Case 1:18-cv-02266-RPM Document 5 Filed 09/14/18 USDC Colorado Page 1 of 21

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:18-cv-02266-RPM-STV

JAIME LONGORIA, ABIGAIL RATCHFORD, ANA CHERI, EMILY SEARS, JACLYN

SWEDBERG, LUCY PINDER, and ROSIE ROFF

Plaintiffs,

v.

MILLION DOLLAR CORPORATION d/b/a/ Dandy Dan’s a/k/a Dandy Dan’s Gentlemen’s
Club,

Defendant.

FIRST AMENDED COMPLAINT AND JURY DEMAND

Plaintiffs, Jaime Longoria, Abigail Ratchford, Ana Cheri, Emily Sears, Jaclyn Swedberg,

Lucy Pinder, and Rosie Roff, by and through their attorneys, BURG SIMPSON ELDREDGE

HERSH & JARDINE, P.C., hereby submit their First Amended Complaint and Jury Demand

against Defendant Million Dollar Corporation d/b/a Dandy Dan’s a/k/a Dandy Dan’s Gentlemen’s

Club, and allege and aver as follows:

INTRODUCTION

1. This is an action for damages and other relief under The Lanham Act arising from

the misappropriation, misuse, and alteration of Plaintiffs’ images by Defendant in order to promote

its strip club, Dandy Dan’s.

2. Defendant uses its Dandy Dan’s website and online social media marketing

platforms to market and advertise Dandy Dan’s as being “the best adult entertainment in town,”

with a “talented and beautiful staff” that “is dedicated to providing you with the highest quality
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services around,” and touting “a hundred gorgeous topless ladies to satisfy your dreams and

fantasy’s [sic].”

3. As a means of illustrating those claims and in an effort to drive traffic and economic

and commercial benefits to Dandy Dan’s, Defendant posted pictures of many women on its website

and social media platforms, including on Dandy Dan’s Twitter page/feed and Facebook page.

4. To promote Dandy Dan’s, and in furtherance of Defendant’s commercial benefit,

Defendant posted, and then continually maintained, on Dandy Dan’s Twitter page/feed, Instagram

account, and Facebook page, the following:

a. an image of Plaintiff, Jaime Longoria, with the accompanying hashtag

“#StripClub,” and an invitation to the public to “Come in after the game to keep

the party going,”;

b. multiple images of Abigail Ratchford with accompanying captions that include:

“IF you got to pick ONE, who would it be?”; ‘The best girls in Denver are here

at Dandy Dan’s” ‘Hurry into Dandy Dan’s. The girls are waiting for you?”;

“Let’s start the #weekend off right.” “We have topless girls and are open until

2 AM.”; “Come check out some amazing curves at DD’s.”; “Get out of the snow

and warm up in Dandy Dan’s,”, along with hashtags that include #models,

#dancers, #girls, #showgirls, #shows, #babes, #nightlife;

c. multiple images of Ana Cheri, with accompanying captions that include:

“Come watch the Thursday night Football game at Dandy Dan’s with some hot

ladies.”; “We’re still open for another hour. Don’t miss out.”, along with

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hashtags that include #models, #dancers, #ladies, #girls, #shows #showgirls

#babes, #nightlife;

d. multiple images of Emily Sears, with accompanying captions that include: “It’s

cold out there. Let the Dandy Dan girls warm you up.”; “Come get ready for

your busy week at Dandy Dan’s.”, along with hashtags that include #models,

#dancers, #ladies, #girls, #shows #showgirls #babes, #nightlife;

e. an image of Jaclyn Swedberg, with a caption that reads, “IF you got to pick

ONE, who would it be?”;

f. an image of Lucy Pinder, with an accompanying caption that reads, “It’s

#nationalChocolatMilkshakeday. Come celebrate with our girls.”;

g. an image of Rosie Roff, with an accompanying caption that includes “Looking

for a good night. Come to DD’s. We’re open until 2AM, along with hashtags

that include #models, #dancers, #ladies, #party, #girls, #showgirls, #babes;

all of which creates a false impression that Plaintiffs worked at, would appear at, or were affiliated

with Dandy Dan’s or endorsed Dandy Dan’s and its activities.

5. Jaime Longoria, Abigail Ratchford, Ana Cheri, Emily Sears, Jaclyn Swedberg,

Lucy Pinder, and Rosie Roff are not employed by Dandy Dan’s, they do not strip or dance at

Dandy Dan’s, they do not affiliate themselves in any way with Dandy Dan’s or endorse its

promotional activities and events, and they never have.

6. Defendant did not have Plaintiffs’ permission to use their images or likenesses and

never asked them for permission to use their images or likenesses.

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7. Defendant has not compensated Plaintiffs for the use of their images or likenesses

for commercial or any other purpose.

8. Defendant knew that its use of Plaintiffs’ images and likenesses were unauthorized,

and knew that its use of Plaintiffs’ images would cause consumer confusion as to Plaintiffs’

sponsorship, approval of, affiliation with, and/or employment at Dandy Dan’s.

9. Defendant’s unauthorized use of the Plaintiffs’ images, likenesses and/or identities,

as described herein, violates Section 43 of the Lanham Act, 15 U.S.C. §1125(a).

10. This action seeks all actual and compensatory damages as compensation for

Defendant’s unlawful activities, the Defendant’s profits that are attributable to its unlawful use of

Plaintiffs’ images, likenesses, and identities, treble damages as well as attorney’s fees and costs,

and other such relief as would be fair and just to remedy Defendant’s unlawful acts, and to ensure

that no such violations occur in the future.

PARTIES

11. Plaintiff Jaime Longoria is an internationally known and recognizable talent,

model, TV, radio, and media personality, former Miami Dolphins Cheerleader, and

businesswoman, residing in Tampa, Pinellas County, Florida.

12. Plaintiff Abigail Ratchford is an internationally known and recognizable talent,

model, actress, and social media personality residing in Los Angeles, California.

13. Plaintiff Ana Cheri is an internationally known and recognizable talent, model,

social media personality, brand ambassador, and businesswoman residing in Westminster,

California.

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14. Plaintiff Emily Sears is an internationally known and recognizable talent, model,

social media personality and influencer residing in Los Angeles, California.

15. Plaintiff Jaclyn Swedberg is an internationally known and recognizable talent,

model, actress, and social media personality residing in Los Angeles, California.

16. Plaintiff Lucy Pinder is an internationally known and recognizable talent, model

and actress, host, and social media personality residing in Winchester, England, United Kingdom.

17. Plaintiff Rosie Roff is an internationally known and recognizable talent, model,

actress, and social media personality, residing in Los Angeles, California.

18. Defendant Million Dollar Corporation d/b/a Dandy Dan’s a/k/a Dandy Dan’s

Gentlemen’s Club is a Colorado corporation, with a principal place of business and registered

agent at 214 S Federal Blvd., Denver, CO 80219.

19. Defendant owns and operates a strip club in Denver, Colorado, called Dandy Dan’s.

JURISDICTION AND VENUE

20. Jurisdiction in this case is based upon 28 U.S.C. § 1331, because Plaintiffs’ claims

arise under 15 U.S.C. § 1125(a) (The Lanham Act).

21. The Court has personal jurisdiction over Defendant by virtue of its presence and

operations in Colorado, its state of creation and its principle place of business, by its transacting

business in Colorado, and by virtue of its improper acts and violations of The Lanham Act in this

state, all of which has caused Plaintiffs damages, and through regular, continuous, and systematic

contacts with Colorado such that this Court’s exercise of personal jurisdiction over Defendant is

proper, reasonable, and comports with traditional notions of fair play and substantial justice.

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22. Venue is proper in this Court because the Defendant resides in this district,

Defendant is subject to personal jurisdiction in this venue, and this district is where a substantial

part of the events or omissions giving rise to the claims stated herein occurred.

GENERAL ALLEGATIONS

Defendant’s Use of Website and Social Media Platforms for Marketing

23. The Defendant coordinates the advertising, marketing and promotional activities

for Dandy Dan’s through, among other things, active and dynamic use of Dandy Dan’s website

and various coordinated social media promotions through Facebook, Instagram, and Twitter,

(“social media sites”), among others.

24. Defendant’s marketing and promotional activities are publicly accessible through

the World Wide Web, various social media outlets, and affirmative prospect marketing.

25. Defendant further promote Dandy Dan’s business by and through the use of

marketing strategies and channels including, but not limited to, the following: the active use of

social media sites such as Instagram with 694 followers, Facebook with 6,258 followers, and

Twitter with 110 followers.

26. At all times relevant to this Complaint, Defendant had actual and exclusive control

over the contents contained within and/or displayed on each of these marketing channels.

27. Upon information and belief, Defendant manages, operates and/or controls a

“Facebook page” (accessible via the URL: https://www.facebook.com/dandydansclub/) through

which it promotes, endorses, and markets its business, solicits customers, and advertises events for

the Dandy Dan’s strip club, and particularly through the use of images of women in various stages

of undress.

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28. Defendant has at all times relevant to this Complaint exercised actual control over

the contents displayed on its Facebook page through its own personal acts of posting items on the

Facebook page, or by expressly permitting and condoning another person(s)’ act of posting items

on the Facebook page.

29. The Dandy Dan’s Facebook page identifies Dandy Dan’s as being “the best adult

entertainment in town” with a “talented and beautiful staff” that “is dedicated to providing you

with the highest quality services around.”

30. Upon information and belief, Defendant manages, operates and/or controls an

“Instagram account” (accessible via the Instagram Social Media Platform: Instagram at

https://www.instagram.com/dandydanstopless/) through which it promotes, endorses, and markets

its business, solicits customers, and advertises events for the Dandy Dan’s strip club, and

particularly through the use of images of women in various stages of undress.

31. Defendant has at all times relevant to this Complaint exercised actual control over

the contents displayed on its Instagram account through its own personal acts of posting items on

the account, or by expressly permitting and condoning another person(s)’ act of posting items on

the Instagram account.

32. The Dandy Dan’s Instagram page/account identifies Dandy Dan’s as being “the

best adult entertainment in town” with a “talented and beautiful staff” that “is dedicated to

providing you with the highest quality services around.”

33. Upon information and belief, Defendant manages, operates and/or controls a

“Twitter profile” (accessible via the Twitter Social Media Platform:

https://twitter.com/dandydansclub) through which it promotes, endorses, and markets its business,

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solicits customers, and advertises events for the Dandy Dan’s strip club, and particularly through

the use of images of women in various stages of undress.

34. Defendant has at all times relevant to this Complaint exercised actual control over

the contents displayed on its Twitter profile through its own personal acts of posting items on the

Twitter profile, or by expressly permitting and condoning another person(s)’ act of posting items

on the Twitter profile.

35. The Dandy Dan’s Twitter page/feed identifies Dandy Dan’s as being “the best adult

entertainment in town” with a “talented and beautiful staff” that “is dedicated to providing you

with the highest quality services around.”

36. Upon information and belief, Defendant manages, operates and/or controls a

website (accessible via the URL www.dandydans.com), through which it promotes, endorses, and

markets its business and its social media sites, links to its Facebook page, solicits customers, and

advertises events for the Dandy Dan’s strip club.

37. The Defendant has at all times relevant to this Complaint exercised actual control

over the contents displayed on its website through its own personal acts of posting items on the

website, or by expressly permitting and condoning another person(s)’ act of posting items on the

website.

38. The Dandy Dan’s website identifies Dandy Dan’s as being “the best adult

entertainment in town” with a “talented and beautiful staff” that “is dedicated to providing you

with the highest quality services around,” and touting “a hundred gorgeous topless ladies to satisfy

your dreams and fantasy’s [sic].”

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39. Defendant has used Plaintiffs’ images and likenesses in advertisement and

marketing displays, specifically on Twitter, Instagram, and Facebook, to generate additional

revenue, increase sales, and promote the patronage of Dandy Dan’s.

Plaintiffs Are Professional Models and Their Images Are Commercially Valuable

40. Jaime Longoria, at all times relevant to the claims herein, is a professional talent,

model, radio, TV, and media personality, who earns her living by, inter alia, modeling and selling

her image to companies and individuals for the advertisement of products and services.

41. Plaintiff Abigail Ratchford, at all times relevant to the claims herein, is a

professional talent, model, actress, and social media personality who earns her living by, inter alia,

modeling, and selling her image to companies and individuals for the advertisement of products

and services.

42. Plaintiff Ana Cheri, at all times relevant to the claims herein, is a professional talent,

model, social media personality, brand ambassador, and businesswoman, who earns her living by,

inter alia, modeling and selling her image to companies and individuals for the advertisement of

products and services.

43. Plaintiff Emily Sears, at all times relevant to the claims herein, is a professional

talent, model, social media personality and influencer, who earns her living by, inter alia,

modeling, and selling her image to companies and individuals for the advertisement of products

and services.

44. Plaintiff Jaclyn Swedberg, at all times relevant to the claims herein, is a professional

talent, model, actress, and social media personality who earns her living by, inter alia, modeling

and selling her image to companies and individuals for the advertisement of products and services.

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45. Plaintiff Lucy Pinder, at all times relevant to the claims herein, is a professional

talent, model and actress, host, and social media personality who earns her living by, inter alia,

modeling and selling her image to companies and individuals for the advertisement of products

and services.

46. Plaintiff Rosie Roff, at all times relevant to the claims herein, is a professional

talent, model, actress, social media personality who earns her living by, inter alia, modeling and

selling her image to companies and individuals for the advertisement of products and services.

47. Plaintiffs earn a living by, inter alia, promoting their images and likenesses to select

clients, companies, commercial brands, media, social media and entertainment outlets for the

advertisement of products and services, as well as the promotion of their own reputation and brand

for modeling, acting, hosting, and other opportunities.

48. Plaintiffs’ careers in modeling, acting, and private enterprise have value stemming

from the goodwill and reputation they have built, all of which is critical to establishing a brand,

being selected for jobs, and maximizing earnings.

49. Plaintiffs’ images and likenesses have high commercial value and each Plaintiff

commands substantial sums of money for the licensed commercial use of their images.

50. A model’s reputation directly impacts the commercial value associated with the use

of ones’ image, likeness, or identity to promote a product or service.

51. Plaintiffs are professional models in the ordinary course; they seek to control the

commercial use and dissemination of their images and identities, and, thus, actively participate in

vetting and selecting modeling, acting, advertising, brand spokesperson, or hosting engagements.

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52. The Plaintiffs rely on their professional reputation and own brand for modeling,

acting, hosting and other professional opportunities.

53. A model’s vetting and selection of a professional engagement involves a

multi-tiered assessment, to wit:

a. determine whether the individual or entity seeking a license and release of a

model’s image, likeness or identity is reputable, has reputable products or

services, and, through affiliation therewith, would enhance or harm a

model’s stature or reputation;

b. this reputational information is used in negotiating compensation which

typically turns on the work a model is hired to do, the time involved, travel and

how her image is going to be used (among other variables);

c. to protect her reputation and livelihood, a model or agent carefully and

expressly defines the terms and conditions of use;

d. the entire negotiated deal is reduced to and memorialized in an integrated,

written agreement that defines the parties’ relationship, the terms and

conditions of which, typically, unless otherwise expressly delineated, bind and

are applicable to only the parties to that Agreement.

54. In the modeling industry, reputation is critical; endorsing, promoting, advertising

or marketing the “wrong” product, brand, business, or service, or working in a disreputable

industry, can severely impact a model’s career by limiting or foreclosing future modeling or brand

endorsement opportunities.

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55. Conversely, association with high-end companies, products, or magazines can

enhance and amplify a model’s earning potential and career opportunities by making a model more

sought after and desirable.

56. As set forth below, Plaintiffs’ images used by the Defendant to advertise and

promote Dandy Dan’s have been misappropriated by or at the direction of the Defendant without

their consent for use in its online marketing scheme designed to promote the Defendant’s Dandy

Dan’s business.

The Misappropriated Images

57. On September 3, 2015, without her knowledge, consent, or authorization,

Defendant posted Plaintiff Jaime Longoria’s image on Defendant’s Twitter and Facebook social

media sites for the purpose of advertising and promoting Defendant’s strip club and soliciting

patronage of Dandy Dan’s.

58. Attached as Exhibit 1 is a copy of Defendant’s use of Jaime Longoria’s image and

likeness on its Twitter and Facebook social media sites, which is hereby incorporated by reference.

59. On September 23, 2015, October 2, 2015, October 11, 2015, December 2, 2015,

February 1, 2016, and May 18, 2016, without her knowledge, consent, or authorization, Defendant

posted Plaintiff Abigail Ratchford’s images on Defendant’s Instagram and Facebook social media

sites for the purpose of advertising and promoting Defendant’s strip club and soliciting patronage

of Dandy Dan’s.

60. Attached as Exhibit 2 is a copy of Defendant’s use of Abigail Ratchford’s images

and likenesses on its Instagram and Facebook social media sites, which is hereby incorporated by

reference.

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61. On October 15, 2015 and December 8, 2015, without her knowledge, consent, or

authorization, Defendant posted Plaintiff Ana Cheri’s images on Defendant’s Instagram social

media site for the purpose of advertising and promoting Defendant’s strip club and soliciting

patronage of Dandy Dan’s.

62. Attached as Exhibit 3 is a copy of Defendant’s use of Ana Cheri’s images and

likenesses on its Instagram social media site, which is hereby incorporated by reference.

63. On October 21, 2015, December 21, 2015, and February 19, 2016, without her

knowledge, consent, or authorization, Defendant posted Plaintiff Emily Sears’ images on

Defendant’s Instagram social media site for the purpose of advertising and promoting Defendant’s

strip club and soliciting patronage of Dandy Dan’s.

64. Attached as Exhibit 4 is a copy of Defendant’s use of Emily Sears’ image and

likeness on its Instagram social media site, which is hereby incorporated by reference.

65. On May 18, 2016, without her knowledge, consent, or authorization, Defendant

posted Plaintiff Jaclyn Swedberg’s image on Defendant’s Facebook social media sites for the

purpose of advertising and promoting Defendant’s strip club and soliciting patronage of Dandy

Dan’s.

66. Attached as Exhibit 5 is a copy of Defendant’s use of Jaclyn Swedberg’s image

and likeness on its Facebook social media sites, which is hereby incorporated by reference.

67. On September 15, 2015, without her knowledge, consent, or authorization,

Defendant posted Plaintiff Lucy Pinder’s image on Defendant’s Twitter social media site for the

purpose of advertising and promoting Defendant’s strip club and soliciting patronage of Dandy

Dan’s.

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68. Attached as Exhibit 6 is a copy of Defendant’s use of Lucy Pinder’s image and

likeness on its Twitter, social media sites, which is hereby incorporated by reference.

69. On November 13, 2015, without her knowledge, consent, or authorization,

Defendant posted Plaintiff Rosie Roff’s image on Defendant’s Instagram social media sites for the

purpose of advertising and promoting Defendant’s strip club and soliciting patronage of Dandy

Dan’s.

70. Attached as Exhibit 7 is a copy of Defendant’s use of Rosie Roff’s image and

likeness on its Instagram social media sites, which is hereby incorporated by reference.

71. After Defendant used Plaintiffs’ images on its Twitter, Instagram, and Facebook

social media sites, Plaintiffs discovered the Defendant’s use of their images and discovered that

Defendant was knowingly and without prior consent using their images.

72. Defendant’s use and alteration of Plaintiffs’ images and likenesses on Defendant’s

social media sites for Dandy Dan’s falsely implies and creates the impression that Plaintiffs have

worked for, would appear at, have endorsed, or are otherwise affiliated with Dandy Dan’s.

73. Defendant’s use was unauthorized and for a commercial purpose to attract clientele

and lure customers, promote Dandy Dan’s, and generate revenue for the Defendant.

74. Plaintiffs are readily identifiable in the misappropriated images and Defendant

could not reasonably believe that Plaintiffs were employees or agents of the Defendant or

otherwise affiliated with the Defendant or Dandy Dan’s.

75. Defendant has never contacted the Plaintiffs, either directly or indirectly, to request

permission to use their images, likenesses, or identities.

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76. Defendant never hired or contracted with Plaintiffs to advertise, promote, market

or endorse Dandy Dan’s.

77. Plaintiffs have never been employed by Defendant or contracted with Defendant to

participate in events at Dandy Dan’s.

78. Defendant never sought permission or authority to use or alter Plaintiffs’ images,

likenesses, or identities to advertise, promote, market, or endorse Dandy Dan’s.

79. Plaintiffs never gave permission, or assigned, licensed, or otherwise consented, to

Defendant using or altering their images, likeness, or identity to advertise, promote, market or

endorse Dandy Dan’s.

80. Defendant neither offered nor paid any remuneration to Plaintiffs for the

unauthorized use and misappropriation of their images, likenesses, or identities, including on its

social media sites.

81. Defendant’s use and alteration of Plaintiffs’ images create the false perception that

Plaintiffs worked for Dandy Dan’s, would appear at Dandy Dan’s or had consented or agreed to

promote, advertise, market and/or endorse Dandy Dan’s and its events to the benefit Defendant’s

commercial interests.

82. Defendant’s use of the Plaintiffs’ images, likenesses, and/or identities impugns the

Plaintiffs’ characters, embarrasses them, and suggests, falsely, their support for and participation

in a strip club lifestyle, causing Plaintiffs damages.

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FIRST CAUSE OF ACTION

Violation of the Lanham Act, 15 U.S.C. § 1125(a)
False Advertising and False Endorsement

83. Plaintiffs hereby incorporate by reference each and every allegation set forth in the

foregoing paragraphs as if fully alleged herein.

84. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), applies to Defendant.

85. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), protects Plaintiffs from the

Defendant’s conduct described herein.

86. Defendant used and altered Plaintiffs’ images, likenesses and/or identities as

described herein without authority in order to, inter alia, create the false perception that the

Plaintiffs worked at, would appear at, or were otherwise affiliated with Dandy Dan’s, endorsed

Dandy Dan’s or Dandy Dan’s business activities, and/or consented to or authorized Defendant’s

or Dandy Dan’s usage of their images likenesses and/or identities in order to advertise, promote,

and market Dandy Dan’s and Defendant’s business activities.

87. Defendant’s use and alteration of the Plaintiffs’ images, likenesses and/or identities

to advertise, promote, and market Defendant’s business, Dandy Dan’s, and/or Dandy Dan’s events

and activities as described in this First Amended Complaint were false and misleading and a

misrepresentation of fact.

88. Defendant’s unauthorized use and alteration of the Plaintiffs’ images, likenesses

and/or identities as described in this First Amended Complaint constitute false advertising and

false endorsement by falsely suggesting or implying, inter alia, that the Plaintiffs worked at or

were otherwise affiliated with, associated with, or connected to, Dandy Dan’s, endorsed

Defendant’s business, Dandy Dan’s or Dandy Dan’s events or activities, or consented to or

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authorized Defendant’s or Dandy Dan’s usage or alteration of their image in order to advertise,

promote, and market Defendant’s business or Dandy Dan’s events and activities and/or that the

Plaintiffs would participate in or appear at specific events promoted in the advertisements.

89. Defendant’s unauthorized use and alteration of the Plaintiffs’ images, likenesses

and/or identities described above has the capacity or tendency to convey a false impression or

mislead, confuse or deceive consumers, including actual and prospective patrons to Dandy Dan’s,

as to the general quality of attendees and participants at Dandy Dan’s and in its events, as well as

specifically whether the Plaintiffs worked at or were otherwise affiliated or associated with or

connected to Dandy Dan’s, and whether the Plaintiffs endorsed, sponsored, or approved of

Defendant’s business, Dandy Dan’s, or Dandy Dan’s events or activities, or whether they would

appear in person at the Defendant Dandy Dan’s events and activities, and particularly at specific

events promoted in Defendant’s branding, advertising, and social media posts.

90. Upon information and belief, Defendant’s false and deceptive use and alteration of

the Plaintiffs’ images described above did, in fact, deceive, and/or cause actual consumer

confusion as to whether the Plaintiffs worked at, would appear at, or were otherwise affiliated or

associated with or connected to Dandy Dan’s, endorsed, sponsored, or approved of Defendant’s

business, Dandy Dan’s or Dandy Dan’s events and activities, or consented to or authorized

Defendant’s or Dandy Dan’s usage of their images, likenesses, and/or identities in order to

advertise and promote Defendant’s business or Dandy Dan’s events and activities and particularly

at specific events promoted in the Defendant’s branding, advertising, and social media posts.

91. Among other things, upon information and belief, such unauthorized use and

alteration of Plaintiffs’ images, likenesses, and/or identities misled and deceived consumers, and

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served to entice consumers and prospective consumers to visit Dandy Dan’s and participate in and

attend events at Dandy Dan’s and had a material effect and impact on the decision of patrons and

prospective patrons to visit Defendant’s business establishment.

92. Defendant’s advertisements, promotions, and marketing of Dandy Dan’s and

events at Dandy Dan’s occur in and are targeted to interstate commerce. Specifically, Defendant

promotes its business and events through interstate promotions and campaigns to target persons

from several different states across the United States. Defendant principally uses the internet,

World Wide Web, social media, and other vehicles of interstate commerce to advertise, market,

promote, and entice or lure traffic and patronage to its establishment and increase revenue.

93. Defendant’s unauthorized use of the Plaintiffs’ images, likenesses, and/or identities

as described herein was designed and intended to benefit Defendant’s commercial and business

interests by, among other things, capitalizing on Plaintiffs’ goodwill by promoting Dandy Dan’s

and its activities and attracting clientele to Dandy Dan’s, thereby generating revenue for the

Defendant to the detriment of the Plaintiffs.

94. Plaintiffs are in the business of commercializing their identities and selling their

images to reputable brands and companies for profit. Defendant’s customers are the same

demographic that view Plaintiffs’ images in print and online.

95. Both Plaintiffs and the Defendant compete in the entertainment industry, they use

similar marketing channels, their respective endeavors overlap, and they vie for the same dollars

from the same demographic consumer group, and as such, an unauthorized use of Plaintiffs’

images to promote a strip club created an undeniable confusion in Defendant’s consumers’ minds,

leading to competitive injury to Plaintiffs.

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96. Defendant knew or should have known that its unauthorized use of the Plaintiffs’

images, likenesses, and/or identities would cause consumer confusion as described in this First

Amended Complaint.

97. Defendant’s unauthorized use and alteration of the Plaintiffs’ images, likenesses,

and/or identities, as described herein violates 15 U.S.C. §1125(a), constitutes false advertising and

false endorsement, and was wrongful.

98. Defendant’s wrongful conduct as described herein was willful.

99. Defendant had actual or constructive knowledge of the wrongfulness of its conduct,

acted with intent to capitalize on Plaintiffs’ goodwill and deprive the Plaintiffs of their interests

and rights, and further acted with actual or constructive knowledge of the high probability that

injury or damage would result to the Plaintiffs.

100. The method and manner in which Defendant used and altered the images of the

Plaintiffs further evinces that Defendant were aware of and/or consciously disregarded the fact

that the Plaintiffs did not consent to Defendant’s use of their images to advertise Defendant’s

business.

101. Defendant has caused and will continue to cause irreparable harm and damage to

the Plaintiffs, their reputations, and their brands, by attributing to the Plaintiffs their involvement

with or endorsement of Dandy Dan’s strip club and Plaintiffs’ association with events and

activities relating thereto.

102. Defendant also has damaged the Plaintiffs as a direct and proximate result of its

unauthorized use of Plaintiffs’ images, likenesses, and/or identities without compensating

Plaintiffs, thereby entitling Plaintiffs to recover in money damages the actual and fair market value

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of each misappropriated use of their images and likenesses in an amount to be established by proof

at trial.

103. As a further direct and proximate result of Defendant’s conduct as alleged herein,

Defendant has earned and withheld profits attributable directly or indirectly to the unlawful use of

Plaintiffs’ images, entitling Plaintiffs to disgorgement of those ill-gotten gains in an amount to be

established by proof at trial.

104. Defendant’s conduct was purposeful and malicious in that Defendant knowingly

violated Plaintiffs’ rights solely to benefit their business, increase profits, and avoid paying money

to legally acquire the right to commercial use of the Plaintiffs’ images and likenesses, and

consequently, exceptional relief is warranted pursuant to 15 U.S.C. §§ 1116, and 1117(a), entitling

Plaintiffs and each of them to treble damages and reasonable attorneys’ fees.

PRAYOR FOR RELIEF

WHEREFORE, the Plaintiffs pray for judgment against the Defendant for relief in amounts

to be determined at trial, as follows:

1. All compensatory, general, special, and consequential damages;

2. All damages allowed by 15 U.S.C. §§ 1125, 1116, and 1117, including all actual and

consequential damages sustained by Plaintiffs, including all economic damages and

losses, disgorgement of profits attributable to Defendant’s misappropriation of the

Plaintiffs’ image and likeness, and well as treble damages and reasonable attorney’s

fees;

3. Pre and post judgment interest;

4. Costs and expenses, including expert fees and costs;

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5. For such further and other relief as the Court deems just.

JURY TRIAL DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

Respectfully submitted this 14th day of September, 2018.

BURG SIMPSON
ELDREGE HERSH & JARDINE, P.C.

(Original signature on file at the offices of Burg

Simpson Eldredge Hersh & Jardine, P.C.)

s/ Steven G. Greenlee
Steven G. Greenlee, Reg. No. 24577
40 Inverness Drive East
Englewood, CO 80112
Phone: 303-792-5595
sgreenlee@burgsimpson.com.

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