MARTIN D. SINGER (BAR NO. 78166) T. WAYNE HARMAN (BAR NO. 254089) LAVELY & SINGER PROFESSIONAL CORPORATION 2049 Century Park East, Suite 2400 Los Angeles, C: nia 90067-2906 ‘Telephone: (310) 556-3501 Facsimile: (310) 556-3615 Emails: mdsinger@lavelysinger.com wharman@lavelysinger.com Attorneys for Plaintifis GERALD M. MARVIN and JOSHUA S. REYNOLDS CONFO! E JUL 28 2017 Sherr R. Ganer, cxecuuve umicer/ciork ‘By Shaunya Bolden, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES GERALD M. MARVIN, an individual, and JOSHUA S. REYNOLDS, an individual, Plaintiffs, v. GEORGE GROYE, an individual, WILLIAM ZORN, an individual, RICHARD DOUGHERTY, an individual, NIKKI GARY, an individual, and DOES 1-50, Defendants. oz BC670191 CASE NO.: COMPLAINT FOR: 1, TRADEMARK INFRINGEMENT (15 US.C. §1114); 2. TRADEMARK INFRINGEMENT, FALSE DESIGNATION OF ORIGIN (15 U.S.C. § 1125(a)) 3. TRADEMARK DILUTION as . § 1125(e)) 4, CONSTRUCTIVE TRUST; CONVERSION; 6. INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL COMPLAINTPlaintiffs GERALD M. MARVIN and JOSHUA S. REYNOLDS (“Plaintiffs”), by and through their undersigned counsel, allege as follows against Defendants GEORGE GROVE, WILLIAM ZORN, RICHARD DOUGHERTY, and NIKKI GARY (“Defendants”). NATURE OF THE ACTION 1. This action arises out of the duplicitous, bad faith conduet of Defendants who are attempting to deprive Plaintiffs of the exclusive license that they bargained and paid for, which allows them to exclusively use the trademark of the legendary music group, The Kingston Trio. Defendants, along with the licensors of the trademark, concealed their plan until Plaintiff paid for the exclusive license and were preparing to tour and bring The Kingston Trio’s music ~ the music of Plaintiffs’ fathers — to fans, old and new. Then, in a shameless attempt to assist licensors with their lusive license. attempt to renegotiate after the fact, Defendants refused to acknowledge Plaintiffs’ e Worse still, Defendants made it clear that they planned to actually compete with Plaintiffs and dilute the value of everything Plaintiffs had bargained, paid, and worked so hard for. That devious conduct, tarnishing the name and legacy of The Kingston Trio, prompted this action, 2. The Kingston Trio is an American folk and pop music group that started in San Francisco in the late 1950°s, and whose original lineup include Dave Guard, Bob Shane, and Nick Reynolds. Over the years, the lineup of the band has changed, but The Kingston Trio continues to appear and perforin across the world, bringing their beloved folk and pop songs to their fans, old and new. Plaintiff Josh Reynolds is a musician whose father, Nick Reynolds, was one of the original members of the Kingston Trio (along with Bob Shane, who together with his wife, Barbara Childress, owns the rights to The Kingston Trio trademark). 3. Because of the long history between Josh’s father and Bob Shane and the close-knit nature of the Kingston Trio “extended family,” Shane indicated his desire that Josh take over the Kingston Trio legacy someday. In 2016, Josh, along with his cousin and good friend, Plaintiff Mike Marvin (who also is a long-time, accomplished musician and de facto adopted son of Nick Reynolds), realized their dream, and entered into an exclusive, ten-year (minimum) license agreement to use The Kingston Trio trademark. Josh and Mike began planning the next stage of 1 ~ COMPLAINTSeow a aue i 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ras 28 their lives: touring the world as The Kingston Trio, bringing their music, and the music of thei fathers, to a new generation. 4. Unfortunately, less than one week after Josh and Mike made the final installment payment of the $100,000 initial royalty fee, the true intentions of Shane and Childress were revealed, and Josh and Mike’s extensive plans for the use of the trademark were thrown into disarray. Shane and Childress engaged in a campaign of wrongful acts designed to strong-arm Josh and Mike into renegotiating the terms of the license agreement in a manner more favorable to licensors, or else suffer the likelihood that the trademark (which they just finished paying at least $100,000 for), would be rendered valueless as the result of licensors’ competitive acts and refusal to honor the terms of the exclusive license. In doing so, Shane and Childress wilfully and shamefully breached the license agreement, the covenant of good faith and fair dealing implied therein, and maliciously and wantonly committed fraud. Plaintiffs are parties to a pending arbitration proceeding against licensors. 5. Until the final installment payment of the $100,000 initial royalty fee was made, Shane and Childress were representing to Josh and Mike that their booking agent, Defendant Nikki Gary, had been and was booking concerts of The Kingston Trio during the term of Josh and Mike's exclusive license for Josh’s and Mike’s benefit. However, once that fee had been paid, their story changed. As part of their campaign of wrongful acts, Shane and Childress represented that Defendant GARY, had been booking, and would continue to book, concerts of The Kingston Trio past August I, 2017, with the stated intent that the existing lineup of The Kingston Trio (Defendants GROVE, ZORN, and DOUGHERTY) perform the bookings, and not Josh and Mike, the exclusive licensees. Despite being informed of the exclusive license on multiple occasions, Defendant GARY has refused to even respond to Josh and Mike, let alone inform them of the nature of the bookings, her representations to the venues about the makeup of the band, and how much she has received in deposits. 6. The response of GROVE, ZORN, and DOUGHERTY to Shane and Childress’ campaign has been equally unlawful and shameful, especially given the longstanding, personal relationship Josh has had with them over the years. They too have ignored Plaintifis’ multiple letters 2 COMPLAINTand emails, and based upon information and belief, fully intend to perform bookings as ‘The Kingston Trio after August 1, 2017, in clear violation of Plaintiffs’ rights. In addition, upon further information and belief, they have accepted money and/or other compensation in retum for their commitment to performing these bookings during the term of Josh and Mike’s exclusive license. 7. Inless than one week, Josh and Mike will begin the first day of their ten (and possibly twenty) year term of their exclusive license to use the Kingston Trio trademark for all purposes, for which they have invested countless hours and hundreds of thousands of dollars. Now, on the eve of what should be an exciting time for all parties, Defendants are refusing to acknowledge Josh and Mike’s rights under the exclusive license, and instead, are choosing to compete with them and dilute the value of everything they bargained for. The conduct of Defendants (and others), which is entirely inconsistent with the collaborative and positive spirit of the sixty year history of The Kingston Trio, must be dealt with now, before it is too late, and the value of the Kingston Trio name is diluted beyond repair. PARTIES 8. Plaintiff GERALD M. MARVIN is, and at all times relevant hereto has been, an individual residing within the county of Los Angeles, California. 9. Plaintiff JOSHUA S. REYNOLDS is, and at all times relevant hereto has been, an individual residing within the county of Los Angeles, California, 10. Plaintiffs are informed and believe, and based thereon allege, that GEORGE GROVE is, and at all times relevant hereto was, an individual residing in Nevada, and doing business in the County of Los Angeles, State of California, 11. Plaintiffs are informed and believe, and based thereon allege, that BILL ZORN is, and at all times relevant hereto was, an individual residing in Arizona, and doing business in the fornia. runty of Los Angeles, State of 12. Plaintiffs are informed and believe, and based thereon allege, that RICHARD DOUGHERTY is, and at all times relevant hereto was, an individual residing in Alameda, California, and doing business in the County of Los Angeles, State of California, 3 ‘COMPLAINTew au een 10 i 12 13 4 15 16 7 18 19 20 a 22 2B 24 26 27 28 13. Plaintiffs are informed and believe, and based thereon allege, that NIKKI GARY is, ‘and at all times relevant hereto was, an individual residing in San Diego, California, and doing business in the County of Los Angeles, State of California, 14, Plaintifis are presently unaware of the true names and capacities of the Defendants sued herein as Does 1 through 20, inclusive, and therefore sued said Defendants by such fictitious names. Plaintiffs will amend this Complaint to allege the true names and capacities of such fictitiously named defendants when the same have been ascertained, Plaintiffs are informed and believe and based thereon allege that each of the fictitiously-named defendants is responsible in some manner for the occurrences, acts and omissions alleged herein and that the damages about which Plaintiffs complain were proximately caused by their conduct. Hereinafter, all defendants (including the Doe defendants) will sometimes be referred to collectively as “Defendants.” 15, Plaintifis are informed and believe and based thereon allege that at all material times each Defendant was and is the agent, member, partner, joint venturer, and/or co-conspirator of each of the remaining Defendants and at all times herein mentioned was acting within the course and scope of that agency, membership, partnership, conspiracy and/or joint venture. 16. Plaintiffs are informed and believe and thereupon allege that at all relevant times, Defendants acted in concert, conspired and agreed among themselves to commit the wrongful acts and practices alleged in this Complaint, and that such wrongful acts and practices were committed pursuant to and in furtherance of such conspiracy and agreement, and with the consent and approval ofeach of the Defendants. Plaintiffs are informed and believe, and thereupon allege, that each of the Defendants is liable as a direct participant, co-conspirator and/or aider and abettor of the wrongful acts and practices alleged herein. ALLEGATIONS COMMO! ALL US OF ACTION Plaintiffs’ Exclusive License to Use The Kingston Trio Trademark After August 1, 2017 17. As explained herein, given the long history and tradition of The Kingston Trio going back over sixty years, there is substantial consumer recognition, good will, and monetary value in the famous “The Kingston Trio” trademark. 4 — COMPLAINTBoe x 18. Upon information and belief, Robert Shane, an original member of The Kingston Trio, purchased all rights in the name, “The Kingston Trio,” in the 1970°s. Shane and his wife, Barbara “Bobbie” Childress, are the sole members of Kingston Trio, LLC, which is the holder of the io.” registered trademark “The Kingston 19. On or around August 4, 2016, Plaintiffs entered into a written agreement with Robert Shane and Barbara Childress, as authorized representatives of Kingston Trio, LLC, for an exclusive license to use The Kingston Trio trademark (the “Trademark”) for all. purposes (the “License Agreement”). The initial ten-year term of the exclusive license commences on August 1, 2017. 20. Pursuant to the license agreement, Plaintiffs bargained for, paid for, and received the right to use the Trademark on an exclusive basis for all purposes, which includes, but is not limited to, use of the Trademark in merchandising, on a website, and in connection with a series of camps attended by new and old fans of The Kingston Trio. It also includes use of the Trademark in ‘connection with performances/appearances as The Kingston Trio, which is (and always has been) Plaintiffs’ intended primary use of the Trademark. 21. As of August 1, 2017, Plaintiffs are the sole and exclusive licensees of all federal and ‘common law rights in and to the service mark “The Kingston Trio,” as used and registered in, inter alia, International Class 041 (education and entertainment) (protected by U.S. Trademark Reg. No. 2,877,430 issued by the United States Patent and Trademark Office (the “USPTO”) on or around August 24, 2004). This includes, without limitation, the use of “The Kingston Trio” trademark in connection with all musical performances as “The Kingston Trio” or any substantially similar variation thereof. 22. As of August 1, 2017, Plaintiffs also are the sole and exclusive licensees of any and all common law trademark rights in and to the word and/or service mark “The Kingston Tri ‘connection with a variety of products, services, appearances, and performances. This includes, without limitation, the use of “The Kingston Trio” trademark in connection with all musical ion thereof. performances as “The Kingston Trio” or any substantially similar v 5 COMPLAINT23, The Kingston Trio trademark is distinctive, has been continually used throughout the United States, as well as worldwide, and is well known to the trade and members of the purchasing public, Defendants’ Wrongful Conduct 24, Beginning in or around February 2017, Plaintiffs were informed that Shane and Childress’ long-time booking agent, GARY, had been and was booking gigs for The Kingston Trio past August 1, 2017. Upon information and belief, despite being aware of Plaintiffs’ exclusive license to use the Trademark after that date, GARY was booking these gigs with the intent that the existing lineup of The Kingston Trio (Grove, Zom, and Dougherty) perform the bookings, and not Plaintiffs, the exclusive licensees. Upon further information and belief, GARY withholds a portion of the gross revenue of these bookings as agent and/or management fees, and collects approximately half of the gross revenue up front as a deposit. Upon further information and belief, GARY has collected deposits for performances of The Kingston Trio scheduled to take place during the term of | the License Agreement. 25, Defendant GARY never sought Plaintiffs’ approval to book concerts at which GROVE, ZORN, and DOUGHERTY would perform as The Kingston Trio (or a substantially similar version thereof), on or after August 1, 2017, or collect deposits for such concerts, and Plaintiffs have not and do not approve of her doing so, 26. To the contrary, after Plaintiffs were informed that Defendant GARY was booking concerts at which GROVE, ZORN, and DOUGHERTY would perform as ‘The Kingston Trio (or a substantially similar version thereof), on or after August 1, 2017, and was collecting deposits for such concerts, Plaintiffs notified her, in writing, that she was prohibited from doing so. Plaintiffs further demanded that she retain possession (in trust, for Plaintiffs) of all deposits or other funds in her possession, custody, or control related to such concerts, and provide further details about such concerts. Despite being informed of the exclusive license in writing on multiple occasions, GARY has refused to even respond to Plaintiffs. 27. Upon information and belief, despite being aware of Plaintiffs’ exclusive license to use the Trademark after August 1, 2017, GROVE, ZORN, and DOUGHERTY intend to perform as8 10 int 13, 14 16 7 18, 19 20 21 22 24 25 26 27 The Kingston Trio after August 1, 2017, have represented to third parties that they will be performing as The Kingston Trio after August 1, 2017, and already have received money and/or other consideration in advance of these performances. This includes, without limitation, performing as The Kingston Trio at an annual event that has been held for over a decade known as “The Kingston Trio Fantasy Camp,” or “Trio Fantasy Camp.” This year, this camp is being held in August, during the term of the License Agreement, Attached hereto as Exhibit A is a true and correct copy of an online advertisement, dated July 17, 2017, for a November 11, 2017 concert in Cerritos, California, using the picture of GROVE, ZORN, and DOUGHERTY as The Kingston Trio. 28. Defendants GROVE, ZORN, and DOUGHERTY never sought Plaintiffs’ approval to perform as The Kingston Trio (or a substantially similar version thereof), or otherwise use the ‘Trademark, on or after August 1, 2017, and Plaintiffs have not and do not approve of their use of the ‘Trademark on or afier that date. 29. To the contrary, after Plaintiffs discovered that Defendants GROVE, ZORN, and DOUGHERTY intended to perform as The Kingston Trio, or otherwise use the Trademark, on or after August 1, 2017, Plaintiffs notified them, in writing, that they could not do so. Plaintiffs sent several such notices to GROVE, ZORN, and DOUGHERTY, all of which were ignored. 30. In addition to the $100,000 initial royalty fee that they have paid, Plaintifis additionally have invested over $200,000 and thousands of hours into The Kingston Trio. They have sacrificed other lucrative job opportunities, lined up investors, and put their reputations on the line. Most importantly, given their intimate connection to The Kingston Trio that goes back decades, Plaintiffs’ extensive plans for The Kingston Trio (that all begin with the License Agreement) are of ‘tremendous pride and personal importance to them. FIRST CAU! OF At ON (Trademark Infringement, 15 U.S.C. § 1114) (Against All Defendants) 31, Plaintiffs reallege, adopt and incorporate by reference, each and every allegation contained in Paragraphs 1 through 30, inclusive, of this Complaint as if fully set forth herein, 7 COMPLAINT32. As alleged, PlaintiffS are the sole and exclusive licensees of The Kingston Trio trademark as of August 1, 2017. 33. Through their above-described actions, Defendants have used and continue to use the ‘Trademark in commerce in an effort to collect deposits and secure bookings for performances as The Kingston Trio (and/or a substantially similar version thereof) by GROVE, ZORN, and DOUGHERTY, on or after August 1, 2017, during the period when Plaintiffs have a sole and hhis use of the ‘Trademark is likely to cause nse to use the Trademark for all purpose: exclusive consumer confusion, to cause mistake, or to deceive, given that Plaintiffs themselves intend to perform as The Kingston Trio on or after August 1, 2017. 34. The aforesaid conduct of Defendants is without the consent or permission of Plaintiffs. 35. As a result of Defendants” inffingement, Plaintiffs have suffered and continue to suffer monetary damages, and Defendants have unlawfully profited, in an amount which cannot be accurately computed at this time but will be proven at tral. 36. Plaintiffs are also entitled to the disgorgement of Defendants’ profits under 15 U.S.C. §1117€@), 37. Plaintiffs are further entitled to recover treble damages pursuant to 15 U.S. 1117). 38. Plaintiffs are further entitled to injunctive relief because the conduct of Defendants has caused and will continue to cause Plaintiffs irreparable harm for which there is no adequate remedy at law. 39. This case qualifies as an “exceptional case” within the meaning of 15 U.S.C. § 1117(a) in that Defendants’ actions have been malicious, fraudulent, deliberate, willful, and taken in bad faith with full knowledge and in conscious disregard of Plaintiffs’ rights. As such, Plaintiffs are entitled to recover their attorneys’ fees pursuant to 15 U.S.C. § 1117(@). 8 ‘COMPLAINTul 12 13 14 15 16 7 18 19 20 21 23 24 26 27 SECOND CAUSE OF ACTION (Trademark Infringement and False Designation of Origin, 15 U.S.C. § 1125(a)) (Against All Defendants) 40. Plaintifi’s incorporate by reference each and every allegation contained in Paragraphs 1 through 30, inclusive, of this Complaint as if fully set forth herein, 41. The Trademark has tremendous good will, is distinctive, has been used throughout the United States and worldwide, and is well known to the trade and members of the purchasing public. During the term of the License Agreement, the public will associate and identify the Trademark with Plaintifis, 42. Without Plaintiffs’ authorization or consent, Defendants have used the Trademark to advertise and book, without limitation, performances of GROVE, ZORN, and DOUGHERTY as The Kingston Trio during the term of the License Agreement. 43. Defendants’ advertisement, offer for booking, booking, and/or performance of GROVE, ZORN, and DOUGHERTY as The Kingston Trio during the term of the License Agreement constitutes false designation of origin or sponsorship of said performance and tends falsely to represent that the performance originates from Plaintiff or has been sponsored, approved, or licensed by Plaintiffs or is in some way affiliated or connected with Plaintiffs. Such conduct of Defendants is likely to confuse, mislead, and deceive Defendants’ customers, purchasers, and members of the public as to the origin of the performances as The Kingston Trio or cause said persons to believe that the performances of GROVE, ZORN, and DOUGHERTY as The Kingston Trio have been sponsored, approved, authorized, or licensed by Plaintiffs or are in some way affiliated or connected with Plaintiffs, all in violation of 15 U.S.C. § 1125(a). 44, Defendants’ actions were done willfully with full knowledge of the falsity of such designations of origin and false descriptions or representations, and with the express intent to cause confusion, and to mislead and deceive the purchasing public. 45, This case qualifies as an “exceptional case” within the meaning of 15 U.S.C. § 1117(a) in that Defendants’ actions have been malicious, fraudulent, deliberate, willful, and taken in1 |} bad faith with full knowledge and in conscious distegard of Plaintiffs" rights. As such, Plaintififs are 2 || entitled to recover their attomeys’ fees pursuant to 15 U.S.C. § 1117(a). 3 46. Plaintiffs are also entitled to the disgorgement of Defendants’ profits pursuant to 15 4 |]US.C. § 1117@). 5 47. Plaintiffs also are further entitled to recover treble damages pursuant to 15 U.S.C. § 6 |} 1117€. 7 48. Plaintiffs have no adequate remedy at law. Plaintiff’ are entitled to injunctive relief 8 || because the conduct of Defendants described above, has caused and, if not enjoined, will continue to 9 |} cause irreparable damage to the rights of Plaintiffs in the Trademark, and to the business, reputation, 10 |] and goodwill of Plaintiffs. ul 49, Plaintiffs have been damaged by, and Defendants have profited from, Defendants’ 12 || wrongful conduct in an amount to be proven at trial. 13 THIRD CAUSE OF ACTION 4 (Trademark Dilution, 15 U.S.C. § 1125(¢)) 15 (Against All Defendants) 16 50. Plaintiff's incorporate by reference each and every allegation contained in Paragraphs 17 ||] through 30, inclusive, of this Complaint as if fully set forth herein. 18 51. The Trademark is distinctive and famous within the meaning of Section 43(c) of the 19 |} Lanham Act, 15 U.S.C. § 1125(c), and was distinctive and famous prior to the date of Defendants’ 20 || conduct alleged herein. 2 52. Defendants’ conduct in connection with the booked performances of GROVE, 22 ||ZORN, and DOUGHERTY as The Kingston Trio during the term of the License Agreement is likely 23 |} to difute and is diluting the distinctive quality of the famous ‘Trademark, in that Defendants’ conduct 24 |fis likely to create and has created an association between their performances during the term of the 25 || License Agreement and the Trademark, which impairs the distinctiveness of that famous mark and 26 ||lessens the capacity of that famous mark to identify and distinguish performances by Plaintifis as 27 || The Kingston Trio under that mark. 28 10 COMPLAINTSeow aaus rT 12 13 14 15 16 7 19 20 24 22 23 24 25 26 27 28 53. On information and belief, Defendants’ acts of trademark dilution have been done willfully and deliberately and Defendants have profited and been unjustly enriched by bookings that Defendants would not otherwise have made but for their unlawful conduct. As such, Plaintifis are entitled to the disgorgement of Defendants’ profits under 15 U.S.C.§ 1117(a). 54. Plaintiffs are further entitled to recover treble damages pursuant to 15 U.S.C. 1117@). 55. Plaintiffs have no adequate remedy at law. Plaintifi’ are entitled to injunctive relief because the conduct of Defendants described above has caused and, if not enjoined, will continue to cause irreparable damage to the rights of Plaintifis in the Trademark, and to the business, reputation, and goodwill of Plaintiff. 56. Plaintiffs have been damaged by, and Defendants have profited from, Defendants’ ‘wrongful conduct in an amount to be proven at tria 57. This case qualifies as an “exceptional case” within the meaning of 15 U.S.C. § 1117(@) in that Defendants’ actions have been malicious, fraudulent, deliberate, willful, and taken in bad faith with full knowledge and in conscious disregard of Plaintiffs’ rights. As such, Plaintiffs are entitled to recover their attorneys’ fees pursuant to 15 U.S. § 1117(a). FOURTH CAUSE OF ACTION (Constructive Trust) (Against All Defendants) 58. Plaintiffs incorporate by reference each and every allegation contained in Paragraphs 1 through 30, inclusive, of this Complaint as if fully set forth herein. 59. Plaintiffs are informed and believe, and based thereon allege, that as the result of Defendants’ wrongful acts alleged herein, including, but not limited to, their infringement of the Trademark, Defendants have received money and/or other valuable consideration and have been unjustly enriched at the expense of Plaintiffs, and Defendants will continue to receive money and/or other valuable consideration in the future from their unauthorized and infringing use of the Trademark during the term of the License Agreement. This includes, but is not limited to, money i ‘COMPLAINTSeow uwaAaueun i 12 13, 4 15 16 7 18 19 20 a 2 23 24 25 26 27 and/or other consideration received in connection with booked performances of The Kingston Trio during the term of the License Agreement. 60. By virtue of their exclusive license to use the Trademark during the term of the License Agreement, Plaintiffs have the sole and exclusive right to all world-wide revenues generated and/or collected in connection with the actual and/or anticipated use of the Trademark during the term of the License Agreement. 61. As a direct and proximate result of Defendants’ wrongful and illegal conduct as alleged herein, Defendants hold any and all monies due and owing to Plaintiffs from the actual and/or threatened use of the Trademark during the term of the License Agreement, plus interest on said amount, as an involuntary constructive trustee in constructive trust for Plaintiffs, FIFTH CAUSE OF ACTION (Conversion) (Against All Defendants) 62. Plaintiffs incorporate by reference each and every allegation contained in Paragraphs 1 through 30, inclusive, of this Complaint as if fully set forth herein. 63. Upon information and belief, Defendants obtained deposits for booked performances of GROVE, ZORN, and DOUGHERTY as The Kingston Trio during the term of the License ‘Agreement, despite knowing of Plaintiffs’ exclusive license during the term of the License ‘Agreement and Plaintiffs’ intent and right to perform those bookings as The Kingston Trio during the term of the License Agreement. While those deposits should have been paid to Plaintiffs, Defendants failed to do so, Accordingly, Defendants intentionally, substantially, and unlawfully interfered with Plaintiffs’ right to the deposits by taking possession of the deposits, preventing Plaintiffs from having access to the deposits, and/or refusing to return the deposits to Plaintiffs after they demanded their return, Plaintiffs did not consent to these acts of Defendants. 64, Asa direct and proximate result of the aforesaid wrongful acts of Defendants, and each of them, Plaintiffs have been damaged in an amount in excess of the jurisdictional minimum of this court and no less than $75,000. 12 COMPLAINTeer auneey 65. Plaintiff are informed and believe, and based thereon allege, that Defendants, and each of them, in doing the things herein alleged, acted willfully, maliciously, oppressively and despicably, and with full knowledge of the adverse effect of their actions on Plaintiffs and with ‘willful and deliberate disregard for the consequences to Plaintiffs. By reason thereof, Plaintiffs are entitled to recover punitive and exemplary damages from Defendants in an amount to be determined at the time of trial. ION 'H CAUSE OF At (Injunetive Relief) (Against All Defendants) 66. Plaintiffs reallege, adopt and incorporate by reference, each and every allegation contained in Paragraphs 1 through 30, inclusive, of this Complaint as if fully set forth herein, 67. Plaintiffs seek a preliminary and permanent injunction to enjoin the Defendants from inftinging, diluting, and/or using (without the authorization of PlaintiffS) the Trademark, or any other substantially similar mark, during the term of the License Agreement (as extended) 68. Plaintiffs have demanded that Defendants confirm they will cease and desist from competing with Plaintiffs during the term of the License Agreement and/or inffinging the ‘Trademark, which includes, without ition, advertising, offering for booking, booking, and/or engaging in performances of, GROVE, ZORN, and DOUGHERTY as The ingston Trio during the term of the License Agreement (as extended), However, Defendants have refuused to so confirm. 69. Unless and until enjoined and restrained by this Court, Plaintiffs believe that Defendants’ use of the Trademark, or any other substantially similar mark, during the term of the License Agreement will cause Plaintiffs to suffer grave and irreparable injury, including, but not limited to, through the dilution of the value of the Trademark, in amounts which may be impossible to determine, 70. Plaintiffs are likely to prevail on the merits of this action and have no plain, speedy, or adequate remedy at law. 13 ‘COMPLAINTSew rAaueun u 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 PRAYE! FOR RELIEF WHEREFORE, Plaintiffs demand relief and judgment against Defendants, jointly and severally, as follows: 1. That Defendants, their agents, servants, employees, representatives, successors, and assigns, and all persons, firms, or corporations in active concert or participation with Defendants, be preliminarily and permanently enjoined from: a, advertising, offering for booking, booking, and/or engaging in performances of, GROVE, ZORN, and DOUGHERTY as The Kingston Trio during the term of the License Agreement (as extended); b. directly or indirectly infringing and/or contributing to the infringement of the ‘Trademark in any manner, including generally, but not limited to, i, advertising, offering for booking, booking, and/or engaging in performances of, GROVE, ZORN, and DOUGHERTY as The Kingston Trio during the term of the License Agreement (as extended), ii, engaging in any conduct and/or contributing to any conduct that tends falsely to represent that, or is likely to confuse, mislead, or deceive purchasers, Defendants’ customers, and/or members of the public to believe that the actions of Defendants, the performances of Defendants, or Defendants themselves are connected with Plaintiffs, are sponsored, approved, or licensed by Plaintiffs, or are in some way connected or affiliated with Plaintifis (other than as expressly authorized by Plaintiffs); and . otherwise competing unfairly with Plaintiffs in any manner; 2. That Plaintiffs be awarded damages and Defendants be ordered to account for and pay over to Plaintifis all profits realized by Defendants by reason of Defendants’ unlawful acts herein alleged, and that these damages and profits be increased as provided by law; 14 ‘COMPLAINTSow rea WW 2 1B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 6. 10, Dated: July 28,2017 ‘That this case be deemed an “exceptional” case pursuant to 15 U.S.C. § 1117, because of the willful and deliberate nature of Defendants’ act of trademark and infringement, trademark dilution, and false designation of origin; ‘That Plaintiffs recover reasonable attorneys’ fees; ‘That Plaintiffs recover treble damages pursuant to 15 U.S.C. § 1117(a); ‘That Defendants, within thirty days after the service of the judgment herein, be required to file with this Court and serve upon Plaintiffs? attomeys, a written report under oath setting forth in detail the manner in which they have complied with the judgment; ‘That a constructive trust be imposed for the benefit of Plaintiffs on the funds received by Defendants in connection with their infringement and/or other unauthorized use of the Trademark during the term of the License Agreement, as well as any and all profits derived by Defendants from their use and enjoyment of those funds, in an amount according to proof at the time of trial; ‘That Plaintiffs be awarded exemplary and punitive damages in an amount according to proof at the time of trial; That Plaintifts be awarded pre-judgment and post-judgment interest; and That the Court grant Plaintiffs such other and further relief as it deems just and equitable to make Plaintiffs whole for the damage caused by Defendants. LAVELY & SINGER Attorneys for Plaintiffs GERALD M. MARVIN, and JOSHUA S. REYNOLI 15 COMPLAINTcae ao 10 u 12 13 “4 15 16 7 18 19 20 21 22 23 24 25 26 28 JURY DEMAND Plaintiffs GERALD M. MARVIN and JOSHUA S. REYNOLDS respectfully request a jury trial on all triable issues set forth in this Complaint. Dated: July 28,2017 LAVELY & SINGER PROFESSIONAL CORPORATION MARTIN D. SINGER, MARTIN D. SINGER ‘Attorneys for Plaintiffs GERALD M. MARVIN, and JOSHUA S. REYNOLDS 16 COMPLAINT