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Thomas Freedman, OSB No.

080697
Email: thomas@prllaw.com
PEARL LAW LLC
312 NW 10th Avenue, Suite 201
Portland, OR 97209
Phone: 503.467.7256
Cowlsellor Plaint(ff
FILEllOS OCT '1113:4SUSOC-(J!P
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON -- PORTLAND DIVISION
CHRISTOPHER DOUGLAS,
CV'11
1204 BR
Plaintiff:
-against- COMPLAINT
LEIGH KENO; LESLIE KENO, and
THEODORE ALEXENDAR USA, INC.,
Jury Trial Demanded
Defendants.
Plaintift: as and for his complaint, alleges as follows:
NATURE OF THE ACTION
I. This is a complaint for trademark infringement, unfair competition, and false
description arising under *43 of the Lanham Act (15 U.S.C. 1125(a)), tor violations of
Oregon's Unlawful Trade Practices Act (ORS 646.605 - 646.656), and tor related common law
claims.
JURISDICTION & VENUE
2. This Court has original subject matter jurisdiction over this action pursuant to 28
U.S.C. 1331, 1338(a) and 15 U.S.c. 1121.
Thomas Freedman, OSB No. 080697
PEARL LAW LLC
312NW IOthAvcSte201, P0l11and,OR 97209
503A67.7256I thomas@prllaw.com
Page 1 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 1 of 13 Page ID#: 1
3. This Court has related claim jurisdiction over the state law claims pursuant to 28
U.S.C. 1338(b) and 28 U.S.C. 1367.
4. Venue is proper in this Court pursuant to 28 U.S.C. 1391.
THE PARTIES
5. Plaintiff is a natural person and a resident of the state of Oregon.
6. Defendant Leigh Keno is natural person and, upon information and b e l i e t ~ a
resident of the state of New York.
7. Detendant Leslie Keno is natural person and, upon information and beliet: a
resident of the state of New York.
8. Defendant Theodore Alexander USA, Inc. is a North Carolina corporation.
FACTUAL ALLEGATIONS
A. Plaintiff's Unique Design - The Flipper Screen
9. Plaintitf is an accomplished and award-winning independent furniture designer.
10. In 2003, plaintitf designed the Flipper Screen, one of his most unique and
distinctive pieces. An image ofthe Flipper Screen is annexed hereto as Exhibit A.
II. The Flipper Screen won Best in Category for Furniture at the 2004 Portland
Design Festival, and was featured by Cooper-Hewitt in the coveted Design Triennial Show.
12. Plaintiff featured the Flipper Screen at the International Contemporary Furniture
Fair in 2004, 2005, and 2006.
13. In the mid-2000's, due to its distinctive and award-winning design, plaintiffs
Flipper Screen was teatured in numerous design magazines and periodicals, including DH'ell,
Interior DeSign, Oregon Home, Chicago Tribune, New York Magazine, as well as TItlE
Magazine's "Design 100" list of 2007, and a hardbound design publication published by Graphis
Thomas Freedman, OSH No. 080697 Page 2 of 11
PEARL LAW LLC Complaint
312NW 10th Ave Sle201. POItlanu.OR 97209
503.467.7256 \ lhomaS@prllaw.com
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 2 of 13 Page ID#: 2
International Journal of Visual Communication.
14. In addition, during this timeframe, the Flipper Screen was featured on blogs,
television shows, was used by the erstwhile Marshall Field's department store in Chicago in
connection with fashion displays, and was carried by Sam Flax Art Supplies tlagship store in
New York City.
B. Defendants' Infringing and Unlawful Conduct - the Peekaboo!
15. Defendants Leigh and Leslie Keno, known as the Keno Brothers, have achieved
national and international celebrity and fame as antique and furniture appraisers, and have co
hosted several television shows, including a reality show on the Fox network called Buried
Treasure.
16. The Keno Brothers' television shows are broadcast in Oregon, and the Keno
Brothers travel to many states, including Oregon, as part of their shows and to discuss their
alleged furniture designs.
17. Defendant Theodore Alexander USA, Inc. ("Theodore Alexander") is one of the
leading furniture manufacturers in the world, and manufactures and sells furniture throughout the
United States, including in Oregon.
18. In or about 2010, Theodore Alexander launched a furniture line entitled "Keno
Bros. Furniture."
19. The "Keno Bros. Furniture" line was allegedly designed by defendants Leigh
Keno and Leslie Keno, in an attempt to capitalize on the reality-TV stardom of the Keno
Brothers' name.
20. The "Keno Bros. Furniture" line is manufactured by Theodore Alexander.
21. The "Keno Bros. Furniture" line includes a piece entitled the "Peekaboo!," which,
Thomas 'Freedman, OSS No. 080697
PEARL LAW LLC
312NW lOlhAveSle201.POItland. OR 97209
503.467.7256 IthomuS@prllaw.com
Page 3 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 3 of 13 Page ID#: 3
like all pieces in the "Keno Bros. Furniture" line, was allegedly designed by defendants Leigh
Keno and Leslie Keno. An image of the Peekaboo! is annexed hereto as Exhibit B.
22. The Peekaboo'! is an unauthorized copy and direct knock-otf of plaintiffs Flipper
Screen, unlawfully marketed and held out as a "Keno Bros. Furniture" original design, allegedly
designed by defendants Leigh and Leslie Keno.
23. The Peekaboo! directly copies the distinctive look and feel, unique design, total
image and overall appearance, visual characteristics, and other non-functional qualities and
features of plaintiffs Flipper Screen.
24. Defendants, in promoting, advertising, marketing, using, and selling the
Peekaboo!, have caused actual and potential confusion as to the creation, origin, and design of
plaintiffs Flipper Screen.
25. Defendants willfully infringed plaintiffs rights under state and federal law.
26. Plaintiff sent defendants a cease and desist letter dated August 10, 2011.
Defendants received the letter, willfully ignored it, and thereafter have continued to promote,
market and sell the PeekabooL
27. Defendants have damaged plaintiffs reputation and business integrity as an
independent furniture designer by unlawfully knocking otT his most revered design without any
credit or explanation, and falsely associating it with defendants' reality-show furniture line.
28. As a direct, proximate and toreseeable result of defendants' infringement and
unlawful conduct, plaintitfhas suffered extensive monetary damages, lost protits, irreparable
harm to his business and reputation, loss of goodwill, and other future and current damages, for
which there is no adequate remedy at law.
Thomas freedman. OSB No. 080697
PEARL LA W LLC
312 NW 1Otll Ave Stc 20 I, POl1land, OR '17209
503.-l67.7256 I thomas@prllaw.com
Page 4 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 4 of 13 Page ID#: 4
FIRST CAUSE OF ACTION
(Trademark Infringement - Trade Dress - Lanham Act 43)
29. Plaintiff restates and realleges the allegations contained in the preceding
paragraphs and incorporates the same by reference as if fuUy set forth herein.
30. Defendants have reproduced, copied and imitated the Flipper Screen's unique
trade dress in designing the Peekaboo! in a manner that is confusingly similar to the distinctive
trade dress of the Flipper Screen.
31. Defendants' adoption and use of the Flipper Screen trade dress constitutes trade
dress infringement and deliberate and willful violations of 15 U.S.c. 1 125(a) of the Lanham
Act.
32. Defendants' trade dress infringement, unless enjoined by this Court, will continue
to cause plaintiff to sustain irreparable damage, loss of goodwill, and injury for which plaintiff
has no adequate remedy at law.
33. Defendants' trade dress infringement is likely to cause confusion, mistake and
deception of the public as to the identity and origin of plaintiffs Flipper Screen, causing
irreparable harm to plaintiff and his reputation for which there is no adequate remedy at law.
34. As a direct, proximate and foreseeable result of defendants' trade dress
infringement and unlawful conduct, plaintiff has suffered extensive monetary damages, lost
profits, irreparable harm to his business and reputation, loss of goodwill, and other current and
future damages, and defendants are liable to plaintiff for damages and injunctive relief under the
Lanham Act.
SECOND CAUSE OF ACTION
(Unfair Competition -- Lanham Act 43)
35. Plaintiff restates and realleges the allegations contained in the preceding
Thomas Freedman, OSS No. 080697
PEARL LA W LLC
311 NW 10th Ave Ste 101, Pottlnnd, OR 97209
503.467.7256 1 thomaS@ prllaw.com
Page 5 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 5 of 13 Page ID#: 5
paragraphs and incorporates the same by reference as if fully set forth herein.
36. Defendants' promotion, marketing, advertising and selling of the Peekaboo! is in
direct competition with and an unlawful passing off of plaintiffs Flipper Screen and constitutes
unfair competition under 15 U.S.c. 1125(a) of the Lanham Act.
37. Defendant's use, promotion, marketing, advertising and selling of the Peekaboo!
is likely to cause confusion, mistake, and deception among consumers.
38. Defendant's unfair competition has caused and will continue to cause damage to
plaintitf, and is causing irreparable harm to plaintitf for which there is no adequate remedy at
law.
39. As a direct, proximate and foreseeable result of defendants' trade dress
infringement and unlawful conduct, plaintitfhas sutfered extensive monetary damages, lost
profits, irreparable harm to his business and reputation, loss of goodwill, and other current and
future damages, and defendants are liable to plaintiff for damages and injunctive relief under the
Lanham Act.
THIRD CAUSE OF ACTION
(False Description - Lanham Act 43)
40. Plaintiff restates and rea lieges the allegations contained in the preceding
paragraphs and incorporates the same by reference as if fully set f011h herein.
41. Defendants' Peekaboo! is such a colorable imitation and copy of plaintiffs
Flipper Screen established in the market that defendants' use thereof is likely to create confusion,
cause mistake, or deceive consumers as to the affiliation, connection or association between
plaintiffs Flipper Screen and the Peekaboo!, and/or to deceive consumers as to the origin,
sponsorship or approval of the Peekaboo! by plaintitf.
42. Defendant's use and marketing of the Peekaboo! comprises a false description or
Thomas Freedman, OSB No. 080697 Page 6 of II
PEARL LA W LLC Complaint
312 NW 10th Ave Ste 201 , P0111and, OR 97209
503.467.7256 1 thomaS@prllaw.com
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 6 of 13 Page ID#: 6
representation of business or products under 15 U.S.c. II25(a) of the Lanham Act.
43. As a direct, proximate and foreseeable result of defendants' false description and
unlawful conduct, plaintiff suffered extensive monetary damages, lost profits, irreparable harm to
his business and reputation, loss of goodwill, and other current and future damages, and
defendants are liable to plaintiff for damages and injunctive relief under the Lanham Act.
FOURTH CAUSE OF ACTION
(Violations of Oregon Unlawful Trade Practices Act)
(ORS 646.605 to 646.656)
44. Plaintiff restates and realleges the allegations contained in the preceding
paragraphs and incorporates the same by reference as if fully set forth herein.
45. As set forth with particularity supra, defendants' conduct violates Oregon's
Unfair Trade Practices Act, ORS 646.605 to 646.656 (the "UTPA").
46. Among other things, defendants, in the course of their business, vocation or
occupation: (i) caused likelihood of confusion or misunderstanding as to the source,
sponsorship, approval, or certification of the Flipper Screen; (ii) caused likelihood of confusion
or misunderstanding as to affiliation, connection, or association with, or certification by, plaintiff
of the Peekaboo!; (iii) passed otfplaintiff's Flipper Screen as their own original design and
goods; (iv) used deceptive representations in connection with the Peekaboo!; (v) represented that
the Peekaboo! has sponsorship, approval, characteristics, or qualities that it does not have; and
(vi) engaged in other unfair or deceptive conduct in trade or commerce.
47. Defendants' conduct was willful and intentional.
48. As a direct, proximate and foreseeable result of defendants' unlawful trade
practices, plaintitfhas suffered extensive economic, noneconomic and irreparable damages,
which continue to accrue.
Thomas Freedman, OSB No. 080697
PEARL LAW LLC
312 NW 10lh Ave 51e 201 , POl1land. OR 97209
503A67.7256IthomaS@prliaw.com
Page 7 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 7 of 13 Page ID#: 7
49. In addition, under the UTPA, plaintiff is entitled to recover reasonable attorney's
fees, see ORS 646.638(3), and punitive damages, see ORS 646.638(1).
FIFTH CAUSE OF ACTION
(Injury to Business Reputation - Common Law)
50. Plaintiff restates and realleges the allegations contained in the preceding
paragraphs and incorporate the same by reference as if fully set forth herein.
51. Defendants' promotion, use, marketing, advertising and sales of the Peekaboo!
injures and creates a likelihood of injury to plaintiffs business reputation.
52. Consumers and persons encountering the Peekaboo! will believe that plaintiff, a
well-respected and award-winning independent furniture designer, is affiliated with or related to
or has the approval of defendants, and any adverse reaction by the public to defendants, and the
quality of their products, including the reality-show affiliation of the "Keno Bros. Furniture"
line, will injure the business reputation and integrity of plaintiff and the goodwill he enjoys in
connection with the Flipper Screen.
53. As a direct, proximate and foreseeable result of defendants' unlawful conduct,
plaintiff has suffered extensive monetary damages, lost profits, irreparable harm to his business
and reputation, loss of goodwill, and other current and future damages.
SIXTH CAUSE OF ACTION
(Common Law Trade Dress and Unfair Competition)
54. Plaintiff restates and realleges the allegations contained in the preceding
paragraphs and incorporates the same by reference as if fully set forth herein.
55. Defendants have reproduced, copied and imitated the Flipper Screen trade dress in
marketing, advertising, promoting, and selling the Peekaboo! in a manner that is confusingly
similar to the distinctive trade dress of the Flipper Screen, and unfairly competed with plaintiff in
Thomas Freedman, OSB No. 080697 Page 8 of 11
PEARL LA W LLC Complaint
312 NW 10th Avt: Ste 20 I. POI1land, OR 97209
303.467.72561
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 8 of 13 Page ID#: 8
the marketplace.
56. Defendants' actions constitute common law trade dress infringement and unfair
competition.
57. Defendants' trade dress infringement and unfair competition, unless enjoined by
this Court, will continue to cause plaintiff to sustain irreparable damage, loss of goodwill, and
injury for which plaintiff has no adequate remedy at law.
58. As a direct, proximate and foreseeable result of defendants' unlawful conduct,
plaintiff has suffered extensive monetary damages, lost profits, irreparable harm to his business
and reputation, loss of goodwill, and other current and future damages.
JURY DEMAND
59. Plaintiff demands a trial by jury on all claims so triable.
WHEREFORE, plaintiff demands judgment against defendants as follows:
1. That defendants, their agents, officers, employees, representatives, successors,
assigns, attorneys, and all other persons acting for, with, by, through or under authority from
defendants, be preliminarily and permanently enjoined from:
(a) promoting, advertising, marketing or selling the Peekaboo!, or
any colorable imitation thereof;
(b) using any trademark or promoting, advertising, marketing or
selling any product that imitates or is confusingly similar to the
Flipper Screen, or that is likely to cause confusion, mistake,
deception, or public misunderstanding as to the origin of the
Flipper Screen or its connectedness to defendants; and
(c) from otherwise competing unfairly with plaintiff in any maImer;
2. That defendants be required to deli ver up to plaintiff for destruction all
versions of the Peekaboo! and all containers, labels, signs, prints, packages, catalogs,
Thomas Freedman, OSB No. 080697
PEARL LAW LLC
312 NW 10th Avt: Stt: 201 . POItland. OR 972{)9
503.467.72561 thoma: l!, prllaw.com
P<lge 9 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 9 of 13 Page ID#: 9
circulars, advertising, marketing or promotional materials, or the like, in their possession,
custody or control concerning the Peekaboo l;
3. That defendants be required to file and serve within thirty (30) days after
entry of the injunction a report in writing under oath pursuant to 15 U.S.C. 1116(a)
setting forth in detail the manner and fonn in which defendants have complied with the
injunction;
4. That defendants be required to account to plaintiff for any and all profits,
gains, savings and advantages derived by them from the illegal acts complained of herein,
including all sales of the Peekabool;
5. That defendants be held liable for damages sutfered by plaintiff resulting
from the acts alleged herein in an amount to be detennined at trial;
6. For treble damages pursuant to 15 U.S.c. 1117;
7. For punitive damages to the fullest extent available under applicable law,
including pursuant to ORS 646.638(] );
8. For attorney's fees to the fullest extent available under applicable law, including
pursuant to 15 U.S.C. 1117 and ORS 646.638(3);
9. For costs, disbursements, prevailing party fees, enhanced prevailing party fees,
and statutory interest to the fullest extent available under applicable law;
10. That the Court declare this to be an exceptional case under the Lanham Act and
awarding enhanced damages thereunder to the fullest extent available;
11. That the Court award plaintiff any other remedy to which he is entitled under
15 U.S.C. 1116 and 1117 or under state law; and
Thomas Freedman, OSB No. 080697
PEARL LAW LLC
3\1NW 10th AveSte 201, POItland,OR 97209
503.467.7256 IlholTIas@prllaw.wlTI
Page 10 of II
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 10 of 13 Page ID#: 10
12. For such other and further relief as the Court may deem just, equitable and proper.
Dated: October 6,2011 Respectfully submitted,
P ~ L C
B. 1/fi2
i -------------
Thomas Freedman
OSB No. 080697
Attorney jor Plaintiff
Thomas Freedman. OSB No. 080697
PEARL LAW LLC
312 NW 10th Ave Ste 201. Portland, OR 97209
503.467.72561 thomaS@prllaw.com
Pag!! 11 of 11
Complaint
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 11 of 13 Page ID#: 11
F "f p. per Screen
5 P d ~ d n d l ~
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Standard size is 3 panels.
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OCe50ndiego.comEXHISIT __6"--__
PAGE OF-+I_
Case 3:11-cv-01204-BR Document 1 Filed 10/06/11 Page 12 of 13 Page ID#: 12
THEODO ALEXANDER
Keno Bros.
Peekaboo!
KEN03201
Hyedua Veneer Fiddle Back Sycamore Veneer Vertically Rotating Circular Panels.
W 721Jz x 0 1 x H 86Y- inches
Material(s) Sycamore, Hyedua
Collection Keno Bros.
Style Modem Classic
Category Free Standing Accessories
Type Screens
EXHIBIT _g. __
PAGE I OFL
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