Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 1 of 13 Page ID #:1

1
2
3
4
5

Stuart L. Carroll, Esq. (State Bar #163980)

Email:
carrollaw@aol.com
LAW OFFICES OF STUART L. CARROLL
400 Continental Blvd., Suite 600
El Segundo, California 90245
Telephone: (310) 615-1935
Attorney for Plaintiff BLIND VISUAL PROPAGANDA, INC.

6
7
8

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20

BLIND VISUAL PROPAGANDA,

INC., a California Corporation, doing
business as BLIND

Case No.:
COMPLAINT FOR:

Plaintiff,

1. UNFAIR COMPETITION AND

vs.
FALSE ADVERTISING
[15 U.S.C. 1125(a)];
MOTION THEORY, INC., a California 2. UNFAIR COMPETITION AND
corporation, and DOES 1 through 10,
FALSE ADVERTISING
inclusive,
[Cal. Bus & Prof. Code 17200
and 17500, et seq.]
Defendants

21

DEMAND FOR JURY TRIAL

22
23
24

Plaintiff, BLIND VISUAL PROPAGANDA, INC., a California corporation

25

doing business as Blind (hereinafter Plaintiff), by and through its undersigned

26

attorney, complains against defendants MOTION THEORY, INC., a California

27

Corporation, (hereinafter MOTION THEORY), and Does 1 through 10, and

28

alleges as follows:

-1-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 2 of 13 Page ID #:2

I. JURISDICTION AND VENUE

1
2

1.

This action for damages and injunctive relief arises under the federal

trademark statute of the United States (the Lanham Act), (15 U.S.C. 1051, et

seq.) and under the common and statutory laws of the State of California.

2.

This Court is vested with subject matter jurisdiction over the federal

false advertising and unfair competition claims alleged herein pursuant to 28

U.S.C. 1331 (Federal question jurisdiction) and 1338 (Trademark jurisdiction).

This Court has subject matter jurisdiction over the related California state law

claims pursuant to 28 U.S.C. 1338 and 1367.

10

3.

This Court has personal jurisdiction over Defendant MOTION

11

THEORY which, upon information and belief, locates its principal place of

12

business in the County of Los Angeles, State of California.

13

4.

Venue is proper in this judicial district under 28 U.S.C. 1391(b) in

14

that a substantial part of the events giving rise to the claims, as well as substantial

15

injury to Plaintiff occurred within this judicial district. In addition, upon

16

information and belief, Defendant MOTION THEORYs principal place of

17

business is within the County of Los Angeles, State of California.

II. PARTIES

18
19

5.

Plaintiff is a corporation organized under the laws of the State of

20

California with its principal place of business at 1702 Olympic Blvd., Santa

21

Monica, California 90404 which conducts business under the fictitious business

22

name Blind.

23

6.

Upon information and belief, Defendant MOTION THOERY is a

24

corporation organized under the laws of the State of California with a principle

25

place of business located at 4235 Redwood Avenue, Los Angeles, California

26

90066.

27
28

7.

Except as otherwise specifically referred to herein, the true names and

capacities, either individual, plural, corporate, partnership, associate or otherwise,

-2-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 3 of 13 Page ID #:3

of defendants Does 1 through 10, inclusive, are unknown to Plaintiff and therefore

Plaintiff sues said defendants by such fictitious names. Plaintiff is informed and

believes and based thereon alleges that each of the defendants designated herein as

a fictitiously named defendant is in some manner responsible for the events and

happenings referred to herein and caused the damage to Plaintiff. When Plaintiff

ascertains the true names and capacities of such Doe defendants, Plaintiff will seek

leave of this Court to amend this complaint accordingly. Each reference in this

complaint to defendant, defendants or a specifically named defendant refers

also to all defendants sued under fictitious names.

10

8.

Plaintiff is informed and believes, and on that basis alleges, that at all

11

times relevant herein, each of the defendants was the agent, partner, servant,

12

supervisor, employee, successor and/or joint venturer of each of the remaining

13

defendants and was at all times herein mentioned acting within the course and

14

scope, and purpose of said agency, employment, business enterprise and joint

15

venture. Plaintiff is further informed and believes and on that basis alleges that to

16

the extent that the conduct and omissions alleged herein were perpetrated by one or

17

more of the defendants, the remaining defendants confirmed and ratified said

18

conduct and omissions.

19

9.

Plaintiff is informed and believes, and on that basis alleges, each and

20

every allegation made herein of an act or omission on the part of a defendant or

21

defendants shall also be deemed to refer to the act and/or omission of each

22

defendant, whether acting individually, jointly, and/or severally.

23
24
25
26

III. PRELIMINARY ALLEGATIONS AND BACKGROUND

10.

Plaintiff is a multi-disciplinary design, animation, visual effects and

production studio.
11.

Plaintiff is, and for many years has been, engaged in the business of,

27

producing audio-visual works (hereinafter, Videos) for, among others, motion

28

picture studios, broadcast and cable television networks, advertising agencies,

-3-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 4 of 13 Page ID #:4

production companies and consumer brands (hereinafter, collectively,

Consumers).

12.

In addition, Plaintiff has been in the business of, inter alia, providing

production services for advertising, television and motion pictures in the form of

motion graphics, digital and visual effects, animation and live-action audio-visual

productions (hereinafter, collectively, Production Services).

7
8
9

13.

Since its inception in 1996, Plaintiff has produced hundreds of

Videos.
14.

Plaintiff has won more than fifty (50) awards for its Videos and

10

Production Services including Emmy Awards, Broadcast Design Association

11

(BDA) Awards and dozens of Telly Awards.

12

15.

Plaintiff uses its Videos to market its Production Services.

13

16.

As part of this marketing effort, Plaintiff puts its Videos on its website

14

where Consumers and others may view the fruits of Plaintiffs Production Services

15

and recognize the level of quality inherent in the Videos.

16
17
18

17.

Plaintiff also submits its Videos to potential Consumers through

various electronic media.

18.

Among the Videos that Plaintiff has produced are three Videos for,

19

respectively, the consumer product firms Audi, Dr. Martens (Lilac Wine music

20

video) and Vagisil (hereinafter, collectively, Blinds Videos).

21

IV. FIRST CLAIM FOR RELIEF

22

Federal Unfair Competition and False Advertising 15 U.S.C. 1125(a)

23

Against All Defendants

24
25
26

19.

Plaintiff realleges and incorporates herein the allegations contained in

paragraphs 1-18 of this Complaint.

20.

Blinds Videos have been reproduced, displayed and distributed

27

through the website operated under the domain name www.MotionTheory.com

28

(hereinafter, the Motion Theory Website).

-4-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 5 of 13 Page ID #:5

21.

A print out of a webpage from the Motion Theory Website located at

http://www.motiontheory.com/directors/vanessa-marzaroli depicting the

reproduction, display and distribution of Blinds Videos is attached hereto and

incorporated herewith as Exhibit A (hereinafter, the Misleading Webpage).

5
6
7

22.

Upon information and belief, Defendant MOTION THEORY operates

the Motion Theory Website.

23.

Plaintiff did not grant any permission or authority to any of the

Defendants for the reproduction, distribution or public display of any of Blinds

Videos as reproduced, distributed and publicly displayed on the Motion Theory

10
11
12
13
14
15

Website or otherwise.
24.

The words Motion Theory in large, bold font appear at the top of

the Misleading Webpage.

25.

MOTION THEORYs contact information prominently appears on

the lower left-hand corner of the Misleading Webpage.

26.

Of the five Videos appearing on the Misleading Webpage, three of

16

them, sixty percent (60%), are Videos produced by Plaintiff without any

17

contribution from MOTION THEORY.

18

27.

No reference is made as to the true source or origin of Blinds Videos

19

as posted on the Misleading Webpage or elsewhere within the Motion Theory

20

Website.

21
22
23
24
25

28.

Visitors to the Motion Theory Website are given the false impression

that MOTION THEORY produced Blinds Videos.

29.

Visitors to the Motion Theory Website are given the false impression

that Audi, Dr. Martin and Vagisil are clients of MOTION THEORY.
30.

A link from the Misleading Webpage provides additional information

26

about Blinds Video entitled Lilac Wine, a promotional Video for Dr. Martens,

27

which won numerous awards including an Emmy award.

28

-5-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 6 of 13 Page ID #:6

31.

Visitors to the Motion Theory Website are given the false impression

that MOTION THEORY produced the Lilac Wine Video that won an Emmy

award.

4
5
6

32.

Consumers are likely to be misled and deceived by Defendants

representations on the Motion Theory Website regarding Blinds Videos.

33.

Defendants knew or should have known that the impressions given

visitors and Consumers to the Motion Theory Website were false or likely to

mislead.

34.

On information and belief, Defendants actions are willful and reflect

10

an intent to confuse consumers and profit from the goodwill, quality and value

11

associated with Blinds Videos.

12

35.

Plaintiff sent a demand letter to MOTION THEORY on or about

13

November 25, 2014 demanding that MOTION THEORY cease all use of Blinds

14

Videos.

15

36.

As of the date of this Complaint, Defendants continue to reproduce,

16

publicly display and distribute Blinds Videos without authorization and in a false

17

and misleading manner. Defendants failure to comply with Plaintiffs demands

18

demonstrates a deliberate intent to continue wrongfully competing with Plaintiff

19

and to willfully deceive Consumers and others as to the source and origin of

20

Blinds Videos.

21

37.

The actions of Defendants, if not enjoined, will continue. Plaintiff has

22

suffered and continues to suffer damages in an amount to be proven at trial

23

consisting of, among other things, diminution in the value of and goodwill

24

associated with Blinds Videos, and injury to Plaintiffs business. Plaintiff has no

25

adequate remedy at law. Plaintiff is therefore entitled to injunctive relief pursuant

26

to 15 U.S.C. 1116 and 1125(c).

27
28

38.

As an actual and proximate result of Defendants willful and

intentional actions, Plaintiff has suffered damages in an amount to be determined at

-6-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 7 of 13 Page ID #:7

trial, and unless Defendants are enjoined, Plaintiff will continue to suffer

irreparable harm and damage to its business, reputation, and goodwill.

39.

Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to damages for

Defendants Lanham Act violations, an accounting for profits made by Defendants

for the period during which Defendants used Blinds Videos to promote

Defendants business, as well as recovery of the costs of this action.

40.

Plaintiff is informed and believes, and on that basis alleges, that

Defendants conduct was undertaken willfully and with the intention of causing

confusion, mistake or deception, making this an exceptional case entitling Plaintiff

10

to recover additional damages and reasonable attorneys fees pursuant to 15 U.S.C.

11

1117.

12

41.

Plaintiff intends to amend this complaint to include other instances of

13

unauthorized use, reproduction, distribution and display of Blinds Videos by

14

Defendants and each of them, in a manner likely to deceive viewers of Blinds

15

Videos as to the source and origin of Blinds Videos, as such instances become

16

known through the discovery process.

17

V. SECOND CLAIM FOR RELIEF

18

Statutory Unfair Competition and False Advertising

19

California Business and Professions Code 17200 and 17500, et seq.

20

Against All Defendants

21
22
23

42.

Plaintiff realleges and incorporates herein the allegations contained in

paragraphs 1-41 of this Complaint.

43.

Defendants actions described above and specifically, without

24

limitation, Defendants reproduction, public display and distribution of Blinds

25

Videos in a manner likely to mislead Consumers and visitors to the Motion Theory

26

Website as to the source and origin of Blinds Videos, constitute unfair

27

competition in violation of the laws of the State of California.

28

-7-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 8 of 13 Page ID #:8

44.

By these actions, Defendants have engaged in false advertising and

unfair competition in violation of the statutory law of the state of California, Cal.

Bus. & Prof. Code 17200 and 17500, et seq., and, as a result, Plaintiff has

suffered and will continue to suffer damage to its business, reputation, and

goodwill.

45.

As a direct and proximate result of Defendants willful and intentional

actions, Plaintiff has suffered damages in an amount to be determined at trial and,

unless Defendants are restrained, Plaintiff will continue to suffer irreparable

damage.
VI. PRAYER FOR RELIEF

10

WHEREFORE, Plaintiff prays for judgment against each of the

11
12
13

Defendants as follows:
1.

That Plaintiff be granted injunctive relief under 15 U.S.C. 1051 et

14

seq.; and California Business and Professions Code 17200 and 17500 et seq.;

15

specifically, that Defendants and all of their respective officers, agents, servants,

16

representatives, employees, attorneys, and all other persons acting in concert with

17

them be enjoined from:

A. reproducing, displaying, distributing or otherwise exploiting

18
19

Blinds Videos;
B. directly or indirectly engaging in false advertising or other conduct

20
21

likely to deceive Consumers or others as to the source or origin of Blinds Videos;

C. making or inducing others to make any false, misleading or

22
23

deceptive statements of fact, or representations of fact in connect with Blinds

24

Videos;

25

2.

That Defendants, and each of them, file within (10) days from entry of

26

an injunction, a declaration with this Court signed under penalty of perjury

27

certifying the manner in which Defendants have complied with the terms of the

28

injunction;

-8-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 9 of 13 Page ID #:9

3.

That Defendants be ordered to correct any erroneous impression

persons may have derived concerning the source or origin of Blinds Videos,

including without limitation:

A. the sending of a registered letter (with a copy to Plaintiff) to all

4
5

recipients of any correspondence bearing the web address for the Motion Theory

Website informing the recipients of their prior misrepresentations regarding

Blinds Videos;

B. the placement of corrective advertising on the Motion Theory

Website informing visitors of their prior misrepresentations regarding Blinds

10

Videos; and,
C. the removal of Blinds Videos from the Motion Theory Website.

11
12

4.

That Defendants be adjudged to have violated 15 U.S.C. 1125(a) by

13

unfairly competing against Plaintiff by using false, deceptive or misleading

14

representations of fact that likely confuse Consumers and others as to the source

15

and origin of Blinds Videos.

16

5.

That Defendants be adjudged to unlawfully and unfairly compete

17

against Plaintiff by engaging in false or misleading advertising under the laws of

18

the State of California, Cal. Bus. & Prof. Code 17200, 17500, et seq.;

19

6.

That Plaintiff be awarded damages pursuant to 15 U.S.C. 1117(a),

20

sufficient to compensate it for the damage caused by Defendants false and

21

misleading statements;

22
23
24

7.

That Plaintiff be awarded Defendants profits derived by reason of

said acts, or as determined by said accounting;

8.

That Plaintiff be awarded damages in an amount sufficient to

25

compensate it for the damage caused by Defendants unfair competition and false

26

advertising under California Business and Professions Code 17200 and 17500 et

27

seq. and under federal law and California common law;

28

9.

That Plaintiff be granted prejudgment and post judgment interest;

-9-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 10 of 13 Page ID #:10

1
2
3
4
5
6

10.

That Plaintiff be granted costs associated with the prosecution of this

action;
11.

That Plaintiff be granted reasonable attorneys fees pursuant to 15

U.S.C. 1117 or otherwise;

12.

That Plaintiff be granted such other and further relief as the Court

deems just and equitable.

7
8

Dated: January 28, 2015.

LAW OFFICES OF STUART L. CARROLL

9
10
11
12

By:

/s/

Stuart L. Carroll

13

Stuart L. Carroll, Esq.

14

Attorney for Plaintiff

15

BLIND VISUAL PROPAGANDA, INC.

16
17
18
19
20
21
22
23
24
25
26
27
28

-10-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 11 of 13 Page ID #:11

1
2
3

DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby
demands a trial by jury on all issues triable as of right by a jury.

4
5

Dated: January 28, 2015.

LAW OFFICES OF STUART L. CARROLL

6
7
8
9

By:

/s/

Stuart L. Carroll

10

Stuart L. Carroll, Esq.

11

Attorney for Plaintiff

12

BLIND VISUAL PROPAGANDA, INC.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-11-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

Case 2:15-cv-00662 Document 1 Filed 01/28/15 Page 12 of 13 Page ID #:12

EXHIBIT A: MISLEADING WEBPAGE

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

EXHIBIT A: MISLEADING WEBPAGE

-12-

COMPLAINT FOR FALSE OR MISLEADING

ADVERTISING, UNFAIR COMPETITION

1/27/2015

Case 2:15-cv-00662 Document MotionTheoryVanessaMarzaroli

1 Filed 01/28/15 Page 13 of 13 Page ID #:13

ABOUT

Director

DIRECTORS

VANESSA MARZAROLI

PRESS
CONTACT
LOGIN

Visa
Mexico

Search

SHARE

PROJECTS
BIOGRAPHY

4235 Redwood Avenue

Los Angeles, CA 90066
T 310.396.9433
F 310.396.7883

Audi

Lilac Wine

Audi A7

Lilac Wine

HP

Vagisil

Slate

Wipes

http://www.motiontheory.com/directors/vanessamarzaroli#projects

1/2