CASE NO. 99-1071-Civ-Orl-22A

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DOOBIE BROTHERS CORPORATION, Plaintiff,

v.

PAUL CURCIO; AUTUMN MANAGEMENT, INC., a FIorida corporation, d/b/a AUTUMN GROUP; CORNELIUS BUMPUS; CHET McCRACKEN, DAVID SHOGREN;  TICKETMASTER-FLORIDA, INC., a Florida corporation; and TICKETMASTER ONLINE-CITYSEARCH, INC., a Delaware corporation, Defendants.

       Plaintiff, DOOBIE BROTHERS CORPORATION, through its undersigned attorneys, hereby sues Defendants, PAUL CURCIO; AUTUMN MANAGEMENT, INC., a Florida corporation;  d/b/a AUTUMN GROUP; CORNELIUS BUMPUS; CHET MCCRACKEN; DAVID SHOGREN; TICKETMASTER- FLORIDA, INC., a Florida corporation; and TICKETMASTER ONLINE-CITYSEARCH, INC., a Delaware corporation, and says as follows:

       1. This is a civil action, for which a jury trial is demanded, for Counts arising from defendants' unauthorized use of the federally registered trademark "THE DOOBIE BROTHERS" to promote and sell tickets to live musical performances in Florida and to sell banded merchandise in conjunction with the performances when, in fact, that band is unquestionably not the world-famous Doobie Brothers rock'n'roll group.  Rather, three musicians, each of whom briefly performed with the band years ago, are, for the first time in the band's history, being promoted, without authorization, as "The Original Doobie Brothers," "Doobies Revisited" and/or other similar names by one PAUL CURCIO, a former Doobie Brothers acquaintance who has infringed the band's intellectual property for decades.

JURISDICTION AND VENUE

       2. This Court has subject matter jurisdiction over this action pursuant to 18 U.S.C. Section 1964 and 28 U.S.C. Sections 1331, 1338 and 1367.

       3. The alleged unlawful acts and violations described below were in part conceived, carried out and made effective, or are to be carried out and made effective, within the Middle District of Florida.  All the defendants named in this action transact or have transacted business within this District.

       4. Venue is proper in this District pursuant to 28 U.S.C. Section 1391.

THE PARTIES

       5.  Plaintiff DOOBIE BROTHERS CORPORATION is a California corporation in good standing with its principal place of business in Sonoma County, California.

       6.  Defendant PAUL CURCIO resides in Palm Harbor and has a place of business in Clearwater, Florida.

       7.  Based on information and belief defendant, AUTUMN MANAGEMENT, INC, is a Florida corporation, doing business as AUTUMN GROUP, with its principal place of business in Clearwater, Florida.

       8.  Based on information and belief, defendant CORNELIUS BUMPUS is a New York resident.

       9. Based on information and belief, defendant CHET MCCRACKEN is a California resident.

       10. Based on information and belief, defendant DAVID SHOGREN is a Califomia resident.

       11.  Defendant TICKETMASTER-FLORIDA, INC., is a Florida corporation with its principal place of business in Orlando, Florida.

       12.  Defendant TICKETMASTER ONLINE-CITYSEARCH, INC., is a Delaware corporation, authorized to do business and doing business in this District, with its principal place of business in Pasadena, California.

FACTS COMMON TO ALL COUNTS

       13.  The Doobie Brothers are a world-famous rock'n'roll band who have performed and recorded music since 1970.  Over the last 30 years the Doobie Brothers have recorded 13 gold and 11 platinum or multi-platinum records, have released 27 successful singles, have sold more than 30 million records in this country alone (as certified by the Recording Industry Association of America) and have performed live before tens of millions of fans worldwide. To this day, Doobie Brothers music is a staple of radio broadcasting. The band continues to record new material, tour worldwide and sell records and merchandise bearing the band's name, likeness, logos and nickname ("the Doobies").

       14.  Plaintiff DOOBlE BROTHERS CORPORATION is the Doobie Brothers' principal business entity with the exclusive right, among others, to license the Doobie Brothers' name, likeness, trademarks and other identifying material.  Plaintiff DOOBIE BROTHERS CORP. holds the rights in and to a number of federally registered Doobie Brothers trademarks including "THE DOOBIE BROTHERS" (words only) for printed materials, clothing and entertainment services (S.N. No. 73-270979), "THE DOOBIE DB BROTHERS" (words and design) for printed paper stickers and programs and entertainment services (S.N. No. 73-271079), "THE DOOBIE BROTHERS DB" (words and design) for clothing (S.N. No. 73-271080) and "DOOBlES" (words only) for printed materials and entertainment services (S.N. No. 73-274395). Since 1970, only the band operated by or through plaintiff and its affiliated entities have been authorized to use the "Doobie Brothers" name.

       15. Defendants CORNELIUS BUMPUS, CHET McCRACKEN, and DAVID SHOGREN are former members of the Doobie Brothers.

       16. Defendant DAVID SHOGREN was briefly a member from about 1970 to 1971, leaving the band after its first album was released. He has not worked with the band since.

       17.  Defendants CHET McCRACKEN and CORNELIUS BUMPUS both joined the band in about 1980, and left about 1981 and 1983, respectively While CORNELIUS BUMPUS briefly rejoined the band in 1987, neither McCRACKEN nor BUMPUS have worked with the band since.

       18.  Defendant PAUL CURCIO, a former band acquaintance, has a long history of infringing the Doobie Brothers' intellectual property by repeatedly granting, and receiving compensation for granting, unauthorized and invalid licenses to exploit the Doobie Brothers' intellectual property.

       19.  In 1983, judgment was entered against defendant CURCIO for copyright infringement, trademark infringement and unfair competition due to CURCIO's  unauthorized licensing of an early Doobie Brothers audition tape. Doobie Brothers Corp. v. Paul Curcio, et al., Case No. Civ. C-80-4178 TEH (N.D. Cal. 1983). A consent judgment was also entered against the purported licensee in that matter, Pickwick International, who agreed to pull the infringing product from the market and pay damages of $70,000 to plaintiff herein.

       20.  Undaunted, CURCIO has continued to sell and license the compositions and recordings on the audition tape to unsuspecting third-parties.  During the last five years alone, CURCIO illegally authorized:

a. A 1994 release of the tape on Tokyo-based Jimco Records;

b. A 1945 purported sale of the copyrights to the musical compositions on the tape to New Jersey-based Bronjo Music, Ltd, Inc.;

c. A 1995 purported sale of the copyrights to the sound recordings on the tape to New Jersey based San Juan Music Group, Ltd; and

d. A 1996 release of the tape on Denmark based Elap Music.

       28.  The web page of defendant TICKETMASTER ONLINE-CITYSEARCH, INC., contains the following language about both of the previously noted Florida performances:

AUTUMN GROUP PRESENTS

ORIGINAL DOOBIE BROTHERS

 IN CONCERT

       29.  Based on information and belief, defendants sell merchandise bearing plaintiff's DOOBIE BROTHERS or DOOBIES trademarks at their infringing performances.

       30.  None of the defendants has been authorized by plaintiffs to use the federally registered trademark "THE DOOBlE BROTHERS," any other of plaintiffs' marks, or any similar marks, logos, names or symbols.  In fact, former members CHET MCCRACKEN and CORNELIUS BUMPUS signed contracts explicitly acknowledging that they had "no right, title, or interest in the name "THE DOOBIE BROTHERS" (which shall include derivative names such as "The Doobies" and any logo used in connection with or in substitution for said name), such name remaining the property of The Doobie Brothers Corp."

       31.  All conditions precedent to the relief sought herein have occurred or have been waived.

       32. Plaintiff has retained the undersigned attorneys to protect its interest in this matter and is obligated to pay them a reasonable fee for their services.

COUNT ONE

VIOLATION OF SECTION 43(a) OF THE FEDERAL LANHAM ACT

(Against All Defendants)

       33.  Plaintiff realleges the entirety of Paragraphs 1 through 32 as if fully set forth here.

       34.  By their acts and omissions, defendants, and each of them, have - in violation of Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a) - made commercial use of words, terms, names, symbols, or combinations thereof, of false or misleading designations of origin and/or of description or representation of fact which are likely to cause confusion as to the origin of defendants' goods or services, defendants' affiliation, connection or association with plaintiff, plaintiff's endorsement or approval of defendants' goods or services, and/or which misrepresent in advertising the nature, characteristics, qualities, or geographic origin of defendants' goods or services.

       35.  Defendants AUTUMN MANAGEMENT, INC., BUMPUS, CURCIO, MCCRACKEN and/or SHOGREN acted with the knowledge that their acts and omissions were likely to cause confusion as to the origin of defendants' goods or services, defendants' affiliation, connection or association with plaintiff, plaintiff's endorsement or approval of defendants' goods or services, and/or misrepresent in advertising the nature, characteristics, qualities, or geographic origin of defendants' goods or services.

       36. Due to defendants' acts and omissions, plaintiff has been damaged in an amount to be proven at trial.

COUNT TWO

FEDERAL STATUTORY TRADEMARK INFRINGEMENT

(Against All Defendants)

       37.  Plaintiff realleges the entirety of Paragraphs 1 through 36 as if fuIly set forth here.

       38.  By their acts and omissions, defendants, and each of them, have  in violation of 15 U.S.C. Section 1114(l)(a) -without plaintiff's consent, used in commerce a reproduction, counterfeit, copy, or colorable imitation of plaintiff's a registered marks in connection with the sale, offering for sale, distribution, or advertising of goods and/or services on or in connection with which such use is likely to cause confusion, mistake, or deception.

       39.  By their acts and omissions, defendants and each of them, have  in violation of 15 U.S.C. Section 1114(1)(b) -without plaintiff's consent, reproduced, counterfeited, copied, or colorably imitated plaintiff's registered marks and applied 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, mistake, or deception.

       40.  Defendants AUTUMN MANAGEMENT, INC., BUMPUS, CURCIO, MCCRACKEN and/or SHOGREN acted with the knowledge that their acts and omissions were likely to cause confusion, mistake, or deception.

       41.  Due to defendants' acts and omissions, plaintiff has been damaged in an amount to be proven at trial.

COUNT THREE

FEDERAL STATUTORY TRADEMARK DILUTlON

(Against All Defendants)

       42.  Plaintiff realleges the entirety of paragraphs 1 through 41 as if fully set forth here.

       43.  By their acts and omissions, defendants, and each of them, have in violation of 15 U.S.C. Section 1125(c) made commercial use in commerce of plaintiff's marks, after plaintiff's marks had become famous, and caused dilution of the distinctive quality of plaintiff's marks.

       44.  Defendants AUTUMN MANAGEMENT, INC., BUMPUS, CURCIO, MCCRACKEN and/or SHOGREN willfully intended to trade on plaintiff's reputation or to cause dilution of plaintiff's famous mark.

       45.  Due to defendants' acts and omissions, plaintiff has been damaged in an amount to be proven at trial.

COUNT FOUR

COMMON LAW UNFAIR COMPETITION

(Against All Defendants)

       46.  Plaintiff realleges the entirety of paragraphs 1 through 45 as if fully set forth here.

       47.  The acts and omissions of defendants, and each of them, constitute unfair competition under state common law.

       48.  The acts and omissions of defendants AUTUMN MANAGEMENT, INC., BUMPUS, CURCIO, MCCRACKEN and/or SHOGREN involved willful, wanton, or gross misconduct.

       49.  Due to defendants' acts and omissions, plaintiff has been damaged in an amount to be proven at trial.

COUNT FIVE

VIOLATION OF THE FLORIDA RACKETEER-INFLUENCED CORRUPT ORGANIZATION ACT

(Against Defendant Curcio)

       50.  Plaintiff realleges the entirety of Paragraphs 1 through 49 as if fully set forth here.

       51.  Defendant CURCIO's acts and omissions within the last five years constitute a pattern of racketeering activity in violation of Chapter 895 of the Florida Statutes.  Defendant CURCIO's predicate offenses include, but are not necessarily limited to:

a.  vending goods or services with counterfeit trademarks or service marks in violation of Florida Statutes Sections 831.05;

b.  forging or counterfeiting of private labels in violation of Florida Statutes Section 831.03;

c.  false personation in violation of Florida Statutes Section 817.02;

d.  false advertising in violation of Florida Statutes Section 817.06;

e.  misleading advertising in violation of Florida Statutes Section 817.41;

f.  intentional false advertising in violation of Florida Statutes Section 817.44;

g.  fraudulant creation or possession of an admission ticket in violation of Florida Statutes Sections 817.355;

h.  making false statements to obtain property or credit in violation of Florida Statutes Section 817.03;

i.  violation of the Florida Communications Fraud Act (Florida Statutes Section 817.034);

j.  trafficking in goods and services bearing counterfeit trademarks in violation of 18 U.S.C. Section 2320;

k.  mail fraud in violation of 18 U.S.C. Section 1341, and;

l.  wire fraud in violation of 18 U.S.C. Section 1343.

Phillips, Erlewine & Given LLP  -  50 California Street, 35th Floor, San Francisco, CA 94111.  Telephone:  (415) 398-0900  -  Fax: (415) 398-0911  

© 1999.  All Rights Reserved.  Phillips, Erlewine & Given LLP