quartz hill chamber of commerce v. quartz hill community pagaent - miss quart hil trademark...

8/20/2019 Quartz Hill Chamber of Commerce v. Quartz Hill Community Pagaent - Miss Quart Hil trademark complaint.pdf

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AMENDED AND SUPPLEMENTAL COMPLAINT

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Bradley T. Weeks, Bar No. 173745 [email protected]

CHARLTON WEEKS LLP1031 West Avenue M-14, Suite A

Palmdale, CA 93551Telephone: (661) 265-0969

Facsimile: (661) 265-1650

Attorney for Plaintiff Quartz HillChamber of Commerce

UNITED STATED DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Quartz Hill Chamber of Commerce

Plaintiff,

v.

Elizabeth Smith, Virginia Erma Beaver,

Quartz Hill Community Pageant

Foundation, Does One through OneHundred inclusive,

Defendants.

CASE NO. 2:15-cv-3575

AMENDED AND

SUPPLEMENTAL COMPLAINT

FOR:

(1) Trademark Infringement

(2) Federal Unfair Competition

(3) Federal Trademark Dilution(4) California Trademark Dilution

(5) California Trademark

Infringement and Unfair

Competition

(6) Common Law Trademark

Infringement and Unfair

Competition

(7) Unjust Enrichment

(8) Application for Preliminary and

Permanent Injunction

DEMAND FOR JURY TRIAL

Plaintiff Quartz Hill Chamber of Commerce (“QH Chamber”) brings this

action to enjoin Elizabeth Smith and Virginia Erma Beaver collectively

Case 2:15-cv-03575-JAK-PJW Document 41 Filed 09/30/15 Page 1 of 17 Page ID #:434


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(“Defendants”) unauthorized use of QH Chamber’s service marks “Miss Quartz

Hill”, “Little Miss Quartz Hill”, “Junior Miss Quartz Hill”, and “Quartz Hill

Community Pageants”. Collectively, these four marks are referred to herein as the

“Pageant Marks.” QH Chamber seeks preliminary and permanent injunctive relief

and damages under the laws of the United States and the State of California and

alleges on knowledge as to itself and its own acts, and on information and belief as

to all other matters, as follows:

JURISDICTION AND VENUE

1. This is an action for trademark infringement, dilution, unfair

competition, and unjust enrichment under the Trademark Act of 1946, as amended,

15 U.S.C. § 1051 et seq. (“Lanham Act”) and the laws of the State of California.

Accordingly, this Court has subject matter jurisdiction over this action under

Section 39 of the Lanham Act, 15 U.S.C. § 1121, and Title 28 of the United States

Code, §§ 1331 and 1338, as to counts I through III inclusive and count VIII, and

supplemental jurisdiction over state law claims under 28 U.S.C. § 1367(a), IV

through VIII inclusive.

2. Venue lies within this district because a substantial part of the events

giving rise to these claims occurred in this district and all Defendants, and each of

them, reside in this judicial district for purposes of 28 U.S.C. § 1391(b) and (c).

PARTIES

3. QH Chamber is a corporation organized and existing under the laws of

the State of California and has its principal place of business in Quartz Hill, Los

Angeles County, California.

4. On information and belief, defendant Elizabeth Smith is an individual

residing in Los Angeles County, California.



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5. On information and belief, defendant Virginia Erma Beaver is an

individual residing in Los Angeles County, California.

6. On information and belief, defendant Quartz Hill Community Pageant

Foundation is a corporation organized according to the laws of the state of

California, entity number C3673000, under the control of defendant Elizabeth

Smith, created on or about May 5, 2014.

FACTS

A. QH Chamber’s Use of the Pageant Marks

7. In 1950 QH Chamber conducted its first beauty pageant. This winner of

this pageant received the title of “Miss Quartz Hill.” Thereafter QH Chamber has

conducted, promoted, and produced the Miss Quartz Hill beauty pageant in

conjunction with an annual springtime community event known as the “Almond

Blossom Festival.” Every year, including the year 2014, QH Chamber has

conducted this pageant, and selected a young woman to be Miss Quartz Hill. Every

year contestants have competed to be selected Miss Quartz Hill. Every year QHChamber published the names of the contestants, and the prior winners. No later

than the year 1986 QH Chamber also has conducted, promoted, and produced

beauty pageants for “Little Miss Quartz Hill,” and no later than the year 1996 QH

Chamber also has conducted, promoted, and produced beauty pageants for “Junior

Miss Quartz Hill.” These pageants are for women too young to compete in the Miss

Quartz Hill pageant.

8. Currently the name of the event which selects “Miss Quartz Hill,”

“Junior Miss Quartz Hill,” and “Little Miss Quartz Hill” is named the “Quartz Hill

Community Pageants.” Quartz Hill Community Pageants has been used since at

least the year 1958.



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9. Exhibit 1, attached hereto, is an exemplar of plaintiff’s use in

commerce of the phrases “Almond Blossom Festival” and noting the crowning of a

pageant queen and a pageant princess in 1955.


commerce of the phrases “Almond Blossom Festival” and “Miss Quartz Hill,”

equating the phrase “Miss Quartz Hill” with the pageant queen selected at the

Almond Blossom Festival, in 1960.










commerce of the phrases “Almond Blossom Festival” and “Miss Quartz Hill,”equating the phrase “Miss Quartz Hill” with the pageant queen selected at the












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Almond Blossom Festival, in 1974, and setting forth a substantial historical

narrative of the creation of the Almond Blossom Festival and the association of the

crowing of Miss Quartz Hill by plaintiff thereat.


commerce of the phrase “Miss Quartz Hill,” equating the phrase “Miss Quartz Hill”

with the pageant queen selected at the Almond Blossom Festival, on information

and belief in 1976, and setting forth a substantial historical narrative of the creation

of the Almond Blossom Festival and the association of the crowing of Miss Quartz

Hill by plaintiff thereat.





narrative of the creation of the Almond Blossom Festival and the association of thecrowing of Miss Quartz Hill by plaintiff thereat.



with the pageant queen selected at the Almond Blossom Festival, in 1980, and

setting forth a substantial historical narrative of the creation of the Almond Blossom

Festival and the association of the crowing of Miss Quartz Hill by plaintiff thereat.







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narrative of the creation of the Almond Blossom Festival and the association of the

crowing of Miss Quartz Hill by plaintiff thereat.



with the pageant queen selected at the Almond Blossom Festival, on information

and belief in 1983, and setting forth a historical list of all pageant winners as

“Almond Blossom Queens of the Past,” including both the “Almond Blossom

Queen” and “Miss Quartz Hill” in the same list, and using the phrase “Little Miss

Quartz Hill” in commerce.


commerce of the phrase “Almond Blossom Festival,” equating the phrase “Miss

Quartz Hill” with the pageant queen selected at the Almond Blossom Festival, on

information and belief in 1994, and the phrase “Little Miss Quartz Hill” with the

younger pageant queen selected at the Almond Blossom Festival.


commerce of all the Pageant Marks in 1996.

24. Exhibit 16, attached hereto, is an exemplar of plaintiff’s use incommerce of all of the Pageant Marks in 2001. Importantly, the pageant contestant

winner selected by plaintiff to be Miss Quartz Hill in 2001 was Kelly Crystal Smith,

the daughter of defendant Elizabeth Smith, and the pageant contestant winner

selected by plaintiff to be Junior Miss Quartz Hill in 2001 was Jordana Lyn Beaver,

the daughter of defendant Virginia Beaver, demonstrating the defendants’ actual

knowledge, as of at least 2001, of plaintiff’s use of the Pageant Marks.







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31. The Pageant Marks are well known in the Antelope Valley, which is in

the northern portion of Los Angeles County and includes the cities of Lancaster and

Palmdale. Exhibits 1 - 22, as references supra, demonstrate a continuous use of the

Pageant Marks in commerce by Plaintiff in association with Plaintiff’s services

dating back to 1950. By virtue of this continuous use of the Pageant Marks, Plaintiff

accrues to common law rights to control, own, and use the Pageant Marks as against

all other persons and entities in the United States of America.

32. In addition to its common law rights, QH Chamber owns: United States

Trademark Registration No. 86317923, for “Miss Quartz Hill”; United StatesTrademark Registration No. 86319467, for “Junior Miss Quartz Hill”; United States

Trademark Registration No. 86319478, for “Little Miss Quartz Hill”; and United

States Trademark Registration No. 86319482, for “Quartz Hill Community

Pageants”. All of these registrations are for “Entertainment in the nature of beauty

pageants” in International Class 041. Collectively, these marks are referred to

hereinafter as the “Pageant Marks.”

33. A true and correct copy of United States Trademark Registration No.

86317923, for “Miss Quartz Hill” is attached hereto and marked as Exhibit 23.


86319467, for “Junior Miss Quartz Hill” is attached hereto and marked as Exhibit

24.



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86319478, for “Little Miss Quartz Hill” is attached hereto and marked as Exhibit 25.


86319482, for “Quartz Hill Community Pageants” is attached hereto and marked as

Exhibit 26.

37. QH Chamber uses its Pageant Marks extensively in various media

formats, including in print advertisements and on the internet, to promote its Quartz

Hill Pageants beauty pageants.

38. QH Chamber’s Pageant Marks are recognized and relied upon by the

public in California to identify the pageants and to distinguish these services from

those of others.

39. As a result of QH Chamber’s continuous usage and promotion of the

Pageant Marks, QH Chamber has acquired strong common-law rights along with

great and valuable goodwill in the Pageant Marks. As a result, the Pageant Mark has

become well-known and famous in California.

B. Defendants’ Unauthorized use of the Pageant Marks and Attempts to

Steal Pageant Marks

40. The state of affairs described above in paragraphs 3 through 39 well

served QH Chamber, the community of Quartz Hill, and all participants until March

2014.

41. On March 5, 2014, Elizabeth Smith submitted to the Los Angeles

County Registrar-Recorder a Fictitious Business Name Statement claiming to own

the Pageant Marks. This was done without the knowledge or consent of QH

Chamber. Thereafter Elizabeth Smith and Virginia Erma Beaver have claimed they

own and have the right to use the Pageant Marks. They have used all of these marks,

and publically claimed that they own these marks, and that QH Chamber does not

own them. Since March 5, 2014, Elizabeth Smith and Virginia Erma Beaver have



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been improperly using QH Chamber’s marks, and such uses are unauthorized and

unlawful, such as using the Pageant Marks to solicit donations, fundraising, and to

hold competing events. A true and correct copy of Smith’s attempt to usurp

Plaintiff’s rights to use of the Pageant Marks as a fictitious business name is

attached hereto and marked as Exhibit 27.

42. Elizabeth Smith and Virginia Erma Beaver thereafter sent cease and

desist letters to QH Chamber and third parties demanding that they cease using the

Pageant Marks. A true and correct copy of that request is attached hereto and

marked as Exhibit 28.

43. QH Chamber did not comply with the demand of Smith and Beaver to

cease using its own Pageant Marks.

44. Instead, on or about May 5, 2014, Smith purported to incorporate

herself using the Pageant Marks as the corporation’s name. See Exhibit 29.

45. Thereafter on May 30, 2014, Elizabeth Smith and Virginia Erma

Beaver sued, QH Chamber claiming that they own the Pageant Marks. These claims

were subsequently dismissed, or stricken by the state court.

46. On November 6, 2014, Elizabeth Smith applied for Registration of Trademark or Service Mark to the State of California Secretary of State, for the

marks: “Miss Quartz Hill”, registration number 00069579; “Quartz Hill Community

Pageant”, registration number 00069581; “Junior Miss Quartz Hill”, registration

number 00069580; “Little Miss Quartz Hill”, registration number 00069582. See

Exhibits 30.

47. QH Chamber has spoken with Defendants and their attorney, and has

provided evidence that it used the Pageant Marks long before Elizabeth Smith and

Virginia Erma Beaver has claimed to have used them. QH Chamber has demanded

that Elizabeth Smith and Virginia Erma Beaver cease using the Pageant Marks.

Defendants have ignored these demands.



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48. Defendants continue to use the Pageant Marks, for fundraising,

solicitation of donations, publicity, and participation in other pageants. See, for

example, Exhibit 31, reflecting a fundraiser at a sandwich shop, Exhibit 32,

reflecting a fundraiser at a yard sale and bake sale, Exhibit 33, reflecting the public

display of sashes and other regalia bearing the names of the Pageant Marks, and

Exhibit 34, disseminating on Facebook electronic media claims of ownership and

control of the pageant marks.

49. QH Chamber’s first use of its Pageant Marks long precedes any date

upon which Defendants, and each of them, may claim rights in the Pageant Marks.

Defendants’ unauthorized use of the Pageant Marks began long after the Pageant

Marks became famous.

C. Defendants’ Unauthorized use of the Pageant Marks has Caused

Confusion

50. The unauthorized use of the Pageant Marks by Defendants, and each of

them, has and is likely to cause confusion, to cause mistake, and to deceive

consumers and potential consumers as to the affiliation, connection, sponsorship or association of Defendants with the Pageant Marks, or to cause confusion regarding

the affiliation, sponsorship, or approval of Defendants’ services by QH Chamber.


them, falsely indicates to the public that Defendants, their business, and their

services are affiliated, connected, or associated with QH Chamber, or are sponsored,

endorsed, or approved by QH Chamber, or are in some manner related to QH

Chamber or its or services.

52. Defendants' unauthorized use of the Pageant Marks had caused and will

continue to cause dilution of the distinctive quality of the Pageant Marks.


them, enables Defendants to trade on and receive the benefit and goodwill of the



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reputation of the Pageant Marks, and to gain acceptance for Defendants’ services

and not solely on Defendants' own merits.


them, impairs QH Chamber’s ability to control the nature and quality of the services

associated with its marks, and subjects the valuable reputation and goodwill of the

Pageant Marks to the actions of Defendants, and each of them,.

55. As a result of their unauthorized use of the Pageant Marks, by

Defendants, and each of them, are being unjustly enriched at QH Chamber’s

expense.

56. Unless these acts of infringement, unfair competition, and unfair and

deceptive practices by Defendants are enjoined by this Court, these acts will

continue, and will continue to cause irreparable injury to QH Chamber and to the

public, for which there is no adequate remedy at law.

57. Finally, Defendants’ activities complained of herein have been

malicious, fraudulent, deliberate, willful, intentional, and in bad faith, with full

knowledge and conscious disregard of QH Chamber’s rights. In view of the

egregious nature of Defendants’ actions, this is an exceptional case within themeaning of Section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a).

COUNT I: FEDERAL TRADEMARK INFRINGEMENT

58. QH Chamber repeats and realleges each and every allegation of all

prior paragraphs, and incorporates them by reference as if fully set forth herein.

59. The acts of Defendants complained of herein constitute infringement of

the Pageant Marks, in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114.

COUNT II: FEDERAL UNFAIR COMPETITION





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61. The acts of Defendants complained of herein constitute unfair

competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

COUNT III: FEDERAL TRADEMARK DILUTION



63. The acts of Defendants complained of herein constitute dilution of the

Pageant Marks in violation of Section 43(c) of the Lanham Act, 15 U.S.C. §

1125(c).

COUNT IV: CALIFORNIA TRADEMARK DILUTION



65. The acts of Defendants complained of herein are likely to injure the

business reputation of QH Chamber and/or dilute the distinctive quality of QH

Chamber’s Pageant Marks in violation of Cal. Bus. & Prof. Code § 14200 et seq.

COUNT V: CALIFORNIA TRADEMARK INFRINGEMENT

AND UNFAIR COMPETITION



67. The acts of Defendants complained of herein constitute unfair

competition in violation of Cal. Bus. & Prof. Code §§ 17200 et seq.

COUNT VI: TRADEMARK INFRINGEMENT AND UNFAIR

COMPETITION





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69. The acts of Defendants complained of herein constitute unfair methods

of competition, common law trademark infringement, misappropriation of QH

Chamber’s goodwill in California, and are a violation of the common law of

California.

COUNT VII: UNJUST ENRICHMENT



71. Defendants, and each of them, have benefited at QH Chamber’s

expense from Defendants’ wrongful acts and have accepted and retained said benefit

in circumstances that would make it inequitable for them to retain said benefits

without paying the value thereof.

72. The acts of Defendants complained of herein constitute unjust

enrichment of Defendants at QH Chamber’s expense in violation of the common

law of the State of California.

COUNT VIII: APPLICATION FOR PRELIMINARY AND

PERMANENT INJUNCTION



74. Defendants have damaged Plaintiff, and is continuing to damage

Plaintiff, by the illegal acts complained of herein. Unless Defendants are restrained

by this Court, Defendants will cause irreparable injury to QH Chamber for which

there is no adequate remedy at law.

PRAYER FOR RELIEF



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WHEREFORE, QH Chamber hereby requests that this Court:

1. That Defendants and their officers, directors, agents, servants,

employees, attorneys, successors, heirs, and assigns, related companies, and all

those acting in concert with or on behalf of Defendants, be preliminarily and

permanently enjoined and restrained from:

a. using the name and marks “Miss Quartz Hill”, “Junior Miss Quartz

Hill”, “Little Miss Quartz Hill”, and “Quartz Hill Community Pageants” in any

manner whatsoever, specifically including in connection with any pageant,

modeling, philanthropic, and/or beauty-related contests or services;

b. using any trademark, service mark, trade name, domain name,

advertising, internet web page, signage, or other materials that depict, comprise,

contain, or consist of any mark, name, or other indicia that is identical to,

phonetically similar to, or includes “Quartz Hill” or any other mark or name that is

likely to cause confusion with, or which is likely to dilute the distinctive quality of,

QH Chamber’s Pageant Marks, including any formatives thereof incorporating other

words, ethnic designations, geographic designations, age designations, or other

phonetic or foreign language equivalents of the Pageant Marks, or any marks,names, or domain names that are equivalent to the Pageant Marks in meaning,

regardless of language;

c. otherwise competing unfairly with QH Chamber in any manner,

including, without limitation, (i) unlawfully adopting and/or infringing upon the

Pageant Marks, (ii) adopting or using any trademark, trade name, service mark,

advertising, or signage similar to the Pageant Marks, and/or (iii) adopting or using

any trade name, trademark, service mark, advertising, or signage likely to dilute the

distinctive quality of the Pageant Marks;

d. committing any other acts or making any statements calculated, or the

reasonably foreseeable consequence of which would be, to infringe, dilute, or

tarnish any of QH Chamber’s trademark rights, or to confuse, mislead, or deceive



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consumers as to sponsorship, approval or affiliation of QH Chamber by, with, or of

Defendants, or to otherwise disparage the Pageant Marks; and

e. conspiring with, aiding, assisting, or abetting any other person or entity

in engaging in or performing any of the activities referred to in subparagraphs (a)

through (d), above;

2. That Defendants provide QH Chamber with a complete listing of every

name, trade name, mark, domain name, business name, assumed name, or other

designation currently owned or used by the Defendants in the United States or any

other country that includes or incorporates the Pageant Marks or includes “Quartz

Hill,”

3. That the Defendants, and their officers, directors, agents, servants,

employees, attorneys, successors, heirs, assigns, related companies, and all those

acting in concert with or on behalf of Defendants, be required to deliver to the Court

for destruction, or to show proof of said destruction, of any and all displays, signs,

circulars, promotional material, advertisements, sales aids, and other matter in the

Defendants’ possession, custody, or control which bear or depict the Pageant Marks

used in connection with the offering of any pageant or beauty-related services, aswell as all means of reproducing, counterfeiting, copying, or otherwise imitating QH

Chamber’s Pageant Marks;

4. That Defendants be ordered to file with this Court and to serve upon

QH Chamber, within thirty (30) days after the entry and service on Defendants of an

injunction, a report in writing and under oath setting forth in detail the manner and

form in which the Defendants has complied with the injunction;

5. That QH Chamber recover all damages it has sustained as a result of

Defendants’ infringement, dilution, and unfair competition, and that said damages

be trebled;

6. That QH Chamber recover statutory damages, pursuant to 15 U.S.C. §

1117(c);



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7. That an equitable accounting be directed to determine Defendants’

profits resulting from their infringement and unfair competition, increased as the

Court finds just under the circumstances of this case, and that such profits be

disgorged over to QH Chamber as an equitable remedy;

8. That QH Chamber recover the costs of this action, its reasonable

attorney's fees, and pre-judgment and post-judgment interest;

9. That QH Chamber recover such other and further relief as this court

may deem just and proper.

September 30, 2015 Respectfully Submitted,

CHARLTON WEEKS LLP

__________________________ Bradley T. Weeks

Attorney for Plaintiff Quartz Hill Chamber of Commerce



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DEMAND FOR JURY TRIAL

Plaintiff Quartz Hill Chamber of Commerce demands a trial by jury as to all

claims and as to all disputed facts triable by a jury, pursuant to Federal Rule of Civil

Procedure 38.

September 30, 2015 Respectfully Submitted,

CHARLTON WEEKS LLP

__________________________

Bradley T. WeeksAttorney for Plaintiff Quartz Hill Chamber of

Commerce


quartz hill chamber of commerce v. quartz hill community pagaent - miss quart hil trademark...

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