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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 1 of 25

QUARLES & BRADY LLP


1
Firm State Bar No. 00443100
2
Michael J. Curley (AZ Bar #025972)
3 Michael.Curley@quarles.com
4 One South Church Avenue, Suite 1700
Tucson, AZ 85701-1621
5 TEL: (520) 770-8768
6
Isaac S. Crum (AZ Bar #026510)
7 Isaac.Crum@quarles.com
One Renaissance Square
8 Two North Central Avenue
9 Phoenix, AZ 85004
Tel: (602) 229-5200
10
Attorneys for The Arizona Board of Regents on
11
behalf of The University of Arizona
12
IN THE UNITED STATES DISTRICT COURT
13
FOR THE DISTRICT OF ARIZONA
14
15 The Arizona Board of Regents on behalf of
The University of Arizona, Case No.
16
Plaintiff,
17
18 v. COMPLAINT

19 Scumdevils, LLC; Manuel A. Rocha; (JURY TRIAL DEMANDED)


20 Francisco J. Jacinto; and DOES 1-10,

21 Defendants.
22
23 COMPLAINT
24 Plaintiff, The Arizona Board of Regents on behalf of The University of Arizona
25 (University of Arizona or the University), by and through its attorneys at Quarles &
26 Brady LLP, files this Complaint against Defendants Scumdevils, LLC, Manuel A. Rocha,
27 Francisco J. Jacinto, and DOES 110 (collectively Scumdevils or Defendants).
28 Plaintiff states and alleges as follows:

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 2 of 25

1 NATURE OF THE ACTION


2 1. This is an action trademark infringement, false designation of origin, and a
3 request for trademark cancellation, arising under the Lanham Act, 15 U.S.C. 1051
4 1127. This is also an action for misappropriation and unfair competition arising under the
5 common law of the State of Arizona. Plaintiff seeks injunctive relief and damages arising
6 from Defendants infringement of the Universitys marks as described below.
7
8 JURISDICTION, VENUE AND PARTIES
9 2. This Court has subject matter jurisdiction of this action under Section 39 of
10 the Trademark Act of 1946, 15 U.S.C. 1121; 28 U.S.C. 1331 and 1338; and the
11 doctrine of supplemental jurisdiction, 28 U.S.C. 1367.
12 3. Venue is proper in this Court under 28 U.S.C. 1391(b) and 1400(a).
13 4. Plaintiff is a public educational institution organized under the laws of the
14 State of Arizona having a location at 103 Administrative Bldg., 1401 E. University
15 Boulevard, Tucson, Arizona, 85721-0066.
16 5. Upon information and belief, Defendant Scumdevils, LLC is a limited
17 liability corporation organized under the laws of the State of Arizona with its principal
18 place of business at 111 W. Camino Rancho Quito, Sahuarita, AZ.
19 6. Upon information and belief, Defendant Manuel A. Rocha is an individual
20 and a member of Scumdevils, LLC. Upon information and belief Mr. Rocha maintains a
21 primary residence and is domiciled at 851 W. Calle Valenciana, Sahuarita, Arizona
22 85629.
23 7. Upon information and belief, Defendant Francisco J. Jacinto is an individual
24 and a member of Scumdevils, LLC. Upon information and belief Mr. Jacinto maintains a
25 primary residence and is domiciled at 111 W. Camino Rancho Quito, Sahuarita, Arizona
26 85629.
27 8. Upon information and belief, DOES 110 are individuals who own
28 community property with Mr. Rocha and Mr. Jacinto during the relevant timeframe for

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1 damages in the instant lawsuit. Upon information and belief, potential DOES 110 reside
2 and are domiciled at the same address as Mr. Rocha and Mr. Jacinto.
3 9. Upon information and belief, Defendants have intentionally made available
4 their website and web services to users in the State of Arizona and in this Judicial District.
5 Upon information and belief, Defendants have intentionally conducted directed sales
6 efforts to potential customers in the State of Arizona, including fans, students, employees,
7 and alumni of the University of Arizona. Further, the Defendants commission of the acts
8 complained of below were expressly aimed at Plaintiffs rights in this Judicial District and
9 have caused harm to Plaintiff whose principal place of business is in this Judicial District.
10 10. Defendants are subject to personal jurisdiction in this State of Arizona in
11 this Judicial District.
12
13 BACKGROUND
14
15 A. The University of Arizona
16 11. The University of Arizona was founded in 1885 and is the flagship
17 university in the State of Arizonas public university system. The University offers
18 undergraduate and graduate educational and athletic programs. In 2015, the University
19 enrolled over 40,000 students.
20 12. On information and belief, since November 8, 1914, the University of
21 Arizonas athletic teams have been known as the Wildcats. Since that time, the
22 University has used the mark WILDCATS, as well as related marks containing the word
23 WILDCAT for the promotion of its student athletes, as well as in connection with the
24 promotion and sale of educational and entertainment services, including athletic events.
25 Additionally, the University and its licensees have used the WILDCATS mark and other
26 related marks containing the term WILDCAT in connection with the promotion and sale
27 of goods, including apparel sold in association with the promotion of the Universitys
28 sports teams to persons desiring to associate themselves with the University of Arizona.

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1 13. The University of Arizona is the owner of multiple federal trademark


2 registrations for WILDCAT-related marks for use on apparel, including:
3 a. Reg. No. 1,504,908 (first use date: 1980) for ARIZONA WILDCATS
4 (words plus design) used in connection with hats, shirts, t-shirts,
5 jackets, sweatshirts, sweatpants, shorts, socks, and visors in
6 International Class 25;
7 b. Reg. No. 1,720,369 (first use date: 1974) for CATS used in connection
8 with socks, sweatshirts, sweaters, sweatpants, hats, and shoes offered
9 and sold in association with the promotion of the universitys sports
10 teams to persons desiring to associate themselves with the University of
11 Arizona in International Class 25;
12 c. Reg. No. 2,679,963 (first use date: 1950) for ARIZONA WILDCATS
13 used in connection with Clothing, namely, t-shirts, sweat shirts, sweat
14 pants, shorts, belts, socks and caps in International Class 25;
15 (collectively the Registered Wildcat Trademarks). Copies of the Certificates of
16 Registration for the Registered Wildcat Trademarks are attached as Exhibits 13.
17 14. In addition to the Registered Wildcat Trademarks, the University of Arizona
18 is the owner of common law rights in the use of marks containing the term(s)
19 WILDCAT(S). These trademarks have been used since the early 1900s and have been
20 used in commerce since at least the 1950s. Collectively, all marks used by the University
21 containing the world WILDCAT in either its singular or plural form, are referred to herein
22 as the WILDCATS marks. The consuming public (e.g., University of Arizona sports
23 fans) expects and would expect that apparel containing WILDCATS marks would
24 originate from, or be approved or sponsored by the University of Arizona.
25 15. The University of Arizona is also the owner of a trademark registration for
26 its well-known wildcat head image, which was registered in 1992 and which has been
27 used by the University of Arizona since 1980 (Reg. No. 1,685,999) (the Registered
28 Wildcat Head Trademark):

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9 (A Copy of the Certificate of Registration for the Registered Wildcat Head Trademark is
10 attached as Exhibit 4.)
11 16. In addition to the Registered Wildcat Head Trademark, the University of
12 Arizona is the owner of common law rights in the use of the wildcat head image for
13 apparel. This image has been used on apparel since 1980 and the consuming public (e.g.,
14 University of Arizona sports fans) expect and would expect that apparel containing the
15 wildcat head image would originate from, or be approved or sponsored by the
16 University of Arizona.
17 17. The University of Arizona is also the owner of a trademark registration for
18 BEAR DOWN. The BEAR DOWN mark was registered in 1988 and has been used in
19 commerce by the University of Arizona since 1977 (Reg. No. 1,508,238) (the Registered
20 Bear Down Trademark). A Copy of the Certificates of Registration for the Registered
21 Wildcat Bear Down Trademark is attached as Exhibit 5.
22 18. In addition to the Registered Bear Down Trademark, the University of
23 Arizona is the owner of common law rights in the use of the BEAR DOWN mark. This
24 trademark has been used in commerce since 1977 and the consuming public (e.g.,
25 University of Arizona sports fans) expect and would expect that apparel containing the
26 BEAR DOWN mark would originate from, or be approved or sponsored by the University
27 of Arizona.
28

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1 19. In 1904, the University adopted a now widely recognized combination of


2 bright red and dark blue as its official schools colors. Since that time, the University has
3 used those colors, particularly in combination, as trademarks in connection with the
4 promotion and sale of goods, including apparel sold in association with the promotion of
5 the Universitys sports teams to persons desiring to associate themselves with the
6 University of Arizona.
7 20. The University often uses its marks in combination. Further, the University
8 often uses the foreign language equivalents of its word marks, particularly Spanish
9 equivalents. For example, a licensed University t-shirt including the Registered Wildcat
10 Head trademark and the text VIVA LOS GATOS, used and identified as one of the
11 Universitys trademarks, is pictured below.
12
13
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25 21. The Registered Wildcat Trademarks, the Registered Wildcat Head
26 Trademark, and the Registered Bear Down Trademark are hereafter collectively referred
27 to as the Registered Trademarks.
28

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1 22. The University of Arizonas common law rights in its use of the
2 WILDCATS marks, the wildcat head image, and the BEAR DOWN mark are hereafter
3 collectively referred to as the Common Law Trademarks.
4 23. The University of Arizona and Defendants have not entered into any
5 agreement regarding the licensing of any trademark rights owned or in possession of
6 either party.
7 24. Specifically, Defendants are not authorized or otherwise licensed by the
8 University of Arizona to use any trademarks owned by the University of Arizona,
9 including the Registered Trademarks.
10
11 B. Defendants
12 25. On information and belief, Scumdevils is a domestic limited liability
13 company registered in the State of Arizona and doing business primarily online at the
14 website: http://www.scumdevils.com .
15 26. The listed members of Scumdevils are co-defendants Manuel A. Rocha and
16 Francisco J. Jacinto.
17 27. The Scumdevils website purports to offer brand name apparel with a dual
18 purpose. Show off your pride and support for the UA Wildcats while simultaneously
19 displaying hate towards ASU. (See below.)
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14 http://www.scumdevils.com/about-us/ (last accessed April 27, 2017).
15 28. Through the Scumdevils website, the Defendants sell apparel which is based
16 on known University of Arizona trademarks, and which incorporates symbols, logos and
17 other devices, used as Scumdevils trademarks, which are confusingly similar to the
18 University's Common Law Trademarks and Registered Trademarks.
19 29. For example, the Scumdevils website offers for sale a number of items
20 which prominently feature a design based on the wildcat head with the words Arizona
21 GATOS [cats] written in the beard of the wildcat (the Dia De Los Arizona Gatos
22 design). Below is a side-by-side comparison of Defendants Dia De Los Arizona Gatos
23 design and the University of Arizonas Registered Wildcat Head Trademark:
24
25
26
27
28

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http://scumdevils.com/product/dia-de-los-gatos-navygrey-baseball-shirt/ (last accessed
10 April 27, 2017)
11 30. The close similarity of the images is likely to cause confusion in the

12 consuming public regarding the relationship between Defendants and the University of

13 Arizona and is likely to wrongly suggest to the consuming public that Defendants

14 merchandise is licensed, sponsored or approved by or otherwise affiliated with the

15 University of Arizona.

16 31. An application to register the Dia De Los Arizona Gatos design as a

17 trademark was filed by Scumdevils members (and co-defendants), Mr. Rocha and Mr.

18 Jacinto, on March 10, 2014 and a corresponding trademark registration issued to Mr.

19 Rocha and Mr. Jacinto on March 1, 2016. (Trademark Reg. No. 4,909,355, hereafter the

20 Dia De Los Arizona Gatos Trademark.)

21 32. The Scumdevils website also sells a number of items which prominently

22 feature a WC hand gesture as shown below. An application to register a design based

23 on the WC hand gesture as a trademark was filed by Scumdevils members (and co-

24 defendants), Mr. Rocha and Mr. Jacinto, on March 26, 2014 and the WC hand gesture

25 trademark was registered by Mr. Rocha and Mr. Jacinto on Dec. 22, 2015. (Trademark

26 Reg. No. 4,875,081, hereafter the WC Trademark.) Scumdevils, which is wholly

27 owned and operated by Mr. Rocha and Mr. Jacintoas the sole managing members of

28 Scumdevilsnow sells a number of products which contain this WC hand gesture

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 10 of 25

1 along with (from left-to-right) a stylized basketball, an outline of the State of Arizona, and
2 the hashtag BTFD.
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4
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10 http://scumdevils.com/pro http://scumdevils.com/pro http://scumdevils.com/pro
duct/mens-basketballwc- duct/mens-copper-wcstate- duct/mens-wcbtfd-navy-
11 navy-tee/ premium-fit-shirt/ tee/
12
13 (Last accessed April 27, 2017.)
14 33. Prior to the application to register the WC hand gesture by Mr. Rocha and
15 Mr. Jacinto, the WC hand gesture was known as a reference to the University of
16 Arizona Wildcats. On information and belief, the WC hand gesture was created in 2003
17 by University of Arizona swimmer Simon Burnett and had been used by students (and
18 student athletes) since that time to refer to the University of Arizona. See February 1,
19 2014 Arizona Daily Star article by Zack Rosenblatt, available at:
20 http://tucson.com/sports/college/wildcats/like-the-ua-s-wc-sign-give-a-hand-
21 to/article_8d15f230-0a32-599f-ad73-7a3008b19a7e.html (last accessed April 27, 2017).
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1
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9 Id.
10 34. The hand gesture is associated with the University of Arizona Wildcats and
11 connotes Wildcat pride by forming a WC, shorthand for Wildcat. As explained by
12 Mr. Roseblatt in his article (which pre-dates Defendants registration of the symbol):
13 Its something they do when athletes are getting individual
14 recognition, and calling attention back to the university, if you
will, [University of Arizonas Senior Associate Athletic
15 Director Suzy] Mason said.
16 For future Wildcats, the WC is a way to broadcast their next
17 stop.

18 Salpointe Catholics Kaelin Deboskie and Cameron Denson,


both UA commits, flashed the signs during last falls state
19 championship game in Arizona Stadium.
20
Recently, Deboskie played in the West Coast Bowl, a high
21 school All-Star Game in Redondo Beach, Calif., alongside a
few more future Wildcats.
22
Pictures surfaced on Twitter of him teaching them the WC.
23
24 Im super-excited to be a Wildcat, Deboskie said. The
major colleges all have their little signs. When you have a
25 rising program, you should have something that kids, recruits
and stuff, come in and see that.
26
27 Id.
28

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1 35. Defendants WC Trademark is identical to the identifying symbol first


2 conceived of by Simon Burnett in 2003 and used by the University of Arizona, its
3 students, and its student-athletes ever since.
4 36. The WC hand gesture depicted in Mr. Rocha and Mr. Jacintos registration
5 has been affiliated with the University of Arizona and with University of Arizona sports
6 since well before its registration by Mr. Rocha and Mr. Jacinto.
7 37. The WC hand gesture, as described in the Rosenblatt article has been
8 recognized by the University of Arizona and its athletic department as something
9 [student-athletes] do when athletes are getting individual recognition, and calling attention
10 back to the university. Id.
11 38. The WC hand gesture was designed to and does create the initials WC as
12 shorthand for wildcat referencing the University of Arizonas mascot and sports
13 programs. Id.
14 39. The #BTFD hashtag on Defendants apparel also is associated with the
15 University of Arizona and confusingly similar to the Universitys own trademarks.
16 40. #BTFD is understood among the University of Arizonas affiliates,
17 including the consuming public for University of Arizona apparel, to stand for Bear The
18 Fuck Down, a phrase that is confusingly similar to the University of Arizonas well
19 known BEAR DOWN Trademark. See
20 http://www.urbandictionary.com/define.php?term=btfd (definition number 2) (last
21 accessed April 28, 2017).
22 41. #BTFD has been repeated on Twitter by a number of University of
23 Arizona related individuals and is commonly used in conjunction with news or tweets
24 which relate to the University of Arizona and its athletic program. For example,
25 University of Arizona alumnus Stanley Johnson (currently playing basketball in the NBA
26 for the Detroit Pistons) has tweeted #BTFD):
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42. Similarly, #BTFD had been tweeted by the @scumdevils twitter account
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(which, upon information and belief, is associated with or owned by Defendants) in
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connection with the University of Arizona and its athletic department alumni:
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24 43. Defendants sale of apparel containing #BTFD is likely to cause

25 confusion as to association or ownership among the consuming public based on the

26 University of Arizonas well know BEAR DOWN Registered Trademarks and the

27 University of Arizonas common law rights in BEAR DOWN.

28

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1 44. The Scumdevils website, as well as the apparel sold there, freely
2 incorporates the University of Arizonas widely recognized combination of bright red and
3 dark blue (i.e., the Universitys distinctive and source identifying color scheme), thereby
4 increasing the likelihood that apparel available through the Scumdevils website will be
5 mistakenly assumed by the consuming public to be affiliated with or sponsored or
6 approved by the University of Arizona. An example of Defendants use of the
7 Universitys distinctive color scheme is pictured below:
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http://scumdevils.com/product/mens-basketballwc-navy-tee/ (showing both the red-and-
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blue scumdevils.com logo and red-and-blue themed t-shirt) (last accessed April 27, 2017).
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45. On or about May 10, 2016, counsel representing the University of Arizona
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informed Defendants of their infringement of the Universitys trademarks.
23
46. During the remainder of 2016, the parties attempted to negotiate a
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settlement of this dispute, which negotiations were unsuccessful.
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47. As of April of 2017, Defendants continue to list the infringing items at
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www.scumdevils.com, and continue to use the University's distinctive color scheme, both
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in the subject apparel and on the website itself.
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1 48. As a result, the Defendants continue to infringe the Universitys trademarks


2 as described above.
3 49. Further, since Defendants have known of the Universitys claims of
4 trademark infringement since at least May 10, 2016, the Defendants continued
5 infringement since that time has been and continues to be willful and in blatant disregard
6 of the Universitys rights.
7
8 C. Alter Ego
9 50. Upon information and belief, Mr. Rocha and Mr. Jacinto are the sole
10 members of Scumdevils, LLC, thus there is complete unity of interest and ownership
11 between them and Scumdevils.
12 51. Further, based on filings with the United States Patent and Trademark
13 Office (USPTO), the WC Trademark was issued to Mr. Rocha and Mr. Jacinto,
14 personally.
15 52. Upon information and belief Mr. Rocha and Mr. Jacinto obtained the WC
16 Trademark for use with their company Scumdevils, LLC.
17 53. That Mr. Rocha and Mr. Jacinto obtained the WC Trademark for use with
18 Scumdevils, LLC is supported at least by their specimen filings with the USPTO, as
19 shown below:
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11 Oct. 6, 2015 Specimen submitted in support of Trademark Serial No. 86233387
12 (Registration No. 4,875,081).
13 54. Because Mr. Rocha and Mr. Jacinto have failed to maintain separate entities
14 with respect to themselves individually and with respect to Scumdevils, at least as is
15 shown by their individual registration of the WC Trademark despite their clear intent to
16 use it in conjunction with Scumdevils, for the Court to maintain separate entities with
17 respect to the Defendants would result in fraud and injustice.
18
19 FEDERAL TRADEMARK INFRINGEMENT
20 UNDER LANHAM ACT 32 (15 U.S.C. 1114(1))
21 55. The University of Arizona incorporates by reference the allegations
22 contained in paragraphs 1 through 54 above as though fully set forth herein.
23 56. University of Arizona is the legal owner of the Registered Wildcat Head
24 Trademark which is distinctive and has been used in commerce. The University of
25 Arizona has registered its mark with the United States Patent and Trademark Office as
26 Registration No. 1,685,999.
27 57. University of Arizona is the legal owner of the Registered Wildcat
28 Trademarks which are distinctive and have been used in commerce. The University of

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1 Arizona has registered its marks with the United States Patent and Trademark Office as
2 Registration Nos. 1,504,908; 1,720,369; and 2,679,963.
3 58. University of Arizona is the legal owner of the Registered Bear Down
4 Trademark which is distinctive and has been used in commerce. The University of
5 Arizona has registered its mark with the United States Patent and Trademark Office as
6 Registration No. 1,508,238.
7 59. Defendants, without the University of Arizonas authorization, have used
8 and are making use of the Registered Trademarks (or a confusingly similar reproductions
9 thereof).
10 60. Upon information and belief, Defendants have undertaken these acts
11 willfully and with the intent to trade on the University of Arizonas reputation and to
12 cause confusion, mistake, and deception on the public.
13 61. Upon information and belief, such confusion and deception is a likely result
14 of Defendants use of the University of Arizonas Registered Trademarks, which confuses
15 the public regarding the relationship between Defendants and the University of Arizona,
16 and the sponsorship, affiliation or approval of Defendants goods.
17 62. Upon information and belief, Defendants have profited through the
18 impermissible use of the University of Arizonas Registered Trademarks by, inter alila,
19 capitalizing on the publics belief that they are (or their products are) affiliated with the
20 University of Arizona.
21 63. Defendants actions complained of have at all times been without the
22 University of Arizonas consent, and their acts constitute infringement of the federally
23 registered University of Arizona Registered Trademarks in violation of 15 U.S.C.
24 1114(1).
25 64. Defendants infringement is willful.
26 65. The University of Arizona is entitled to an injunction prohibiting further use
27 of the University of Arizonas Registered Trademarks.
28

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1 66. The University of Arizona is entitled to recover all damages sustained as a


2 result of the unlawful conduct, including three times Defendants profits, the University of
3 Arizonas damages, as well as the costs of this suit and attorneys fees, pursuant to 15
4 U.S.C. 1117.
5
6 FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN
7 UNDER LANHAM ACT 43(A) (15 U.S.C. 1125(A)
8 67. The University of Arizona incorporates by reference the allegations
9 contained in paragraphs 1 through 66 above as though fully set forth herein.
10 68. The University of Arizona has rights in the Registered and Common Law
11 Trademarks through the use of the marks in commerce, such rights existing long before
12 any use of the marks by Defendants.
13 69. Defendants acts complained of herein constitute unfair competition under
14 section 43(a) of the Lanham Act (15 U.S.C. 1125(a)).
15 70. Upon information and belief, Defendants deliberately and intentionally
16 infringed on University of Arizonas Registered and Common Law Trademarks (or
17 confusingly similar reproductions thereof).
18 71. Upon information and belief, Defendants, without University of Arizonas
19 authorization, have incorporated into their products and on their web pages, copies of the
20 University of Arizonas Registered and Common Law Trademarks (or confusingly similar
21 reproductions thereof).
22 72. Upon information and belief, Defendants actions have caused and are likely
23 to cause confusion, mistake, or deception as to the affiliation, connection, or association
24 between the University of Arizona and Defendants goods, services, and/or commercial
25 activities.
26 73. Upon information and belief, Defendants actions have caused and are likely
27 to cause confusion, mistake or deception regarding the origin, sponsorship, or approval of
28 Defendants goods, services, and/or commercial activities.

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1 74. Upon information and belief, Defendants use of the University of Arizonas
2 Registered and Common Law Trademarks connotes a false and misleading statement that
3 Defendants website and products are affiliated with University of Arizona. This
4 statement deceived, or had the capacity to materially deceive, potential customers into
5 purchasing merchandise from Defendants. Defendants website and products are
6 used/sold in interstate commerce and the University of Arizona has been or is likely to be
7 injured as a result of Defendants use of the University of Arizonas Registered and
8 Common Law Trademarks.
9 75. As a result of Defendants actions, University of Arizona is entitled to an
10 injunction and entitled to recover all damages sustained as a result of the unlawful
11 conduct, including Defendants profits, University of Arizonas damages, as well as the
12 costs of this suit and attorneys fees and any other remedies available at common law.
13
14 CANCELLATION OF SCUMDEVILS TRADEMARK REGISTRATIONS
15 UNDER LANHAM ACT 2(A), (D) (15 U.S.C. 1052(A), (D))
16 76. University of Arizona incorporates by reference the allegations contained in
17 paragraphs 1 through 75 above as though fully set forth herein.
18 77. Defendants WC Trademark is identical to the identifying symbol first
19 conceived of by Simon Burnett in 2003 and used by the University of Arizona, its
20 students, and its student-athletes ever since.
21 78. The WC hand gesture depicted in Defendants Rocha and Jacintos
22 registration has been affiliated with the University of Arizona and with University of
23 Arizona sports since well before its registration by Defendants Rocha and Jacinto.
24 79. The WC hand gesture, as described in the Rosenblatt article has been
25 recognized by the University of Arizona and its athletic department as something
26 [student-athletes] do when athletes are getting individual recognition, and calling attention
27 back to the university.
28

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1 80. The WC hand gesture was designed to and does create the initials WC as
2 shorthand for wildcat reverencing the University of Arizonas mascot and sports
3 program.
4 81. Defendants registration of the WC trademark and its use of the WC hand
5 gesture falsely suggests a connection with the University of Arizona in violation of
6 Section 2(a) of the Lanham Act.
7 82. Similarly, Defendants Dia De Los Arizona Gatos trademark and
8 Defendants use of the Dia De Los Arizona Gatos design falsely suggest a connection
9 with the University of Arizona in violation of Section 2(a) of the Lanham Act.
10 83. Defendants WC trademark and its Dia De Los Arizona Gatos trademark are
11 confusingly similar to numerous University trademarks, both registered and unregistered.
12 For example, Defendants WC trademark is confusingly similar to the Universitys
13 WILDCAT marks. Additionally, Defendants Dia De Los Arizona Gatos design is
14 confusingly similar to numerous pre-existing University trademarks, including the
15 WILDCAT marks and the Wildcat Head Mark. The use of Defendants WC Trademark
16 and Defendants Dia De Los Arizona
17 84. Defendants WC trademark and its Dia De Los Arizona Gatos trademark are
18 likely, when used on or in connection with the goods of the Defendants, to cause
19 confusion, or to cause mistake, or to deceive, in violation of Section 2(d).
20 85. As a result of Defendants actions, University of Arizona is entitled to the
21 cancellation of the WC Trademark and the Dia De Los Arizona Gatos Trademark.
22
23 COMMON LAW TRADEMARK INFRINGEMENT
24 86. University of Arizona incorporates by reference the allegations contained in
25 paragraphs 1 through 85 above as though fully set forth herein.
26 87. University of Arizona has common law rights in the University of Arizona
27 Common Law Trademarks through the use of the marks in commerce, such rights existing
28 long before any use of the marks by Defendants.

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 21 of 25

1 88. Defendants acts complained of herein constitute common law infringement


2 of the University of Arizona Common Law Trademarks (or confusingly similar
3 reproductions thereof).
4 89. Upon information and belief, Defendants have undertaken these acts
5 willfully and with the intent to trade on University of Arizonas reputation and to cause
6 confusion, mistake, and deception on the public.
7 90. Upon information and belief, such confusion and deception is a result of
8 Defendants use of University of Arizonas Common Law Trademarks which confuse the
9 public regarding the relationship between Defendants and University of Arizona.
10 91. As a result of Defendants infringement, University of Arizona is entitled to
11 an injunction and entitled to recover all damages sustained as a result of the unlawful
12 conduct, including Defendants profits, University of Arizonas damages, as well as the
13 costs of this suit and attorneys fees and any other remedies available at common law.
14
15 COMMON LAW UNFAIR COMPETITION
16 92. The University of Arizona incorporates by reference the allegations
17 contained in paragraphs 1 through 91 above as though fully set forth herein.
18 93. The University of Arizona has rights in the Registered and Common Law
19 Trademarks through the use of the marks in commerce, such rights existing long before
20 any use of the marks by Defendants.
21 94. Defendants acts complained of herein constitute common law unfair
22 competition.
23 95. Upon information and belief, Defendants deliberately and intentionally
24 infringed on University of Arizonas Registered and Common Law Trademarks (or
25 confusingly similar reproductions thereof).
26 96. Upon information and belief, Defendants, without University of Arizonas
27 authorization, have incorporated into their products and on their web pages, copies of the
28

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 22 of 25

1 University of Arizonas Registered and Common Law Trademarks (or confusingly similar
2 reproductions thereof).
3 97. Upon information and belief, Defendants actions have caused confusion,
4 mistake, or deception as to the affiliation, connection, or association between the
5 University of Arizona and Defendants goods, services, and/or commercial activities.
6 98. Upon information and belief, Defendants use of the University of Arizonas
7 Registered and Common Law Trademarks connotes a false and misleading statement that
8 Defendants website and products are affiliated with University of Arizona. This
9 statement deceived, or had the capacity to materially deceive potential customers into
10 purchasing merchandise from Defendants. Defendants website and products are
11 used/sold in interstate commerce and the University of Arizona has been or is likely to be
12 injured as a result of Defendants use of the University of Arizonas Registered and
13 Common Law Trademarks.
14 99. As a result of Defendants actions, University of Arizona is entitled to an
15 injunction and entitled to recover all damages sustained as a result of the unlawful
16 conduct, including Defendants profits, University of Arizonas damages, as well as the
17 costs of this suit and attorneys fees and any other remedies available at common law.
18
19 COMMON LAW MISAPPROPRIATION
20 100. The University of Arizona incorporates by reference the allegations
21 contained in paragraphs 1 through 99 above as though fully set forth herein.
22 101. The University of Arizona had expended substantial time, labor, skill and
23 money in the development of its Registered and Common Law Trademarks.
24 102. University of Arizona generates substantial revenue through the sale and
25 licensing of products bearing its Registered and Common Law Trademarks.
26 103. Defendants have appropriated the University of Arizonas Registered and
27 Common Law Trademarks and have sold products containing said Registered and
28 Common Law Trademarks (or confusingly similar variations thereof) as if they were

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 23 of 25

1 Defendants own, i.e., Defendants are appropriating to themselves the harvest of those
2 who have sown.
3 104. Defendants, thus, are interfering precisely at the point where profit is to be
4 reaped, in order to divert a material portion of the profit from the University of Arizona.
5 105. University of Arizona is entitled to all relief available at common law.
6
7 PRAYER FOR JUDGMENT AND RELIEF
8 WHEREFORE, Plaintiff the University of Arizona prays for a judgment against
9 Defendants as follows:
10 a. That University of Arizonas Registered and Common Law Trademarks are
11 protectable and distinctive;
12 b. That Defendants have infringed University of Arizonas Registered and
13 Common Law Trademarks;
14 c. An award of damages, an accounting of profits, and other relief to the
15 University of Arizona against Defendants for infringement of University of Arizonas
16 Registered Trademarks under 15 U.S.C. 1114, 1116, 1117;
17 d. An award of damages and other relief available to the University of Arizona
18 at common law against Defendants for infringement of University of Arizonas Common
19 Law Trademarks.
20 e. An award of damages and other relief available to Plaintiff owing to
21 Defendants misappropriation;
22 f. An increase of the sums awarded to University of Arizona to three times the
23 actual damages pursuant to 15 U.S.C. 1117, et seq.;
24 g. An award to University of Arizona of attorney fees and costs under 15
25 U.S.C. 1117, et seq.;
26 h. A grant of preliminary and final injunctions to prevent further infringement
27 of University of Arizonas Registered and Common Law Trademarks;
28

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 24 of 25

1 i. A grant of preliminary and final injunctions ordering seizure and destruction


2 of all infringing goods, and ordering Defendants' to undertake corrective advertising to
3 dispel any confusion already caused by Defendants' infringement;
4 j. An award of prejudgment and post judgment interest and costs of suit to the
5 University of Arizona;
6 k. A finding that Mr. Manuel A. Rocha and Mr. Francisco J. Jacinto are alter
7 egos of Scumdevils, LLC;
8 l. A finding that Plaintiff has properly named as defendants the spouses of Mr.
9 Rocha and Mr. Jacinto during the relevant damages timeframe (DOES 110) and that
10 Plaintiff is entitled to community property assets of Defendants;
11 m. An Order directing the cancellation of Trademark Reg. Nos. 4,875,081 and
12 4,909,355 pursuant to 15 U.S.C. 1119; and
13 n. Such other and further relief as the Court deems proper and just.
14
15 DEMAND FOR JURY TRIAL
16 Plaintiff, the University of Arizona, pursuant to Rule 38(b) of the Federal Rules of
17 Civil Procedure, demands a trial by jury on all issues triable by right by a jury.
18
19 Respectfully submitted,
QUARLES & BRADY LLP
20
21
By: /s/ Michael J. Curley
22 Michael J. Curley (AZ Bar #025972)
23 Michael.Curley@quarles.com
One South Church Avenue, Suite 1700
24 Tucson, AZ 85701-1621
25 TEL: (520) 770-8768

26 Isaac S. Crum (AZ Bar #026510)


Isaac.crum@quarles.com
27 One Renaissance Square
28 Two North Central Avenue

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Case 4:17-cv-00195-LAB Document 1 Filed 04/28/17 Page 25 of 25

Phoenix, AZ 85004
1
Tel: (602) 229-5200
2
Attorneys for The Arizona Board of
3 Regents on behalf of The University of
4 Arizona

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