Case 2:16-cv-00972-MWF-SS Document 1 Filed 02/11/16 Page 1 of 9 Page ID #:1

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RUSS, AUGUST & KABAT

JULES L. KABAT , State Bar No. 061659
Email: ikabat@raklaw.com
IRENE Y. LEE, State Bar No. 213625
Email: ilee@raklaw.com
NATHAN D. MEYER, State Bar No. 239850
Email: nmeyer@raklaw '.com
lih Floor
12424 Wilshire Boulevard
Los Angeles, California 90025
Telephone: 310-826-7474
Facsimile: 310-826-6991

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Attorneys for Plaintiff Pitch, Inc.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA .

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PITCH , INC., a California Corporation,

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Plaintiff,

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v.

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MJ WARREN ENTERPRISES, INC .,

dba THE PITCH EXPERIENCE , a
California Corporation, MICHAEL
JOHN WARREN, an individual,

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Defendants.

Case No. 2:16-CV-972

COMPLAINT FOR:
TRADEMARK INFRINGEMENT ;
2) UNFAIR COMPETITION UNDER
ALIFORNIA BUSINESS &
PROFESSIONS CODE & 17200; AND
(3) COMMON LAW UNFAIR
COMPETITION
DEMAND FOR JURY TRIAL

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Plaintiff Pitch, Inc. ("Plaintiff ' or "Pitch") alleges as follows against

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defendants MJ Wan-en Enterprises, Inc. doing business as The Pitch Experience

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("MJW") and Michael John Wan-en ("Wan-en") (collectively "Defendants"):

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COMPLAINT

Case 2:16-cv-00972-MWF-SS Document 1 Filed 02/11/16 Page 2 of 9 Page ID #:2

1.

This case anses from Defendants'

intentional infringement and

violation of Plaintiffs protected "Pitch" trademarks (United States Trademark

Registration 4,718,259 in connection with, inter alia, "advertising and marketing")

and protected trade dress rights (collectively "Pitch Marks/Dress"). Plaintiff has

used its Pitch Marks/Dress continuously since 2008. In 2015, Defendants began

using deceptively similar marks, _names, art and other things, in a similar manner,

for identical services in intentional violation of Plaintiffs

"Defendants Infringing Uses"). The following is a comparison of Plaintiffs

protected Pitch Marks/Dress and examples of Defendants Infringing Uses:

rights (collectively

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Pitch, Inc.

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The Pitch Expel"ience

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Pitch, Inc.

The Pitch Experience

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PITCH

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Pitch, Inc.

The Pitch Experience

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ABOUT US

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COMPLAINT

Case 2:16-cv-00972-MWF-SS Document 1 Filed 02/11/16 Page 3 of 9 Page ID #:3

Pitch,
Inc.

ThePitch
Experience

www.thepitchagency.com

www.thepitchexperience.com

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Parties

2.

Plaintiff Pitch, Inc. ("Pitch" or "Plaintiff') is a Califmnia corporation

with its principal place of business in the County of Los Angeles, State of

California.

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3.

Plaintiff is informed, believes and based thereon alleges that

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defendant MJ WaiTen Enterprises, Inc. ("MJW") is a California corporation with

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its principal place of business in the County of Los Angeles, State of California.

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Infringing and violating Plaintiffs rights, MJW does business as "The Pitch

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Experience."

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4.

Plaintiff is informed, believes and based thereon alleges defendant

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Michael John WaiTen ("Wa1Ten") is an individual who is the owner, principal,

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founder, strategist and controlling person of MJW and resides and conducts

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business in the County of Los Angeles, State of California.

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5.

Plaintiff is infmmed, believes and based thereon allege that at all

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material times, WaiTen was the alter ego of MJW and vice versa. Plaintiff is

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informed, believes and based thereon alleges that, (i) there was, is and continues to

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be a unity of interest between MJW and Wa1Ten, such that individuality and

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separateness between theni does not exist, (ii) they commingle their finances and

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affairs, (iii) they inadequately capitalize MJW, (iv) they are the alter egos of each

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other, and/or (v) adherence to the fiction of the separate existence of MJW and

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Wa1Ten, particularly including without limitation any assertion of isolated

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corporate liability and no Wa1Ten liability, is inequitable and would allow and

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encourage fraud and promote injustice.

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COMPLAINT

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Plaintiff and Defendants offer advertising , marketing and business

consulting and services.

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This is an action for registered trademark infringement in violation of

32 and 43(a) of the Lanham Act, 15 U.S.C. 1114 and 1125(a), and unfair

competition under Califmnia state law, which activities have occurred in this

district and elsewhere in interstate commerce within the United States.

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Jurisdiction and Venue

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This court has jurisdiction pursuant to 39 of the Lanham Act 15

U.S.C. 1121, 28 U.S.C. 1331 and 1338(a) and (b). This comi has

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jurisdiction over claims in this complaint that arise under Califmnia state law

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pursuant to 28 U.S.C. 1367 as the Califmnia state law claims are so related to the

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federal claims that they fmm paii of the same case or controversy and derive from

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a common nucleus of operative fact.

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Defendants are subject to personal jurisdiction in this district and

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court because Defendants reside, are headquaiiered in, conduct business in and/ or

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conducted a substantial part of, if not all of, their infringing and violating conduct

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in this district.

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10.

Venue in this district and comi is proper pmsuant to 28 U.S.C. 1391

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because Defendants reside, are headquartered in, conduct business in and/ or

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conducted a substantial paii of, if not all of, their infringing and violating conduct

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in this district and because all parties are subject to personal jurisdiction and venue

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in this district and court.

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Plaintiff is an advertising agency. Plaintiff began offering services -

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under its Pitch/Marks Dress in 2008, and has done so continuously in commerce

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since that date, including the stylized marks pictured above as trade dress.

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12.

Plaintiff registered the protected mark "Pitch," registration

no.

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4,718,259, registered April 7, 2015, and is the owner of all right, title and interest

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in the trademark and the conesponding Certificate of Registration, and of all of its
2876 -0 16 1602 11 Comp laint.doc x

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COMPLAINT

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Pitch Marks/Dress.
13.

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advertising agency infringing and violating Plaintiffs

attendant rights, including as set forth in paragraph 1, supra.

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dress, including as set forth in paragraph 1, supra.

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In addition to offering identical and similar services under an

infringing and violating identical name, Defendants also utilized Plaintiffs trade

Pitch Marks/Dress and

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In 2015, Plaintiff discovered Defendants were operating a competing

Plaintiff has demanded that Defendants cease and desist Defendants

Infringing Uses, but Defendants have failed to comply and cease and desist doing
so.

First Claim for Relief: Trademark Infringement Against All Defendants

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Plaintiff repeats the allegations of paragraphs

1-15, supra, and

incorporates them by reference as if herein set f01ih in their entirety.

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From 2008, Plaintiff

used its Pitch Marks/Dress

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commerce to identify the source of its services and to distinguish it from others by

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prominently displaying the Pitch Marks/Dress in connection with its services. The

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protected "Pitch" mark is federally registered, as mark No. 4,718,259.

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Defendants Infringing Uses, including without limitation "The Pitch

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Experience,"

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Marks/Dress and intended to steal and trade on the goodwill created by Plaintiff.

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are in imitation, infringement and violation of Plaintiffs

Pitch

Defendants have, without permission, willfully and with the intention

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of benefiting from the reputation and goodwill of Pitch, offered services under

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Defendants Infringing Uses, including without limitation "The Pitch Experience."

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Plaintiff is info1med, believes and based thereon alleges that in

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addition to W anen creating and usfog Defendants Infringing Uses, W anen

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directed, controlled and caused MJW also to do so.

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There is a substantial likelihood of confusion on the part of the public

and clients regarding

2876-016 160211Complaint.docx

and between the Pitch Marks/Dress

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COMPLAINT

and Defendants

Case 2:16-cv-00972-MWF-SS Document 1 Filed 02/11/16 Page 6 of 9 Page ID #:6

Infringing Uses.

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clients and business away from Plaintiff.

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Defendants'

conduct and Defendants

Infringing Uses constitute

trademark infringement in violation of 43(a) of the Lanham Act (15 U.S.C.

1125(a)) and 32 of the Lanham Act (15 U.S.C. 1114), which prohibit the use in

commerce in connection with the sale of goods or rendering of any services of any

word, term, name, symbol or device, or any combination thereof, that is likely to

cause confusion, or to cause mistake, or to deceive as to the source of the goods or

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Defendants intended to and/or are likely to deceive, divert and usurp

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services.
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As a direct and proximate result of Defendants' intentional, willful

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and wanton conduct and Defendants Infringing Uses, Plaintiff has been injured and

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will continue to suffer ineparable harm and injury to its business, reputation and

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goodwill unless Defendants are restrained

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Marks/Dress, including without limitation being restrained from using Defendants

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Infringing Uses.

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from infringing Plaintiffs

Pitch

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Plaintiff has no fully complete and adequate remedy at law and is

entitled to injunctive relief pursuant to 15 U.S.C. 1114 and 1116(d).

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Plaintiff is entitled to recover actual damages and Defendants' profits

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pursuant to 15 U.S.C. 1117(a); treble damages pursuant to 15 U.S.C. 1117(a)

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and (b ); attorney's fees and costs pursuant to 15 U.S.C. 1117(a); seizure of all

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infringing goods pursuant to 15 U.S.C. 1116(d); and impoundment

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destruction of all infringing goods pursuant to 15 U.S.C. 1118.

and

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Second Claim for Relief: Unfair Competition Under California Business &

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Professions Code 17200 Et Seq. Against All Defendants

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Plaintiff repeats the allegations of paragraphs

1-26, supra, and

incorporates them by reference as if herein set forth in their entirety.

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Defendants'

2876 -016 1602 11 Complaint.docx

acts and conduct constitute unfair competition and

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COMPLAINT

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misappropriation of Plaintiffs

Califmnia Business & Professions Code 17200 et seq.

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Defendants misappropriated, including in bad faith, the labors and

expenditures of Plaintiff.
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As a direct and proximate result of Defendants' unlawful, unfair

and/or fraudulent business practices including without limitation Defendants

Infringing Uses, Plaintiff has suffered, and will continue to suffer, iITeparable harm

and injury.

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trademark and related rights m violation of

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Plaintiff has no fully complete and adequate remedy at law, and

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Defendants' conduct has caused and will continue to cause irreparable hmm and

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injury to Plaintiffs business, reputation and goodwill.

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continuing its actionable misconduct including without limitation Defendants

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Infringing Uses, and Plaintiff is entitled to restitution of all amounts acquired by

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Defendants by means of such wrongful act.

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Plaintiff is entitled to an injunction prohibiting Defendants from

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Third Claim for Relief: Common Law Unfair Competition

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Against All Defendants

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Plaintiff repeats the allegations of paragraphs 1-32, supra, and

incorporates them by reference as if herein set forth in their entirety.

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Defendants' actionable misconduct is intended to and/or likely to

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cause confusion, misrepresentation, mistake and/or deceive the public and clients

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as to the affiliation, approval, sponsorship, or connection between Plaintiff and

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Defendants, and therefore constitutes common law unfair competition under

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California law.

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Plaintiff has been damaged and will continue to be damaged by

Defendants' actionable misconduct.

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Defendants' actionable misconduct is causing and will continue to

cause Plaintiff to suffer in-eparable harm and injury and, unless Defendants are
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COMPLAINT

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restrained from so acting including Defendants Infringing Uses, Plaintiff will

continue to be so damaged because it has no fully complete and adequate remedy

at law.

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Accordingly,

Plaintiff

respectfully

requests

that Defendants

be

enjoined from continuing their actionable misconduct including without limitation

Defendants Infringing Uses, and that Plaintiff be awarded damages in an amount to

be determined at trial.

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Plaintiff

is informed,

believes

and based thereon

alleges

that

Defendants' conduct was willful, wanton malicious and in conscious disregard of

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Plaintiff's rights, justifying an award of punitive and/or exemplary damages in an

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amount to be proven at trial.

Prayer for Relief

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Wherefore, Plaintiff prays for relief and judgment jointly and severally
against Defendants as follows:
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An order enjoining each of Defendant .s from engaging m, offering

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and/or providing goods or services in connection with any name or art or dress

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identical to or confusingly similar to Plaintiff's

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without limitation Defendants Infringing Uses;

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2.

Pitch Marks/Dress, including

For an award of each of Defendants gains, profits and advantages

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derived from their trademark infringement

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without limitation Defendants Infringing Uses.

and unfair competition, including

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3.

For treble damages pursuant to 15 U.S.C. 1117(a) and (b);

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For punitive damages;

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5.

Declaring this to be an exceptional case within the meaning of 15

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u.s.c. 1117;

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6.

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For Plaintiff's expenses and attorney's fees pursuant to 15 U.S.C.

1117(a); and
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For such other relief as the court deems just, equitable and proper.

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COMPLAINT

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DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b ), Plaintiff Pitch, Inc.
demands trial by jury on all issues.

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Dated: February 11, 2016

RUSS , AUGUST & KABAT

Jules L. Kabat
Irene Y. Lee
Nathan D. Meyer

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By: Jules
Attorneys for Plaintiff Pitch , Inc.

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COMPLAINT