Sohmer Trademark Infringement Complaint
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Case 3:09-cv-00197-LRH-VPC
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Document 1
Filed 04/15/2009
Page 1 of 15
Michael D. Rounds, Esq. State Bar No. 4734 Matthew D. Francis, Esq. State Bar No. 6978 WATSON ROUNDS 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. California State Bar No. 125,378 Kelly W. Cunningham, Esq. California State Bar No. 186,229 CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending Attorneys for Plaintiff SAMICK MUSIC CORPORATION
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SAMICK MUSIC CORPORATION, a California corporation,
) ) ) Plaintiff, ) ) v. ) ) PERSIS INTERNATIONAL, INC., a Nevada) corporation, ) ) Defendant. ) ) ) ) ) ) ) ) )
Case No. VERIFIED COMPLAINT FOR: (1) FEDERAL TRADEMARK INFRINGEMENT; (2) COMMON LAW TRADEMARK INFRINGEMENT; (3) FEDERAL TRADEMARK DILUTION; (4) FEDERAL UNFAIR COMPETITION; (5) STATE AND COMMON LAW UNFAIR COMPETITION JURY DEMAND
For its Complaint, Plaintiff SAMICK MUSIC CORPORATION (“Samick”) hereby alleges and asserts as follows:
Case 3:09-cv-00197-LRH-VPC
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
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1.
Document 1
Filed 04/15/2009
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This is an action for federal trademark infringement, federal unfair competition,
2
and federal trademark dilution in violation of the Federal Lanham Act, 15 U.S.C. § 1051, et seq.;
3
common law trademark infringement; and state unfair competition in violation of Cal. Bus. &
4
Prof. Code § 17200, et seq., against Defendant PERSIS INTERNATIONAL, INC. (“Defendant”),
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for its commercial use and exploitation of Samick’s SOHMER trademarks on or in connection
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with the sale of pianos. Samick hereby seeks (1) injunctive relief against Defendant’s continued
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unauthorized and improper commercial use and exploitation of any trademark confusingly similar
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to Samick’s SOHMER trademarks on or in connection with the sale of any musical instruments,
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including pianos, or their components or accessories; and (2) all damages arising from
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Defendant’s past and present infringement and reimbursement of Samick’s attorneys’ fees and
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costs for having to bring this suit to enforce its trademark rights. I.
12 2.
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Samick is a California corporation with its principal place of business in Gallatin,
Tennessee. 3.
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THE PARTIES
Samick is informed and based thereon believes that Defendant is a Nevada
corporation with an office in Chicago, Illinois. II.
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4.
JURISDICTION AND VENUE
This Court has jurisdiction pursuant to 15 U.S.C. § 1121, and 28 U.S.C. §§ 1331
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and 1338(a) over the federal trademark infringement and dilution claims, which arise under the
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Federal Lanham Act, 15 U.S.C. §§ 1051, et seq; and has jurisdiction pursuant to 28 U.S.C. §§
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1338(b) and 1367 over the state unfair competition and common law trademark infringement
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claims.
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5.
Upon information and belief, this Court has personal jurisdiction over Defendant
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since Defendant was incorporated under the laws of Nevada and thereby resides in this State.
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Upon information and belief, venue is proper in the Reno Division of the District of Nevada as to
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Defendant pursuant to 28 U.S.C. §§ 1391(b) and (c) Defendant was incorporated under the laws
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of Nevada and is thereby resides in this State and has transacted business in this District during
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times relevant to this action, including a substantial part of the events giving rise to the claims 2
Case 3:09-cv-00197-LRH-VPC
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CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
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Filed 04/15/2009
Page 3 of 15
Samick alleges and asserts herein. III.
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Document 1
A.
BACKGROUND FACTS
Samick’s SOHMER Trademarks and Pending Trademark Applications 6.
Samick has been using the SOHMER™ trademark continuously since at least
5
2003 in connection with one of the highest quality lines of pianos in the world and, upon
6
information. Samick is informed and based thereon believes that its predecessors-in-interest have
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likewise been using the SOHMER™ trademark continuously before that time since at least as
8
early as 1872 in connection with one of the highest quality lines of pianos in the world.
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7.
Samick is informed and based thereon believes that in or about 1872, Hugo
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Sohmer, a German immigrant in New York founded the Sohmer & Co., Inc. and adopted and
11
began using the SOHMER trademark on his pianos made with the highest craftsmanship. Sohmer
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& Co., Inc. changed its name to Sohmer Corporation in 1989, merged with Mason & Hamlin Co.
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in 1994, and was purchased by Burgett, Inc. in 1996.
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8.
Samick is informed and based thereon believes that Burgett has been using the
15
SOHMER trademark on its pianos and related products and components therefor since at least as
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early as 1996, when it acquired the SOHMER trademark, along with all of the assets of Mason &
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Hamlin Co., including its original piano rim presses, the long-standing factory in Haverhill,
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Massachusetts’ historic district, and a completely documented computer-based archive of the
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authentic piano designs.
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9.
On or about 2002, Samick acquired the exclusive license to sell musical
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instruments, namely pianos, using the SOHMER trademark.
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acquired by assignment from Burgett, Inc. all rights, title, and interest in and to all of Burgett,
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Inc.’s rights in the SOHMER trademarks and the business pertaining thereto. Accordingly, at all
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times relevant to this action up until it acquired outright the foregoing SOHMER trademarks and
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trademark applications, Samick was the exclusive licensee of the SOHMER trademarks.
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10.
On March 11, 2009, Samick
Consequently and by written assignment, Samick is the current owner (by
assignment) of the following trademarks: a.
SOHMER (in stylized lettering); 3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Case 3:09-cv-00197-LRH-VPC
Document 1
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b.
SOHMER (separate and apart from any particular lettering);
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c.
SOHMER and Shield Design with White Piano; and
3
d.
SOHMER & CO.
4
These trademarks were previously registered as U.S. Trademark Registration Nos. 85,691;
5
119,130; 137,464; 1,786,687; but each of these registrations was subsequently deemed canceled
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by United States Patent and Trademark Office due to the failure of a predecessor-in-interest to
7
timely file with the United States Patent and Trademark Office the necessary trademark
8
registration renewal papers; and
9
e.
SOHMER and Shield Design with Black Piano;
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This trademark was previously the subject of U.S. Trademark Application Serial No.
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76/535,595; but this application was subsequently deemed abandoned by United States Patent and
12
Trademark Office due to the failure of a predecessor-in-interest to timely file with the United
13
States Patent and Trademark Office a response to a non-final office action.
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The foregoing five (5) trademarks referenced in this paragraph are hereinafter collectively
15
referred to as the “SOHMER trademarks.” Attached hereto as Exhibits 1 through 5 are true and
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correct copies of the Trademark Office records pertaining to these five previously registered
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trademarks.
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By written assignment, Samick is also the current owner and applicant of the following
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federal trademark applications:
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a.
U.S. Trademark Application Serial No. 76/214,968 for SOHMER; and
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b.
U.S. Trademark Application Serial No. 76/546,304 for SOHMER &
22
CO.
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On or about October 25, 2002, the United States Patent and Trademark Office erroneously
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converted SOHMER Trademark Application Serial No. 76/214,968 to the Supplemental Register.
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The United States Patent and Trademark Office ultimately reversed this error, found this
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application allowable, the published it for opposition.
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Samick’s two (2) pending trademark applications, Serial Nos. 76/214,968 and 76/546,304,
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are hereinafter collectively referred to as the “SOHMER trademark applications.” Attached 4
Case 3:09-cv-00197-LRH-VPC
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
Page 5 of 15
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hereto as Exhibits 6 and 7 are true and correct copies of the Trademark Office records pertaining
2
to these two trademark applications.
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
11.
Samick manufactures and sells musical instruments, namely high-end pianos, and
4
related products and components therefor under the SOHMER trademark. Samick has at all times
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relevant to this action appropriately accompanied the SOHMER trademarks with the proper
6
trademark notice on all such pianos and on their labels, tags, and packaging. Samick is informed
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and based thereon believes that Samick’s predecessors-in-interest also always appropriately
8
accompanied the SOHMER trademarks with the proper trademark notice on all such pianos and
9
on their labels, tags, and packaging.
10
12.
Although the trademark registrations have expired, they constitute further
11
evidence, along with the chain of title for each as recorded with the United States Patent and
12
Trademark Office, that Samick’s current commercial use of the SOHMER trademark justifiably
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relates back to 1872. In the more than 135 years since the humble beginning by Hugo Sohmer,
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Samick and its predecessors-in-interest developed SOHMER into one of the most revered
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trademarks in the piano market.
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13.
Samick currently maintains its website, www.smcmusic.com, wherein it advertises
17
the current well-known lines of SOHMER grand pianos. Attached hereto as Exhibit 8 are true and
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correct copies of web pages from Samick’s www.smcmusic.com website showing the SOHMER
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brand pianos and mark.
20
B.
Defendant’s Infringing Use and Interference
21
14.
Samick is informed and based thereon believes that Defendant has been and is
22
currently using the SOHMER mark on or in connection with the sale of pianos without any
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authorization from Samick or any of Samick’s predecessors-in-interest.
24 25 26
15.
Samick is informed and based thereon believes that Defendant has offered for sale
and has made sales of pianos using the SOHMER trademark to consumers in this judicial district. 16.
Samick is informed and based thereon believes that Defendant used the SOHMER
27
trademark in connection with pianos with full knowledge of Samick’s and Samick’s
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predecessors’-in-interest ownership of and senior rights in and to the SOHMER trademark. 5
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17.
Page 6 of 15
On or about January 15, 2003, Defendant offered for sale pianos under the
SOHMER trademark at the 2003 National Association of Music Merchants (“NAMM”) trade
3
show in Anaheim, California, January 15-18, 2003. 18.
At the NAMM trade shows, Defendant displayed to the public pianos with the
5
SOHMER trademark on the surface and under a large banner that included the SOHMER
6
trademark in prominent letters. 19.
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SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
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CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
According to the trade show directory, Defendant was advertising “Sohmer & Co.
8
Pianos,” “Sohmer Pianos,” and “Sohmer & Son Pianos,” showing the same mailing address as
9
Defendant’s pending trademark application.
10
20.
Samick is informed and based thereon believes that, on February 15, 2001, Edward
11
F. Richards filed a federal intent-to-use trademark application for SOHMER for pianos, which
12
was given U.S. Trademark Application Serial No. 76/210,248.
13
testified in writing and under oath to the United States Patent and Trademark Office that he first
14
used SOHMER in commerce in connection with pianos on June 26, 2001. On or about October
15
8, 2002, Mr. Richards assigned his rights in the application to his company, the Defendant. On
16
September 26, 2002, the United States Patent and Trademark Office entered a notice of
17
suspension in Trademark Application Serial No. 76/210,248 pending the disposition of the above-
18
mentioned SOHMER Trademark Application Serial No. 76/214,968 owned by Samick. Attached
19
hereto as Exhibit 9 is a true and correct copy of the notice of suspension entered in this trademark
20
application.
21
21.
Mr. Richards subsequently
On October 29, 2002, Samick sent a cease and desist letter to Defendant
22
demanding that they cease and desist from all further use of the SOHMER trademarks, and it
23
withdraw the improper trademark application before the United States Patent and Trademark
24
Office.
25
22.
On October 19, 2004, Defendant filed a notice of opposition against Samick’s U.S.
26
Trademark Application Serial No. 76/214,968, which initiated Opposition Proceeding No.
27
91162715 before the Trademark Trial and Appeal Board. This opposition proceeding is still
28
pending, and consequently is preventing the federal re-registration of Samick’s U.S. Trademark 6
Case 3:09-cv-00197-LRH-VPC
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
Page 7 of 15
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Application Serial No. 76/214,968. The remainder of Defendant’s testimony period is scheduled
2
to re-open from May 5, 2009 to May 8, 2009, and Samick’s testimony period is scheduled to open
3
on June 7, 2009.
4
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
23.
The United States Patent and Trademark Office has suspended examination of
5
U.S. Trademark Application Serial No. 76/546,304 pending the outcome of Defendant’s U.S.
6
Trademark Application Serial No. 76/210,248, which in turn is suspended pending the outcome
7
of Samick’s U.S. Trademark Application No. 76/214,968, the subject of Trademark Opposition
8
No. 91162715 initiated by Defendant before the Trademark Trial and Appeal Board. Since this
9
opposition proceeding is still pending, Defendant is preventing the federal re-registration of
10
Samick’s U.S. Trademark Application Serial No. 76/546,304 as well.
11
FIRST CAUSE OF ACTION
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FEDERAL TRADEMARK INFRINGEMENT
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24.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 23 of this Complaint, and incorporates them herein as though set forth in full. 25.
This claim is against Defendant for trademark infringement in violation of Section
43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 26.
Samick is informed and based thereon alleges that Defendant has used, is using,
18
and intends to continue using now and in the future in commerce the term SOHMER as a
19
trademark for sales of pianos in such as way as will likely cause confusion or mistake, or will
20
likely deceive the public in relation to their products being associated or identified or being the
21
same as those of Samick.
22
27.
Samick never consented to or authorized Defendant’s adoption or commercial use
23
of the SOHMER trademarks for sales of the aforementioned products. Defendant therefore has
24
infringed and is infringing the SOHMER trademarks in violation of Section 43(a) of the Lanham
25
Act, 15 U.S.C. § 1125(a).
26
28.
The Ninth Circuit considers the following non-exclusive factors to determine
27
whether there is a likelihood of confusion: similarity of the marks; similarity of the products or
28
services; similarity of the marketing channels used; and likelihood of expansion in product lines; 7
Case 3:09-cv-00197-LRH-VPC
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strength of plaintiff’s mark; defendant's intent in selecting its mark; likely degree of care of
2
purchasers; and evidence of actual confusion. 29.
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
The SOHMER trademarks are very strong after years of successful marketing,
4
significant sales volume, critical acclaim, and widespread public recognition. Defendant likewise
5
sells pianos under the SOHMER trademarks and shares such similar marketing channels as to
6
cause a likelihood of confusion. These factors indicate that Defendant adopted the SOHMER
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trademark intending to ride on the goodwill and reputation of Samick and its predecessors-in-
8
interest.
9
30.
Samick is informed and based thereon alleges that, at all times relevant to this
10
action, including when Defendant first adopted the SOHMER trademarks and commenced their
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commercial use of the mark on pianos, Defendant knew of the prior adoption and widespread
12
commercial use of the SOHMER trademarks on pianos that Samick presently owns and knew of
13
the valuable goodwill and reputation acquired by Samick in connection with the SOHMER
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trademarks and products. Defendant’s infringement of the SOHMER trademarks is therefore
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willful and deliberate.
16
31.
Samick has no control over the composition and quality of the infringing pianos
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sold by Defendant. Samick is informed and believes and on that basis alleges that Defendant’s
18
use of the SOHMER trademarks has caused confusion and mistake and the deception of
19
purchasers as to the source of origin of Defendant’s infringing products.
20
confusion as to the source engendered by Defendant’s unauthorized use of the SOHMER
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trademarks, Samick’s valuable goodwill developed at great expense and effort by Samick is being
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harmed and at risk of further damage.
23
32.
Because of the
The goodwill of Samick’s business under the SOHMER trademarks is of
24
enormous value, and Samick will suffer irreparable harm should Defendant’s infringement be
25
allowed to continue to the great detriment of its reputation and goodwill.
26
infringement will continue unless enjoined.
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///
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/// 8
Defendant’s
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SECOND CAUSE OF ACTION
2
COMMON LAW TRADEMARK INFRINGEMENT
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SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
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CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
33.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 32 of this Complaint, and incorporates them herein as though set forth in full.
5
34.
This claim is against Defendant for common law trademark infringement.
6
35.
In addition to the federal registrations owned by Samick as set forth above, Samick
7
owns and uses the SOHMER trademarks and enjoys common law rights in California and
8
throughout the United States in and to the SOHMER trademarks on the goods set forth above, and
9
thus these rights are senior and superior to any rights which Defendant may claim in and to its
10 11
infringing products. 36.
Defendant’s use of its SOHMER trademark is intentionally designed to mimic
12
Samick’s products so as to likely cause and has caused confusion regarding the source of
13
Defendant’s products, in that purchasers thereof will be likely to associate or have associated such
14
products with, as originating with, or as approved by Samick, all to the detriment of Samick.
15
37.
Defendant’s infringement will continue unless enjoined.
16
THIRD CAUSE OF ACTION
17
FEDERAL TRADEMARK DILUTION
18 19 20
38.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 37 of this Complaint, and incorporates them herein as though set forth in full. 39.
As a result of the duration and extent of use of the SOHMER trademarks, the
21
duration and extent of the advertising and publicity of the SOHMER trademarks, the geographical
22
extent of the distribution of the same, the superior quality of Samick’s products and services, and
23
the degree of recognition of the SOHMER trademarks, the SOHMER mark has achieved an
24
extensive degree of distinctiveness and is a famous trademark.
25 26 27 28
40.
As a result of Defendant’s use and registration of the SOHMER mark, Defendant
is diluting the distinctive quality of SOHMER trademarks. 41.
Samick will suffer irreparable harm should Defendant’s illegal acts be allowed to
continue to the great detriment of its reputation and goodwill. Defendant’s acts will continue 9
Case 3:09-cv-00197-LRH-VPC
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FOURTH CAUSE OF ACTION
3
FEDERAL UNFAIR COMPETITION
4
IN VIOLATION OF 15 U.S.C. § 1125(a)
6
42.
Page 10 of 15
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 41 of this Complaint, and incorporates them herein as though set forth in full. 43.
7
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
unless enjoined.
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CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
The SOHMER trademark has become uniquely associated with, and hence
8
identifies, Samick and its predecessors-in-interest. Defendant’s use of the SOHMER trademark
9
constitutes a false designation of origin, or a false representation. Further, it wrongfully and
10
falsely designates Defendant’s products as originating from or connected with Samick and
11
constitutes utilizing false descriptions or representations in interstate commerce.
12
44.
The conduct of Defendant is likely to cause mistake, to deceive, and confuse
13
members of the public who would be wrongfully led to believe that Defendant is associated with
14
Samick, thereby depriving Samick of its valid trademark rights.
15
45.
Samick is informed and believes that Defendant, in adopting the SOHMER
16
trademarks, has acted willfully and with full knowledge of Samick’s rights in the SOHMER
17
trademarks, and has used this false designation of origin and description in contravention of
18
15 U.S.C. § 1125(a).
19
46.
The continued unauthorized use by Defendant of the confusingly similar
20
trademark in relation to the manufacture and sale of the pianos at issue is likely to cause
21
confusion and deception of the public and lead consumers and potential consumer to erroneously
22
associate the products of Defendant with Samick and/or to erroneously believe that the products
23
of Defendant are being placed upon the market with the consent and authority of Samick, as a
24
result of which the continue use by Defendant of the SOHMER trademarks has caused and,
25
unless restrained, will continue to cause serious and irreparable injury to Samick.
26
47.
27
ascertained.
28
///
By reason of the foregoing, Samick has been injured in an amount not yet
10
Case 3:09-cv-00197-LRH-VPC
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1
FIFTH CAUSE OF ACTION
2
STATE AND COMMON LAW UNFAIR COMPETITION
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CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
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48.
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Page 11 of 15
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 47 of this Complaint, and incorporates them herein as though set forth in full. 49.
This claim is against Defendant for unfair competition in violation of California
Business & Professions Code, §§ 17200, 17203. 50.
The SOHMER trademarks are wholly associated with Samick and its
8
predecessors-in-interest due to their extensive marketing efforts, sales successes, and pervasive
9
use thereof, and as such, Samick has developed valuable assets in the SOHMER trademarks and
10
its pianos sold under the SOHMER trademarks. It is only fair and legitimate that Samick be able
11
to continue its business without unfair, improper, unauthorized, and illegal interference by
12
Defendant as alleged herein.
13
51.
Defendant’s intentional misuse of the SOHMER trademarks on pianos appears
14
purposefully directed at undercutting Samick’s legitimate business involving their pianos and
15
constitutes unfair competition in violation of the California Business and Professions Code,
16
§§ 17200 and 17203.
17
52.
Samick alleges that the aforesaid acts of unfair competition undertaken by
18
Defendant was intentionally and knowingly performed and directed toward perpetuating a
19
business competing unfairly with Samick and were done with a willful disregard for the rights of
20
Samick.
21
53.
By reason of Defendant’s acts of unfair competition, Samick has suffered and will
22
continue to suffer irreparable injury unless and until this Court enters an order enjoining
23
Defendant from any further acts of unfair competition. Defendant continuing acts of unfair
24
competition, unless enjoined, will cause irreparable damage to Samick in that it will have no
25
adequate remedy at law to compel Defendant to cease such acts, and no way to determine its
26
losses proximately caused by such acts of Defendant. Samick will also be compelled to prosecute
27
a multiplicity of actions, one action each time Defendant commits such acts, and in each such
28
action it will still be extremely difficult to ascertain the amount of compensation which will 11
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afford Samick adequate relief. Samick is therefore entitled to a preliminary injunction and a
2
permanent injunction against further infringing conduct by Defendant. 54.
As a direct and proximate result of the aforesaid acts of unfair competition,
4
Defendant has wrongfully taken Samick’s profits and the benefit of their creativity and
5
investment of time, energy and money. Defendant should therefore disgorge all profits from the
6
sale of infringing products and further should be ordered to perform full restitution to Samick as a
7
consequence of Defendant’s infringing activities.
8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
1
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
9 10 11
55.
Samick is informed and believe that the use of the SOHMER trademarks by
Defendant was willful and with full knowledge of the unauthorized usage thereof. 56.
In doing the acts hereinabove alleged, Defendant has acted fraudulently,
oppressively, and maliciously, and will continue to so act unless enjoined. PRAYER FOR RELIEF
12 13
WHEREFORE, Samick prays for:
14
1.
15
An order permanently enjoining Defendant, its officers, agents, servants,
employees, attorneys, and all persons in active concert or participating with any of them, from:
16
a)
committing any further acts of trademark infringement,
17
b)
using any term that is likely to be confused with the SOHMER trademarks
18
asserted herein,
19
c)
20
representing directly or indirectly in any form or manner whatsoever that
any product is associated with or approved by Samick when, in fact, it is not, d)
21
passing off or inducing or enabling others to sell or pass off any non-
22
Samick product as an Samick product or as a product endorsed or approved by Samick,
23
and e)
24 25
any manner;
26
2.
27
committing any other act calculated to compete unfairly with Samick in
An order seizing and impounding all infringing products and all manufacturing
supplies in Defendant’s possession or control;
28 12
Case 3:09-cv-00197-LRH-VPC
1
3.
Page 13 of 15
An order requiring Defendant to file an express withdrawal of its federal
trademark application, U.S. Trademark Application Serial No. 76/210,248 with the United States
3
Patent and Trademark Office, and to refrain from seeking any other trademark registration
4
inconsistent with the foregoing injunctive relief;
6
4.
8
5.
6.
7.
An order for an accounting and disgorgement of Defendant’s profits from its
infringing and unfair business activity;
13 14
An order awarding to Samick damages in the amount that Samick has been harmed
by Defendant’s infringements and unfair business practices, in an amount Samick proves at trial;
11 12
An order to the United States Patent and Trademark Office to dismiss the
trademark opposition against the federal registration of Samick’s SOHMER trademark;
9 10
An order to the United States Patent and Trademark Office to cancel or to refuse
registration of U.S. Trademark Application Serial No. 76/210,248;
7
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
2
5
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
8.
A finding that Defendant has willfully and deliberately committed acts of
trademark infringement against Samick;
15
9.
An order trebling such damages against Defendant;
16
10.
An order for attorneys’ fees and costs that Samick incurred in having to bring and
17
sustain this action for the legal enforcement of its trademark and business rights against
18
Defendant;
19
///
20
///
21
///
22
///
23
///
24
///
25
///
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///
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///
28
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Case 3:09-cv-00197-LRH-VPC
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11.
Document 1
Filed 04/15/2009
Page 14 of 15
Such other and further equitable and legal relief as the Court may deem
appropriate.
3 4
Respectfully submitted,
5
WATSON ROUNDS
6 7
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
8 9 10 11 12 13 14 15
Dated: April 15, 2009
/s/ Matthew D. Francis Michael D. Rounds, Esq. Matthew D. Francis, Esq. 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. Kelly W. Cunningham, Esq. CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending
16 17
Attorneys for Plaintiff SAMICK MUSIC CORPORATION
18 19 20 21 22 23 24 25 26 27 28 14
Case 3:09-cv-00197-LRH-VPC
3
Filed 04/15/2009
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JURY DEMAND
1 2
Document 1
Plaintiff SAMICK MUSIC CORPORATION hereby demands a trial by jury as provided by Rule 38(a) of the Federal Rules of Civil Procedure and by the Local Rules of this Court.
4 Respectfully submitted,
5
WATSON ROUNDS
6 7
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
8 9 10 11 12 13 14 15 16 17
Dated: April 15, 2009
/s/ Matthew D. Francis Michael D. Rounds, Esq. Matthew D. Francis, Esq. 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. Kelly W. Cunningham, Esq. CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending Attorneys for Plaintiff SAMICK MUSIC CORPORATION
18 19 20 21 22 23 24 25 26 27 28 15
13th
Case 3:09-cv-00197-LRH-VPC
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Exhibit 1
Exhibit 1
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Exhibit 2
Exhibit 2
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Exhibit 3
Exhibit 3
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Exhibit 4
Exhibit 4
Filed 04/15/2009
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Exhibit 5
Exhibit 5
Filed 04/15/2009
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Trademark Electronic Search System (TESS)
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:oth12k.2.1
Document 1-3
Filed 04/15/2009
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS)
Word Mark
SOHMER
Goods and Services
(ABANDONED) IC 015. US 002 021 036. G & S: Musical instruments, namely pianos. FIRST USE: 19160303. FIRST USE IN COMMERCE: 19160303
Mark Drawing Code
(3) DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS
Design Search Code
22.01.01 - Organs (musical); Pianos 24.01.02 - Shields or crests with figurative elements contained therein or superimposed thereon 24.01.03 - Shields or crests with letters, punctuation or inscriptions contained therein or superimposed thereon 26.11.08 - Rectangles comprised of letters, numerals or punctuation and letters, numerals or punctuation forming the perimeter of a rectangle or bordering the perimeter of a rectangle. 26.11.21 - Rectangles that are completely or partially shaded
Serial Number
76535595
Filing Date
July 25, 2003
Current Filing Basis
1A
Original Filing Basis
1A
Owner
1 of 2
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066
Assignment Recorded
ASSIGNMENT RECORDED
Attorney of Record
John O'Banion
Prior Registrations
0137464
Type of Mark
TRADEMARK
Register
PRINCIPAL
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Trademark Electronic Search System (TESS)
2 of 2
Case 3:09-cv-00197-LRH-VPC Live/Dead Indicator
DEAD
Abandonment Date
August 6, 2004
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:oth12k.2.1
Document 1-3
Filed 04/15/2009
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Case 3:09-cv-00197-LRH-VPC
Document 1-3
Exhibit 6
Exhibit 6
Filed 04/15/2009
Page 12 of 26
Trademark Electronic Search System (TESS)
1 of 1
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:hlv8jc.2.1
Document 1-3
Filed 04/15/2009
Page 13 of 26
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS) Typed Drawing Word Mark
SOHMER
Goods and Services
IC 015. US 002 021 036. G & S: MUSICAL INSTRUMENTS NAMELY, PIANOS
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
76214968
Filing Date
February 23, 2001
Current Filing Basis
1B
Original Filing Basis
1B
Published for Opposition
June 22, 2004
Supplemental Register October 25, 2002 Date Owner
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066
Assignment Recorded ASSIGNMENT RECORDED Attorney of Record
JOHN P. O'BANION
Type of Mark
TRADEMARK
Register
PRINCIPAL-2(F)
Live/Dead Indicator
LIVE
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Case 3:09-cv-00197-LRH-VPC
Document 1-3
Exhibit 7
Exhibit 7
Filed 04/15/2009
Page 14 of 26
Trademark Electronic Search System (TESS)
1 of 2
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:hlv8jc.3.1
Document 1-3
Filed 04/15/2009
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS) Typed Drawing Word Mark
SOHMER & CO.
Goods and Services
IC 015. US 002 021 036. G & S: Musical instruments, namely pianos. FIRST USE: 18720000. FIRST USE IN COMMERCE: 18720000
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
76546304
Filing Date
September 8, 2003
Current Filing Basis
1A
Original Filing Basis
1A
Owner Assignment Recorded
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066 ASSIGNMENT RECORDED
Attorney of Record John O'Banion Prior Registrations 0119130;0137464 Disclaimer
NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "& CO" APART FROM THE MARK AS SHOWN
Type of Mark
TRADEMARK
Register
PRINCIPAL
Live/Dead Indicator LIVE
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Case 3:09-cv-00197-LRH-VPC
Document 1-3
Exhibit 8
Exhibit 8
Filed 04/15/2009
Page 16 of 26
SMC :: Samick Music Corp.
1 of 3
Case 3:09-cv-00197-LRH-VPC
http://smcmusic.com/
Document 1-3
Filed 04/15/2009
Samick Music Corp. Welcom e t o t he online hom e of Sam ick M usic Corp., one of t he world' s largest and m ost experienced m anufact urers of m usical inst rum ent s in t he w orld. From high qualit y, feat ure- rich ent ry level inst rum ent s, t o w orld class acoust ic and digit al pianos, Sam ick Music will always deliver t he qualit y you deserve and expect .
Page 17 of 26
Find a Product Grand Pianos V ert ical Pianos D igit al Pianos Elect ric Guit ars Acoust ic Guit ars
Samick Acquires Seiler Pianos Will Continue to Be Manufactured in Germany Sam ick Musical I nst rum ent s Co., Lt d. is proud t o announce t hat it has acquired ED. SEI LER Pianofort efabrik Gm bH & Co. KG as a w holly owned subsidiary effect ive Novem ber 1, 2008.
Global Sites SAM I CK Korea Pram berger Korea SAM I CK I ndonesia
A new m anagem ent t eam for SEI LER has been appoint ed, and SEI LER pianos w ill cont inue t o be m anufact ured in Germ any in t he sam e fact ories by t he sam e skilled craft sm en t hat m ade SEI LER one of t he World’s finest pianos for generat ions. Sam ick has alw ays adm ired Germ an innovat ion, engineering, and craft sm anship, and is indeed proud t o be able t o offer a line of qualit y Germ an- m ade product s in addit ion t o it s ext ensive line of product s current ly being m anufact ured in Korea, I ndonesia, and t he Unit ed St at es of Am erica.
SAMI CK Music Corp.
SEI LER pianos w ill be on display at t he NAMM Show in t he SAMI CK boot h locat ed in room s 210 A&B. Addit ional new m odels w ill be showcased at t he upcom ing Musikm esse in Frankfurt .
Samick Hosts NAMM Jam in Nashville Greg Bennett Artists and Employees Rock to a Packed House at BB King's
4/14/2009 4:00 PM
SMC :: Samick Music Corp.
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http://smcmusic.com/
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Fret board act ion heat ed up at t he Greg Bennet t ‘NAMM Jam ’ held during t he annual sum m er NAMM show in Nashville, Tennessee. The event w as dedicat ed t o and in celebrat ion of com m unit y m usic st ores t hroughout t he count ry t hat cont inue t o serve t heir local com m unit ies by providing m usical inst rum ent sales, service, and educat ion. The j am t ook place at BB Kings Blues Club downt ow n and feat ured 2006 Guit ar World Magazine ‘Guit ar Hero’ w inner Ladd Sm it h ( pict ured above) , w ho played his cust om ized Greg Bennet t Form ula FA1. Ot her perform ing art ist s included Coles Whalen, Jessie Lynn, Shaw n Michael Perry, Ravi, Roger Zim ish, Michell Chenard, St eve Rut ledge and a host of m usic st ore ow ners w ho showed up t o have fun and show off t heir chops.
SMC's New Home in Tennessee New Headquarters Will Greatly Benefit Customers Sam ick Music Corp. m ade a m om ent ous decision last year t hat it w ould leave it s Nort h Am erican headquart ers in Cit y of I ndust ry, California, it s hom e for m ore t han t w ent y years. Aft er considering several locat ions t hroughout t he Unit ed St at es, SMC purchased 14 acres of land east of t he cit y cent er of Gallat in, Tennessee, approxim at ely 30 m iles nort heast of Nashville. I n addit ion t o m oving it s headquart ers and prim ary dist ribut ion cent er, Sam ick also plans t o m anufact ure product s in it s new facilit y. J.S. Kim , head of SMC' s I nchon, Sout h Korea parent com pany Sam ick Musical I nst rum ent s Com pany, Lt d. and Chairm an of SMC' s Board of Direct ors, explains t he reasons behind t he m ove: " Over t he last decade w e have seen t he cost s of business and m anufact uring increase in t he Pacific Rim count ries. The product ion of prem ium value product s has now becom e viable in t he Unit ed St at es. Many Am erican consum ers are looking for a bet t er qualit y product ." I n 2005, t he Gallat in Econom ic Developm ent Agency part nered w it h t he Tennessee Depart m ent of Econom ic and Com m unit y Developm ent and ot her local organizat ions t o help bring Sam ick t o Gallat in. Tennessee Governor Phil Bredesen said, " I t seem s very fit t ing t hat a com pany t hat specializes in producing qualit y m usic product s w ould find it s way hom e t o Tennessee, j ust 25 m iles out side of Music Cit y USA, w here qualit y m usic is m ade."
Samick Celebrates 50th Anniversary A Story of Resilience SMC is pleased t o celebrat e Sam ick' s Golden Anniversary in 2008. Sam ick was founded in Korea in 1958 by Hyo I ck Lee. Facing an im m ense challenge in im poverished and war- t orn Sout h Korea, Lee
4/14/2009 4:00 PM
SMC :: Samick Music Corp.
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http://smcmusic.com/
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began t o build and sell a few vert ical pianos a week from a sm all convert ed shop front . I t w asn' t long before t he com pany st art ed m anufact uring upright pianos on a large scale. I n 1964 Sam ick becam e t he first Korean com pany t o export pianos and by t he early 1970s, t he com pany had becom e a large- scale m anufact urer wit h over 3,000 em ployees building pianos and guit ars. I n t he years following, Sam ick focused on global expansion. I n 1978 t hey opened a branch office in Los Angeles, California, follow ed by est ablishm ent of an office in Düsseldorf, Germ any in 1980. Sales of Sam ick product s in t he Unit ed St at es grew exponent ially and Sam ick soon announced t he developm ent of t heir Am erican subsidiary, Sam ick Music Corporat ion in 1982. Sam ick has alw ays been dedicat ed t o developing new product s and qualit y, st art ing in 1983 w it h a t echnical cooperat ion w it h Klaus Fenner, a piano designer and t echnician from Germ any. Fenner w as renowned for designing t he Germ an I m perial Scale t hat cont inues t o charact erize t he pianos of leading int ernat ional m anufact urers.
© 2008 SAM I CK M usic Cor p. | Valid XHT M L | CSS
Hom e | Cont a ct us
1329 Gat eway Drive, Gallat in, TN 37066 | ( 800) 592- 9393
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Sohmer Pianos
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Company | Grand Pianos | Vertical Pianos | Contact Us Sohmer & Co. Pianos
H u go So h m e r 18 4 5 – 19 13 Founder of Sohmer & Co. Pianos
Hugo Sohmer founded Sohmer & Co. in 1872 after emigrating from Germany. The company made some of the finest pianos in America and was part of New York's booming piano manufacturing scene of the late 19th century. Its main factory on the bank of the East River in Astoria, Queens still stands today. Sohmer was a musician himself and had a musician's keen appraisal of a piano's tonal qualities. After a few short years of production, Hugo Sohmer was granted a patent for a very unique achievement at the time: being the first to produce a 5t baby grand piano. Sohmer's pianos received both popular and critical acclaim in that vibrant era of history, being featured in the finest homes in New York and across the country. Some of the more notable owners include Fred Astaire, Irving Berlin, William Randolph Hearst, Katharine Hepburn, and Eartha Kitt. Sohmer showcased its finest creations in a grand showroom called the House of Sohmer at 31 West 57th Street in the heart of Manhattan's antiques district. And it was no coincidence that Carnegie Hall was right around the corner. At his death in 1931, Hugo Sohmer passed on his love for the piano to his sons. Sohmer & Co. enjoyed family ownership for over one hundred years until the company was sold in 1982. Today, Samick Music Corp. carries on the tradition of making one of the finest pianos available to the American consumer. If you have any inquires, please feel free to contact us anytime. To find a dealer near you - click here. © 2008 Sohmer & Co. - a division Samick Music Corporation
Company | Grand Pianos | Vertical Pianos | Contact Us
4/14/2009 3:59 PM
Sohmer Pianos :: Grands
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http://www.sohmerco.com/grands.htm
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Company | Grand Pianos | Vertical Pianos | Contact Us Sohmer & Co. Pianos
So h m e r Gra n d Pia n o s Sohm er 5 0 T 5 ' 0 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 6 3 T 5 ' 4 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 7 7 E 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
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Sohmer Pianos :: Grands
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http://www.sohmerco.com/grands.htm
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Sohm er 7 7 F 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 7 7 H 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 9 0 T 6 ' 2 " Av ailable in: Ebony Sat in and Mahogany View Specifications / Larger Images
© 2008 Sohmer & Co. - a division Samick Music Corporation
Company |
Grand Pianos |
Vert ical Pianos |
Cont act Us
4/14/2009 3:59 PM
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([ΚΛΕΛΩ
([ΚΛΕΛΩ
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EXHIBIT 2
1 2 3 4 5 6 7 8 9 10 11 12
Document 1
Filed 04/15/2009
Page 1 of 15
Michael D. Rounds, Esq. State Bar No. 4734 Matthew D. Francis, Esq. State Bar No. 6978 WATSON ROUNDS 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. California State Bar No. 125,378 Kelly W. Cunningham, Esq. California State Bar No. 186,229 CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending Attorneys for Plaintiff SAMICK MUSIC CORPORATION
13 14
UNITED STATES DISTRICT COURT
15
DISTRICT OF NEVADA
16 17 18 19 20 21 22 23 24 25 26 27 28
SAMICK MUSIC CORPORATION, a California corporation,
) ) ) Plaintiff, ) ) v. ) ) PERSIS INTERNATIONAL, INC., a Nevada) corporation, ) ) Defendant. ) ) ) ) ) ) ) ) )
Case No. VERIFIED COMPLAINT FOR: (1) FEDERAL TRADEMARK INFRINGEMENT; (2) COMMON LAW TRADEMARK INFRINGEMENT; (3) FEDERAL TRADEMARK DILUTION; (4) FEDERAL UNFAIR COMPETITION; (5) STATE AND COMMON LAW UNFAIR COMPETITION JURY DEMAND
For its Complaint, Plaintiff SAMICK MUSIC CORPORATION (“Samick”) hereby alleges and asserts as follows:
Case 3:09-cv-00197-LRH-VPC
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
1
1.
Document 1
Filed 04/15/2009
Page 2 of 15
This is an action for federal trademark infringement, federal unfair competition,
2
and federal trademark dilution in violation of the Federal Lanham Act, 15 U.S.C. § 1051, et seq.;
3
common law trademark infringement; and state unfair competition in violation of Cal. Bus. &
4
Prof. Code § 17200, et seq., against Defendant PERSIS INTERNATIONAL, INC. (“Defendant”),
5
for its commercial use and exploitation of Samick’s SOHMER trademarks on or in connection
6
with the sale of pianos. Samick hereby seeks (1) injunctive relief against Defendant’s continued
7
unauthorized and improper commercial use and exploitation of any trademark confusingly similar
8
to Samick’s SOHMER trademarks on or in connection with the sale of any musical instruments,
9
including pianos, or their components or accessories; and (2) all damages arising from
10
Defendant’s past and present infringement and reimbursement of Samick’s attorneys’ fees and
11
costs for having to bring this suit to enforce its trademark rights. I.
12 2.
13 14
Samick is a California corporation with its principal place of business in Gallatin,
Tennessee. 3.
15 16
THE PARTIES
Samick is informed and based thereon believes that Defendant is a Nevada
corporation with an office in Chicago, Illinois. II.
17 18
4.
JURISDICTION AND VENUE
This Court has jurisdiction pursuant to 15 U.S.C. § 1121, and 28 U.S.C. §§ 1331
19
and 1338(a) over the federal trademark infringement and dilution claims, which arise under the
20
Federal Lanham Act, 15 U.S.C. §§ 1051, et seq; and has jurisdiction pursuant to 28 U.S.C. §§
21
1338(b) and 1367 over the state unfair competition and common law trademark infringement
22
claims.
23
5.
Upon information and belief, this Court has personal jurisdiction over Defendant
24
since Defendant was incorporated under the laws of Nevada and thereby resides in this State.
25
Upon information and belief, venue is proper in the Reno Division of the District of Nevada as to
26
Defendant pursuant to 28 U.S.C. §§ 1391(b) and (c) Defendant was incorporated under the laws
27
of Nevada and is thereby resides in this State and has transacted business in this District during
28
times relevant to this action, including a substantial part of the events giving rise to the claims 2
Case 3:09-cv-00197-LRH-VPC
1
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
4
Filed 04/15/2009
Page 3 of 15
Samick alleges and asserts herein. III.
2 3
Document 1
A.
BACKGROUND FACTS
Samick’s SOHMER Trademarks and Pending Trademark Applications 6.
Samick has been using the SOHMER™ trademark continuously since at least
5
2003 in connection with one of the highest quality lines of pianos in the world and, upon
6
information. Samick is informed and based thereon believes that its predecessors-in-interest have
7
likewise been using the SOHMER™ trademark continuously before that time since at least as
8
early as 1872 in connection with one of the highest quality lines of pianos in the world.
9
7.
Samick is informed and based thereon believes that in or about 1872, Hugo
10
Sohmer, a German immigrant in New York founded the Sohmer & Co., Inc. and adopted and
11
began using the SOHMER trademark on his pianos made with the highest craftsmanship. Sohmer
12
& Co., Inc. changed its name to Sohmer Corporation in 1989, merged with Mason & Hamlin Co.
13
in 1994, and was purchased by Burgett, Inc. in 1996.
14
8.
Samick is informed and based thereon believes that Burgett has been using the
15
SOHMER trademark on its pianos and related products and components therefor since at least as
16
early as 1996, when it acquired the SOHMER trademark, along with all of the assets of Mason &
17
Hamlin Co., including its original piano rim presses, the long-standing factory in Haverhill,
18
Massachusetts’ historic district, and a completely documented computer-based archive of the
19
authentic piano designs.
20
9.
On or about 2002, Samick acquired the exclusive license to sell musical
21
instruments, namely pianos, using the SOHMER trademark.
22
acquired by assignment from Burgett, Inc. all rights, title, and interest in and to all of Burgett,
23
Inc.’s rights in the SOHMER trademarks and the business pertaining thereto. Accordingly, at all
24
times relevant to this action up until it acquired outright the foregoing SOHMER trademarks and
25
trademark applications, Samick was the exclusive licensee of the SOHMER trademarks.
26 27 28
10.
On March 11, 2009, Samick
Consequently and by written assignment, Samick is the current owner (by
assignment) of the following trademarks: a.
SOHMER (in stylized lettering); 3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Case 3:09-cv-00197-LRH-VPC
Document 1
Filed 04/15/2009
Page 4 of 15
1
b.
SOHMER (separate and apart from any particular lettering);
2
c.
SOHMER and Shield Design with White Piano; and
3
d.
SOHMER & CO.
4
These trademarks were previously registered as U.S. Trademark Registration Nos. 85,691;
5
119,130; 137,464; 1,786,687; but each of these registrations was subsequently deemed canceled
6
by United States Patent and Trademark Office due to the failure of a predecessor-in-interest to
7
timely file with the United States Patent and Trademark Office the necessary trademark
8
registration renewal papers; and
9
e.
SOHMER and Shield Design with Black Piano;
10
This trademark was previously the subject of U.S. Trademark Application Serial No.
11
76/535,595; but this application was subsequently deemed abandoned by United States Patent and
12
Trademark Office due to the failure of a predecessor-in-interest to timely file with the United
13
States Patent and Trademark Office a response to a non-final office action.
14
The foregoing five (5) trademarks referenced in this paragraph are hereinafter collectively
15
referred to as the “SOHMER trademarks.” Attached hereto as Exhibits 1 through 5 are true and
16
correct copies of the Trademark Office records pertaining to these five previously registered
17
trademarks.
18
By written assignment, Samick is also the current owner and applicant of the following
19
federal trademark applications:
20
a.
U.S. Trademark Application Serial No. 76/214,968 for SOHMER; and
21
b.
U.S. Trademark Application Serial No. 76/546,304 for SOHMER &
22
CO.
23
On or about October 25, 2002, the United States Patent and Trademark Office erroneously
24
converted SOHMER Trademark Application Serial No. 76/214,968 to the Supplemental Register.
25
The United States Patent and Trademark Office ultimately reversed this error, found this
26
application allowable, the published it for opposition.
27
Samick’s two (2) pending trademark applications, Serial Nos. 76/214,968 and 76/546,304,
28
are hereinafter collectively referred to as the “SOHMER trademark applications.” Attached 4
Case 3:09-cv-00197-LRH-VPC
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
Page 5 of 15
1
hereto as Exhibits 6 and 7 are true and correct copies of the Trademark Office records pertaining
2
to these two trademark applications.
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
11.
Samick manufactures and sells musical instruments, namely high-end pianos, and
4
related products and components therefor under the SOHMER trademark. Samick has at all times
5
relevant to this action appropriately accompanied the SOHMER trademarks with the proper
6
trademark notice on all such pianos and on their labels, tags, and packaging. Samick is informed
7
and based thereon believes that Samick’s predecessors-in-interest also always appropriately
8
accompanied the SOHMER trademarks with the proper trademark notice on all such pianos and
9
on their labels, tags, and packaging.
10
12.
Although the trademark registrations have expired, they constitute further
11
evidence, along with the chain of title for each as recorded with the United States Patent and
12
Trademark Office, that Samick’s current commercial use of the SOHMER trademark justifiably
13
relates back to 1872. In the more than 135 years since the humble beginning by Hugo Sohmer,
14
Samick and its predecessors-in-interest developed SOHMER into one of the most revered
15
trademarks in the piano market.
16
13.
Samick currently maintains its website, www.smcmusic.com, wherein it advertises
17
the current well-known lines of SOHMER grand pianos. Attached hereto as Exhibit 8 are true and
18
correct copies of web pages from Samick’s www.smcmusic.com website showing the SOHMER
19
brand pianos and mark.
20
B.
Defendant’s Infringing Use and Interference
21
14.
Samick is informed and based thereon believes that Defendant has been and is
22
currently using the SOHMER mark on or in connection with the sale of pianos without any
23
authorization from Samick or any of Samick’s predecessors-in-interest.
24 25 26
15.
Samick is informed and based thereon believes that Defendant has offered for sale
and has made sales of pianos using the SOHMER trademark to consumers in this judicial district. 16.
Samick is informed and based thereon believes that Defendant used the SOHMER
27
trademark in connection with pianos with full knowledge of Samick’s and Samick’s
28
predecessors’-in-interest ownership of and senior rights in and to the SOHMER trademark. 5
Case 3:09-cv-00197-LRH-VPC
1
17.
Page 6 of 15
On or about January 15, 2003, Defendant offered for sale pianos under the
SOHMER trademark at the 2003 National Association of Music Merchants (“NAMM”) trade
3
show in Anaheim, California, January 15-18, 2003. 18.
At the NAMM trade shows, Defendant displayed to the public pianos with the
5
SOHMER trademark on the surface and under a large banner that included the SOHMER
6
trademark in prominent letters. 19.
7
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
2
4
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
According to the trade show directory, Defendant was advertising “Sohmer & Co.
8
Pianos,” “Sohmer Pianos,” and “Sohmer & Son Pianos,” showing the same mailing address as
9
Defendant’s pending trademark application.
10
20.
Samick is informed and based thereon believes that, on February 15, 2001, Edward
11
F. Richards filed a federal intent-to-use trademark application for SOHMER for pianos, which
12
was given U.S. Trademark Application Serial No. 76/210,248.
13
testified in writing and under oath to the United States Patent and Trademark Office that he first
14
used SOHMER in commerce in connection with pianos on June 26, 2001. On or about October
15
8, 2002, Mr. Richards assigned his rights in the application to his company, the Defendant. On
16
September 26, 2002, the United States Patent and Trademark Office entered a notice of
17
suspension in Trademark Application Serial No. 76/210,248 pending the disposition of the above-
18
mentioned SOHMER Trademark Application Serial No. 76/214,968 owned by Samick. Attached
19
hereto as Exhibit 9 is a true and correct copy of the notice of suspension entered in this trademark
20
application.
21
21.
Mr. Richards subsequently
On October 29, 2002, Samick sent a cease and desist letter to Defendant
22
demanding that they cease and desist from all further use of the SOHMER trademarks, and it
23
withdraw the improper trademark application before the United States Patent and Trademark
24
Office.
25
22.
On October 19, 2004, Defendant filed a notice of opposition against Samick’s U.S.
26
Trademark Application Serial No. 76/214,968, which initiated Opposition Proceeding No.
27
91162715 before the Trademark Trial and Appeal Board. This opposition proceeding is still
28
pending, and consequently is preventing the federal re-registration of Samick’s U.S. Trademark 6
Case 3:09-cv-00197-LRH-VPC
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
Page 7 of 15
1
Application Serial No. 76/214,968. The remainder of Defendant’s testimony period is scheduled
2
to re-open from May 5, 2009 to May 8, 2009, and Samick’s testimony period is scheduled to open
3
on June 7, 2009.
4
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
23.
The United States Patent and Trademark Office has suspended examination of
5
U.S. Trademark Application Serial No. 76/546,304 pending the outcome of Defendant’s U.S.
6
Trademark Application Serial No. 76/210,248, which in turn is suspended pending the outcome
7
of Samick’s U.S. Trademark Application No. 76/214,968, the subject of Trademark Opposition
8
No. 91162715 initiated by Defendant before the Trademark Trial and Appeal Board. Since this
9
opposition proceeding is still pending, Defendant is preventing the federal re-registration of
10
Samick’s U.S. Trademark Application Serial No. 76/546,304 as well.
11
FIRST CAUSE OF ACTION
12
FEDERAL TRADEMARK INFRINGEMENT
13 14 15 16 17
24.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 23 of this Complaint, and incorporates them herein as though set forth in full. 25.
This claim is against Defendant for trademark infringement in violation of Section
43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 26.
Samick is informed and based thereon alleges that Defendant has used, is using,
18
and intends to continue using now and in the future in commerce the term SOHMER as a
19
trademark for sales of pianos in such as way as will likely cause confusion or mistake, or will
20
likely deceive the public in relation to their products being associated or identified or being the
21
same as those of Samick.
22
27.
Samick never consented to or authorized Defendant’s adoption or commercial use
23
of the SOHMER trademarks for sales of the aforementioned products. Defendant therefore has
24
infringed and is infringing the SOHMER trademarks in violation of Section 43(a) of the Lanham
25
Act, 15 U.S.C. § 1125(a).
26
28.
The Ninth Circuit considers the following non-exclusive factors to determine
27
whether there is a likelihood of confusion: similarity of the marks; similarity of the products or
28
services; similarity of the marketing channels used; and likelihood of expansion in product lines; 7
Case 3:09-cv-00197-LRH-VPC
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
Page 8 of 15
1
strength of plaintiff’s mark; defendant's intent in selecting its mark; likely degree of care of
2
purchasers; and evidence of actual confusion. 29.
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
The SOHMER trademarks are very strong after years of successful marketing,
4
significant sales volume, critical acclaim, and widespread public recognition. Defendant likewise
5
sells pianos under the SOHMER trademarks and shares such similar marketing channels as to
6
cause a likelihood of confusion. These factors indicate that Defendant adopted the SOHMER
7
trademark intending to ride on the goodwill and reputation of Samick and its predecessors-in-
8
interest.
9
30.
Samick is informed and based thereon alleges that, at all times relevant to this
10
action, including when Defendant first adopted the SOHMER trademarks and commenced their
11
commercial use of the mark on pianos, Defendant knew of the prior adoption and widespread
12
commercial use of the SOHMER trademarks on pianos that Samick presently owns and knew of
13
the valuable goodwill and reputation acquired by Samick in connection with the SOHMER
14
trademarks and products. Defendant’s infringement of the SOHMER trademarks is therefore
15
willful and deliberate.
16
31.
Samick has no control over the composition and quality of the infringing pianos
17
sold by Defendant. Samick is informed and believes and on that basis alleges that Defendant’s
18
use of the SOHMER trademarks has caused confusion and mistake and the deception of
19
purchasers as to the source of origin of Defendant’s infringing products.
20
confusion as to the source engendered by Defendant’s unauthorized use of the SOHMER
21
trademarks, Samick’s valuable goodwill developed at great expense and effort by Samick is being
22
harmed and at risk of further damage.
23
32.
Because of the
The goodwill of Samick’s business under the SOHMER trademarks is of
24
enormous value, and Samick will suffer irreparable harm should Defendant’s infringement be
25
allowed to continue to the great detriment of its reputation and goodwill.
26
infringement will continue unless enjoined.
27
///
28
/// 8
Defendant’s
Case 3:09-cv-00197-LRH-VPC
Page 9 of 15
SECOND CAUSE OF ACTION
2
COMMON LAW TRADEMARK INFRINGEMENT
4
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
1
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
33.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 32 of this Complaint, and incorporates them herein as though set forth in full.
5
34.
This claim is against Defendant for common law trademark infringement.
6
35.
In addition to the federal registrations owned by Samick as set forth above, Samick
7
owns and uses the SOHMER trademarks and enjoys common law rights in California and
8
throughout the United States in and to the SOHMER trademarks on the goods set forth above, and
9
thus these rights are senior and superior to any rights which Defendant may claim in and to its
10 11
infringing products. 36.
Defendant’s use of its SOHMER trademark is intentionally designed to mimic
12
Samick’s products so as to likely cause and has caused confusion regarding the source of
13
Defendant’s products, in that purchasers thereof will be likely to associate or have associated such
14
products with, as originating with, or as approved by Samick, all to the detriment of Samick.
15
37.
Defendant’s infringement will continue unless enjoined.
16
THIRD CAUSE OF ACTION
17
FEDERAL TRADEMARK DILUTION
18 19 20
38.
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 37 of this Complaint, and incorporates them herein as though set forth in full. 39.
As a result of the duration and extent of use of the SOHMER trademarks, the
21
duration and extent of the advertising and publicity of the SOHMER trademarks, the geographical
22
extent of the distribution of the same, the superior quality of Samick’s products and services, and
23
the degree of recognition of the SOHMER trademarks, the SOHMER mark has achieved an
24
extensive degree of distinctiveness and is a famous trademark.
25 26 27 28
40.
As a result of Defendant’s use and registration of the SOHMER mark, Defendant
is diluting the distinctive quality of SOHMER trademarks. 41.
Samick will suffer irreparable harm should Defendant’s illegal acts be allowed to
continue to the great detriment of its reputation and goodwill. Defendant’s acts will continue 9
Case 3:09-cv-00197-LRH-VPC
1 2
FOURTH CAUSE OF ACTION
3
FEDERAL UNFAIR COMPETITION
4
IN VIOLATION OF 15 U.S.C. § 1125(a)
6
42.
Page 10 of 15
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 41 of this Complaint, and incorporates them herein as though set forth in full. 43.
7
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
unless enjoined.
5
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
The SOHMER trademark has become uniquely associated with, and hence
8
identifies, Samick and its predecessors-in-interest. Defendant’s use of the SOHMER trademark
9
constitutes a false designation of origin, or a false representation. Further, it wrongfully and
10
falsely designates Defendant’s products as originating from or connected with Samick and
11
constitutes utilizing false descriptions or representations in interstate commerce.
12
44.
The conduct of Defendant is likely to cause mistake, to deceive, and confuse
13
members of the public who would be wrongfully led to believe that Defendant is associated with
14
Samick, thereby depriving Samick of its valid trademark rights.
15
45.
Samick is informed and believes that Defendant, in adopting the SOHMER
16
trademarks, has acted willfully and with full knowledge of Samick’s rights in the SOHMER
17
trademarks, and has used this false designation of origin and description in contravention of
18
15 U.S.C. § 1125(a).
19
46.
The continued unauthorized use by Defendant of the confusingly similar
20
trademark in relation to the manufacture and sale of the pianos at issue is likely to cause
21
confusion and deception of the public and lead consumers and potential consumer to erroneously
22
associate the products of Defendant with Samick and/or to erroneously believe that the products
23
of Defendant are being placed upon the market with the consent and authority of Samick, as a
24
result of which the continue use by Defendant of the SOHMER trademarks has caused and,
25
unless restrained, will continue to cause serious and irreparable injury to Samick.
26
47.
27
ascertained.
28
///
By reason of the foregoing, Samick has been injured in an amount not yet
10
Case 3:09-cv-00197-LRH-VPC
Document 1
1
FIFTH CAUSE OF ACTION
2
STATE AND COMMON LAW UNFAIR COMPETITION
3 4 5 6
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
7
48.
Filed 04/15/2009
Page 11 of 15
Samick repeats and alleges each and every allegation contained in paragraphs 1
through 47 of this Complaint, and incorporates them herein as though set forth in full. 49.
This claim is against Defendant for unfair competition in violation of California
Business & Professions Code, §§ 17200, 17203. 50.
The SOHMER trademarks are wholly associated with Samick and its
8
predecessors-in-interest due to their extensive marketing efforts, sales successes, and pervasive
9
use thereof, and as such, Samick has developed valuable assets in the SOHMER trademarks and
10
its pianos sold under the SOHMER trademarks. It is only fair and legitimate that Samick be able
11
to continue its business without unfair, improper, unauthorized, and illegal interference by
12
Defendant as alleged herein.
13
51.
Defendant’s intentional misuse of the SOHMER trademarks on pianos appears
14
purposefully directed at undercutting Samick’s legitimate business involving their pianos and
15
constitutes unfair competition in violation of the California Business and Professions Code,
16
§§ 17200 and 17203.
17
52.
Samick alleges that the aforesaid acts of unfair competition undertaken by
18
Defendant was intentionally and knowingly performed and directed toward perpetuating a
19
business competing unfairly with Samick and were done with a willful disregard for the rights of
20
Samick.
21
53.
By reason of Defendant’s acts of unfair competition, Samick has suffered and will
22
continue to suffer irreparable injury unless and until this Court enters an order enjoining
23
Defendant from any further acts of unfair competition. Defendant continuing acts of unfair
24
competition, unless enjoined, will cause irreparable damage to Samick in that it will have no
25
adequate remedy at law to compel Defendant to cease such acts, and no way to determine its
26
losses proximately caused by such acts of Defendant. Samick will also be compelled to prosecute
27
a multiplicity of actions, one action each time Defendant commits such acts, and in each such
28
action it will still be extremely difficult to ascertain the amount of compensation which will 11
Case 3:09-cv-00197-LRH-VPC
Page 12 of 15
afford Samick adequate relief. Samick is therefore entitled to a preliminary injunction and a
2
permanent injunction against further infringing conduct by Defendant. 54.
As a direct and proximate result of the aforesaid acts of unfair competition,
4
Defendant has wrongfully taken Samick’s profits and the benefit of their creativity and
5
investment of time, energy and money. Defendant should therefore disgorge all profits from the
6
sale of infringing products and further should be ordered to perform full restitution to Samick as a
7
consequence of Defendant’s infringing activities.
8 SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
1
3
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
9 10 11
55.
Samick is informed and believe that the use of the SOHMER trademarks by
Defendant was willful and with full knowledge of the unauthorized usage thereof. 56.
In doing the acts hereinabove alleged, Defendant has acted fraudulently,
oppressively, and maliciously, and will continue to so act unless enjoined. PRAYER FOR RELIEF
12 13
WHEREFORE, Samick prays for:
14
1.
15
An order permanently enjoining Defendant, its officers, agents, servants,
employees, attorneys, and all persons in active concert or participating with any of them, from:
16
a)
committing any further acts of trademark infringement,
17
b)
using any term that is likely to be confused with the SOHMER trademarks
18
asserted herein,
19
c)
20
representing directly or indirectly in any form or manner whatsoever that
any product is associated with or approved by Samick when, in fact, it is not, d)
21
passing off or inducing or enabling others to sell or pass off any non-
22
Samick product as an Samick product or as a product endorsed or approved by Samick,
23
and e)
24 25
any manner;
26
2.
27
committing any other act calculated to compete unfairly with Samick in
An order seizing and impounding all infringing products and all manufacturing
supplies in Defendant’s possession or control;
28 12
Case 3:09-cv-00197-LRH-VPC
1
3.
Page 13 of 15
An order requiring Defendant to file an express withdrawal of its federal
trademark application, U.S. Trademark Application Serial No. 76/210,248 with the United States
3
Patent and Trademark Office, and to refrain from seeking any other trademark registration
4
inconsistent with the foregoing injunctive relief;
6
4.
8
5.
6.
7.
An order for an accounting and disgorgement of Defendant’s profits from its
infringing and unfair business activity;
13 14
An order awarding to Samick damages in the amount that Samick has been harmed
by Defendant’s infringements and unfair business practices, in an amount Samick proves at trial;
11 12
An order to the United States Patent and Trademark Office to dismiss the
trademark opposition against the federal registration of Samick’s SOHMER trademark;
9 10
An order to the United States Patent and Trademark Office to cancel or to refuse
registration of U.S. Trademark Application Serial No. 76/210,248;
7
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
Filed 04/15/2009
2
5
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
Document 1
8.
A finding that Defendant has willfully and deliberately committed acts of
trademark infringement against Samick;
15
9.
An order trebling such damages against Defendant;
16
10.
An order for attorneys’ fees and costs that Samick incurred in having to bring and
17
sustain this action for the legal enforcement of its trademark and business rights against
18
Defendant;
19
///
20
///
21
///
22
///
23
///
24
///
25
///
26
///
27
///
28
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Case 3:09-cv-00197-LRH-VPC
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Such other and further equitable and legal relief as the Court may deem
appropriate.
3 4
Respectfully submitted,
5
WATSON ROUNDS
6 7
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
8 9 10 11 12 13 14 15
Dated: April 15, 2009
/s/ Matthew D. Francis Michael D. Rounds, Esq. Matthew D. Francis, Esq. 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. Kelly W. Cunningham, Esq. CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending
16 17
Attorneys for Plaintiff SAMICK MUSIC CORPORATION
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JURY DEMAND
1 2
Document 1
Plaintiff SAMICK MUSIC CORPORATION hereby demands a trial by jury as provided by Rule 38(a) of the Federal Rules of Civil Procedure and by the Local Rules of this Court.
4 Respectfully submitted,
5
WATSON ROUNDS
6 7
CISLO & THOMAS LLP ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ ∃ΩΩΡΥΘΗ∴ς ∆Ω /∆Ζ
SUITE 500 1333 2nd Street SANTA MONICA, CALIFORNIA 90401-4110 Telephone: (310) 451-0647 Facsimile: (310) 394-4477
8 9 10 11 12 13 14 15 16 17
Dated: April 15, 2009
/s/ Matthew D. Francis Michael D. Rounds, Esq. Matthew D. Francis, Esq. 5371 Kietzke Lane Reno, Nevada 89511 (775) 324-4100 Of Counsel: Daniel M. Cislo, Esq. Kelly W. Cunningham, Esq. CISLO & THOMAS LLP 1333 2nd Street, Suite 500 Santa Monica, California 90401 (310) 451-0647 Pro Hac Vice Pending Attorneys for Plaintiff SAMICK MUSIC CORPORATION
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13th
Case 3:09-cv-00197-LRH-VPC
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Exhibit 1
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Exhibit 2
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Exhibit 3
Exhibit 3
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Case 3:09-cv-00197-LRH-VPC
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Exhibit 4
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Exhibit 5
Exhibit 5
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Trademark Electronic Search System (TESS)
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:oth12k.2.1
Document 1-3
Filed 04/15/2009
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS)
Word Mark
SOHMER
Goods and Services
(ABANDONED) IC 015. US 002 021 036. G & S: Musical instruments, namely pianos. FIRST USE: 19160303. FIRST USE IN COMMERCE: 19160303
Mark Drawing Code
(3) DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS
Design Search Code
22.01.01 - Organs (musical); Pianos 24.01.02 - Shields or crests with figurative elements contained therein or superimposed thereon 24.01.03 - Shields or crests with letters, punctuation or inscriptions contained therein or superimposed thereon 26.11.08 - Rectangles comprised of letters, numerals or punctuation and letters, numerals or punctuation forming the perimeter of a rectangle or bordering the perimeter of a rectangle. 26.11.21 - Rectangles that are completely or partially shaded
Serial Number
76535595
Filing Date
July 25, 2003
Current Filing Basis
1A
Original Filing Basis
1A
Owner
1 of 2
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066
Assignment Recorded
ASSIGNMENT RECORDED
Attorney of Record
John O'Banion
Prior Registrations
0137464
Type of Mark
TRADEMARK
Register
PRINCIPAL
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Trademark Electronic Search System (TESS)
2 of 2
Case 3:09-cv-00197-LRH-VPC Live/Dead Indicator
DEAD
Abandonment Date
August 6, 2004
http://tess2.uspto.gov/bin/showfield?f=doc&state=4008:oth12k.2.1
Document 1-3
Filed 04/15/2009
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Case 3:09-cv-00197-LRH-VPC
Document 1-3
Exhibit 6
Exhibit 6
Filed 04/15/2009
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Trademark Electronic Search System (TESS)
1 of 1
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:hlv8jc.2.1
Document 1-3
Filed 04/15/2009
Page 13 of 26
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS) Typed Drawing Word Mark
SOHMER
Goods and Services
IC 015. US 002 021 036. G & S: MUSICAL INSTRUMENTS NAMELY, PIANOS
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
76214968
Filing Date
February 23, 2001
Current Filing Basis
1B
Original Filing Basis
1B
Published for Opposition
June 22, 2004
Supplemental Register October 25, 2002 Date Owner
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066
Assignment Recorded ASSIGNMENT RECORDED Attorney of Record
JOHN P. O'BANION
Type of Mark
TRADEMARK
Register
PRINCIPAL-2(F)
Live/Dead Indicator
LIVE
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Case 3:09-cv-00197-LRH-VPC
Document 1-3
Exhibit 7
Exhibit 7
Filed 04/15/2009
Page 14 of 26
Trademark Electronic Search System (TESS)
1 of 2
Case 3:09-cv-00197-LRH-VPC
http://tess2.uspto.gov/bin/showfield?f=doc&state=4001:hlv8jc.3.1
Document 1-3
Filed 04/15/2009
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Un it e d St a t e s Pa t e n t a n d Tra de m a rk Office Hom e | Sit e I nde x | Se a rch | FAQ | Glossa ry | Guide s | Cont a ct s | e Busine ss | e Biz a le rt s | Ne w s | He lp
Trademarks > Trademark Electronic Search System (TESS) TESS was last updated on Tue Apr 14 04:08:00 EDT 2009
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Record 1 out of 1 ( Use the "Back" button of the Internet Browser to return to TESS) Typed Drawing Word Mark
SOHMER & CO.
Goods and Services
IC 015. US 002 021 036. G & S: Musical instruments, namely pianos. FIRST USE: 18720000. FIRST USE IN COMMERCE: 18720000
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
76546304
Filing Date
September 8, 2003
Current Filing Basis
1A
Original Filing Basis
1A
Owner Assignment Recorded
(APPLICANT) SAMICK MUSIC CORPORATION CORPORATION CALIFORNIA 1329 GATEWAY DRIVE GALLATIN TENNESSEE 37066 ASSIGNMENT RECORDED
Attorney of Record John O'Banion Prior Registrations 0119130;0137464 Disclaimer
NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "& CO" APART FROM THE MARK AS SHOWN
Type of Mark
TRADEMARK
Register
PRINCIPAL
Live/Dead Indicator LIVE
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Case 3:09-cv-00197-LRH-VPC
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Exhibit 8
Exhibit 8
Filed 04/15/2009
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SMC :: Samick Music Corp.
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Case 3:09-cv-00197-LRH-VPC
http://smcmusic.com/
Document 1-3
Filed 04/15/2009
Samick Music Corp. Welcom e t o t he online hom e of Sam ick M usic Corp., one of t he world' s largest and m ost experienced m anufact urers of m usical inst rum ent s in t he w orld. From high qualit y, feat ure- rich ent ry level inst rum ent s, t o w orld class acoust ic and digit al pianos, Sam ick Music will always deliver t he qualit y you deserve and expect .
Page 17 of 26
Find a Product Grand Pianos V ert ical Pianos D igit al Pianos Elect ric Guit ars Acoust ic Guit ars
Samick Acquires Seiler Pianos Will Continue to Be Manufactured in Germany Sam ick Musical I nst rum ent s Co., Lt d. is proud t o announce t hat it has acquired ED. SEI LER Pianofort efabrik Gm bH & Co. KG as a w holly owned subsidiary effect ive Novem ber 1, 2008.
Global Sites SAM I CK Korea Pram berger Korea SAM I CK I ndonesia
A new m anagem ent t eam for SEI LER has been appoint ed, and SEI LER pianos w ill cont inue t o be m anufact ured in Germ any in t he sam e fact ories by t he sam e skilled craft sm en t hat m ade SEI LER one of t he World’s finest pianos for generat ions. Sam ick has alw ays adm ired Germ an innovat ion, engineering, and craft sm anship, and is indeed proud t o be able t o offer a line of qualit y Germ an- m ade product s in addit ion t o it s ext ensive line of product s current ly being m anufact ured in Korea, I ndonesia, and t he Unit ed St at es of Am erica.
SAMI CK Music Corp.
SEI LER pianos w ill be on display at t he NAMM Show in t he SAMI CK boot h locat ed in room s 210 A&B. Addit ional new m odels w ill be showcased at t he upcom ing Musikm esse in Frankfurt .
Samick Hosts NAMM Jam in Nashville Greg Bennett Artists and Employees Rock to a Packed House at BB King's
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http://smcmusic.com/
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Fret board act ion heat ed up at t he Greg Bennet t ‘NAMM Jam ’ held during t he annual sum m er NAMM show in Nashville, Tennessee. The event w as dedicat ed t o and in celebrat ion of com m unit y m usic st ores t hroughout t he count ry t hat cont inue t o serve t heir local com m unit ies by providing m usical inst rum ent sales, service, and educat ion. The j am t ook place at BB Kings Blues Club downt ow n and feat ured 2006 Guit ar World Magazine ‘Guit ar Hero’ w inner Ladd Sm it h ( pict ured above) , w ho played his cust om ized Greg Bennet t Form ula FA1. Ot her perform ing art ist s included Coles Whalen, Jessie Lynn, Shaw n Michael Perry, Ravi, Roger Zim ish, Michell Chenard, St eve Rut ledge and a host of m usic st ore ow ners w ho showed up t o have fun and show off t heir chops.
SMC's New Home in Tennessee New Headquarters Will Greatly Benefit Customers Sam ick Music Corp. m ade a m om ent ous decision last year t hat it w ould leave it s Nort h Am erican headquart ers in Cit y of I ndust ry, California, it s hom e for m ore t han t w ent y years. Aft er considering several locat ions t hroughout t he Unit ed St at es, SMC purchased 14 acres of land east of t he cit y cent er of Gallat in, Tennessee, approxim at ely 30 m iles nort heast of Nashville. I n addit ion t o m oving it s headquart ers and prim ary dist ribut ion cent er, Sam ick also plans t o m anufact ure product s in it s new facilit y. J.S. Kim , head of SMC' s I nchon, Sout h Korea parent com pany Sam ick Musical I nst rum ent s Com pany, Lt d. and Chairm an of SMC' s Board of Direct ors, explains t he reasons behind t he m ove: " Over t he last decade w e have seen t he cost s of business and m anufact uring increase in t he Pacific Rim count ries. The product ion of prem ium value product s has now becom e viable in t he Unit ed St at es. Many Am erican consum ers are looking for a bet t er qualit y product ." I n 2005, t he Gallat in Econom ic Developm ent Agency part nered w it h t he Tennessee Depart m ent of Econom ic and Com m unit y Developm ent and ot her local organizat ions t o help bring Sam ick t o Gallat in. Tennessee Governor Phil Bredesen said, " I t seem s very fit t ing t hat a com pany t hat specializes in producing qualit y m usic product s w ould find it s way hom e t o Tennessee, j ust 25 m iles out side of Music Cit y USA, w here qualit y m usic is m ade."
Samick Celebrates 50th Anniversary A Story of Resilience SMC is pleased t o celebrat e Sam ick' s Golden Anniversary in 2008. Sam ick was founded in Korea in 1958 by Hyo I ck Lee. Facing an im m ense challenge in im poverished and war- t orn Sout h Korea, Lee
4/14/2009 4:00 PM
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began t o build and sell a few vert ical pianos a week from a sm all convert ed shop front . I t w asn' t long before t he com pany st art ed m anufact uring upright pianos on a large scale. I n 1964 Sam ick becam e t he first Korean com pany t o export pianos and by t he early 1970s, t he com pany had becom e a large- scale m anufact urer wit h over 3,000 em ployees building pianos and guit ars. I n t he years following, Sam ick focused on global expansion. I n 1978 t hey opened a branch office in Los Angeles, California, follow ed by est ablishm ent of an office in Düsseldorf, Germ any in 1980. Sales of Sam ick product s in t he Unit ed St at es grew exponent ially and Sam ick soon announced t he developm ent of t heir Am erican subsidiary, Sam ick Music Corporat ion in 1982. Sam ick has alw ays been dedicat ed t o developing new product s and qualit y, st art ing in 1983 w it h a t echnical cooperat ion w it h Klaus Fenner, a piano designer and t echnician from Germ any. Fenner w as renowned for designing t he Germ an I m perial Scale t hat cont inues t o charact erize t he pianos of leading int ernat ional m anufact urers.
© 2008 SAM I CK M usic Cor p. | Valid XHT M L | CSS
Hom e | Cont a ct us
1329 Gat eway Drive, Gallat in, TN 37066 | ( 800) 592- 9393
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Sohmer Pianos
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http://www.sohmerco.com/
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Company | Grand Pianos | Vertical Pianos | Contact Us Sohmer & Co. Pianos
H u go So h m e r 18 4 5 – 19 13 Founder of Sohmer & Co. Pianos
Hugo Sohmer founded Sohmer & Co. in 1872 after emigrating from Germany. The company made some of the finest pianos in America and was part of New York's booming piano manufacturing scene of the late 19th century. Its main factory on the bank of the East River in Astoria, Queens still stands today. Sohmer was a musician himself and had a musician's keen appraisal of a piano's tonal qualities. After a few short years of production, Hugo Sohmer was granted a patent for a very unique achievement at the time: being the first to produce a 5t baby grand piano. Sohmer's pianos received both popular and critical acclaim in that vibrant era of history, being featured in the finest homes in New York and across the country. Some of the more notable owners include Fred Astaire, Irving Berlin, William Randolph Hearst, Katharine Hepburn, and Eartha Kitt. Sohmer showcased its finest creations in a grand showroom called the House of Sohmer at 31 West 57th Street in the heart of Manhattan's antiques district. And it was no coincidence that Carnegie Hall was right around the corner. At his death in 1931, Hugo Sohmer passed on his love for the piano to his sons. Sohmer & Co. enjoyed family ownership for over one hundred years until the company was sold in 1982. Today, Samick Music Corp. carries on the tradition of making one of the finest pianos available to the American consumer. If you have any inquires, please feel free to contact us anytime. To find a dealer near you - click here. © 2008 Sohmer & Co. - a division Samick Music Corporation
Company | Grand Pianos | Vertical Pianos | Contact Us
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http://www.sohmerco.com/grands.htm
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Company | Grand Pianos | Vertical Pianos | Contact Us Sohmer & Co. Pianos
So h m e r Gra n d Pia n o s Sohm er 5 0 T 5 ' 0 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 6 3 T 5 ' 4 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 7 7 E 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
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Sohm er 7 7 F 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 7 7 H 5 ' 9 " Av ailable in: Ebony Sat in, Mahogany , Walnut , and Cher r y View Specifications / Larger Images
Sohm er 9 0 T 6 ' 2 " Av ailable in: Ebony Sat in and Mahogany View Specifications / Larger Images
© 2008 Sohmer & Co. - a division Samick Music Corporation
Company |
Grand Pianos |
Vert ical Pianos |
Cont act Us
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([ΚΛΕΛΩ
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EXHIBIT 2
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