Blind Visual Propaganda v. Motion Theory Complaint

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 1 of 13 Page ID #:1
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Stuart L. Carroll, Esq. (State Bar #163980)

Email:
[email protected]
LAW OFFICES OF STUART L. CARROLL
400 Continental Blvd., Suite 600
El Segundo, California 90245
Telephone: (310) 615-1935
Attorney for Plaintiff BLIND VISUAL PROPAGANDA, INC.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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BLIND VISUAL PROPAGANDA,

INC., a California Corporation, doing
business as BLIND
Case No.:
COMPLAINT FOR:
Plaintiff,
1. UNFAIR COMPETITION AND

vs.
FALSE ADVERTISING
[15 U.S.C. 1125(a)];
MOTION THEORY, INC., a California 2. UNFAIR COMPETITION AND
corporation, and DOES 1 through 10,
FALSE ADVERTISING
inclusive,
[Cal. Bus & Prof. Code 17200
and 17500, et seq.]
Defendants
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DEMAND FOR JURY TRIAL
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Plaintiff, BLIND VISUAL PROPAGANDA, INC., a California corporation
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doing business as Blind (hereinafter Plaintiff), by and through its undersigned
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attorney, complains against defendants MOTION THEORY, INC., a California
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Corporation, (hereinafter MOTION THEORY), and Does 1 through 10, and
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alleges as follows:
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COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION
I. JURISDICTION AND VENUE
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1.
This action for damages and injunctive relief arises under the federal
trademark statute of the United States (the Lanham Act), (15 U.S.C. 1051, et
seq.) and under the common and statutory laws of the State of California.
2.
This Court is vested with subject matter jurisdiction over the federal
false advertising and unfair competition claims alleged herein pursuant to 28
U.S.C. 1331 (Federal question jurisdiction) and 1338 (Trademark jurisdiction).
This Court has subject matter jurisdiction over the related California state law
claims pursuant to 28 U.S.C. 1338 and 1367.
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3.
This Court has personal jurisdiction over Defendant MOTION
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THEORY which, upon information and belief, locates its principal place of
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business in the County of Los Angeles, State of California.
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4.
Venue is proper in this judicial district under 28 U.S.C. 1391(b) in
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that a substantial part of the events giving rise to the claims, as well as substantial
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injury to Plaintiff occurred within this judicial district. In addition, upon
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information and belief, Defendant MOTION THEORYs principal place of
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business is within the County of Los Angeles, State of California.

II. PARTIES
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5.
Plaintiff is a corporation organized under the laws of the State of
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California with its principal place of business at 1702 Olympic Blvd., Santa
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Monica, California 90404 which conducts business under the fictitious business
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name Blind.
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6.
Upon information and belief, Defendant MOTION THOERY is a
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corporation organized under the laws of the State of California with a principle
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place of business located at 4235 Redwood Avenue, Los Angeles, California
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90066.
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7.
Except as otherwise specifically referred to herein, the true names and
capacities, either individual, plural, corporate, partnership, associate or otherwise,
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of defendants Does 1 through 10, inclusive, are unknown to Plaintiff and therefore
Plaintiff sues said defendants by such fictitious names. Plaintiff is informed and
believes and based thereon alleges that each of the defendants designated herein as
a fictitiously named defendant is in some manner responsible for the events and
happenings referred to herein and caused the damage to Plaintiff. When Plaintiff
ascertains the true names and capacities of such Doe defendants, Plaintiff will seek
leave of this Court to amend this complaint accordingly. Each reference in this
complaint to defendant, defendants or a specifically named defendant refers
also to all defendants sued under fictitious names.
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8.
Plaintiff is informed and believes, and on that basis alleges, that at all
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times relevant herein, each of the defendants was the agent, partner, servant,
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supervisor, employee, successor and/or joint venturer of each of the remaining
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defendants and was at all times herein mentioned acting within the course and
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scope, and purpose of said agency, employment, business enterprise and joint
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venture. Plaintiff is further informed and believes and on that basis alleges that to
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the extent that the conduct and omissions alleged herein were perpetrated by one or
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more of the defendants, the remaining defendants confirmed and ratified said
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conduct and omissions.
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Plaintiff is informed and believes, and on that basis alleges, each and
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every allegation made herein of an act or omission on the part of a defendant or
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defendants shall also be deemed to refer to the act and/or omission of each
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defendant, whether acting individually, jointly, and/or severally.
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III. PRELIMINARY ALLEGATIONS AND BACKGROUND

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Plaintiff is a multi-disciplinary design, animation, visual effects and
production studio.
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Plaintiff is, and for many years has been, engaged in the business of,
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producing audio-visual works (hereinafter, Videos) for, among others, motion
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picture studios, broadcast and cable television networks, advertising agencies,
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production companies and consumer brands (hereinafter, collectively,
Consumers).
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In addition, Plaintiff has been in the business of, inter alia, providing
production services for advertising, television and motion pictures in the form of
motion graphics, digital and visual effects, animation and live-action audio-visual
productions (hereinafter, collectively, Production Services).
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Since its inception in 1996, Plaintiff has produced hundreds of
Videos.
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Plaintiff has won more than fifty (50) awards for its Videos and
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Production Services including Emmy Awards, Broadcast Design Association
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(BDA) Awards and dozens of Telly Awards.
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Plaintiff uses its Videos to market its Production Services.
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As part of this marketing effort, Plaintiff puts its Videos on its website
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where Consumers and others may view the fruits of Plaintiffs Production Services
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and recognize the level of quality inherent in the Videos.
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Plaintiff also submits its Videos to potential Consumers through
various electronic media.

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Among the Videos that Plaintiff has produced are three Videos for,
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respectively, the consumer product firms Audi, Dr. Martens (Lilac Wine music
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video) and Vagisil (hereinafter, collectively, Blinds Videos).
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IV. FIRST CLAIM FOR RELIEF
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Federal Unfair Competition and False Advertising 15 U.S.C. 1125(a)
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Against All Defendants
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Plaintiff realleges and incorporates herein the allegations contained in
paragraphs 1-18 of this Complaint.

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Blinds Videos have been reproduced, displayed and distributed
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through the website operated under the domain name www.MotionTheory.com
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(hereinafter, the Motion Theory Website).
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21.
A print out of a webpage from the Motion Theory Website located at
http://www.motiontheory.com/directors/vanessa-marzaroli depicting the
reproduction, display and distribution of Blinds Videos is attached hereto and
incorporated herewith as Exhibit A (hereinafter, the Misleading Webpage).
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Upon information and belief, Defendant MOTION THEORY operates
the Motion Theory Website.

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Plaintiff did not grant any permission or authority to any of the
Defendants for the reproduction, distribution or public display of any of Blinds
Videos as reproduced, distributed and publicly displayed on the Motion Theory
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Website or otherwise.
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The words Motion Theory in large, bold font appear at the top of
the Misleading Webpage.

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MOTION THEORYs contact information prominently appears on
the lower left-hand corner of the Misleading Webpage.

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Of the five Videos appearing on the Misleading Webpage, three of
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them, sixty percent (60%), are Videos produced by Plaintiff without any
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contribution from MOTION THEORY.
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No reference is made as to the true source or origin of Blinds Videos
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as posted on the Misleading Webpage or elsewhere within the Motion Theory
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Website.
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Visitors to the Motion Theory Website are given the false impression
that MOTION THEORY produced Blinds Videos.

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that Audi, Dr. Martin and Vagisil are clients of MOTION THEORY.
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A link from the Misleading Webpage provides additional information
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about Blinds Video entitled Lilac Wine, a promotional Video for Dr. Martens,
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which won numerous awards including an Emmy award.
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31.
that MOTION THEORY produced the Lilac Wine Video that won an Emmy
award.
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32.
Consumers are likely to be misled and deceived by Defendants
representations on the Motion Theory Website regarding Blinds Videos.

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Defendants knew or should have known that the impressions given
visitors and Consumers to the Motion Theory Website were false or likely to
mislead.
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On information and belief, Defendants actions are willful and reflect
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an intent to confuse consumers and profit from the goodwill, quality and value
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associated with Blinds Videos.
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35.
Plaintiff sent a demand letter to MOTION THEORY on or about
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November 25, 2014 demanding that MOTION THEORY cease all use of Blinds
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Videos.
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36.
As of the date of this Complaint, Defendants continue to reproduce,
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publicly display and distribute Blinds Videos without authorization and in a false
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and misleading manner. Defendants failure to comply with Plaintiffs demands
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demonstrates a deliberate intent to continue wrongfully competing with Plaintiff
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and to willfully deceive Consumers and others as to the source and origin of
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Blinds Videos.
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37.
The actions of Defendants, if not enjoined, will continue. Plaintiff has
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suffered and continues to suffer damages in an amount to be proven at trial
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consisting of, among other things, diminution in the value of and goodwill
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associated with Blinds Videos, and injury to Plaintiffs business. Plaintiff has no
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adequate remedy at law. Plaintiff is therefore entitled to injunctive relief pursuant
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to 15 U.S.C. 1116 and 1125(c).
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38.
As an actual and proximate result of Defendants willful and
intentional actions, Plaintiff has suffered damages in an amount to be determined at
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trial, and unless Defendants are enjoined, Plaintiff will continue to suffer
irreparable harm and damage to its business, reputation, and goodwill.
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Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to damages for
Defendants Lanham Act violations, an accounting for profits made by Defendants
for the period during which Defendants used Blinds Videos to promote
Defendants business, as well as recovery of the costs of this action.
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Plaintiff is informed and believes, and on that basis alleges, that
Defendants conduct was undertaken willfully and with the intention of causing
confusion, mistake or deception, making this an exceptional case entitling Plaintiff
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to recover additional damages and reasonable attorneys fees pursuant to 15 U.S.C.
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1117.
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41.
Plaintiff intends to amend this complaint to include other instances of
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unauthorized use, reproduction, distribution and display of Blinds Videos by
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Defendants and each of them, in a manner likely to deceive viewers of Blinds
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Videos as to the source and origin of Blinds Videos, as such instances become
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known through the discovery process.
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V. SECOND CLAIM FOR RELIEF
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Statutory Unfair Competition and False Advertising
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California Business and Professions Code 17200 and 17500, et seq.
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Against All Defendants
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42.
Plaintiff realleges and incorporates herein the allegations contained in
paragraphs 1-41 of this Complaint.

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Defendants actions described above and specifically, without
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limitation, Defendants reproduction, public display and distribution of Blinds
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Videos in a manner likely to mislead Consumers and visitors to the Motion Theory
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Website as to the source and origin of Blinds Videos, constitute unfair
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competition in violation of the laws of the State of California.
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44.
By these actions, Defendants have engaged in false advertising and
unfair competition in violation of the statutory law of the state of California, Cal.
Bus. & Prof. Code 17200 and 17500, et seq., and, as a result, Plaintiff has
suffered and will continue to suffer damage to its business, reputation, and
goodwill.
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As a direct and proximate result of Defendants willful and intentional
actions, Plaintiff has suffered damages in an amount to be determined at trial and,
unless Defendants are restrained, Plaintiff will continue to suffer irreparable
damage.
VI. PRAYER FOR RELIEF
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WHEREFORE, Plaintiff prays for judgment against each of the
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Defendants as follows:
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That Plaintiff be granted injunctive relief under 15 U.S.C. 1051 et
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seq.; and California Business and Professions Code 17200 and 17500 et seq.;
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specifically, that Defendants and all of their respective officers, agents, servants,
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representatives, employees, attorneys, and all other persons acting in concert with
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them be enjoined from:

A. reproducing, displaying, distributing or otherwise exploiting
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Blinds Videos;
B. directly or indirectly engaging in false advertising or other conduct
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likely to deceive Consumers or others as to the source or origin of Blinds Videos;

C. making or inducing others to make any false, misleading or
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deceptive statements of fact, or representations of fact in connect with Blinds
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Videos;
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2.
That Defendants, and each of them, file within (10) days from entry of
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an injunction, a declaration with this Court signed under penalty of perjury
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certifying the manner in which Defendants have complied with the terms of the
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injunction;
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3.
That Defendants be ordered to correct any erroneous impression
persons may have derived concerning the source or origin of Blinds Videos,
including without limitation:

A. the sending of a registered letter (with a copy to Plaintiff) to all
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recipients of any correspondence bearing the web address for the Motion Theory
Website informing the recipients of their prior misrepresentations regarding
Blinds Videos;
B. the placement of corrective advertising on the Motion Theory
Website informing visitors of their prior misrepresentations regarding Blinds
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Videos; and,
C. the removal of Blinds Videos from the Motion Theory Website.
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That Defendants be adjudged to have violated 15 U.S.C. 1125(a) by
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unfairly competing against Plaintiff by using false, deceptive or misleading
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representations of fact that likely confuse Consumers and others as to the source
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and origin of Blinds Videos.
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That Defendants be adjudged to unlawfully and unfairly compete
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against Plaintiff by engaging in false or misleading advertising under the laws of
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the State of California, Cal. Bus. & Prof. Code 17200, 17500, et seq.;
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That Plaintiff be awarded damages pursuant to 15 U.S.C. 1117(a),
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sufficient to compensate it for the damage caused by Defendants false and
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misleading statements;
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That Plaintiff be awarded Defendants profits derived by reason of
said acts, or as determined by said accounting;

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That Plaintiff be awarded damages in an amount sufficient to
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compensate it for the damage caused by Defendants unfair competition and false
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advertising under California Business and Professions Code 17200 and 17500 et
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seq. and under federal law and California common law;
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That Plaintiff be granted prejudgment and post judgment interest;
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That Plaintiff be granted costs associated with the prosecution of this
action;
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That Plaintiff be granted reasonable attorneys fees pursuant to 15
U.S.C. 1117 or otherwise;

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That Plaintiff be granted such other and further relief as the Court
deems just and equitable.
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Dated: January 28, 2015.
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By:
/s/
Stuart L. Carroll
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Stuart L. Carroll, Esq.
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Attorney for Plaintiff
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BLIND VISUAL PROPAGANDA, INC.
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DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby
demands a trial by jury on all issues triable as of right by a jury.
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Dated: January 28, 2015.
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By:
/s/
Stuart L. Carroll
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Stuart L. Carroll, Esq.
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Attorney for Plaintiff
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BLIND VISUAL PROPAGANDA, INC.
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EXHIBIT A: MISLEADING WEBPAGE
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EXHIBIT A: MISLEADING WEBPAGE
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1/27/2015
Case 2:15-cv-00662 Document MotionTheoryVanessaMarzaroli

1 Filed 01/28/15 Page 13 of 13 Page ID #:13
ABOUT
Director
DIRECTORS
VANESSA MARZAROLI
PRESS
CONTACT
LOGIN
Visa
Mexico
Search
SHARE
PROJECTS
BIOGRAPHY
4235 Redwood Avenue

Los Angeles, CA 90066
T 310.396.9433
F 310.396.7883
Audi
Lilac Wine
Audi A7
Lilac Wine
HP
Vagisil
Slate
Wipes
http://www.motiontheory.com/directors/vanessamarzaroli#projects
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Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 1 of 13 Page ID #:1

Stuart L. Carroll, Esq. (State Bar #163980)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

BLIND VISUAL PROPAGANDA,

1. UNFAIR COMPETITION AND

DEMAND FOR JURY TRIAL

Plaintiff, BLIND VISUAL PROPAGANDA, INC., a California corporation

doing business as Blind (hereinafter Plaintiff), by and through its undersigned

attorney, complains against defendants MOTION THEORY, INC., a California

Corporation, (hereinafter MOTION THEORY), and Does 1 through 10, and

COMPLAINT FOR FALSE OR MISLEADING

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 2 of 13 Page ID #:2

I. JURISDICTION AND VENUE

false advertising and unfair competition claims alleged herein pursuant to 28

U.S.C. 1331 (Federal question jurisdiction) and 1338 (Trademark jurisdiction).

claims pursuant to 28 U.S.C. 1338 and 1367.

This Court has personal jurisdiction over Defendant MOTION

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

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

injury to Plaintiff occurred within this judicial district. In addition, upon

information and belief, Defendant MOTION THEORYs principal place of

business is within the County of Los Angeles, State of California.

Plaintiff is a corporation organized under the laws of the State of

Upon information and belief, Defendant MOTION THOERY is a

place of business located at 4235 Redwood Avenue, Los Angeles, California

Except as otherwise specifically referred to herein, the true names and

capacities, either individual, plural, corporate, partnership, associate or otherwise,

COMPLAINT FOR FALSE OR MISLEADING

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 3 of 13 Page ID #:3

complaint to defendant, defendants or a specifically named defendant refers

also to all defendants sued under fictitious names.

supervisor, employee, successor and/or joint venturer of each of the remaining

conduct and omissions.

every allegation made herein of an act or omission on the part of a defendant or

defendant, whether acting individually, jointly, and/or severally.

III. PRELIMINARY ALLEGATIONS AND BACKGROUND

Plaintiff is a multi-disciplinary design, animation, visual effects and

producing audio-visual works (hereinafter, Videos) for, among others, motion

picture studios, broadcast and cable television networks, advertising agencies,

COMPLAINT FOR FALSE OR MISLEADING

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 4 of 13 Page ID #:4

production companies and consumer brands (hereinafter, collectively,

productions (hereinafter, collectively, Production Services).

Since its inception in 1996, Plaintiff has produced hundreds of

Production Services including Emmy Awards, Broadcast Design Association

(BDA) Awards and dozens of Telly Awards.

Plaintiff uses its Videos to market its Production Services.

and recognize the level of quality inherent in the Videos.

Plaintiff also submits its Videos to potential Consumers through

various electronic media.

video) and Vagisil (hereinafter, collectively, Blinds Videos).

IV. FIRST CLAIM FOR RELIEF

Federal Unfair Competition and False Advertising 15 U.S.C. 1125(a)

Against All Defendants

Plaintiff realleges and incorporates herein the allegations contained in

paragraphs 1-18 of this Complaint.

Blinds Videos have been reproduced, displayed and distributed

through the website operated under the domain name www.MotionTheory.com

(hereinafter, the Motion Theory Website).