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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.
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