kota lucky scooter complaint.pdf

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COMPLAINT5:15-cv-0416

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TECHLAW LLP Dana B. Robinson (Bar No. 208265) [email protected] Kayla Jimenez (Bar No. 292365) [email protected] P.O. Box 1416 La Jolla, CA 92038 Telephone: (858) 488-2545 Facsimile: (858) 777-3347

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

DAKOTA SCHUETZ, an individual, Plaintiff, vs. LUCKY SCOOTER PARTS, LLC, and BRIAN JEIDE, an individual, and ROLAND PAUL CORRIVEAU, an individual, Defendants.

Case No.: 5:15-cv-0416 COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF DEMAND FOR JURY TRIAL RELIEF 1. False Association, 15 U.S.C. 1125(a); 2. Breach of Contract; 3. Breach of the Duty of Good Faith & Fair

Dealing; 4. Breach of Fiduciary Duty; 5. Fraud; 6. Negligent Misrepresentation; 7. Deceit; 8. Unjust Enrichment; 9. Intentional Interference with Contractual

Relations; 10. Intentional Interference with Prospective

Economic Advantage; 11. Violation of the Right of Publicity, Cal.

Civ. Code 3344; 12. Common Law Trademark Infringement; 13. State Unfair Competition, Cal. Bus. &

Prof. Code 17200; 14. State False Advertising, Cal. Bus. & Prof.

Code 17500.

Case 5:15-cv-00416 Document 1 Filed 03/05/15 Page 1 of 23 Page ID #:1

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Plaintiff Dakota Schuetz (herein referred to as Kota or Plaintiff) alleges

the following against Defendants Lucky Scooter Parts, LLC (Lucky) Brian Jeide

(Jeide) and Roland Paul Corriveau (Corriveau) (collectively, Defendants):

NATURE OF THE CASE

This is an action for False Association under the Lanham Act, Breach of

Contract, Breach of the Duty of Good Faith and Fair Dealing, Breach of Fiduciary

Duty, Fraud, Negligent Misrepresentation, Deceit, Unjust Enrichment, Intentional

Interference with Contractual Relations, Intentional Interference with Prospective

Economic Advantage, Violation of the Right of Publicity, Common Law

Trademark Infringement, State Unfair Competition and False Advertising. Plaintiff

seeks actual damages, Defendants profits, and/or statutory damages, punitive

damages, an award of attorneys fees and costs, and preliminary and permanent

injunctive relief.

PARTIES

1. Kota resides in Temecula, California. Kota is a professional athlete and the

International Scooter Association World Champion for 2012, 2013 and 2014.

2. Upon information and belief, Defendant Lucky is a Washington limited

liability company that distributes and sells scooters and scooter parts and

accessories. It is believed that Lucky does business at 8429 154th Ave., NE

Redmond, WA, 98052, and distributes products worldwide.

3. Upon information and belief, Defendant Jeide is a Washington resident and a

principle of Lucky.

4. Upon information and belief, Defendant Corriveau is a Washington resident

and a principal of Lucky.

JURISDICTION AND VENUE

5. This is an action for False Association under Section 43(a) of the Lanham


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Act, 15 U.S.C. 1125(a), Breach of Contract, Breach of the Duty of Good Faith

and Fair Dealing, Breach of Fiduciary Duty, Fraud, Negligent Misrepresentation,

Deceit, Unjust Enrichment, Intentional Interference with Contractual Relations,

Intentional Interference with Prospective Economic Advantage, Violation of the

Right of Publicity, Common Law Trademark Infringement, and State Unfair

Competition and False Advertising.

6. This Court has subject matter jurisdiction over this case pursuant to 28

U.S.C. 1331 and 1332. Further, complete diversity of citizenship exists, and the

amount in controversy exceeds $75,000.

7. This Court has personal jurisdiction over Defendants based upon: (a)

transaction of business by Defendants by promoting and selling products in this

judicial district; (b) commission by Defendants of the infringing and other tortious

conduct underlying Plaintiffs claims, directed into this judicial district; and (c)

entering into a contractual relationship with Plaintiff in this judicial district which

was breached in this judicial district.

8. Venue is proper in the United States District Court for the Central District of

California under 28 U.S.C. 1391(b) & (c) and 1400.

BACKGROUND FACTS

Kotas Professional Career

9. Kota is a professional scooter athlete and the winner of the past three

International Scooter Association World Championships (2012-2014).

10. Kota has been a professional scooter athlete since the age of 10. Kota won

his first Scooter Association World Championship at the age of 16.

11. Kota is also listed as the current world record holder of the most backflips

in one minute in the Guinness Book of World Records.

12. While Kota is certainly a celebrity in the scooter world, his popularity


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extends far beyond the sport of scootering. Kota has over 67,000 likes on

Facebook and signs thousands of autographs a year. Kota has appeared on

numerous magazine covers and television programs, including The Ellen Show

in 2013. Kotas YouTube videos have been viewed over 60 million times. Kota

was also featured in BBCs Amazing Achievements program.

13. In 2012, Kota decided to seek out a sponsorship with a family-friendly

scooter company.

14. On or about July 2012, Defendant Jeide approached Kota about signing a

sponsorship agreement. Jeide represented he was the president of Lucky, claiming

further that Lucky was an extremely profitable scooter manufacturing and

distribution company. Defendants Jeide and Corriveau promised Kota that if Kota

signed the sponsorship agreement with Lucky, Kota would receive a financial

interest in Lucky and royalties from a KOTA complete signature scooter and

parts that would make Kota a millionaire.

15. At the time Defendants approached Kota, Kota was 16 years old and had

several other offers from sponsors. However, Kota decided to accept a sponsorship

deal with Lucky based on Jeide and Corriveaus statements.

Kotas Negotiations with Defendants and the Sponsorship Agreement

16. Corriveau, on behalf of Lucky, proposed a three-year sponsorship

agreement, where Lucky would pay Kota $2,000.00 a month for the first year of

the sponsorship agreement. Corriveau, on behalf of Lucky, also agreed that Kota

would receive a 1% membership interest per year in Lucky and 10% of net sales

from KOTA signature scooter and parts.

17. Kota informed Defendants that he was concerned about supporting himself

for the remaining 2 years of the sponsorship agreement. However, Jeide and

Corriveau told Kota that Kota would make much more than $2,000 per month


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after the first year, as Kota would receive distributions from his ownership in

Lucky as well as 10% of net sales from the KOTA signature scooter and parts.

18. Defendants promised to feature Kota on all Lucky marketing materials that

were displayed in stores. This promise was important to Kota, because it would

further bolster Kotas name recognition and brand.

19. Jeide and Corriveau promised Kota that if Kota signed the sponsorship

agreement with Lucky, the financial interest in Lucky and the royalties from the

KOTA products would make [Kota] a millionaire.

20. Corriveau specifically told Kota that Kotas membership interest in Lucky

would result in a huge payout for Kota because Defendants were planning on

selling Lucky for a huge profit within two to three years to a larger entity, such as

the Trek Bicycle Corporation.

21. Relying on Defendants representations, Kota signed a sponsorship

agreement with Lucky on September 7, 2012. A true and correct copy of the

sponsorship agreement is attached hereto as Exhibit A to the Complaint (the

Sponsorship Agreement).

22. Kota had other sponsorship offers, including one offer for $5,000 per month

plus a percentage of scooter sales. However, Kota relied on Defendants

representations that a sponsorship deal with Lucky would be in his best interest

and make him a millionaire.

23. The time that Kota was contracted with Lucky under the Sponsorship

Agreement was the prime of Kotas career. The sport of scootering was growing,

and Kota won three world championships during his time at Lucky.

Kotas Ownership Interest in Lucky

24. The Sponsorship Agreement provides that SPONSOR will grant

ATHLETE 3 percentage points of ownership (equity) in SPONSOR. One percent


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of equity in SPONSOR will be granted at the end of each year of the sponsorship

for three years. (Exhibit A, p. 3).

25. Defendants promised Kota that his financial interest in Lucky would result

in income for Kota, and help fund Kotas retirement.

26. Kota never received distributions related to his ownership interest in Lucky.

In fact, Defendants never intended for Kota to receive any distributions from his

interest in Lucky, as evidenced by an email from Jeide to Kota dated January 7,

2015. Jeide stated in this email, I also want you to be aware that the only time

your equity will pay anything is if the company does a distribution or we sell the

company. We dont plan on selling and we have never done distributions and dont

plan on it in the future.

27. Defendants never rendered an accounting to Kota regarding Lucky.

28. Defendants also terminated Kota two days before the completion of his

second year of the Sponsorship Agreement.

29. Upon information and belief, Defendants terminated Kota to avoid having

Kotas ownership interest in Lucky continue to vest.

30. According to the Sponsorship Agreement, Kotas ownership interest in

Lucky would fully vest at the time of any ownership change. (Exhibit A, p. 3 at

12(a)).

31. Upon information and belief, Luckys ownership changed in 2013, and

therefore, Kotas 3% ownership interest in Lucky is fully vested.

Issues with Lucky Products

32. The Sponsorship Agreement states, SPONSOR shall provide ATHLETE

with customized products that meet his specifications within 30 days so he can

practice and test them. (Exhibit A p.3).

33. Kota did not receive customized products in a condition satisfactory for his


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athletic purposes from Defendants until August 10th, 2014.

34. Frequently, the products Defendants provided to Kota did not meet Kotas

specifications. For instance, several scooter decks broke after test-rides.

The KOTA Complete Signature Scooter and Royalties

35. The Sponsorship Agreement provided that SPONSOR will build and

launch a KOTA complete signature scooter within six months... (emphasis

added). Given that the Sponsorship Agreement was executed September 7, 2012,

Defendants were required to complete the KOTA complete signature scooter by

March 7, 2013.

36. The KOTA Complete Signature Scooter was not completed until September

2014, which is after Defendants terminated Kota and cancelled Kotas

Sponsorship Agreement.

37. The Sponsorship Agreement also states that Defendants shall remit to

ATHLETE 10% of net sales of [the KOTA Complete Signature Scooter] for the

duration of the Agreement, paid quarterly. Should SPONSOR choose to build

KOTA signature parts, SPONSOR will remit to ATHLETE 10% of net sales of

each signature part. (Exhibit A p.3, emphasis added).

38. On or about summer 2013, Defendant Jeide, on behalf of Lucky, agreed that

instead of 10% of net sales on KOTA signature parts and the KOTA Complete

Signature Scooter, Kota would receive 15% of net sales on KOTA signature parts

and the KOTA Complete Signature Scooter. Jeide reiterated this in an email to

Kota on January 25, 2014.

39. Defendants terminated Kota, and launched the KOTA Complete Signature

Scooter after Kotas termination. Thus, Kota was not able to make the amount of

royalties Defendants promised.

40. Furthermore, upon information and belief, Kota has not received all of his


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15% of net sales on the KOTA signature scooter and the KOTA signature parts.

Kotas Travel Expenses

41. Defendants also agreed to pay Kotas travel expenses for competitions,

events and promotional activities. Specifically, the Sponsorship Agreement states,

SPONSOR will fund travel and lodging expenses of ATHLETE for agreed upon

competitions, events, and promotional activities.

42. Defendants agreed that Kota should attend the 2014 International Scooter

Association World Championship in England. Kota attended the event, but Lucky

did not reimburse Kota for all his expenses.

43. Lucky also did not reimburse Kota for the mileage, maintenance and repair

costs that Kota incurred while using his vehicle for Lucky.

44. Lucky requested that Kota attend the East Coast Sprinter Tour 2013, but did

not reimburse Kota for the vehicle maintenance that was done in preparation for

this tour. Lucky cancelled the East Coast Sprinter Tour 2013 after Kota already

performed and paid for the vehicle maintenance.

Defendants Additional Promises to Kota

45. Defendants promised to promote Kota as their number-one rider, and send

him to competitions around the world.

46. Defendants specifically promised to send Kota to several countries and

trade shows, including: Germany for ISPO (the worlds largest trade show for

scooters) in 2013, 2014 and 2015; Australia; China; the Scooter World

Championships; the InterBike Trade Show in Las Vegas; and the East Coast

Sprinter Tour in 2013.

47. Defendants cancelled the trip to Australia as well as the trips to Germany

for the ISPO in 2013, 2014 and 2015. Defendants also cancelled the East Coast

Sprinter Tour in 2013 and the InterBike Trade Show Las Vegas in 2012, 2013 and


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2014.

48. Defendants did not promote Kota as their number-one rider. Defendants

instead promoted a different kind of professional scootering called street

scootering instead of promoting park scootering. Kota is a scooter rider known

for park scootering.

49. Defendants also failed to feature Kota in all marketing materials as was

promised back when Defendants approached Kota about signing the Sponsorship

Agreement.

50. Additionally, Defendants promised to pay for Kotas vehicle to be wrapped

with Luckys design work, and reimburse Kota for the cost of taking off the

previous wrap. Kotas previous wrap cost over $6,400, but Kota took the wrap off

his vehicle based on Defendants promises. The cost to remove the old wrap alone

totaled $1,000. Defendants did not reimburse Kota for the cost to remove the

wrap. Defendants also did not put new wrap on Kotas vehicle. As such, Kota lost

the opportunity to generate revenue from sponsors that would have otherwise paid

to have wrap, stickers and decals on Kotas vehicle.

Tukno Bars Dispute

51. Kota designed and created a scooter product, which Kota named the Tukno

Bar.

52. Defendants agreed that Kota could sell Tukno Bars under Kotas own brand

and business.

53. The Tukno Bars are extremely popular with consumers.

54. Kota had an agreement with Anthony Baker to manufacture the Tukno Bars.

When Kota went to order more Tukno Bars, Mr. Baker informed Kota that he did

not have any Tukno Bars ready because Defendants bought out the entire supply.

55. The above-mentioned action damaged Kota and Mr. Bakers professional


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relationship.

56. Defendants also began to manufacturer the Tukno Bars in China, sacrificing

quality for price. The cheap Tukno Bars are advertised as KOTA products even

though Kota did not approve of the Tukno Bars being manufactured anywhere but

the United States. These cheap Tukno Bars have flooded the market, and

affected Kotas customers, including distributors that are trying to sell the higher

quality Tukno Bars.

57. Upon information and belief, Defendants continue to sell Kotas Tukno Bars

using Kotas name, without Kotas permission and without paying Kota any

licensing or royalty fees.

Kotas Performance

58. While Defendants have disregarded their obligations in the Sponsorship

Agreement and broken their promises to Kota, Kota has gone above and beyond

his obligations in the Sponsorship Agreement.

59. The Sponsorship Agreement requires Kota to make himself available to

promote SPONSORS products and services for up to 45 days per year. Kota has

promoted Lucky an average of 290 days per year.

60. Kota has also saved Defendants money by traveling using his mothers free

flight passes, as his mother is a flight attendant.

61. During the time Kota was contracted with Lucky, Kota signed tens of

thousands of autographs, won three world championships, set two Guinness Book

of World Records, and appeared in countless magazines. Kota also appeared on

The Ellen Show at this time, wearing a Lucky brand shirt.

62. Kota won his third International Scooter Association championship on

August 10, 2014. When Kota returned from the championship, Lucky fired Kota.

Defendants Misuse of Kotas Name and Image


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63. While the Sponsorship Agreement provides that All videos and

photographs of ATHLETE taken or created by SPONSORshall be considered

the intellectual property of SPONSOR, the Sponsorship Agreement does not

grant Defendants an interest in Kotas name, image or likeness. See Exhibit A to

the Complaint.

64. After Kota was fired, Defendants continued to use Kotas name and image

to promote their business.

65. In one instance, Defendants fabricated several quotations and attributed

these quotations to Kota. Defendants then published the false Kota quotations

without informing Kota or obtaining Kotas consent.

66. Defendants still continue to sell KOTA named scooters and scooter

products.

67. Upon information and belief, Defendants continue to use Kotas name,

image and likeness to promote their products.

68. Kota did not give permission to Defendants to continue to use his name,

image or likeness after the contract terminated, yet Defendants continue to use

Kotas name, image and likeness to promote their products.

Defendants Current Actions

69. Defendants refuse to send Kota his royalty payments for sales up to the

fourth quarter of 2014.

70. On or about January 7, 2015, Jeide told Kota that he would only pay Kota

royalties if Kota agreed to release Defendants from everything Defendants owed

Kota in the past, and all royalty payments moving forward. This was unacceptable

to Kota.

71. Defendants continue to sell Kotas signature scooter and Kota signature

scooter parts, using Kotas name and brand, without Kotas permission and


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without paying Kota royalties.

72. The sale of the Kota signature scooter and parts is damaging Kotas

reputation. For example, on social media, Kotas fans are questioning why Kota

has a signature scooter but does not ride it.

73. Defendants have not announced that Kota is no longer riding for Lucky.

Upon information and belief, Defendants have done so in order to continue

profiting from Kotas popularity without compensating Kota.

COUNT I

(False Association Lanham Act, 15 U.S.C. 1125(a) et seq.)

74. Plaintiff incorporates the preceding allegations as if fully set forth herein.

75. Defendants use in commerce of Plaintiffs name, image, likeness and

trademarks, including the KOTA trademark, as used on goods that do not emanate

from Plaintiff, constitutes a false designation of origin and false association by

representing that Defendants goods are associated or sponsored by Plaintiff, when

in fact they are not.

76. Defendants use in commerce of Plaintiffs name, image, likeness and

trademarks with knowledge that Plaintiff owns, has used, and continues to use

Plaintiffs name, image, likeness and trademarks constitutes intentional conduct by

Defendants to make false designations of origin, false associations and false

descriptions about Defendants goods.

77. Defendants have deliberately and willfully attempted to trade on Plaintiffs

well-established goodwill in Plaintiffs name, image, likeness and trademarks that

Plaintiff has developed in connection with his products and unique brand.

Defendants have done so to confuse consumers as to the origin, association and

sponsorship of Defendants goods.

78. Defendants conduct has confused or is likely to confuse consumers as to


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the origin, association, connection or sponsorship of Defendants products in

violation of 15 USC 1125(a).

79. As the direct and proximate result of such false association, Plaintiff has

suffered, and will continue to suffer, monetary loss and irreparable injury to his

business, reputation, and goodwill.

COUNT II

(Breach of Contract)


81. A valid agreement between Plaintiff and Defendants existed.

82. The Defendants breached the agreement by failing to render distributions

from Lucky to Plaintiff as promised, failing to remit the proper royalties to

Plaintiff, failing to provide Plaintiff with customized products that met Plaintiffs

specifications within 30 days, failing to provide Plaintiff with evidence of his 3%

interest in Lucky, failing to launch the KOTA complete signature scooter within

six months, failing to reimburse Plaintiff for travel expenses, failing to send

Plaintiff to the countries promised, failing to properly promote Plaintiff as

promised, and failing to reimburse Plaintiff for replacing the vehicle wrap.

83. Defendants breach was not excused by any conduct of Plaintiff or any third

party.

84. Defendants breach was not the result of Plaintiffs failure to perform a

condition precedent.

85. The Plaintiff was damaged by Defendants breach of the agreement.

86. The damages sustained by Plaintiff are reasonably ascertainable.

87. The damages sustained by Plaintiff were a foreseeable consequence of the

Defendants breach.

COUNT III


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(Breach of the Duty of Good Faith and Fair Dealing)


89. Plaintiff and Defendants entered into a contract.

90. Plaintiff has not breached any element of the contract with Defendants.

91. Defendants have breached the letter and spirit of the contract by continuous

breach thereof, culminating in a refusal to pay Plaintiff what was promised,

terminating the contract right before the release of the scooter which would

generate royalties for Plaintiff, interfering with Plaintiffs business, and

withholding distributions for his membership interest in Lucky after they had

promised the distributions would make Plaintiff rich.

92. Defendants acted willfully and maliciously, intending to lock Plaintiff into a

contract with promises of wealth they never intended Plaintiff to receive.

93. Defendants acted in bad faith, looking out for their own interests, knowing

full well that the negative consequences to the Plaintiff would be substantial.

94. As the direct and proximate result of Defendants violation, Plaintiff has

suffered monetary damages in an amount to be determined at trial.

COUNT IV

(Breach of Fiduciary Duty)


96. Defendants owed a fiduciary duty to Plaintiff to manage Lucky, and to

account to Plaintiff for the activities of Lucky as Plaintiff owned a membership

interest in Lucky.

97. Defendants have not accounted to Plaintiff for the activities of Lucky.

98. By virtue of the above stated acts, Defendants have, in bad faith, breached

their fiduciary duty to Plaintiff.

99. As the direct and proximate result of Defendants bad faith breach of their


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duties, Plaintiff has been damaged in an amount to be determined at trial.

COUNT V

(Fraud)


101. Defendants have defrauded Plaintiff by falsely representing that Plaintiffs

membership interest in Lucky and royalties from the KOTA Lucky products would

provide Plaintiff with the income promised.

102. Defendants knew that Plaintiffs membership interest in Lucky would not

result in any payment to Plaintiff, and in fact never intended to pay Plaintiff any

distributions from Lucky.

103. Defendants also knew the royalties from the KOTA Lucky products would

not make Plaintiff a substantial sum of money.

104. Defendants intended Plaintiff to rely on the aforementioned representations

in order to induce Plaintiff to sign the Sponsorship Agreement.

105. Plaintiff justifiably relied on Defendants representations, signing the

Sponsorship Agreement on Defendants word.

106. Defendants fraudulent activities have damaged Plaintiff in an amount to be

determined at trial.

COUNT VI

(Negligent Misrepresentation)


108. Defendants negligently made false allegations and misrepresentations about

Lucky to Plaintiff.

109. Defendants knew or should have known that the statements were false and

misrepresentative.

110. Plaintiff justifiably relied on Defendants representations.


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111. Defendants negligent misrepresentations have damaged Plaintiff in an

amount to be determined at trial.

COUNT VII

(Deceit)


113. Defendants have deceived Plaintiff and Plaintiffs fans and customers to the

detriment of everyone involved.

114. Defendants deceitful activities have damaged Plaintiff in an amount to be

determined at trial.

COUNT VIII

(Unjust Enrichment)


116. Plaintiffs contract specified that he is required to work 45 days of the year

for Defendants, but Plaintiff actually worked over 200 days a year for the

Defendants.

117. Plaintiff was not compensated for the additional days he worked for

Defendants.

118. Plaintiff was not paid for the travel and automobile expenses that he

incurred to the benefit of Defendants.

119. Plaintiff also developed and popularized the Tukno Bars, which Defendants

then sold to their profit.

120. Defendants have benefitted from Plaintiffs hard work and actions to the

detriment of Plaintiff in an amount to be determined at trial.

COUNT IX

(Intentional Interference with Contractual Relations)



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122. Plaintiff had a contractual relationship with the manufacturer of the Tukno

Bars that was beneficial to Plaintiff.

123. Defendants knew Plaintiff had a contractual relationship with the

manufacturer of the Tukno Bars, Mr. Baker.

124. Defendants intentionally disrupted the relationship between Plaintiff and

Mr. Baker by buying the entire supply of Tukno Bars from the manufacturer so

that the manufacturer could not fill Plaintiffs orders.

125. Defendants bought the entire supply of Tukno Bars so that Plaintiffs

business relationship and reputation would suffer.

126. Defendants actions have disrupted or are intended to disrupt Plaintiffs

relationship with Mr. Baker.

127. Defendants have no legal right, privilege or justification for their conduct.

128. As the direct and proximate cause of Defendants actions, Plaintiff has

suffered damages in an amount to be determined at trial.

129. Based on the intentional, willful and malicious nature of Defendants

actions, Plaintiff is entitled to recover exemplary damages and reasonable

attorneys fees and costs incurred in connection with this action.

COUNT X

(Intentional Interference with Prospective Economic Advantage)


131. Plaintiff had a longstanding economic relationship with his customers who

were purchasing the Tukno Bars.

132. Defendants knew Plaintiff had an economic relationship with his customers.

133. Defendants intentionally disrupted the relationship between Plaintiff and the

manufacturer of the Tukno Bars by taking Plaintiffs design for the Tukno Bars

and having cheaper versions manufactured in China so that Defendants could


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undercut Plaintiff and Plaintiffs customers, who were distributing the Tukno Bars.

134. Defendants actions have disrupted or are intended to disrupt Plaintiffs

relationship with his customers.

135. Defendants have no legal right, privilege or justification for its conduct.

136. As the direct and proximate cause of Defendants actions, Plaintiff has

suffered damages in an amount to be determined at trial.

137. Based on the intentional, willful and malicious nature of Defendants

actions, Plaintiff is entitled to recover exemplary damages and reasonable

attorneys fees and costs incurred in connection with this action.

COUNT XI

(Violation of the Right of Publicity Cal. Civ. Code 3344)


139. Plaintiff has a right in his name, image and likeness.

140. Defendants have used and continue to use Plaintiffs name, image and

likeness without Plaintiffs permission on Defendants website and in Defendants

advertising and marketing materials.

141. Defendants use of Plaintiffs name, image and likeness without Plaintiffs

permission is deliberate and willful.

142. Plaintiffs reputation has been damaged by Defendants use of Plaintiffs

name, image and likeness.

143. Defendants have also profited from the use of Plaintiffs name, image and

likeness but have not compensated Plaintiff for this use.

144. Plaintiff is entitled to a permanent injunction against Defendants, as well as

all other remedies available under the law, including, but not limited to

disgorgement of profits.

COUNT XII


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(Common Law Trademark Infringement)


146. By virtue of having used and continuing to use the KOTA trademark, the

Plaintiff has acquired common law rights in the KOTA trademark.

147. Defendants infringing use of the KOTA trademark is likely to cause

confusion, mistake, or deception among consumers, who will believe that

Defendants services and/or goods originate from, or are affiliated with or

endorsed by, Plaintiff when, in fact, they are not.

148. As the direct and proximate result of Defendants infringement of Plaintiffs

common law trademark rights, Plaintiff has suffered, and will continue to suffer,

monetary damages and irreparable injury to his business, reputation, and goodwill.

COUNT XIII

(State Unfair Competition Cal. Bus. & Prof. Code 17200 et seq.)


150. Upon information and belief, Defendants engaged in the sale of products

that use Plaintiffs trademarks, name, image and likeness without Plaintiffs

permission to do so.

151. Defendants have profited from the use of Plaintiffs trademarks, name,

image and likeness.

152. Defendants advertising and sale of these products has caused irreparable

harm to Plaintiff, and will continue to do so unless enjoined by this Court.

COUNT XIV

(False Advertising & Deceptive Trade Practices Cal. Bus. & Prof. Code 17500)


154. Defendants have made false statements about Defendants goods and

services on Defendants websites and in Defendants advertising materials.


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155. Defendants have made false statements about Defendants goods to third

parties.

156. In the course of conducting its business, Defendants knowingly made false

representations as to affiliation, connection and/or association with Plaintiff by

using Plaintiffs trademark, name, image and likeness without Plaintiffs

permission.

157. Upon information and belief, Defendants have profited from these false

statements and misrepresentations.

158. As a direct and proximate result of Defendants false statements, Plaintiff

has suffered and will continue to suffer monetary damages and irreparable injury

to his business, reputation, and goodwill.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that the Court grant the

following relief:

A. Injunctive relief to prevent ongoing infringement, false association

and unfair competition consisting of:

1. An order prohibiting Defendants from using Plaintiffs name, image

and likeness;

2. An order prohibiting Defendants from using name KOTA or any

similar mark;

3. An order instructing Defendants to deliver to Plaintiff any and all

goods bearing the KOTA name;

4. An order instructing Defendants to cease sale of the Tukno Bars;

5. An order instructing Defendants to deliver to Plaintiff any and all

goods bearing Plaintiffs name, image and likeness;

6. An order requiring Defendants to cease all conduct which implies


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that Plaintiff or his entities are associated with, endorsed by or

sponsored by Plaintiff;

7. An order prohibiting Defendants from falsely advertising their

companys products or services;

B. An accounting by Defendants to Plaintiff for Lucky;

C. An order to deliver evidence of Plaintiffs ownership of 3% of Lucky;

D. Compensatory damages for past trademark infringement;

E. Compensatory damages for past false association;

F. Compensatory damages for past unfair competition;

G. Compensatory damages for breach of contract;

H. Compensatory damages for intentional interference with contractual

relations;

I. Compensatory damages for intentional interference with prospective

economic advantage;

J. Compensatory damages for fraud;

K. Compensatory damages for deceit;

L. Compensatory damages for unjust enrichment;

M. Pursuant to 17 U.S.C. 505 and 1203(b)(4) and (5), and 1125(a), full

costs in litigating this matter, including reasonable attorneys fees;

N. Punitive damages for Defendants willful and malicious conduct; and

O. All other relief to which Plaintiff is entitled.

DATED this 5th day of March, 2015.

TECHLAW, LLP

By___/s/ Dana B. Robinson_______ Dana B. Robinson (Bar No. 208265)


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P.O. Box 1416 La Jolla, CA 92038 [email protected] Attorney for Plaintiff


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DEMAND FOR JURY TRIAL

Plaintiff Dakota Schuetz hereby demands a jury trial as provided by Rule

38(a) of the Federal Rules of Civil Procedure.

DATED this 5th day of March, 2015.

TECHLAW, LLP

By___/s/ Dana B. Robinson_______ Dana B. Robinson (Bar No. 208265) P.O. Box 1416 La Jolla, CA 92038 [email protected] Attorneys for Plaintiff


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