ORIGINAL COMPLAINT

and would respectfully show the Court as follows:

I. NATURE OF THE CASE

This is an action for cybersquatting, trademark infringement, unfair competition, and

1 | PLAINTIFF’S ORIGINAL COMPLAINT

attorneys’ fees, costs, and preliminary and permanent injunctive relief.

attached hereto as Exhibit 1, Appendix pp. 2-3.

2. Defendant American Fallen Warrior Memorial Foundation is, upon information

address of 3514 Clinton Parkway #370, Lawrence, Kansas 66047.

Avenue, Eskridge, Kansas, 66423.

the domains <wegave50cents.com>, <igavemycoins.com>, and <afwmf.org>.

III. JURISDICTION AND VENUE

2 | PLAINTIFF’S ORIGINAL COMPLAINT

7. Personal jurisdiction over Defendants is proper under §§ 17.041 -17.045 of the

home website for the United States Fallen Heroes Foundation.

8. The exercise of jurisdiction over Defendants is reasonable, consistent, with the

IV. STATEMENT OF FACTS

THE USFHF’S HISTORY AND TRADEMARK RIGHTS

3 | PLAINTIFF’S ORIGINAL COMPLAINT

Foundation” and “I Gave 50 Cents” for its fundraising campaign.

Tulsa, Oklahoma is attached hereto as Exhibit 5, Appendix pp. 24-26.

Texas, Montana, Wyoming, Tennessee, Colorado, Nevada, Missouri, Michigan, Virginia,

4 | PLAINTIFF’S ORIGINAL COMPLAINT

Kansas, and Indiana as well as from the nation of Canada.

Utah is attached hereto as Exhibit 6, Appendix pp. 27-30.

15. On or about February 9, 2011, representatives of the USFHF, including Defendant

hereto as Exhibit 8, Appendix pp. 33-36.

including Nicolas Cascarano of Milwaukee, Wisconsin, Austin Hess of Mechanicsburg,

and Troy Hines of Arlington, Texas

continue its mission to honor the fallen soldiers.

DEFENDANTS’ WRONGFUL ACTIONS

5 | PLAINTIFF’S ORIGINAL COMPLAINT

attached hereto as Exhibit 9, Appendix pp. 37-38.

Appendix pp. 39-42.

he was not resigning.

6 | PLAINTIFF’S ORIGINAL COMPLAINT

attached hereto as Exhibit 14, Appendix pp. 52-53.

7 | PLAINTIFF’S ORIGINAL COMPLAINT

mere allegations but accusations which could be substantiated.

Appendix pp. 64-66 which is attached hereto.

foundation will change and the new website will be <wegave50cents.com>. We

8 | PLAINTIFF’S ORIGINAL COMPLAINT

the primary, components of the USFHF’s planned memorial.

the Texas Attorney General was investigating the USFHF.

9 | PLAINTIFF’S ORIGINAL COMPLAINT

USFHF is attached hereto as Exhibit 25, Appendix pp. 82-84.

Exhibit 26, Appendix pp 85-87.

34. On or about March 3, 2011, Defendant Evans registered the domain

<wegave50cents.com> through the domain registrar GoDaddy.com. A copy of the WHOIS

domain is attached hereto as Exhibit 27, Appendix pp. 88-90.

Foundation” and “I Gave 50 Cents”, Defendant Evans registered the domain

<wegave50cents.com> using the USFHF’s marks without authorization or consent. Upon

business operations she formed using the USFHF’s intellectual property.

36. On or about March 5, 2011, Defendant Evans registered the domain

10 | PLAINTIFF’S ORIGINAL COMPLAINT

attached hereto as Exhibit 28, Appendix pp. 91-93.

Foundation” and “I Gave 50 Cents”, Defendant Evans registered the domain

<igavemycoins.com> using the USFHF’s marks without authorization or consent. Upon

business operations she formed using the USFHF’s intellectual property.

the initial factual allegations for this cause of action.

names <afwmf.org>, <wegave50cents.com>, and <igavemycoins.com> which do not emanate