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JS 44C/SDNY REV. 5/2010

CIVIL COVER SHI 0 fliJ :iI~ ~

,_._._, _ .. Thll.,J.S-4 . i heetand the information contained herein neither ce 0 uPPlem'*"J'ing and servi . 3

J' U II 'U'.,' l!le~1}iTo~~~y;'~'ers as required by law, except as provided by local rules of court. This form, approved 2 .

_'.1'Jl!JJm~ffiVJr~t;the United States in September 1974, is required for use of the Clerk of Court for the purpose of

initiating the civil docket sheet.

DEFENDANTS

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ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)

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CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE) (DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Has this or a similar case been previously filed in SONY at any time? No? ~ Yes? 0 Judge Previously Assigned

If yes, was this case Vol.D Invol. D Dismissed. No DYes D If yes, give date

& Case No.

NATURE OF SUIT

(PLACE AN [x] IN ONE BOX ONL Y)

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ACTIONS UNDER STATUTES

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

TORTS

PERSONAL INJURY [ ) 610

[ )620 [ ) 362 PERSONAL INJURY -

MED MALPRACTICE [1625

[ 1 365 PERSONAL INJURY PRODUCT LIABILITY

[ ) 368 ASBESTOS PERSONAL INJURY PRODUCT I ) 630

LIABILITY [ ) 640

[ ]650

PERSONAL PROPERTY [ ]660

[]370 OTHER FRAUD [ ]690

[ ] 371 TRUTH IN LENDING

I ] 380 OTHER PERSONAL

PROPERTY DAMAGE LABOR {)385 PROPERTY DAMAGE

PRODUCT LIABILITY []710

[ ]720 [ ]730

AGRICULTURE OTHER FOOD & DRUG

DRUG RELATED SEIZURE OF PROPERTY

21 USC 881 LIQUOR LAWS RR&TRUCK AIRLINE REGS OCCUPATIONAL SAFETYIHEALTH OTHER

[ )422 APPEAL

28 USC 158

[ ]423 WITHDRAWAL 28 USC 157

I ) 400 STATE

REAPPORTIONMENT I ) 410 ANTITRUST

[ ]430 BANKS & BANKING I ) 450 COMMERCE

[ ) 460 DEPORTATION

[ ) 470 RACKETEER INFLUENCED & CORRUPT ORGANIZATION ACT (RICO)

[ 1 480 CONSUMER CREDIT

{ ) 490 CABLE/SATELLITE TV [ ) 810 SELECTIVE SERVICE [ ) 850 SECURITIESI

COMMODITIESI EXCHANGE

[ ) 875 CUSTOMER CHALLENGE

12 USC 3410

[ ) 890 OTHER STATUTORY ACTIONS

[ ] 891 AGRICULTURAL ACTS [ ) 892 ECONOMIC STABILIZATION ACT

[ )893 ENVIRONMENTAL MAnERS

[ ) 894 ENERGY ALLOCATION ACT

[ ) 895 FREEDOM OF INFORMATION ACT

[ ) 900 APPEAL OF FEE DETERMINATION UNDER EQUAL ACCESS TO JUSTICE

[ I 950 CONSTlnJTIONALITY OF STATE STATUTES

PERSONAL INJURY

CONTRACT

[ ]310 AIRPLANE

[ ) 315 AIRPLANE PRODUCT LIABILITY

[ ]320 ASSAULT, LIBEL & SLANDER

[ ) 330 FEDERAL EMPLOYERS' LIABILITY

[ ) 340 MARINE

{ ) 345 MARINE PRODUCT LIABILITY

[ ) 350 MOTOR VEHICLE

[ ) 355 MOTOR VEHICLE PRODUCT LIABILITY [ )360 OTHER PERSONAL INJURY

[ ]110 INSURANCE [ )120 MARINE

[ )130 MILILER ACT [ ]140 NEGOTIABLE

INSTRUMENT

[ )150 RECOVERY OF OVERPAYMENT & ENFORCEMENT OF JUDGMENT

[ )151 MEDICARE ACT

[ )152 RECOVERY OF DEFAULTED STUDENT LOANS (EXCL VETERANS)

[ ]153 RECOVERY OF OVERPAYMENT OF VETERAN'S BENEFITS

[ )160 STOCKHOLDERS SUITS [ )190 OTHER CONTRACT

[ )195 CONTRACT PRODUCT LIABILITY

[ )196 FRANCHISE

PROPERTY RIGHTS

[ ) 820 COPYRIGHTS [ 1830 PATENT Dod'840 TRADEMARK

SOCIAL SECURITY

[]861 HIA (1395ff)

[ )862 BLACK LUNG (923)

I )863 DIWCIDIWW (405(g)) I )864 SSID TITLE XVI

I ) 865 RSI (405(g))

FAIR LABOR STANDARDS ACT LABORlMGMT RELATIONS LABORlMGMT REPORTING & DISCLOSURE ACT RAILWAY LABOR ACT [ ]870 TAXES (U.S. Plaintiff or

OTHER LABOR Defendant)

LITIGATION ()871 IRS-THIRD PARTY

EMPL RET INC 26 USC 7609

SECURITY ACT

FEDERAL TAX SUITS

[ ]740 [ ]790

PRISONER PETITIONS I 1791

ACTIONS UNDER STATUTES

CMLRIGHTS

REAL PROPERTY

[ )510 MOTIONS TO
VACATE SENTENCE IMMIGRATION
20 USC 2255
[ )530 HABEAS CORPUS [ )462 NATURALIZATION
[ ]535 DEATH PENALTY APPLICATION
[ ]540 MANDAMUS & OTHER [ 1463 HABEAS CORPUS-
[ ]550 CIVIL RIGHTS ALIEN DETAINEE
[ ]555 PRISON CONDITION [ ]465 OTHER IMMIGRATION
ACTIONS (]441 VOTING

[ ]442 EMPLOYMENT [ 1443 HOUSINGI

ACCOMMODATIONS [ )444 WELFARE

[ ]445 AMERICANS WITH DISABILITIES - EMPLOYMENT [)446 AMERICANS WITH

DISABILITIES -OTHER []440 OTHER CIVIL RIGHTS

[ )210 LAND CONDEMNATION [ ] 220 FORECLOSURE

[ ]230 RENT LEASE &

EJECTMENT

[ ] 240 TORTS TO LAND [ )245 TORT PRODUCT LIABILITY

[ ]290 ALL OTHER

REAL PROPERTY

Check if demanded in complaint:

[J CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.? IF SO, STATE:

DEMAND $. OTHER JUDGE _~~...;,.._ DOCKET NUMBER, _

Check YES only if demanded ~ complaint JURY DEMAND: D YES ~ NO

NOTE: Please submit at the time of filing an explanation of why cases are deemed related.

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RONALD L. ISRAEL MELISSA A. SALIMBENE Wolff & Samson PC

140 Broadway, 46th Floor New York, NY 10005 973-325-1500

Attorneys for Plaintiffs

Bravado International Group Merchandising Services, Inc. and Ate My Heart Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

BRA V ADO INTERNATIONAL GROUP MERCHANDISING SERVICES, INC. and ATE MY HEART INC.,

Case No.:

Plaintiffs,

COMPLAINT

v.

JOHN DOES 1-100, JANE DOES 1-100, and XYZ COMPANIES 1-100,

Defendants.

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Plaintiffs Bravado International Group Merchandising Services, Inc. ("Bravado") and

Ate My Heart Inc. (collectively "Plaintiffs"), by and through their counsel Wolff & Samson

PC, complaining of defendants herein, alleges as follows:

NATURE OF THE ACTION

1. This action arises under the Lanham Trademark Act of 1946, 15 U.S.C. § 1051

et seq. (the "Lanham Act") and under New York Civil Rights Law § § 50-51.

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JURISDICTION AND VENUE

2. This Court has jurisdiction over the claims herein pursuant to 28 U.S.C. §§ 1331

and 1338, and through the Court's pendent jurisdiction. Venue is proper under 28 U.S.C. § 1391 because the defendants will be subject to personal jurisdiction in this district.

PARTIES

3. Plaintiff Bravado International Group Merchandising Services, Inc. is a

corporation duly organized under the laws of the State of California with its principal place of business in New York. Plaintiff Ate My Heart Inc. is a corporation duly organized under the laws of the State of California.

4. The musical performer Stefani Germanotta, who is publically known as Lady

Gaga ("Artist"), has used the Lady Gaga trademark since 2007 to identify her as a singer, songwriter, actress, artist, performer and entertainer in all phases of the entertainment industry and to distinguish the Artist from all other such artists. On January 27, 2010, the Artist assigned the Lady Gaga trademark to Ate My Heart Inc. The Artist has authorized Ate My Heart Inc. to grant to Bravado the exclusive right to distribute tour merchandise bearing the Artist's logos, likenesses, images, artwork and trademarks (collectively, the "Trademark") on and in connection with various types of music-related merchandise sold and offered for sale in the vicinity of the Artist's concert performances on her current concert tour (the "Tour"). The merchandise that will be offered for sale by Bravado at the Artist's concerts on the Tour includes, without limitation, tour and program books, T-shirts, jerseys, sweatshirts, hats, stickers, jewelry, accessories, posters, calendars and other merchandise (collectively, the "Tour Merchandise"). Bravado is the exclusive holder of rights to sell Tour Merchandise in the vicinity of the Artist's concert performances on the Tour.

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5. The identities of defendants, Various John Does, Jane Does and XYZ

Companies, are not presently known and this Complaint will be amended to include the names

of such individuals and entities when identified. Upon information and belief, defendants were

present at concerts at the Artist's previous tours and will be present in the Southern District of

New York in connection with the Artist's concerts scheduled to be held at Madison Square

Garden in New York, New York on July 6, July 7 and July 9, 2010, and February 21 and 22,

2011 (the "New York Shows"). Defendants, therefore, will be subject to this Court's

jurisdiction.

FIRST CAUSE OF ACTION (Lanham Act)

6. Plaintiffs repeat and reallege each allegation set forth in paragraphs 1 through 5

above.

7. The Artist has used her inherently distinctive name and Trademark to identify

officially authorized goods and services and to distinguish the Artist from other musical

performers. The Artist has, among other things, prominently displayed the Trademark in

advertising and promotional material and on compact disc and audiotape packaging and

merchandise, including Tour Merchandise. Plaintiffs and the Artist have realized, and expect

to realize, substantial income from the sale of merchandise bearing the Artist's Trademark

(including the Tour Merchandise), and thousands of such items have been sold throughout the

United States.

8. As a result of the foregoing, the Artist's Trademark has developed and now

possesses secondary and distinctive meaning to purchasers of the Tour Merchandise.

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9. The Artist has achieved wide renown during her career in the music industry.

The Artist's Trademark has been used in interstate commerce on and for the purpose of identifying, among other things, Tour Merchandise, including T-shirts and other apparel.

10. The Artist has a decidedly strong and loyal following among concert-goers,

radio listeners and music purchasers. The Artist has appeared, and will appear, in concerts at major arenas and stadiums in the United States and around the world and has been seen and heard in concert by millions of popular music enthusiasts.

11. The United States portion of the Tour will begin in Boston, Massachusetts on

July 1, 2010, and will continue with shows at major venues throughout the United States, including the New York Shows, and will conclude no sooner than April 18, 2011.

12. Bravado intends to sell Tour Merchandise at or near the site of the Artist's

concerts, including at the New York Shows.

13. Upon information and belief, at past concerts held by the Artist on her previous

tours defendants have engaged in the unauthorized manufacture, distribution and sale of inferior merchandise bearing the Artist's Trademark (the "Bootleg Merchandise") in the vicinity of the Artist's concerts. Plaintiffs believe that the defendant bootleggers and counterfeiters will sell, or attempt to sell, Bootleg Merchandise at the New York Shows and at concerts during the current Tour.

14. The Bootleg Merchandise is of the same general appearance as the Tour

Merchandise and is likely to confuse prospective purchasers as to the source or sponsorship of such Bootleg Merchandise.

15. Upon information and belief, the Bootleg Merchandise is generally of inferior

quality. The sale of such merchandise is likely to injure the reputation of the Artist and

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Plaintiffs, which has developed by virtue of the Artist's public performances and the reputation for high quality associated with the Tour Merchandise.

16. The manufacture, distribution and sale of Bootleg Merchandise by defendants,

and those acting in concert with defendants, constitutes a false designation of the source of origin of such goods and falsely describes and represents such merchandise, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

17. The aforesaid acts by defendants, and those acting in concert with defendants,

are likely to cause the purchasing public to believe that the sale of such Bootleg Merchandise is authorized, sponsored or approved by the Artist and Plaintiffs and that such Bootleg Merchandise is subject to the same quality control and regulation required by the Artist and Plaintiffs.

18. The use by defendants and others of the Artist's Trademark constitutes an

attempt to palm off and appropriate to themselves the Artist's and Plaintiffs' exclusive rights therein.

19. Upon information and belief, defendants, and those acting in concert with

defendants, will engage in such unauthorized activities in this State and elsewhere in interstate commerce and, unless enjoined, are likely to continue such activities throughout the Tour, to the great injury of Plaintiffs and the Artist.

20. Plaintiffs have no adequate remedy at law and have suffered, and will continue

to suffer, irreparable harm and damage as a result of defendants' aforesaid acts, which, if not enjoined, will cause injury and monetary loss in an amount presently incalculable.

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SECOND CAUSE OF ACTION (Unfair Competition)

21. Plaintiffs repeat and reallege each allegation set forth in paragraphs 1 through 20

above.

22. Upon information and belief, the aforesaid acts by defendants and others have

been, and will continue to be, committed with full knowledge of the rights of Plaintiffs and the

Artist, and have the effect of misleading and confusing the public and misappropriating and

trading upon the property rights, goodwill and reputation inhering to the name and likeness of

the Artist.

23. Such misappropriation and unfair competition will interfere with Plaintiffs'

rights and ability to exploit the commercial value of the Artist's Trademark.

24. Plaintiffs have no adequate remedy at law and have suffered, and will continue

to suffer, irreparable harm and damage as a result of defendants' aforesaid acts, which, if not

enjoined, will cause injury and monetary loss in an amount presently incalculable.

THIRD CAUSE OF ACTION (Right of Publicity)

25. Plaintiffs repeat and reallege each allegation set forth in paragraphs 1 through 24

above.

26. By virtue of the expenditures of time, effort and talent by the Artist and

Plaintiffs in advertising, publicizing and promoting the accomplishments of the Artist and

through extensive commercial exploitation of the Artist's public persona, the Artist and

Plaintiffs have created rights of publicity in the Artist's name and likenesses. By virtue of

assignment from the Artist, Plaintiffs are the owner of the Artist's right of publicity in her

names and likenesses.

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27. The common law right of publicity is subsumed under New York's statutory

right of privacy (Civil Rights Law § § 50-51).

28. Defendants have used, and will continue to use, the Artist's name and/or

likeness without authorization and for purposes of trade and for other commercial purposes.

29. The aforesaid uses of the name, likeness and Trademark by defendants

constitute infringements of such rights of publicity.

30. Defendants' activities violate § § 50 and 51 of the New York Civil Rights Law.

31. Plaintiffs have no adequate remedy at law and have suffered, and will continue to suffer, irreparable harm and damage as a result of defendants' aforesaid acts, which, if not enjoined, will cause injury and monetary loss in an amount presently incalculable.

PRAYER FOR RELIEF WHEREFORE, Plaintiffs seeks relief as follows:

32. That defendants, their agents, servants, employees, officers, attorneys,

successors, and assigns, and all persons acting in concert with defendants, or on their behalf, be enjoined, in this and all other judicial districts in the United States, preliminarily during the course of this litigation and permanently, from:

(a) manufacturing, distributing, selling, offering for sale, holding for sale or

advertising any products bearing the name, trademark, or likeness of the Artist or any colorable variation thereof; and

(b) representing that any article of merchandise manufactured, distributed,

sold, held for sale or advertised by them is sponsored or authorized by Plaintiffs in this district or in any other district in which Plaintiffs seek to enforce this Court's injunction order.

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33. That this Court authorize the United States Marshal, authorized agents of

Plaintiffs, the local and state police, and/or any persons acting under their supervision, to seize

and impound any and all Bootleg Merchandise which the defendants attempt to sell, distribute

or hold for sale at, within, or in the vicinity of the arenas at which the Artist is performing,

before, during or after said concerts.

34. That defendants deliver up for destruction all Bootleg Merchandise bearing the

name, trademark, or likeness of the Artist.

35. That defendants pay to Plaintiffs damages in an amount to be determined based

upon Plaintiffs' loss of income from defendants' unauthorized activities.

36. That Plaintiffs have such other and further relief as the Court deems to be

reasonable, necessary and just.

WOLFF & SAMSON PC 140 Broadway, 46th Floor New York, NY 10005 973-325-1500

Attorneys for Plaintiffs Bravado International Grou

Ate My

By:

Dated: June 7_ ~, 2010

New York, New York

RONALD L. ISRAEL

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