Case 2:11-cv-01243-JCM -PAL Document 2

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

RAWSON & GOFF Nate Nelson, Esq. Nevada Bar No. 11669 6788 South 1300 East Salt Lake City, Utah 84121 Phone: (801) 432-8360 Fax: (801) 999-4603 nnelson@rawsongoff.com Attorney for Plaintiff KOLESAR & LEATHAM Bart Larsen, Esq. Nevada Bar No. 8538 Designated Local Attorney (for service of process purposes only) 400 South Rampart Blvd. Suite 400 Las Vegas, Nevada 89145 Phone: (702) 997-8358 Fax: (702) 362-9472 IN THE UNITED STATED DISTRICT COURT FOR THE DISTRICT OF NEVADA MICHAEL LATHIGEE, an individual ) ) Plaintiff, ) ) v. ) ) ) MICHAEL SALTMAN, an individual, 4636 WYNN OPERATOR, LLC, a Nevada Limited ) ) Liability Company, JOHN DOES I-X, and ) CORPORATE JANE DOES XI-XV. ) ) Defendants. ) ) ) ) ) )

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COMPLAINT AND DEMAND FOR JURY TRIAL CASE NO. DEPT NO.

COMES NOW Plaintiff Michael Lathigee, an individual, by and through his counsel of 25 26 27 28 record, the law firm of Rawson & Goff, for causes of action against Defendants, and each of them, as follows:

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INTRODUCTION The Foregoing Complaint for Damages and Injunctive Relief is based Upon: 1. Federal Trade Dress Infringement and Unfair Competition [Lanham Act 15 U.S.C., 43(a), 1114 and 1125]; 2. State Law Unfair Competition [N.R.S. T. 52, Ch. 597 604B, et seq.]; 3. Common Law Unfair Competition; and 4. Anti cyber-squatting Consumer Protection Act (the ACPA).

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

5. Plaintiffs Complaint arises from Defendants unauthorized use of the Plaintiffs trade dress and trademarks on its advertising and signage, and Defendants registration of certain infringing domain names. JURISDICTION AND VENUE 6. Jurisdiction of this Honorable Court is appropriate pursuant to 28 U.S. C. 1138(a) because this case arises under the laws of the United States, i.e., the Lanham Act, 15 U.S.C. 1051, et seq. 7. Jurisdiction over related supplemental state law claims is appropriate under the provisions of 28 U.S.C. 1338(b) and 15 U.S.C. 1051, et seq. 8. Venue over these claims is proper in the District of Nevada, Las Vegas Division (hereinafter the District) because each of the Defendants is subject to personal jurisdiction in the District by virtue of having committed acts of infringement therein and by having placed infringing advertisements into the stream of commerce by utilizing the Internet, wherever physically housed, to advertise their services and/or products within the District and across State boundaries knowing that said services and/or products would be advertised within the District and across state boundaries.

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Case 2:11-cv-01243-JCM -PAL Document 2

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THE PARTIES Plaintiff Michael Lathigee (hereinafter Lathigee), an individual residing in Clark

County, acquired all rights to the subject trademark, herein referenced, from Peter Rinato (hereinafter Rinato) pursuant to a loan agreement whereby Lathigee loaned cash and other good and valuable consideration to Casino Cash Advantage, LLC (hereinafter Casino Cash) to provide emergency working capital. Rinato, a principal of Casino Cash and the former owner and operator of Discreet Gentlemens Club, personally guaranteed the Casino Cash loan. Rinato

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

and/or Casino Cash failed to repay the aforementioned note. This default resulted in the transfer of all legal interests in: (i) the name Discreet Gentlemens Club and (ii) the corresponding trade dress (hereinafter the subject trademark and subject trade dress) to Lathigee, subject to a settlement agreement between the parties to the Casino Cash loan. 10. Defendant Michael Saltman (hereinafter Saltman) is an individual residing in Clark County, and is the owner of the real property where the adult cabaret, known as Discreet Gentlemens Club (hereinafter Discreet), operates. 11. Upon information and belief, Wynn Operator (hereinafter Wynn) was and now is a limited liability company or corporation organized and existing under the laws of the State of Nevada with its principal place of business at 4636 Wynn Road, Las Vegas, Nevada the location Wynn and Saltman (hereinafter collectively referred to Defendants) are using to operate an adult cabaret knows as Discreet. 12. Together, Wynn and Saltman (hereinafter collectively referred to as Defendants) placed the name Discreet Gentlemens Club into the stream of commerce by advertising their business using the exact same name and location as the former leasehold tenant, Rinato and/or Casino Cash, LLC. 13. Lathigee, having obtained all legal interests in the subject trademark and trade dress, lawfully owns the same and alleges herein that Defendants continue to unlawfully maintain the

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subject trademark and trade dress in the stream of commerce by: (i) utilizing the Internet, wherever physically housed, to advertise Defendants services and/or products within the District, knowing that said services and/or products would be advertised within the District and (ii) by utilizing signage on the physical property of Defendants adult cabaret without changing the name, trademark, and/or trade dress. 14. Upon information and belief, Lathigee alleges that individual officers and employees of Wynn live in or regularly travel to Nevada, and travel elsewhere in the United

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

States for purposes of, among other things, attending trade shows and otherwise promoting its adult cabaret with a name that infringes upon the intellectual property of Lathigee. 15. Lathigee has an application pending before the Patent and Trademark Office for the trademark Discreet Gentlemens Club in relation to the operation of a restaurant, nightclub, bar, lounge, and adult cabaret. Neither the federal trademark registration, nor the application has been abandoned, canceled, or revoked. 16. Based on the federal trademark registration, the extensive use thereof, and the intent to use them subject trademark and trade dress in the future, the exclusive rights to use the same, in connection with a gentlemans cabaret and related services, are legally and lawfully owned by Lathigee alone. 17. Defendants use of the subject trademark and trade dress are improper because Defendants are using an identical name in relation to an identical or substantially similar business; moreover, the extensive advertising and promotion of Defendants indistinguishable name, as portrayed on its signage and otherwise, has resulted in, and will continue to result in confusion in the marketplace and a conversion and infringement upon Lathigees legally protected intellectual property rights. 18. Every web site on the World Wide Web of the Internet has a unique numerical address called an Internet Protocol, comprised of four numbers ranging from 1 to 255, separated

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by decimals, such as 137.34.23.198. See e.q., America Online, Inc. v. Huang, 106 F. Supp. 2d 848, 850-53 (E.D. Va. 2000). 19. In response to the consideration that most individual users would have difficulty remembering strings of numbers, the domain name system (hereinafter DNS) was developed to make the World Wide Web more user friendly. 20. The DNS associates a unique alphanumerical name, the domain name, with each Internet Protocol address. See id.; Sportys Farm L.L.C. v. Sportsmans Market. Inc., 202 F.3d

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

489, 492-93 (2nd Cir. 2000). 21. Domain names are comprised of a letter string of up to 26 letters, known as a second-level domain (hereinafter SLD), followed by a period (referred to in the pejorative as a dot), which is then followed by a generic top-level domain (hereinafter TLD). See America Online, 106 F. Supp.2d at 850-53. 22. TLDs include .com, intended for commercial use, .net for networks, .org for nonprofit organizations, and .gov for governmental entities, among others. 23. The .com TLD, as well as several other TLDs, is an open domain, such that anyone can register a domain name in the .com TLD without oversight by the registrar. 24. Most businesses strongly prefer to create domain names for their web sites that couple the .com TLD with an SLD comprised of their distinctive trademark. See Sportys Farm, 202 F.3d at 493. 25. For example, Microsofts web site is located at <microsoft.com>, and the Coca-

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Cola Companys web site is located at <coke.com>. 26. There is no equivalent of the telephone book or directory assistance on the Internet. Therefore, consumers must intuitively locate a particular companys web site and usually guess that the companys web site is the same or similar to its name. See Panavision Intl, L.P. v. Toeppen, 141 F.3d 1316, 1327 (9th Cir. 1998).

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27. If a consumer cannot find a particular companys web site through this intuitive process, he or she will become discouraged and may fail to continue the search for that companys site. See id. 28. Given the search logic used to locate a particular web site, there is an inherent value attached to domain names that incorporate a companys trademark confusingly similar to a companys trademark, such as a common misspelling. 29. Domain names are registered on a first-come, first-served basis. See e.g, Network

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

Solutions, Inc. v. Umbro Intl, Inc., 529 S.E. 2d 80, 84-85 (Va. 2000). 30. The process of obtaining a domain name is mechanical, meaning an individual interested in registering a particular domain name must contact one of the official registrars for domain names, such as Network Solutions, Inc. If the desired domain name has not been registered, the user may register or reserve the domain name for a fee. See id. 31. There is no oversight process to ensure the person or entity registering the domain name has a legal right to use that particular name, or to ensure the domain name does not match a trademark held by someone other than the registrant. See id. 32. Unfortunately, many businesses attempting to register domain names based on their trademarks discover the domain name employing their particular mark, or one very similar, has already been registered by another since anyone can register a domain name as long as it has not previously been registered. 33. In many cases, individuals attempt to buy and then sell registered domain names to businesses employing a trademark identical to or very similar to their registered name. See Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264, 267 (4th Cir. 2001). 34. This conduct is referred to as cyber-piracy or cyber-squatting. See id. 35. Unlike a traditional trademark dispute, where identical marks can be used by multiple parties (e.g., United Airlines and United Van Lines), only one party can register a

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domain name. See Victorias Cyber Secret, Ltd. v. V. Secret Catalogue, Inc., 161 F.Supp.2d 1339, 1351 (S.D. Fla. 2001). 36. Thus, the slight differences between domain names and registered marks, such as misspellings or the addition of minor or generic words to the disputed domain names are irrelevant to the cyber-squatting analysis. See id. 37. Upon information and belief, Defendants have registered and/or are using domain names commonly known as 1) www.discreetlv.com, 2) www.discreetlasvegas.com, and 3)

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

www.discreetgentlemensclub.com, each of which are identified as and related to the adult cabaret and related services offered by Defendants. 38. Defendants actions infringe upon, dilute, and cause confusion among consumers as to the use of the trademark Discreet, as it is associated with the adult cabaret business, in the Las Vegas marketplace. FIRST CLAIM FOR RELIEF Federal Trade Dress Infringement/Unfair Competition [15 U.S.C. 1125(a)] Against All Defendants 39. Lathigee repeats and realleges the contents of paragraphs 1 through 38 of this

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Complaint as though fully set forth at length herein. 40. Lathigee alleges that he owns the trademark and trade dress known as and relating

to the name Discreet Gentlemens Club, which features a distinctive logo. 41. Lathigee alleges Defendants, and each of them, have not only substantially copied

the subject trade dress, but have misappropriated it, thereby causing confusion among the public 23 24 25 26 27 28 as to whether (i) the trademark depicted on the Internet or signage is owned and displayed by Defendants, and/or (ii) whether Lathigee authorized Defendants to use the same. 42. Defendants unpermitted use of Lathigees trademark and trade dress on the

Internet constitutes unfair competition and false designation, and therefore, infringes upon Lathigees rights under 75 U.S.C. 1125(a). Lathigee is therefore entitled to preliminary and

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permanent injunctive relief, as well as money damages. 43. Lathigee alleges that Defendants infringement is willful, thereby justifying an

award of treble damages pursuant to 15 U.S.C., 1117. SECOND CLAIM FOR RELIEF State Law Unfair Competition N.R.S. T. 52, Ch. 597 604B, et seq. Against All Defendants 44. Lathigee repeats and realleges and incorporates herein by reference each of the

allegations contained in paragraphs 1 through 43, above, as though fully set forth at length 8 9 10 11 12
RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

herein. 45. Defendants conduct described herein constitutes unfair, unlawful, and fraudulent

business practices in violation of N.R.S. T. 52, Ch. 597 604B, et seq. 46. As set forth above, defendants wrongful conduct, unless and until enjoined and

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restrained by Order of this Court will cause irreparable injury to Lathigee as set forth above. 47. Moreover, Lathigee is entitled to an Order compelling Defendants to disgorge all

unjustly retained profits as a result of their unfair, unlawful, and fraudulent business practices. THIRD CLAIM FOR RELIEF Common Law Unfair Competition Against All Defendants 48. Lathigee repeats and realleges the contents of paragraphs 1 through 47, above, as

though fully set forth at length herein and makes the same a part hereof by reference. 49. Lathigee alleges that the conduct of Defendants and each of them herein above

described, constitutes common law unfair competition and that Lathigee is entitled to an award of damages and injunctive and/or other appropriate equitable relief as will be shown at time of trial. FOURTH CLAIM FOR RELIEF Anti cyber-squatting Consumer Protection Act (ACPA) Against All Defendants 50. Lathigee repeats and realleges the contents of paragraphs 1 through 49, above, as

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though fully set forth at length herein and makes the same a part hereof by reference. 51. Lathigee alleges that the conduct of Defendants and each of them herein above

described, constitutes violations of the ACPA and that Lathigee is entitled to an award of damages, injunctive and/or other appropriate equitable relief as will be shown at time of trial. WHEREFORE, Plaintiff Lathigee prays for judgment as follows: 1. That this Court grant an injunction pursuant to the powers conferred upon it under

15 U.S.C., 1116, enjoining and restraining Defendants, their agents, servants, employees and 8 9 10 11 12
RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

anyone acting in concert with them, from directly or indirectly utilizing the name Discreet Gentlemens Club or any other service mark, word, and graphic depiction similar to the subject trademark and/or trade dress, which is likely to cause confusion, mistake, dilution, and deception; 2. That this Court grant an injunction pursuant to 15 U.S.C. 1118, ordering that all

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labels, signs, prints, packages, wrappers, receptacles, advertisement, printed, electronic or in any media whatsoever, in the possession of Defendants bearing the mark, Discreet or any other mark substantially similar to Lathigees trade dress and all electronic databases, matrixes, disks, and other means of making same shall be delivered up and destroyed, and that the domain names 1)www.discreetlv.com, 2) www.discreetlasvegas.com, and 2) www.discreetgentlemensclub.com be transferred to Lathigee, and that Defendants be enjoined from obtaining, using, or otherwise acquiring any domain name(s) that infringe upon the subject trademark and trade dress. 3. That Defendants, and each of them, be required to account to Lathigee for any and

23 24 25 26 27 28 all profits derived by Defendants from the sale of any cover charges, alcohol, food, beverages, novelties, apparel and all damages sustained by Lathigee by reason of said acts of infringement and unfair competition complained of herein in an amount no less than One Million Dollars ($1,000,000) or ten percent (10%) of Defendants gross annual profits, whichever is greater; 4. That the Court award Lathigee treble damages based on the amount of actual

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damages sustained by him pursuant to 15 U.S.C. 1117; 5. That the Court award punitive and exemplary damages against Defendants and

each of them and in favor of Lathigee in an amount as will be shown at the time of trial by reason of Defendants intentional and willful misconduct; 6. 7. For the remedies provided for under N.R.S. T. 52, Ch. 597 604B, et seq.; That the Court find this to be an exceptional case and that Lathigee be awarded

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RAWSON & GOFF, PLLC.
6788 S. 1300 E. SALT LAKE CITY, UT 84121 (801) 432-8360

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For costs of suit incurred herein; For such other and further relief as may be deemed just and proper by this

Honorable Court. JURY DEMAND Plaintiff Lathigee hereby demands a trial by jury in the above-referenced action. DATED this 2nd day of August, 2011.

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RAWSON & GOFF

/s/ Nate N. Nelson ___________________ NATE N. NELSON, ESQ. Nevada Bar No. 011669 6788 South 1300 East Phone (801) 432-8360 Fax (801) 999-4603 Attorney for Plaintiff MICHAEL LATHIGEE