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Plaintiff,
Pauline Barbara Hailwood, individually and as beneficiary of the
Estate of Michael Hailwood, M.B.E., G.M., and as successor-in-interest
to the Estate of Michael Hailwood, M.B.E., G.M., by way of Complaint
against the defendants, Ducati Motor Holding, S.p.A., an Italian
Corporation, Ducati Motor S.p.A., an Italian Corporation, Ducati
North America, a New Jersey Corporation, and XYZ Corporations 1
through 100, being fictitious names representing Authorized Ducati
Dealerships within the United States of America, for false endorsement
of a product under the Lanham Act (15 U.S.C. Section 1125 et seq),
violation of common law right of publicity, false advertising under
the Lanham Act, unfair competition, and unjust enrichment, states:
JURISDICTION
AND VENUE
1.
The Court has subject matter jurisdiction over the claims in this
action which relate to trademark infringement and unfair competition
pursuant to the provisions of 15 U.S.C. Section 1121 et seq., 28
U.S.C. Section 1338(a), as well as pendent jurisdiction over any
state law claims asserted herein pursuant to 28 U.S.C. Section 1367(a)
et seq. Jurisdiction also arises under 28 U.S.C. Section 1332(a)
as the amount in controversy exceeds $75,000.
2.
Venue is proper in the United States District Court for the District
of New Jersey under 28 U.S.C. Section 1391 et seq.
THE
PARTIES
Plaintiff
Pauline Barbara Hailwood is the widow of Michael Hailwood, M.B.E.,G.M.,
and the successor in-interest and beneficiary of all rights and
privileges of the Estate of Michael Hailwood, M.B.E., G.M. Pauline
Hailwood also served as the Executrix of the Estate of Michael Hailwood,
M.B.E., G.M. Michael Bailey Hailwood, M.B.E., G.M. died in 1981.
4.
Plaintiff resides in the City of Malaga, in the Country of Spain.
5.
On information and belief, defendant Ducati Motor Holding S.p.A.
("DMH@) is a foreign corporation, with its principal place of business
in Bologna, Italy.
On
information and belief, defendant Ducati Motor, S.p.A. is a foreign
corporation with its principal place of business located within
the Country of Italy.
7.
On information and belief, defendant Ducati North America ("Ducati")
is a New Jersey corporation, with its principal place of business
in Pompton Plains, NJ, and is a wholly owned subsidiary of DMH.
8.
Defendants XYZ Corporations are fictitious names representing authorized
Ducati motorcycle dealerships within the State of New Jersey and
throughout the United States of America.
9.
Defendants, and each of them, are individuals and business entities,
who, upon information and belief, are acting in concert and active
participation with each other in committing the wrongful acts alleged
herein, and are directly, vicariously and/or contributorily liable
for the acts alleged herein.
GENERAL
BACKGROUND ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
Michael
Bailey Hailwood, M.B.E., G.M. ("Mike Hailwood") was one of the best
known and most widely admired motor sports figures of the last half
of the 20th century. Mike Hailwood has been called the best racer
ever, the Babe Ruth of motorcycle racing. He is a sports legend
and a folk hero. One of motorcycle racing's most recognizable racers.
A ten times world motorcycle champion, he was voted "Motorcyclist
of the Millennium" by motorcycle publications "Motor Cycle News"
of Britain and "Motociclismo" of Spain. In July 2000, he was inducted
into the American Motorcyclist Associations Motorcycle Hall of Fame.
That same month, he became the first British rider to be inducted
into the prestigious Grand Prix Hall of Fame in Donington Park,
England. He received the George Medal, Britain's highest medal awarded
to civilians for bravery, for his heroic rescue of Clay Regazzoni
who was trapped in his car, engulfed in flames, after crashing at
Kyalami [South African F1 Grand Prix] in 1973. In addition,
he is the subject of at least seven books, including the recently
published, Mike Hailwood: A Motorcycle Legend, by Mick Woollett
(Haynes). He is perhaps best remembered for his fairytale 1978 comeback
[from retirement] to win the Isle of Man T.T., and with
it, his 10th World Championship. Mike died tragically in Birmingham,
England along with his daughter Michelle on 23rd March 1981 in an
auto accident. He has been described as an icon of racing, just
as James Dean and Marilyn Monroe are icons of pop culture.
11.
Due to his illustrious career and achievements, Mike Hailwood remains
motorcycle racing's most durable and revered legend even after his
death.
12.
Mike Hailwoods achievements and reputation for integrity, have significant,
exploitable, commercial value in the United States of America and
throughout the world.
- Mike
Hailwood tragically and unexpectedly died on March 23, 1981. His
death precipitated an unprecedented outpouring of public grief
in the United Kingdom, United States and the world. His assets,
including the rights to his name, likeness, image and marks, passed
by will to his Estate which was overseen by his widow, Pauline
Barbara Hailwood, and which passed to his widow, Pauline Barbara
Hailwood, the Plaintiff in this action.
- Plaintiff
has the exclusive right to control the commercial value and exploitation
of the aforementioned assets.
- Pauline
Hailwood has guarded the manner in which Mike Hailwood's name
has been shown the public.
- Plaintiff,
on behalf of the Estate of Mike Hailwood and as successor to the
Estate of Mike Hailwood, has filed two federal trademark applications
in various classes for "Mike Hailwood" with priority dates of
May 3, 2000 (Serial No. 78039467) and December 2000 (Serial No.
78006581).
- Plaintiff,
on behalf of the Estate of Mike Hailwood and as successor to the
Estate of Mike Hailwood, has granted exclusive licenses, subject
to certain reservations, to the name and likeness of Mike Hailwood
and to Mike Hailwood's initials "MH".
- Plaintiff
has engaged the services of a licensing agent who resides in and
is located in the State of New Jersey to obtain licenses for the
name and likeness of Mike Hailwood.
- Defendants
are currently using or intend to use Mike Hailwood's name and/or
his initials, likeness and biographical information in connection
with the advertising, sale, marketing and promotion of motorcycles
within the United States of America and within the State of New
Jersey and elsewhere without authorization of Plaintiff.
- Defendants
have introduced in the stream of commerce and sold, exclusively
via the "internet", a limited edition, hand-made motorcycle named
the "MH900e" &endash; or "Mike Hailwood Evoluzione" -- and have
used Mike Hailwood's name and likeness in promotional and marketing
materials in connection with the sale and distribution of the
aforesaid motorcycle all without the permission or consent of
Plaintiff. A true copy of exemplar advertising for the MH900e
is annexed hereto as Exhibit "A" and incorporated herein and made
a part hereof by this reference.
- Upon
information and belief, the Defendants have utilized Mike Hailwood's
name, initials and reputation to sell motorcycles and to both
enhance the reputation of Ducati motorcycles generally and to
maximize sales of the MH900e motorcycle in particular and to maximize
their own profits.
- The
Defendants are advertising and selling or intend to advertise
and sell the MH900e motorcycle (the "Motorcycle") throughout the
United States
of America in an effort to profit from the use of Mike Hailwood's
name, initials and/or reputation.
23.
In the advertising, promotional and press materials for the Motorcycle,
copies of which, as an example, are annexed hereto as Exhibit "B",
Ducati states that "somewhere Mike Hailwood is smiling … and
shifting his Ducati into 6th gear."
Mike
Hailwood's name is also prominently used in connection with the
MH900e in
other
ways as well, for example the video presentation created by Defendants
as a marketing device for the MH900e Motorcycle which references
Mike Hailwood's championship record, a copy of a still frame of
which is annexed hereto as Exhibit "C".
25.
Defendants have willfully deceived the public by referring to (and
marketing) the MH900e as a replica, or copy of a classic motorcycle.
26.
Despite the prominent use of Mike Hailwood's name in connection
with the
MH900e
Motorcycle, the Motorcycle cannot be truthfully said to be a "replica"
of Mike Hailwood's motorcycle. The MH900e contains no shared components
with the Mike Hailwood Replica.
27.
Plaintiff first learned of Defendants' use of Mike Hailwood's name
in connection
with
a prototype of the motorcycle, described as an "experiment" by Defendants
in or about October 1999, at which time Defendants represented that
they had no intention of selling or marketing the Motorcycle or
producing it as a "production model" for sale to the public.
On
or about July 12, 1999, before Defendants announced the production
of the
MH900e,
Plaintiff's business manager contacted Ducato North America and
DMH regarding joint licensing and marketing opportunities, including
in-part sponsorship of the "official Mike Hailwood Website" (www.mikethebike.com).
Plaintiff's correspondence contained conspicuous trademark notices
asserting rights in the "Mike Hailwood" and "Mike the Bike" trademarks.
29.
Notwithstanding Defendants' representation that the Motorcycle was
not going to
be
produced as a "production model" for general sale to the public,
Defendants offered the MH900e Motorcycle for sale exclusively via
the Internet at www.ducati.com on or about January 1, 2001. On information
and belief, within approximately 31 minutes, the first years' production
of 500 units sold out on or about January 1, 2001 and over the next
approximately three weeks, another 1,500 units were sold exclusively
via the Internet at www.ducati.com.
30.
Thereafter, after learning of Defendants' Internet sale of 2,000
units of the Motorcycle, Plaintiff publicly and in the context of
a widely-circulated syndicated column, objected to Defendants' use
of Mike Hailwood's name, initials, likeness and biography in connection
with the advertising and sale of the Motorcycle.
- Plaintiff,
by and through her agents, specifically by her licensing agent,
has repeatedly requested that the Defendants stop manufacturing
and selling the Motorcycle in the United States of America and
elsewhere.
- Notwithstanding
Plaintiff's requests, Defendants have, by and through their attorneys,
advised Plaintiff that they have no intention of stopping the
manufacture or shipment of the Motorcycle into the United States
or elsewhere, and Defendants continue to manufacture, sell, advertising
and promote the Motorcycle in the United States of America through
Ducati's website at www.ducati.com and elsewhere.
- On
information and belief, at present, only eight MH900e Motorcycles
have been delivered by Defendants to United States distributors
and there are pending orders for approximately 800 Motorcycles
to be distributed to the United States.
- Defendant
DMH did not seek permission from the Plaintiff to use Mike Hailwood's
name, initials, likeness or reputation in connection with the
MH900e Motorcycle. Having failed to obtain consent to use Mike
Hailwood's identity and trademarks, Defendant DMH simply stole
them and embarked on a campaign to profit from Mike Hailwood's
name, identifying characteristics and reputation.
35.
On or about May 29, 2001, notwithstanding Plaintiff's requests,
Defendant DMH shipped the first eight of approximately 800 Motorcycles
to Ducati in the United States for distribution throughout the United
States.
- On
information and belief, those Motorcycles were shipped to Ducati
at its place of business in New Jersey and currently remain in
New Jersey.
36.
The Motorcycles themselves use Michael Hailwood's initials and,
therefore a derivation of his name, and defendants' advertising
and promotional materials use Mike Hailwood's name and reputation
to sell the Motorcycles.
37.
Defendants have willfully, intentionally and deliberately used Mike
Hailwood's name, likeness, personal characteristics and reputation
to sell the Motorcycles and to increase their profits.
38.
Defendants have knowingly, willfully and deliberately used Mike
Hailwood's name, likeness, personal characteristics and reputation
for the purpose of promoting the Motorcycles.
39.
Defendants' actions also imply that Plaintiff endorses, sponsors
or promotes the Motorcycle and/or Defendants themselves.
- On
information and belief, Defendants have informed certain of their
dealers that they have an agreement with Mike Hailwood with respect
to the use of Mike Hailwood's name in connection with the Motorcycles,
which announcement was false and which falsely implied that Plaintiff
endorses, sponsors or promotes the Motorcycle and/or Defendants
themselves and/or their products.
41.
Defendants have attempted to benefit from and, have in fact, benefitted
from the
goodwill
associated with Mike Hailwood's identity to sell the Motorcycles
and ancillary products, such as books, videotapes, and licensed
merchandise.
42.
Defendants have attempted to conceal their own motive to benefit
from Mike Hailwood's name and reputation by falsely and misleadingly
implying an endorsement, association or affiliation with Mike Hailwood
by holding themselves out as manufacturing and selling the Motorcycle
as a tribute to Mike Hailwood.
43.
The Defendants have wrongfully, knowingly, and without justification
appropriated Mike Hailwood's name, likeness and reputation for a
commercial purpose and for the sale of commercial products in interstate
commerce.
44.
Defendants have been unjustly enriched and Plaintiff has been damaged
in that Mike Hailwood's name, likeness, identifying characteristics
and/or reputation have been used by defendants without Plaintiff's
consent or permission, and have been appropriated by and associated
with the Defendants and their products and has been unlawfully usurped.
45.
By reason of Defendants' actions, Defendants have received substantial
monies and other benefits which rightfully belong to Plaintiff.
46.
Defendants' deliberate misappropriation of Mike Hailwood's name,
likeness, initials, identifying characteristics and/or reputation
has damaged the reputation of Mike Hailwood and of Plaintiff and,
as a result, Plaintiff's rights of publicity have been damaged in
that Mike Hailwood's name, initials, likeness, identifying characteristics
and/or reputation have been wrongfully associated with Defendants
and with a product which neither Mike Hailwood nor Plaintiff have
ever endorsed.
47.
The acts of Defendants were wanton, willful, malicious and oppressive
in that they have knowingly sought to enrich themselves unjustly
at the expense of the rights of Plaintiff.
48.
As a result of the foregoing, Plaintiff has been damaged.
FIRST
CAUSE OF ACTION
(False Designation of Origin and False Endorsement Under The Lanham
Act)
49.
Plaintiff repeats and realleges the allegations set forth above
in Paragraphs 1 through 48, inclusive, as through more fully set
forth herein.
50.
Defendants have used Mike Hailwood's name, initials, likeness, identifying
characteristics and reputation in a manner which falsely implies
that Plaintiff endorses the Motorcycle and/or the companies and/or
products of Defendants.
51.
Defendants have used Mike Hailwood's name, initials, likeness, identifying
characteristics and reputation in a manner which falsely implies
that Plaintiff is associated with or has approved, endorsed, sponsored,
or licensed the Motorcycle and/or the Defendants.
52.
Defendant's use of Mike Hailwood's name, initials, likeness, identifying
characteristics and reputation was deliberately calculated to create
among the public at large the false impression that Mike Hailwood
and/or Plaintiff was associated with the Motorcycle or that Plaintiff
approved, endorsed or sponsored the Motorcycle or licensed Defendants
the right to use Mike Hailwood's name in connection with the Motorcycle.
53.
By the foregoing acts, Defendants have used false representations
in connection with the advertisement, sale and distribution of goods
in interstate commerce in violation of Section 43(a) of the Lanham
Act, 15 U.S.C. Section 1125.
54.
By reason of Defendants' statutory violation, Defendants have each
willfully realized substantial profits and received monies and other
benefits which rightfully belong to Plaintiff.
55.
Defendants' wanton use of false representations in connection with
the Motorcycle has caused Plaintiff to lose control of Mike Hailwood's
reputation, and, as a result, Plaintiff has been irreparably damaged
in that Mike Hailwood's name, initials, identifying characteristics,
likeness and reputation have been wrongfully associated with the
Motorcycle and Plaintiff has lost control over the quality of Plaintiff's
products and Plaintiff has suffered irreparable damage due to the
damage to her trademarks from Defendants' continued infringing use
of the marks on unauthorized products.
56.
Defendants' actions are likely to continue unabated unless and until
Defendants are enjoined and restrained by this Court.
WHEREFORE,
Plaintiff demands judgment against Defendants, and each of them,
as follows:
(a)
For Defendants' profits arising out of the creation, production,
sale and distribution of the Motorcycle and for disgorgement of
profits;
(b)
For the actual damages sustained by Plaintiff;
(c)
For a permanent injunction prohibiting any use of Mike Hailwood's
name, initials, likeness, identifying characteristics or reputation
in connection with the Motorcycles or any other commercial product
by Defendants;
(d)
For the destruction of all infringing articles;
(e)
For treble damages, costs and attorney's fees pursuant to 15 U.S.C.
Sections 1125(a), 1116 and 1117; and
(f).
For such other and further relief as the Court deems just and/or
proper.
SECOND
CAUSE OF ACTION
(Federal
Trademark Dilution Against All Defendants)
57.
Plaintiff repeats and realleges the allegations set forth above
in Paragraphs 1 through 56, inclusive, as through more fully set
forth herein.
58.
Plaintiffs' mark is inherently distinctive and has acquired distinction
from its past use in connection with the promotion, sale and marketing
of motorcycles.
59.
Mike Hailwood's name is a distinctive mark which identifies the
source of the products as Mike Hailwood and Plaintiff.
60.
Mike Hailwood's name is famous and distinctive within the meaning
of 15 U.S.C. Sections 1125(c)(1) and 1127.
61.
Defendants' activities complained of in this complaint constitute
unauthorized use in New Jersey and in interstate commerce of Plaintiff's
marks.
62.
Defendants' activities were conducted with full recognition of Plaintiff's
use of the mark in world wide trading areas and channels of trade,
and commenced after the mark had become famous. Such activities
have and will continue to cause dilution of the distinctive quality
of the marks by lessening its capacity to identify and distinguish
Plaintiff's endorsement and Plaintiff's authorized use of the mark
to the damage and harm of Plaintiff in violation of the Federal
Trademark Dilution Act of 1995, 15 U.S.C. Section 1125(c)(1).
63.
The activities of Defendants as alleged above have caused and will
cause irreparable harm to Plaintiff for which Plaintiff has no adequate
remedy at law in that (i) if the wrongful conduct continues, Plaintiff's
mark risks further dilution; and (ii) Defendants' wrongful conduct,
and the damages resulting to Plaintiff, is continuing.
64.
Accordingly, Plaintiffs are entitled to preliminary and permanent
injunctive relief pursuant to 15 U.S.C. Section 1125(c)(2).
65.
On information and belief, Defendants have committed the foregoing
acts with previous knowledge of Plaintiff's prior right to use of
the mark, and in contravention of requests to cease and desist by
Plaintiff and with the willful intent to trade on Plaintiff's good
will and reputation, and with the willful intent to cause dilution
of the marks.
66.
As a result of the foregoing, Plaintiff has been damaged.
WHEREFORE,
Plaintiff demands judgment against Defendants, and each of them,
as follows:
(a)
For the actual damages sustained by Plaintiff;
(b)
For a permanent injunction prohibiting any use of Mike Hailwood's
name, initials, likeness, identifying characteristics or reputation
in connection with the Motorcycles or any other commercial product
by Defendants;
(c)
For the destruction of all infringing articles;
(d)
For treble damages, costs and attorney's fees pursuant to 15 U.S.C.
Section
1117;
and
(e).
For such other and further relief as the Court deems just and/or
proper.
THIRD
CAUSE OF ACTION
(Infringement
of New Jersey Common Law Right of Publicity Against All Defendants)
Plaintiffs
repeat and reallege Paragraphs 1 through 56 herein.
Defendants
have misappropriated Plaintiffs' rights in the name, initials, likeness
and image of Mike Hailwood.
Mike
Hailwood's name, initials, likeness, image and identifying characteristics
have marketable status and value in connection with the sale, marketing,
promotion, advertising and distribution of motorcycles and in connection
with the sale, marketing, promotion, advertising and distribution
of the Motorcycles.
70.
Plaintiff has a proprietary interest in and to Mike Hailwood's public
personality and, in particular, his name, initials, likeness, image
and identifying characteristics.
71.
Defendants have wrongfully infringed and violated such proprietary
interest of Plaintiff and Defendants have each received monies and
other benefits which rightfully belong to Plaintiff.
72.
In exploiting Plaintiffs' exclusive publicity rights as described
above, Defendants have damaged and are continuing to damage Plaintiffs'
publicity rights by, among other things, permitting them to be distorted
and trivialized, thus diminishing their value for future licensing.
Further, Defendants have injured and continue to injure Plaintiff
by purporting to exercise their publicity rights without Plaintiff
retaining control thereof or receiving monies properly owing to
Plaintiff as the sole owner of Mike Hailwood's right to publicity.
73.
As a result of Defendants' wrongful actions and of Defendants' infringement
of Mike Hailwood's and Plaintiff's right of publicity for their
own commercial benefit, in this, the 20th anniversary of Plaintiff's
husband's death, Defendants have caused and continue to cause severe
damage and emotional distress to Plaintiff.
74.
Defendants' wrongful and intentional misappropriation of Mike Hailwood's
name, initials and personality characteristics has damaged the reputation
of Mike Hailwood and Plaintiff's rights of publicity have been damaged
in that Mike Hailwood's name, initials and identifying characteristics
have been wrongfully associated with the Defendants and the Motorcycle.
75.
Defendants' wrongful actions as described above are causing Plaintiffs
irreparable harm, and have damaged and continue to damage Plaintiffs
in an amount yet to be determined. Defendants did not engage in
the above-described wrongful actions out of any sincere or proper
motive, but did so knowingly, willfully and oppressively, intending
to appropriate to themselves without compensation to Plaintiff and
without the consent of Plaintiff what they knew to be Plaintiffs'
valuable rights.
77.
The acts of Defendants were wanton, willful, malicious and oppressive
in that they have knowingly sought to enrich themselves unjustly
at the expense of the rights of Plaintiff.
78.
Defendants' actions are likely to continue unabated unless Defendants
are enjoined and restrained by this Court.
WHEREFORE,
Plaintiff demands judgment against Defendants, and each of them,
as follows:
(a)
For the actual damages sustained by Plaintiff;
(b)
For a permanent injunction prohibiting any use of Mike Hailwood's
name, initials, likeness, identifying characteristics or reputation
in connection with the Motorcycles or any other commercial product
by Defendants;
(c)
For punitive damages against each Defendant;
(d)
For costs of suit and attorney's fees; and
(e)
For such other and further relief as the Court deems just and/or
proper.
FOURTH
CAUSE OF ACTION
(False
Advertising Under the Lanham Act Against All Defendants)
79.
Plaintiffs repeat and reallege Paragraphs 1 through 56 herein.
80.
Defendants have carried out in New Jersey and in interstate commerce
a large scale program of deceptive advertising in which advertisements
use the name and identifying characteristics of Mike Hailwood to
imply that Mike Hailwood is connected with the Motorcycle or endorses
the Motorcycle.
81.
Defendants' use of Mike Hailwood's name, initials, likeness, image
and/or identifying characteristics was deliberately calculated to
create among the public at large the false impression that Mike
Hailwood was and is associated with the Defendants and the Motorcycle.
82.
By the foregoing acts, the Defendants have used false representations
in connection with the advertisement, sale and distribution of goods
in interstate commerce in violation of Section 43(a) of the Lanham
Act, 15 U.S.C. Section 1125.
83.
By reason of the foregoing, members of the public are induced to
purchase Defendants' Motorcycles in the mistaken belief that Defendants'
products are endorsed by and/or associated or affiliated with Mike
Hailwood and/or the Plaintiff.
84.
Plaintiff has been and will continue to be damaged by Defendants'
false and misleading advertisements in that Defendants' advertising
attempts to benefit from the goodwill associated with Mike Hailwood's
identity.
85.
By reason of the foregoing, Defendants have each willfully realized
substantial profits and received monies and other benefits which
rightfully belong to Plaintiff.
86.
By reason of the foregoing, Plaintiff has suffered damages.
87.
The Defendants' actions are likely to continue unabated unless Defendants
are enjoined and restrained by this Court.
WHEREFORE,
Plaintiff demands judgment against Defendants:
(a)
For Defendants' profits arising out of the creation, manufacture,
advertising, promotion, marketing, sale and distribution of the
Motorcycles;
(b)
For a permanent injunction prohibiting any use of Mike Hailwood's
name, initials, likeness, identifying characteristics or reputation
in connection with the manufacture, creation, marketing, promotion,
advertising, sale and/or distribution of the Motorcycles or any
other commercial product by Defendants;
(c)
For the destruction of all infringing articles;
(d)
For treble damages, costs and attorney's fees pursuant to 15 U.S.C.
Section
1116,
1117 and 1125(a); and
(e)
For such other and further relief as the Court deems just and/or
proper.
FIFTH
CAUSE OF ACTION
(Unfair
Competition and Common Law Trademark Infringement)
88.
Plaintiffs repeat and reallege Paragraphs 1 through 56 herein, inclusive,
as though more fully set forth at length herein. Defendants' actions
and activities, as hereinabove set forth, also constitute trademark
infringement and unfair competition under the laws of the State
of New Jersey and at common law, including but not limited to Plaintiff's
rights under N.J.S.A. 56:3-13.11 et seq.
90.
As a result of the foregoing, Defendants have unfairly competed
with Plaintiff.
91.
As a result of the foregoing, Defendants have each received substantial
monies and other benefits which rightfully belong to Plaintiff.
92.
As a result of the foregoing, Plaintiff has suffered damages.
93.
Such infringement and unfair competition has caused and is causing
irreparable damage and injury to Plaintiff and is likely to continue
unabated unless Defendants are enjoined and restrained by this Court.
WHEREFORE,
the Plaintiff demands judgment against Defendants, and each of them:
(a)
For compensatory damages and damages sustained by Plaintiff;
(b)
For punitive damages against each Defendant;
(c)
For permanent injunctive relief restraining and prohibiting any
use of Mike Hailwood's name, initials, likeness, identifying characteristics
or reputation in connection with the manufacture, creation, marketing,
promotion, advertising, sale and/or distribution of the Motorcycles
or any other commercial product by Defendants or their agents, representatives
or those acting in concert with same;
(d)
For such other and further relief as the Court may deem just and/or
proper.
SIXTH
CAUSE OF ACTION
(Unjust
Enrichment)
94.
Plaintiff repeats and realleges each and every allegation set forth
in Paragraphs 1 through 56 herein, inclusive, as though fully set
forth herein. Through and as a result of their intentional and willful
and unauthorized use of Mike Hailwood's name, likeness and identifying
characteristics, Defendants have received substantial monies and
other benefits which rightfully belong to Plaintiff.
Defendants
have failed to properly compensate Plaintiff for said monies and
other benefits received by Defendants which rightfully belong to
Plaintiff and Defendants have accordingly been unjustly enriched
at the expense of Plaintiff.
As
a result of their actions, Defendants have been unjustly enriched
and have unjustly received monies and other benefits.
As
a result of the foregoing, Plaintiff has suffered damages.
WHEREFORE,
Plaintiff demands judgment against Defendants, and each of them:
(a)
For compensatory damages; and
(b)
For such other and further relief as the Court deems just, proper
and/or appropriate.
JURY
DEMAND
Plaintiff
hereby demands a trial by jury on all issues so triable.
MONDELLO
& SCHECHTER, P.A.
Attorneys
for Plaintiff,
By:___________________________
Steven
C. Schechter, Esq.
Dated:
June 11, 2001. SS2358
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