American Cruise Lines v. HMS American Queen Steamboat - American trademark complaint.pdf

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

AMERICAN CRUISE LINES, INC.,

Plaintiff,

v. HMS AMERICAN QUEEN STEAMBOAT COMPANY LLC, and AMERICAN QUEEN STEAMBOAT OPERATING COMPANY, LLC,

Defendants.

))))))))))))

C.A. No. 13-324-RGA

FOURTH AMENDED COMPLAINT

Plaintiff American Cruise Lines, Inc. (“Plaintiff” or “American Cruise Lines”)

files this Fourth Amended Complaint for breaches of contract, trademark infringement, deceptive

trade practices, violation of the anti-cybersquatting act, and unfair competition against

Defendants HMS American Queen Steamboat Company LLC (“Defendant HMS”) and

American Queen Steamboat Operating Company, LLC (“Defendant AQS”). In support of its

complaint, Plaintiff states as follows:

INTRODUCTION

1. The word “American” has been used for many years in association with

U.S. overnight passenger cruise ship services. “American” was used in the service mark

“American Cruise Lines” as early as 1974. Long ago “American” became “distinctive” in

association with overnight passenger cruise ship services through use of the service mark

“American Cruise Lines.”

2. Recently, in late 2011, Defendants started advertising and using the word

“American” in their business services in connection with their overnight passenger cruise ship

services. Since Defendants’ arrived in the market, two things have happened: (a) Defendants

Case 1:13-cv-00324-RGA Document 129 Filed 03/31/16 of 62 PageID #: 2435

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have intentionally traded off American Cruise Lines business and goodwill and are now

increasing their use of the word “American” to expand their trading off American Cruise Lines’

business and goodwill; and (2) the public is confused because of the likelihood of confusion

deliberately created by Defendants.

Plaintiff brings the following causes of action:

3. For Defendants’ breach of contract arising from (a) Defendants adoption

and use of the service mark AMERICAN QUEEN STEAMBOAT COMPANY in direct

competition with Plaintiff’s overnight passenger cruise ship services in violation of the

agreement to cease using “Great American Steamboat and derivatives thereof;” (b) Defendants’

adoption and use of, and depriving Plaintiff from using, certain internet domain names based on

Plaintiff’s marks -- THE GREAT AMERICAN STEAMBOAT CRUISE, GREAT AMERICAN

STEAMBOAT COMPANY, and AMERICAN STEAMBOAT COMPANY (“AMERICAN

STEAMBOAT” marks):

“greatamericansteamboatcompany.com,”

“greatamericansteamboatcompany.org,”

“greatamericansteamboatcompany.net,”

“greatamericansteamboatcompany.info,” and

“greatamericansteamboatcompany.biz;”

(c) Defendants’ failure to take action to disassociate their cruise service business from the

American Steamboat marks.

4. For Defendants’ trademark infringement of following Plaintiff’s registered

marks built around the word “American” that has become distinctive in association with

Plaintiff’s overnight passenger cruise ship services (a) AMERICAN CRUISE LINES,


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(b) AMERICAN STAR, AMERICAN GLORY, AMERICAN SPIRIT, and AMERICAN

EAGLE and (c) THE GREAT AMERICAN STEAMBOAT CRUISE. Defendants’ adoption and

use in commerce of the service mark “American Queen Steamboat Company,” and Defendants’

other uses of the word “American,” in direct competition with Plaintiff’s overnight passenger

cruise ship services is likely to cause confusion, mistake or deception, and further has caused

confusion mistake or deception as a result of such use by Defendants in violation of 15 U.S.C.

§ 1114(1). In addition, Defendants infringing use of the AMERICAN CRUISE LINES and

AMERICAN EAGLE marks as adwords or as a paid search terms in nationwide advertising and

promotion in commerce of overnight cruise services is likely to cause confusion, mistake or

deception, and further, is causing actual confusion, mistake or deception in advertising over the

internet.

5. For Defendants’ trademark infringement by using in commerce the

following Plaintiff’s registered marks -- the QUEEN OF THE WEST, QUEEN OF THE

MISSISSIPPI, and MISSISSIPPI QUEEN that are associated with Plaintiff’s overnight

passenger cruise ship services -- as adwords or as paid search terms in nationwide advertising

and promotion in commerce of overnight cruise services that is likely to cause confusion,

mistake or deception, and further, is causing actual confusion, mistake or deception in violation

of 15 U.S.C. § 1114(1).

6. For Defendants’ common law trademark infringement of unregistered

marks used by Plaintiff in the overnight passenger cruise ship services: AMERICA,

AMERICAN PRIDE, GREAT AMERICAN STEAMBOAT COMPANY, and AMERICAN

STEAMBOAT COMPANY. Defendants’ adoption and use of the service mark American Queen

Steamboat Company, and Defendants’ other uses of the word “American,” in direct competition


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with Plaintiff’s overnight passenger cruise ship services is likely to cause confusion, mistake or

deception, and further, has caused confusion, mistake or deception as a result of such use by

Defendants. In addition, Defendants use of the AMERICAN STEAMBOAT marks as adwords

or as paid search terms in nationwide advertising and promotion in commerce of overnight cruise

services is likely to cause confusion, mistake or deception, and further, is causing actual

confusion, mistake or deception.

7. For Defendants’ false and misleading designations of origin and

descriptions causing confusion, mistake, and/or deception as to the affiliation or association of

Defendant’s cruise services with Plaintiff’s overnight passenger cruise ship services using the

AMERICAN CRUISE LINES mark and Plaintiff’s family of AMERICAN marks. Defendants’

nationwide advertising and promotion misrepresents the nature, characteristics, and/or qualities

of Defendants’ services in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

8. For Defendants’ violation of the federal anti-cybersquatting law by

registering, trafficking in, and using domain names that are identical or substantially similar to

Plaintiff’s marks containing the word “American” that is distinctive in association with

American Cruise Lines and its overnight passenger cruise ship services.

9. For Defendants’ deceptive practices and unfair competition under

Delaware’ Uniform Deceptive Trade Practice Act.

10. For Defendants’ unfair competition under Delaware common law to the

extent Defendants’ conduct does not violate the Delaware’ Uniform Deceptive Trade Practice

Act and to the extent Delaware common law provides a remedy not available under the

Delaware’ Uniform Deceptive Trade Practice Act.


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JURISDICTION AND VENUE

11. This Court has subject matter jurisdiction over this action pursuant to

28 U.S.C. §§ 1331, 1338(a), and 1338(b).

12. This Court has jurisdiction over the related state law claims pursuant to

28 U.S.C. §§ 1338(b) and 1367(a).

13. On information and belief, Defendant HMS is subject to the personal

jurisdiction of this Court because it is organized under the laws of the State of Delaware.

14. On information and belief, Defendant AQS is subject to the personal

jurisdiction of this Court because it is organized under the laws of the State of Delaware.

15. Plaintiff and the Defendants in this suit also are subject to personal

jurisdiction in this Court by virtue of a Stipulation and Dismissal with Prejudice they filed in the

lawsuit styled as American Cruise Lines, Inc. v. HMS American Queen Steamboat Company LLC

et al., Civil Action No. 1:11-cv-00889-(JEI) (KW) (the “Prior Suit”), approved by this Court

February 22, 2012.

16. Venue is proper under 28 U.S.C. § 1391.

PARTIES

17. Plaintiff, American Cruise Lines, is the leading travel company

specializing in overnight passenger cruise services along the inland and coastal waterways and

rivers of the United States. American Cruise Lines is a corporation organized under the laws of

Delaware with a principal place of business at 741 Boston Post Road, Suite 200, Guilford,

Connecticut 06437.

18. American Cruise Lines offers cruises in the United States along more than

seventy-five (75) rivers in twenty-eight (28) states and on bays and other waterways in the

Eastern, Southeastern, and Northwest of the United States, including the coast and harbors of


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Alaska. In advertising and promoting its overnight passenger cruise ship services, Plaintiff uses

its AMERICAN CRUISE LINES mark and its family of AMERICAN marks. Plaintiff advertises

and promotes its overnight passenger cruise ship services using its family of AMERICAN marks

-- AMERICAN CRUISE LINES, AMERICAN STAR, AMERICAN GLORY, AMERICAN

SPIRIT, AMERICAN EAGLE, AMERICA, AMERICAN PRIDE, THE GREAT AMERICAN

STEAMBOAT CRUISE, GREAT AMERICAN STEAMBOAT COMPANY, AMERICAN

STEAMBOAT COMPANY (“AMERICAN” marks).

19. American Cruise Lines first began to operate cruises along America’s

rivers in April 2000, currently has eight (8) cruise ships, and plans to launch additional ships

over the next few years. American Cruise Line is senior in providing passenger cruise services in

the United States and in nationwide marketing and promotion of passenger cruise services.

20. Beginning at least as early as 1974 the name “American Cruise Lines” was

used nationwide in marketing and advertising to indicate a source of overnight passenger cruise

ship services on the Mississippi River System and elsewhere, including in association with

overnight passenger cruise ship services. This company used “American” and “America” in its

passenger cruise business. Plaintiff’s principal was a principal and the chief executive officer of

that company.

21. On information and belief, Defendant HMS is a limited liability company

organized under the laws of Delaware with a principal place of business at 115 E. Market Street,

New Albany, Indiana 47150.

22. On information and belief, Defendant AQS is a limited liability company

organized under the laws of Delaware with a principal place of business at 40 South Main Street,

21st Floor, Memphis, TN 38103.


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23. Defendants entered the passenger cruise services market in fall 2011. On

information and belief, Defendant AQS is owned by or affiliated with Defendant HMS. Prior to

changing its name pursuant to the Settlement Agreement (alleged and described in subsequent

paragraphs), Defendant AQS was named “Great American Steamboat Company, LLC.” On

information and belief, Defendant AQS licensed the “Great American Steamboat Company”

name from Defendant HMS. The two companies are believed now to do business together as the

“American Queen Steamboat Company.”

24. Defendants purported to purchase the previously registered mark

AMERICAN QUEEN from the bankruptcy estate of the mark’s former owner in 2011 and

thereafter purchased a 1995-built paddlewheel riverboat named “American Queen” from the

United States Maritime Administration (“MarAd”). In 2012 Defendants began operation of the

“American Queen” on the Mississippi River offering overnight passenger cruising.

25. Plaintiff, American Cruise Lines, operates two more recently built

paddlewheel riverboats on the Mississippi River offering overnight passenger cruising. Since

2012, Defendants have been direct competitors of American Cruise Lines in the overnight

passenger cruise ship services market in the United States.

26. In 2009 American Cruise Lines, began marketing, and in 2010 began

operating, cruises on a recently refurbished paddlewheel riverboat on the Columbia River and

Snake River offering overnight passenger cruising, and American Cruise Lines will operate a

second riverboat on the Columbia River and Snake River this year. Defendants on or about May

22, 2013, announced that they have purchased a second overnight passenger paddlewheel

riverboat named “Empress of the North” from MarAd and plan to refurbish and operate on the

Columbia River and the Snake River offering overnight passenger cruising between Portland,


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Oregon and Clarkson, Washington with the exact same ports of call as now used by Plaintiff.

Defendants have further announced that they plan to rename the “American Empress.”

Defendants have since purchased and refurbished the “Empress of the North,” changed its name

to “American Empress” and are offering overnight passenger cruising on the Columbia River

and Snake River at the exact same ports of call as Plaintiff. Defendants are marketing as direct

competitors of American Cruise Lines in the United States small ship overnight passenger

cruising market.

27. Both American Cruise Lines and Defendants market their overnight

passenger cruise ship services in the United States primarily by direct mail, in magazines, to and

through travel agents, and on the Internet, in the same channels of commerce and both offer

information and make reservations by telephone. American Cruise Lines and Defendants are the

principal participants and prominent in the channels of commerce in the markets in which they

compete and will compete.

FACTS COMMON TO ALL COUNTS

PLAINTIFF’S USE OF THE MARK “AMERICAN CRUISE LINES” AND “AMERICAN” MARKS TO INDICATE A SOURCE OF CRUISE SERVICES

28. Plaintiff’s principal organized a company in 1973 named “American

Cruise Lines, Inc.” That company began advertising and marketing nationwide overnight

passenger cruise ship services under the name “American Cruise Lines” beginning at least as

early as 1974 and soon thereafter began providing cruise services under that name. The first

cruise services by American Cruise Lines used the name “AMERICAN EAGLE.” The company

also advertised cruise services using the name “AMERICA.”


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29. In the 1970s and 1980s American Cruise Lines marketed and advertised

nationwide its company and cruise services, and operated ships on the Mississippi River System,

other river systems, and along the East Coast of the United States.

30. In November, 1988 the company then known as “American Cruise Lines”

filed a petition for bankruptcy. Soon thereafter, Plaintiff was organized as “American Lines Ltd.”

Approximately one month after the bankruptcy proceedings concluded, Plaintiff’s name was

changed to “American Cruise Lines, Inc.” At all times during the pendency of the bankruptcy

proceeding, Plaintiff’s principal intended to continue using the name “American Cruise Lines”

and names incorporating the term “American” and “America” in association with provision of

overnight passenger cruise ship services.

31. Plaintiff has continued to market and advertise nationwide overnight

passenger cruise ship services on the Mississippi River System, other river systems and the

coasts of the United States under the service mark AMERICAN CRUISE LINES and its family

of AMERICAN marks.

AMERICAN CRUISE LINES AND THE FAMILY OF AMERICAN MARKS

32. Since at least as early as 1999, American Cruise Lines has been

continuously using and developing the goodwill and prominence of its AMERICAN CRUISE

LINES mark in association with its family of AMERICAN marks in connection with overnight

passenger cruising on the inland and coastal waterways and rivers of the United States.

33. Defendants’ selection and use of the AMERICAN QUEEN and American

Queen Steamboat Company in direct competition with American Cruise Lines’ overnight

passenger cruising services in the United States was intentionally designed to confuse and

deceive the public. Defendants intend to deceive and cause the public associate the


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“AMERICAN QUEEN” and “American Queen Steamboat Company” marks with Plaintiff’

overnight passenger cruise ship services advertised and provided by Plaintiff American Cruise

Lines using the AMERICAN CRUISE LINES registered mark and the other AMERICAN

marks, even though there is no connection or affiliation.

34. Defendants’ selection and advertising of Defendants’ chosen new name of

“American Empress” for its paddlewheel riverboat “Empress of the North” is also intentionally

designed to confuse and deceive the public market into belief that the Defendants’ new boat has

a connection to or is affiliated Plaintiff American Cruise Lines overnight passenger cruise ship

services, the AMERICAN CRUISE LINES mark, and the Other AMERICAN marks, even

though there is no such connection or affiliation.

35. Defendants’ filing of trademark applications for the names “American

Countess” and “American Princess” in a recent effort to create a nearly identical family of marks

further demonstrates that Defendants are acting intentionally to confuse and deceive the public

market into belief that Defendants’ future cruise services will have a connection or affiliation

with Plaintiff American Cruise Lines’ overnight passenger cruise ship services. These actions

also demonstrate Defendants’ bad faith intent to misappropriate the goodwill developed by

American Cruise Lines through its AMERICAN CRUISE LINES mark and Other AMERICAN

marks.

36. Plaintiff American Cruise Lines has senior trademark rights in the

AMERICAN CRUISE LINES mark and its family of AMERICAN marks. As a result, Plaintiff

has priority relative to Defendants’ AMERICAN QUEEN and THE AMERICAN QUEEN

STEAMBOAT COMPANY marks and relative to any AMERICAN EMPRESS mark.


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37. American Cruise Lines invested millions of dollars in funding,

advertising, and promotion of its overnight passenger cruise ship services over many years.

Plaintiff has created wide recognition of American Cruise Lines and its AMERICAN family of

marks throughout the United States.

38. Defendants did not acquire valid trademark rights in the AMERICAN

QUEEN mark by assignment from the prior owner. The AMERICAN QUEEN mark registered

in 1996 (Registration Nos. 1,953,532 and 1,953,533) had been abandoned prior to use by

Defendants. Defendants are not entitled to priority based on the 1996 registration of the

AMERICAN QUEEN mark. The AMERICAN QUEEN mark was assigned to Defendants in

2011 without any associated goodwill. Defendants had no basis to claim acquired distinctiveness

in its application and prosecution of the THE AMERICAN QUEEN STEAMBOAT COMPANY

mark. Defendants own first use of the AMERICAN QUEEN in 2012 does not give priority over

Plaintiff’s use extending back to the 1970’s and at least back to 1999. Defendants’ are not

entitled to the 2013 registration of the mark THE AMERICAN QUEEN STEAMBOAT

COMPANY. The PTO improvidently and incorrectly granted registration of THE AMERICAN

QUEEN STEAMBOAT COMPANY name. Both registrations are invalid and should be

cancelled.

AMERICAN STEAMBOAT MARKS

39. Plaintiff owns the valid and legally protectable service mark THE GREAT

AMERICAN STEAMBOAT CRUISE, and Plaintiff has prior rights to the service marks

GREAT AMERICAN STEAMBOAT COMPANY and AMERICAN STEAMBOAT

COMPANY by virtue of its intent-to-use applications. Further, by virtue of the Settlement

Agreement, Defendants agreed to transfer and did transfer to American Cruise Lines any and all


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rights they had in the GREAT AMERICAN STEAMBOAT CRUISE, AMERICAN

STEAMBOAT COMPANY, and derivatives thereof. These marks are themselves derivative of

Plaintiff’s AMERICAN CRUISE LINES registered mark and Plaintiff’s family of AMERICAN

marks.

40. Since as early as March 25, 2011, American Cruise Lines has used THE

GREAT AMERICAN STEAMBOAT CRUISE mark in arranging, advertising, and promoting its

river cruises, and has a constructive first use date of March 1, 2011, for the service marks,

GREAT AMERICAN STEAMBOAT COMPANY and AMERICAN STEAMBOAT

COMPANY. These marks are a subset in the family of AMERICAN marks and are referred in

this Complaint as Plaintiff’s “AMERICAN STEAMBOAT marks.” Plaintiff marketed and

promoted its cruise services under Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY

mark after the expiration of the forbearance period, as per the Settlement Agreement.

Defendants’ intentionally adopted without Plaintiff’s permission the confusingly similar service

mark “American Queen Steamboat Company” to benefit from and to trade on Plaintiff’s

goodwill in its AMERICAN STEAMBOAT marks.

41. Defendants, without American Cruise Lines’ permission, incorporated

Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark into various domain names

that are identical or confusingly similar with Plaintiff’s marks, and then registered these domain

names with domain name registrars. Each of these marks contains the word “American” that has

become and is “distinctive” in association with Plaintiff’s overnight passenger cruise ship

services through use of the service mark “American Cruise Lines.” Defendants have offered for

sale a domain name incorporating Plaintiff’s identical or confusingly similar marks. Defendants

have used and may still be using Plaintiff’s marks in Defendants’ domain names to direct


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interstate commerce to Defendants’ website and away from American Cruise Lines, thereby

substantially benefitting Defendants and causing great damage and detriment to American Cruise

Lines. Defendants’ actions with respect to these domain names were taken in bad faith with the

intent to profit from the use of Plaintiff’s marks.

42. Defendants, without American Cruise Lines’ permission, also refused to

disassociate their business telephone number in “411” telephone directory assistance systems

with Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark as they agreed to do,

thereby substantially benefitting Defendants and causing great damage and detriment to

American Cruise Lines.

43. Defendants, without American Cruise Lines’ permission, incorporated

Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark into various domain names

and registered various domain names, and is offering a domain name incorporating Plaintiff’s

GREAT AMERICAN STEAMBOAT COMPANY mark for sale and is using the name GREAT

AMERICAN STEAMBOAT COMPANY, the Plaintiff’s mark, to direct interstate commerce to

Defendants’ website and away from American Cruise Lines.

44. Defendants’ use of the service mark “American Queen Steamboat

Company” and domain name “greatamericansteamboatcompany.com” is creating and is likely to

create confusion or mistake, or to deceive consumers in this judicial district and elsewhere as to

the origin, affiliation, connection, or association of Defendants’ services with Plaintiff’s

AMERICAN CRUISE LINES mark and AMERICAN STEAMBOAT marks.

45. Plaintiff has no control over the quality of services that will be offered by

Defendants under the name and Domain Name confusingly similar to Plaintiff’s marks. Plaintiff

believes, and therefore alleges, that the quality of service offered aboard Defendants’ passenger


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cruise riverboat is substantially inferior to that provided by Plaintiff American Cruise Lines

overnight passenger cruise ship services. As a result, the goodwill associated with the Plaintiff’s

AMERICAN Marks, including the GREAT AMERICAN STEAMBOAT COMPANY mark and

derivatives thereof, has been and is being tarnished by Defendants’ unlawful and improper use of

the GREAT AMERICAN STEAMBOAT marks and derivatives thereof, including in the

Domain Name and other domain names.

PLAINTIFF’S AMERICAN MARKS

46. Plaintiff American Cruise Lines advertised and promoted its overnight

passenger cruise ship services for many years using its family of AMERICAN marks that include

the following federally registered marks: (a) AMERICAN CRUISE LINES, Registration No.

3,019,486, issued November 29, 2005 on the Principal Register in Class 39 (the ‘486

Registration); this mark has distinctive status on the Principal Register pursuant to 15 U.S.C.

1052(f); (b) AMERICAN GLORY, Registration No. 2,908,064 issued December 7, 2004 on the

Principal Register in Class 39 (the ‘064 Registration); (c) AMERICAN SPIRIT, Registration No.

2,987,886 issued August 23, 2005 on the Principal Register in Class 39 (the ‘886 Registration);

(d) AMERICAN STAR, Registration No. 3,409,555 issued April 8, 2008 on the Principal

Register in Class 39 (the ‘555 Registration); and (e) AMERICAN EAGLE, Registration No.

4,777,732 issued July 21, 2015 on the Principal Register in Class 39 (the ‘732 Registration).

47. A copy of the ‘486 Registration is attached hereto as Exhibit A; copy of

the ‘064 Registration is attached hereto as Exhibit B; a copy of the ‘886 Registration is attached

hereto as Exhibit C, a copy of the ‘555 Registration is attached hereto as Exhibit D; a copy of

the ‘732 Registration is attached hereto as Exhibit E.

48. American Cruise Lines has built a national marketing program through the

expenditure of tens of millions of dollars around its family of AMERICAN marks. The


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AMERICAN EAGLE mark was first used in interstate commerce by American Cruise Lines in

1999. American Cruise Lines continuously used the AMERICAN EAGLE mark in interstate

commerce in connection with overnight passenger cruising on inland and coastal waterways and

rivers of the United States for about a dozen years until the “AMERICAN EAGLE” was no

longer marketed. The AMERICAN EAGLE mark is distinctive, and Plaintiff expended

substantial sums of money over the course of those years promoting goodwill under the

AMERICAN EAGLE mark and confirming the distinctive and secondary meaning of

“American” as a source of overnight passenger cruise ship services provided by American Cruise

Lines. In 2014, Plaintiff renewed use of “AMERICAN EAGLE” and continues to develop

goodwill in the mark. The AMERICAN EAGLE mark is a valuable and protectable mark with

associated goodwill; it is an asset used associate and distinguish American Cruise Lines services

from those provided by others.

49. The AMERICAN CRUISE LINES service mark (the ‘486 Registration)

has been continuously in use since at least as early as 1999 by Plaintiff American Cruise Lines in

interstate commerce in connection with overnight passenger cruise ship services associated with

the AMERICAN marks and related marks on inland and coastal waterways and rivers of the

United States and is currently in use. American Cruise Lines has used and is using its

AMERICAN CRUISE LINES mark in combination with its registered AMERICAN marks and

related marks to identify and distinguish its overnight passenger cruise ships from services

provided by others and to indicate the source of those services. Pursuant to §15 of the Lanham

Act, 15 U.S.C. §1065, the ‘486 Registration became incontestable as of March 9, 2011. The

‘486 Registration did not grant exclusive rights to the words “cruise lines,” but it does grant

exclusive rights to the word “American” to Plaintiff in overnight passenger cruise ship services.


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The AMERICAN CRUISE LINES mark is a valuable and protectable mark with associated

goodwill; it is an asset used associate and distinguish American Cruise Lines services from those

provided by others.

50. The AMERICAN GLORY service mark (the ‘064 Registration) has been

continuously in use since at least as early as 1999 by American Cruise Lines in interstate

commerce in connection with overnight passenger cruise ship services. Pursuant to §15 of the

Lanham Act, 15 U.S.C. §1065, the ‘064 Registration became incontestable as of March 11, 2011.

The AMERICAN GLORY mark is a valuable and protectable mark with associated goodwill; it

is an asset used associate and distinguish American Cruise Lines services from those provided by

others.

51. The AMERICAN SPIRIT service mark (the ‘886 Registration) has been

continuously in use since at least as early as May, 2005 by American Cruise Lines in interstate


Lanham Act, 15 U.S.C. §1065, the ‘886 Registration became incontestable as of March 11, 2011.

The AMERICAN SPIRIT mark is a valuable and protectable mark with associated goodwill; it is

an asset used associate and distinguish American Cruise Lines services from those provided by

others.

52. The AMERICAN STAR service mark (the ‘555 Registration) has been

continuously in use since at least as early as June, 2007 by American Cruise Lines in interstate


Lanham Act, 15 U.S.C. §1065, the ‘555 Registration became incontestable as of June 14, 2013.

The AMERICAN STAR mark is a valuable and protectable mark with associated goodwill; it is


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an asset used associate and distinguish American Cruise Lines services from those provided by

others.

53. The AMERICAN PRIDE service mark (application pending on Serial

Number 86763248) has been continuously in use since at least as early as October 2015 by

American Cruise Lines in interstate commerce in connection with overnight passenger cruise

ship services. The AMERICAN PRIDE mark is a valuable and protectable mark with associated

goodwill; it is an asset used associate and distinguish American Cruise Lines services from those

provided by others.

54. The AMERICA service mark (application pending on Serial Number

86367655) has been continuously in use since at least as early as July 2015 by American Cruise

Lines in interstate commerce in connection with overnight passenger cruise ship services. The

AMERICA mark is a valuable and protectable mark with associated goodwill; it is an asset used

associate and distinguish American Cruise Lines services from those provided by others.

55. American Cruise Lines has also long advertised and promoted its

overnight passenger cruise ship services with (a) its federally registered service mark

INDEPENDENCE (Registration No. 3506365 issued September 23, 2008 on the Principal

Register in Class 39 (the ‘365 Registration); (b) its federally registered service mark QUEEN OF

THE WEST (Registration No. 3895030 issued December 21, 2010 on the Principal Register in

Class 39 (the ‘030 Registration), which is licensed by Plaintiff from a related entity that owns the

mark; (c) its federally registered service mark QUEEN OF THE MISSISSIPPI (Registration No.

4283450 issued January 29, 2013 on the Principal Register in Class 39 (the ‘450 Registration).

56. The INDEPENDENCE service mark (the ‘365 Registration) has been

continuously in use since at least as early as June 2007 by American Cruise Lines in interstate


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commerce in connection with overnight passenger cruise ship services. The INDEPENDENCE

mark is a valuable and protectable mark with associated goodwill; it is an asset used associate

and distinguish American Cruise Lines services from those provided by others.

57. The QUEEN OF THE WEST service mark (the ‘030 Registration) has

been continuously in use since at least as early as August 2010 by American Cruise Lines in

interstate commerce in connection with overnight passenger cruise ship services. The QUEEN

OF THE WEST mark is a valuable and protectable mark with associated goodwill; it is an asset

used associate and distinguish American Cruise Lines services from those provided by others.

58. The QUEEN OF THE MISSISSIPPI service mark (the ‘450 Registration)

has been continuously in use since at least as early as August 2012 by American Cruise Lines in

interstate commerce in connection with overnight cruise services. The QUEEN OF THE

MISSISSIPPI mark is a valuable and protectable mark with associated goodwill; it is an asset

used associate and distinguish American Cruise Lines services from those provided by others.

59. A copy of the ‘365 Registration is attached hereto as Exhibit F; a copy of

the ‘030 Registration is attached hereto as Exhibit G; a copy of the ‘450 Registration is attached

hereto as Exhibit H.

60. American Cruise Lines has become, upon information and belief, well

recognized in the United States for its overnight passenger cruise ship services and as the

primary source in the industry for overnight passenger cruise ship services in this country. In the

course of this growth, Plaintiff has extensively promoted its AMERICAN CRUISE LINES mark

and its family of AMERICAN marks as high quality overnight passenger cruise ship services.

Plaintiff’s AMERICAN CRUISE LINES mark and its family of AMERICAN marks have


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achieved widespread public recognition throughout the United States in connection with

American Cruise Lines’ overnight passenger cruise ship services.

61. Families of marks are common in the cruise industry, particularly in

association with the names of ships, to designate a single source of cruise services. Norwegian

Cruise Lines uses the term “Norwegian” to designate the services it offers on each of its ships,

including the “Norwegian Epic,” ‘Norwegian Sky,” “and “Norwegian Jewel,” for instance.

Royal Caribbean Lines uses “Of the Seas” for the same purpose with respect to services aboard

its “Oasis of the Seas,” “Allure of the Seas,” “Voyager of the Seas,” and “Quantum of the Seas.”

Other cruise lines also build a family of marks, just as American Cruise Lines has done with its

family of AMERICAN marks, in order to use the common elements in the marks to identify and

distinguish their overnight passenger cruise ship services from services provided by others and to

indicate the source of those services.

AMERICAN CRUISE LINES’ AMERICAN STEAMBOAT MARKS

62. American Cruise Lines also has advertised and marketed nationwide its

overnight passenger cruise ship services with two AMERICAN STEAMBOAT marks:

(a) federally registered service mark THE GREAT AMERICAN STEAMBOAT CRUISE

(Registration No. 4130763 issued April 24, 2012 on the Principal Register in Class 39 (the ‘763

Registration), and (b) the service mark GREAT AMERICAN STEAMBOAT COMPANY

(application pending Serial No. 85254474, Notice of Allowance issued September 17, 2013, in

Class 39). A copy of the ‘763 Registration is attached hereto as Exhibit I

63. THE GREAT AMERICAN STEAMBOAT CRUISE service mark (the

‘763 Registration) has been continuously in use since at least as early as March 25, 2011,by

American Cruise Lines in interstate commerce in connection with overnight cruise services. THE


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GREAT AMERICAN STEAMBOAT CRUISE mark is a valuable and protectable mark with

associated goodwill; it is an asset used associate and distinguish American Cruise Lines services

from those provided by others.

64. Plaintiff American Cruise Lines has used since at least as early as

February 25, 2013, the GREAT AMERICAN STEAMBOAT COMPANY mark in commerce on

promotional and advertising of overnight passenger cruise ship services. The GREAT

AMERICAN STEAMBOAT COMPANY mark is a valuable and protectable mark with

associated goodwill; it is an asset used to associate and distinguish American Cruise Lines

services from those provided by others.

65. On March 1, 2011, American Cruise Lines filed an intent to use

application with the PTO for the service mark AMERICAN STEAMBOAT COMPANY

(application pending, Serial No. 85254464 for use in Class 39).

DEFENDANTS’ ARRIVAL ON THE MISSISSIPPI RIVER AND USE OF AMERICAN QUEEN

66. The “American Queen” ship was originally constructed by the Delta

Queen Steamboat Company and was operated under a royalty theme as part of a “Queen” family

of marks. The names used by the Delta Queen Steamboat Company were the “Delta Queen,”

“Mississippi Queen,” “Columbia Queen,” and “American Queen.”

67. The Delta Queen Steamboat Company used the name “American Queen”

exclusively to identify a ship, not a provider of cruise services. The word “American” never

became distinctive in association with the cruise services offered by Delta Queen Steamboat

Company and its fleet of “Queen” named vessels.

68. The “AMERICAN QUEEN mark” refers, collectively, to five registrations

issued in 1996 which include the words “American Queen” used in connection with five


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different classes of goods and services, as follows: (a) U.S. Service Mark Registration

No. 1,953,532, registered in connection with “transporting passengers and goods by steamers” in

International Class 39; (b) U.S. Service Mark Registration No. 1,953,533, registered in

connection with “hotel, restaurant and bar services provided onboard a riverboat” in International

Class 42; (c) U.S. Trademark Registration No. 1,951,681, registered in connection with “shirts,

T-shirts, hats and sweaters” in International Class 25; (d) U.S. Trademark Registration

No. 1,953,534, registered in connection with “glassware; namely, cups, mugs, drinking glasses

and serving trays” in International Class 21; and (e) U.S. Trademark Registration No. 1,960,672,

registered in connection with “jewelry” in International Class 14.

69. On information and belief, in 2006 the AMERICAN QUEEN mark was

registered in the name of Ambassadors Cruise Group, LLC, a subsidiary of Ambassadors

International, Inc., an international cruise and related services company. On information and

belief, the mark was then used in connection with the paddlewheel riverboat “American Queen,”

which, beginning in 2006, was owned by AQ Boat LLC, another subsidiary of Ambassadors

International, Inc. (“Ambassadors”).

70. On information and belief, in or about March 2008 Ambassadors

announced its intention to discontinue providing passenger cruise services, including the

“AMERICAN QUEEN,” and discontinued marketing cruises on the “AMERICAN QUEEN.”

71. On information and belief, in or about March 2008 AQ Boat LLC notified

the United States Maritime Administration (“MarAd”) that it intended to abridge its Fall/Winter

2008 sailing schedule, would not make its payments due on obligations to MarAd, and would

surrender the ship “American Queen” to MarAd in the Fall of 2008.


22

72. AQ Boat LLC surrendered “American Queen” to MarAd on

November 15, 2008. In January of 2009 “American Queen” was taken for safe keeping and lay-

up in Beaumont, TX, where it was arrested by MarAd in a federal court mortgage foreclosure

proceeding. MarAd purchased the “American Queen” on August 4, 2009 in a U.S. Marshal’s sale

in the federal court foreclosure.

73. On information and belief, Ambassadors International, Inc. and its

subsidiaries, including AQ Boat LLC, ceased use of the name “American Queen” as a trademark

before the ship was surrendered to MarAd in November, 2008.

74. Meanwhile, before and during the time the name “American Queen” was

not in use as a trademark, Plaintiff American Cruise Lines invested tens of millions of dollars

advertising and promoting nationally its family of AMERICAN marks, AMERICAN CRUISE

LINES mark associated with overnight passenger cruise ship services.

75. In 2009, when an affiliate of Plaintiff purchased the paddlewheel riverboat

“Queen of the West” from a subsidiary of Ambassadors International, Inc., Plaintiff’s affiliate

also received assignment of the QUEEN OF THE WEST mark, associated goodwill, and the

customer lists and other passenger mailing lists and past passengers inquiries held by

Ambassadors International, Inc. subsidiaries, including passengers on “Queen of the West,”

“Columbia Queen,” “Empress of the North,” “Delta Queen,” “Mississippi Queen,” and

“American Queen” cruises.

76. On February 25, 2011, while MarAd still owned the “American Queen”

and Plaintiff’s affiliate still owned the referenced customer lists, on information and belief,

Defendant HMS and Ambassadors Cruise Group, LLC entered into an agreement for

Defendant’s purchase of certain valuable passenger reservation and booking software, certain


23

creative works, and purportedly, the AMERICAN QUEEN mark and another mark. In the

agreement, Ambassadors Cruise Group, LLC, expressly disclaimed “title and validity” to the

marks purportedly assigned. The agreement recites the sum of only $15,000 paid by Defendant

HMS as consideration.

77. Defendants’ acquisition by assignment of the abandoned mark

AMERICAN QUEEN without associated goodwill did not transfer any valid use rights to

Defendants. Because of this and other facts, Defendants acquired no priority of use from this

transaction.

78. On April 1, 2011, about one month after the date of the assignment

agreement, Ambassadors International, Inc. and its subsidiaries, including Ambassadors Cruise

Group, LLC, filed for protection in bankruptcy.

79. On April 26, 2011, Defendant HMS filed a service mark application with

the United States Patent and Trademark Office (the “PTO”), U.S. Application Serial No.

85305162, for THE AMERICAN QUEEN STEAMBOAT COMPANY mark for use in Classes

39 and 43. Defendant HMS alleged first use of the mark on June 20, 2012. The AMERICAN

QUEEN mark had been abandoned in 2008, and even before abandonment the mark was

associated with a royalty-themed family of “Queen” marks, not with the word “American.”

Defendant HMS claimed that the word “American” had acquired distinctiveness based on two

prior registrations for the mark AMERICAN QUEEN, U.S. Service Mark “AMERICAN

QUEEN” registrations (Nos. 1,953,532 and 1,953,533). The AMERICAN QUEEN marks were

not distinctive because of the word “American,” as Defendants wrongly claimed; instead, the

AMERICAN QUEEN mark was a royalty-themed mark in a family of “QUEEN” marks. The

PTO improvidently granted registration on February 5, 2013 (Registration No. 4,286,568).


24

Defendants did nothing to cause the word “American” to become distinctive in association with

overnight passenger cruise ship services. A claim of distinctiveness regarding the word

“American” could legitimately be based only on the distinctiveness of the word “American” in

overnight passenger cruise ship services, the distinctiveness resulted only because of Plaintiff’s

persistent and long-term investment in advertising, promotion, and providing of such services to

the public for many years. Defendants have hijacked the word “American” in order to trade off

American Cruise Lines’ business and goodwill in the AMERICAN CRUISE LINES mark and in

its family of AMERICAN marks. Registration No. 4286568 should be cancelled.

80. On about July 28, 2011, Defendant HMS purchased the “American

Queen” from MarAd. On information and belief, Defendants did not begin to operate the

riverboat “American Queen” until 2012, however, and only began to use the AMERICAN

QUEEN mark in connection with those operations.

81. American Cruise Lines is the leader in the small ship overnight passenger

cruising market and is well respected in the industry having won many awards relating to its

exceptional cruise services. Based on Plaintiff’s stellar reputation in the industry and

longstanding relationships with many consumers, it is reasonably probable that American Cruise

Lines would continue to receive repeat business from its customers. Historically, many

consumers who have experienced American Cruise Lines services have purchased tickets for

passage on one or more additional cruises.

82. Defendants have adopted and use as their own Plaintiff’s service marks in

Defendants’ Sponsored Link Ads Internet marketing program and have adopted and use marks

confusingly similar to Plaintiff’s marks in other forms of advertisements to indicate that

Defendants are Plaintiff and/or are affiliated with Plaintiff in order to benefit from Plaintiff’s


25

goodwill and to appropriate Plaintiff’s customers. On information and belief, Defendants use

Plaintiff’s service marks and confusingly similar marks in their advertisements to initiate contact

with Plaintiff’s customers in order to lure them away from Plaintiff and to cajole and/or coerce

them into buying Defendants’ cruise services.

83. On information and belief, Defendants use of Plaintiff’s service marks in

their Sponsored Link Ads and use of confusingly similar marks in other forms of advertisements

have resulted in Plaintiff’s past passengers not booking an additional cruise with Plaintiff and

instead, booking a cruise with Defendants. Defendants’ intentional acts have also resulted in

Plaintiff’s loss of prospective customers who booked a cruise with Defendants after searching

the Internet using Plaintiff’s service marks that Defendants have adopted and use in their

Sponsored Link Ads program. Plaintiff generates a substantial amount of business through the

Internet. Consumers searching the Internet using Plaintiff’s service marks create reasonable

prospects of future business for Plaintiff, of which Defendants are depriving Plaintiff.

84. Defendants’ adoption and use of the AMERICAN QUEEN mark and THE

AMERICAN QUEEN STEAMBOAT COMPANY mark in connection with overnight passenger

cruise ship services in the United States has caused likelihood of public confusion, mistake, and

deception and actual confusion, mistake, and deception. Defendants use of “American” in its

advertising and promotion suggests that Defendants offer cruise services that originate from or

are associated with the same source as the cruise services provided by American Cruise Lines

under its family of AMERICAN marks, including the AMERICAN CRUISE LINES mark.

85. American Cruise Lines has senior common law and registered trademark

rights in its AMERICAN CRUISE LINES mark and its family of AMERICAN marks in

association with overnight passenger cruise ship services. Plaintiff has priority relative to


26

Defendants’ AMERICAN QUEEN mark because the AMERICAN QUEEN mark was

abandoned as a trademark prior to its use by Defendants. Ambassadors International, Inc. and its

subsidiaries had totally ceased use of the AMERICAN QUEEN mark for an extended period of

time and intended not to resume use of the mark. In April 2008 Ambassadors Cruise Group, LLC

announced its intention to abridge its 2008 sailing season, in November 2008 it surrendered the

“American Queen” to MarAd, and in 2009 it sold the “American Queen” customer and other

mailing lists to Plaintiff’s affiliate. On information and belief, Defendants first began advertising

“American Queen” cruises in the fall 2011 under brand name “The Great American Steamboat

Company – almost three and a half years after the AMERICAN QUEEN mark had been last used

by Ambassadors Cruise Group, LLC.

86. American Cruise Lines also has senior common law and registered

trademark rights in its AMERICAN CRUISE LINES mark and its family of AMERICAN marks

in association with overnight passenger cruise ship services because the purported assignment of

the AMERICAN QUEEN mark to Defendant HMS was in fact devoid of associated goodwill; it

was an “assignment in gross,” and conveyed no trademark rights to Defendants. Ambassadors

International, Inc. and its subsidiaries had no business or goodwill associated with the mark in

2011 because in 2008 Ambassadors International, Inc. stopped the sailing season, surrender the

AMERICAN QUEEN to MarAd, and sold the AMERICAN QUEEN customer and mailing lists.

The AMERICAN QUEEN mark had no value when assigned in February 2011. Ambassadors

International, Inc. and its subsidiaries did not have a “live” AMERICAN QUEEN mark to sell or

transfer. The purported assignment itself included the transfer of other assets that represented the

value that was transferred for the consideration paid. Ambassadors International, Inc. expressly


27

disclaimed both title to, and the validity of, the marks purportedly assigned. The 2011

assignment on which Defendants rely is not effective.

87. Defendants never created a family of American marks based on the

AMERICAN QUEEN mark. It was not until 2013, a year or more after the February 2012

settlement with Plaintiff, that Defendants changed the name of the “Empress of the North” to

“American Empress.” Also, it was in 2014 when Defendants filed applications to register the

names “American Countess” and “American Princess,” which is recent and late compared to

Plaintiff long-term used of the AMERICAN CCRUISE LINES mark and other AMERICAN

marks.

88. With respect to Defendants’ AMERICAN QUEEN STEAMBOAT

COMPANY mark, Plaintiff also has senior common law and registered trademark rights and

priority in its AMERICAN CRUISE LINES mark and its family of AMERICAN marks used in

association with overnight passenger cruise ship services.

89. Defendants initiated their use of AMERICAN QUEEN and THE

AMERICAN QUEEN STEAMBOAT COMPANY in bad faith, intending to deceive and cause

confusion with American Cruise Lines’ directly competitive cruise services, knowing that would

result in customers and revenue for Defendants. Defendants have unlawfully capitalized on the

enormous goodwill and prominence of American Cruise Lines’ overnight passenger cruise ship

services. As a result, American Cruise Lines has lost goodwill, business, and significant profits it

otherwise would have earned from its paddlewheel riverboat and other overnight passenger

cruise ship services.


28

FIRST LAWSUIT AND SETTLEMENT THEREOF WHEREBY DEFENDANTS SURRENDERED THE “RIGHTS” TO AMERICAN CRUISE LINES

90. On September 30, 2011, American Cruise Lines filed the Prior Suit in this

Court against Defendant HMS and Defendant AQS (then named “Great American Steamboat

Company LLC”) for trademark infringement of American Cruise Lines’ GREAT AMERICAN

STEAMBOAT service marks arising from, inter alia, Defendants’ use of the name “Great

American Steamboat Company.” Great American Steamboat Company is a derivative of the

AMERICAN CRUISE LINES mark and Plaintiff’s family of AMERICAN marks.

91. Plaintiff’s complaint filed in the Prior Suit (the “Prior Complaint”) alleged

in part that:

a. American Cruise Lines owns rights in the service mark THE

GREAT AMERICAN STEAMBOAT CRUISE for use in connection with cruise services, that

on March 30, 2011, American Cruise Lines filed a service mark application with the PTO for the

use of the mark in connection with arranging and organizing of cruises, that since at least as early

as March 25, 2011, American Cruise Lines had been using that mark in commerce in the United

States;

b. American Cruise Lines owns prospective rights to, and on

March 1, 2011, filed with the PTO applications for, the service marks GREAT AMERICAN

STEAMBOAT COMPANY and AMERICAN STEAMBOAT COMPANY for use in connection

with “cruise ship services, transportation of passengers by ship; and arranging and conducting

cruises for others;”

c. On May 2, 2011, Defendant HMS filed a service mark application

with the PTO on an intent-to-use basis for the mark THE GREAT AMERICAN STEAMBOAT

COMPANY in connection with “transporting goods and services by riverboat; hotel, restaurant


29

and bar services provided onboard riverboats, U.S. Application Serial No. 85,309,538. On

August 4, 2011, the PTO issued an Office Action, citing Plaintiff’s pending GREAT

AMERICAN STEAMBOAT service mark applications against Defendants’ U.S. Application

Serial No. 85,309,538, stating that “Applicant’s mark may [in the future] be refused registration .

. . because of a likelihood of confusion.”

d. Defendants’ use of the GREAT AMERICAN STEAMBOAT

COMPANY name is likely to cause, and is causing, confusion or mistake as to the origin, source,

sponsorship, or affiliation of Defendants’ future services; and

e. Defendants’ use of the GREAT AMERICAN STEAMBOAT

COMPANY name (i) constitutes trademark infringement, false association and unfair

competition pursuant to 15 U.S.C. § 1125 (a); (ii) violates the Delaware Uniform Deceptive

Trade Practices Act; and (iii) constitutes unfair competition under common law.

92. On November 7, 2011, Defendants filed their Answer to Complaint,

Affirmative Defenses and Counterclaim (the “Counterclaim”) alleging, inter alia, in relevant part

that American Cruise Lines infringed Defendants’ trademark because on or about July 4, 2010,

Defendant HMS’s predecessor in interest registered the domain name

“www.greatamericansteamboatcompany.com” (the “Domain Name”).

93. Defendants further alleged that they had operated and advertised

extensively using the GREAT AMERICAN STEAMBOAT COMPANY mark and that the mark

had acquired significant value and substantial goodwill.

94. Defendants’ prayers for relief in their Counterclaim requested, inter alia,

in relevant part that American Cruise Lines be enjoined from using the GREAT AMERICAN


30

STEAMBOAT COMPANY mark, or any colorable imitation, inter alia, as an internet domain

name.

95. Based on the allegations in both the Prior Complaint and Counterclaim,

use of the GREAT AMERICAN STEAMBOAT COMPANY mark, including its use as a

domain name, indicating a source of services with associated goodwill, was squarely at issue in

the Prior Suit as a matter in controversy between American Cruise Lines and Defendants.

Further, Defendants were on notice that Plaintiff had exclusive rights to the word “American” in

the passenger cruise ship services.

96. In due course, on February 9, 2012, the parties settled the Prior Suit and

their dispute concerning the use of the GREAT AMERICAN STEAMBOAT Marks, including

the GREAT AMERICAN STEAMBOAT COMPANY mark, as memorialized by that certain

Settlement and Compromise Agreement, January 31, 2012 (the “Settlement Agreement”). A

copy of the Settlement Agreement is attached as Exhibit J. Drafted by Defendants, among other

things the Settlement Agreement called for Defendants to surrender the “Rights.” The “Rights”

are defined in the Settlement Agreement as “the rights to the GREAT AMERICAN

STEAMBOAT trademarks and derivatives thereof.”

97. Defendants drafted the Settlement Agreement and presented it to

American Cruise Lines to settle the Prior Suit and the matters in controversy in it, requesting that

American Cruise Lines select one of two options to address the ownership and use of the

GREAT AMERICAN STEAMBOAT trademarks and derivatives. In summary, under the

Settlement Agreement presented by Defendants, “Option A” would require American Cruise

Lines to surrender its “Rights” to Defendants in exchange for a fee to be paid by Defendants


31

whereas “Option B” would require Defendants to surrender their “Rights” to American Cruise

Lines in exchange for a fee to be paid by American Cruise Lines.

98. American Cruise Lines entered into the Settlement Agreement with

Defendants by selecting “Option B” requiring Defendants to surrender and cease use of their

“rights to the GREAT AMERICAN STEAMBOAT trademarks and derivatives thereof,” in

exchange for payment of a fee. The “GREAT AMERICAN STEAMBOAT trademarks” are

themselves derivatives of Plaintiff’s AMERICAN CRUISE LINES mark and Plaintiff’s other

AMERICAN marks.

99. The Settlement Agreement specifies the parties’ obligations under Option

B in relevant part as:

Option B. ACL shall pay the Rights Fee to HMS in exchange for HMS surrendering its Rights. Additionally, within 30 days of the Acceptance Date, HMS will voluntarily withdraw any pending trademark applications concerning the Rights and shall change the name of its Delaware limited liability company [i.e., “Great American Steamboat Company LLC”]. If ACL selects Option B., it shall forbear from the use of any trade names or trademarks concerning the Rights for a period of one year from the Acceptance Date; and, HMS will, in a forthright but non-disruptive manner, cease to use the Rights and fully complete that process in not more than 270 days of the Acceptance Date and shall not use the Rights in the future.

The “Rights Fee” shall be One Hundred Twenty Five Thousand Dollars ($125,000.00) and shall be payable within 180 days of the Acceptance Date.

The “Acceptance Date” is defined as the 9th day of February, 2012, the date American Cruise

Lines signed the Settlement Agreement.

100. American Cruise Lines has fully performed all its obligations under the

Settlement Agreement. On July 27, 2012, American Cruise Lines made timely payment to

Defendants of the Rights Fee of $125,000.00, which was acknowledged. American Cruise Lines


32

has refrained from using the GREAT AMERICAN STEAMBOAT name and derivatives thereof,

including trade names and domain names, for a period of one year from the Acceptance Date

(i.e. to February 9, 2013). At no time has American Cruise Lines failed to fully comply with all

terms of the Settlement Agreement.

101. The effect of the Settlement Agreement was to create a “gap” or “cooling

off” period from November 5, 2012 until February 9, 2013 during which neither party was

entitled to use the GREAT AMERICAN STEAMBOAT trademarks and derivatives thereof.

The Settlement Agreement was made February 9, 2012, and Defendants agreed to “surrender”

the Rights and in a “forthright” manner to “cease to use the Rights” and “fully complete that

process in not more than 270 days” thereafter, or by November 5, 2012. American Cruise Lines

agreed to forbear from using any trade names or trademarks concerning the Rights until

February 9, 2013.

102. During the “gap” or “cooling off” period from November 5, 2012 until

February 9, 2013, it was intended that the GREAT AMERICAN STEAMBOAT trademarks and

derivatives would not be associated with either Defendants or Plaintiff and that prospective

customers conducting searches on the Internet and making inquiry to “411” telephone directory

assistance systems using the GREAT AMERICAN STEAMBOAT trademarks and derivatives,

including domain names, would be directed to no website and connected to no business. Neither

the Domain Name, nor any other domain names using the Rights, would be pointed to

Defendants’ website.

103. As a result of the Settlement Agreement, after February 9, 2013, American

Cruise Lines, as owner, is clearly entitled to all ownership and full use of the GREAT

AMERICAN STEAMBOAT Company name and derivatives thereof. This included all the


33

AMERICAN STEAMBOAT marks and domain names, including the Domain Name which was

in controversy in the Prior Lawsuit.

104. Defendants did change the name of “Great American Steamboat Company

LLC” to “American Queen Steamboat Operating Company, LLC,” which continued Defendants’

use of the word “American,” did not end the confusion, and was contrary to the terms of the

Settlement Agreement. . Defendants did not cease using the GREAT AMERICAN

STEAMBOAT name derivatives, or domain names using the Rights, including the service mark

“American Queen Steamboat Company” and the Domain Name, and have not completely

surrendered the Rights. Despite demand Defendants have not ceased using the Rights, including

Defendants specific refusal to “fully complete the process” by “surrendering” the Domain Name

incorporating the GREAT AMERICAN STEAMBOAT COMPANY mark to American Cruise

Lines as Defendants promised and agreed to do.

DEFENDANTS’ BREACH OF THE SETTLEMENT AGREEMENT, THE LIKELIHOOD OF

CONFUSION, AND CONTINUING CONFUSION CAUSED BY DEFENDANTS’ CONDUCT

105. Defendants agreed to cease using and to surrender to Plaintiff the GREAT

AMERICAN STEAMBOAT trademarks and derivatives. Approximately five months after the

Settlement Acceptance Date, however, Defendants, without Plaintiff’s permission, began to

advertise cruise services in direct competition to Plaintiff under the name “American Queen

Steamboat Company,” a derivative of Plaintiff’s registered marks AMERICAN CRUISE LINES

and GREAT AMERICAN STEAMBOAT CRUISE. Defendants intentionally chose a

confusingly similar service mark to trade off and to benefit from Plaintiff’s goodwill developed

over the years by Plaintiff’s nationwide advertising and promotion of overnight passenger cruise

ship services using the AMERICAN CRUISE LINES mark and the family of AMERICAN

marks (including GREAT AMERICAN STEAMBOAT COMPANY). Further, Defendants’


34

conduct has forced Plaintiff to forego using the Rights that Plaintiff purchased from Defendants

to avoid further confusion in the marketplace regarding source of cruise services.

106. Defendants and American Cruise Lines are direct competitors prominent

in their market and active in the same channels of commerce in that market, including internet

and telephone call response marketing. Defendants have caused actual confusion in that market

in violation of their promises in the Settlement Agreement, and Defendants have continued their

unlawful infringement and unfair and deceptive acts. Defendants have damaged Plaintiff by

depriving it of business what otherwise would have resulted in additional customers and

goodwill and substantial profits for Plaintiff.

107. Upon information and belief, Defendant HMS’s predecessor in interest’s

registration of the Domain Name, “www.greatamericansteamboatcompany.com,” that

incorporates the GREAT AMERICAN STEAMBOAT COMPANY mark to be surrendered to

Plaintiff under the Settlement Agreement, extended for a two year term from the original July

2010 registration date. Notwithstanding Defendants’ agreement to cease using the Rights in a

“forthright manner,” on information and belief on March 21, 2012, soon after entering the

Settlement Agreement in February of 2012, Defendants re-registered the Domain Name for a

new ten year term. Defendants’ re-registered the Domain Name intending to benefit from

continued use of the Domain Name while depriving American Cruise Lines from using the

Domain Name incorporating the GREAT AMERICAN STEAMBOAT COMPANY mark.

108. Soon after Defendants entered into the Settlement Agreement, Defendants

launched a new effort to trade off Plaintiff’s business and goodwill by targeting one of Plaintiff’s

AMERICAN STEAMBOAT marks, i.e., GREAT AMERICAN STEAMBOAT COMPANY.

Upon information and belief, between March 12 and March 19, 2012, Defendants updated the


35

registrations of two other domain names incorporating the GREAT AMERICAN STEAMBOAT

mark which Defendants were to “surrender” under the Settlement Agreement -- namely

“greatamericansteamboatcompany.biz” and “greatamericansteamboatcompany.net.” This was

done with the intent to further “freeze-out” Plaintiff and to diminish Plaintiff’s ability to benefit

from online use of the GREAT AMERICAN STEAMBOAT COMPANY mark. With the same

intent, on November 20, 2012 Defendants updated the registrations of two unlawful domain

names -- “greatamericansteamboatcompany.org” and “greatamericansteamboatcompany.info” --

further depriving Plaintiff of the benefit of making the GREAT AMERICAN STEAMBOAT

COMPANY mark an internet domain name.

109. At no time has either Defendant ever disclosed to American Cruise Lines

that it is the holder of any of the .net, .org, .info, or .biz domain names.

110. Upon information and belief, Defendants caused to be associated, and

since entering into the Settlement Agreement have failed to cease to associate, their business

telephone number with the GREAT AMERICAN STEAMBOAT trademarks and derivatives in

one or more “411” telephone directory assistance systems and with travel agent websites.

111. As of late October, 2012, notwithstanding that, pursuant to the Settlement

Agreement, Defendants were to surrender the Rights in a “forthright” manner after February 9,

2012 and “cease to use the Rights and fully complete that process” by November 5, 2012,

Defendants nevertheless continued to use certain Rights, including at least (i) incorporating the

GREAT AMERICAN STEAMBOAT marks and derivatives in the domain name

“www.greatamericansteamboatcompany.com,” which directed internet traffic to Defendants’

website with the domain name “www.americanqueensteamboatcompany.com,” (ii) embedding

the Domain Name incorporating the GREAT AMERICAN STEAMBOAT COMPANY mark in


36

the source code of Defendants’ website to enhance search engine optimization, and (iii) using

“411” telephone directory assistance in Memphis, Tennessee to continue to provide Defendants’

telephone number in response to inquiry for the “Great American Steamboat Company.”

112. Because Defendants continued to use the GREAT AMERICAN

STEAMBOAT marks and derivatives notwithstanding the Settlement Agreement, Plaintiff,

through counsel, sent Defendants a letter dated October 26, 2012 demanding that Defendants

cease their use of the Rights. Defendants made changes to address only some more obvious

violations of the Settlement Agreement. Thereafter American Cruise Lines, through counsel,

again requested that Defendants relinquish ownership of the Domain Name on or before the

close of business on November 5, 2012. Defendants have failed and refused to do so.

113. After November 5, 2012, during the “gap” or “cooling off” period until

February 9, 2013, and thereafter, Defendants continued to refuse to surrender the Rights they

agree to “surrender” and made use of those Rights for their own benefit and to damage American

Cruise Lines. During this time (a) Defendants marketed and operated cruises and received

payments trading on the name “American Queen Steamboat Company,” a derivative of the

GREAT AMERICAN STEAMBOAT COMPANY mark which in turn is itself a derivative of

Plaintiff’s AMERICAN CRUISE LINES mark and other AMERICAN mars, (b) the Domain

Name incorporating Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark was

pointed to Defendants’ website, (c) Defendants’ paid internet advertising associated Plaintiff’s

GREAT AMERICAN STEAMBOAT COMPANY and other marks with Defendants and their

website; and (d) Defendants’ information provided to “411” telephone directory assistance

programs associated Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark with


37

Defendants’ business telephone number so that Defendants’ telephone number would be

provided in response to inquiries for the “Great American Steamboat Company.”

114. As a result, during the “gap” or “cooling off” period a significant portion

of Defendants’ business derived from their continued improper use of Plaintiff’s GREAT

AMERICAN STEAMBOAT COMPANY mark in the Domain Name. Upon information and

belief, as of late December, 2012, (i) approximately fifteen (15%) of the search traffic to

Defendants’ website derived from searches of Plaintiff’s GREAT AMERICAN STEAMBOAT

COMPANY mark; (ii) when entering Plaintiff’s mark, GREAT AMERICAN STEAMBOAT

COMPANY, in the Google® search engine, the search results showed a paid advertisement for

Defendants’ website followed by other links directing the user to Defendants’ website; and

(iii) when entering the Domain Name in Google® search, the results showed links directing the

user to Defendants’ website. As a result, prospective customers, travel agents, and others using

Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark or Domain Name to search

for American Cruise Lines on the Internet in fact were being directed to Defendants’ website, not

to the website of American Cruise Lines, the owner of the GREAT AMERICAN STEAMBOAT

COMPANY mark, or to no website at all.

115. Defendants’ improper use of the name “American Queen Steamboat

Company” and the Domain Name during the “gap” or “cooling off’ period has resulted in

substantial improper benefit to Defendants and substantial losses to American Cruise Lines. If

Defendants had not been improperly trading off the AMERICAN CRUISE LINES mark and

using the GREAT AMERICAN STEAMBOAT COMPANY name and derivatives, including the

Domain Name, during the “gap” or “cooling off” period, many prospective customers using the

GREAT AMERICAN STEAMBOAT COMPANY name or the Domain Name or alternatives


38

would have located American Cruise Lines. Defendants’ improper virtually ensured that such

prospective customers would not locate American Cruise Lines as a result of such a search.

Defendants kept American Cruise Lines obscured from prospective customers searching via the

Internet, a principal means of marketing in this market. As a result, Plaintiff lost the business of

prospective customers who, but for the improper breaches and illegal acts of Defendants, would

have located American Cruise Lines and received information and taken cruises with American

Cruise Lines.

116. Also during the “gap” or “cooling off’ period, Defendants refused to

disassociate their business telephone number with the GREAT AMERICAN STEAMBOAT

COMPANY mark in “411” telephone directory assistance programs and with travel agent

websites. As a result, prospective customers, travel agents and others seeking “Great American

Steamboat Company” through “411” telephone directory assistance systems and travel oriented

websites were being directed to Defendants in lieu of being directed to American Cruise Lines or

being directed to no one at all.

117. Since February 9, 2013, the end of the “gap” or “cooling off” period,

Defendants have continued to benefit from the Rights they were to surrender, including inter

alia, the registration of the Domain Name and the registration of other domain names

incorporating the GREAT AMERICAN STEAMBOAT marks and derivatives, having Google®

and travel websites, such as Mississippi River Cruises (i.e. www.mississippirivercruises.com),

continue to associate Defendants with the GREAT AMERICAN STEAMBOAT COMPANY

mark online because Defendants had only recently discontinued paid advertisements, and

redirecting to their website internet traffic using the Domain Name incorporating the GREAT

AMERICAN STEAMBOAT mark. As of February 25, 2013, Google® search results for


39

GREAT AMERICAN STEAMBOAT COMPANY continue to show a picture of Defendants’

riverboat and a map and directions to Defendants’ office and a paid ad by Mississippi River

Cruises advertising Defendants’ riverboat cruises notwithstanding Defendants agreed to

surrender all rights to the GREAT AMERICAN STEAMBOAT mark and derivatives. Further,

as of February 1, 2016 Google® search results for GREAT AMERICAN STEAMBOAT

COMPANY (i) continue to list Defendants’ advertisements, photographs, and contact

information and (ii) list an advertisement of Mississippi River Cruises, a travel agent who places

a significant amount of business with Plaintiff, incorporating the term “Great American

Steamboat.”

118. Since February 9, 2013, the end of the “gap” or “cooling off” period,

Defendants also continued to benefit from associating their business telephone number with

Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark in “411” telephone directory

assistance programs. As an example, as of 8:49 AM on February 25, 2013, when calling “411”

directory assistance for Memphis, Tennessee, an inquiry for “Great American Steamboat

Company” resulted in the caller being connected to Defendants.

119. Defendants’ use of the name “American Queen Steamboat Company” is a

derivative of GREAT AMERICAN STEAMBOAT COMPANY. Its use by Defendants violates

the parties’ Settlement Agreement and infringes on American Cruise Line’s trademarks and

trademark rights.

120. Because of Defendants’ ongoing violations of the Settlement Agreement,

infringement, and unfair and deceptive acts, American Cruise Lines’ damages are increasing

every day. Such damages are currently estimated to amount to over three million dollars

($3,000,000.00).


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DEFENDANTS’ ADOPTION AND USE OF PLAINTIFF’S AMERICAN MARKS IN ADWORDS AND PAID SEARCHES

121. In order to market their competing services, Defendants have maintained

and continue to maintain websites which can be accessed through a number of different URL

addresses, including www.greatamericansteamboatcompany.com and

www.americanqueensteamboatcompany.com (collectively “Defendants’ website”).

122. Search engines such as Google, Bing, and Yahoo, in addition to listing

internet search results based on relevancy in relation to the search terms used, also prominently

display “sponsored links” advertisements on search results pages (“Sponsored Link Ads”).

Sponsored Link Ads are a form of advertising which enable the advertiser to bypass the search

engine’s usual relevancy factors and prominently display that advertiser’s caption and text along

with an accompanying link to a website specified by the advertiser. Sponsored Link Ads are

triggered by the entry of certain keywords or phrases that may be entered by computer users.

123. When an advertiser initiates a Sponsored Link Ads campaign through a

program such as Google AdWords, the advertiser has the opportunity to designate and

“purchase” keywords which serve to trigger the paid advertisement created by the advertiser.

124. Beginning in fall 2011, when Defendants first began to market their cruise

services, Defendants launched a Sponsored Link Ads internet program marketing their services

through Sponsored Link Ads whereby Defendants used and purchased keywords incorporating

Plaintiff’s service marks, including Plaintiff’s marks AMERICAN CRUISE LINES,

AMERICAN STEAMBOAT COMPANY, QUEEN OF THE WEST and QUEEN OF THE

MISSISSIPPI. Defendants continue to use and purchase American Cruise Lines’ service marks

in their Sponsored Links Ads. See, e.g., Google Search results showing Defendants recent use of

Plaintiff’s service mark “American Cruise Lines” as an “exact term” in their Sponsored Link Ad.


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Upon information and belief, Defendants have recently expanded use of Plaintiff’s service marks

in their Sponsored Link Ads program, including use of Plaintiff’s service marks AMERICAN

EAGLE and MISSISSIPPI QUEEN. Defendant’s use of Plaintiff’s service marks in their

Sponsored Link Ads program creates infringing sponsored link ads containing highlighted

captions that comprise in whole or in part the ACL Marks and having a link to Defendants’

website where consumers can obtain Defendants’ brochures and reserve passage.

125. On information and belief, Defendants’ infringing Sponsored Link Ads

have already caused thousands of internet users searching for Plaintiff’s cruise services using the

ACL Marks to be directed to Defendants’ website. As a result, existing and prospective

customers of ACL searching for Plaintiff’s cruise ship services on the Internet using the ACL

Marks have ordered hundreds of Defendants’ brochures and have, on information and belief,

arranged cruises with Defendants’ through Defendants’ website, depriving Plaintiff of business

opportunities and profits.

126. Defendants’ adoption and use of the AMERICAN marks as part of their

infringing Sponsored Link Ads is likely to cause confusion and is likely to deceive, and is further

causing actual confusion, mistake, and deception of the consuming public and travel agents as to

the source, origin or affiliation of Defendants’ services. Actual and potential customers for small

ship overnight passenger cruising services are likely to believe, and have believed, that

Defendants’ services are Plaintiff’s services, or originate from Plaintiff, or that Defendants’

services are endorsed, sponsored by or approved by Plaintiffs, or that there is some affiliation or

connection between the two companies.

127. Defendants’ conduct has and will lure away from Plaintiff to Defendants

potential customers of Plaintiff by initially passing off Defendants’ services as those of Plaintiff.


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This initial interest confusion results in consumers choosing Defendants’ competing services

based on the reputation built up by Plaintiff due to either the belief that there is a connection

between Plaintiff’s services and those of Defendants, or because Defendants have acquired initial

credibility through the use of Plaintiff’s AMERICAN marks. Even if confusion is dissipated, the

potential customer is now considering or using the services of Defendants rather than those of

Plaintiff.

128. Defendants have adopted and are intentionally using the AMERICAN

marks to interfere with Plaintiff’s business relationships and to trade upon the reputation and

goodwill and consumer trust associated with Plaintiff’s services, and to give Defendants’

services customer appeal and salability which they would not otherwise have in the absence of

the confusing similarity to the AMERICAN marks.

129. Defendants’ unfair and deceptive acts are threatening Plaintiff’s ability to

hold and continue to attract high quality employees. Plaintiff employs many individuals who

perform cruise services and who work in Plaintiff’s land-based facilities. Employee turnover in

the cruise industry is relatively high requiring constant advertising, recruiting, and training of

employees. Plaintiff relies heavily on the Internet and its website to identify new employees and

to provide information to existing employees, including advertising job positions, providing

information on Plaintiff’s recruiting process, and enabling people to research and apply for jobs

with Plaintiff online. Defendants know Plaintiff is a desired employer of people interested in the

cruise industry and that Plaintiff relies heavily on internet advertising to attract and retain

employees, including advertising job openings on Plaintiff’s website.

130. On information and belief, Defendants’ former Chief Executive Officer

promoted a strategy to coerce Plaintiff into abandoning its rights to certain tradenames and


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trademarks by threatening, if the marks were not abandoned by Plaintiff, that Defendants would

(i) engage in predatory marketing to hurt Plaintiff; (ii) have Defendants’ travel agent network

offer Plaintiff’s booked customers a refund of their deposit paid to Plaintiff, onboard credits and

amenities if Plaintiff’s customers would rebook cruises with Defendants; (iii) “seed and fuel a

viral blogging network” to discredit Plaintiff and create bad public relations for Plaintiff in a way

that could not be traced back to Defendants, all in order to hurt Plaintiff nationally across all of

its cruise itineraries. On information and belief, Defendants have implemented the strategy

promoted by its CEO to disparage Plaintiff, cause Plaintiff’s customers to cancel reservations

and rebook cruises with Defendants, and otherwise harm American Cruise Lines.

DEFENDANTS AND THEIR PROPOSED USE AND USE OF “AMERICAN EMPRESS”

131. American Cruise Lines has since at least 2010 operated a paddlewheel

riverboat named “Queen of the West” on the Columbia River and Snake River in Oregon and

Washington. American Cruise Lines also currently provides overnight passenger cruise service

using “AMERICAN SPIRIT” on seven day routes between the states of Washington and Alaska.

As a result, American Cruise Lines has become the industry leader in overnight passenger

cruising on inland and coastal waterways and rivers of the Northwestern United States as well as

other parts of the country.

132. Upon purchasing from MarAd a paddlewheel riverboat named “Empress

of the North,” Defendants selected “American Empress” as the new name for that riverboat.

Defendants sought, in a bad-faith attempt to capitalize on American Cruise Lines’ substantial

prior efforts and expenditures to develop the goodwill existing in the associated marks

AMERICAN CRUISE LINES and the AMERICAN marks, to cause confusion in the market for


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overnight passenger cruising on inland and coastal waterways and rivers of the Northwestern

United States.

133. Plaintiff American Cruise Lines lost sales because of the false consumer

impression generated by Defendants’ intentionally deceptive choice of a name confusingly

similar to Plaintiff’s AMERICAN CRUISE LINES mark and to its family of AMERICAN

marks.

DEFENDANTS’ CONDUCT HAS CAUSED DAMAGES

134. Defendants’ breaches of contract, infringement of Plaintiff’s registered

and common law marks, their false and misleading commercial advertising and promotion, their

deception and misrepresentation seeking to trade off a connection or association with Plaintiff’s

business and goodwill, their unlawful conduct and bad faith in registering and trafficking in

domain names incorporating Plaintiff’s AMERICAN marks, their unfair competition under

federal, state and common law have caused damages to Plaintiff. Defendants’ conduct against

Plaintiff has resulted in revenues and profits to which Defendants are not entitled, ill-gotten gains

through misrepresentations and deception of the public and harm to Plaintiff.

135. Defendants’ wrongful conduct is intentional and willful and has persisted

despite Plaintiff’s request to cease.

136. Defendants’ misconduct has damaged Plaintiff, American Cruise Lines in

an amount to be determined at trial and believed to be over three million dollars ($3,000,000.00).

Damages are increasing each day as Defendants conduct continues.

COUNT I BREACH OF CONTRACT

137. Plaintiff, American Cruise Lines, incorporates by reference and re-alleges

each and every allegation contained in the foregoing paragraphs 1 through 136.


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138. Defendants breached their obligations under the Settlement Agreement by

adopting and using the service mark “American Queen Steamboat Company,” a derivative of

GREAT AMERICAN STEAMBOAT COMPANY, causing the likelihood of confusion. The

GREAT AMERICAN STEAMBOAT COMPANY service mark is itself derivative of the

AMERICAN CRUISE LINES mark.


re-registering, registering and failing to surrender their registered domain names incorporating

the GREAT AMERICAN STEAMBOAT COMPANY mark, i.e.

“greatamericansteamboatcompany.com,” “greatamericansteamboatcompany.org,”

“greatamericansteamboatcompany.net,” “greatamericansteamboatcompany.info,” and

“greatamericansteamboatcompany.biz;”


failing to take action to disassociate their business and business telephone number with

Plaintiff’s service marks with travel agents, including travel agent websites, and in “411”

telephone directory assistance systems as they agreed to do.

141. Defendants’ breaches have damaged Plaintiff in an amount to be

determined at trial, estimated at over three million dollars ($3,000,000.00). By reason of

Defendants’ acts alleged, Plaintiff has and will suffer damage to its business, reputation and

goodwill and has lost sales and profits Plaintiff would have made but for Defendants’ breaches.

Defendants’ actions in breach of the Settlement Agreement are continuing. Defendants have

been and are unjustly enriched and unlawfully deriving profits and gains off Plaintiff’s reputation

and goodwill. Plaintiff is entitled to award of actual damages and/or lost profits and its

reasonable attorney’s fees and costs.


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142. Defendants’ breaches have caused and will continue to cause irreparable

injury to Plaintiff if Defendants are not restrained by this Court. Plaintiffs have no adequate

remedy at law and therefore seek injunctive relief from this Court pursuant to 15 U.S.C. § 1116.

COUNT II INFRINGEMENT OF PLAINTIFF’S FEDERALLY REGISTERED

“AMERICAN” TRADEMARKS (15 U.S.C. §1114)


each and every allegation of the foregoing paragraphs 1 through 136.

144. Defendants’ use of the American Queen Steamboat Company service

mark, and Defendants’ other use of the word “American,” infringes Plaintiff’s registered

AMERICAN CRUISE LINES mark, registered AMERICAN marks -- AMERICAN STAR,

AMERICAN GLORY, AMERICAN SPIRIT, and AMERICAN EAGLE -- and registered

GREAT AMERICAN STEAMBOAT CRUISE mark in interstate commerce without the consent

of Plaintiff in direct competition with Plaintiff’s overnight passenger cruise ship services is likely

to cause confusion, mistake or deception, and further, has caused confusion, mistake or

deception as a result of such use by Defendants in violation of 15 U.S.C. § 1114. Defendants’

use of “American Queen Steamboat Company” and Defendants’ other uses of the word

“American” in commerce is in violation of 15 U.S.C. § 1114. Defendants’ infringement is

continuing.

145. Defendants’ use of the term “American Cruise Lines” in connection with

its business and cruise services in connection with advertisements generated through Internet

search engines triggered by the use of paid search terms (or adwords/keywords) is without

permission from Plaintiff and constitutes infringement in violation of 15 U.S.C. § 1114.

Defendants’ infringement is continuing.


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146. By reason of Defendants’ acts, Plaintiff has been damaged and will suffer

damage to its business, reputation and goodwill and the loss of sales and profits in an amount to

be determined at trial, estimated at over three million dollars ($3,000,000.00).

147. Defendants’ infringement will cause irreparable and substantial damage to

Plaintiff. On information and belief, Defendants’ ongoing violations of §32 of the Lanham Act

against Plaintiff are committed willfully, intentionally, knowingly and in bad faith. This has and

will result in Defendants being unjustly enriched and unlawfully deriving profits and gains.

Plaintiff is entitled to monetary damages pursuant to 15 U.S.C. § 1117, including treble actual

damages and reasonable attorney’s fees.

148. Plaintiff is entitled to an award of treble its actual damages and/or lost

profits and Defendants’ profits in an amount to be determined at trial, estimated at over nine

million dollars ($9,000,000.00), as well as Plaintiff’s reasonable attorney’s fees and costs.

149. Plaintiffs have no adequate remedy at law and therefore seek injunctive

relief from this Court pursuant to 15 U.S.C. § 1116.

COUNT III INFRINGEMENT OF PLAINTIFF’S FEDERALLY REGISTERED

“QUEEN” TRADEMARKS (15 U.S.C. §1114)



151. Defendants’ use of the terms “QUEEN OF THE WEST,” “QUEEN OF

THE MISSISSIPPI,” and “MISSISSIPPI QUEEN” in connection with its business and in

connection with advertisements generated through Internet search engines triggered by the use of

paid search terms (or adwords/keywords) is without permission from Plaintiff and constitutes

infringement. Defendants’ use of these terms is likely to cause confusion, mistake or deception


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of the public in interstate commerce in violation of Section 32(1) of the Lanham Act, 15 U.S.C.

§ 1114(1). Defendants’ infringement is continuing.





Plaintiff. On information and belief, Defendants’ ongoing violations of §32 of the Lanham Act

against Plaintiff are committed willfully, intentionally, knowingly and in bad faith. This has and

will result in Defendants being unjustly enriched and unlawfully deriving profits and gains.

Plaintiff is entitled to monetary damages pursuant to 15 U.S.C. § 1117, including treble actual

damages and reasonable attorney’s fees.

154. As a result of Defendants’ willful wrongful acts, Plaintiff is entitled to an

award of treble its actual damages and/or lost profits and Defendants’ profits in an amount to be

determined at trial, estimated at over nine million dollars ($9,000,000.00), as well as Plaintiff’s



relief from this Court pursuant to 15 U.S.C. § 1116.

COUNT IV COMMON LAW INFRINGEMENT OF PLAINTIFF’S USED

BUT UNREGISTERED “AMERICAN” TRADEMARKS



157. Defendants’ use of the American Queen Steamboat Company service

mark, and Defendants’ other use of the word “American,” infringes the following common law,


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unregistered marks – AMERICA, AMERICAN PRIDE, GREAT AMERICAN STEAMBOAT

COMPANY, and AMERICAN STEAMBOAT COMPANY. Defendants’ infringement are in

direct competition with Plaintiff’s overnight passenger cruise ship services in commerce and is

likely to cause confusion, mistake or deception, and further, has caused confusion, mistake or

deception as a result of such use by Defendants. Defendants’ infringement is continuing.

158. Defendants’ use of the term “American Steamboat Company” in

connection with its business and in connection with advertisements generated through Internet

search engines triggered by the use of paid search terms (or adwords/keywords) is without

permission from Plaintiff and constitutes common law infringement. Defendants’ infringement is

continuing.





Plaintiff. On information and belief, Defendants’ ongoing infringement of Plaintiff‘s marks is

committed willfully, intentionally, knowingly and in bad faith. This has and will result in

Defendants being unjustly enriched and unlawfully deriving profits and gains. Plaintiff is

entitled to monetary damages and reasonable attorney’s fees.






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relief from this Court.

COUNT V FALSE AND MISLEADING DESIGNATIONS OF ORIGIN AND DESCRIPTIONS CAUSING

CONFUSION, MISTAKE, AND/OR DECEPTION, (15 U.S.C. § 1125(A))



164. Defendants adoption and use of the service mark American Queen

Steamboat Company, and Defendants’ other uses of the word “American,” are false designations

of origin, false and misleading descriptions, and false and misleading representations by

Defendants that are likely to cause confusion, mistake and to deceive the public as to the

affiliation, connection, and/or association of the Defendants with American Cruise Lines and

American Cruise Lines’ overnight passenger cruise ship services in violation of section 43(a) of

the Lanham Act, 15 U.S.C. § 1125(a).

165. In addition to Defendants’ false and misleading statements and false

descriptions of origin, Defendants’ infringement of Plaintiffs’ “American” marks -- AMERICAN

CRUISE LINES, AMERICAN STAR, AMERICAN GLORY, AMERICAN SPIRIT,

AMERICAN EAGLE, AMERICA, AMERICAN PRIDE, THE GREAT AMERICAN

STEAMBOAT CRUISE, GREAT AMERICAN STEAMBOAT COMPANY, AMERICAN

STEAMBOAT COMPANY – contributes to the false and misleading descriptions and

representations by Defendants that are likely to cause confusion, mistake and to deceive the

public as to the affiliation, connection, and/or association of the Defendants with American

Cruise Lines and American Cruise Lines’ overnight passenger cruise ship services in violation of

section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).


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166. Defendants’ deceptive use of Adwords or paid search terms also

constitutes false designations of origin, false and misleading descriptions, and false and

misleading representations of fact. Defendants have used and are using the AMERICAN

CRUISE LINES, QUEEN OF THE MISSISSIPPI, QUEEN OF THE WEST, MISSISSIPPI

QUEEN marks as an adwords or as a paid search terms in nationwide advertising and promotion

of overnight cruise services in a manner that is likely to cause the public to be confused,

mistaken or deceived as to Defendants affiliation and association with AMERICAN CRUISE

LINES and with American Cruise Lines’ overnight passenger cruise ship services.

167. Defendants have caused and are leading purchasers to be confused,

mistaken, or deceived as to the approval, certification, connection, or sponsorship of the services

advertised and sold by Defendants.

168. On information and belief, Defendants have acted willfully and in bad

faith in violation of section of 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Defendants’

wrongful and unfair conduct has persisted despite Plaintiff’s request to cease.




170. Plaintiff is entitled to an award of treble its actual damages and/or lost

profits and Defendants’ profits in an amount to be determined at trial, estimated at over nine

million dollars ($9,000,000.00), as well as its reasonable attorney’s fees and costs.

171. Defendants’ willful false statements, misrepresentations, and deceptions

justify an award of prejudgment interest pursuant to 15 U.S.C. § 1117(b) in an amount to be


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determined at trial, presently estimated at over one hundred ninety thousand dollars

($190,000.00).



COUNT VI VIOLATION OF THE ANTI-CYBERSQUATTING ACT

(15 U.S.C. § 1125(D))



174. The domain names registered by Defendants with domain name registrars

-- “greatamericansteamboatcompany.com,” “greatamericansteamboatcompany.org,”

“greatamericansteamboatcompany.net,” “greatamericansteamboatcompany.info,” and

“greatamericansteamboatcompany.bizis -- are identical or confusingly similar to Plaintiff’s

AMERICAN STEAMBOAT marks (GREAT AMERICAN STEAMBOAT COMPANY,

GREAT AMERICAN STEAMBOAT CRUISE, and AMERICAN STEAMBOAT COMPANY).

Each of these marks contains the word “American” that has become and is “distinctive” in

association with overnight passenger cruise ship services through use of the service mark

“American Cruise Lines.”

175. Defendants’ registration of these domain names with the registrars were in

bad faith and they intend to profit from Plaintiff’s marks. Defendants’ used and trafficked in

these domain names in bad faith with an intent to profit from Plaintiff’s marks. Defendants also

offered to sell these domain names to Plaintiff.

176. By reason of Defendants’ misconduct, Plaintiff has been damaged and will

suffer damage to its business, reputation and goodwill and the loss of sales and profits in an

amount to be determined at trial, estimated at over three million dollars ($3,000,000.00).


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178. Defendants’ willful violation of the Anti-Cybersquatting Act justifies an

award of prejudgment interest pursuant to 15 U.S.C. § 1117(b) in an amount to be determined at

trial.

179. Plaintiff has no adequate remedy at law and is further entitled to a

preliminary and permanent injunction against Defendants’ infringing misconduct and other

injunctive relief. Pursuant to 15 U.S.C § 1125(d), Plaintiff is entitled to have the domain names

based on Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY, GREAT AMERICAN

STEAMBOAT CRUISE, and AMERICAN STEAMBOAT COMPANY marks transferred to

American Cruise Lines, together with other relief as is just and equitable in the circumstances.

180. Defendants’ misconduct in specific violation of the Settlement Agreement

and Defendants’ knowing demand that Plaintiff negotiate to purchase the Domain Name from

Defendants establishes Defendants’ bad faith intent to profit from registering, trafficking in or

using domain names identical and substantially similar to Plaintiff’s marks.

COUNT VII VIOLATION OF DELAWARE UNIFORM DECEPTIVE TRADE PRACTICES ACT

(6 DEL. C. §§ 2531 ET SEQ.)



182. Defendants’ misconduct, as alleged, causes likelihood of confusion or of

misunderstanding as to the source, sponsorship, approval, or certification of goods or services;


54

and causes likelihood of confusion or misunderstanding as to affiliation, connection, or

association with, or certification by, Plaintiff.

183. Such misconduct violates the Uniform Deceptive Trade Practices Act as

adopted by Delaware, 6 Del. C. §§ 2531 et seq.

184. On information and belief, Defendants have willfully engaged in the

aforementioned deceptive trade practices.

185. As a result of Defendants’ wrongful acts, Plaintiff is entitled to an award

of reasonable attorney’s fees and costs, damages of three million dollars ($3,000,000.00), and the

trebling of actual damages awarded in violation of Delaware common law in an amount to be

determined at trial, estimated at over nine million dollars ($9,000,000.00).

186. Defendants’ misconduct has caused, and is continuing to cause,

irreparable injury to Plaintiff by leading purchasers to be confused, mistaken, or deceived as to

the approval, certification, connection, sponsorship, or affiliation of the services advertised and

sold by Defendants. Pursuant to the Uniform Deceptive Trade Practices Act, as adopted by

Delaware, Plaintiff is entitled to injunctive relief against Defendants’ deceptive trade practices as

well as such other remedies available under that act as are just and equitable and permitted by

law. 6 Del. C. §§ 2533.

COUNT VIII COMMON LAW UNFAIR COMPETITION



188. Defendants’ misconduct, as alleged, constitutes unfair competition under

the common law of Delaware. Plaintiff seeks relief under Delaware common law to the extent

Defendants’ conduct does not violate the Delaware’ Uniform Deceptive Trade Practice Act and


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to the extent Delaware common law provides a remedy not available in the Delaware’ Uniform

Deceptive Trade Practice Act.

189. Plaintiffs and Defendants provide cruise services and advertise and

promote these services. Defendants have diverted patronage from Plaintiff American Cruise

Lines by using the various acts and methods of fraud and deception alleged in this complaint.

Plaintiff has a reasonable expectancy of entering into valid business relationships with customers

and potential customers without Defendants’ wrongful interference based on misappropriation,

false and misleading statements and deception. Defendants have caused damages to Plaintiff by

preventing Plaintiff American Cruise Lines from legitimately earning revenue by syphoning off

business using its unfair, false, and deceptive actions, as alleged in this complaint, in an amount

to be determined at trial, estimated to be three million dollars ($3,000,000.00).

190. This Court has the legal and equitable power to protect Plaintiff in its

business and cruise services against the unfair competition by Defendants by applying Delaware

common law principles to protect fair trade and provide remedies for unfair competition.



PRAYER FOR RELIEF – ALL COUNTS

WHEREFORE, Plaintiff, American Cruise Lines, Inc., prays that the Court enter

judgment in Plaintiff’s favor and against Defendants on all Counts, and:

A. Adjudge and decree that Defendants breached the parties’ Settlement

Agreement by (i) adopting an using the service mark “American Queen Steamboat Company,” a

derivative of Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark, and Plaintiff’s

AMERICAN CRUISE LINE mark, (ii) failing to surrender the domain names based on and

incorporating Plaintiff’s GREAT AMERICAN STEAMBOAT mark and derivatives as agreed,


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and/or, (iii) continuing to associate their business telephone number with Plaintiff‘s GREAT

AMERICAN STEAMBOAT mark and derivatives in “411” directory assistance systems, and/or

(iv) using and benefiting from the Rights transferred to Plaintiff and/or (v) depriving Plaintiff of

the use and benefit of the GREAT AMERICAN STEAMBOAT Marks, Domain Name and other

domain names using the Rights for which Plaintiff paid the Rights Fee;

B. Adjudge and decree that Plaintiff’s AMERICAN CRUISE LINE, and

THE GREAT AMERICAN STEAMBOAT CRUISE and GREAT AMERICAN STEAMBOAT

COMPANY, and AMERICAN STEAMBOAT COMPANY marks have been infringed by

Defendants use of “American Queen Steamboat Company” and use of the word “American” in

connection with overnight passenger cruise ship services in the United States, and further

infringement is threatened, as a direct, proximate, and/or contributory result of the acts of

Defendants as set forth in this complaint, in violation of Plaintiff’s rights under the Lanham Act,

15 U.S.C. §§ 1114, and that Defendants’ infringement and other actions in connection with

Defendants’ advertising and promotion of their services create a false association with Plaintiff

and unfairly competes with Plaintiff in violation of the Lanham Act, 15 U.S.C. § 1125(a);

C. Adjudge and decree that Plaintiff’s AMERICAN marks, namely, the

AMERICAN STAR, AMERICAN GLORY, AMERICAN SPIRIT, and AMERICAN EAGLE

registered marks, and Plaintiff’s AMERICA and AMERICAN PRIDE common law

(unregistered) marks, constitute a valid and protectable family of marks associated with

Plaintiff’s registered AMERICAN CRUISE LINES mark and American Cruise Lines’ overnight

passenger cruise ship services in the United States;

D. Adjudge and decree further that Plaintiff’s family of AMERICAN marks,

and each of them, have been infringed by Defendants use of “American Queen Steamboat


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Company” and use of the word “American” in connection with overnight passenger cruise ship

services in the United States and related goods, and further infringement is expressly threatened,

as a direct, proximate and/or contributory result of the acts of Defendants as set forth in this

complaint, in violation of Plaintiff’s rights under the Lanham Act, 15 U.S.C. § 1114 and under

common law trademark rights, and that Defendants’ infringement and other actions in

connection with Defendants’ advertising and promotion of their services create a false

association with Plaintiff and unfairly competes with Plaintiff in violation of the Lanham Act,

15 U.S.C. § 1125(a);

E. Adjudge and decree that Plaintiff’s QUEEN OF THE MISSISSIPPI and

QUEEN OF THE WEST registered marks in connection with overnight passenger cruise ship

services in the United States and related goods, and each of them, have been infringed by

Defendants use of those marks in Defendants’ advertising and promotion of their services and

further infringement is expressly threatened, as a direct, proximate and/or contributory result of

the acts of Defendants as set forth in this complaint, in violation of Plaintiff’s rights under the

Lanham Act, 15 U.S.C. § 1114, and that Defendants’ infringement and other actions in

connection with Defendants’ advertising and promotion of their services create a false

association with Plaintiff and unfairly competes with Plaintiff in violation of the Lanham Act,

15 U.S.C. § 1125(a);

F. Adjudge and decree that the Plaintiff’s common law (unregistered) marks,

namely AMERICAN PRIDE, GREAT AMERICAN STEAMBOAT COMPANY, AMERICAN

STEAMBOAT COMPANY, and MISSISSIPPI QUEEN, have been infringed by Defendants’

use of “American Queen Steamboat Company” and Defendants’ other uses of the words

“American” in connection with overnight passenger cruising services in the United States and


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related goods in violation of common law trademark rights and that Defendants’ infringement,

and further adjudge and decree that Defendants’ other actions in connection with Defendants’

advertising and promotion of their services infringe Plaintiff’s marks, create a false association

with Plaintiff, and unfairly compete with Plaintiff in violation of the Lanham Act, 15 U.S.C.

§ 1125(a).

G. Adjudge and decree that Defendants’ use of the terms “American Queen,”

and “American Empress,” in connection with overnight passenger cruise ship services in the

United States and related goods infringes Plaintiff’s federal trademark registrations in violation

of the Lanham Act, 15 U.S.C. § 1114 and infringe Plaintiff’s common law (unregistered) marks

in violation of common law trademark rights.

H. Adjudge and decree that the mark AMERICAN QUEEN was abandoned

by Ambassadors Cruise Group, LLC, a subsidiary of Ambassadors International, Inc., prior to

the purported assignment of that mark to Defendant HMS.

I. Adjudge and decree that the mark AMERICAN QUEEN was “assigned in

gross,” devoid of associated goodwill and conveyed no trademark rights when that mark was

purportedly assigned to Defendant HMS by Ambassadors Cruise Group, LLC, a subsidiary of

Ambassadors International, Inc.

J. Order that Defendants surrender and transfer to Plaintiff all domain name

extensions of “greatamericansteamboatcompany” and any derivatives thereof or of any of the

other the GREAT AMERICAN STEAMBOAT Marks that they may hold;

K. Order that Defendants surrender and transfer to Plaintiff all prospective

customer names and other names, addresses and contact information of persons obtained after

November 5, 2012 resulting from internet searches and telephone directory assistance system


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inquiries involving any of the GREAT AMERICAN STEAMBOAT Marks or colorable variants

thereof, including Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY mark and

derivatives thereof;

L. Order that Defendants shall not in the future contact any prospective

customers or customers or other persons whose names, addresses and contact information were

obtained after November 5, 2012 resulting from internet searches and telephone directory system

inquiries involving any of the GREAT AMERICAN STEAMBOAT Marks, AMERICAN Marks

or colorable variants thereof, including Plaintiff’s GREAT AMERICAN STEAMBOAT

COMPANY mark and derivatives thereof;

M. Order that Defendants take all necessary actions to immediately

discontinue paid advertisements on Google® and other internet websites linking or associating

the GREAT AMERICAN STEAMBOAT COMPANY mark or service mark and Domain Name,

the AMERICAN Marks, and derivatives thereof to Defendants’ website;

N. Order that Defendants take all necessary actions to discontinue the

association of any business telephone number of theirs with any of the GREAT AMERICAN

STEAMOBAT Marks, including Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY

mark and derivatives thereof, in any and all “411” or other telephone directory assistance

systems;

O. Order that Defendants and all officers, directors, agents, servants,

employees, affiliates, attorneys, successors, and assigns of Defendants, and all persons in active

concert or participation therewith, be preliminarily and permanently enjoined from committing

any further acts of trademark infringement, unfair competition, and false association, and from

using any of the Rights, including the GREAT AMERICAN STEAMBOAT COMPANY name,


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or any name that is likely to cause consumer confusion, unfair competition, or false association

with Plaintiff’s GREAT AMERICAN STEAMBOAT COMPANY, THE GREAT AMERICAN

STEAMBOAT CRUISE and/or AMERICAN STEAMBOAT COMPANY marks;

P. Order that the registrations of the marks AMERICAN QUEEN and THE

AMERICAN QUEEN STEAMBOAT COMPANY in Defendant HMS’s name in the PTO,

including in all classes, be cancelled in accordance with 15 U.S.C. § 1119 and certify the order to

the Director of the PTO to make appropriate entry upon the records of that office and be

controlled thereby;

Q. Order that Defendants be prohibited and enjoined, preliminarily and

permanently, from prosecution of the application for registration of the mark AMERICAN

EMPRESS in connection with overnight passenger cruising services and order that the

application for that registration currently pending before the PTO be abandoned and certify the

order to the Director of the PTO to make appropriate entry upon the records of that office and be

controlled thereby;

R. Order that Defendants be prohibited and enjoined, preliminarily and

permanently, from use of the mark AMERICAN QUEEN and the mark THE AMERICAN

QUEEN STEAMBOAT COMPANY and the mark AMERICAN EMPRESS or any similar mark

beginning with the term “American” or otherwise so as to be confusingly similar to, infringe on,

or cause consumer confusion, unfair competition, or false association with Plaintiff American

Cruise Lines overnight passenger cruise service, Plaintiff’s AMERICAN CRUISE LINES mark,

and Plaintiff’s AMERICAN marks;

S. Order that Defendants to deliver up and destroy all labels, signs, prints,

packages, wrappers, receptacles and advertisements in the possession of Defendants bearing the


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mark or name “AMERICAN QUEEN” and the mark or name “THE AMERICAN QUEEN

STEAMBOAT COMPANY” and the mark or name “AMERICAN EMPRESS” or any

reproduction, or copy, or colorable imitation thereof and all plates, molds, matrices, and other

means of making the same;

T. Order that Defendants change the name of the paddlewheel riverboat

currently bearing the name “American Queen” to a name not beginning with the term

“American” or otherwise so as not to be confusingly similar to or infringe on, or cause consumer

confusion or deception, unfair competition, or false association with respect to Plaintiff’s

AMERICAN CRUISE LINES mark, Other AMERICAN marks, overnight passenger cruise ship

services;

U. Order that Defendants be prohibited and enjoined, preliminarily and

permanently, from renaming the paddlewheel riverboat “Empress of the North” as “American

Empress” or any other name beginning with the term “American” or otherwise so that there will

be confusing similarity, or infringement, that could cause consumer confusion or deception,

unfair competition, or false association with Plaintiff American Cruise Lines overnight passenger

cruise service, Plaintiff’s AMERICAN CRUISE LINES mark, and Plaintiff’s AMERICAN

marks;

V. Award Plaintiff, American Cruise Lines, its compensatory damages in an

amount to be determined at trial, but at least three million dollars ($3,000,000.00), together with

lost profits, and an accounting of Defendants’ profits, advantages, and gains derived from their

unlawful activities pursuant to 15 U.S.C. §§ 1117 and 1125(d), 6 Del. C. §§ 2531 et seq. and the

common law of Delaware;


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W. Award Plaintiff, American Cruise Lines, treble its damages and lost profits

pursuant to 15 U.S.C. § 1117 and the common law of Delaware in amount to be determined at

trial, but at least nine million dollars ($9,000,000.00);

X. Award Plaintiff, American Cruise Lines, prejudgment interest pursuant to

15 U.S.C. § 1117(b) in an amount to be determined at trial;

Y. Award Plaintiff, American Cruise Lines, its taxable costs and reasonable

attorney’s fees pursuant to 15 U.S.C. 1117(a) and 6 Del. C. 22531, et seq.; and

Z. Order all other relief as the Court deems just and proper.

JURY DEMAND

Plaintiff, American Cruise Lines, Inc., respectfully demands a trial by jury of all

matters to which it is entitled to a trial by jury pursuant to Fed. R. Civ. P. 38.

OF COUNSEL: David McI. Williams Michael R. Naccarato GORMAN & WILLIAMS 36 South Charles Street, Suite 900 Baltimore, MD 21201-3114 (410) 528-0600

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Stephen J. Kraftschik Mary B. Graham (#2256) Stephen J. Kraftschik (#5623) 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] [email protected]

Attorneys for Plaintiff American Cruise Lines, Inc.

February 26, 2016


American Cruise Lines v. HMS American Queen Steamboat - American trademark complaint.pdf

Documents

Transcript of American Cruise Lines v. HMS American Queen Steamboat - American trademark complaint.pdf