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1 LAWRENCE G. TOWNSEND, ESQ. (S.B.N. 88184) 2 3 4 5
LINDA JOY KATTWINKEL, ESQ. (S.B.N. 164283) OWEN, WICKERSHAM & ERICKSON, P.C. 455 Market Street, Suite 1910 San Francisco, CA 94105 Telephone: 415-882-3200 Telecopier: 415-882-3232 [email protected] [email protected] Leaf Lines LLC and Booker Morey UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA
6 Attorneys for Plaintiffs, 7 8 9 10
11 LEAF LINES LLC, a California Company, 12 13 14
vs. GILMOUR SAGE, Washington state 1- 100, and Booker Morey, a California state resident, Plaintiffs,
Civil Action No. C 07 4015 MMC FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES FOR: (1) Federal Copyright Infringement; (2) Federal Unfair Competition; (3) Unfair Competition Under California Law (4) Breach of Contract Under California Law; (5) Breach of Fiduciary Duty Under California Law; (6) Misrepresentation Under the DMCA; and (7) Declaratory Relief. Demand for Jury Trial
15 MICHAEL D. SAGE and SUSAN
16 residents dba SAGE DESIGNS, and DOES 17 18 19 20 21 22
Defendants. __________________________________/
Plaintiffs Leaf Lines LLC and Booker Morey for their complaint against Defendants
23 Michael D. Sage and Susan Gilmour Sage dba Sage Designs, and Does 1-100, allege as follows: 24 25
NATURE OF THE ACTION 1. This is an action to redress violations of the federal copyright laws, 17 U.S.C.
26 § 501, et seq., federal laws of unfair competition, 15 U.S.C. §1125(a) et seq., as amended, 27 California state law of unfair competition, Cal. Bus. & Prof. Code § 17200 et seq., breach of 28 contract under California law, breach of fiduciary duty under California law, misrepresentation
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1 under the federal Digital Millennium Copyright Act, 17 U.S.C. § 512(f), and declaratory relief 2 under 28 U.S.C. § 2201, as the result of willful and unauthorized use by Defendants of Plaintiffs' 3 copyrighted expression and trade dress, and willful misrepresentations regarding Plaintiffs' 4 copyrighted expression, trade dress and business, as more fully set forth hereinafter. Plaintiffs 5 seek injunctive relief restraining infringement by Defendants of Plaintiffs' copyrights and trade 6 dress, damages as the direct and proximate result thereof, and related relief. 7 8
THE PARTIES 2. Plaintiff Booker Morey is a resident of Palo Alto, California. From 1993 to
9 November 2005, Booker Morey acted as a sole proprietorship doing business as Leaf Lines. 10
3. Plaintiff Leaf Lines LLC, is a company organized and existing under the laws of the
11 state of California, with its principal place of business located at 1166 Independence Avenue, 12 Mountain View, California 94043. Leaf Lines, LLC was formed on or about November 8, 2005, 13 and is the successor in interest and/or assignee to all of the assets, rights, claims and causes of 14 action, intellectual property developed and owned previously by Mr. Morey's sole proprietorship 15 Leaf Lines, and the rights to bring actions for breaches and infringements thereon. Booker 16 Morey is the manager and sole member of Leaf Lines, LLC. 17
4. Upon information and belief, Defendants Michael D. Sage and Susan Gilmour Sage
18 are husband and wife doing business as Sage Designs, with a principal place of business at 5008 19 NE 20th Avenue, Vancouver, WA 98663. 20
5. Plaintiffs do not know the true names of the individuals, corporations, partnerships or
21 other entities sued and identified herein as Does 1 through 100. Plaintiffs allege that said 22 Defendants are liable to Plaintiffs under the claims for relief set forth below, and request leave of 23 this Court to amend this Complaint when the true names of said Defendants are discovered. 24 25
JURISDICTION AND VENUE 6. This Court has subject matter jurisdiction over Plaintiffs' claims under and pursuant to
26 28 U.S.C. §§ 1331 and 1338. This court has supplemental jurisdiction over Plaintiffs' claims 27 pursuant to 28 U.S.C. § 1367. 28
7. Venue in the Northern District of California is proper pursuant to 28 U.S.C.§ 1391(b),
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1 § 1392 and § 1400(a). 2 3
INTRADISTRICT ASSIGNMENT 8. Assignment on a district-wide basis is appropriate under Civil Local Rule 3-2( c)
4 because this is an Intellectual Property Action. Assignment on a district-wide basis is appropriate 5 under Civil Local Rule 3-2( c) because this is an Intellectual Property Action. 6 7 8
A. ALLEGATIONS COMMON TO ALL COUNTS Plaintiffs' Intellectual Property
9. Plaintiff Leaf Lines manufactures and sells fine arts and crafts products at wholesale
9 throughout the United States. Plaintiffs' success is due to the distinctive expression that 10 characterizes the unique works featuring etched leaves. In 1993, Plaintiff Booker Morey 11 developed a proprietary process for a leaf-etching process for creating "skeletonized" or "etched" 12 leaves. Plaintiffs have kept this process confidential. Plaintiffs have carefully protected the 13 process against unnecessary disclosure even to Leaf Lines employees and close business 14 associates, and has required everyone authorized to utilize or know about the process to sign 15 nondisclosure agreements. 16
10. In 1993, Mr. Morey developed a distinctive design for shadowbox artworks which
17 feature three-dimensional collages of etched leaves created through Plaintiffs' process. The 18 collages feature etched leaves of the same species, in particular colors, mounted on particular 19 backgrounds in small shadowboxes (referred to by their inside dimensions: 5" x 7", 8" x 10", and 20 11" x 14") comprised of particular proportions of matting materials and frames (the "Leaf Lines 21 Small Shadowbox Designs"). 22
11. Since 1993, Plaintiffs have created and sold thousands of products comprising the
23 Leaf Lines Small Shadowbox Designs. Plaintiff Leaf Lines, LLC owns, by assignment from Mr. 24 Morey, ten (10) U.S. Copyright Registrations which protect the Leaf Lines Small Shadowbox 25 Designs as set forth in Exhibit A. 26
12. Since 1993, Plaintiffs have extensively promoted the Leaf Lines Small Shadowbox
27 Designs to U.S. customers through the distribution of over 600 Leaf Lines samples and 28 descriptive literature to candidate galleries in the United States; Plaintiffs have sent over 700
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1 directed postcard advertisements promoting Leaf Lines products, including the Leaf Lines Small 2 Shadowbox Designs, to very select galleries, and have advertised the Leaf Lines Small 3 Shadowbox Designs extensively in printed advertisements in important trade magazines and 4 buyers' guides; Plaintiffs have participated in a number of national wholesale shows including 5 the San Francisco International Gift Fair, the New York International Gift Fair, and the Buyers 6 Market of American Craft in Philadelphia, all of which featured Leaf Lines Small Shadowbox 7 Designs as Leaf Lines' signature products; Leaf Lines Small Shadowbox Designs products are 8 included on a website owned by WholesaleCrafts.com, as well as Leaf Lines' own webiste 9
13. Plaintiffs also promote their Leaf Lines products through purchased "adword"
13 references on Google and Yahoo. A recent search on Google for "Booker Morey" shows at least 14 the first seven pages of entries for artwork based on Leaf Lines products, including the signature 15 Leaf Lines Small Shadowbox Designs, and a similar recent search for "Leaf Lines" produces as 16 the top ten hits references to galleries which carry Leaf Lines products. 17
14. As a result of the above-mentioned publicity and professional success, the Leaf
18 Lines Small Shadowbox Designs are well known and widely recognized in the arts and crafts 19 communities as emanating exclusively from Plaintiffs. 20
15. The innovative selection and arrangement of Plaintiffs' etched leaves in the matting
21 and framing materials comprising the Leaf Lines Small Shadowbox Designs comprise artistic 22 expression unlike any other imagery in the field. This distinctive artistic expression comprising 23 the Leaf Lines Small Shadowbox Designs constitutes Plaintiffs' exclusive trade dress by which 24 Plaintiffs Leaf Lines, LLC and Mr. Morey are well known in the arts and crafts industry. 25 Plaintiffs have expended significant resources promoting Leaf Lines products under the trade 26 dress comprising the Leaf Lines Small Shadowbox Designs. Such trade dress is an extremely 27 important aspect of Plaintiffs' success, and one of Plaintiffs' most valuable assets. 28
16. Since 1993, Plaintiffs have been, and currently Plaintiff Leaf Lines, LLC is, the
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1 exclusive United States and worldwide source of genuine products comprising the Leaf Lines 2 Small Shadowbox Designs. 3
17. The Leaf Lines Small Shadowbox Designs are inherently distinctive and, in any
4 event, have acquired distinctiveness through continuous and widespread use of thereof in the 5 U.S. and worldwide for nearly fifteen years. 6 7
B. The Parties' Prior Fiduciary Relationship
18. In March 1995, Mr. Morey met Defendant Michael Sage, then a resident of
8 Sunnyvale, California, at a crafts trade show in San Francisco, where Mr. Sage was displaying 9 and selling primarily vases made of wood. Thereafter the parties discussed the possibility of 10 having Mr. Sage sell Plaintiff's Leaf Lines products along with Mr. Sage's own work at future art 11 and wine festivals. 12
19. On September 14, 1995, Mr. Sage and Mr. Morey signed a written "Agreement
13 between Michael Sage and Booker Morey, regarding working together to sell, promote and 14 extend Leaf Lines and Sage Designs." Under that agreement, which "covers September 1995," 15 Mr. Sage displayed and sold Leaf Lines products alongside his own Sage Designs products at the 16 September 1995 Mountain View crafts show. The September 1995 agreement also recited that 17 the parties' "longer term intention" was to "find a way to work together in a partnership or other 18 arrangement to grow the businesses, and for Michael to assist Booker with the intention of 19 earning an equity position in Leaf Lines. How this is to be done isn't yet known, nor is it a 20 commitment by either Michael or Booker, but it forms the basis or the consideration of efforts 21 beyond representation by Michael at shows as a consignment retailer." 22
20. After September 1995 Mr. Sage continued to promote and sell Leaf Lines products
23 on a consignment basis. 24
21. In approximately October 1997, Mr. Sage suggested to Mr. Morey that Leaf Lines
25 expand its product line to include larger shadowboxes (24" x 36"). Mr. Morey was not interested, 26 but agreed that Mr. Sage could sell such larger shadowboxes under the following arrangement: 27 Mr. Sage assembled frames, empty shadowboxes, mats and glass for such products. Mr. Morey 28 arranged the layout of the branches and installed the etched leaves in the shadowboxes. Mr. Sage
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1 then sold the finished 24" x 36" Leaf Lines shadowboxes pieces on behalf of Leaf Lines. 2
22. In June 1998, Mr. Morey began training Mr. Sage to make the leaf arrangements in
3 the Leaf Lines Small Shadowbox Designs. Leaf Lines provided to Mr. Sage all the materials for 4 making the arrangements: the colored or natural etched leaves, the birch twigs used for mounting 5 the leaves, the specially designed shadowboxes custom-made for Leaf Lines to Mr. Morey's 6 specifications, the frames, mats and adhesive. Under Mr. Morey's direction, Mr. Sage would 7 choose the three leaves from the same species of tree, cut twigs to fit the shadowbox, and glue 8 the three leaves on the twigs to fit in the mat opening per Mr. Morey's instructions regarding 9 arrangements for aesthetic effect and dimensionality. Mr. Sage's assembly work assignments for 10 Leaf Lines were no different than some of Leaf Lines' full-time employees. Nearly always, Mr. 11 Sage would leave the mounted arrangements for Leaf Lines to "finish." "Finishing" would 12 include removing dust from the velveteen lined shadowbox, cleaning the glass, assembling the 13 glass, frame, mat and shadowbox, securing the shadowbox to frame, labeling the final piece, and 14 bagging and inventorying the piece for pick-up by Mr. Sage for the next show. Mr. Sage did not 15 participate in drying and pressing the leaves, the proprietary etching process, or bleaching and 16 airbrushing the colors into the leaves. Mr. Sage had access and knowledge, with Mr. Morey's 17 permission, to see and learn all the operations of the Leaf Lines business with the exception of 18 the Leaf Lines proprietary etching process. 19
23. Mr. Sage did not purchase any materials that were included in products comprising
20 the Small Leaf Lines Shadowbox Designs. Leaf Lines paid Mr. Sage for his assembly work even 21 though the final pieces were consigned to Mr. Sage and Mr. Sage had no payment obligations 22 until the pieces were sold. Mr. Sage was also paid, per leaf, to harvest suitable leaves per Leaf 23 Lines' specifications for future use. Mr. Sage was also paid a "finder's fee" as a sales 24 representative for providing leads which Leaf Lines developed into new customers, in the amount 25 of 10% of new sales to such customers for the first year. 26
24. In approximately March 1999, the parties began discussing the possibility that Mr.
27 Sage might eventually buy the Leaf Lines business. These discussions have continued on and off 28 to date.
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1
25. Mr. Sage continued to sell Leaf Lines products, including Leaf Lines Small
2 Shadowbox Designs assembled by Mr. Sage and finished by Leaf Lines, at public arts festivals 3 on a consignment basis. However, Mr. Sage refused to attend wholesale trade shows which could 4 result in new retailers or galleries for Leaf Lines, even when Mr. Morey offered him payment to 5 do so. Mr. Sage stated he refused to do so because obtaining new retailer customers for Leaf 6 Lines could result in making the Leaf Lines business too valuable for him to be able to purchase. 7
26. On October 24, 2001, Defendants Michael Sage and Susan Gilmour Sage, dba Sage
8 Designs, signed an agreement pursuant to which they (a) confirmed that they did not know the 9 Leaf Lines proprietary etching process, and they would not make an effort to learn the process 10 except from Mr. Morey or others with his permission; (b) agreed that they would not make or sell 11 products related to etched leaves except those made by direct permission of Leaf Lines, ( c) 12 agreed that such etched leaves products sold by Sage Designs would not be represented as 13 exclusively Sage Designs products, and (d) agreed that Leaf Lines trademarks would not be 14 obscured on such products (the "2001 Agreement"). These provisions were to be effective at 15 least until the Leaf Lines business was sold to Sage Designs. 16
27. In September 2002, the parties agreed to change the arrangement under which Sage
17 Designs would make and/or sell Leaf Lines products, from consignment to wholesale purchase of 18 products, net 30. Under this new arrangement, Sage Designs was authorized to increase the 19 actual retail price at his discretion, and to retain all profits from such increases. The new 20 arrangement went into effect in October 2002. Leaf Lines continued to finish most of the Leaf 21 Lines products assembled and sold by Sage Designs. 22
28. In December 2003, the Sages moved to Vancouver. Thereafter Leaf Lines assembled
23 and finished all Leaf Lines products to be sold by Sage Designs. Mr. Morey expressed concerns 24 regarding delayed payments for Sage's wholesale orders. Mr. Sage expressed concerns about his 25 cash flow. 26
29. In October 2004, Mr. Sage purchased from Leaf Lines loose etched leaves for use in
27 assembling large 36" x 48" and 24" x 36" Leaf Lines shadowboxes in Vancouver. In February 28 2005, Mr. Sage made his last purchase of genuine Leaf Lines products, namely, fourteen 11" x
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1 14" and forty-two 8" x 10" products comprising Leaf Lines Small Shadowbox Designs. 2
30. In July 2005, Defendants demanded that Mr. Morey name a price for selling the Leaf
3 Lines business to them. Thereafter the parties' ongoing discussions regarding the purchase price 4 and financing for the proposed sale became acrimonious. Mr. Sage advocated a greatly reduced 5 price to be paid over time, in consideration of his alleged contributions to growing the Leaf Lines 6 business. Mr. Morey required a purchase price closer to actual value of the business with a 7 discount based on generally accepted practice, and full payment up front. Mr. Sage continued to 8 negotiate for his purchase of the Leaf Lines business at least through August 22, 2005, when Mr. 9 Sage reiterated his proposed terms. On May 2, 2006, Plaintiffs, through letter from their counsel, 10 suspended such discussions pending resolution of Plaintiffs' infringement claims (as set forth 11 more fully below). 12
31. All products comprising the Leaf Lines Small Shadowbox Designs sold and/or made
13 by Sage under Leaf Lines' authorization were created and assembled in compliance with 14 Plaintiffs' instructions and thereby duplicated the selection, arrangement and co-ordination 15 comprising Plaintiffs' pre-existing Leaf Lines Small Shadowbox Designs. Sage did not make 16 significant choices regarding the selection, arrangement, coloration, mounting materials or 17 frames comprising these product designs. 18
32. Throughout the time that Mr. Sage made and sold Leaf Lines products under Leaf
19 Lines' authorization, Mr. Morey had expressed concerns about the poor quality of Leaf Lines 20 products made by Mr. Sage. As a result, Mr. Sage made Leaf Lines products solely for his own 21 inventory. 22
33. From September 1995 when Mr. Sage first began working for Leaf Lines, through at
23 least May 2, 2006 when Plaintiffs sent their first demand letter to Defendants, Mr. Sage worked 24 for Leaf Lines as a sales agent for Leaf Lines products, and at all times Mr. Sage was fully 25 compensated for his work as an independent contractor, including collecting leaves, assembling 26 arrangements, carpentry work to the inside of Plaintiffs' building, and building the larger 27 shadowboxes, on terms mutually agreed to by the parties. Mr. Sage was given, rent-free, an 28 office/workroom/salesroom on Leaf Lines' premises. The parties intended that all work done on
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1 behalf of Plaintiffs by Mr. Sage inured to the benefit of Plaintiffs. The parties did not conduct 2 themselves as co-owners of the Leaf Lines business. Mr. Sage did not receive any share of profits 3 or gross returns from the Leaf Lines business. 4
34. Plaintiffs have never disclosed the Leaf Lines proprietary leaf etching process to
5 Defendants, nor authorized any of Plaintiffs' employees or agents to do so. Plaintiffs' proprietary 6 leaf etching process was performed in a separate location to which Sage was not authorized to 7 have access. 8 9
C. Defendants' Infringing Conduct
35. Upon information and belief, at least as early as June 2005, Defendants Michael
10 Sage and Susan Gilmour Sage, dba Sage Designs, were making and selling products comprising 11 nearly identical copies of Leaf Lines Small Shadowbox Designs ("Sage Design Knockoffs"), as 12 well as genuine Leaf Lines products with the Leaf Lines labels removed, at public arts festivals 13 and online under the "Sage Designs" trade name and mark, and the slogan "The Fine Art of 14 Phantom Leaves" (collectively, the "Sage Marks"). True and correct examples of the Sage 15 Design Knockoffs comprise Exhibit B. 16
36. Upon information and belief, at least as early as June 2005, Defendants
17 misrepresented to their customers at trade shows and public arts festivals that Mr. Sage was 18 aware of and even participated in developing the Leaf Lines proprietary etching process. 19
37. Upon information and belief, in June 2005 Defendants, together with several other
20 business partners, opened the Gilbert District Gallery in Seaside, Oregon. Soon thereafter the 21 Gilbert District Gallery began displaying and offering for sale Sage Designs Knockoffs under the 22 Sage Designs Marks. 23
38. At least through May 2006, on the Sage Designs website, Mr. Sage misrepresented
24 the nature of his prior "symbiotic relationship" with Plaintiffs to falsely suggest that his products 25 utilized the same etching process and overall product quality as Leaf Lines products. The site 26 also offered preferential credit terms to galleries presently carrying Leaf Lines products. 27
39. At least through May 2006, on the Sage Designs website, the "Guest Book" page
28 displayed quotes of endorsement and praise from some purported customers of Sage Designs
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1 products who were actually talking about genuine Leaf Lines products. 2
40. On May 2, 2006, Plaintiffs, through counsel, sent a letter to Defendants, which, inter
3 alia, demanded that Defendants immediately remove and discontinue the misrepresentations 4 described above and that appropriate additional steps be taken to redress the harm to Plaintiffs 5 resulting from their display and distribution. This letter also stated that Plaintiffs would no longer 6 negotiate for sale of the business to Sage, and offered alternative proposals for allowing 7 Defendants to continue making and selling etched leaves products. 8
41. By letter dated September 6, 2006, and subsequent correspondence between the
9 parties, Defendants refused Plaintiffs' business proposals, and Plaintiffs demanded that 10 Defendants cease all display and sale of the Sage Designs Knockoffs. 11
42. At least as of May 2006 and continuing to date, Defendants have made false
12 statements online and in Sage Designs promotional materials suggesting that Leaf Lines 13 proprietary process is actually an ancient process, and that Defendants' products utilize the same 14 process. These include misrepresentations that an "ancient art of skeletonizing leaves" was 15 "rediscovered" by Mr. Morey; that "Booker introduced me to the ancient art of skeletonizing 16 leaves"; and that "the Art of skeletonizing leaves has been around for hundreds of years and was 17 regularly practiced in the Victorian era." Defendants' websites have also posted numerous third18 party materials and references to third party sites discussing various leaf etching processes, 19 creating the false implication that the Leaf Lines process and/or its products are not unique. 20
43. Upon information and belief, to date, Defendants have continued to misrepresent at
21 trade shows, pubic arts festivals, online and in Sage Designs promotional materials that Mr. Sage 22 and Mr. Morey "collaborated to design, produce and market a line of shadow boxes that 23 contained skeletons of real leaves"; and that Mr. Sage "co-developed" the Leaf Lines Small 24 Shadowbox Designs. 25
44. Upon information and belief, to date, Defendants have continued to make false
26 statements at trade shows, pubic arts festivals, online and in Sage Designs promotional materials 27 about the nature of Mr. Sage's prior working relationship with Mr. Morey. These include 28 misrepresentations that Mr. Sage was "offered a partnership," that Mr. Morey "partnered" with
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1 Mr. Sage; and that Mr. Morey asked Mr. Sage to help him develop a craft business "in exchange 2 for `stock' in the future success." Mr. Sage has never been a partner in the Leaf Lines business 3 and has never been promised "stock" in the business. 4
45. Upon information and belief, to date, Defendants have continued to make statements
5 at trade shows, pubic arts festivals, online and in Sage Designs promotional materials which 6 suggest that Sage Designs has been and is the only source of etched leaf shadowbox products. 7 For example, in a postcard sent to galleries and retailers earlier this year, Mr. Sage touts his 8 products and invites the recipients to visit his booth at Wholesalecrafts.com's annual national 9 ACRE (American Craft Retailers Expo) arts and crafts show in Las Vegas in May 2007, stating 10 "Perhaps you are already familiar with my very popular shadow box line. I have made major 11 improvements that have dramatically increased their salability [sic], while maintaining costs." 12
46. Since March 2006, Plaintiff Leaf Lines, LLC has been a listed vendor on the
13 Wholesalecrafts.com website. 14
47. Upon information and belief, Defendants' promotional materials as described above
15 have been sent by email and regular mail to Leaf Lines customers and potential customers 16 nationwide, including within the Northern District of California. 17
48. Upon information and belief, Defendants' websites operating under the Sage
18 Designs Marks are interactive sites through which Defendants, at all times relevant to this action 19 actively display and solicit sales of Sage Design products, including the Sage Design Knockoffs, 20 as well as the misrepresentations described above, to online viewers nationwide, including in the 21 Northern District of California. Defendants also actively promote Sage Design products, 22 including the Sage Design Knockoffs, to potential customers and Plaintiffs' current customers 23 nationwide, including within the Northern District of California, through third-party websites 24 such as
49. Upon information and belief, to date Defendants continue to display and offer for
26 sale Sage Design Knockoffs at trade shows and public arts festivals and to misrepresent to the 27 attendees and trade show and festival organizers that Defendants created and own rights in the 28 Leaf Lines Small Shadowbox Designs, including without limitation at Wholesalecrafts.com's
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1 annual national ACRE (American Craft Retailers Expo) arts and crafts show in Las Vegas in 2 May 2007. 3
50. Defendants have represented on its listing on the Wholesalecrafts.com site that Sage
4 Designs has over fifty retailer customers for its products, including the Sage Designs Knockoffs. 5
51. On information and belief, at least as of June 2006, the Gilbert District Gallery
6 continued to display and offer for sale Sage Designs Knockoffs. 7
52. Plaintiff has received and continues to receive comments and inquiries from Leaf
8 Lines' wholesale customers and their potential retail customers about an association between 9 Sage Designs and Leaf Lines, and which demonstrate confusion over the source of Leaf Lines 10 products, including Leaf Lines Small Shadowbox Designs, including mistaken assumptions that 11 Sage Designs is the originator and only source of such products. 12
53. Upon information and belief, Defendants plan to continue their unauthorized
13 copying and use of the Leaf Line Shadowbox Designs, and unless restrained by this court, will 14 continue to unfairly compete with Plaintiffs by marketing and selling the Sage Design Knockoffs. 15
54. Upon information and belief, Defendants plan to continue their misrepresentations
16 regarding the Leaf Lines proprietary process, the nature of the prior relationship between the 17 parties, the authorship of the Leaf Lines Small Shadowbox Designs, and the nature of the Sage 18 Design Knockoffs, and unless restrained by this court, will continue to unfairly compete with and 19 disparage Plaintiffs by making such misrepresentations. 20 21 22 23
FIRST CLAIM FOR RELIEF Federal Copyright Infringement Under 17 U.S.C. §101 et seq. 55. Plaintiffs restate and reaver the allegations of paragraphs 1 through 54, inclusive. 56. Plaintiff Leaf Lines, LLC owns valid copyrights in artworks featuring the Leaf Lines
24 Small Shadowbox Designs (the "Copyrighted Works"), by assignment from Plaintiff Booker 25 Morey. At all times relevant hereto, Plaintiffs have been and still are the exclusive owners, with 26 the sole authority to exploit the Copyrighted Works, and as such Plaintiffs have standing to assert 27 claims of copyright infringement. 28
57. At all times relevant hereto, all or substantially all copies of Leaf Lines' Copyrighted
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1 Works made by Plaintiffs or under Plaintiffs' authority or license in the United States and 2 elsewhere have been made in strict conformity with the Copyright Act of the United States and 3 all other laws governing copyright in the areas where the items have been published. 4
58. At all times relevant hereto, all or substantially all of Plaintiffs' genuine materials
5 bearing the Copyrighted Works have been marked with copyright notices claiming copyright in 6 Plaintiffs' name. 7
59. Plaintiffs' Copyrighted Works constitute original artwork created by Plaintiff
8 Booker Morey. 9
60. Plaintiffs' Copyrighted Works represent copyrightable subject matter under the laws
10 of the United States. 11
61. Plaintiffs have not conveyed any copyright interest in the Copyrighted Works to
12 Defendants. 13
62. Defendants had access to Plaintiffs' Copyrighted Works through Mr. Sage's prior
14 working relationship with Plaintiffs. Plaintiffs' Copyrighted Works have been extensively 15 published and displayed worldwide, including on Plaintiffs' promotional publications, Plaintiffs' 16 websites, third party websites, and trade shows. 17
63. The products comprising Defendants' Sage Design Knockoffs are identical or
18 strikingly similar copies of the Leaf Lines Small Shadowbox Designs, and their creation, display, 19 offering for distribution, distribution and sale by Defendants constitute willful and unauthorized 20 distribution, copying and misappropriation of substantial or entire portions of the artwork 21 contained in, and original to, Plaintiffs' Copyrighted Works, including without limitation the 22 Copyrighted Works covered by the U.S. Copyright registrations set forth in Exhibit A. 23
64. Upon information and belief, Defendants intentionally and willfully created,
24 imported, marketed, sold, and/or distributed materials bearing copies of Plaintiffs' Copyrighted 25 Works, without authority of Plaintiffs or their agents, including display of images comprising the 26 Sage Design Knockoffs on their own and third-party websites. 27
65. Defendants and each of them have induced, caused or materially contributed to the
28 infringing acts alleged herein and are each liable to Plaintiffs for direct, contributory or vicarious
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1 copyright infringement, or inducing the same. 2
66. Defendants and each of them have benefitted economically in the form of continued
3 and increased revenues and enhanced reputation from the promotion and sale of the 4 infringements alleged herein. 5
67. By their wrongful acts, Defendants have, and unless enjoined by this Court, will
6 continue to cause serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy 7 at law. 8
68. As a direct and proximate result thereof, Plaintiffs have been and continue to be
9 damaged in an amount to be proven at trial. 10 11 12 13 14
SECOND CLAIM FOR RELIEF Federal Unfair Competition, Common Law Trade Dress Infringement Under 15 U.S.C. § 1125(a) 69. Plaintiffs restate and reaver the allegations of Paragraphs 1 through 68, inclusive. 70. Plaintiffs' common law trade dress, namely, the distinctive expression comprising
15 the Leaf Lines Small Shadowbox Designs (the "Leaf Lines Trade Dress"), is inherently 16 distinctive. Moreover, as described above, the Leaf Lines Trade Dress has been extensively 17 used, advertised, and promoted through the United States, and the world in connection with 18 Plaintiffs' products. 19
71. As a result of Plaintiffs' use, advertisement, and promotion of the Leaf Lines Trade
20 Dress, the Leaf Lines Trade Dress has become well and favorably known throughout the United 21 States and world as identifying Plaintiffs and their products. Plaintiffs have developed 22 exceedingly valuable goodwill with respect to the Leaf Lines Trade Dress. 23
72. Defendants have created, imported, advertised, promoted, displayed, offered for sale,
24 and/or sold poor quality works comprising identical, or nearly identical copies of the Leaf Lines 25 Trade Dress (the "Sage Designs Knockoffs"). 26
73. Defendants' display of the Sage Designs Knockoffs is likely to cause members of the
27 relevant public and trade to believe that the products offered by Defendants are provided by or in 28 affiliation with or under the sponsorship or approval of Plaintiffs, in light of the confusing
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1 similarity between the Sage Designs Knockoffs and Plaintiffs' genuine Leaf Lines Trade Dress. 2
74. Defendants selected, adopted and/or used the Sage Designs Knockoffs with
3 knowledge of the Leaf Lines Trade Dress, and the valuable goodwill and business reputation 4 associated therewith and with willful intent to confuse, mislead, and deceive the public into 5 believing Defendants' products emanate from Plaintiffs or are in some manner associated with, 6 approved or endorsed by Plaintiffs. 7
75. Upon information and belief, Defendants' acts complained of herein occurred after
8 the Leaf Line Shadowbox Designs became distinctive of source. 9
76. Defendants' offering of the poor quality products utilizing the Leaf Lines Trade
10 Dress threatens to undermine or even destroy the legitimate market for genuine Leaf Lines 11 products. 12
77. Upon information and belief, unless restrained by this Court, Defendants will
13 continue to infringe Plaintiffs' genuine Leaf Lines Trade Dress by its use of the above-identified 14 Sage Designs Knockoffs. 15
78. As set forth more fully above, Defendants have made several false and misleading
16 descriptions of facts in their commercial advertising and promotions, which misrepresent the 17 nature, characteristics, qualities and origins of Leaf Lines products and the Leaf Lines Small 18 Shadowbox Designs, as well as Defendants' own products comprising Sage Designs Knockoffs 19 (the "False Advertising Misrepresentations"). 20
79. On information and belief, Defendants made the False Advertising
21 Misrepresentations with willful intent to confuse, mislead, and deceive the public. 22
80. Upon information and belief, unless restrained by this Court, Defendants will
23 continue make false the False Advertising Misrepresentations. 24
81. Defendants' wrongful acts will destroy the ability of the Leaf Lines Small
25 Shadowbox Designs to serve as an identification of a single source, will dilute the Leaf Lines 26 Small Shadowbox Designs by lessening their capacity to identify and distinguish services 27 emanating from Plaintiffs from other goods and services and will rob Plaintiffs of the value 28 thereof.
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82. Defendants and each of them have induced, caused or materially contributed to the
2 infringing acts and unlawful conduct alleged herein and are each liable to Plaintiffs for direct, 3 contributory or vicarious trade dress infringement and false advertising, or inducing the same. 4
83. Defendants and each of them have benefitted economically in the form of continued
5 and increased revenues and enhanced reputation from promotion of the Sage Designs Knockoffs. 6
84. By their wrongful acts, Defendants, unless restrained by this Court, will cause
7 serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy at law. 8
85. As a direct and proximate result thereof, Plaintiffs have been and continue to be
9 damaged in an amount to be proven at trial. 10 11 12 13
THIRD CLAIM FOR RELIEF Unfair Competition Under Cal. Bus. & Prof. Code § 17200 86. Plaintiffs restate and reaver the allegations of paragraphs 1 through 85, inclusive. 87. Defendants' above-averred actions constitute unlawful, unfair, and fraudulent
14 business practices and unfair, deceptive, misleading, and false advertising in violation of Cal. 15 Bus. & Prof. Code § 17200, et seq. 16
88. By their wrongful acts, Defendants have, and unless enjoined by this Court, will
17 continue to cause serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy 18 at law. 19
89. As a direct and proximate result thereof, Plaintiffs have been and continue to be
20 damaged in an amount to be proven at trial. 21 22 23 24
FOURTH CLAIM FOR RELIEF Breach of Contract 90. Plaintiffs restate and reaver the allegations of paragraphs 1 through 89, inclusive. 91. The provisions of the 2001 Agreement under which Defendants (a) confirmed that
25 they did not know the Leaf Lines proprietary etching process, and they would not make an effort 26 to learn the process except from Mr. Morey or others with his permission; (b) agreed that they 27 would not make or sell products related to etched leaves except those made by direct permission 28 of Leaf Lines, ( c) agreed that such etched leaves products sold by Sage Designs would not be
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1 represented as exclusively Sage Designs products, and (d) agreed that Leaf Lines trademarks 2 would not be obscured on such products, were effective at least until negotiations for sale of the 3 Leaf Lines business to Sage Designs broke down in May 2006. 4
92. Plaintiffs have performed all terms, conditions, and obligations required of Plaintiffs
5 under the 2001 Agreement. 6
93. As set forth above, at least as of June 2005 and continuing through at least May
7 2006, Defendants have (a) represented to the public that Mr. Sage was aware of and even co8 developed the Leaf Lines proprietary process; (b) made and sold products related to etched leaves 9 without authorization from Plaintiffs; ( c) represented that Leaf Lines products sold by 10 Defendants were exclusively Sage Designs products, and (d) sold Leaf Lines products on which 11 the Leaf Lines trademarks were obscured and/or removed. Each of these actions constitutes a 12 material breach of the 2001 Agreement by Defendants. 13
94. By their wrongful acts, Defendants have, and unless enjoined by this Court, will
14 continue to cause serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy 15 at law. 16
95. As a direct and proximate result thereof, Plaintiffs have been and continue to be
17 damaged in an amount to be proven at trial. 18 19 20 21
FIFTH CLAIM FOR RELIEF Breach of Fiduciary Duty 96. Plaintiffs restate and reaver the allegations of paragraphs 1 through 95, inclusive. 97. In his position as an independent contractor sales agent for Plaintiffs, Mr. Sage was
22 entrusted with duties directly affecting the functioning and success of Plaintiffs' Leaf Lines 23 business, including promoting and selling Leaf Lines products. Thus Mr. Sage was in a special 24 relationship with Plaintiffs giving rise to a fiduciary duty owed to Plaintiffs at least through May 25 2, 2006. 26
98. Defendants breached their fiduciary duty to Plaintiffs by engaging in activities which
27 constituted conflicts of interest and self-dealing, including the establishment of a directly 28 competing business in Plaintiffs' established markets, and acts of disparagement and
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1 misrepresentations regarding Plaintiffs and Plaintiffs' products as set forth above. 2
99. Defendants' breach of fiduciary duty was oppressive and malicious, and in conscious
3 disregard of Plaintiffs' rights. 4
100. By their wrongful acts, Defendants have, and unless enjoined by this Court, will
5 continue to cause serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy 6 at law. 7
101. As a direct and proximate result thereof, Plaintiffs have been and continue to be
8 damaged in an amount to be proven at trial. 9 10 11 12
SIXTH CLAIM FOR RELIEF Misrepresentation Under DMCA, 17 U.S.C. § 512(f) 102. Plaintiffs restate and reaver the allegations of paragraphs 1 through 101, inclusive. 103. Defendants have caused images of the infringing Sage Designs Knockoffs to be
13 displayed on several websites, including
104. In April 2007, Plaintiffs sent notices under the DMCA, 17 U.S.C. § 512, to third
16 parties who, on information and belief, have caused or contributed to the display and sale of the 17 infringing Sage Designs Knockoffs. One such notice was sent to Wholesalecrafts.com regarding 18 displays of infringing images on its websites
105. On July 24, 2007, Plaintiffs received notice from Wholesalecrafts.com that the
22 infringing images would be returned to its site based on a purported DMCA counter-notice 23 provided by Mr. Sage. The counter-notice by Mr. Sage (as forwarded to Plaintiffs by 24 Wholesalecrafts.com) states, under penalty of perjury, that the materials were removed as a result 25 of mistake or misidentification, and that "Mr. Morey and I (Michael Sage) have been 26 collaborative partners and I was the driving creative force in the relationship and own any 27 enforceable rights therein. The `copyrights' by Mr. Morey having thus been falsely filed claiming 28 himself as sole author. I have contributed copyrightable elements to the product line which can
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1 be corroborated"; and "Further, the inability to enforce these rights is well documented in the 2 ninth circuits [sic]. The courts have long since demonstrated their reluctance to grant broad 3 copyrights which give monopoly powers to individuals. Please see the following example: 4 SATAVA v. LOWRY, 323 F.3d 805 (9th Cir. 2003)." 5
106. The statements referenced above in Sage's purported counter-notice are false and
6 constitute material misrepresentations. As set forth above, Mr. Sage did not collaborate on or 7 contribute copyrightable authorship to the Leaf Lines Small Shadowbox Designs replicated in the 8 Sage Designs Knockoffs. 9
107. Mr. Sage knowingly made the false statements referenced above with willful intent
10 to mislead Wholesalecrafts.com and to cause the infringing materials to be re-posted. 11
108. Defendants' counter-notice failed to include a statement that Defendants consent to
12 the jurisdiction of Federal District Court for the judicial district in which the address is located, 13 or that Defendants will accept service of process from Plaintiffs, in violation of 17 U.S.C. § 14 512(g)((3)(D). 15
109. Defendants' above-averred actions constitute misrepresentation and perjury in
16 violation of 17 U.S.C. § 512(f). 17
110. By their wrongful acts, Defendants have, and unless enjoined by this Court, will
18 continue to cause serious and irreparable harm to Plaintiffs. Plaintiffs have no adequate remedy 19 at law. 20
111. As a direct and proximate result thereof, Plaintiffs have been and continue to be
21 damaged in an amount to be proven at trial. 22 23 24 25
SEVENTH CLAIM FOR RELIEF Declaratory Judgment Under 28 U.S.C. § 2201 112. Plaintiffs restate and reaver the allegations of paragraphs 1 through 111, inclusive. 113. As set forth above, Defendants claim that Mr. Sage created and owns copyright
26 interests in Leaf Lines Small Shadowbox Designs and that Plaintiffs' copyrights are 27 unenforceable against Defendants. Plaintiffs allege that Plaintiffs are the sole creator and owner 28 of valid and enforceable copyrights in the Leaf Lines Small Shadowbox Designs.
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1
114. Accordingly, a judiciable case or controversy exists between Plaintiffs and
2 Defendants with respect to the validity and ownership of such copyrights. 3 4
WHEREFORE, Plaintiffs demand judgment against Defendants as follows: 1. Declaratory judgment that Plaintiffs are the sole author and copyright owner of the
5 Leaf Lines Small Shadowbox Designs, that Plaintiffs' copyright registrations therefor are valid, 6 and that Defendants have infringed Plaintiffs' copyrights in the Leaf Lines Shadowbox Designs. 7
2. That Defendants, Defendants' agents, employees, and licensees, and all persons or
8 entities in active concert or participation with any of them who receive notice of the Court's 9 Order, be preliminarily and permanently enjoined from: 10
A. Creating, manufacturing, causing to be created or manufactured,
11 importing, displaying, marketing, promoting, advertising, distributing, selling, and/or otherwise 12 disposing of any materials that incorporate, reflect, or contain any unauthorized use of the Leaf 13 Lines Small Shadowbox Designs, including without limitation the Sage Designs Knockoffs 14 (collectively "Infringing Materials"), and/or infringing Plaintiffs' copyrights or trade dress 15 therein in any manner; 16 17
B. C. Otherwise infringing any of Plaintiffs' copyrights or trademarks; Making false or misleading descriptions of facts in their commercial
18 advertising and promotions, which misrepresent the nature, characteristics, qualities and origins 19 of Leaf Lines products and the Leaf Lines Small Shadowbox Designs, as well as Defendants' 20 own products comprising Sage Designs Knockoffs, including without limitation any statements, 21 suggestions or implications that (1) Defendants developed the Leaf Lines proprietary process, (2) 22 Defendants' products utilize the Leaf Lines proprietary process, (3) Defendants contributed to or 23 own any rights in, including without limitation copyright or trade dress, in the Leaf Lines Small 24 Shadowbox Designs, (4) Defendants are the originators or only source of etched leaf products, or 25 (5) Mr. Sage was a business "partner" in Leaf Lines, or that he was offered a partnership, or that 26 Mr. Morey asked Mr. Sage to help him develop a craft business in exchange for stock in the 27 future success. 28
D. Otherwise competing unfairly with Plaintiffs.
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3.
That Defendants, their agents, employees, and licensees, and all those acting
2 under its direction and pursuant to its control, be directed to notify Wholesalecrafts.com, Gilbert 3 District Gallery, and any other venue where the Infringing Materials have been displayed or 4 offered for sale, (a) declaring that the Infringing Materials were displayed and distributed without 5 authorization, and (b) requiring that display or offering for sale of Infringing Materials be 6 immediately discontinued, and ( c) all materials comprising copies of such images be delivered 7 up for destruction. 8
4. That Defendants, their agents, employees, and licensees, and all those acting
9 under its direction and pursuant to its control, be directed to deliver up for destruction all 10 Infringing Materials, and other matter employed in the creation, distribution and sale of 11 Infringing Materials. 12 13
5. That Defendants be required to pay Plaintiffs: A. Any and all profits made by Defendants as a result of the aforesaid
14 infringements, together with interest thereupon in an amount presently unknown; 15
B. Plaintiffs' damages in an amount presently unknown but believed to be in
16 excess of $50,000, together with interest; 17
C. Disgorgement of Defendants' profits and/or unjust enrichment in an
18 amount to be determined at trial: 19 20 21
6. D. E. Three times the profits and damages pursuant to 15 U.S.C. § 1117(b); and Punitive damages in an amount to be determined at trial.
That Defendants be required to pay Plaintiffs' costs of this action, together with
22 Plaintiffs' reasonable attorneys' fees, under 15 U.S.C. §1117(a). 23
7. That the Court award Plaintiffs such other and further relief as this Court shall
24 deem just and proper. 25 26 27 28
Dated: December 21, 2007 OWEN, WICKERSHAM & ERICKSON, P.C. By /ljk/ Lawrence G. Townsend Linda Joy Kattwinkel Attorneys For Plaintiffs, Leaf Lines LLC and Booker Morey
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1 2 3
DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial of all issues in the above-captioned action which are
4 triable to a jury. 5 6 7 8 9 10 11 12
CERTIFICATION RE INTERESTED PARTIES OR PERSONS Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the Dated: December 21, 2007 OWEN, WICKERSHAM & ERICKSON, P.C. By /ljk/ Lawrence G. Townsend Linda Joy Kattwinkel Attorneys For Plaintiffs, Leaf Lines LLC and Booker Morey
13 named parties, there is no such interest to report. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
FIRST AMENDED COMPLAINT FOR FEDERAL COPYRIGHT INFRINGEM ENT, ETC. -22S:\1Clients\LEAFL\70001\1st Am Complaint 12-21-07.wpd
OWEN, WICKERSHAM & ERICKSON, P.C. Dated: December 21, 2007 By /ljk/ Lawrence G. Townsend Linda Joy Kattwinkel Attorneys For Plaintiffs, Leaf Lines LLC and Booker Morey
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