Case 3:14-cv-00633 Document 1 Filed 12/05/14 Page 1 of 11

WATSON ROUNDS
1 MICHAEL D. ROUNDS
Nevada Bar No. 4734
2 MATTHEW D. FRANCIS
Nevada Bar No. 6978
3 5371 Kietzke Lane
Reno, NV 89511
4 Telephone: (775) 324-4100
Facsimile: (775) 333-8171
5 Email: mrounds@watsonrounds.com
Email: mfrancis@watsonrounds.com
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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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POOR BOY PRODUCTIONS, INC., a Nevada Case No.:
corporation; CREEDENCE CLEARWATER
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REVIVAL, a California partnership; STUART
COOK, an individual; DOUGLAS CLIFFORD, an COMPLAINT
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Individual; PATRICIA FOGERTY, an individual
and the executrix of the Estate of Thomas Fogerty,
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Plaintiffs, JURY DEMAND
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v.
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JOHN FOGERTY, an individual,
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Defendants.
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Plaintiffs Poor Boy Productions, Inc. (Poor Boy), Creedence Clearwater Revival
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(CCR), Stuart Cook (Cook), Douglas Clifford (Clifford), and Patricia Fogerty (Ms.
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Fogerty) (collectively Plaintiffs), by and through their undersigned attorneys Watson Rounds,
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for their Complaint against Defendant John Fogerty (Defendant or Fogerty), allege the
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following:
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JURISDICTION AND VENUE
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1. This action arises under the Acts of Congress relating to the Lanham Act, Title 15
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U.S.C. 1051, et seq., and the common law. This is also an action for declaratory relief from an
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anticipated claim of breach of contract and breach of the implied covenant of good faith and fair
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dealing by Defendant Fogerty. This is also an action for breach of contract, breach of the

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1 implied covenant of good faith and fair dealing, and breach of fiduciary duty under California
2 law. Jurisdiction is based on federal question pursuant to 28 U.S.C. 1331 and 1338 because
3 this action involves federal questions of law. Additionally, this Court has subject matter
4 jurisdiction under the provisions of 28 U.S.C. 1332(a) because the amount in controversy
5 exceeds the sum or value of $75,000, exclusive of interest and costs, and the action is between
6 citizens of different states. This Court has supplemental jurisdiction over the claims brought
7 under the common law pursuant to 28 U.S.C. 1338(b) and 1367(a).
8 2. Defendant is subject to this Courts personal jurisdiction because he has

9 conducted business in this judicial district and has derived revenue from services and/or goods

10 provided to customers in this district. As just one example, Fogerty performed in Las Vegas,

11 Nevada in October of 2014.

12 3. Venue is proper in this judicial district pursuant to Title 28 U.S.C. 1391 (b)

13 and (c), and in the Reno Division of the District of Nevada.

14 PARTIES

15 4. Plaintiff Poor Boy is a Nevada corporation with its principal place of business

16 located in Incline Village, Nevada.

17 5. Plaintiff CCR is a California partnership comprised of Messrs. Cook, Clifford,

18 and Fogerty, and Ms. Fogerty.

19 6. Plaintiff Clifford is a resident of the State of Nevada.

20 7. Plaintiff Cook is a resident of the State of Texas.

21 8. Plaintiff Ms. Fogerty is a resident of the State of Arizona.

22 9. Defendant John Fogerty is a resident of the State of California.

23 FACTS

24 10. The musical group Creedence Clearwater Revival was originally comprised of

25 Douglas Clifford, Stuart Cook, Tom Fogerty and John Fogerty. Tom Fogerty passed away in

26 1990, and his interest in CCRs property, including intellectual property and royalties, passed to

27 his wife, Ms. Fogerty.

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1 11. CCR is the owner of U.S. Trademark Registration No. 1222931 (931 Reg.) for

2 the Mark Creedence Clearwater Revival for Entertainment Services in International Class 41,

3 and all common law rights relating thereto. A copy of the 931 Reg. is attached hereto as Exhibit

4 A.

5 12. On July 2, 1996, Fogerty filed a Complaint in the United States District Court

6 Central District of California Western Division against Poor Boy, Cook, Clifford and Ms.

7 Fogerty styled Fogerty v. Poor Boy Productions, Inc., et al., Case No. CV 96-4634 RMT
8 (RNBx). Fogerty also sought and obtained a preliminary injunction against the Defendants in
9 that action from performing under the name Creedence Clearwater Revisited. The Ninth
10 Circuit Court of Appeals reversed that order in an unpublished opinion in Fogerty v. Poor Boy
11 Productions, Inc., et al., 124 F.3d 211 (9th Cir. 1997).
12 13. After the Ninth Circuit reversed the district courts preliminary injunction order,
13 the parties entered into a settlement agreement (the Settlement Agreement) on or about
14 January 9, 2001. A copy of this Settlement Agreement is attached hereto as Exhibit B. Pursuant
15 to the Settlement Agreement, the parties agreed that Fogerty would withdraw his objection to
16 Cliffords and Cooks performing under the name Creedence Clearwater Revisited. Id. The
17 parties also agreed that Clifford, Cook and Ms. Fogerty would not authorize any third party
18 person or entities to perform under the names Creedence, Creedence Clearwater or any
19 derivative of those names without the prior written permission of Fogerty. Id. The parties also
20 agreed that Poor Boy would pay monies to Fogerty for uses of the Revisited name. Id.
21 14. After entering into the Settlement Agreement, Poor Boy fully performed under the
22 terms of that Agreement, and paid the agreed-upon monies to Fogerty. However, in a July 9,
23 2011 article for Ultimateclassicrock.com, Fogerty publically condemned and objected to Poor
24 Boys, Cliffords and Cooks use of the Creedence Clearwater Revisited name. See
25 http://ultimateclassicrock.com/john-fogerty-condemns-former-bandmates/, a copy of which is
26 attached hereto as Exhibit C.
27 15. After publication of this article, Poor Boy, through counsel, sent a letter to
28 counsel for Fogerty enclosing checks for performances and merchandise for Creedence

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1 Clearwater Revisited for the second and third quarters of 2011, and demanding cessation of

2 Fogertys malfeasance and breach of the Settlement Agreement. Fogerty did not respond, and,

3 as a result, Poor Boy ceased paying Fogerty monies under the Settlement Agreement. To this

4 day, the offending article can still be accessed today at http://ultimateclassicrock.com/john-

5 fogerty-condemns-former-bandmates/.

6 16. In addition to violating the terms of the Settlement Agreement, Fogerty has used

7 the Creedence Clearwater Revival service mark and trademark without the permission of CCR.
8 Examples of such infringing uses are attached collectively hereto as Exhibit D.
9 17. Fogertys unauthorized use of Creedence Clearwater Revival creates a
10 likelihood of confusion, mistake and deception as to the affiliation, connection, association,
11 origin, sponsorship or approval of its goods and services by or with CCR, all to CCRs
12 irreparable loss and damage.
13 18. Upon information and belief, confusion of consumers will likely occur as a result
14 of the acts of Fogerty complained of herein unless Fogerty is enjoined from continuing said acts.
15 Furthermore, CCR will suffer irreparable injury to its reputation and goodwill unless Fogerty is
16 so enjoined.
17 19. Fogerty has recently alleged that Poor Boy, Clifford and Cook have violated the

18 terms of the Settlement Agreement by failing to pay royalties and at least impliedly, by asserting

19 that Messrs. Clifford and Cook have not performed together. As such, Fogerty has recently

20 demanded payment of all monies allegedly owing from December 2011 to the present, including

21 an accounting of performances where Clifford and Cook have not performed together. Fogerty

22 has also threatened litigation in the event his demands were not satisfied.

23 CLAIM I

24 (Trademark Infringement - 15 U.S.C. 1114(a))

25 20. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above

26 as if fully set forth herein.

27 21. By the acts complained of herein, Fogerty has used in connection with his

28 services and/or goods a reproduction, counterfeit, copy or colorable imitation of the Creedence

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1 Clearwater Revival Mark protected by the 931 Reg in connection with the sale, offering for

2 sale, distribution and advertising of his entertainment services and/or goods, and such use is

3 likely to cause confusion, mistake and deception amongst the consuming public in violation of

4 15 U.S.C. 1114(a).

5 22. Fogertys aforesaid acts have caused and will continue to cause great and

6 irreparable injury to Plaintiffs and, unless such acts are restrained by this Court, such acts will

7 continue and Plaintiffs will therefore continue to suffer great and irreparable injury.
8 23. Plaintiffs have been damaged by Defendants willful infringement in an amount
9 according to proof.
10 CLAIM II
11 (Lanham Act Violation - 15 U.S.C. 1125(a))
12 24. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above
13 as if fully set forth herein.
14 25. By the acts complained of herein, Fogerty has used in connection with his
15 entertainment services and/or goods a false designation of origin, description or representation,
16 including use of the Infringing Marks which is likely to cause confusion, mistake or to deceive as
17 to origin, affiliation, connection, sponsorship or association of Fogerty with Plaintiffs, or as to
18 the origin, sponsorship or approval of Fogertys services and/or goods by Plaintiffs, in violation
19 of 15 U.S.C. 1125(a).
20 26. Fogertys aforesaid acts have caused and will continue to cause great and
21 irreparable injury to Plaintiffs and, unless such acts are restrained by this Court, such acts will
22 continue and Plaintiffs will therefore continue to suffer great and irreparable injury.
23 27. Plaintiffs have been damaged by Defendants willful unfair competition in an
24 amount according to proof.
25 CLAIM III
26 (Unfair Competition at Common Law)
27 28. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above
28 as if fully set forth herein.

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1 29. The aforesaid acts of Fogerty constitutes the sale and passing-off of his services

2 and/or goods as Plaintiffs services and/or goods, infringement, imitation and misappropriation

3 of Plaintiffs Mark, unjust enrichment, and unfair competition with Plaintiffs, in violation of

4 Plaintiffs rights at common law.

5 30. Fogertys aforesaid acts have caused and will continue to cause great and

6 irreparable injury to Plaintiffs and, unless such acts are restrained by this Court, such acts will

7 continue and Plaintiffs will therefore continue to suffer great and irreparable injury.
8 31. Plaintiffs have been damaged by Defendants willful unfair competition in an
9 amount according to proof.
10 CLAIM IV
11 (Declaratory Relief - 28 U.S.C. 2201-2202)
12 32. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above
13 as if fully set forth herein.
14 33. By reason of the foregoing allegations, an actual case or controversy has arisen
15 and exists between Plaintiffs and Fogerty as to alleged violations of the Settlement Agreement.
16 34. Plaintiffs contend that they have not violated the Settlement Agreement, but that
17 Fogerty has.
18 35. Given the nature of Fogertys charges, Plaintiffs will continue to suffer harm and
19 damage unless this Court declares that Plaintiffs have not violated the Settlement Agreement.
20 CLAIM V

21 (Breach of Contract)

22 36. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above

23 as if fully set forth herein.

24 37. Poor Boy, Clifford, Cook, and Ms. Fogerty and Fogerty entered into the

25 Settlement Agreement on or about January 9, 2001 whereby Fogerty agreed to withdraw his

26 objection to Cliffords and Cooks performing under the name Creedence Clearwater

27 Revisited. See Exhibit B. The parties also agreed that Clifford, Cook, and Ms. Fogerty would

28 not authorize third party persons or entities to perform under the names Creedence,

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1 Creedence Clearwater or any derivative of those names without the prior written permission of

2 Fogerty. Id. The parties also agreed that Poor Boy would pay monies to Fogerty for uses the

3 Revisited name. Id.

4 38. Poor Boy, Clifford, Cook, and Ms. Fogerty performed under the terms of his

5 Settlement Agreement with Fogerty until Fogerty breached the Settlement Agreement by

6 publically condemning and objecting to Poor Boys use of the Creedence Clearwater Revisited

7 name, which he agreed to pursuant to the Settlement agreement. See Exhibit C.

8 39. As a direct and proximate result of Fogertys actions and breach of contract, Poor
9 Boy, Clifford, Cook, and Ms. Fogerty have suffered damages in an amount in excess of $75,000,
10 and in an amount according to proof.
11 CLAIM VI
12 (Breach of Implied Covenant of Good Faith and Fair Dealing)
13 40. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above
14 as if fully set forth herein.
15 41. The Settlement Agreement between Poor Boy, Clifford, Cook, and Ms. Fogerty
16 and Fogerty contains an implied covenant of good faith and fair dealing.
17 42. The implied covenant of good faith and fair dealing requires that Fogerty do
18 nothing to injure the right of Poor Boy, Clifford, Cook, and Ms. Fogerty to receive the benefits
19 of that Agreement, that Fogerty give full cooperation to Poor Boy, Clifford, Cook, and Ms.
20 Fogerty, and Fogerty refrains from doing any act to prevent or impede Poor Boy, Clifford, Cook,
21 and Ms. Fogertys enjoyment of the benefit of that Agreement.
22 43. The acts and omissions described herein have resulted in Fogertys breach of not
23 only the Settlement Agreement with Poor Boy, Clifford, Cook, and Ms. Fogerty, but have also
24 resulted in the breach of Fogertys covenant of good faith and fair dealing as applied to that
25 Agreement.
26 44. As a direct and proximate result of Fogertys actions and breaches of implied
27 covenant of good faith and fair dealing, Poor Boy, Clifford, Cook, and Ms. Fogerty have suffered
28 damages in an amount in excess of $75,000, and in an amount according to proof.

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1 CLAIM VII

2 (Breach of Fiduciary Duty Cal. Corp. Code. 16401, 16404, 16501)

3 45. Plaintiffs repeat, reallege, and reiterate each and every paragraph set forth above

4 as if fully set forth herein.

5 46. Cal. Corp. Code 16401(g) states that a partner may use or possess partnership

6 property only on behalf of the partnership. Cal. Corp. Code 16501 provides that a partner is

7 not a coowner of partnership property and has no interest in partnership property that can be

8 transferred, either voluntarily or involuntarily. Cal. Corp. Code 16404 provides that (a) The

9 fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty

10 and the duty of care set forth in subdivisions (b) and (c). Subsection (b)(3) of Code provides

11 that a partner must refrain from competing with the partnership in the conduct of the partnership

12 business before the dissolution of the partnership.

13 47. By using the Creedence Clearwater Revival service mark and trademark

14 without CCRs permission, Fogerty has violated his fiduciary duties to that partnership.

15 48. As a direct and proximate result of Fogertys actions and breaches of fiduciary

16 duty, CCR has suffered damages in an amount in excess of $75,000, and in an amount according

17 to proof.

18 PRAYER FOR RELIEF

19 WHEREFORE, Plaintiffs respectfully request this Court for the following relief:

20 1. That the Court find that the Fogerty has been and is infringing the Creedence
21 Clearwater Revival service mark and trademark and corresponding 931 Reg., and is competing
22 unfairly with Plaintiffs, and otherwise has been unjustly enriched.
23 2. That Plaintiffs be awarded their damages and Fogertys profits attributable to his
24 infringement of the Creedence Clearwater Revival service mark and trademark and
25 corresponding 931 Reg. under 15 U.S.C. 1117(a).
26 3. That Plaintiffs be awarded three times the profits attributable to Fogertys
27 infringement of the Creedence Clearwater Revival service mark and trademark and
28 corresponding 931 Reg. under 15 U.S.C. 1117(a).

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1 4. That Plaintiffs be awarded their reasonable attorneys fees and costs of suit, under

2 15 U.S.C. 1117(a).

3 5. That an injunction be issued against Fogerty and his servants, agents, employees,

4 successors and assigns, and all persons acting in concert or privity with him, enjoining each of

5 them, singly and collectively, from: (a) further using, promoting, advertising, and marketing the

6 Creedence Clearwater Revival service mark and trademark, or any name, mark or designation

7 confusingly similar thereto; (b) further holding himself out to the public as being affiliated with
8 or sponsored by CCR in any manner, or committing any acts likely to imply any such
9 relationship or affiliation; (c) requiring Fogerty to deliver to Plaintiffs for destruction all
10 infringing material in his possession, custody or control bearing the Creedence Clearwater
11 Revival service mark or trademark, or any other names, marks or designations confusingly
12 similar thereto; and (d), requiring Fogerty to cease stating that Poor Boy, Clifford and Cook
13 cannot use the Creedence Clearwater Revisited service mark and trademark in commerce.
14 6. That an order be issued preventing Fogertys infringement and unfair competition
15 and awarding all applicable damages for Defendants conduct.
16 7. That the Court declare that none of the Plaintiffs have violated the Settlement
17 Agreement.
18 8. For general damages.
19 9. For incidental damages.
20 10. For consequential damages.
21 11. For costs of suit incurred herein.
22 12. For reasonable attorneys fees.
23 13. For pre-judgment and post-judgment interest.
24 ///
25 ///
26 ///
27 ///
28 ///

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1 14. That the Court grant Plaintiffs such other relief as is just and proper.

2 DATED this 5th day of September, 2014. WATSON ROUNDS

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By: /s/ Michael D. Rounds
4 MICHAEL D. ROUNDS
MATTHEW D. FRANCIS
5 5371 Kietzke Lane
Reno, NV 89511
6 Telephone: (775) 324-4100
Facsimile: (775) 333-8171
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Email: mrounds@watsonrounds.com
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Email: mfrancis@watsonrounds.com

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1 JURY DEMAND

2 Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs Poor Boy Productions, Inc., Creedence

3 Clearwater Revival, Stuart Cook, Douglas Clifford, and Patricia Fogerty hereby demand a jury

4 trial on all issues triable by jury.

5 DATED this 5th day of December, 2012. WATSON ROUNDS

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By: /s/ Michael D. Rounds
7 MICHAEL D. ROUNDS
MATTHEW D. FRANCIS
8 5371 Kietzke Lane
Reno, NV 89511
9 Telephone: (775) 324-4100
Facsimile: (775) 333-8171
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Email: mrounds@watsonrounds.com
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Email: mfrancis@watsonrounds.com

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