Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 1 of 65 PageID #: 54

EXHIBIT C
Filed: 2/6/2017 12:20:20 PM
Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 2 of 65 PageID #: 55
Johnson Superior Court 1
Johnson County, Indiana

STATE OF INDIANA JOHNSON SUPERIOR COURT NO. 1
SS:
COUNTY OF JOHNSON CAUSE NO. 41D01-1608-PL-000072

CHILLY PANDA MEDIA, LLC,
Plaintiff,

v.

BRITT INTERACTIVE LLC,
TOWNEPOST NETWORK, INC.,
TOM BRITT, JEANNE BRITT, AND
JOSH F. BROWN,
Defendants.

BRITT INTERACTIVE LLC,
TOWNEPOST NETWORK, INC.,
AND TOM BRITT,
Counterclaimants/Third-Party
Plaintiffs,

v.

CHILLY PANDA MEDIA, LLC,
DANN VELDKAMP and
JODY VELDKAMP,
Counterclaim Defendant/Third-
Party Defendants.

PLAINTIFF’S AMENDED COMPLAINT FOR
DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND DAMAGES

Plaintiff, Chilly Panda Media, LLC, by counsel, and for its Amended Complaint against

Defendants, Britt Interactive LLC, TownePost Network, Inc., Tom Britt, Jeanne Britt, and Josh F.

Brown, avers as follows:

PARTIES

1. Plaintiff, Chilly Panda Media, LLC (“Chilly Panda”), is a domestic limited liability

company with its principal office located in Greenwood, Indiana.
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2. Defendant, Britt Interactive LLC (“Britt Interactive”), is a domestic limited liability

company with its principal office located in Indianapolis, Indiana.

3. Defendant, TownePost Network, Inc. (“TownePost”), is a domestic limited liability

company with its principal office located in Indianapolis, Indiana.

4. Defendant, Tom Britt, is an individual residing in Indianapolis, Indiana.

5. Defendant, Jeanne Britt, is an individual residing in Indianapolis, Indiana.

6. Defendant, Josh F. Brown, is an individual employed as an attorney-at-law with his

principal office located in Hamilton County, Indiana.

JURISDICTION

7. This Court has subject matter jurisdiction over this case pursuant to the License

Agreements attached to Plaintiff’s Amended Complaint as Exhibits A and B.

COMMON ALLEGATIONS

A. The License Agreements

8. As early as 2003, Britt Interactive, which is owned by Tom Britt and Jeanne Britt

(collectively, “the Britts”), began publishing the Geist Community Newsletter. Britt Interactive later

entered into several written agreements with third-parties whereby Britt Interactive would provide

certain services for a fee related to the production of new hyper-local, community-based publications

called “Community Newsletters.” Each publication was distributed and marketed via direct mail and

community-specific online domains (e.g. “www.atCenterGrove.com” and “www.atGreenwood.com”) to

the residents of the respective communities.

9. On or about October 29, 2012, Chilly Panda and Britt Interactive signed an agreement

granting Chilly Panda an exclusive license to use the name “Center Grove Community Newsletter” and

the web domain “atCenterGrove.com.” A true and accurate copy of the October 19, 2012, licensing

agreement (the “Center Grove License Agreement”) is attached as Exhibit A.
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10. On or about April 2, 2014, Chilly Panda and Britt Interactive signed a second such

agreement granting Chilly Panda an exclusive license to use the name “Greenwood Community

Newsletter” and the domain “atGreenwood.com.” This agreement was made retroactive to March 26,

2012. A true and accurate copy of the April 2, 2014, licensing agreement (the “Greenwood License

Agreement”) is attached as Exhibit B.

11. Chilly Panda paid Britt Interactive the one-time “licensing fee” contained in the Center

Grove License Agreement and the Greenwood License Agreement (collectively, the “License

Agreements”) and continued to remit payments to Britt Interactive as they came due under the License

Agreements.

12. In return, Britt Interactive agreed to (1) provide certain management services on behalf

of Chilly Panda relating to the publication of the Center Grove Community Newsletter and Greenwood

Community Newsletter (collectively, “the Newsletters”), and (2) market the Newsletters through a

network of other Community Newsletters (the “Britt Network”).

13. There are no agreements between Chilly Panda and other publishers participating in

the “Britt Network,” but rather, these publishers outsource their print, distribution, accounting and

other administration functions to Britt Interactive and/or TownePost under their respective agreements

with Britt Interactive. Through this arrangement, Chilly Panda and the other publishers are able to

leverage cost-savings, outsource administrative functions, and focus on driving sales and producing

quality content for their respective publications.

14. Chilly Panda thereafter began producing, marketing, and distributing the Center Grove

Community Newsletter and Greenwood Community Newsletter through the Britt Network.
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15. Chilly Panda’s revenue is generated through its sale of advertising space and a “Business

Spotlight” advertorial in each publication. Occasionally, Chilly Panda would receive revenue from cross-

selling advertisements in another publisher’s publication.

16. Advertising sales, written content, photographs, and graphic designs for each

publication are produced by employees of Chilly Panda and independent contractors paid by Chilly

Panda. If any content is created by independent contractors engaged by Britt Interactive or TownePost,

then Britt Interactive or TownePost would invoice Chilly Panda for these services. Chilly Panda would

pay Britt Interactive or TownePost for these services and own the content per the License Agreements.

17. Because each License Agreement is captioned as a “License” agreement, one would

expect that the substance of the License Agreements would deal, at least primarily, with the grant of a

license. However, that is not the case with these agreements. Instead, the License Agreements deal with

the division of rights and responsibilities of the parties per each agreement as well as the ownership of

property, both physical and intellectual, by the parties prior to, during, and after termination of the

License Agreements.

18. Each Licensing Agreement was drafted by Tom Britt.

19. The anatomy of the License Agreements can be segmented into four (4) parts: (1)

ownership rights, (2) licensed rights and restrictions, (3) management services, (4) default and

termination.

20. Each Agreement specifically identifies what each party will “own and retain” under the

License Agreements.
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21. As for Chilly Panda, Section 5.3 of the License Agreements provide for Chilly Panda to

“own and retain” (emphasis added):

a. All print sales generated through the magazines;
b. All online sales or revenue sharing generated via the domains;
c. Customer information for the magazines;
d. Customer information for the domains;
e. Accounts receivable from advertising sales;
f. Partnership agreements with area organizations;
g. Final digital files created for the magazines; and
h. Content created for Chilly Panda, the publications, and domains from April 1, 2012,
to termination of the License Agreement(s).

22. As for Britt Interactive, Section 5.4 of the License Agreements provide for Britt

Interactive to “continue to own” (emphasis added):

a. The names, “Greenwood Community Newsletter” and “Center Grove Community
Newsletter”;
b. The web domains, “atCenterGrove.com” and “atGreenwood.com;”
c. All business processes, customer information, and intellectual property associated with
the domains and magazines prior to April 1, 2012; and
d. All weblog programming, design, and source code for the web domains.

23. Section 1 of each License Agreement provides that Britt [Interactive] owns the names

“Center Grove Community Newsletter” / “Greenwood Community Newsletter” and the web domains

“www.atCenterGrove.com” and www.atGreenwood.com.”

24. Section 1 of the License Agreements goes on grant Chilly Panda an exclusive license to

use both the names, “Center Grove Community Newsletter” and “Greenwood Community Newsletter”

and the web domains “www.atCenterGrove.com” and “www.atGreenwood.com” in return for a one-

time license fee of $2,500 (referred to in the License Agreements as the “Initial License Fee”).

25. Per Section 1 of the License Agreements, the only rights acquired by Chilly Panda

through licensing (as opposed to ownership) are marketing rights; more specifically, the right to use the

“Center Grove Community Newsletter” and “Greenwood Community Newsletter” names for Chilly
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Panda’s publications and the use of the associated web domains for marketing and distribution as part

of the Britt Network.

26. The License Agreements do not prohibit Chilly Panda from creating new publications

or marketing its existing publications under a different name.

27. The License Agreements do not contain a covenant not to compete nor any other

restrictive covenant.

28. Publishers may publish and market other newsletters, competing newsletters, other

types of publications (such as Chilly Panda’s Magazines, other magazines, newspapers, etc.) and

publishers may choose to continue using Britt Interactive as vendor and/or any other publishing

vendor.

29. However, by paying the Licensing Fee to Britt Interactive, Chilly Panda was guaranteed

that Britt Interactive would not license the names “Center Grove Community Newsletter” and

“Greenwood Community Newsletter” to another publisher, which is one of the benefits of entering

into a license agreement.

30. Under the License Agreements, Britt Interactive was responsible for providing

management services to Chilly Panda, including, without limitation, vendor management, invoice

servicing, account receivable servicing, account payable servicing, accounting services, preparing income

statements, and making bank deposits.

31. In return for these services, Chilly Panda paid Britt Interactive a monthly fee based on

a percentage of its monthly sales.

32. While identified in Section 3 of the License Agreements as “royalties”, the parties

concede that these fees are more accurately labeled as “management fees.”
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33. Incidentally, although not part of the Agreements, all production fees (i.e., the costs of

producing either the Newsletters or the Magazines) are paid by Chilly Panda directly to its various

vendors, which sometimes included Britt Interactive.

34. The “management fee” is in many ways different than what would traditionally be a

“royalty fee.” While a “management fee” is a fee charged by Britt Interactive based on a percentage of a

publisher's gross sales much in the same way that a royalty is calculated, the management fee is actually

a fee paid to Britt Interactive to compensate Britt Interactive (and by proxy, Tom Britt and Jeanne Britt)

for managing the back-end of the publishing of a publisher's magazines, i.e., managing the print

contracts, the vendors, giving the publishers guidelines about how to pay writers, and how much to pay

their writers.

35. There are two situations in which the License Agreements can be terminated.

36. First, per Section 6.1, either Chilly Panda or Britt Interactive may terminate the License

Agreements should either party fail to abide by their obligations thereunder so long as the non-

breaching party gives the breaching party notice and 30 days to cure.

37. Second, per Section 6.2, Britt may terminate the license at any time. But, if this

termination right is exercised then Britt Interactive is obligated to pay Chilly Panda an amount equal

to Chilly Panda’s net income for the three months preceding the termination, or the initial License Fee

(as defined therein), whichever is higher.

38. Incidentally, the distinction between Sections 6.1 and 6.2 of the License Agreements is

that under the former provision, Chilly Panda would have 30 days to find a vendor to replace Britt

Interactive during which time Chilly Panda can continue deriving income by publishing its magazines

whereas under the latter clause, the termination by Britt Interactive is immediate; leaving Chilly Panda

unable to publish its magazines until it finds a replacement vendor. To offset this potential harm, Britt
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Interactive agreed to pay Chilly Panda a termination fee for the net income Chilly Panda was estimated

to lose over the course of 90 days (the “Termination Fee”).

B. Chilly Panda’s Change from Newsletters to Magazines.

39. In July 2015, Chilly Panda decided to stop publishing the Newsletters. It chose instead

to begin publishing the “Center Grove Community Magazine” and “Greenwood Community

Magazine” in August of 2015.

40. Chilly Panda chose the names “Center Grove Community Magazine” and “Greenwood

Community Magazine” for its new publications. With its history of publishing with Britt Interactive,

and in reliance on the representations contained in the License Agreements, Chilly Panda chose to

continue to use Britt Interactive to publish and market Chilly Panda’s Magazines through the Britt

Network. In turn, Britt Interactive continued providing Chilly Panda with management services for the

same fee without deviation from the License Agreements.

41. It should be noted that during this period, neither party terminated the License

Agreements. As such, Chilly Panda retained the benefit of keeping the licensed names “Center Grove

Community Newsletter” and “Greenwood Community Newsletter” off the market, and Britt Interactive

continued to collect its monthly management fees from Chilly Panda.

42. Incidentally, while Chilly Panda chose to market its new Magazines with the Britt

Network and use Britt Interactive's management services, the License Agreements themselves, which

are the only written contracts between the parties, apply only to the Newsletters; not the Magazines.

C. The Britts’ Franchise Conversion Scheme.

43. Tom and Jeanne Britts' “Franchise Conversion Scheme” is a scheme devised by the

Britts to choke Chilly Panda and other publishers off from their advertising income, their advertising

customers, and their ability to publish their Newsletters and other publications (including the
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Magazines) should they choose to not become TownePost franchisees. The purpose of this scheme is to

allow the Britts, through their business entities, Britt Interactive and TownePost, to make off with Chilly

Panda and other publishers’ publications, advertising customers, and income (as well as any and all

assets owned by publishers under the Newsletter Agreements). In turn, the Britts can report to potential

franchisees that TownePost owns and operates these various publications; thereby making their

franchises a more attractive investment.

44. Tom Britt and Jeanne Britt carried out the Franchise Conversion Scheme through their

business entities, Britt Interactive and TownePost, in five (5) phases, which are (in no particular order)

as follows:

i. Phase 1: The Britts form TownePost for the purpose of being the franchisor. The Britts
attempt to transfer all of Britt Interactive’s property – including the license agreements
– to TownePost. The Britts, through TownePost, then give the Veldkamps and other
publishers participating in the Britt Network an ultimatum; either convert into a
franchise or have their License Agreements terminated.
ii. Phase 2: The Britts, through TownePost, continue collecting Chilly Panda and other
publishers’ advertising revenue and outstanding accounts receivable from the
publishers’ advertising customers. But, the Britts refuse to transfer this income to the
publishers. The Britts further continue to bill publishers’ customers through
TownePost; causing confusion in the process.
iii. Phase 3: The Britts, through TownePost, terminate the Veldkamps and other
publishers’ access to their customer relationship management system called MagHub.
By terminating access to publishers’ customer contacts, contracts, sales, billing and
accounts receivable information, the Britts effectively hamstring the Veldkamps and
other publishers from producing their Newsletters and Magazines.
iv. Phase 4: The Britts, through TownePost and their counsel, begin contacting
publishers’ advertising customers; claiming ownership of the Publications, the account
receivables, the contracts, the advertising customers themselves, the income, and all
other rights and assets owned by Chilly Panda and the other publishers; and then
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represent to the publishers’ advertising customers that they are required to continue
sending all payments to TownePost.
v. Phase 5: Using all the assets and resources the Britts converted from Chilly Panda and
the other publishers, including, without limitation, the publishers’ publications,
tradenames, content, income, advertisements, and advertising customers, the Britts’
new entity, TownePost, prints and distributes Chilly Panda and other publishers’
publications while holding them out to advertisers and the public as TownePost’s
publications.
45. By the middle of 2016, the Britts completed development of their franchise system (the

“Franchise”) and wanted all publishers to convert into franchisees.

i. Implementation of Phase I of the Britt Franchise Scheme

46. On or about July 11, 2016, a meeting was held between Chilly Panda, other Community

Newsletter publishers, Tom Britt, and Josh Brown.

47. Josh Brown was present at the July 11, 2016, meeting in his capacity as counsel for Tom

Britt, Britt Interactive, and TownePost.

48. During the July 11 meeting, Tom Britt and Brown presented Dann Veldkamp, Jody

Veldkamp (collectively, the “Veldkamps”) and the other publishers participating in the Britt Network

with a franchise disclosure document and franchise agreement. Tom Britt and Josh Brown informed

the Veldkamps and the other publishers that Britt Interactive had assigned all intellectual property –

including the License Agreements — to TownePost. TownePost intended to implement a franchise

model for each area in which the publishers operate, including Center Grove and Greenwood.

49. After Josh Brown explained the terms of the franchise, the various disclosures, and the

proposed franchise agreements, the Veldkamps and other publishers within the Britt Network were told

that the franchise conversion was to be completed by October 1, 2016.
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50. In furtherance of Phase I of the Britt Franchise Scheme, Tom Britt, on behalf of

TownePost, sent a letter to Jody Veldkamp and other publishers who had not yet chosen to become

TownePost franchisees. The letter requested that the franchise documents tendered in the July 11

meeting be signed and returned by September 1, 2016. A true and accurate copy of the August 10,

2016, letter is attached as Exhibit C.

51. The letter goes on to provide that if Chilly Panda declined to become a TownePost

franchisee, then Chilly Panda was to accept the letter as TownePost’s notice of its intent to terminate

the Licensing Agreements as of September 1, 2016, and “buy out” the Center Grove and Greenwood

licenses per the terms of the License Agreements. See Exhibit C.

52. TownePost’s August 10, 2016, letter goes on to state that as part of the termination

“…access to our systems will likely be limited or completely shut off.” See Exhibit C.

53. The “systems” referred to in TownePost’s August 10, 2016, letter is the “MagHub”

customer relationship management system. MagHub is a database used by Chilly Panda and the other

publishers to maintain contact and invoicing information for their advertisers.

54. While each publisher participating in the Britt Network had a seat on MagHub, access

to MagHub is exclusively controlled by Tom Britt.

ii. Implementation of Phase II of the Britt Franchise Scheme

55. On August 12, 2016, however, just two days later, Tom Britt, through TownePost,

began taking steps to terminate publishers that refused to convert into franchisees, beginning with

Chilly Panda.

56. Tom Britt, Jeanne Britt, and TownePost began invoicing and collecting from Chilly

Panda’s advertisers earlier than usual and without notifying Chilly Panda.
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57. While Tom Britt, Jeanne Britt, and TownePost continued to collect advertising revenue

and receivables due to Chilly Panda, they ceased making the normal weekly remittance of the collected

proceeds to Chilly Panda.

iii. Implementation of Phase III of the Britt Franchise Scheme

58. Late in the afternoon Friday, August 12, 2016, the Veldkamps discovered they were

locked out of the MagHub system. They further found that their business email accounts

@chillypandamedia.com, which were hosted on Tom Britt’s servers, were no longer functioning.

59. The Veldkamps later discovered that Tom Britt had terminated their access to MagHub.

60. The Veldkamps further learned that Tom Britt was intercepting emails directed to

@chillypandamedia.com and responding to them through his TownePost email account. One such

example is attached hereto as Exhibit D.

61. Without access to the MagHub system and their business email accounts, the

Veldkamps were unable to contact their clients and access customer information, accounting records,

and other information required to produce Chilly Panda’s publications.

62. Despite the Veldkamps’ requests, Tom Britt refused to restore access to MagHub and

cease intercepting their emails. The Veldkamps were forced to secure new email accounts through

another provider in order to ensure that Britt would not intercept their communications.

63. The same day, Tom Britt contacted Chilly Panda’s marketing and sales representative,

Miranda Stockdall Gray, and told her that Chilly Panda was likely going to close and she was going to

lose her job.

64. As Chilly Panda’s marketing and sales representative, Miranda Stockdall Gray

frequently met with Chilly Panda’s advertisers face-to-face, developed close relationships with Chilly

Panda’s advertisers, and routinely signed advertising agreements on behalf of Chilly Panda.
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65. On August 14, 2016, Miranda Stockdall Gray notified Chilly Panda that she was

resigning her employment with Chilly Panda “effective immediately.”

66. The following Monday, Miranda Stockdall Gray began working for Tom Britt and

TownePost as their marketing and sales representative.

67. Tom Britt’s interference with Chilly Panda and Ms. Gray’s employment relationship

was a tactical move to sow confusion among Chilly Panda’s advertisers and use Ms. Gray’s relationships

to his advantage. Once he convinced Ms. Gray to jump ship, Britt used her reputation and relationships

with Chilly Panda’s customers to give his attempted takeover of Chilly Panda’s business and customers

a false air of legitimacy.

iv. Implementation of Phase IV of the Britt Franchise Scheme

68. The next day, the Britts begin to systematically email Chilly Panda’s advertisers directing

them to remit the advertising revenue to TownePost; claiming that “any advertising agreements that

[the advertiser] may have without publications have been and will continue to be with the TownePost

Networking, Inc., not with the individual magazines of our franchisees/licensees. This includes Avon,

Broad Ripple, Carmel, Center Grove, Fishers, Geist, Greenwood and Zionsville Magazines.” (Emphasis

in original.) A true and accurate copy of the August 13, 2016, email from Tom Britt and Jeanne Britt

is attached hereto as Exhibit E.

69. Exhibit E is signed by Tom Britt as Publisher, TownePost Network, Inc. and Jeanne

Britt as President.

70. As a one-two punch, Tom Britt also began sending emails to Chilly Panda’s advertisers

requesting that they upload their artwork directly to TownePost for the September issues. One such

email, dated August 14, 2016, is attached hereto as Exhibit F.
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71. In the following days, Tom Britt, through TownePost, continued to ramp up his

takeover efforts by aggressively emailing Chilly Panda’s advertisers claiming that he is the “Publisher of

the TownePost Network” which “owns the Center Grove and Greenwood Community Magazines.” In

his emails, Britt goes on to state that “Jody [Veldkamp] is no longer with our organization…” and that

emails directed to Jody Veldkamp email “fell into my inbox.” A true and accurate copy of one such

email dated August 14, 2016, is attached hereto as Exhibit G.

72. On August 15, 2016, just five days after Britt had previously told Chilly Panda that it

would have until September 1, 2016, to decide whether to become a franchisee, Josh Brown, emailed

notice on behalf of Tom Britt and TownePost to the Veldkamps that Chilly Panda’s License Agreements

were terminated effective August 15, 2016. The August 15, 2016, termination letter claimed that Chilly

Panda was in default of the License Agreements for purported trademark violations. A true and accurate

copy of the August 15, 2016 letter is attached hereto as Exhibit H.

73. The termination letter included representations completely inconsistent with the terms

of the License Agreements. Those statements include, without limitation, the following: (1) that the

sales income derived from advertising customers belonged to Britt Interactive, not the publishers, (2)

that the advertising customers, all customer information and/or the advertising contracts and

relationships belonged to Britt Interactive, not the publishers, and (3) that both the Newsletters and

Magazines published by the Chilly Panda, along with the names of those publications as well as any

other item bearing related domain names and/or the Britt Network belonged to Britt Interactive.

74. The August 15, 2016, termination letter was not sent to Chilly Panda’s corporate

address, nor did it provide Chilly Panda with the 30-day cure period required by the License

Agreements.
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75. Three days later, on or about August 18, 2016, Tom Britt emailed Miranda Stockdall

Gray requesting she review a draft email to be sent to Chilly Panda’s advertisers. In the email, Britt

notes that “Dann and Jody Veldkamp are no longer licensees of our Greenwood and Center Grove

Community Magazines and are no longer part of the TownePost Network, Inc. . . . As owner and

Publisher of the TownePost Network, Inc., I am stepping in to be the Publisher for both publications

and hired Miranda Gray, your account rep, to assist me. . . . Look for a call from her tomorrow (Friday)

as she is anxious to re-engage with you!” A true and accurate copy of Britt’s August 18, 2016, email to

Gray is attached hereto as Exhibit I.

76. The next day, Tom Britt sent an email to Chilly Panda’s advertisers in substantially the

same format as his August 19 email to Miranda Stockdall Gray. One such email is attached hereto as

Exhibit J.

77. Tom Britt further began emailing various designers and photographers used by Chilly

Panda; claiming that “Jody and Dann Veldkamp are no longer part of the TownePost” and that “we are

pursuing them legally as well.” Britt’s email goes on to request that the designers and photographers

provide their images to him in order for TownePost to complete a September issue. A true and accurate

copy of one such email, dated August 19, 2016, is attached hereto as Exhibit K.

78. The designs and photographs requested in Britt’s emails were purchased and paid-for

by Chilly Panda and constitute its intellectual property.

79. In hopes of wreaking further damages on Chilly Panda, TownePost and its counsel,

Josh Brown, reached out to Chilly Panda’s advertising customers and represented to them that

TownePost (not Chilly Panda) was the owner of the Magazines, the customer relationships, the account

receivables, and all of the income associated with the Magazines. Furthermore, the Britts, through
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TownePost, shut down access to the private hosted emails of Dann Veldkamp and Jody Veldkamp and,

without consent, began retrieving the Veldkamps’ private email communications.

80. In response to Tom Britt’s emails and Josh Brown’s efforts, Chilly Panda’s advertisers

began withdrawing from their advertising commitments with Chilly Panda; citing confusion and

unwillingness to be drawn into a dispute between TownePost and Chilly Panda.

81. On Friday, August 19, 2016, one such advertiser, Roncalli High School, emailed notice

to Chilly Panda that it “would like to discontinue our contract and affiliation with you [Jody Veldkamp]

and Chilly Panda Media” after speaking with Tom Britt and Miranda Gray. A true and accurate copy

of the email is attached hereto as Exhibit N.

82. The Roncalli High School contract alone, which was a 12-month advertising

commitment, was to generate over $19,000 in annual advertising revenue for Chilly Panda.

v. Implementation of Phase V of the Britt Franchise Scheme

83. By the first week of September, the Britt’s Franchise Conversion Scheme had come full

circle. By terminating access to MagHub and diverting revenue to their own use, the Britts effectively

hamstrung Chilly Panda.

84. Deprived of access to its records, contracts, and customer information through the

MagHub system, and finding itself in immediate need of a printer, Chilly Panda was left crippled and

without the ability to produce September issues of its magazines.

85. Meanwhile, Tom Britt, through TownePost, marched forward with production of

Chilly Panda’s magazines, using Chilly Panda’s content, photographs, customer information, and

advertising revenue while passing the magazines off to advertisers and the public as being TownePost’s

own publications.
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86. Further, the Britts, through TownePost, continued collecting all income due to Chilly

Panda for its advertising sales and accounts receivable, but stopped transferring the income to Chilly

Panda.

87. Attempting to protect itself against Britt Interactive’s Franchise Conversion Scheme,

Chilly Panda took steps to prevent Britt Interactive from coming into possession of any additional

advertising income belonging to Chilly Panda by invoicing Chilly Panda’s own advertising customers

directly.

88. Despite numerous written and verbal demands, the Britts and their entities, Britt

Interactive and TownePost, continue to (1) withhold Chilly Panda's income, (2) withhold payment of

the Termination Fee, (3) make false statements to Chilly Panda’s advertising customers, (4) use Chilly

Panda’s marks (i.e., “Center Grove Community Magazine” and “Greenwood Community Magazine”),

(5) use Chilly Panda’s copyrighted content, (6) publish Chilly Panda’s Magazines without consent, (7)

misappropriate Chilly Panda’s income, and (7) interfere with Chilly Panda’s publications, advertising

relationships and reputation.

COUNT I
FEDERAL TRADEMARK INFRINGEMENT

89. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

90. The conduct of Tom Britt, Jeanne Britt, and their business entities, Britt Interactive,

and TownePost (collectively, “the Britt Parties”) as described herein arising out their use of the

Magazines, the Magazines Names, and their commission of the Franchise Conversion Scheme violates

15 U.S.C. §1114(1) which specifically prohibits the Britt Parties from:

a. use in commerce any reproduction, counterfeit, copy, or colorable imitation of
a registered mark in connection with the sale, offering for sale, distribution, or
advertising of any goods or services on or in connection with which use is likely
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to cause confusion, or to cause mistake, or to deceive, or

b. reproduce, counterfeit, copy, or colorable imitate a registered mark and apply
such reproduction, counterfeit, copy, or colorable imitation to labels, signs,
prints, packages, wrappers, receptacles or advertisements intended to be used
in commerce upon or in connection with the sale, offering for sale, distribution,
or advertising of goods or services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or to deceive.

These wrongful acts were committed with knowledge that such imitation, as described

in 15 U.S.C. §1114(1) (b), was intended to cause confusion, or to cause mistake, or to deceive.

Because of the Britt Parties’ conduct, Chilly Panda has been injured and is entitled to

damages, including but not limited to, the Britt Parties’ profits from the sale of all infringing goods,

actual damages, treble damages, costs of suit and attorney’s fees.

COUNT II
INDIANA TRADEMARK INFRINGEMENT

Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

72. The Britt Parties’ conduct as described herein arising out their use of the Magazines,

the state-registered Magazines Names owned and registered to Chilly Panda, and their commission of

the Franchise Conversion Scheme constitutes a violation of the Indiana Trademark Act.

73. The Britt Parties’ wrongful acts were committed with knowledge of such violation, was

intended to cause confusion, or to cause mistake, or to deceive.

74. Because of the Britt Parties’ conduct, Chilly Panda has been injured and is entitled to

damages, including but not limited to, the Britt Parties’ profits from the sale of all infringing goods,

actual damages, treble damages, costs of suit and attorney’s fees.
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COUNT III
COMMON LAW TRADEMARK INFRINGEMENT

75. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

76. The Britt Parties’ conduct as described herein arising out their use of the Newsletters,

the Newsletter Names, the Magazines, and the Magazines Names, and their commission of the Franchise

Conversion Scheme constitutes a violation of Chilly Panda’s trademark rights.

77. These wrongful acts were committed with knowledge of such violation, was intended

to cause confusion, or to cause mistake, or to deceive.

78. Because of the Britt Parties’ conduct, Chilly Panda has been injured and is entitled to

damages, including but not limited to, Britt Parties’ profits from the sale of all infringing goods, actual

damages, and all other available remedies at law and/or in equity.

COUNT IV
COPYRIGHT INFRINGEMENT

79. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

80. Chilly Panda, owner of the Newsletters and Magazines, including, without limitation,

all content, design and trade dress associated therewith, holds copyright registrations as well as other

common law copyright rights on all the Newsletters and Magazines published through August of 2016

and/or beyond.

81. Despite repeated demands to cease and desist, the Britt Parties continue to utilize the

Newsletters and the Magazines in online media and in print, as well as published counterfeit and/or

imitation and otherwise unauthorized reproductions of the publications and/or content in an attempt

to pass off the knock-off publications as authentic editions of the Magazines.
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82. The Britt Parties’ conduct as described herein arises out their use of the Newsletters,

including the content therein, the Magazines, including the content therein, and the reproduction and

production of publications using the content of the Newsletters and the Magazines and/or otherwise

passing off any of the foregoing as works of the Britt Parties and/or otherwise as owned by the Britt

Parties, all of which was committed in conjunction with their commission of the Franchise Conversion

Scheme, constitutes copyright infringement.

83. Use of the foregoing was directed at Chilly Panda’s advertising customers and

TownePost potential franchisees, and were placed on display to the public.

84. These wrongful acts were committed without the consent of Chilly Panda, and with

knowledge of such violation was intended to cause confusion, or to cause mistake, or to deceive.

85. The Britt Parties’ acts constitute copyright infringement.

86. Because of the Britt Parties’ conduct, Chilly Panda has been injured and is entitled to

damages.

COUNT V
UNFAIR COMPETITION

Chilly Panda incorporates by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

Chilly Panda has existing and prospective contractual relationships with various

advertisers and vendors.

The Britt Parties’ unlawful and unauthorized use of the Magazine Names and Trade

Dress constitutes unfair competition with Chilly Panda.

The Britt Parties’ conduct was, and continues to be, designed to cause consumer

confusion as to the source and origin of the product and/or services.

The Britt Parties’ conduct was, and continues to be, calculated to cause damage to
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Chilly Panda in its lawful business and done for the unlawful purpose of causing such damage without

right or justifiable cause.

The Britt Parties’ conduct as described herein has directly and proximately caused

Chilly Panda to incur monetary and other damages.

Upon information and belief, the Britt Parties acted willfully, maliciously, and with full

knowledge of the adverse effect of such wrongful conduct upon Chilly Panda.

The Britt Parties have acted with conscious disregard for the rights of Chilly Panda.

The Britt Parties’ unfair competition has caused Chilly Panda damages, including but

not limited to, the Britt Parties’ profits from the sale of the infringing products and services, actual

damages, costs of suit and attorney’s fees.

COUNT VI
CIVIL ACTION UNDER THE INDIANA CRIME VICTIMS ACT

Chilly Panda incorporates by reference the allegations contained in the previous

paragraphs of this Complaint.

Pursuant to the Indiana Crime Victims Act, Indiana Code § 34-24-3-1, a person that

suffers pecuniary loss as a result of a violation of I.C. 35-43 et seq. may bring a civil action against the

person who caused the loss for treble damages, costs of the action and a reasonable attorney’s fees.

The Britts have violated I.C. 35-43 in the following particulars: For “Conversion” as

expressed in I.C. 35-43-4-3 via exercising unauthorized control over, but not limited to, the Chilly Panda

Property.

Because of these violations, Chilly Panda has suffered damages in an amount to be

determined.

Accordingly, Chilly Panda is entitled to an award of those actual damages as well as

statutory treble damages, costs and attorney’s fees.
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COUNT VII
BREACH OF CONTRACT

Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

The License Agreements dealt originally with the Newsletters. However, in 2015 the

parties continued using the management services under the License Agreements for Chilly Panda’s

publication of its Magazines.

Britt Interactive is in material breach of the License Agreements because of: withholding

of Chilly Panda’s Property, failing to act as a servicing agent on behalf of Chilly Panda, failing to pay

the Termination Fee, publishing the Magazines without Chilly Panda’s consent, using Chilly Panda’s

Property without consent, failing to transfer Chilly Panda’s advertising income, assigning the License

Agreements and/or otherwise attempting to transfer to TownePost ownership and/or rights held by

Chilly Panda, misrepresenting Britt Interactive’s (and/or, alternatively, TownePost’s) relationship with

Chilly Panda and status with regard to Chilly Panda’s property to Chilly Panda’s advertising customers

(as well as the public), and via its acts in carrying out the Franchise Conversion Scheme.

TownePost is jointly and severally liable because, based on the Britt Parties’

representations, Britt Interactive assigned the License Agreements to TownePost.

Because of these material breaches, Chilly Panda has been damaged in an amount to

be determined, including, but not limited to, unpaid royalties, expenses, costs and attorney fees and all

other available remedies at law or equity.

COUNT VIII
TORTIOUS INTERFERENCE

Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.
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As the Britt Parties were aware, Chilly Panda has existing and prospective contractual

relationships with various advertisers and vendors.

The Britt Parties and Josh Brown unjustifiably interfered with those relationships

through their coordinated acts, including, without limitation, withholding of Chilly Panda’s property,

failing to act as a servicing agent on behalf of Chilly Panda, publishing the Magazines without Chilly

Panda’s consent, using Chilly Panda’s property without consent, failing to transfer Chilly Panda’s

advertising income, assigning the License Agreements and/or otherwise attempting to transfer to

TownePost ownership and/or rights held by Chilly Panda, misrepresenting Britt Interactive’s (and/or,

alternatively, TownePost’s) relationship with Chilly Panda and status with regard to Chilly Panda’s

property to Chilly Panda’s advertising customers (as well as the general public), and via their acts in

carrying out the Franchise Conversion Scheme.

The Britts and Brown’s acts constitute tortious interference with business relationships.

Because of the foregoing, Chilly Panda has been damaged in an amount to be

determined.

COUNT IX
BREACH OF FIDUCIARY DUTIES

Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

Via the services provided to Chilly Panda and/or via the duties and obligations owning

under the management services provisions of the License Agreements, the Britt Parties owed fiduciary

duties to Chilly Panda and served as agents of Chilly Panda.

Britt Interactive breached its fiduciary duties by: withholding of Chilly Panda’s

property, failing to act as a servicing agent on behalf of Chilly Panda, failing to pay the Termination

Fee, publishing the Magazines and/or the Counterfeit Magazines without Chilly Panda’s consent, using
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Chilly Panda’s property without consent, failing to transfer Chilly Panda’s advertising income, assigning

the License Agreements and/or otherwise attempting to transfer to TownePost ownership and/or rights

held by Chilly Panda, misrepresenting Britt Interactive’s (and/or, alternatively, TownePost’s)

relationship with Chilly Panda and status with regard to Chilly Panda’s property to Chilly Panda’s

advertising customers (as well as the public), and via its acts in carrying out the Franchise Conversion

Scheme.

TownePost is jointly and severally liable because, based on the Britt Parties’

representations, Britt Interactive assigned the License Agreements to TownePost.

The Britt Parties’ actions as described above were unauthorized, taken without the

knowledge or consent of Chilly Panda, were carried out to the detriment of Chilly Panda and constitute

a material breach of the fiduciary duties owing to Chilly Panda.

Because of these material breaches, Chilly Panda has been damaged in an amount to

be determined.

COUNT X
DEFAMATION

Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

From at least August of 2016 and before, based on information and belief, the Britt

Parties and Brown, in an effort to carry out the Franchise Conversion Scheme, began intentionally,

knowingly, purposefully and maliciously, publishing false statements to third party including, without

limitation, Chilly Panda’s vendors and advertising customers as well as other third-parties, that

TownePost and/or Britt Interactive, and not Chilly Panda, was the owner of the Chilly Panda property,

that Chilly Panda was being dishonest about the Chilly Panda’s ownership of the Chilly Panda property,

that Chilly Panda was trying to steal and/or convert the Chilly Panda property, and that Chilly Panda
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was engaging in deceptive business practices with their advertising customers and the public at large.

Chilly Panda informed the Britt Parties and Brown that these defamatory statements,

as well as others, were false and requested that these statements be retracted but the Britt Parties and

Brown refused to do so.

In fact, instead of retracting these statements, the Britt Parties and Brown accelerated

the launch of these defamatory statements through the entire Franchise Conversion Scheme and

beyond.

The Britt Parties and Brown’s statements were (and continue to be) made intentionally,

maliciously, knowingly and with reckless falsity and with intent to injure the reputation of Chilly Panda

and its members, Dann Veldkamp and Jody Veldkamp, Chilly Panda's Magazines, Chilly Panda's Brand

and the Magazines Names, and Chilly Panda’s property.

Because of the Britt Parties and Brown’s knowingly and intentionally false statements,

Chilly Panda has suffered (and continue to suffer) damages, in an amount to be determined, to their

reputation, Chilly Panda's Magazines, Chilly Panda's Brand and the Magazines Names, and Chilly

Panda’s Property.

COUNT XI
FRANCHISE FRAUD

121. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

122. I.C. § 23-2-2.5, et seq., also known as the Indiana Franchise Act (the “Act”) applies to

a franchise if “the offeree or franchisee is an Indiana resident . . . .”

123. The Britt Interactive and/or TownePost is an offeree (i.e., one who grants a franchise)

under the meaning of the Act and resides in Indiana. I.C. § 23-2-2.5-1(c). As such, the Act applies to

the acts and omissions of the Britt Interactive and/or TownePost.
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124. I.C. § 23-2-2.5-27 of the Act provides as follows: It is unlawful for any person in

connection with the offer, sale or purchase of any franchise, or in any filing made with the

commissioner, directly or indirectly: (1) to employ any device, scheme or artifice to defraud; (2) to make

any untrue statements of a material fact or to omit to state a material fact necessary in order to make

the statements made, in the light of circumstances under which they are made, not misleading; or (3)

to engage in any act which operates or would operate as a fraud or deceit upon any person.

125. I.C. § 23-2-2.5-1(f) of the Act defines “[f]raud” and “deceit” as “any misrepresentation

in any manner of a material fact, any promise or representation or prediction as to the future not made honestly

or in good faith, or the failure or omission to state a material fact necessary to make the statements made, in the

light of the circumstances under which they were made, not misleading.” (Emphasis added); see also

Hacienda Mexican Restaurant of Kalamazoo Corp. v. Hacienda Franchise Group, Inc., 641 N.E.2d 1036 (Ind.

Ct. App. 1994) (franchise fraud may be based on false predictions, promises or representations about

the future); Enservco, Inc. v. Indiana Securities Div., 623 N.E.2d 416. (Ind. 1993) (elements of franchise

fraud include false statements or omissions). Indeed, the “elements of franchise fraud are not as

extensive as elements of common-law fraud….” See Continental Basketball Ass'n, Inc. v. Ellenstein

Enterprises, Inc., 669 N.E.2d 134, 137 (Ind. 1996).

126. The Act creates a private right of action for acts which constitute fraud, deceit or

misrepresentation. See Continental Basketball Ass'n, Inc. v. Ellenstein Enterprises, Inc., 669 N.E.2d 134, 137

(Ind. 1996); see also Moll v. South Central Solar Systems, 419 N.E.2d 154, 162 (Ind. Ct. App.1981); Master

Abrasives Corp. v. Williams, 469 N.E.2d 1196, 1200 (Ind. Ct. App.1984); Hardee's of Maumelle, Ark., Inc.

v. Hardee's Food Systems, Inc., 31 F.3d 573, 577 -78 (C.A.7 1994).

127. I.C. § 23-2-2.5-28 of the Act provides special remedies for violation of the Act.

Specifically, “[a] person who recovers judgment for a violation of [I.C. § 23-2-2.5, et seq.] may recover, as
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part of that judgment: (1) any consequential damages; (2) interest at eight percent (8%) on the judgment;

and (3) reasonable attorney's fees . . . .” In addition, the Act provides for liability against the Individual

Defense Claimants in this matter, the Britts, and Brown (hereinafter, the “Individual Defense

Claimants”).

128. Specifically, I.C. § 23-2-2.5-29 provides that “[e]very person who materially aids or abets

in an act or transaction constituting a violation of this chapter is also liable jointly and severally to the

same extent as the person whom he aided and abetted . . . .” Furthermore, “[a] person (i.e., the

Individual Defense Claimants) who knowingly violates [I.C. § 23-2-2.5, et seq.] commits a Class C

felony.”

129. The Individual Defense Claimants, working in active concert with each other and Britt

Interactive and TownePost, concocted the Franchise Conversion Scheme to force the Veldkamps

and/or Chilly Panda and other publishers to enter into the Franchise Agreement in violation of the

IFA.

130. Brown, working in active concert with the Britt Parties, was the architect of the

Franchise Conversion Scheme.

131. Pursuant to the License Agreements, the Britt Parties maintained significant control

over Chilly Panda’s publications, control over marketing, including without limitation, through the

Britt Network, charged a franchise fee and charged royalties.

132. Pursuant to the License Agreements, the Britt Parties’ illegally offered a franchise

relating to the publication of the Newsletters (and/or, alternatively, the Magazines) (the “Franchise”)

under the IFA to Chilly Panda without proper registration and disclosures.

133. Britt Interactive and/or TownePost, acting through the Individual Defense Claimants,

and the Individual Defense Claimants themselves, are in violation of I.C. § 23-2-2.7-2 by coercing
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and/or forcing Chilly Pandas to accept services which are neither necessary to the operation of the

Franchise, nor required by the License Agreements, or required by law.

134. Britt Interactive and/or TownePost, acting through the Individual Defense Claimants,

and the Individual Defense Claimants themselves, are in violation of I.C. § 23-2-2.7-2 by attempting to

coerce Chilly Panda to enter into an agreement with Britt Interactive and/or TownePost by threatening

to cancel their respective License Agreements.

135. Britt Interactive and/or TownePost, acting through the Individual Defense Claimants,

and the Individual Defense Claimants themselves, are in violation of I.C. § 23-2-2.7-2 by using deceptive

advertising and engaging in deceptive acts in connection with Chilly Panda including, without

limitation, the carrying out of the Franchise Conversion Scheme.

136. The deceptive and fraudulent activities and misrepresentations of Britt Interactive

and/or TownePost, acting through and under the control and guidance of the Individual Defense

Claimants, and the Individual Defense Claimants themselves, also constitute false advertising in

violation of I.C. § 23-2-2.7-2.

137. Chilly Panda has been damaged as a result of the foregoing in an amount to be

determined.

138. In addition to all other remedies available at law or in equity, the Franchisees are

entitled to all remedies available under I.C. 23-2-2.7-4 and other statutory sections of the Indiana Code.

COUNT XII
ACTUAL OR CONSTRUCTIVE FRAUD

139. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

140. The Britt Parties owed fiduciary duties to Chilly Panda arising out of their duties and

obligations pursuant to the management services portion of the License Agreements.
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141. Prior to executing the Center Grove License Agreement, Tom Britt and Jeanne Britt,

on behalf of Britt Interactive, represented to the Veldkamps and Chilly Panda that Tom drafted the

Center Grove License Agreement so as to confer a license to Chilly Panda for the exclusive use of the

name “Center Grove Community Newsletter” and web domain “atCenterGrove.com.” In turn, Chilly

Panda would retain ownership over all content, advertising customers, advertising income, content, and

all other parts making up the Center Grove Community Newsletter and any other publication of Chilly

Panda and that Chilly Panda was permitted under the Center Grove License Agreement to continue

publishing its publications in the event the Center Grove License Agreement was ever terminated.

142. At the time that the Britts made the foregoing representations, the Britt Parties knew

these representations to be false.

143. In reliance on the foregoing representations, Chilly Panda entered into the Center

Grove License Agreement.

144. Prior to executing the Greenwood License Agreement, Tom Britt and Jeanne Britt, on

behalf of Britt Interactive, represented to the Veldkamps and Chilly Panda that Tom drafted the

Greenwood License Agreement so as to confer a license to Chilly Panda for the exclusive use of the name

“Greenwood Community Newsletter” and web domain “atGreenwood.com.” In turn, Chilly Panda

would retain ownership over all content, advertising customers, advertising income, content, and all

other parts making up the Greenwood Community Newsletter and any other publication of Chilly Panda

and that Chilly Panda was permitted under the Greenwood License Agreement to continue publishing

its publications in the event the Greenwood License Agreement was ever terminated.

145. In reliance on the foregoing representations, Chilly Panda entered into the Greenwood

License Agreement which is virtually identical to the Center Grove License Agreement.
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146. At the time that the Britts made the foregoing representations, the Britt Parties knew

these representations to be false.

147. Chilly Panda decided to stop publishing the Newsletters in July of 2015 and chose

instead to begin publishing the Magazines in August of 2015, and Chilly Panda chose the names “Center

Grove Community Magazine” and “Greenwood Community Magazine” and, in reliance on the above-

referenced representations, chose to use the Britt Network to market Chilly Panda’s Magazines and to

continue providing Chilly Panda with management services, which Britt Interactive approved.

148. The Individual Defense Claimants, working in active concert with each other and Britt

Interactive and TownePost, concocted the Franchise Conversion Scheme to force the Veldkamps

and/or Chilly Panda and other publishers to enter into the Franchise Agreement and in an effort to

convert Chilly Panda’s property.

149. The deceptive and fraudulent activities and misrepresentations of Britt Interactive

and/or TownePost, acting through and under the control and guidance of the Individual Defense

Claimants, and the Individual Defense Claimants themselves, also constitute false advertising in

violation of I.C. § 35-43-5-3.

150. Chilly Panda has been damaged as a result of the foregoing in an amount to be

determined.

COUNT XIII
STORED COMMUNICATIONS ACT

151. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

152. The Britt Parties, through an electronic service provider, hosted Chilly Panda’s emails,

which were then forwarded to Chilly Panda’s email accounts “@chillypandamedia.com”. However, access

to the Veldkamps and Chilly Panda’s email was cut off by the Britt Parties, whom then availed themselves
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of access to those stored communications in violation of the Federal Stored Communications Act. One

such example can be seen in Exhibit D attached hereto and incorporated by reference herein.

153. Because of the foregoing, Chilly Panda has been damaged in an amount to be

determined and are entitled to such damages as well as statutory damages and attorney's fees.

COUNT XIV
ACCOUNTING

154. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

155. Pursuant to the management services provided by the Britt Parties under the License

Agreements, including without limitation, accounting services, collection services, invoicing services,

account receivable services, and accounted payable services, the Britt Parties owe Chilly Panda an

accounting of all revenue generated for all Newsletters and Magazines, including, without limitation, the

Counterfeit Magazines.

COUNT XV
INDIVIDUAL LIABILITY

156. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

157. Tom Britt and Jeanne Britt are directly and/or jointly and severally liable under

common law for the misconduct of Britt Interactive and/or TownePost as described throughout this

Complaint because these individuals personally participated in the wrongful conduct or otherwise

ordered said wrongful conduct to be done.

158. Britt Interactive and/or TownePost served as mere alter egos of the Britts and were used

by the Britts to promote fraud and injustice as described supra on Chilly Panda.
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159. While it is currently unknown whether other individuals engaged in the same conduct

as the Britts (except as otherwise described in the other individual Counts set forth supra), Claimants

reserve the right to seek to add these unknown individuals and/or entities as parties hereafter.

COUNT XVI
DECLARATORY JUDGMENT

160. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

161. Each Agreement specifically identifies what Chilly Panda will “own and retain” under

the Agreement and what Britt Interactive will “continue to own.”

91. As for Chilly Panda, Section 5.3 of the License Agreements provide for Chilly Panda to

“own and retain”:

a. All print sales generated through the magazines;
b. All online sales or revenue sharing generated via the domains;
c. Customer information for the magazines;
d. Customer information for the domains;
e. Accounts receivable from advertising sales;
f. Partnership agreements with area organizations;
g. Final digital files created for the magazines; and
h. Content created for Chilly Panda, the publications, and domains from April 1, 2012,
to termination of the License Agreement(s).

162. Consistent with ownership over the Newsletters, Section 10 of the License Agreements

acknowledges Chilly Panda’s right to transfer the Newsletters. Section 9 of the License Agreements

further provide that Chilly Panda “accepts” the foregoing “product” “’AS IS’” and even further provides

that Britt Interactive will not be liable for any “damages[] that are in any way related to the [Newsletters]”.

163. As for Britt Interactive, Section 5.4 of the License Agreements provide for Britt

Interactive to “continue to own”:

a. The names, “Greenwood Community Newsletter” and “Center Grove Community
Newsletter”;
b. The web domains, “atCenterGrove.com” and “atGreenwood.com;”
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c. All business processes, customer information, and intellectual property associated with
the domains and magazines prior to April 1, 2012; and
d. All weblog programming, design, and source code for the web domains.

164. A dispute has arisen between the parties relating to ownership over the Chilly Panda

Property.

165. Chilly Panda hereby requests a declaratory judgment that (1) Chilly Panda owns the

Chilly Panda property, and (2) that ownership over the Magazines Names and the Magazines are not

controlled by the License Agreements.

COUNT XVII
PRELIMINARY AND PERMANENT INJUNCTION

166. Chilly Panda incorporates herein by reference the allegations contained in all previous

paragraphs of this Amended Complaint.

180. Because of the Britts’ Franchise Conversion Scheme and all acts carried out in

furtherance thereof, including, without limitation, their defamatory acts, tortious interference, acts of

conversion, deceptive acts, trademark infringement, copyright infringement, counterfeiting, false

advertising, breaches of fiduciary duties, fraudulent acts, and other acts as described supra, Chilly Panda

has suffered (and continue to suffer) harm to its reputation, Chilly Panda's Magazines, Chilly Panda's

Brand and the Magazines Names, and Chilly Panda’s property.

181. These acts also continue to interfere with Chilly Panda’s business relationships with

actual and potential customers as well as the publications themselves.

182. These acts have caused and will continue to cause immediate and irreparable harm to

Chilly Panda unless enjoined.

183. The public will not be disserved in the event the Court grants the relief requested

herein.

184. Chilly Panda is likely to succeed on the merits of this case.
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185. Because of these acts, Chilly Panda is without an adequate remedy at law.

186. Chilly Panda is requesting preliminary and permanent injunctive relief in the form set

forth infra.

PRAYER FOR RELIEF

WHEREFORE, Chilly Panda seeks the following relief against the Defense Claimants:

A. For a declaratory judgment that Defense Claimants have:

(i) Violated 15 U.S.C. §1114 by infringing upon the Magazine Names and Trade
Dress;

(ii) Engaged in unfair competition by causing confusion in the minds of the
commercial community and general public as to the source and sponsorship of
certain goods and services;

(iii) Exercised unlawful domain over the Magazine Names, the Magazine Content,
the Newsletter Content, and the Trade Dress without the permission of Chilly
Panda;

(iv) That Chilly Panda Property belongs to Chilly Panda; and,

(v) That the ownership of the Magazine Names and the Magazines are not governed
by the Newsletter Agreements.

B. That, pursuant to 15 U.S.C. § 1116, Defense Claimants and their owners, partners,
officers, directors, agents, servants, employees, representatives, publishers, subsidiaries, manufacturers
and distributors, jointly and severally, are enjoined throughout the world during the pendency of this
action, and permanently thereafter from:

(i) Infringing the Newsletters, the Magazines, Magazine Names, the Magazine
Content and Trade Dress in any manner;

(ii) Manufacturing, marketing, advertising, distributing, selling, promoting,
licensing, exhibiting, or displaying any product or service using the Newsletters,
the Magazines, the Magazine Names and Trade Dress or any copies or
counterfeits thereof or anything confusingly similar thereto;

(iii) Otherwise infringing the Magazine Names, the Magazine Content, the
Newsletter Content, and the Trade Dress;

(iv) Using any false description, representation, or designation, or otherwise
engaging in conduct that is likely to create an erroneous impression that
Defense Claimants’ products are endorsed by Chilly Panda or any related
company, sponsored by Chilly Panda or any related company, or are connected
Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 36 of 65 PageID #: 89

in any way with Chilly Panda and/or Chilly Panda or any related company;

(v) Suggesting, claiming and/or implying ownership and/or control over the
Magazine Names, the Magazine Content, the Newsletter Content, and the
Trade Dress without the permission of Chilly Panda;

(v) Interfering in the existing contracts or business expectancies of Chilly Panda in
any manner whatsoever;

(vi) Using the Newsletters, the Magazines, the Magazine Names, the Magazine
Content, the Newsletter Content, and the Trade Dress in any manner
whatsoever;

(vii) Holding themselves as publishers or otherwise authorized users of the
Newsletters, the Magazines, any content of the Newsletters or the Magazines,
the Magazine Names and Trade Dress; and,

(viii) Using the Magazine Names and Trade Dress in promotional literature or
materials, including those posted on the Internet.

C. Furthermore, Chilly Panda is entitled to permanent injunctive relief, pursuant to 17
U.S.C.A. § 502:

(i) Enjoining Defense Claimants (including their agents, officers, employees, and
assigns) from infringing, inducing infringement of, or contributing to
infringement of the Newsletters, the Magazines, any content of the Newsletters
or the Magazines, the Magazine Names and Trade Dress;

(ii) For an accounting of all gains and profits derived through infringement of
copyright;

(iii) Judgment against Defense Claimants pursuant to 17 U.S.C.A. § 504(b), of
Plaintiff’s actual damages suffered as a result of the infringements, plus any
profits attributable to the infringement;

(iv) Statutory damages ($150,000.00 per incident); and,

(v) Recovery of full costs, Plaintiff’s reasonable attorney fees, pursuant to 17
U.S.C.A. § 505; prejudgment and post judgment interest on the damages
awarded; and such other and further relief as this Court may deem equitable.

D. That, pursuant to 15 U.S.C § 1118, Defense Claimants be required to deliver up to the
Court, or to some other person that the Court may designate, for ultimate destruction, any and all
articles of merchandise or other things in the possession or control of Defense Claimants which might,
if sold or marketed for sale, violate the injunction granted herein.

E. That, pursuant to 15 U.S.C. § 1117, Chilly Panda be awarded Defense Claimants’
profits, actual damages, treble damages, costs of suit and attorney’s fees.
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F. That, pursuant to 15 U.S.C. § 1117(c), upon Chilly Panda's election and sole option,
Chilly Panda be awarded its just and proper statutory damages.

G. That Claimants be awarded such punitive damages they may show themselves entitled
to.

H. That Claimants be awarded Defense Claimants’ profits, actual damages, treble damages,
costs of suit and attorney’s fees.

I. That Claimants be awarded post-judgment interest on the foregoing amounts at the
maximum rate allowed by law.

M. For all other remedies at law and or in equity and damages in an amount to be
determined.

N. For all other damages and remedies available at law and in equity.

VERIFICATION

I hereby affirm under penalty of perjury that the foregoing factual statements are true and

accurate to the best of my actual knowledge.

__/s/ Jody Veldkamp______________
JODY VELDKAMP, MEMBER
CHILLY PANDA MEDIA, LLC
Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 38 of 65 PageID #: 91

Respectfully submitted,

Matthew M. Cree #27073-41
Law Office of Matthew M. Cree, LLC
PO Box 7805
Greenwood, Indiana 46142
Ph. 317.695.1008 | Fax 317.942.0941
Email: matt@creelawoffice.com

P. Adam Davis #23542-53
Davis and Sarbinoff, LLC
1 South Rangeline Road, Suite 400
Carmel, IN 46032
Ph. 317.569.1296 | Fax 317.569.1293
Email: efilings@d-slaw.com

Attorneys for Plaintiff, Chilly Panda

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document complies with the requirements of Trial Rule 5(G)
with regard to information excluded from the public record by Administrative Rule 9(G) and that a
copy of the foregoing has been duly served upon the following parties via electronic filing on February
6, 2017:

Josh F. Brown
Stephanie L. Maris
Jonathan D. Mattingly
P. Adam Davis

Matthew M. Cree, 27073-41

Law Office of Matthew M. Cree, LLC
PO Box 7805
Greenwood, IN 46142
T. 317.695.1008 | F. 317.942.0941
Email: matt@creelawoffice.com
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Apr 02 14 Britt Interactive LLC
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License Agreement

This License Agreement (the "Agreement") is made effective as of March 26. 2012. between Britt
Interactive LLC, of PO Box 36097, Indianapolis. Indiana 46236 and Chilly Panda Media, of 2452 Forest
Hills Blvd., Greenwood, Indiana 46143.

In the Agreement, the party who is granting the right to use the licensed property will be referred to as
'Britt," and the party who is receiving the right to use the licensed property will be referred to as "Chilly
Panda".

The parties agree as follows:

1. GRANT OF LICENSE. Britt owns the name, Greenwood Community Newsletter, and domain,
"atGreenuood.com". In accordance with this Agreement, Britt grants Chilly Panda an exclusive
license to use both the name. "Greenwood Community Newsletter,- and the domain,
"atGreenwood.com," for a one-time fee of $5,000.00 (the "Initial License Fee"). The Initial License
Fee is to be paid accordingly: $500 payable upon signing this Agreement and the remainder paid in
installments of $450 per month for 10 consecutive months beginning July l, 2014. Chilly Panda
may, however, pay the remaining balance of the Initial License Fee in full at any time and without
penalty.

2. GEOGRAPHIC AREA. This grant of license applies to the following described or other mutually
agreed upon geographical areas: City of Greenwood corporate limits and zip codes 46142, 46143
and 461 84.

3. PAYMENT OF ROYALTY. Chilly Panda will pay to Britt a royalty calculated as follows: 7.5% of
gross sales up to and including $5,000 per month, 5% on gross sales over $5,000 per month. The
royalty shall be paid monthly. net 15 days.

4. MODIFICATIONS. Unless the prior written approval of Briü is obtained, Chilly Panda may not
modify or change the "atGreenwood.com" design in any manner.

5. OBLIGATIONS.

5.1 Britt's obligations include:
a. Print newsletter production and oversight;
b. Ad design — both print and online — and associated processes oversight:
c. Weblog support and updates:
d. Online advertising design and management;
e. New product development and implementation;
f. Accounting functions: invoicing, accounts payable, accounts receivable. income
statements. bank deposits, etc.;
g. CRM software support;
h. On-going training and consultation monthly to ensure financial success; and Print
vendor negotiations and pricing.
Apr 02 14 Britt Interactive LLC
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5.2 Chilly Panda's obligations include:
a. Sales (print, online, video, and other products and services);
b. Editorial oversight, development. and costs;
c. Printing, production, and mailing costs associated with the newsletter; and
d. Al] office supplies, utilities, mileage, and other business related costs.

5.3 In exchange, Chilly Panda will own and retain:
a. All print sales generated through the Greenwood Community Newsletter;
b. All online sales or revenue sharing generated through atGreenwood.com;
c. Customer information for Greenwood Community Newsletter:
d. Customer information for atGreenwood.com;
e. Accounts receivable from advertising sales;
f. Partnership agreements with area organizations; Final digital files created for
newsletters; and
h. Content (stories, videos, advertisements) created for Chilly Panda, Greenwood
Community Newsletter and atGreenwood.com to the termination of this Agreement.

5.4 Britt will continue to own:
a. The "atGreenwood.com" domain;
b. The name, "Greenwood Community Newsletter";
c. All business processes, customer information, and intellectual property associated with
atGreenwood.com and the Greenwood Community Newsletter prior to April l , 2012: and
d. All weblog programming, design, and source code for atGreenwood.com.

6. TERMINATION.
6.1 Default and Opportunity' to Cure. If either party fails to abide by their obligations under this
Agreement, then the non-defaulting party shall give the defaulting party written notice
specifying the nature of the default and identifying the particular provision in this Agreement
giving rise to the default. The defaulting party shall have 30 days to either (i) notify the
nondefaulting party that no default has occurred, and provide reasonable proof thereof, or
(ii) cure the default. If the defaulting party fails to do so within the 30 day period. then the
nondefaulting party may terminate this Agreement upon 30 days written notice.

6.2 Termination Fee. Britt may terminate the license at any time. The termination price shall be
equal to the net income for the period of 3 months prior to the termination date or the Initial
License Fee, whichever is higher. Net income will be determined by the following formula:
Gross territory sales minus print, commission, design, mailing, editorial and distribution
expenses.

7. CONVERSION TO FRANCHISE AND RIGHT OF FIRST REFUSAL.

7.1 Should Britt choose to transform this license to a franchise, it shall provide Chilly Panda
written notice of its decision offering Chilly Panda the first opportunity' to purchase the
territory franchise for $1.00.
Apr 02 14 Britt Interactive LLC
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8. ALTERNATIVE DISPUTE RESOLUTION. All disputes under this Agreement that cannot be
resolved by the parties shall first be submitted to mediation using a mutually agreeable mediator
located in either Johnson or Marion County. Indiana. Should mediation prove unsuccessful, then all
disputes shall be submitted to arbitration under the rules and regulations of the American Arbitration
Association. Either party may invoke this paragraph after providing 30 days written notice to the
other party specifying the nature of the dispute(s) and identifying the provisions of this Agreement
giving rise to the dispute. All costs and expenses of mediation and arbitration shall be divided
equally between the parties. Any mediated agreements or arbitration awards may be enforced by a
court of law,

9. WARRANTIES. Neither party makes any warranties with respect to the use of the name
"Greenwood Community Newsletter" and the domain. •'atGreenwood.com" by the other party or by
any third party, and Chilly Panda accepts the products "AS IS." In no event will Britt be liable for
direct, indirect, special. incidental, or consequential damages, that are in any way related to the use
of the name "Greenwood Community Newsletter" and the domain, "atGreenwood.com"

10. TRANSFER OF RIGHTS. Chilly Panda has the ability to transfer its rights under this License
Agreement to a mutually agreeable purchaser.

11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are
no other promises or conditions in any other agreement whether oral or written. This Agreement
supersedes any prior written or oral agreements between the parties.

12. AMENDMENT. To be enforceable. any modifications or amendments to this Agreement must be
in writing and signed by both an authorized representative of both parties.

13. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable
for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds
that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision
it would become valid or enforceable, then such provision shall be deemed to be written, construed.
and enforced as so limited.

14. WAIVTR OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this
Agreement shall not be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement.

15. APPLICABLE LAW, JURISDICTION AND VENUE. This Agreement shall be by the laws of the
State of Indiana. The parties hereby consent to the exclusive venue and jurisdiction of the Circuit
and Superior Courts of Johnson County, Indiana for the purpose of enforcing this Agreement and
any mediated agreements or arbitration awards issued in connection with Paragraph 7. above.

Signature page immediately follows.
Apr 02 14 Britt Interactive LLC
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Licensor:
Britt Interactive LLC

Date:
Thomas Britt
President

Licensee:
Chilly Panda

By:
Jody Veldkamp

Co-Publisher
By: Date: 4/2/2014
Daniel Veldkamp
Co-Publisher
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Franchise Disclosure Document (“FDD”) and the Franchise Agreement to give you ample

Confidential
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Please note that upon termination and buyout in accordance with option #2 above, you will be
required to return any and all materials that contain our licensed Marks and must immediately
cease use of all licensed Marks. Additionally, access to our systems will likely be limited or
completely shut off.

Confidential
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From: Tom Bri [ ] On Behalf Of Tom Bri
Sent: Saturday, August 13, 2016 11:00 AM
To: Stacy Conrad < >
Subject: Important TownePost Billing Info

not
Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 53 of 65 PageID #: 106

PS: In case you missed our W9 last month, you can download it now (click here).

Copyright © 2016 TownePost LLC, All rights reserved.
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TownePost Network Inc.

(In the Geist Office Suites)
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Law Office of Josh F. Brown
Josh F. Brown Direct: 317-688-9111
Attorneys at Law Fax: 317-688-9100
Josh@IndyFranchiselaw.com

August 15, 2016
Via Electronic Mail
Dann@chillypandamedia.com
Jody@chillypandamedia.com

Daniel Veldkamp
Jody Veldkamp
2452 Forest Hills Blvd.
Greenwood, IN 46143

RE: Notice of Termination of License Agreements and Cease and Desist

Dear Daniel and Jody Veldkamp:

I represent TownePost Network Inc. and Tom Britt. It has come to our attention that you
are currently using TownePost Network’s proprietary information, including its registered
trademarks and logos in an unauthorized manner. Specifically, the TownePost Network mark,
Center Grove Community Magazine logo, and Greenwood Community Magazine logo are being
used in part or in whole on the following websites:

Website domain: http://centergrovecommunitymagazine.com/
Issuu.com: https://issuu.com/chillypandamedia
Website domain: http://chillypandamedia.com/

Your unauthorized use of the marks TownePost Network, Center Grove Community
Magazine, and Greenwood Community Magazine logos are in violation of common law, Indiana
state law, and/or United States federal trademark and unfair competition laws, specifically the
Lanham Act, and appears designed to cause confusion, mistake, and to deceive consumers into
believing that your publications are the same as, or are affiliated with, the high-quality goods and
services provided by TownePost Network under the well-known TownePost Network trade name
and trademark. This is an obvious misuse and infringement of our client’s prior and superior rights
in its TownePost Network name and marks.
Moreover, it has come to our attention that you have materially changed many, if not all,
of the contracts previously executed by TownePost Network, or one of its affiliate entities, in an
attempt to gain access and control and/or circumvent monies that rightfully flow to and belong to
TownePost Network. To the extent this has occurred, we deem such activity to be an egregious
effort to materially interfere with TownePost Network’s relationships with its customers and to
otherwise damage its financial interests. Any and all such activities must immediately cease.
Accordingly, we hereby demand that you cease and desist from all use of TownePost
Network’s or any of its affiliates marks, and that you immediately retract and cease communicating
with any and all customers that are contractually bound with TownePost Network immediately.
If, by the end of business (6:00 p.m.) on Tuesday, August 16, 2016, you have not ceased and
Case 1:17-cv-01544-LJM-DKL Document 1-3 Filed 05/10/17 Page 60 of 65 PageID #: 113

desisted in all material respects we will have no choice but to seek any and all legal options
available to us, including but not limited to, seeking damages and attorney’s fees as provided for
under common law, statutory law and the Lanham Act for willful infringement of TownePost
Network’s trademark.

Finally, please allow this letter to serve as written notice that due to the activity listed
above, your License Agreement for the territory of Center Grove, dated October 29, 2012, and
your License Agreement for the territory of Greenwood, dated April 4, 2014 are terminated,
effective immediately. In accordance with this termination, you must cease and desist from using
and must immediately return anything in your possession that reflects the trademarks, images,
methods, processes, techniques, information, trade practices, and other proprietary products owned
by TownePost Network that were utilized by you under the License Agreement. Such proprietary
information includes but is not limited to:

The trademark “TownePost Network”;
The TownePost Network logo;
The “atCenterGrove.com” domain;
The “atGreenwood.com” domain;
The name, “Center Grove Community Newsletter”;
The name, “Greenwood Community Newsletter”;
The name, “Center Grove Community Magazine”;
The name, “Greenwood Community Magazine”;
Any and all names and logos that are the same as, or confusingly similar to: “Center
Grove Community Newsletter”; “Greenwood Community Newsletter”; “Center
Grove Community Magazine”; “Greenwood Community Magazine”; “TownePost
Network, Inc.”; and/or any other marks or logos owned and used by TownePost
Network, Inc. and/or its licensees;
Any and all business processes, customer information, and intellectual property
associated with atCenterGrove.com, the Center Grove Community Magazine, and
the Center Grove Community Newsletter, including but not limited to social media
pages such as Facebook and Twitter;
Any and all business processes, customer information, and intellectual property
associated with atGreenwood.com, the Greenwood Community Magazine, and the
Greenwood Community Newsletter, including but not limited to social media pages
such as Facebook and Twitter; and
Any and all business processes, customer information, and intellectual property
associated with TownePost Network, Inc., TownePost Network publications, and
any affiliate entities of TownePost Network, Inc.

A final accounting is in process and any money owed to you through the August,
2016 publication date, will be remitted to you as soon as practicable.

My client would prefer to resolve this situation amicably, but is prepared to protect its
rights should we not be able to resolve this matter in short order. Should you or your legal counsel
wish to discuss this matter further, please do not hesitate to reach out to me.
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Sincerely yours,

Josh F. Brown

cc: Tom Britt
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TownePost Network Inc.

(In the Geist Office Suites)
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Here’s the email I just received from Tom Bri .

Heather

Inviting Connecting Serving

From: [mailto: ] On Behalf Of Tom Britt
Sent: Friday, August 19, 2016 1:08 PM
To: ; Miranda Stockdall
Subject: Greenwood and Center Grove Community Magazines Info

TownePost Network Inc.
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(In the Geist Office Suites)
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