Case 3:16-cv-00544

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EXHIBIT 5

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Case 3:16-cv-00544
111 Park Place

Attorneys at Law

Erik M Pelton
John C. Heinbockel"'"'
Benjamin D. Pelton**"'

Document
1-7
*NJ DC Bar

Falls Church. VA 22046

T: 703.525.8009
F: 703.525.8089

Filed 03/29/16

Page 2 of 20

**NY Bar
... VA DC & NY Bar
erikpelton.com

of counsel

Erik M Pelton & Associates. PLLC

March 16, 2016

SENT VIA FEDEX

Monika Blunder
c/o Wall Group/LA
518 North La Cienega Blvd.
Los Angeles, CA 90048
AND VIA CERTIFIED MAIL TO

cc:

Monika Blunder
16868 Adlon Rd.
Encino, CA 91436

cc:

Zoe Brenneke
9601 Charleville Blvd., Apt. 4
Beverly Hills, CA 90212

cc:

Zoe Brenneke
11710 SW Summerville Ave.
Portland, OR 97219

cc:

Whois Privacy Protection Service, Inc.

PO Box639
Kirkland, WA 98083

cc:

Name.com Inc. Hosting

414 14th Street; #200
Denver, Colorado 80202

AND VIA EMAIL TO

info@monikablunder.com
zoe@highbrow.com
editorial@highbrow.com
info@highbrow.com

FOR SETTLEMENT PURPOSES ONLY - F.R.E. 408

RE:

Unauthorized use of "HIGHBROW" trademark and highbrow.com domain name

Dear Monika Blunder and Zoe Brenneke:

Experience is our trademark.

Trademark is our experience.

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This law firm has been retained by Tara Taghizadeh, fowiding editor and publisher of Highbrow
Magazine, in regard to the Highbrow trademark infringement matter. Ms. Taghizadeh's prior
attorney sent you two letters, but no response was received. We write to make a final effort to
notify you regarding the seriousness of this matter before both parties incur the costs of
litigation.
Under the Lanham Act, federal law grants the owner of a trademark the exclusive right to use

that mark and to prevent use by others of trademarks that are likely to cause consumer confusion
with their trademark. Ownership of a federal trademark registration, such as that owned by Ms.
Taghizadeh, provides additional benefits, including conferring nationwide rights of priority on its
owners and providing constructive notice to all about the rights in the mark and its ownership.

The Lanham Act also gives the owner of a registered trademark the right to sue, to seek an
injunction, to collect attorney fees, and to collect treble damages or statutory damages of
up to $150,000.
In the Fourth Circuit, the test for trademark infringement is whether there is a 'likelihood of
confusion' based on a number of factors: 1) the strength or distinctiveness of the plaintiff's mark
as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the
similarity of the goods or services that the marks identify; (4) the similarity of the facilities used
by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant's
intent; (7) actual confusion; (8) the quality of the defendant's product; and (9) the sophistication
of the consuming public. George & Co., LLC v. Imagination Entm 't Ltd., 575 F.3d 383, 393 (4th
Cir. 2009). The factors in other circuits are similar across the United States as well.
As described in the prior letters, Highbrow Magazine is a general-interest online magazine
covering news, politics, media, arts artd entertainment, food, and travel. Highbrow Magazine
was founded in 2011 by Tara Taghizadeh, a veteran reporter and writer, with the goal of
featuring thought-provoking, intelligent writing with an edge. Ms. Taghizadeh's investments in
the Highbrow Magazine brand have included obtaining Trademark Registration No. 4,050,814
from the U.S. Patent and Trademark Office for HIGHBROW MAGAZINE for use in
connection with "Providing on-line magazines in the field of general interest, namely, arts,
entertainment, news and politics." See attached registration certificate. For more infom1ation
about Highbrow Magazine, see http://www.highbrowmagazine.com. As a result of these
investments in the Highbrow Magazine brand name, Ms. Taghizadeh must protect her mark
and prevent consumer confusion.
Highbrow.corn's use of the "Highbrow" name is nearly identical to Ms. Taghizadeh's
HIGHBROW MAGAZINE trademark for overlapping and related services. The term
HIGHBROW is the dominant element of the HIGHBROW MAGAZINE trademark, and the
presence of generic information such as a top-level domain (.corn) or the word "Magazine" do
not distinguish the brands. Ms. Taghizadeh has used the HIGHBROW MAGAZINE trademark
since 2011, while Highbrow.corn appears to have only been launched in November 2015. Ms.
Taghizadeh and Highbrow Magazine have clear priority of use of the Highbrow name. Given
that Ms. Taghizadeh' s services and your services arc both on-line publishing, there can be little
doubt that a likelihood of confusion exists under the law.

Letter to Highbrow.com
erikpelton corn

Monika Blunder and Zoe Brenneke

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Highbrow.corn's continued use of the Highbrow name for on-line publications is very likely to
cause conswner confusion and could damage Mr. Taghizadeh and Highbrow Magazine's
reputation and goodwill. Moreover, Highbrow.corn's use of the Highbrow name could weaken
the trademark rights of Ms. Taghizadeh and Highbrow Magazine and violates the Lanham Act
protections against trademark infringement and unfair competition. Jn addition, your registration
and use of the highbrow.com domain name may also constitute violation of the AntiCybersquatting Act (ACPA), which provides for statutory damages of up to $100,000 per
domain name separate from the damages available for trademark infringement.
As a result of the foregoing, we therefore insist that Highbrow .com immediately cease using
the Highbrow name and remove all references to "Highbrow" from your on-line
publications. In particular, Ms. Taghizadeh demands that, no later than April 15, 2016,
Highbrow.com:

cease all current and future use of the Highbrow name;

transfer to Ms. Taghizadeh ovmership of all domain names and social media accounts
related to the Highbrow name;
destroy any printed materials or other references to Highbrow.corn's Highbrow name;
and
confirm in writing your agreement to these terms.

Trademark infringement is a serious matter. Continued failure to respond to Ms. Taghizadeh's

inquiries may reflect on your intent and the strength of your defenses should this matter go to
court. Ms Taghizadeh has instructed us to file the attached lawsuit for trademark
infringement in Federal court in the event that we do not receive a favorable response from
you in the next two weeks.

If you respond promptly to confirm your intent to comply with these demands and undertake
reasonable precautions to avoid confusion, Ms. Taghizadeh and Highbrow Magazine will be
willing to cooperate with you to ease the transition. If not, Ms. Taghizadeh will consider taking
any necessary legal steps to protect her consumers from confusion and protect the goodwill and
reputation of Highbrow Magazine. Note that Ms. Taghizadeh does not wish to prevent you from
continuing your venture to "Explore the lives of intriguing influencers through the lens of
beauty" but merely to end the trademark infringement and confasion resulting from your use of
the "Highbrow" name.
Note that we have also sent this letter to your domain registrar and Web hosting company, which
means that they may be liable for contributory infringement for any continuing trademark
infringement subsequent to receipt of this notice.

If you wish to discuss this letter or any alternative proposals, please contact me directly or
through your attorney. I can be reached by email at erik@erikpelton.com or by phone at (703)
525-8009.

Nothing contained in or omitted from this Jetter shall be used to prejudice the rights and remedies
of Highbrow Magazine or Tara Taghizadeh, all such rights hereby expressly reserved.

Letter to Highbrow.com
enkpelton com

Monika Blunder and Zoe Brenneke

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Erik M. Pelton,
Attorney at Law
ERIK M. PELTON & ASSOCIATES, PLLC

cc:

Tara Taghizadeh

Enclosures
USPTO Trademark Reg. No. 4,050,814
Complaint

Letter to Highbrow. com - Monika Blunder and Zoe Brenneke

enkpeltan com

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HIGHBROW MAGAZINE
Reg. No. 4,050,814
Registered Nov. 1, 2011

1AGTUZADEIL lAR.A (l;:'I! \l,;l) $TATES INDJYJDUALJ

llll6 PR.ELUDE DRlVF

Int. Cl.: 41

FOR: PROVJ()!NG ON-LINE MAGAZ:JNJ'.'<; IN Tilt F!CtD 01' <H:iN'ERAL !NTLRr.ST,

NAMELY, ARJS, ENTERTAINMENT,
AND J"OUTICS, !".\.'CJ .ASS 41 (li.S.
100.

vrnNNA,VA 2Zl82

J()I AND 107)

SERVICE MARK
PRl:'<CIPAL REGISTER

rm.:n

t:SJ::

I; IN COMMERCb l:\- t8-:'.Wll.

111F MARK CONSJSTS OF

CllAR.'\CTFRS WITI!OFT CJ.A.JM TO ANY PAR
T!Cl,,ILARFON'r. STYLE, '.ill!,;, Oil COLOR
NO CLAIM

'!O T!Ui

rnr ).l.\RK AS SUOW'N.

JUGHl

ro USL

'MAGAZINE". APART l'ROM

SN SS-'.21'.l.915, l'ILFD l-li\.2!11 l

tLLr;N iHJKNS, bXAlvfJNlN(i ATfORNf:.Y

Letter to Highbrow.com - Monika Blunder and Zoe Brenneke

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
TARA TAGHIZADEH
Plaintiff,

v.

Civil Action No:

------

MONIKA BLUNDER
AND
ZOE BRENNEKE
d/b/a/ HIGHBROW
Defendants.

COMPLAINT
Plaintiff Tara Taghizadeh (hereinafter, "Plaintiff"), by and through its undersigned counsel, for
its Complaint against Defendants Monika Blunder and Zoe Brenneke, d/b/a Highbrow.com
(hereinafter, "Defendants") alleges the following.

NATURE OF THE ACTION

1.

This is an action for federal trademark infringement under 15 U.S.C. 1114(1);

trademark infringement, unfair competition, and false designation of origin under 15 U.S.C.
l 125(a); trademark infringement under Va. Code Ann. 59.1-92.12; common law trademark
infringement and unfair competition; and violation of the Anticybersquatting Consumer
Protection Act under 15 U.S.C. l 125(d).

THE PARTIES

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2.

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Plaintiff is an individual with an office and principal place of business at 9430

Lakeside Drive, Vienna, Virginia, United States 22182. Plaintiff is the sole owner of Highbrow
Magazine, an online publication.
3.

Upon information and belief, Defendant Blunder is an individual with a principal

place of business c/o Wall Group/LA, 518 North La Cienega Blvd., Los Angeles, CA 90048.
4.

Upon information and belief, Defendant Brenneke is an individual doing business

with Defendant Blunder.

5.

Upon information and belief, Defendant Brenneke's principal place of business is

9601 Charleville Blvd., Beverly Hills, CA 90212.

6.

Upon information and belief, Defendants are general partners in

HIGHBROW.com, an online publication.

JURISDICTION AND VENUE

7.

This action arises under the trademark laws of the United States, 15 U.S.C. 1051

et seq. and involves federal trademark rights and federal Lanham Act violations. Federal
question jurisdiction is conferred pursuant to 15 U. S.C. 1121 (actions arising under the Federal
Trademark Act) and 28 U.S.C. 1331, 1332, and 1338 (acts of Congress relating to trademarks
and unfair competition). The amount in question herein exceeds $75,000. Venue is proper in this
District pursuant to 28 U.S.C. 139l(b) and (c).
8.

Supplemental jurisdiction of the claims involving the Defendants' trademark

infringement under Va. Code Ann. 59.1 et seq., common law trademark infringement and
unfair competition is conferred pursuant to 28 U.S.C. 1367(a) because Plaintiff's state law and
common law claims are so related to federal claims within the Court's original jurisdiction that
they form part of the same case or controversy under Article III of the Constitution of the United
States.
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9.

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This Court has personal jurisdiction over the Defendants because the Defendants

transact business in Virginia, supply services within Virginia, engage in a persistent course of
conduct in Virginia and expect, or should reasonably expect, their acts to have legal
consequences in Virginia
10.

Venue is proper in the United States District Court for the Eastern District of

Virginia pursuant to 28 U.S.C. 1391 in that a substantial part of the events giving rise to the
claims occurred in this District, a substantial part of the property that is the subject of this action
is situated in this district, and the Defendants expect, or reasonably should expect, their acts to
have legal consequences in this district.
PLAINTIFF'S VALUABLE RIGHTS
11.

Plaintiffhas been in the business of conducting an online magazine publication

and website in the fields of general interest, namely, arts, entertainment, news and politics since
2011. Plaintiff has been using the marl< HIGHBROW MAGAZINE in connection with its online
magazine services since 2011. Plaintiff has been using the logo below in connection with
Plaintiffs online magazine services since 2011.

12.

Plaintiffs online magazine features articles, bylines, and contributions from

numerous authors.
13.

Plaintiffs online magazine features online advertisements.

14.

Since 2011, Plaintiff has expended substantial amounts of time, effort, and money

in developing, advertising and promoting its services under its HIGHBROW MAGAZINE
name and logo.

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15.

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Plaintiff is the owner of U.S. Trademark Registration No. 4,050,814, registered in

the United States Patent and Trademark Office ("US PTO") for the mark HIGHBROW
MAGAZINE for use in connection with "Providing on-line magazines in the field of general
interest, namely, arts, entertainment, news and politics." The federal USPTO registration is valid
and subsisting. (Ex. A.)
16.

Beginning at least as early as August of 2011, Plaintiff created and began to use a

website located at <highbrowmagazine.com<, reflecting use of the HIGHBROW MAGAZINE

trademark. (Ex. B.)
17.

As a result of Plaintiff's long time reputation of providing quality online

magazine services and its continuous use of the HIGHBROW MAGAZINE mark, the
HIGHBROW MAGAZINE mark has come to serve as a unique source identifier for services
emanating from Plaintiff.

DEFENDANT'S INFRINGING ACTS

18.

Upon information and belief, Defendants registered the domain <highbrow.com<

in August 2015. (Ex. C.)

19.

Upon information and belief, Defendants began to operate a website located at

<highbrow.com< in November 2015. (Ex. D.)

20.

Defendants' website located at <highbrow.com< offers online publications,

namely, the publication ofblogs, articles, and reviews.

21.

By a letter dated December 9, 2015, sent via certified mail, Plaintiff provided

written notice of Plaintiff's rights to the HIGHBROW MAGAZINE mark and demanded that
Defendants immediately cease and desist from any use of the Infringing Mark, as well as Internet
domains and social media associated with the Infringing Mark. (Ex. E.). After receipt of that

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letter, Defendants did not respond to Plaintiff and continued to use the infringing Mark in direct
competition with Plaintiff.
22.

By a letter dated December 30, 2015, sent via certified mail, Plaintiff again

provided written notice of Plaintiff's rights to the HIGHBROW MAGAZINE mark and
demanded that Defendants immediately cease and desist from any use of the Infringing Mark, as
well as Internet domains and social media associated with the Infringing Mark. (Ex. F. ).
Defendants once again did not respond to Plaintiff and continued to use the infringing Mark in
direct competition with Plaintiff.
COUNT ONE:
INFRINGEMENT OF FEDERAL TRADEMARK REGISTRATION NO. 4,050,814
23.

Plaintiff hereby realleges and incorporates by reference the allegations of

paragraphs 1 through 22 of this Complaint as if fully set forth herein.

24.

This cause of action arises under the trademark laws of the United States, 15

U.S.C. 1114.
25.

Notwithstanding Plaintiff's well-established prior federal and common law rights

in the HIGHBROWN MAGAZINE mark, Defendants have infringed Plaintiff's mark in

interstate commerce in violation of Section 32 of the Lanham Act, 15 U.S.C. 1114 by various
acts, including but not limited to, the publication, promotion, and sale of advertising of an online
publication under the name "HIGHBROW" of a type virtually identical to the type of online
publication offered by Plaintiff, and the registration and use of the domain name
<highbrow.com<.
26.

Defendants' use of the Infringing Mark in connection with online publications is

without permission or authority of Plaintiff and said use is likely to cause confusion, to cause
mistake, and/ or deceive.
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27.

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Defendants' use of the Infringing Mark in connection with online publications has

been made notwithstanding Plaintiff's prior established rights in the trademark HIGHBROW
MAGAZINE and with both actual and constructive notice of Plaintiff's federal registration
rights under 15 U.S.C. 1072.
28.

Defendants' adoption and use of the Infringing Mark has caused documented

instances of confusion, mistake, or deception as to source, association, affiliation or sponsorship

of its goods and services.
29.

Defendants' continued use of the Infringing Mark is likely to cause further

confusion, mistake or deception as to source, association, affiliation or sponsorship of its goods

and services. Specifically, customers in the United States who encounter Defendants' goods and
services are likely to mistakenly believe that such goods and services emanate from, are related
to or are otherwise authorized, sponsored or endorsed by Plaintiff.
30.

Upon information and belief, Defendant's infringing activities have caused and,

unless enjoined by this Court, will continue to cause, irreparable injury and other damage to
Plaintiff's business, reputation, and goodwill in its federally registered HIGHBROW
MAGAZINE trademark, for which Plaintiff has no adequate remedy at law.

COUNT TWO:
FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION
UNDER 15 U.S.C. 1125(A)
31.

Plaintiff realleges and incorporates by reference the allegations of Paragraphs 1

through 30 of this Complaint as if fully set forth herein.

32.

This cause of action arises under the trademark laws of the United States, 15

U.S.C. 1125(a).

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33.

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Defendants have adopted and are now using in interstate commerce colorable

imitations of Plaintiff's HIGHBROW MAGAZINE mark for services that are substantially
similar, if not identical, to those offered by Plaintiff.
34.

Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to be
confused or deceived as to the affiliation, connection, or association of Defendants with Plaintiff.
35.

Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to
mistakenly attribute Plaintiff's reputation and the properties and reputation of Plaintiff's services
with those of the Defendants.
36.

Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to be
confused or deceived as to the origin, sponsorship, or approval of Defendants' service and
commercial activities by Plaintiff.
37.

Defendants' use of the Infringing Mark in connection with its services constitutes

false designation of origin and unfair competition, in violation of Section 43( a) of the Lanham
Act, 15 U.S.C. 1125(a).
38.

Upon information and belief, Defendants' wrongful activities have caused, and

unless enjoined by this Court will continue to cause, irreparable injury and other damage to
Plaintiff's business, reputation, and goodwill in its HIGHBROW MAGAZINE mark, for which
it has no adequate remedy at law.

COUNT THREE:
VIOLATION OF THE ANTICYBERSQUATING CONSUMER PROTECTION ACT

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39.

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Plaintiff realleges and incorporates by reference the allegations of paragraphs 1

through 38 of this Complaint as if fully set forth herein.

40.

This cause of action arises under the trademark laws of the United States, 15

U.S.C. l 125(d).
41.

Defendants' <highbrow.com< domain name is confusingly similar to Plaintiff's

HIGHBROW MAGAZINE mark because, inter alia, the terms "Highbrow" and "Highbrow
Magazine" are confusingly similar in sound, appearance, and meaning.
42.

Both Plaintiff and Defendants offer online publication services, and therefore the

term "magazine" does nothing to distinguish Defendants' <highbrow.com< domain name from
Plaintiff's HIGHBROW MAGAZINE trademark and Plaintiff's related
<highbrowmagazine.com< domain name.
43.

Upon information and belief, the HIGHBROW MAGAZINE trademark was

registered with the USPTO and was entitled to the full protection of the Lanham Act at the time
Defendants registered and/or began using the <highbrow.com< domain name.
44.

Upon information and belief, the Defendants have no rights in the HIGHBROW

MAGAZINE trademark, or in any similar marks, logos, or other source indicia that predate
Plaintiff's first use in commerce of the HIGHBROW MAGAZINE trademark.
45.

Upon information and belief, the Defendants did not conduct business as

"Highbrow" prior to the registration of the <highbrow.com< domain name in or around August
2015.
46.

Upon information and belief, Defendants registered the <highbrow.com< domain

name with a bad faith intent to profit thereby.

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47.

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Upon information and belief, Defendants have used and are using the

<highbrow.com< domain name with a bad faith intent to profit thereby.

48.

Defendants' bad faith is evidenced by, inter alia: registration of a domain name

that incorporates the term HIGHBROW that is confusingly similar to Plaintiff's HIGHBROW
MAGAZINE mark; Defendants' actual and constructive notice of Plaintiff's continuous and
exclusive use of the HIGHBROW MAGAZINE mark in connection with online publications;
andh Defendants' refusal to cease and desist using the <highbrow.com< domain name despite
Plaintiff's demands.
49.

Defendants' unlawful conduct constitutes cybersquatting in violation of the

Anticybersquatting Consumer Protection Act, 15 U.S.C. l 125(d).

50.

Defendants' deliberate acts of cybersquatting have caused great injury and

damage to Plaintiff and Plaintiff's goodwill.

51.

As a result, Plaintiff has suffered and continues to suffer irreparable injury, for

which it has no adequate remedy at law.

COUNT FOUR:
COMMONWEALTH OF VIRGINIA TRADEMARK INFRINGEMENT
52.

Plaintiff realleges and incorporates by reference the allegations of paragraphs 1

through 51 of this Complaint as if fully set forth here.

53.

This cause of action arises under the laws of the Commonwealth of Virginia, Va.

Code Ann. 59.1-92.12.

54.

Defendants have adopted and are now using in interstate commerce colorable

imitations of Plaintiff's HIGHBROW MAGAZINE mark for services that are substantially
similar, if not identical, to those offered by Plaintiff.

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55.

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Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to be
confused or deceived as to the affiliation, connection, or association of Defendants with Plaintiff.
56.

Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to
mistakenly attribute Plaintiff's reputation and the properties and reputation of Plaintiff's services
with those of the Defendants.
57.

Defendants' use of colorable imitations of Plaintiff's mark in connection with

directly competing services has caused and will cause consumers and potential customers to be
confused or deceived as to the origin, sponsorship, or approval of Defendants' service and
commercial activities by Plaintiff.
58.

Defendants' use of the Infringing Mark in connection with its services constitutes

false designation of origin and unfair competition, in violation of the laws of the Commonwealth
of Virginia, Va. Code Ann. 59.1-92.12.
59.

Upon information and belief, Defendants' wrongful activities have caused, and

unless enjoined by the this Court will continue to cause, irreparable injury and other damage to
Plaintiff's business, reputation, and goodwill in its HIGHBROW MAGAZINE mark, for which
it has no adequate remedy at law.

COUNT FIVE:
UNFAIR COMPETITION
60.

Plaintiff realleges and incorporates by reference the allegations of paragraphs 1

through 59 of this Complaint as if fully set forth herein.

61.

This cause of action arises under common law.

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62.

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Defendants' aforementioned conduct constitutes unfair competition under the

laws of the Commonwealth of Virginia.

63.

Defendants' acts are likely to cause and/or have caused confusion, mistake, and/or

deception among consumers, potential consumers, the trade, and the public.
64.

Upon information and belief, Defendants' wrongful and deceptive activities have

caused, and unless enjoined by this Court will continue to cause, irreparable injury and other
damage to Plaintiff's business, reputation, and goodwill in its HIGHBROW MAGAZINE
trademark for which Plaintiff has no adequate remedy at law.

PRAYER FOR RELIEF

65.

WHEREFORE, Plaintiff requests relief from the Court as follows:

a)

enter judgment in favor of Plaintiff and against the Defendants.

b)

that each Defendant and its agents, officers, sales representatives, servants,

employees, associates, attorneys, successors and assigns, and any and all persons or
entities acting by, through, under or in active concert or in participation with any or all of
them, be enjoined preliminarily and permanently by Order of this Court from doing,
abiding, causing or abetting any of the following:
1.

directly or indirectly infringing Plaintiff's HIGHBROW

MAGAZINE mark;
11.

from passing off, inducing or enabling others to sell or pass off,

any of Defendants' goods or services as originating from Plaintiff, or sponsored,

approved, or authorized by Plaintiff;
111.

using the infringing domain name, <highbrow.com<;

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1v.

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directly or indirectly engaging in any acts or activities calculated to

trade upon Plaintiff's HIGHBROW MAGAZINE mark, and/or the reputation or

good will of Plaintiff, or in any manner to complete with Plaintiff unfairly;
v.

using the HIGHBROW name or the HIGHBROW MAGAZINE

mark in the sale, offer for sale, promotion, advertising, marketing and/or
distribution of Defendants' services, or any mark which is a variant of, simulates,
or is a colorable imitation of, or imitates Plaintiff's HIGHBROW MAGAZINE
mark, in a manner that is likely to deceive, falsely describe or misrepresent the
source of Defendants' goods or services and thereby create confusion among the
purchasing public or trade;
v1.

further violating Plaintiff's property rights and goodwill; and,

vu.

from otherwise competing unfairly with Plaintiff in any manner

whatsoever.
c)

that Defendants be required to modify their promotional materials,

website, advertisements, social media and other communications to the public in the
possession or under their control bearing thereon any material or representations to
remove the infringing HIGHBROW mark;
d)

that Defendants take all necessary and appropriate steps to recall for

destruction all advertising and other materials and advertisements bearing Defendants'
infringing HIGHBROW mark or any colorable imitation of Plaintiff's HIGHBROW
MAGAZINE trademark, and that Defendants be required to remove such infringing
marks from their website, promotional materials, social media, advertisements, and other
writings;

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e)

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that Defendants be required to transfer immediately to Plaintiff the

infringing domain name, <highbrow.com<;

f)

that Plaintiff be awarded her actual damages and/or a disgorgement of

Defendants' profits, direct and indirect, for Defendants' infringements in an amount to be

determined at trial, to be increased to the maximum permitted by law;
g)

that the Court award statutory damages to Plaintiff pursuant to 15 U.S.C.

1117 (a), (b), (c) and (d);

h)

that the award of Plaintiff's damages and/or Defendants' profits be trebled

as a result of Defendants' willful and deliberate infringement of Plaintiff's rights;

i)

that the Court finds this case to be exceptional;

j)

that the Court award Plaintiff her costs, including attorneys' fees, and an

assessment of interest;
k)

that the Court award damages to Plaintiff on the common law cause of

1)

that Defendants be directed to file with the Court and to serve on

action;

Plaintiff's counsel within ten (10) days after issuance of an injunction, a report in writing,
under oath, setting forth in detail the manner and form in which Defendants have
complied with the injunction; and
m)

that Plaintiff be awarded such other relief as this Court deems just and

proper.
JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.

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Case 3:16-cv-00544

Dated:

, 2016

- - - - - -

Document 1-7

Filed 03/29/16

Page 20 of 20

Respectfully Submitted,

ERIK M. PELTON & ASSOCIATES, PLLC

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