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Case 2:15-cv-00617-EJF Document 2 Filed 08/31/15 Page 1 of 28

GREGORY M. HESS (UT#5611)
MATTHEW J. BALL (UT#9414)
PARR BROWN GEE & LOVELESS, P.C.
101 South 200 East, Suite 700
Salt Lake City, UT 84111
Telephone: 801-532-7840
Facsimile: 801-532-7750
Email: ghess@parrbrown.com
Attorneys for B.A.C.A. International, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH (CENTRAL DIVISION)

B.A.C.A. INTERNATIONAL, INC.,
Plaintiff,

COMPLAINT

vs.
CHRIS CLARKE, KELLY CLARKE, and
JACOB HUGGARD, individuals,
Defendants.

Civil Action No. _________________
(Jury Trial Demanded)

Plaintiff B.A.C.A. International, Inc. (“B.A.C.A.”) brings this action against Defendants
Chris Clarke, Kelly Clarke (the “Clarke Defendants”), and Jacob Huggard (“Huggard”)
(collectively, “Defendants”) for damages and other relief under the trademark laws of the United
States and under the laws of the State of Utah, including the common law.
JURISDICTION AND VENUE
1.

This Court has subject matter jurisdiction of this civil action under of 28 U.S.C.

Section 1331 (federal question), 15 U.S.C. Section 1121 (trademarks), and 28 U.S.C. Section

Case 2:15-cv-00617-EJF Document 2 Filed 08/31/15 Page 2 of 28

1338(a) (trademarks) in that Claims 1 through 7 and Claim 17 arise under the Trademark Act, 15
U.S.C. Section 1114(1) (trademark infringement), 15 U.S.C. Section 1125(a) (false designation
of origin), and/or 15 U.S.C. Sections 1125(c) (trademark dilution) and/or other federal law.
2.

This Court has supplemental jurisdiction over Claims 8 through 16 under 28

U.S.C. Section 1367(a) because they arise from the common nucleus of operative facts
complained of in Claims 1 through 7.
3.

Venue is proper in this judicial district under 28 U.S.C. Section 1391(b) because

Defendants’ reside in this judicial district, a substantial part of the events giving rise to
B.A.C.A.’s claims occurred in this judicial district, and/or Defendants’ actions giving rise to this
suit have had a substantial effect on parties in this judicial district.
4.

The Court has personal jurisdiction over the Defendants because Defendants all

reside in this judicial district, a substantial part of the events giving rise to B.A.C.A.’s claims
occurred in this judicial district, and/or Defendants knew that their acts and omissions as alleged
herein would have a substantial impact on parties in this judicial district.
PARTIES
5.

B.A.C.A. is a charitable corporation duly organized and existing under the laws

of the State of Utah, having its principal place of business in the State of Utah.
6.

The Clarke Defendants are husband and wife residing in Utah County, Utah, each

having a home address of 133 South 200 East, Lindon, Utah 84042.
7.

B.A.C.A. is informed, believes and thereon alleges that Huggard is a resident of

Utah County, Utah, having a home address of 1221 West 1500 North, Pleasant Grove, Utah 84062.
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8.

B.A.C.A. is informed, believes, and thereon alleges that Defendants participated

in the wrongful acts alleged herein, performed a substantial role in causing and directing such
wrongful acts, had a direct financial interest in such acts, and/or were a moving, active conscious
force in the infringing conduct, and are therefore personally liable.
PLAINTIFF’S MISSION
9.

B.A.C.A. is a charitable organization dedicated to fighting child abuse. At the

present time, B.A.C.A. has chapters in over 30 states, including several chapters in Utah, and
also has chapters in several foreign countries.
10.

B.A.C.A. uses various trademarks in executing and further developing its mission.

Among others, B.A.C.A. uses the marks “B.A.C.A.,” “BIKERS AGAINST CHILD ABUSE,”
and a “Patch Logo” design (described in more detail below), which marks have attained
considerable value and secondary meaning.
11.

In addition to its common law rights in these trademarks, B.A.C.A. is the owner

of United States Service Mark and Trademark Registrations Nos. 3,296,235 for the mark
BIKERS AGAINST CHILD ABUSE and Design; 2,827,542 for the mark B.A.C.A.; 3,771,437
for the mark BIKERS AGAINST CHILD ABUSE, 3,771,311 for the mark BIKERS AGAINST
CHILD ABUSE and Design. Copies of these registrations are attached as Exhibit A. These
registrations are valid and subsisting, and the first three registrations have become incontestable
pursuant to 15 U.S.C. Section 1065.
12.

B.A.C.A. and its chapters and members have committed significant time, effort, and

financial resources toward developing and maintaining a good reputation in accomplishing
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B.A.C.A.’s mission of helping abused children. B.A.C.A. has extensively advertised and caused to
be advertised throughout the United States and abroad its B.A.C.A., BIKERS AGAINST CHILD
ABUSE, “Patch Logo,” and related marks to identify its goods and services.
13.

B.A.C.A. only permits the use of its marks by those chapters that have received

written authorization from B.A.C.A. and who have agreed to use such marks in accordance with
B.A.C.A.’s policies and procedures. Each chapter, in turn, has several individual members of the
chapter, and as members those individuals are licensed by their chapter to use B.A.C.A.’s marks
only in certain ways. Most chapters also have “supporters” who support the activities of the
relevant chapter but for a variety of reasons are not presently members of B.A.C.A. B.A.C.A.’s
members assist in performing B.A.C.A.’s mission by a series of interventions on behalf of
abused children, always with proper parental or guardian permissions and never alone.
14.

B.A.C.A.’s members and supporters understand that trust can be very difficult for

an abused child to have in others. Children are often abused by adults they trusted; indeed, often
the abuser uses the child’s trust to gain access to the child and facilitate the abuse.
15.

B.A.C.A. and its predecessors-in-interest have therefore developed a set of

protocols for contact with children. These protocols are important to establishing the trust of the
child and to protecting the child from further abuse.
16.

For example, one protocol B.A.C.A. has established is that no child may be met

without the prior approval of the child’s custodial parent or guardian. Another protocol is that no
member of B.A.C.A. may meet with a child without at least one other member present and that

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other member may not be the first member’s spouse or “significant other” (unless there are other
unrelated B.A.C.A. members also present).
17.

B.A.C.A. takes great care to try to exclude from membership people who might

be a threat to children. One way this is done is by requiring any person wishing to become a
member to first spend at least one probationary year with the local chapter, riding to events and
interventions. Many chapters of B.A.C.A. require two years of probationary participation.
18.

To be voted into membership, the chapter board vote must be unanimous. Also, all

United States members of B.A.C.A. must have passed a National Crime Information Center
(“NCIC”) background check prior to acceptance as a member of the local chapter. (In other
countries, B.A.C.A. uses other background checks according to the laws of the jurisdiction.)
Individuals undergoing a probationary period are considered mere supporters, and supporters are
not allowed direct contact with children under the auspices of B.A.C.A. unless they too have passed
a background check. Furthermore, supporters are not permitted contact with children without one
(in emergency situations) or more (in other situations) B.A.C.A. members in attendance.
19.

Members are also required to maintain significant contact with the local chapter.

For example, all members must attend 80% of certain specified chapter events. The purpose of
this “attendance” policy is, in part, to maintain contact with each B.A.C.A. member. The goal is
to try, to the best of the ability of B.A.C.A. and each member, to ensure that no B.A.C.A.
member is or will become a threat to children and to exclude from membership (and supporter
status) those who may become a threat to children.

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20.

In many segments of motorcycle or “biker” culture, participants wear a back patch,

typically on a vest, to indicate membership in a given club or other organization. The patch is a
critical part of this culture. Only authorized bikers are allowed to wear the patch of a given
organization. If a biker fails to follow the rules and guidelines of the organization, that biker loses
the right to wear the patch, and the organization requires the biker to return his or her patch.
21.

In most of the jurisdictions where B.A.C.A. has chapters, members of B.A.C.A. are

permitted to wear a large patch on the back of their vests or jackets. B.A.C.A.’s patches are similar
to the logo shown in U.S. Service Mark Registration No. 3,296,235 (the “B.A.C.A. Logo”). A
photograph of the back patch worn by members of the Central Utah Chapter of B.A.C.A. (the
chapter that includes Utah County) is attached as Exhibit B. Photographs of the back patches for
various other chapters are attached in Exhibit C. As can be seen from these exhibits, the back patch
design (the “Patch Logo”) comprises an oval logo with the words BIKERS AGAINST CHILD
ABUSE along the upper side of the oval, a fist with the letters B.A.C.A. on the knuckles in the
middle, and the chapter name along the lower side of the logo, along with other stylistic elements.
22.

B.A.C.A. insists, and all children are taught, that only members who have passed

the NCIC background check and are active members of B.A.C.A. are allowed to wear a B.A.C.A.
back patch. Therefore, control over the patch and the indicia of membership of the patch are
critical to the success of B.A.C.A. in its mission. If an unauthorized person were to obtain a back
patch and sew it onto a vest, that person could simulate membership in B.A.C.A. Such an action
potentially places children at serious risk, because B.A.C.A. teaches children that wearers of one
of B.A.C.A.’s back patches have passed the NCIC background check. Thus, if an unauthorized
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person were to obtain one of B.A.C.A.’s back patches and sew it onto a vest, a child may trust that
individual even though the individual may be a potential (or actual) child abuser.
23.

Members of B.A.C.A. do not own the back patches they use.

Members of

B.A.C.A. are merely licensed to wear the patch while an active member of B.A.C.A. B.A.C.A.
strives to keep control of the patches, and any member leaving the organization for any reason is
required to return the patch. The only exception to this rule is (and has been) that a member in
good standing may be buried or cremated wearing his or her patch.
24.

B.A.C.A. has also committed significant time, effort, and financial resources toward

developing and implementing training and education programs for abused children and their families.
As an important part of these training and education programs, B.A.C.A. licenses the use of its
B.A.C.A. name and mark as well as its other marks, logos, and graphics to its member chapters.
25.

B.A.C.A. uses this licensing to ensure that those who use the B.A.C.A. name and

mark and other B.A.C.A. marks in commerce and in communicating with the general public
meet B.A.C.A.’s high standards.
26.

B.A.C.A. considers the proper use of its marks as imperative to its mission. If

B.A.C.A. cannot control use of its marks, unsuspecting children may come into contact with, and
believe they are safe around, individuals who are not associated with B.A.C.A., have not served
a probationary period, have not maintained contact with the local chapter, and have not passed
the NCIC background check or otherwise complied with B.A.C.A.’s standards.
27.

Due to these efforts and the widespread use of B.A.C.A.’s services by the public,

including by law enforcement and social services agencies in the states and countries in which
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B.A.C.A. has chapters, the B.A.C.A. mark, together with B.A.C.A.’s other names, marks, and
logos (including BIKERS AGAINST CHILD ABUSE and the Patch Logo), have become
associated in the mind of the public with trustworthy child abuse prevention services and related
materials. B.A.C.A. has thereby built up, now owns, and is the beneficiary of, valuable goodwill,
represented in significant part by its B.A.C.A. mark and related marks. Also, B.A.C.A., BIKERS
AGAINST CHILD ABUSE, and the Patch Logo marks and other B.A.C.A. marks have thereby
become famous with respect to associated services and prevention of child abuse.
DEFENDANTS’ CONDUCT
28.

The Clarke Defendants were previously members of the Central Utah Chapter of

B.A.C.A.
29.

B.A.C.A. is informed, believes, and thereon alleges that at least Defendant

ChrisClarke, while still a member of B.A.C.A., collected back patches from former members,
based at least in part on the fact that B.A.C.A. continued to own those back patches after the
former member ceased to be a member of B.A.C.A. B.A.C.A. is informed, believes, and thereon
alleges that Chris Clarke retained those collected back patches on behalf of B.A.C.A.
30.

As members of B.A.C.A., the Clarke Defendants received and wore Central Utah

Chapter back patches, and they served in various leadership capacities with the Central Utah
Chapter and the International Board of B.A.C.A.
31.

Some time ago, there was a falling out between B.A.C.A. (and its Central Utah

Chapter) and the Clarke Defendants. As a result of the falling out, the Clarke Defendants ceased
to be members of B.A.C.A.
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32.

Despite no longer being members of B.A.C.A., and despite numerous requests,

Defendants have refused to return B.A.C.A.’s back patches.
33.

In or around August of 2014, members of B.A.C.A. learned of an auction on the

Internet auction site www.eBay.com that purported to auction off an “Authentic Bikers Against
Child Abuse (BACA) Outlaw Motorcycle Gang Patch.” Images relating to that auction are
attached as Exhibit D.
34.

A member of B.A.C.A. “purchased” the patch for $50. Having completed the

“purchase,” members of B.A.C.A. sought to identify the person who placed the eBay advertisement.
The eBay account used for the transaction appeared to be new, and both the eBay account the PayPal
account used to receive payment for the patch were listed with the email of screwbaca@gmail.com.
Ultimately, it was determined that the person involved was Huggard. After a few days, members of
B.A.C.A. met with Huggard to arrange to pick up the patch. After one person had obtained the patch,
other members of B.A.C.A., acting as investigators for the purpose of determining where Huggard
had gotten possession of a back patch, met with Huggard to talk with him.
35.

Although Huggard was initially reluctant to speak with those investigators,

eventually Huggard was asked what his “beef” was with B.A.C.A. He responded by saying
“J.P.” B.A.C.A. believes this is a reference to the founder of B.A.C.A., J.P. Lilley.
36.

After additional discussion about Mr. Lilley, Huggard told B.A.C.A.’s

investigators that Chris Clarke had given Huggard the patch, and Huggard further stated that Mr.
Clarke had several more of B.A.C.A.’s back patches.

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37.

The next day, B.A.C.A.’s investigator called Mr. Clarke to ask why he was willing

to put children at risk by distributing B.A.C.A.’s patches. On information and belief, Mr. Clarke
stated that his goal was to get under the skin of Mr. Lilley and certain other members of B.A.C.A.
38.

B.A.C.A. is informed, believes, and thereon alleges that Defendants are in

possession of multiple back patches that belong to B.A.C.A. B.A.C.A. is also informed,
believes, and thereon alleges that at least Defendant Chris Clarke is willing to distribute one or
more of those collected back patches without any concern regarding who may subsequently
acquire such back patches. As former members of B.A.C.A., both of the Clarke Defendants
know that B.A.C.A. uses the back patches as one of several methods of protecting children.
B.A.C.A. is informed, believes, and thereon alleges that Defendants do not care, or care very
little, that their actions may place children at risk.
39.

B.A.C.A.’s back patches are not collectible items, and there is no valid purpose

for anyone not a member of B.A.C.A. to possess one of B.A.C.A.’s back patches other than to
use such a patch as a means of pretending to be associated with B.A.C.A. and with B.A.C.A.’s
services, such as by sewing the back patch onto a vest and wearing the vest. B.A.C.A. is
informed, believes, and thereon alleges that anyone taking such an action has the ability to, and
is likely to, confuse children and the general public as to an association between the possessor of
the back patch and B.A.C.A.
40.

B.A.C.A. did not and does not authorize or consent to Defendants’ continued

possession of any of B.A.C.A.’s back patches. B.A.C.A. did not and does not authorize or
consent to Defendants’ distribution of any of B.A.C.A.’s back patches.
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41.

Despite numerous requests to return the back patches, the Clarke Defendants have

refused to return those back patches and Chris Clarke has facilitated Huggard’s offering at least
one of the back patches for “sale” to the general public over the Internet auction site eBay. On
information and belief, Chris Clarke and Huggard will continue to seek to distribute other back
patches to the public in violation of B.A.C.A.’s rights and with full knowledge of the potential
threat such distribution may create for children.
42.

Chris Clarke's and Huggard’s unauthorized use of B.A.C.A.’s names and marks

creates the false and misleading impression that Chris Clarke and Huggard are authorized by, or
are in some way affiliated with, B.A.C.A., and that B.A.C.A. condones or approves of any of Chris
Clarke’s or Huggard’s practices, including the sale and associated distribution of back patches.
43.

As shown in Exhibit D, the eBay advertisement relating to the back patch offered

for sale by Huggard called B.A.C.A. an “Outlaw Motorcycle Gang.” B.A.C.A. is not an outlaw
gang of any sort, but rather is an organization working with police and social services agencies to
protect children from abuse. B.A.C.A. is informed, believes, and thereon alleges that Defendants
have no evidence to support any outlaw activities of B.A.C.A. Thus, B.A.C.A. is informed,
believes, and thereon alleges that Chris Clarke has conspired with Huggard to libel B.A.C.A., has
sought to libel B.A.C.A., and has provided support and assistance to Huggard to libel B.A.C.A.
44.

As a direct result of Defendants’ conduct, B.A.C.A. has suffered damages.

45.

B.A.C.A. further alleges, on information and belief, that Defendants performed

the wrongful acts alleged herein in knowing or reckless disregard of B.A.C.A.’s rights, thereby
entitling B.A.C.A. to an award of enhanced damages and punitive damages.
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46.

Unless restrained by this Court, Defendants’ conduct will cause B.A.C.A. and the

public irreparable harm, for which B.A.C.A. has no adequate remedy at law.
FIRST CLAIM
(Infringement of Plaintiff’s Service Mark
Certificate of Registration No. 3,771,437)
47.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 46,

inclusive, as if fully set forth herein.
48.

The Patch Logo contains B.A.C.A.’s registered “BIKERS AGAINST CHILD

ABUSE” service mark, U.S. Service Mark Registration No. 3,771,437, and as such, any
distribution of an item bearing the Patch Logo is likely to be confused with the service mark
shown in B.A.C.A.’s U.S. Service Mark Registration No. 3,771,437.
49.

Chris Clarke and Huggard have offered in interstate commerce at least one of

B.A.C.A.’s back patches in a manner likely to cause confusion, mistake or deception.
50.

Chris Clarke and Huggard have infringed and are willfully infringing B.A.C.A.’s

registered service mark shown in U.S. Service Mark Registration No. 3,771,437.
51.

B.A.C.A. has been, is, and is likely to be irreparably damaged by such acts, and

damage will continue unless the acts are enjoined by this Court. B.A.C.A. has no adequate
remedy at law.
52.

By reason of the foregoing, B.A.C.A. asserts a claim against Chris Clarke and

Huggard for injunctive and monetary relief pursuant to Sections 32 and 35 of the Lanham Act,
15 U.S.C. §§ 1114 and 1117 with respect to Chris Clarke and Huggard’s reproduction,
counterfeit, copy, or colorable imitation of B.A.C.A.’s Registered Trademark No. 3,771,437.
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SECOND CLAIM
(Infringement of Plaintiff’s Service Mark
Certificate of Registration No. 2,827,542)
53.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 52,

inclusive, as if fully set forth herein.
54.

The Patch Logo contains B.A.C.A.’s registered “B.A.C.A.” service mark, U.S.

Service Mark Registration No. 2,827,542, and as such, any distribution of an item bearing the
Patch Logo is likely to be confused with the service mark shown in B.A.C.A.’s U.S. Service
Mark Registration No. 2,827,542.
55.

Chris Clarke and Huggard have offered in interstate commerce at least one of

B.A.C.A.’s back patches in a manner likely to cause confusion, mistake or deception.
56.

Chris Clarke and Huggard have infringed and are willfully infringing B.A.C.A.’s

registered service mark shown in U.S. Service Mark Registration No. 2,827,542.
57.

B.A.C.A. has been, is, and is likely to be irreparably damaged by such acts of

infringement, and damage will continue unless the acts are enjoined by this Court. B.A.C.A. has
no adequate remedy at law.
58.

By reason of the foregoing, B.A.C.A. asserts a claim against Chris Clarke and

Huggard for injunctive and monetary relief pursuant to Sections 32 and 35 of the Lanham Act,
15 U.S.C. §§ 1114 and 1117 with respect to Chris Clarke and Huggard’s reproduction,
counterfeit, copy, or colorable imitation of B.A.C.A.’s Registered Trademark No. 2,827,542.

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THIRD CLAIM
(Infringement of Plaintiff’s Service Mark
Certificate of Registration No. 3,296,235)
59.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 58,

inclusive, as if fully set forth herein.
60.

The Patch Logo is similar to B.A.C.A.’s registered logo shown in U.S. Service Mark

Registration No. 3,296,235, and as such, any distribution of an item bearing the Patch Logo is likely
to be confused with the mark shown in B.A.C.A.’s U.S. Service Mark Registration No. 3,296,235.
61.

Chris Clarke and Huggard have offered in interstate commerce at least one of

B.A.C.A.’s back patches in a manner likely to cause confusion, mistake or deception.
62.

Chris Clarke and Huggard have infringed and are willfully infringing B.A.C.A.’s

63.

B.A.C.A. has been, is, and is likely to be irreparably damaged by such acts of

marks.

infringement, and damage will continue unless the acts are enjoined by this Court. B.A.C.A. has
no adequate remedy at law.
64.

By reason of the foregoing, B.A.C.A. asserts a claim against Chris Clarke and

Huggard for injunctive and monetary relief pursuant to Sections 32 and 35 of the Lanham Act,
15 U.S.C. §§ 1114 and 1117 with respect to Chris Clarke and Huggard’s reproduction,
counterfeit, copy, or colorable imitation of B.A.C.A.’s Registered Trademark No. 3,296,235.

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FOURTH CLAIM
(Infringement of Plaintiff’s Trademark
Certificate of Registration No. 3,771,311)
65.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 64

inclusive, as if fully set forth herein.
66.

The Patch Logo is similar to B.A.C.A.’s registered logo shown in U.S. Trademark

Registration No. 3,771,311, and as such, any distribution of an item bearing the Patch Logo is likely
to be confused with the mark shown in B.A.C.A.’s U.S. Trademark Registration No. 3,771,311.
67.

Chris Clarke and Huggard have offered in interstate commerce at least one of

B.A.C.A.’s back patches in a manner likely to cause confusion, mistake or deception.
68.

Chris Clarke and Huggard have infringed and are willfully infringing B.A.C.A.’s

69.

B.A.C.A. has been, is, and is likely to be irreparably damaged by such acts of

marks.

infringement, and damage will continue unless the acts are enjoined by this Court. B.A.C.A. has
no adequate remedy at law.
70.

By reason of the foregoing, B.A.C.A. asserts a claim against Chris Clarke and

Huggard for injunctive and monetary relief pursuant to Sections 32 and 35 of the Lanham Act,
15 U.S.C. §§ 1114 and 1117 with respect to Chris Clarke and Huggard’s reproduction,
counterfeit, copy, or colorable imitation of B.A.C.A.’s Registered Trademark No. 3,771,311.

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FIFTH CLAIM
(Unfair Competition in Violation of
Section 43(a)(1)(A) of the Lanham Act)
71.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 70

inclusive, as if fully set forth herein.
72.

B.A.C.A. is informed, believes, and thereon alleges that Chris Clarke and

Huggard have used in commerce false or misleading descriptions of fact that are likely to cause
confusion, or to cause mistake or to deceive, as to whether Chris Clarke and Huggard are
affiliated, connected, or associated with B.A.C.A. and/or as to whether B.A.C.A. sponsored or
approved of their activities, in violation of Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. §
1125(a)(1)(A).
73.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief against Chris

Clarke's and Huggard’s unfair competition and damages.
SIXTH CLAIM
(False Advertising in Violation of
Section 43(a)(1)(B) of the Lanham Act)
74.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 73

inclusive, as if fully set forth herein.
75.

B.A.C.A. is informed, believes, and thereon alleges that Chris Clarke and Huggard

have used in commerce false or misleading descriptions of fact as to the nature, characteristics,
and/or qualities of their activities and/or goods, in violation of Section 43(a)(1)(B) of the Lanham
Act, 15 U.S.C. § 1125(a)(1)(B).

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76.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief against Chris

Clarke's and Huggard’s false advertising and damages.
SEVENTH CLAIM
(Dilution of Famous Marks in Violation of
Section 43(c) of the Lanham Act)
77.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 76

inclusive, as if fully set forth herein.
78.

The service marks “B.A.C.A.” and “BIKERS AGAINST CHILD ABUSE” and the

B.A.C.A. Logo are famous marks, and such marks became famous before Chris Clarke and
Huggard began using them without authorization from B.A.C.A. or B.A.C.A.’s predecessor-ininterest. Chris Clarke and Huggard continue to use those marks or confusingly similar marks
without authorization from B.A.C.A.
79.

Chris Clarke and Huggard have used in commerce imitations of B.A.C.A.’s

“B.A.C.A.” and “BIKERS AGAINST CHILD ABUSE” marks after such marks became famous
and have caused dilution of the distinctive quality of B.A.C.A.’s famous marks, in violation of 15
U.S.C. § 1125(c).
80.

Chris Clarke's and Huggard’s conduct as set forth above has caused B.A.C.A. to

suffer injury to its reputation and has diluted the distinctive quality of its famous marks, in
violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
81.

Such actions by Chris Clarke and Huggard were committed willfully and with

intent to trade on B.A.C.A.’s reputation and/or to dilute its famous marks.

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82.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief, damages and

attorneys’ fees pursuant to 15 U.S.C. § 1125(c).
EIGHTH CLAIM
(Common Law Trademark and Trade Name Infringement)
83.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 82,

inclusive, as if fully set forth herein.
84.

B.A.C.A. has used the Patch Logo for many years to represent its association

services and, in particular, to represent to the public that the wearer of a back patch bearing the
Patch Logo is a member in good standing of B.A.C.A. and, as such, has passed an NCIC
criminal background check and remains an active member in good standing of B.A.C.A.
B.A.C.A. therefore has service mark rights to the Patch Logo and related marks under the
common law of the United States and of the State of Utah.
85.

Working together, Chris Clarke and Huggard have offered in interstate commerce

at least one of B.A.C.A.’s back patches in a manner likely to cause confusion, mistake or
deception.
86.

In addition, Chris Clarke's and Huggard’s continued and/or threatened use of the

marks “B.A.C.A.” and “BIKERS AGAINST CHILD ABUSE” is likely to cause confusion,
mistake and deception among the public, leading members of the public to believe falsely that
Chris Clarke's and Huggard’s activities are sponsored, endorsed, licensed, approved by, or in
some way connected with B.A.C.A. to the irreparable injury of B.A.C.A. and the public.
87.

Chris Clarke and Huggard have infringed and are willfully infringing B.A.C.A.’s

marks.
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88.

Chris Clarke's and Huggard’s conduct has harmed and continues to harm

B.A.C.A.’s name and reputation and continues to cause confusion among members of the public.
89.

B.A.C.A. has been, is, and is likely to be irreparably damaged by such acts of

infringement in an amount that cannot be determined without an accounting, and damage will
continue unless the acts are enjoined by this Court. B.A.C.A. has no adequate remedy at law.
90.

Furthermore, by offering for sale and/or threatening to offer for sale one or more

back patches bearing the Patch Logo, Chris Clarke and Huggard have also placed and/or threaten
to place children, and in particular children who have been the victims of abuse, at risk.
91.

By reason of the foregoing, B.A.C.A. asserts a claim against Chris Clarke and

Huggard for injunctive and monetary relief for trademark and trade name infringement under the
common law of the State of Utah.
NINTH CLAIM
(Contributory Infringement of Trademarks)
92.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 91

inclusive, as if fully set forth herein.
93.

By their conduct, Chris Clarke and Huggard have induced, caused, or materially

contributed to the infringing conduct of each other and of others who have infringed B.A.C.A.’s
marks.
94.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief against Chris

Clarke's and Huggard’s contributory infringement and damages.

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TENTH CLAIM
(Unfair Competition in Violation of
Utah Code Annotated Sections 13-5a-101 - 103)
95.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 944

inclusive, as if fully set forth herein.
96.

B.A.C.A. is informed, believes, and thereon alleges that Chris Clarke and

Huggard have used in commerce false or misleading descriptions of fact that are likely to cause
confusion, or to cause mistake or to deceive, as to whether defendants are affiliated, connected,
or associated with B.A.C.A. and/or as to whether B.A.C.A. sponsored or approved of their
activities, in violation of Utah Code Annotated Sections 13-5a-101 and -103.
97.

Chris Clarke's and Huggard’s acts constitute an intentional business act or

practice that is unlawful, unfair, or fraudulent, leads to a material diminution in value of
intellectual property, and is infringement of a trademark or trade name.
98.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief and damages

against Chris Clarke and Huggard, including an award of costs, attorneys’ fees, and punitive
damages.
ELEVENTH CLAIM
(Trademark Dilution in Violation of
Utah Code Annotated Section 70-3a-403)
99.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 98

inclusive, as if fully set forth herein.
100.

Chris Clarke and Huggard have used in commerce imitations of B.A.C.A.’s

famous “B.A.C.A.” and “BIKERS AGAINST CHILD ABUSE” marks in connection with the
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sale, offering for sale, distribution, and/or advertising of products and/or services, and such use is
likely to cause injury to B.A.C.A.’s business reputation and/or to cause dilution of the distinctive
quality of B.A.C.A.’s marks, in violation of Utah Code Annotated Section 70-3a-403 and the
common law.
101.

Such actions by Chris Clarke and Huggard were committed willfully and with

intent to trade on B.A.C.A.’s reputation and/or to dilute its famous marks.
102.

By reason of the foregoing, B.A.C.A. is entitled to injunctive relief, damages, and

punitive damages, under Utah Code Annotated Sections 70-3a-403 and -404.
TWELFTH CLAIM FOR RELIEF
(Breach of Contract)
103.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 102

inclusive, as if fully set forth herein.
104.

As members of B.A.C.A., the Clarke Defendants were licensed to wear a back

patch. However, the Clarke Defendants knew and agreed that the back patches they acquired
from B.A.C.A. did not belong to them but rather belonged to B.A.C.A., and they agreed to return
those back patches upon the termination of their membership with B.A.C.A.
105.

B.A.C.A. has fully performed all conditions of the license with the Clarke

Defendants, except those from which its performance is excused.
106.

Despite no longer being members of B.A.C.A., the Clarke Defendants continue to

possess the back patches they previously wore. The Clarke Defendants have refused to return
those back patches in breach of their agreement with B.A.C.A. that the back patches would be
returned if they were no longer members in good standing.
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107.

The Clarke Defendants’ actions constitute a breach of their license agreement

with B.A.C.A.
108.

As a result, the Clarke Defendants have breached their contract with B.A.C.A.

relating to the back patches. The Clarke Defendants have refused to remedy their breaches
despite demands by B.A.C.A. that they do so.
109.

B.A.C.A. is entitled to recover all back patches that are now or have been in the

Clarke Defendants’ possession, as well as any information relating to back patches that the
Clarke Defendants no longer possess, to enable B.A.C.A. to attempt to recover such back
patches.
110.

By reason of the foregoing, B.A.C.A. also asserts a claim against the Clarke

Defendants for monetary relief for breach of contract.
THIRTEENTH CLAIM FOR RELIEF
(Repelvin)
111.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 110

inclusive, as if fully set forth herein.
112.

By reason of Defendants’ conduct as described herein, B.A.C.A. is entitled to

possession of all back patches of B.A.C.A. presently in Defendants’ possession or control.
113.

B.A.C.A. is informed and believes and therefore alleges that the back patches

previously collected by Chris Clarke remain in his possession, as well as the back patches
previously worn by the Clarke Defendants.
114.

Defendants have wrongfully failed and refused to return B.A.C.A.’s back patches.

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115.

B.A.C.A. is entitled to a pre-judgment writ of replevin pursuant to Utah Rule of

Civil Procedure 64A and/or a writ of replevin pursuant to Utah Rule of Civil Procedure 64B.
FOURTEENTH CLAIM FOR RELIEF
(Conversion)
116.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 115

inclusive, as if fully set forth herein.
117.

Defendants’ conduct as described herein was willful and constitutes a wrongful

and deliberate interference with B.A.C.A.’s immediate possession and ownership of its property,
namely B.A.C.A.’s back patches.
118.

B.A.C.A. has been damaged as a direct result of Defendants’ conversion of

B.A.C.A.’s property.

Accordingly, B.A.C.A. is entitled to recover B.A.C.A.’s general,

compensatory, actual, and consequential damages, all in amounts to be determined at trial,
together with interest at the maximum rate permitted by law.
119.

In addition, in their conversion of B.A.C.A.’s property, Defendants acted

willfully, oppressively, in bad faith, with malice, and with reckless indifference or disregard of
B.A.C.A.’s rights, thereby entitling B.A.C.A. to recover punitive damages from Defendants in an
amount to be determined at trial.
FIFTEENTH CLAIM
(Constructive Trust)
120.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 119

inclusive, as if fully set forth herein.

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121.

Chris Clarke and Huggard have attempted to distribute or have distributed at least

one of B.A.C.A.’s back patches using the Internet site eBay. B.A.C.A. is entitled to the profits
that Chris Clarke and Huggard have derived from their improper acts as alleged above.
122.

Under the circumstances described above, it would be unjust and inequitable, and

it would result in Chris Clarke and Huggard being unjustly enriched, if Chris Clarke and
Huggard were allowed to continue their use of B.A.C.A.’s name, property, assets, funds,
contracts and/or benefits for Chris Clarke's and Huggard’s own benefit and use.
123.

Defendants hold the B.A.C.A. back patches as constructive trustees for the benefit

of B.A.C.A., in an amount to be proven at trial.
124.

In addition, under principles of equity, this Court: should (a) order and declare

that Defendants are holding the B.A.C.A. back patches in constructive trust for the benefit of
B.A.C.A. and (b) order that Defendants return to B.A.C.A. all of B.A.C.A.’s back patches.
SIXTEENTH CLAIM
(Accounting)
125.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 124

inclusive, as if fully set forth herein.
126.

The profits and current status of Chris Clarke's and Huggard’s financial affairs, as

well as the property Defendants’ misappropriated from B.A.C.A., are unknown to B.A.C.A., and
cannot be ascertained without an appropriate accounting of the relevant documents, bank
accounts, bank statements and records of Defendants relating to their wrongful attempts to utilize
B.A.C.A.’s back patches and other intellectual property.

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127.

B.A.C.A. has demanded the relevant back patches and information regarding

Defendants’ improper activities.
128.

Defendants have failed and refused, and continue to fail and refuse, to provide the

requested back patches and information, or to render any accounting, or to pay B.A.C.A. for the
property Defendants obtained from B.A.C.A. through Defendants’ wrongful and improper
activities, as alleged herein.
129.

Based on the foregoing, B.A.C.A. is entitled to the following: (a) a complete and

full accounting of all revenues generated from Defendants’ wrongful and improper business
activities, as alleged herein, as well as all funds, assets, and benefits that Defendants wrongfully
misappropriated from B.A.C.A.; and (b) judgment in favor of B.A.C.A. in the amount of
damages B,A,C,A, has suffered based on said accounting.
SEVENTEENTH CLAIM
(Declaratory Relief)
130.

B.A.C.A. realleges and incorporates by reference paragraphs 1 through 129

inclusive, as if fully set forth herein
131.

Defendants’ conduct as alleged herein has raised an actual controversy between

Defendants and B.A.C.A. about (a) B.A.C.A.’s ownership of the back patches that bear the Patch
Logo and any of B.A.C.A.’s other marks; (b) the legality of Defendants’ possession of and/or
offer to sell and/or distribute any such back patches; and/or (c) the legality of Chris Clarke’s and
Huggard’s use of B.A.C.A.’s trademarks, including but not limited to Registered Trademark
Nos. 3,771,437, 2,827,542, 3,296,235, and 3,771,311 and the Patch Logo.

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132.

B.A.C.A. is therefore entitled to a declaration of its rights against Defendants with

respect to those subject matters, under 28 U.S.C. Section 2201.
133.

B.A.C.A. is also entitled to all further and proper relief based on such declaration,

as may appear on the facts and circumstances of this case, under 28 U.S.C. Section 2202.
PRAYER FOR RELIEF
WHEREFORE, B.A.C.A. demands judgment in its favor and against Defendants, jointly
and severally, as follows:
1.

Requiring Defendants to account for and pay to B.A.C.A. all money and other

property converted by Defendants to Defendants’ use, including requiring Defendants to return
to B.A.C.A. all of B.A.C.A.’s back patches in Defendants’ possession or in the possession of
confederates of Defendants and any other items wrongfully retained by Defendants;
2.

Awarding B.A.C.A. compensatory damages in an amount to be determined at

trial, plus trebled, enhanced or any other damages that the Court deems appropriate under the
circumstances of the case;
3.

Preliminarily and permanently enjoining Chris Clarke and Huggard, and those

participating or acting in concert with them, from infringing any of B.A.C.A.’s trademarks, including
but not limited to Registered Trademark Nos. 3,771,437, 2,827,542, 3,296,235, and 3,771,311 and
the Patch Logo;
4.

Preliminarily and permanently enjoining Chris Clarke and Huggard, and those

participating or acting in concert with them, from using any mark that is a copy, counterfeit or

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colorable imitation of any B.A.C.A. trademark, including but not limited to B.A.C.A.’s Patch
Logo mark;
5.

Preliminarily and permanently enjoining Chris Clarke and Huggard, and those

participating or acting in concert with them, from making false designations of origin and false
descriptions and representatives, from unfair competition and from injuring and diluting the
distinctiveness of B.A.C.A.’s marks; and from otherwise deceiving, confusing, or misleading the
public by use of marks confusingly similar to those of B.A.C.A.;
6.

Requiring Chris Clarke and Huggard to account for and pay to B.A.C.A., in

accordance with 15 U.S.C. Section 1117, treble damages and attorneys’ fees on those claims
asserted pursuant to 15 U.S.C. Section 1114(1);
7.

Requiring Chris Clarke and Huggard to account for and pay to B.A.C.A., in

accordance with 15 U.S.C. Section 1117, treble damages on those claims asserted under 15
U.S.C. Section 1125(a);
8.

Requiring that all infringing articles and all means by which copies of same may

be reproduced, be impounded and destroyed pursuant to 15 U.S.C. Section 1118;
9.

Awarding B.A.C.A. prejudgment interest at the rate established under 26 U.S.C.

Section 6621(a)(2) from the date of service of this complaint through the date of judgment;
10.

A declaratory judgment that (a) B.A.C.A. owns all of the back patches in

Defendants’ possession that bear the Patch Logo and any of B.A.C.A.’s other marks and those
that remain in the possession of any other parties who are no longer B.A.C.A. members in good
standing; (b) Defendants have no right to possess and/or offer to sell and/or distribute any such
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back patches; and/or (c) Chris Clarke and Huggard have no right to use B.A.C.A.’s trademarks,
including but not limited to Registered Trademark Nos. 3,771,437, 2,827,542, 3,296,235, and
3,771,311 and the Patch Logo in the manner that Chris Clarke and Huggard have heretofore used
them as alleged herein.
11.

Imposing a constructive trust on all assets obtained by Chris Clarke and Huggard

as a result of their infringements and violations of B.A.C.A.’s rights;
12.

Awarding B.A.C.A. punitive damages;

13.

Awarding prejudgment and post-judgment interest as allowed by law;

14.

Awarding B.A.C.A. its allowable costs;

15.

Awarding B.A.C.A. its reasonable attorneys’ fees; and

16.

Awarding B.A.C.A. such other and further relief as is just and equitable in the

premises.
DATED this 28th day of August, 2015.
PARR BROWN GEE & LOVELESS, P.C.
_/Gregory M. Hess/_______________
*
Attorneys for B.A.C.A. International, Inc.

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