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EFFER, MANGELS, BUTLER & MAIWARO LLP
JAMES WESLEY KINNEA.R (
Bar No.
12477 1)
JWK@
jmbm.com
CARLA MENINSKY (Bar No. 233470)
CXM@jmbm.com
WAL'T'ER W. GOULDSBURY
III (Bar No
. 240230)
4 1 WWG
@jmbm,com
Two Embarcadero Center, Fifth Floor
5
^
San Francisco, California 94111-3824
Telephone:(415) 398-8080
6 1 Facsimile:
(415) 398-5584
7 1 Attorneys for Plaintiff REDHEAD, INC.
UNITED STATES DISTRICT COURT
NOR`n-TERN DISTRICT OF CALIFORNIA.
SAN FRANCISCO DIVISION
16
1
RED HEAD, INC., a California
corporation,
Plaintiff,
CASE NCB
`COMPLAINT-
V,
(1)
FRESNO ROCK TACO LLC, a California
limited liability company
, and DOES I.-10,
(2)
(3)(8)
Trademark Infringement -- 15 U.&C,§1114
False Designation of Origin, UnfairCompetition and False Advertising,
15 U.S.C. § 1125(a)
False Endorsement or Association andFalse Designation of Origin --- 15 U.S.C,
§ 1125(a)
California Trademark Infringement and
Dilution - Cal. Bus. & Prof. Code §§
1432
et seq.
Breach of ContractUnfair Competition --- Cal. Bus. & Prof.Code §§ 17200
et seq.
False Advertising - Cal. Bus, & Prof.
Code §§ 17500
et seq.
Right to Publicity -
Cal. Civ. Code §3344
DEMAND FOR JURY TRIAL
COMPLAINT
Iced Head
, I
nc. v. Rock Taco,
LLC, et a1.
Case 3:08-cv-05703-EMC Document 1 Filed 12/22/2008 Page 1 of 79
 
f
Plaintiff Red I lead, Inc. ("RI.II") alleges on knowledge will] respect to its owl)
2
3
follows:
actions and those of" its attorneys and on information and belief with respect to all other matters as
d
NATURE OFTHE' ACTION
5
1.
Renowned rock musician Sammy I lagar has developed trademarks, trade dress and
6
other valuable intellectual property associated with the Cabo Wabo brand, which are used in
7
connection with restaurants, nightclubs, and merchandise. The Cabo Wabo brand is highly
8
;distinctive and has achieved recognition with the consuming public as being associated with
9
premium duality goods and services. RI-11 licensed the Cabo Wabo trademarks and trade dress as
10
well as Sammy Ilagar's likeness and name to defendant Fresno Rock 'taco L,L,C ("Rock "haco") for
I I
use at the Fresno Cabo Wabo Cantina, developed, owned, and managed by defendant Rock "faco.12 JThe Fresno Cabo Wabo Cantina is itself part of the Fresno Granite Park project being developed by
N
^ L
V- 0
13
defendant Rack Taco's principal, Milton I3arbis. Rock Taco has breached the license agreement (the
L
^ a
m
14
"License Agreement") by among other things failing to pay any royalties and refusing to provide
PRWTEp ON
20
Hagar with which the Cabo Wabo brand is inextricably associated. Defendant has diverted revenues
21
from the Fresno Cabo Wabo Cantina to other projects being developed by defendant's principal,22 I3arbis, while refusing to pay royalties owed to RI-II. Defendant's conduct has caused a flood of
23
negative publicity about the Fresno Cabo Wabo Cantina and the development of which it is a part.
24
No later than November 6, 2008, RHI notified defendant that it was in breach of the license and that
25 it had seven days to cure its breaches. Defendant failed to do so. Accordingly, on November 14,
26
RHI notified defendant that the license was terminated and that defendant's right to use or display
27 any of the Cabo Wabo trademarks and trade dress, and the name and likeness of Sammy Hagar,
28
would terminate 30 days later, on December 14. In those 30 days and to date, defendant has taken
15
books and records necded to perform audits required by the license. The Fresno Cabo Wabo Cantina
16 is a disaster, as is the entire Granite Park development. The mismanagement by defendant and its
17
principal I3arbis, their failure to pay employees, vendors, lenders, and even the City of Fresno, and18 the poor duality of the goods and services they have offered under the Cabo Wabo brand have
19
denigrated and continue to devalue the Cabo Wabo brand and the name and likeness of Sammy
COMT'LAWT
RF,CYCLCD PAPER li
-
80548M
Re
Head, Inc. v. Rock Taco, LLC, et al.
Case 3:08-cv-05703-EMC Document 1 Filed 12/22/2008 Page 2 of 79
 
I
3
Wabo tradeniarks and trade dress and the name and likeness of Sang iy Hagar causes further4 ;iirreparablc harm to those valuable intellectual properties.
2.
The License
Agreement
provides that its
terns
are confidential.
Accordingly, R111
I
6
has sought leave to file the License Agreement under seal. The face page of the License Agreementvirtuall.) no steps to remove or cease use of the Cabo Wabo trademarks and trade dress or the nanic
and likkcness of Sammy l-lagar. 1"very day that defendant continues in operation while rising the Cabo
7
is attached as
Exhibit A to the
filed copy of the
Complaint.
S !
JURISD
I
CT
I
ON AND VENUE
9
3.
This
is an action for trademark infringement
,
unfair competition, false advertising
10
and false endorsement in violation of the
Lanham Act, 15, U.S.C. §§
1051
et seq.,
and for breach of
I 1
contract
,
state law trademark infringement
,
unfair competition under California Business and
12
Professions Code §§ 17200
el seg.,
false advertising under Cal. Bus. & Prof. Code §§ 17500
el seq.,
a
13
and infringement of the right to publicity under California state law.
m
14
4.
The Court has original subject matter jurisdiction over the Lanham Act claims fior
15
relief under 15 U.S.C. § 1121(a) and 28 U.S.C. §1338(x), The Court has supplemental jurisdiction
16
over the claims for relief arising under California law under 28 U.S.C. § 1367.
17
5.
The Court has personal jurisdiction over defendant because defendant Rock Taco is a
18
California entity with its principal place of business in California during the time relevant to this
19
complaint.
20
6.
Venue is proper in this district under 28 U.S.C. § 1391(b) because this is the district
21
in which Plaintiff and Defendant entered into the License Agreement that is at issue.
22
7.
Jurisdiction and venue is additionally proper in this district under paragraph 19 of the
23
License Agreement.
24
PARTIES
25
8.
Plaintiff Red Head, Inc. is a California Corporation located in Marin County,
26
California.
RI-11's business is to market and license the intellectual property created by Sammy Hagar
27 as well as his likeness and name.
28
9.
Fresno Rock Taco LLC ("Rock 'T'aco") is a California Limited Liability Corporation
PRINTI'D ON
RTCYCL
.
ED PAPER
-2-
COMPLAINT
805482v2
Reel Head,
Inc, v
.
flock Taco
,
GIC, el al.
Case 3:08-cv-05703-EMC Document 1 Filed 12/22/2008 Page 3 of 79
of 00

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