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PLAINTIFFS
ARTHUR M. DULA, AS TRUSTEE OF THE ROBERT A. AND VIRGINIAHEINLEIN PRIZE TRUST DATED 1991
DEFENDANTS
START PUBLISHING LLC
ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBERMarc P. Mistrial Phone:212-684-3900
Gottlieb, Rackman & Reisman PC [email protected] Madison Avenue, 8th Fir New York NY 10016
ATTORNEYS (IF KNOWN)
"JUN 1 02014
CAUSE OF ACTION (CITETHE U.S. CIVIL STATUTEUNDERWHICH YOUARE FILING ANDWRITEA BRIEF STATEMENT OF CAUSE)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
17U.S.C. 101 etseq.
Has this action, case, orproceeding, oroneessentially thesamebeen previously filed in SDNY at any time? NcUJ'esI—budge Previously Assigned
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NATURE OF SUIT
CONTRACT PERSONAL INJURY
I ] no INSURANCE [ ] 310 AIRPLANEI I 120 MARINE [ ]315 AIRPLANE PRODUCT[ )130 MILLER ACT LIABILITY
[ 1140 NEGOTIABLE [ ] 320 ASSAULT, LIBEL &INSTRUMENT SLANDER
1 ]150 RECOVERY OF [ ] 330 FEDERALOVERPAYMENT & EMPLOYERS'
ENFORCEMENT LIABILITY
OF JUDGMENT [ ] 340 MARINEI 1151 MEDICARE ACT I ] 345 MARINE PRODUCT[ 1152 RECOVERY OF LIABILITY
DEFAULTED [ ] 350 MOTOR VEHICLESTUDENT LOANS ( ] 355 MOTOR VEHICLE(EXCL VETERANS) PRODUCT LIABILITY
[ ]153 RECOVERY OF [ J 360 OTHER PERSONALOVERPAYMENT INJURY
OF VETERAN'S [ ] 362 PERSONAL INJURY -BENEFITS MED MALPRACTICE
[ ]160 STOCKHOLDERS
SUITS
( ] 190 OTHER
CONTRACT
[ ]195 CONTRACT
PRODUCT ACTIONS UNDER STATUTES
LIABILITY
[ ] 196 FRANCHISE CIVIL RIGHTS
[ ] 440 OTHER CIVIL RIGHTS
REAL PROPERTY(Non-Prisoner)
[ J 441 VOTING
[ 1210 LAND [ ] 442 EMPLOYMENTCONDEMNATION [ ] 443 HOUSING/
[ ]220 FORECLOSURE ACCOMMODATIONS
[ ]230 RENT LEASE & [ ] 445 AMERICANS WITH
EJECTMENT DISABILITIES -
[ J 240 TORTS TO LAND EMPLOYMENT
[ J 245 TORT PRODUCT [ J 446 AMERICANS WITH
LIABILITY DISABILITIES -OTHER
[ 1290 ALL OTHER
REAL PROPERTY
[ ] 448 EDUCATION
Checkifdemanded in complaint:
CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23•
DEMAND $_ OTHER
Check YES onlyifdemanded incomplaintJURY DEMAND: DYES UNO
PERSONAL INJURY[ ] 367 HEALTHCARE/PHARMACEUTICAL PERSONAL
INJURY/PRODUCT LIABILITY
[ ] 365 PERSONAL INJURYPRODUCT LIABILITY
[ J 368 ASBESTOS PERSONALINJURY PRODUCT
LIABILITY
PERSONAL PROPERTY
[ 1 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING
FORFEITURE/PENALTY
[ ] 625 DRUG RELATED
SEIZURE OF PROPERTY
21 USC 881
[ ] 690 OTHER
[ 1 380 OTHER PERSONALPROPERTY DAMAGE
[ 1 385 PROPERTY DAMAGEPRODUCT LIABILITY
PRISONER PETITIONS
[ 1463 ALIEN DETAINEE[ )510 MOTIONS TO
VACATE SENTENCE
28 USC 2255
[ 1 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER
PRISONER CIVIL RIGHTS
[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION[ ] 560 CIVIL DETAINEE
LABOR
( ] 710 FAIR LABORSTANDARDS ACT
[ ] 720 LABOR/MGMTRELATIONS
[ I 740 RAILWAY LABOR ACT
[ J 751 FAMILY MEDICALLEAVE ACT (FMLA)
[ J 790 OTHER LABORLITIGATION
[ ] 791 EMPL RET INCSECURITY ACT
IMMIGRATION
[ ] 462 NATURALIZATIONAPPLICATION
[ ] 465 OTHER IMMIGRATIONACTIONS
CONDITIONS OF CONFINEMENT
ACTIONS UNDER STATUTES
BANKRUPTCY
[ ] 422 APPEAL28 USC 158
[ J 423 WITHDRAWAL28 USC 157
PROPERTY RIGHTS
M 820 COPYRIGHTS
840 TRADEMAR
SOCIAL SECURITY
[ ]861 HIA(1395ff)[ ] 862 BLACK LUNG (923)[ ] 863 DIWC/DIWW (405(g))[ J 864 SSID TITLE XVI[ ] 865 RSI (405(g))
FEDERAL TAX SUITS
[ ] 870 TAXES (U.S. Plaintiff orDefendant)
[ )871 IRS-THIRD PARTY26 USC 7609
OTHER STATUTES
375 FALSE CLAIMS400 STATE
REAPPORTIONMENT
[ ]410 ANTITRUST[ ) 430 BANKS & BANKING[ ] 450 COMMERCE[ ] 460 DEPORTATION[ ) 470 RACKETEER INFLU
ENCED & CORRUPT
ORGANIZATION ACT
(RICO)[ ] 480 CONSUMER CREDIT[ ] 490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/COMMODITIES/
EXCHANGE
f)
[ ] 890 OTHER STATUTORYACTIONS
[ ] 891 AGRICULTURAL ACTS
[ ] 893 ENVIRONMENTALMATTERS
[ ] 895 FREEDOM OFINFORMATION ACT
[ ] 896 ARBITRATION
[ ) 899 ADMINISTRATIVEPROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION
[ ] 950 CONSTITUTIONALITYOFSTATE STATUTES
DO YOU CLAJM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?
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(PLACE AN x INONE BOX ONLY) ORIGIN
H 1 Original LJ 2 Removed from •—I 3 Remanded D 4 Reinstated or Lj 5 Transferred from O 6 MultidistrictProceeding state Court from Reopened (Specify District) Litigation
• a. all parties represented cTon^| | b. At least one
party is pro se.
(PLACEANxINONEBOXONLY) BASIS OF JURISDICTION IFDIVERSITY, INDICATE
• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT \*\ 3 FEDERAL QUESTION D4 DIVERSITY CITIZENSHIP BELOW.(U.S. NOT A PARTY)
CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiff and one box for Defendant)
I I 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment
CITIZEN OF THIS STATE
PTF DEF
[]1 []1 CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
PTF DEF
t ]3[ ]3
[ ]4[ ]4
PTF DEF
INCORPORATED and PRINCIPAL PLACE [ ] 5 [ ] 5OF BUSINESS IN ANOTHER STATE
CITIZEN OF ANOTHER STATE [ ] 2 INCORPORATED or PRINCIPAL PLACE
OF BUSINESS IN THIS STATE
PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
FOREIGN NATION ]6 [ ]6
DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE91BENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:
Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS [x] MANHATTAN(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTSCOMPLAINT.)
DATE 6/10/2014 SJGjNATUREJJF ATTCjRNEiY/PF RECORD ADMITTED TO PRACTICE IN THIS DISTRICT[ ] NOM YES (DATE ADMITTED Mo.October Yr. 2000 )
RECEIPT # ' '(tV"v»^ • - /rr*ir\*i«s-^ Attorney Bar Code # MPM-6636
Magistrate Judge is to be designated by the Clerk of the Court.
Magistrate Judge mr BFlTl T^H^ANRuby J. Krajick, Clerk of Court by. Deputy Clerk, DATED
UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)
Clear Form Save
is so Designated.
JUDGE C0T6UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ARTHUR M. DULA, AS TRUSTEE OFTHE ROBERT A. AND VIRGINIA
HEINLEIN PRIZE TRUST DATED 1991,
Plaintiff,
14 CV i JL O
CIVIL ACTION NO.
COMPLAINT
START PUBLISHING LLC,
Defendant.
ECF CASE
C
O
•par
ooro
Arthur M. Dula, as a trustee of The Robert A. and Virginia Heinlein Prize Trust
Dated 1991 (hereinafter "Plaintiff' or the "Trust"), for his Complaint against the
defendant Start Publishing LLC ("Defendant"), alleges:
JURISDICTION AND VENUE
1. This is an action for (i) copyright infringement under the Copyright Act, 17
U.S.C. § 101, et seq.; (ii) trademark infringement under the Lanham Act, 15 U.S.C. §
1114 et seq.; (iii) false designation of origin under the Lanham Act, 15 U.S.C. §1125 (a);
(iv) trademark counterfeiting under the Lanham Act, 15 U.S.C. § 1114etseq.; (v)
common law trademark infringement under the law of the State of New York; (vi)
common law unfair competition under the law of the State of New York; and (vii)
common law injury to business reputation and dilution under New York General
Business Law § 360-I.
2. This Court has jurisdiction over the subject matter of these claims
pursuant to 28 U.S.C. § 1338 and under principles of supplemental jurisdiction, 28
U.S.C. §1367(a).
3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
THE PARTIES
4. Arthur M. Dula is a trustee of The Robert A. and Virginia Heinlein Prize
Trust Dated 1991, a trust organized and existing under the laws of the State of Texas.
Arthur M. Dula brings this action in his capacity as a trustee of the Trust.
5. The Trust is authorized to do business in the State of New York, with an
office at Spectrum Literary Agency, described below. The Trust is registered with the
New York State Charities Bureau, under registration number 43-70-03.
6. The Trust is the successor-in-interest to, and the owner of, all copyrights
and trademarks in and relating to works authored by Robert A. Heinlein ("Heinlein"),
except for six copyrights owned by The Robert A. and Virginia Heinlein Library
Foundation. The Trust owns the copyright and trademark asserted in the present
litigation, which have been, and are continuing to be, infringed by Defendant.
7. Spectrum Literary Agency, with a business address of 320 Central Park
West Suite 1-D, New York, NY 10025, is the agent for the Trust, and conducts all
licensing and permissions relating to Heinlein's works on behalf of the Trust, throughout
the United States.
8. Upon information and belief, defendant Start Publishing LLC is a Delaware
limited liability company with a principal place of business at 609 Greenwich Street,
Floor 6, New York, NY 10014.
9. Upon information and belief, defendant Start Publishing LLC does
business in this District, and is otherwise within the jurisdiction of this Court.
FACTS COMMON TO ALL COUNTS
10. Robert A. Heinlein, one of the foremost authors of science fiction, was
born on July 7, 1907. A graduate of the United States Naval Academy and a naval
officer, he turned to writing science fiction in the late 1930's, with his first story being
published in 1939. His writing endeavors were met with almost immediate success.
Heinlein was the first science fiction writer whose work was published in magazines of
general circulation, and among the first to publish successful novel-length works. Over
the course of his career, Heinlein authored over thirty books and over fifty short stories,
and was the recipient of several of the prestigious and well-known "Hugo" awards for
best writing in the science fiction genre. Heinlein's works have formed the basis for four
motion pictures and two television series, and have sold millions of copies throughout
the world. His books are available in digital format for download on all of the leading
platforms, including the Apple Books store, the Google Play store, the Amazon Kindle
store and the Barnes and Noble Nook Book store (collectively, the "Ebook Stores").
Although Heinlein died in 1988, his name and reputation continue to inspire readers and
fellow writers to this day, and he remains an icon of high quality, informative writing in
the science fiction field.
11. As the owner of all intellectual property rights in the works of Heinlein, the
Trust owns the federally registered trademark ROBERT A. HEINLEIN, Registration
Number 4,145,235, in connection with science fiction books. A copy of the trademark
registration is attached as Exhibit A.
12. The Trust owns a U.S. copyright registration in "Assignment in Eternity," a
collection of four short stories which includes Heinlein's short story "Jerry Was A Man."
"Assignment in Eternity" was registered with the Copyright Office of the United States in
1953 under the title "Assignment in eternity; 4 long science fiction stories. Edited & rev.
by Robert Anson Heinlein" under Registration Number A00000110007, and the
copyright for this work was renewed in 1981 under Renewal Number RE 84-405. A
printout from the United States Copyright Office website evidencing this registration and
renewal is attached as Exhibit B.
13. Defendant has reproduced, distributed, made available, advertised,
offered for sale and sold copies of Heinlein's work "Jerry Was A Man" under the title
"Jerry Is A Man" in the Ebook Stores.
14. A printout of the Google Play webpage for Defendant's "Jerry Is A Man" is
attached as Exhibit C.
15. A printout of the Amazon Kindle store webpage for Defendant's "Jerry Is A
Man" is attached as Exhibit P.
16. A printout of the Apple iBooks store webpage for Defendant's "Jerry Is A
Man" is attached as Exhibit E.
17. A printout of the Barnes and Noble Nook Book Store webpage for
Defendant's "Jerry Is A Man" is attached as Exhibit F.
18. The descriptions of Defendant's "Jerry Is A Man" ebook in the Ebook
Stores state that the short story is by "Grandmaster Robert A. Heinlein."
19. Defendant's "Jerry Is A Man" ebook features the text "Copyright © 2012 by
Start Publishing LLC."
20. These infringing copies are harming the Trust's reputation for quality as
they are, inter aliai posted under the incorrect name "Jerry Is A Man."
21. A customer review posted under the title "Great story, but..." on the
Amazon Kindle webpage for the infringing copy, Exhibit D, states "This edition seems
kind of sketchy to me. For one thing, it got the title wrong...."
22. Additionally, the Barnes and Noble Nook Book store page, Exhibit F,
features a customer review that states, inter alia, "The story ends on page 42, even
though the font is VERY LARGE. The cover image comes from a stock photo company.
There is no title on the binder because the binder is too narrow. If you really want to do
read this short story, buy Assignment in Eternity for about $10."
23. Upon information and belief, Defendants' infringing copies of Heinlein's
copyright works has been purchased and downloaded by users around the country,
including users in this District.
COUNT I
Copyright Infringement of "Assignment In Eternity"
24. Plaintiff repeats and realleges each allegation in paragraphs 1 to 21 as if
fully set forth herein.
25. This count arises under the Copyright Act, 17 U.S.C. § 101, et seq.
26. One of Heinlein's works is "Assignment in Eternity," which includes the
short story "Jerry Was A Man."
27. This work is wholly original and is copyrightable under the Copyright Laws
of the United States, 17 U.S.C. §101 et seq.
28. "Assignment in Eternity" was registered with the Copyright Office of the
United States in 1953 under the title "Assignment in eternity; 4 long science fiction
stories. Edited & rev. by Robert Anson Heinlein" under Registration Number
A00000110007, and the copyright for this work was renewed in 1981 under Renewal
Number RE 84-405.
29. All copies of "Assignment in Eternity" have been sold in conformity with
the provisions of the Copyright Laws of the United States. Plaintiff is the owner of all
right, title and interest in the copyright of "Assignment in Eternity" and has the right to
sue for infringement thereof.
30. Defendant has infringed said copyright by reproducing, distributing,
making available, offering for sale, and selling a virtually identical textual copy of this
copyrighted work in the Ebook Stores. All of the aforesaid activities of Defendant are in
violation of the rights of Plaintiff under 17 U.S.C. §101 et seq.
31. All of the acts of Defendant, as set forth in the preceding paragraphs, were
without the permission, license or consent of Plaintiff.
32. The aforesaid acts of infringement by Defendant require an imposition on
Defendant of statutory damages in the amount of $ 150,000.00, and will, if continued,
cause a loss of rights by Plaintiff in an amount exceeding $ 1 million.
COUNT II
Trademark Infringement
33. Plaintiff repeats and realleges each allegation in paragraphs 1 to 30 as if
fully set forth herein.
34. This count arises under the Lanham Act, 15 U.S.C. § 1114, et seq.
35. Plaintiff is the owner of the right, title and interest in and to the federally
registered trademark No. 4145235 for the mark ROBERT A. HEINLEIN in connection
with science fiction books.
36. Defendant has affixed, applied and used in connection with the
unauthorized reproduction, distribution, advertising, making available, offering for sale
and sale of copies of Heinlein's work representations of the trademark ROBERT A.
HEINLEIN, and has caused such copies to enter into commerce in the United States, to
Plaintiff's detriment.
37. Defendant has improperly reproduced, distributed, advertised, made
available, offered for sale and sold unauthorized copies of the work bearing the
ROBERT A. HEINLEIN trademark with the intent to cause confusion and mistake, to
deceive and mislead the purchasing public and to improperly appropriate the valuable
trademark rights of Plaintiff.
38. The acts of Defendant described herein were undertaken without the
permission, license or consent of Plaintiff and are damaging to Plaintiff.
39. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $1 million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
COUNT III
False Designation of Origin
40. Plaintiff repeats and realleges each allegation in paragraphs 1 to 37 as if
fully set forth herein.
41. This count arises under the Lanham Act, 15 U.S.C. § 1125 (a).
42. Defendant's efforts to misrepresent itself as a legitimate source of the
work bearing the ROBERT A. HEINLEIN mark takes control of the reputation and
goodwill of the work away from the Trust, which owns and is responsible for the goodwill
of the ROBERT A. HEINLEIN mark in the United States and elsewhere in the world.
43. Defendant has improperly offered for sale and sold unauthorized copies of
the work bearing the ROBERT A. HEINLEIN mark that is the subject of the Trust's
trademark registration with the intent to cause confusion and mistake, to deceive and
mislead trade and the purchasing public and to improperly appropriate Plaintiff's
valuable trademark rights.
44. Defendant's said acts violate Section 43 (a) of the Lanham Act, 15 U.S.C.
§ 1125(a).
8
45. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $1 Million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
COUNT IV
Trademark Counterfeiting
46. Plaintiff repeats and realleges each allegation in paragraphs 1 to 43 as if
fully set forth herein.
47. This count arises under the Lanham Act, 15 U.S.C. § 1114, et seq.
48. Plaintiff has never authorized Defendant to use the ROBERT A.
HEINLEIN mark, to apply the mark to the works of Heinlein or to offer for sale or sell
copies bearing the mark.
49. Defendant has reproduced, distributed, advertised, made available,
offered for sale and sold these counterfeit copies of a work by Heinlein which bear a
counterfeit of the ROBERT A. HEINLEIN mark in a manner that is identical to or
substantially indistinguishable from the registered mark.
50. Upon information and belief, Defendant's acts have been done willfully
and intentionally, with full knowledge of Plaintiff's trademark rights.
51. Defendant's infringing acts have caused and will continue to cause
Plaintiff irreparable harm and injury.
52. Defendant has improperly reproduced, distributed, advertised, made
available, offered for sale and sold counterfeit copies of this work by Heinlein bearing
the counterfeit trademark with the intent to cause confusion and mistake, to deceive the
public and to improperly appropriate Plaintiff's valuable trademark rights.
53. Defendant's said acts violate Section 32 of the Lanham Act, 15 U.S.C. §
1114.
54. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $ 1 million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
COUNT V
New York Common Law Trademark Infringement
55. Plaintiff repeats and realleges each allegation in paragraphs 1 to 52 as if
fully set forth herein.
56. This count arises under the common law of the State of New York.
57. Plaintiff owns all right, title and interest in and to the ROBERT A.
HEINLEIN trademark, including all common law rights in such mark, and such mark is
distinctive.
58. Defendant has affixed, applied and used in connection with the improper
reproduction, distribution, advertisement, making available, offering for sale and sale of
unauthorized copies of the work representations of the trademark ROBERT A.
HEINLEIN, and has caused such unauthorized copies to enter into commerce in the
10
United States, to Plaintiff's detriment.
59. Defendant has improperly reproduced, distributed, advertised, made
available, offered for sale and sold unauthorized copies of the works bearing the
counterfeit ROBERT A. HEINLEIN trademark with the intent to cause confusion and
mistake, to deceive and mislead the purchasing public and to improperly appropriate the
valuable trademark rights of Plaintiff.
60. The acts of Defendant described herein were undertaken without the
permission, license or consent of Plaintiff and are damaging to Plaintiff.
61. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $1 million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
COUNT VI
New York Common Law Unfair Competition
62. Plaintiff repeats and realleges each allegation in paragraphs 1 to 59 as if
fully set forth herein.
63. This count arises under the common law of the State of New York.
64. Upon information and belief, Defendant has intentionally misappropriated
the ROBERT A. HEINLEIN mark that is the subject of the Trust's trademark registration
with the intention of causing confusion, mistake and deception among consumers as to
the source of the work and with the intent to unfairly profit from Plaintiff's goodwill at
11
Plaintiff's expense.
65. As a result of the foregoing, Defendant's actions constitute unfair
competition and misappropriation, which have had and will continue to have a
detrimental effect on the general consuming public in violation of the common law of the
State of New York.
66. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $1 million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
COUNT VII
Injury to Business Reputation and Dilution
67. Plaintiff repeats and realleges each allegation in paragraphs 1 to 64 as if
fully set forth herein.
68. This count arises under § 360-I of the New York General Business Law.
69. By reason of the practices and acts set forth above, Defendant is likely to
injure the Trust's reputation and dilute the distinctive quality of the ROBERT A.
HEINLEIN mark.
70. These acts of Defendant are without the permission, license or consent of
Plaintiff and, unless enjoined by this Court, Defendant will continue these practices and
acts, thereby harming Plaintiff's business reputation and causing Plaintiff immediate and
irreparable injury.
12
71. Defendant's wrongful acts have injured Plaintiff in an amount thus far not
determined, but if continued will result in damages of at least $ 1 million. Further,
Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer
irreparable harm for which it has no adequate remedy at law.
WHEREFORE, Plaintiff prays for a judgment against Defendant as follows:
A. Finding that (i) Defendant has violated the Copyright Laws of the
United States of America (17 U.S.C. §§ 101 et seq.); (ii) Defendant has violated Section
32 of the Lanham Act (15 U.S.C. § 1114); Section 43 (a) of the Lanham Act (15 U.S.C.
§ 1125 (a)); and Section 43 (c) of the Lanham Act (15 U.S.C. § 1125(c)); (iii) Defendant
has diluted the ROBERT A. HEINLEIN mark in violation of New York General Business
Law § 360-1; and that (iv) Defendant has engaged in trademark infringement and
unfair competition under New York common law.
B. That Defendant be enjoined preliminarily during the pendency of
this action, and permanently from infringing Plaintiff's registered copyright and
trademark in any manner including but not limited to reproducing, printing, reprinting,
publishing, vending, distributing, making available, offering for sale, selling, displaying,
promoting or advertising any copies of the work;
C. Directing Defendant to deliver to Plaintiff for destruction all items in
its possession bearing any of Plaintiff's trademarks and/or any unauthorized
reproductions, counterfeits, copies or colorable imitations thereof;
13
D. Directing Defendant to immediately delete or destroy all of their files
and hard drives displaying or bearing Plaintiffs copyrighted work or trademark;
E. Directing Defendant to remove all references to or images of the
copyrighted work and the ROBERT A. HEINLEIN mark from the Ebook Stores;
F. Directing Defendant to account to Plaintiff for all profits resulting
from Defendant' infringing activities;
G. Directing the Ebook Stores to disable and remove Defendant's
infringing copy of Heinlein's copyrighted work and all mentions of the ROBERT A.
HEINLEIN mark;
H. Awarding Plaintiff its damages from Defendant's wrongful acts;
I. Awarding Plaintiff three times the amount of Plaintiff's damages or
Defendant' profits, whichever is greater;
J. Awarding Plaintiff the cost of this action, as well as reasonable
attorneys' fees;
K. Awarding Plaintiff punitive damages as a result of Defendant's
wrongful acts;
L. Awarding Plaintiff, at its election, statutory damages for a
copyrighted work in connection with which Defendant's infringing copy of the Plaintiff's
work;
M. Directing that this Court retain jurisdiction of this action for the
purpose of enabling the Trust to apply to the Court at any time for such further orders
and interpretation or execution of any order entered in this action, for the modification of
14
any such order, for the enforcement or compliance therewith and for the punishment of
any violations thereof; and
N. Awarding Plaintiff such other and further relief as the Court may
deem just and proper.
Dated: June 10,2014
GOTTLIEB, RACKMAN& REISMAN, P.C
fatGeorge Gottlieb, Esq. (GG-5761)[email protected] P. Misthal, Esq. (MPM-6636)[email protected] M. Purow (JP-0052)[email protected] Madison Avenue
New York, New York 10016(212)684-3900(212) 684-3999 (fax)
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