McCall Complaint

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    UNITED STATES DISTRICT COURT

    DISTRICT OF OREGON

    PORTLAND OREGON

    Heidie

    S.

    McCall Factory West Studio

    2712 Esther Street

    Vancouver, WA. 98660

    Tel. (360) 693-7085

    Plaintiff s),

    v.

    Ronny Shany, Eric Klein, HIGHTV 3D a privately held company.

    New York Office; The Seagram Building

    375 Park Avenue, Suite 2607

    New York, NY 10152 Tel. (212) 634-7482

    Defendant s),

    Civil Case No. 5

    Cij

    ... 3Z

    -

    S I

    COMPLAINT

    FOR FEDERAL TRADEMARK INFRINGEMENT;

    UNFAIR COMPETITION; FEDERAL TRADEMARK

    DILUTION; FEDERAL TRADEMARK CONFUSION

    Jury Trial Demanded

    YES X NO

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    This action seeks to

    stop

    the use of and

    pray

    for remedy in

    regard

    to

    the

    infringement of

    the service trademark

    HIGHTV

    registered to Heidie McCall)

    by

    Ronny Shany and Eric Klein

    and

    the privately held company HIGHTV

    3D

    (Page 9)

    PlaintiffHEIDIE MCCALL (hereinafter referred to as HIGHTV or Plaintiff ')

    for the causes

    of

    action against Defendants ERIC KLEIN & RONNY SHANY HIGHTV 3D

    (hereinafter referred

    to

    as HIGHTV 3D or Defendant )

    COMPLAINT

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    NATURE OF

    THE ACTION

    This is a civil action for trademark infringement, dilution, confusion, and unfair competition

    under the Lanham Act, 15 U.S.C. 1114 and 1125

    THE PARTIES

    1

    Plaintiff: Heidie McCall producer

    of

    television programming in conjunction with the

    HIGHTV service trademark and her company Factory West Studio a multi media production

    company with her principal place of business at 2712 Esther Street Vancouver W A, 98660.

    Factory West Studio has been in operation since 1985 and is widely recognized in the United

    States.

    2 Defendants: Eric Klein (chief executive officer) and Ronny Shany senior vice

    president)

    HIGHTV

    3D is a TV entertainment channel

    that

    takes common television

    programming and runs said

    programming

    through

    3D software

    they

    then

    offer this

    reformatted

    3D

    programming for worldwide television distribution as

    HIGHTV 3D

    Defendant s United States place of business is The Seagram Building 372 Park Avenue,

    Suite 2607

    -New

    York City, New York 10152.

    3

    Plaintiff has been using

    HIGHTV

    a registered service trademark to

    open

    all video

    and

    television

    productions

    since

    Nov

    12th

    2008

    to

    present

    aired on broadcast

    television

    and

    currently on the Internet. (Page 9a)

    COMPLAINT

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    To

    ddress

    32 15 U.S.C.

    1114).

    CLAIM

    DEFENDANT S INFRINGEMENT OF HIGHTV AS HIGHTV 3D

    4

    HIGHTV 3D

    was

    launched March 16th 2011. Evidently a successful trademark search

    was not done because

    HIGHTV was already registered

    to

    the

    plaintiff July

    1st

    2008.(Page

    10

    5

    Plaintiff is currently building the Internet HIGHTV network. The Defendants use of

    HIGHTV 3D

    must

    stop

    because its use is greatly impeding

    the

    progress

    of

    this venture.

    HIGHTV 3D

    is visually extremely close to Plaint iffs version of

    HIGHTV

    This

    creates

    confusion in the

    broadcast and

    Internet marketplace,

    to

    say the least. (Page 11)

    6 The Defendant's use of

    HIGHTV 3D

    (if

    not removed

    from the

    Internet

    will continue to

    cause confusion to the service

    the

    Plaintiffs

    trademark

    provides.

    7 The Plaintiff proudly uses the U S government attorney Jennifer Martin's description

    ( your guide

    to

    an

    altered

    state of mind ) of the service HIGHTV provides. HIGHTV 3D is

    causing confusion

    with

    Plaintiffs network

    and programming

    style

    because

    for

    one

    thing

    HIGHTV

    is not in 3D (Page 12 )

    COMPLAINT Page 3

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    8 HIGHTV 3D

    is causing confusion because Plaintiffs service trademark is to guide

    the

    viewer into an altered state of mind for relaxation and pain management, in no way does

    HIGHTV offer 3D programming.

    9

    The Defendant's

    are

    luring viewers away that are looking for Plaintiffs service and

    marginalizes

    the HIGHTV

    effort to guide viewers into

    an

    altered

    state of

    mind with

    Plaintiffs

    HIGHTV

    programming style.

    HIGHTV 3D

    implies

    HIGHTV

    services

    are

    in

    3D

    (Page 13)

    10. Confusion will occur

    when the

    HIGHTV service is explained to potential sponsors.

    Sponsors do not

    want their

    ad money to be used in a confusing manner. The Plaintiff will

    be

    offering the concept of guiding the viewer into an altered state of mind for relaxation,

    accelerated learning and pain

    management

    not

    3D

    programming as HIGHTV

    3D

    implies.

    The Defendants themselves add to

    the

    confusion in their lengthy explanation. Further

    confusing the issue by failing to add the 3D when explaining

    HIGHTV

    3D (Page 14

    11.

    HIGHTV 3D

    is viewed over

    the

    world via satellite

    and marketed

    via

    the Internet-

    in

    the very near future

    the

    Plaintiffs HIGHTV network will be marketed on

    the

    Internet by

    satellite and aired on

    broadcast

    television. There most assuredly will

    be

    further confusion.

    COMPLAINT Page 4

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    12.

    HIGHTV

    and HIGHTV 3D

    are not

    from a common source. The similarities

    are

    such

    that the two services could be easily interpreted as originating from a common source

    causing further confusion in the minds of viewers, consumers and sponsors.

    13. HIGHTV will be subject to dilution from HIGHTV

    3D

    similarities and

    the

    Defendant's

    use on Facebook diminishes

    the

    strength and distinctiveness

    of HIGHTV

    (Page 15 )

    14.

    By

    adding 3D to

    the

    end HIGHTV-

    that

    addition of 3D very much blurs

    the

    registered

    HIGHTV

    service your guide

    to

    an

    altered state of

    mind .

    15. A

    DVD

    of

    the TV

    series produced

    by the

    Plaintiff using

    the HIGHTV

    service

    trademark

    is currently on

    the

    market on the nternet and in brick and mortar stores. The Defendant's

    use of the Internet, advertising their network productions in HIGHTV

    3D

    causes confusion

    in regard to

    the

    service

    the

    Plaintiffs programming provides because

    HIGHTV

    programs

    are not

    in

    3D

    (Page 16)

    16. Ronny Shany explains his vision for expansion of

    HIGHTV 3D

    in an article from

    the

    nternet

    that will cause further confusion to viewers,

    sponsors

    and television

    broadcast

    networks who will

    be

    making decisions as to airing Plaintiffs

    HIGHTV

    programming

    and

    as

    to

    the

    service

    the

    Plaintiffs

    HIGHTV

    provides. (Page 17)

    COMPLAINT

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    16a. Plaintiff has contacted the defendants in this case by mail and has not received a

    reply. Plaintiff has spoken with Eric Klein and Ronny Shany on the phone in November

    2014 and was summarily dismissed by both of them. (Page 18 & 18a

    35

    (15 U S C

    1117 .

    Recovery

    of

    profits, damages,

    and costs

    17. Plaintiff has invested one hundred

    and

    fifty thousand U S dollars into the production

    and completion of Patrishaa's Workshop that includes thirteen

    twenty-two minute

    episodes (four

    hours

    of broadcast

    ready

    television

    programming

    which includes closed

    captioning) each episode opening visually with the registered service trademark HIGHTV

    to identify the style of programming. Any

    and

    all of the Plaintiffs productions have

    and

    will

    continue to open

    with

    the tag five- second video HIGHTV along with the service description

    your guide to an

    altered

    state of mind .

    18. Plaintiffs Internet HIGHTV TV network has been stalled for months, along

    with

    approaching broadcasting

    networks

    and sponsors

    due

    to this

    major

    confusion and the

    intransigence of the Defendants. The confusion

    over

    services provided by

    the

    Plaintiffs

    programming and the slow down

    of

    attracting sponsorship due to confusion created by the

    Defendants.

    FIRST CLAIM

    FOR

    RELIEF

    Infringement of Federally Registered Trademarks and Service Marks 15 U.S.C. 1114(1)(a)

    COMPLAINT Page 6

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    19

    Plaintiff realleges and incorporates each and every allegation contained in the

    paragraphs above with the same force and effect as if said allegations were fully set forth herein.

    20. Plaintiffhas been injured by this action. Plaintiff borrowed 60,000.00 U.S. dollars to

    produce a TV series and upon completion of the production which took four years 2010-2014 for

    a grand total of 150,000.00 U.S. dollars (this total is the time, equipment and the afore

    mentioned loan) Plaintiff now enters the broadcast market with a TV series with the service

    trademark HIGHTV that provides a service, however it is not 3D programming. Plaintiff has

    been damaged in that the Plaintiff cannot calculate how many hours and if it is even possible to

    enter the broadcast market now with the registered HIGHTV service trademark to successfully

    sell sponsorship and provide the HIGHTV service after the Defendants have globally usurped

    Plaintiffs service trademark for over four years.

    21a. Due to

    the

    Defendant's infringement of HIGHTV ttr cting viewers nd sponsors will

    be difficult nd take longer to realize a return on the Plaintiffs investment, as

    the

    Plaintiff

    will have to continually explain HIGHTV is not HIGHTV 3D for

    n unknown

    mount

    of

    time.

    21 b Plaintiff pr ys for relief for d m ges in the amount of 150,000.00 U.S. dollars to be

    used to rehabilitate the duly registered trademark HIGHTV.

    COMPLAINT

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    SECOND CLAIM FOR RELIEF

    Infringement

    of

    Federally Registered Trademarks and Service Marks 15 U.S.C. 1114 l) a)

    21. Plaintiff realleges and incorporates each and every allegation contained in the paragraphs

    above with the same force and effect as if said allegations were fully set forth herein.

    22. As a result

    of

    Defendants infringement, Plaintiff has suffered substantial damages,

    as

    well as the continuing loss

    of

    the goodwill and reputation established by Plaintiff in its

    Federally registered mark.

    22a. The continuing confusion caused by the Defendants cannot be properly calculated and

    thus constitutes irreparable harm and an injury for which Plaintiff has no adequate remedy at

    law.

    23. Plaintiff will continue

    to

    suffer irreparable harm unless this Court enjoins Defendants

    conduct by issuing an immediate cease and desist order issued against Ronny Shany, Eric Klein

    and

    HIGHTV

    3

    the

    media distribution outlets Plaintiffs HIGHTV registration covers.

    COMPL INT

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    THIRD CLAIM FOR RELIEF

    24. Plaintiff realleges and incorporates each and every allegation contained in the paragraphs

    above with the same force and effect as

    if

    said allegations were fully set forth herein.

    25. Defendants actions constitute knowing, deliberate, and willful infringement of Plaintiffs

    federally registered mark. The knowing and intentional nature of the acts set forth herein renders

    this an exceptional case under 5 U.S.C. 1117 a).

    26. Ordering Defendants to pay a judgment in the amount of laintiffs actual damages

    under 15 U.S.C. 1117 as well as Defendants profits, and pre- and post-judgment interest

    pursuant to 15 U.S.C. 1117, in a amount to be accessed by the court.

    27. Ordering Defendants to pay laintiffs (should they arise) reasonable attorneys fees and

    costs

    ofthis

    action under 15 U.S.C. 1117

    28. Ordering Defendants to pay a judgment for enhanced damages under 15 U .S.C. 1117

    and;

    29

    Granting Plaintiff such other and further relief as the Court deems

    just

    and proper.

    RESPECTFULLY SUBMITTED this r :J

    2

    2 \ s

    HEIDIE McCall

    COMPLAINT

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