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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN TRAVERSE CITY FILM FESTIVAL, a Michigan non-profit corporation, Plaintiff, vs. DANIEL MARTONE, an individual; and LAURA MARTONE, an individual, Defendants. ______________________________________________________________________ Mark Clark (P41652) TRAVERSE LEGAL, PLC 810 Cottageview Drive, Unit G-20 Traverse City, MI 49686 231-932-0411 mark@traveselegal.com Attorneys for Plaintiff James R. Steffen (pro hac vice pending) FAEGRE & BENSON LLP 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 612-766-7000 jrsteffen@faegre.com ______________________________________________________________________ COMPLAINT AND DEMAND FOR JURY TRIAL For its Complaint against defendants Daniel Martone and Laura Martone, Plaintiff Traverse City Film Festival, by and through its undersigned attorneys, states and alleges as follows: Case No. Hon.

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PARTIES 1. Plaintiff Traverse City Film Festival is a non-profit corporation organized

and existing under the laws of the State of Michigan, with its principal place of business located at 233 E. Front Street, Traverse City, Michigan 49684. Plaintiff has, among other things, annually since 2005 organized, planned and conducted in Traverse City, Michigan, a well-known film festival under the federally-registered service mark TRAVERSE CITY FILM FESTIVAL. 2. Defendant Daniel Martone is an individual believed to have a residence in

Johannesburg, Michigan, and a mailing address at P.O. Box 309, Johannesburg, Michigan 49751. Mr. Martone identifies himself as the Co-Director of a film festival said to be planned for an inaugural run in Traverse City, Michigan, on September 15-18, 2011. Mr. Marton variously refers to and identifies Defendants intended festival as the TRAVERSE CITY SHORT FILM FESTIVAL and the TRAVERSE CITY SHORTS FESTIVAL. Mr. Martone is married to defendant Laura Martone. 3. Defendant Laura Martone is an individual believed to have a residence in

Johannesburg, Michigan, and a mailing address at P.O. Box 309, Johannesburg, Michigan 49751. Ms. Martone identifies herself as the Co-Director of a film festival said to be planned for an inaugural run in Traverse City, Michigan, on September 15-18, 2011. Defendants variously refer to and identify Defendants intended festival as the TRAVERSE CITY SHORT FILM FESTIVAL and the TRAVERSE CITY SHORTS FESTIVAL. Ms. Martone is married to defendant Daniel Martone.

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4.

Plaintiff has not been able to locate record of the existence of any for-profit

or non-profit entity under the name Traverse City Short Film Festival or Traverse City Shorts Festival, or otherwise appearing to be responsible for the organizing, conducting or planning Defendants intended film festival. Should Plaintiff learn of the existence of such an entity, Plaintiff will undertake to have that entity added as an additional defendant in this action. JURISDICTION AND VENUE 5. Plaintiff asserts in this an action claims for service mark infringement and

false designation of origin under the federal Trademark Act of 1946 (the Lanham Act), 15 U.S.C. 1051 et seq., and for unfair competition and trademark infringement in violation of common law of the State of Michigan. This Court has subject matter

jurisdiction over Plaintiffs claims pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331, 1338(a) and (b), and 1367(a). 6. This Court has personal jurisdiction over Defendants because Defendants

have a residence in the State of Michigan, and have undertaken substantial, intentional and willful acts within the State of Michigan, and specifically in Traverse City, Michigan, that give rise to the claims asserted in this Complaint and that have injured Plaintiff in the State of Michigan, and specifically in Traverse City, Michigan. 7. Venue is proper in this court pursuant to 28 U.S.C. 1391(b)(2) because a

substantial part of the events or omissions giving rise to the claim herein occurred in this judicial district, and specifically in Traverse City, Michigan.

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COMMON ALLEGATIONS 8. Plaintiff is a community non-profit organization that has, among other

activities, annually since 2005 organized, planned and conducted in Traverse City, Michigan, a film festival under the service mark TRAVERSE CITY FILM FESTIVAL. 9. Plaintiffs film festival brings films and filmmakers from around the world to

Traverse City each year in late July and/or early August. Plaintiffs 2011 film festival, for example, ran at seven venues around Traverse City beginning July 26 and ending July 31, 2011. Plaintiffs 2011 film festival saw over 128,000 admissions, with 156

screenings of 147 films. Since Plaintiffs film festival began in 2005, it has seen a total of more than 600,000 admissions over more than 750 screenings. 10. In addition to showing full length films from around the world, Plaintiffs film

festival has for several years been known for its screenings of short films. Plaintiffs festival has brought some of the countrys top short filmmakers to Traverse City, and regularly sells out multiple shorts programs. Plaintiffs 2011 festival, for example,

included screenings of 59 short films and appearances by 15 short filmmakers. In 2010 and 2011, Plaintiff also partnered with the film program at the University of Michigan, showing shorts developed there and collaborating on teaching short film production during Plaintiffs film festival. 11. As a result of years of excellent programming, careful promotion and plain

hard work, Plaintiffs TRAVERSE CITY FILM FESTIVAL event has come to be known and respected nationally, and has developed into one of the largest film festivals in the Midwest and one of the best known events in Northern Michigan.

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12.

In addition to the annual TRAVERSE CITY FILM FESTIVAL event,

Plaintiff has engaged in other activities well-known in Traverse City and the surrounding region to be associated with the Plaintiff. Plaintiff, for example, led the renovation and refurbishing of the historic State Theatre in downtown Traverse City, and now operates that facility as a year-round venue for great movies and for various other community events. Plaintiff has, in addition, since 2010 organized, planned and conducted in

Traverse City in February an annual, multi-day TRAVERSE CITY COMEDY ARTS FESTIVAL. 13. The well-deserved and hard-earned reputation of Plaintiff and its film

festival and related activities is reflected in the substantial and valuable body of goodwill symbolized by the service mark TRAVERSE CITY FILM FESTIVAL. 14. Plaintiff is the owner of United States Trademark Registration No.

3,571,821, issued February 10, 2009, for the mark TRAVERSE CITY FILM FESTIVAL for use in connection with, among other things, entertainment services, namely organizing, planning and conducting film festivals, providing panel discussions with film directors and other film industry professionals, and providing instruction on the production of short films. A copy of the Certificate of Registration is attached hereto as Exhibit A. 15. Plaintiff is the owner of United States Trademark Registration No.

3,301,789, issued October 2, 2007, for the mark TRAVERSE CITY FILM FESTIVAL & Design for use in connection with, among other things, entertainment services, namely organizing, planning and conducting film festivals, providing panel discussions with

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film directors and other film industry professionals, and providing instruction on the production of short films. A copy of the Certificate of Registration is attached hereto as Exhibit B. 16. Plaintiffs TRAVERSE CITY FILM FESTIVAL mark is well-known and

famous among movie-goers, arts patrons and sponsors, business owners and the general public throughout Traverse City and the surrounding region. 17. At least as early as March 2011, with actual knowledge of Plaintiffs film

festival and of Plaintiffs long and existing use of the designation TRAVERSE CITY FILM FESTIVAL, Defendants commenced to plan, organize and promote a film festival to be conducted in Traverse City under the mark TRAVERSE CITY SHORT FILM FESTIVAL or the mark TRAVERSE CITY SHORTS FESTIVAL. Among other things, in March 2011, Mr. Martone paid to register in his name the Internet domain names traversecityshortfilmfestival.com and traversecityshortsfestival.com. 18. Defendants initially planned to stage their TRAVERSE CITY SHORT FILM

FESTIVAL in Traverse City during the previously-announced July run of the 2011 TRAVERSE CITY FILM FESTIVAL. Defendants festival did not run in July, 2011, and is now said to be scheduled to run September 15-18, 2011. 19. Defendants have sought sponsorship of their TRAVERSE CITY SHORT

FILM FESTIVAL event from businesses and other actual and potential arts sponsors in Traverse City and the surrounding region, the same sponsor-base on which Plaintiff relies for funding of its TRAVERSE CITY FILM FESTIVAL event. Attached as Exhibit C, for example, is a copy of a portion of an e-mail solicitation Mr. Martone sent to a

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sponsor of Plaintiffs TRAVERSE CITY FILM FESTIVAL on August 30, 2011, requesting sponsorship of THE TRAVERSE CITY SHORT FILM FESTIVAL. 20. By letter to Mr. Martone dated May 9, 2011, Plaintiffs counsel notified

Defendants of Plaintiffs rights in the mark TRAVERSE CITY FILM FESTIVAL and demanded that Plaintiff cease and desist from infringement of that mark. When no response was received from Mr. Martone, Plaintiffs counsel left a voice mail message for Mr. Martone on or about June 10, 2011, reiterating that the infringement needed to end. While Defendants later posted Plaintiffs counsels letter and voice mail on their website at www.traversecityshortsfestival.com, neither Defendant ever contacted Plaintiff or its counsel in response to the May 9 letter or the subsequent voice mail. Nonetheless, Defendants willful infringement of Plaintiffs trademark rights has continued to this day. 21. Upon information and belief, in choosing and in continuing to use the

designations TRAVERSE CITY SHORT FILM FESTIVAL and TRAVERSE CITY SHORTS FESTIVAL, Defendants have and are intentionally and wrongfully trading on the goodwill that Plaintiff has built up in the mark TRAVERSE CITY FILM FESTIVAL. COUNT I FEDERAL TRADEMARK INFRINGEMENT 15 U.S.C. 1114 22. Plaintiff restates and incorporates paragraphs 1-21 above as though fully

restated herein. 23. Defendants use of TRAVERSE CITY SHORT FILM FESTIVAL and

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mistake or to deceive vis--vis Plaintiffs federally-registered mark TRAVERSE CITY FILM FESTIVAL. 24. Defendants are liable to Plaintiff for trademark infringement pursuant to 15

U.S.C. 1114(1). 25. Unless restrained and enjoined by this Court, Defendants will, on

information and belief, continue to infringe Plaintiffs rights, and will thereby cause irreparable harm to Plaintiff. 26. No adequate remedy exists at law for the irreparable harm Defendants

have caused and are causing Plaintiff. 27. 28. Plaintiff is entitled to preliminary and permanent injunctive relief. Defendants infringement of Plaintiffs rights has caused and continues to

cause damage and harm to Plaintiff and to lower the value of the goodwill represented by Plaintiffs TRAVERSE CITY FILM FESTIVAL mark. Defendants have unfairly

benefited from the infringing actions described herein. Plaintiff is entitled to a monetary recovery consistent with 15 U.S.C. 1117(a) in an amount to be proven at trial. 29. Defendants infringement of Plaintiffs rights has been knowing, willful and

in deliberate disregard of Plaintiffs rights and of Defendants obligations under federal law. Plaintiff is entitled to enhanced damages under 15 U.S.C. 1117(a). 30. This is an exceptional case within the meaning of 15 U.S.C. 1117(a).

Plaintiff should be awarded its reasonable attorneys fees herein.

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COUNT II FEDERAL FALSE DESIGNATION OF ORIGIN 15 U.S.C. 1125(a) 31. Plaintiff restates and incorporates paragraphs 1-30 above as though fully

restated herein. 32. Defendants use of TRAVERSE CITY SHORT FILM FESTIVAL and

TRAVERSE CITY SHORTS FESTIVAL is such that it is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of Defendants and/or their film festival with Plaintiff and/or its TRAVERSE CITY FILM FESTIVAL event. In particular, Defendants false designation of origin is likely to cause confusion, or to cause mistake or to deceive potential festival-goers, potential sponsors and others to believe Defendants festival originates from or is affiliated with Plaintiff or is sponsored or approved by Plaintiff. 33. Defendants are liable to Plaintiff for false designation of origin pursuant to

15 U.S.C. 1125(a). 34. Unless restrained and enjoined by this Court, Defendants will, on

information and belief, continue to violate Plaintiffs rights, and will thereby cause irreparable harm to Plaintiff. 35. No adequate remedy exists at law for the irreparable harm Defendants

have caused and are causing Plaintiff. 36. Plaintiff is entitled to preliminary and permanent injunctive relief.

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37.

Defendants violation of Plaintiffs rights has caused and continues to

cause damage and harm to Plaintiff and to lower the value of the goodwill represented by Plaintiffs TRAVERSE CITY FILM FESTIVAL mark. Defendants have unfairly

benefited from the wrongful actions described herein. Plaintiff is entitled to a monetary recovery consistent with 15 U.S.C. 1117(a) in an amount to be proven at trial. 38. Defendants false designation of origin has been knowing, willful and in

deliberate disregard of Plaintiffs rights and of Defendants obligations under federal law. Plaintiff is entitled to enhanced damages under 15 U.S.C. 1117(a). 39. This is an exceptional case within the meaning of 15 U.S.C. 1117(a).

Plaintiff should be awarded its reasonable attorneys fees herein. COUNT III UNFAIR COMPETITION AND TRADEMARK INFRINGEMENT UNDER MICHIGAN COMMON LAW 40. Plaintiff restates and incorporates paragraphs 1-39 above as though fully

restated herein. 41. Defendants acts are likely to cause confusion, initial or otherwise, mistake

and/or to deceive. 42. Defendants are palming off themselves as the Plaintiff, thus duping the

public, in order to trade of Plaintiffs goodwill and obtain benefits properly belonging to Plaintiff. 43. Defendants acts constitute unfair competition and trademark infringement,

in violation of Michigan common law.

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44. alleged. 45.

Defendants have unfairly profited from the infringing and unfair actions

By reason of Defendants acts, Plaintiff has suffered irreparable damage

to the goodwill and reputation associated with Plaintiff itself, its services, and the TRAVERSE CITY FILM FESTIVAL mark. 46. By reason of Defendants acts, Plaintiff has suffered actual damages, at

least in the form of damage to the goodwill associated with the TRAVERSE CITY FILM FESTIVAL mark. 47. By reason of Defendants acts alleged herein, Plaintiffs remedy at law is

not adequate to compensate them for the injuries inflicted by Defendants. Accordingly, Plaintiff is entitled to preliminary and permanent injunctive relief. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that the Court enter judgment against Defendants as follows: 1. Permanently enjoining and restraining Defendants and any other person in active concert or participation with them who receive actual notice of the Courts order, from using TRAVERSE CITY SHORT FILM FESTIVAL, TRAVERSE CITY SHORTS FESTIVAL or any other mark or designation confusingly similar to Plaintiffs mark TRAVERSE CITY FILM FESTIVAL in connection with any film festival or similar event. 2. Awarding Plaintiff a monetary recovery consistent with 15 U.S.C. 1117(a) or other law in an amount to be proven at trial.

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3.

Finding that this is an exceptional case within the meaning of 15 U.S.C. 1117(a), and awarding Plaintiff its reasonable attorneys fees herein.

4.

Granting Plaintiff such other and further relief as the Court may find to be just and proper. JURY DEMAND

Plaintiff hereby demands, pursuant to Fed. R. Civ. P. 38(b), a trial by jury of all matters triable as of right in the instant cause of action. Respectfully submitted this 7th day of September, 2011. /s/Mark Clark___________________ Mark Clark (P41652) TRAVERSE LEGAL, PLC 810 Cottageview Drive, Unit G-20 Traverse City, MI 49686 231-932-0411 mark@traverselegal.com Attorneys for Plaintiff

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