UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Three Angels Broadcasting Network, Inc., Plaintiffs, Gailon Arthur Joy and Robert Pickle, Defendants. | Case No. ______________________ |
PLAINTIFFS' COMPLAINT
Three Angels Broadcasting Network, Inc. (hereinafter "3ABN") and Danny Lee Shelton
(hereinafter "Shelton") (hereineafter collective "Plaintiffs"), as and for their Complaint against
Defendants Gailon Arthur Joy (hereinafter "Joy") and Robert Pickle (hereinafter "Pickle")
(hereinafter collectively "Defendants") do hereby state and allege as follows:
NATURE OF THE ACTION
| 1. |
This action arises under the trademark laws of the United
States, namely Title 15 of the United States Code (15 U.S.C.
§1051 et seq.) and Title 17 of the United States Code (17 U.S.C.
§501 et seq.), and under state and federal common law and is
for trademark infringement, trademark dilution, defamation, and
intentional interference with advantageous economic prospective
business advantage.
[page 2]
PARTIES
| 2. |
Plaintiff Three Angels Broadcasting Network, Inc. is a non-profit
corporation organized and existing under the laws of the state
of Illinois, with its principle place of business located at
3391 Charley Good Road, West Frankfurt, Illinois 62896.
| 3. |
Individual Plaintiff Danny Lee Shelton is a resident of Illinois
and is the current President of Plaintiff Three Angels Broadcasting
Network, Inc.
| 4. |
Defendant Gailon Arthur Joy is a resident of Sterling, Massachusettes.
Joy is the register of the internet domain name "save3abn.com"
and, upon information and belief, is the host, author, and webmaster
of the internet web sites "www.save3abn.com" and "www.save3abn.org."
| 5. |
Defendant Robert Pickle is a resident of Halstad, Minnesota.
JURISDICTION
| 6. |
This court has original subject matter jurisdiction over this
matter pursuant to 15 U.S.C. §1121 as an action arising under
the Federal Trademark Act and pursuant to 28 U.S.C. §1338 as
an action arising under an Act of Congress related to copyright
and trademark. This court also has subject matter jurisdiction
over this matter pursuant to 28 U.S.C. §1332 as an action where
the matter in controversy is between citizens of different states
and the amount in controversy exceeds $75,000 (exclusive of costs
and interest).
| 7. |
The Court has personal jurisdiction over Defendant Joy as
he is a resident of the District and State of Massachusetts.
The Court has personal jurisdiction over Defendant Pickle as
he has purposefully availed himself of the jurisdiction of this
Court pursuant to the Massachusetts Long Arm statute and the
United States Constitution.
[page 3]
VENUE
| 8. |
Venue in this District is proper pursuant to 28 U.S.C. §1391
because it is the judicial district where one or more of the
Defendants resides and because it is a judicial district in which
a substantial part of the events giving rise to Plaintiffs' claims
and causes of action occurred.
FACTUAL ALLEGATIONS RELEVANT TO ALL COUNTS
Three Angels Broadcasting
| 9. |
Founded in 1985 and incorporated in 1986, 3ABN is an Illinois
non-profit corporation, the primary business of which is to operate
and manage a Christian television and radio broadcast ministry.
Plaintiff Shelton was an original founder of 3ABN and has been
continuously involved in the ministry and its operations since
its inception. Today, Shelton serves as President of 3ABN and
is one of 3ABN's on-air ministry and music presenters.
| 10. |
Although many of 3ABN's employees and volunteers, including
Plaintiff Shelton, are members of the Seventh-Day Adventist faith,
3ABN is a non-denominational Christian ministry which is not
owned by, affiliated with, or financed by any specific church,
denomination, or organization.
| 11. |
3ABN, whose ministry focus is "Mending Broken People," offers
a broad, Christ-centered slate of programming for adults and
children that includes both spiritual (worship, Bible study,
inspirational music) and lifestyle (health, cooking, smoking
cessation) presentations.
| 12. |
Since its inception, Shelton and 3ABN have worked tirelessly
to promote 3ABN's ministry and to spread its unique, non-denominational
"Return to God" message. For over two decades, 3ABN has spent
countless hours and hundreds of thousands of dollars publicizing
itself through print and broadcast advertisements, special live
events, direct-mail campaigns, and
[page 4]
group presentations. While building a successful worldwide
ministry, Plaintiffs have also successfully built considerable
name recognition and goodwill for themselves and for their moniker
"3ABN."
| 13. |
Today, 3ABN is one of the larger Christian networks in North
America and, operating from its headquarters and primary production
facility in West Frankfort, Illinois, 3ABN broadcasts 24-hour
television and radio programming through a global satellite network
with potential viewers and listeners well into the millions.
In support of its global ministry, 3ABN also operates a production
facility in Nizhny Novogorod, Russia, and television facilities
in the Philippines and New Guinea.
| 14. |
As a provider of religious, spiritual and ministerial program
services, 3ABN depends upon its reputation for theological integrity,
operational capability, and financial soundness, in order to
attract new viewers and listeners, retain current viewers and
listeners, and sustain financial support for the ministry. 3ABN
relies extensively and almost exclusively on the donations of
viewers and supporters for its continued operation.
3ABN's Trademarks
| 15. |
To protect its rights and goodwill, 3ABN has registered "3ABN"
and "Three Angels Broadcasting Network" as trademarks with the
United States Patent and Trademark Office.
| 16. |
On October 19, 2004, Registration No. 2895078 (Classes 009,
016, 038, and 041) on the Principal Register of the U.S. Patent
and Trademark Office, was duly and legally issued to Three Angels
Broadcasting Network, Inc. for the mark 3ABN, claiming a date
of first use of January 1985, as applied to "(a) videocassettes,
audio cassettes and compact disks on which are recorded video
and audio programs in the fields of religion, health, nutrition,
education, family
[page 5]
life, and programs directed to children and teenagers;" (b)
"books, magazines and newsletters featuring the subjects of religion,
health, nutrition, education, family life, and subject matter
directed to children and teenagers;" (c) "radio and television
broadcast services, satellite broadcasting services, information
services provided on a global computer network in the nature
of lectures, sermons, articles and study materials in the field
of religion, health, nutrition, education, family, life, and
subject matter directed to children and teens;" and (d) "production
and distribution of radio and television programming for broadcast
and audio and video programming for release on a global computer
network and directly to the public." A copy of the Certificate
of Registration is attached hereto as Exhibit A.
| 17. |
On May 25, 2004, Registration No. 2844695 (Class 09) on the
Principal Register of the U.S. Patent and Trademark Office, was
duly and legally issued to Three Angels Broadcasting Network,
Inc. for the mark Three Angels Broadcasting Network, claiming
a date of first use of January 1985, as applied to "prerecorded
video cassettes and audio cassettes featuring musical performances,
sermons, lectures, and interviews in the fields of religion,
health, education and family life; and prerecorded compact disks
and digital video disks featuring musical performances, sermons,
lectures and interviews in the fields of religion, health, education
and family life." A copy of the Certificate of Registration is
attached hereto as Exhibit B.
| 18. |
On March 23, 2004, Registration No. 2825028 (Class 016) on
the Principal Register of the U.S. Patent and Trademark Office,
was duly and legally issued to Three Angels Broadcasting Network,
Inc. for the mark Three Angels Broadcasting Network, claiming
a date of first use of January 1985 as applied to "books, magazines,
newsletters, pamphlets all in the fields
[page 6]
of religion, health, education, and family life." A copy of
the Certificate of Registration is attached hereto as Exhibit
C.
| 19. |
On April 20, 2004, Registration No. 2834345 (Class 038) on
the Principal Register of the U.S. Patent and Trademark Office
was duly and legally issued to Three Angels Broadcasting Network,
Inc. for the mark Three Angels Broadcasting Network, claiming
a date of first use of January 1985 as applied to "radio and
television broadcasting services, satellite broadcasting services."
A copy of the Certificate of Registration is attached hereto
as Exhibit D.
| 20. |
On June 28, 2005, Registration No. 2963899 (Class 041) on
the Principal Register of the U.S. Patent and Trademark Office,
was duly and legally issued to Three Angels Broadcasting Network,
Inc. for the mark Three Angels Broadcasting Network, claiming
a date of first use of January 1985 as applied to "production
of radio and television programs; distribution of radio and television
programs for others; programming, namely, scheduling of audio
and video programs on a global computer network; television and
radio programming." A copy of the Certificate of Registration
is attached hereto as Exhibit E.
| 21. |
The registration of the marks set forth in paragraphs 16 through
20 (hereinafter collectively referred to as "3ABN Marks") constitute
prima facie evidence of 3ABN's exclusive right to use and register
the 3ABN Marks or any colorable imitations thereof.
| 22. |
As a consequence of 3ABN's continuous and widespread global
use, promotion, and marketing of the 3ABN Marks, 3ABN has acquired
substantial and protectable goodwill in such Marks. 3ABN has
also extensively used and advertised the 3ABN Marks for decades,
making the 3ABN Marks instantly recognizable to the public consumer
as symbols of 3ABN's ministry, message, programming, broadcasting,
and audio-visual products.
[page 7]
3ABN's Trademark on the Internet
| 23. |
In conjunction with the provision of information services
on the global computer network, 3ABN also has a considerable
presence on the World Wide Web, with its primary website at "www.3abn.org"
(North America) and secondary web sites at "www.3abnaustralia.org.au"
(Australia) and "www.3angels.ru" (Russia). These web sites offer
pastoral support (prayer requests, online Bible study, etc.),
streaming audio and video programs, and information about 3ABN's
mission and operations. Visitors can also use the 3ABN website
to purchase 3ABN-produced inspirational books and music recordings
and to make financial donations to the ministry.
| 24. |
In further protection of its trademarks and use of the 3ABN
Marks on the internet, 3ABN has also registered over three dozen
internet domain names, all of which contain Plaintiffs registered
"3ABN" trademark, including but not limited to the following:
3ABN.com
3ABN.org
3ABN.tv
3ABNtelevision.com
3ABNradio.com
3ABNmusic.com
3ABNbooks.com
3ABNtv.com
3ABNtv.org
Defendant's Website
| 25. |
In January 2007, 3ABN discovered that Defendant
Joy had registered the domain name "save3ABN.com" with NamesDirect.com,
Inc. (hereinafter "Infringing Domain"). A copy of the registration
information for the domain name is attached hereto as Exhibit
F.
[page 8]
| 26. |
In March, 2007, 3ABN discovered that Defendant Joy
had registered the domain name "save3ABN.org" with NamesDirect.com,
Inc. (hereinafter "Directing Domain"). A copy of the registration
information for the domain name is attached hereto as Exhibit
G.
| 27. |
Defendants have constructed and published a website
at the Infringing Domain URL that contains information antithetical
to 3ABN's message. Specifically, the website, "www.save3abn.com"
(hereinafter "Infringing Website"), which is registered to Defendant
Joy, contains gross misstatements of fact concerning 3ABN's actions
and operations, contains baseless and untrue allegations of criminal
conduct by the organization, and disparaging characterizations
of 3ABN and its broadcast network.
| 28. |
Defendants have also imbedded the Infringing Website
with metatags "3ABN," "3-ABN," and "Three Angels Broadcasting
Network" (hereinafter "Infringing Metatags"), which are words
and phrases utilized by internet users' search-engines to find
and locate websites that use the 3ABN Marks.
| 29. |
Defendants have also registered the domain name
"www.save3ABN.org," (hereinafter "the Directing Website") and
use the Website at that URL to direct visitors to the "www.save3ABN.com"
website.
| 30. |
The Infringing Website also contains an unauthorized
embedded copy of a copyrighted 3ABN broadcast, which visitors
can either launch and watch while on the Infringing Website or
duplicate by copying the program, via electronic download, from
the Infringing Website.
| 31. |
The Infringing Domain, Infringing Website, Directing
Website, and Infringing Metatags incorporate a trademark that
Three Angels Broadcasting Network, Inc. has continuously used
for over twenty years in connection with its ministry, broadcasts,
and related
[page 9]
audio and video products. Notwithstanding the reputation
and goodwill represented by the 3ABN Marks, and Defendants' awareness
thereof, and, upon information and belief, precisely because
of said awareness, Defendants (a) willfully registered, used,
and plan to continue using the Infringing Domain, and (b) willfully
used and plan to continue to use the Infringing Website, Directing
Website, and Metatags.
| 32. |
The registration and/or the use and planned use
of the Infringing Domain, Infringing Website, Directing Website,
and Infringing Metatags by the Defendants have been without 3ABN's
consent or authorization.
| 33. |
The registration and/or the use and planned used
of the Infringing Domain, Infringing Website, Directing Website,
and Metatags by the Defendants have caused and are likely to
cause confusion and mistake in the minds of the public and, in
particular, tends to and in fact does deceivingly and falsely
create the impression that the Infringing Domain, and the content
therein, are affiliated with and authorized, sponsored, or approved
by 3ABN.
| 34. |
Not only would persons familiar with the 3ABN Marks
be likely to believe that the Infringing Domain and Infringing
Website originate with and are sponsored by 3ABN, but any such
confusion could seriously injure 3ABN to the extent that the
content of the Infringing Website located at the Infringing Domain
negatively reflects upon the reputation, goodwill and character
established by 3ABN for its ministry, broadcast, and corporation
over the past 22 years. Because of the confusion engendered by
Defendants' unauthorized uses of the 3ABN Marks, 3ABN's valuable
goodwill with respect to its trademarks is jeopardized by Defendants.
| 35. |
The registration and/or the use and planned use
of the Infringing Domain by Defendant has been deliberate, designed
specifically to trade upon the enormous goodwill and familiarity
of the 3ABN Marks, in order to lure the public to a site that
disparages and defames
[page 10]
the organization. 3ABN's use of the 3ABN Marks predates
any use Defendant may have made in connection with the term "3ABN."
| 36. |
The registration and/or the use and planned use
of the Infringing Domain, Directing Website, and Infringing Metatags
by the Defendant has been deliberate, designed specifically to
trade upon the enormous goodwill and familiarity of the 3ABN
Marks in order to wrongfully identify Plaintiff as the source
of the Infringing "www.save3abn.com" Website.
| 37. |
On or about January 30, 2007, 3ABN demanded in writing
that Defendants cease and desist from, among other things, all
unauthorized use of the 3ABN Marks, including but not limited
to the Infringing Domain and Infringing Website. Defendants have
to date failed and refused to comply with the demands of that
cease and desist letter.
Defendants' Conspiratorial Conduct
| 38. |
Upon information and belief, Gailon Joy and Robert
Pickle are members of the Seventh Day Adventist Church and met
former 3ABN director and employee Linda Shelton through their
common religious affiliation.
| 39. |
Upon information and belief, Linda Shelton has communicated
to Gailon Joy and Robert Pickle statements critical of 3ABN,
its board of directors, its officers and/or its employees for
them to publish as her agents.
| 40. |
Upon information and belief, Gailon Joy and Robert
Pickle desire to see Linda Shelton reinstated as an employee
and director at 3ABN and intend to discredit and damage the ministry
as a means of facilitating Linda Shelton's reinstatement.
| 41. |
Gailon Joy and Robert Pickle are visitors and frequent
participants in various websites and chat rooms that are frequented
by members of the Seventh-Day Adventist Church, where Defendants
have, by electronic posting, published numerous statements related
to 3ABN
[page 11]
and Danny Shelton. Joy also operates a website at
"www.save3ABN.com" where he has also published numerous statements
related to 3ABN and Danny Shelton. Joy also operates a website
at "www.save3ABN.org" where he directs visitors to the "www.save3ABN.com"
website.
| 42. |
Gailon Joy and Robert Pickle have, upon information
and belief, conspired, and colluded to enable, facilitate, encourage,
and promote the publication and dissemination of defamatory,
disparaging, and slanderous statements regarding 3ABN and its
President Danny Shelton at the internet website "www.save3ABN.com,"
and other internet websites, wherein numerous false statements
regarding 3ABN and its President Danny Shelton have been published
by Defendants.
| 43. |
Defendants have participated in this conspiracy
by jointly authoring many or all of the published statements
on "www.save3ABN.com" and by jointly authoring statements published
by one or both of them on websites frequented by members of the
Seventh-Day Adventist Church, such as "www.blacksda.com," "www.maritime-sda-online.org,"
"www.christianforum.com," and the Yahoo Prophecy Board forum.
| 44. |
Defendants have also participated in this conspiracy
by jointly marketing, advertising, and promoting the "www.save3ABN.com"
website, which they have done by posting electronic links to
the website on numerous bulletin boards and websites frequented
by members of the Seventh-Day Adventist Church, by mailing advertising
postcards to Seventh-Day Adventist Churches across the United
States directing Church Members to the "www.save3ABN.com" website,
and by encouraging Internet users to visit the "www.save3ABN.com"
website to "learn the truth" about 3ABN and its President Danny
Shelton.
[page 12]
| 45. |
Defendants have also participated in this conspiracy
by each disseminating, distributing, and reprinting the other's
published statements.
Defendants' Untrue Statements
| 46. |
Gailon Joy and Robert Pickle have published numerous
untrue statements that 3ABN and its President Danny Shelton have
committed financial improprieties with donated ministry funds.
Among those untrue statements made by Joy and Pickle are, inter
alia, that:
| a. |
For the last several years, the international television
ministry known as Three Angels' Broadcasting Network (3ABN) has
found itself beset by a growing number of moral, ethical, and
financial allegations. Despite the serious nature of these allegations,
repeated calls for investigation, reform, and accountability
have gone unheeded by its officers and directors.
| b. |
Danny Shelton purchased a 3-year-old van using 3ABN
funds, then sold the van to a member of his family for just $10.00.
| c. |
Danny Shelton purchased new furniture with 3ABN
funds, put the new furniture in his residence, and put the old
furniture from his residence on the 3ABN television set.
| d. |
Danny Shelton used 3ABN funds to purchase used furniture
from his sister, Tammy Chance, at nearly new prices (enabling
Ms. Chance to buy brand new furniture for her home), for use
in a 3ABN guest house, but, instead of putting the used furniture
in the 3ABN guest house, Mr. Shelton gave the furniture to yet
another family member and used 3ABN funds to purchase brand new
furniture for the guest house.
| e. |
The 3ABN Board of Directors has failed in its responsibility
to oversee and manage 3ABN's financial assets.
[page 13]
| f. |
Danny Shelton laundered money through 3ABN donations
to Cherie Peters, in order to make payments that had been expressly
prohibited by the 3ABN Board of directors.
| g. |
3ABN Board members have personally enriched themselves
as officers and directors of 3ABN in violation of the Internal
Revenue Code.
| h. |
Danny Shelton wrongfully withheld book royalties
from 3ABN and refused to disclose those royalties in proceedings
before a court of law related to the distribution of marital
assets.
| i. |
Danny Shelton has directed 3ABN Chief Financial
Officer Larry Ewing to not answer questions concerning Danny
Shelton's personal finances, expenses, bonuses or book royalties
in a Family Court proceeding, which was initiated by Linda Shelton
regarding division of marital assets and that Mr. Ewing has complied
and refused to answer questions posed to him by the Court.
| j. |
Danny Shelton has used the 3ABN corporate plane for personal uses.
| k. |
Danny Shelton spent $600,000 of 3ABN funds for radio
station WDQN without Board approval and paid in excess of its
fair market value, which was only $250,000.
| 47. |
Each and every one of the statements set forth above
is false and Defendants published them with malice, either knowing
them to be false or with wanton and reckless disregard for the
truth or falsity of the statements.
| 48. |
Gailon Joy and Robert Pickle have published numerous
untrue statements that 3ABN and its President Danny Shelton have
committed administrative and operational improprieties at 3ABN
and that the organization is not properly or competently managed
by its
[page 14]
managers, officers, and directors. Among those untrue
statements made by Defendants are, inter alia, that:
| a. |
3ABN engages in nepotism in the hiring and firing of staff.
| b. |
3ABN violated the Federal Equal Opportunity Act
by taking adverse employment actions against two whistle-blower
employees of 3ABN's Trust Services division.
| c. |
The 3ABN Board of Directors has failed in its responsibility
to oversee the governance and administration of the organization.
| d. |
Danny Shelton and 3ABN would not permit an ecumenical
Seventh-Day Adventist-related, fact-finding tribunal proposed
and directed by Adventist-laymen's Services and Industries ("ASI")
to investigate all allegations related to the ministry and confined
the tribunal to only those allegations involving Linda Shelton's
removal and the Shelton's' divorce.
| 49. |
Each and every one of the statements set forth above
is false and Defendants published them with malice, either knowing
them to be false or with wanton and reckless disregard for the
truth or falsity of the statements.
| 50. |
Gailon Joy and Robert Pickle have made numerous
published untrue statements that 3ABN and its President Danny
Shelton acted without grounds in removing Linda Shelton from
the 3ABN Board of Directors, that Danny Shelton had no grounds
for divorcing Linda Shelton, that 3ABN and Danny Shelton conspired
to hide evidence and information concerning the removal and divorce,
and that 3ABN and Danny Shelton have lied and made otherwise
purposeful misstatements concerning the Shelton's' divorce and
Danny Shelton's remarriage. Among those untrue statements made
by Defendants are, inter alia, that:
[page 15]
| a. |
Danny Shelton and ASI conspired to exclude Gailon
Joy from participating in a fact-finding tribunal regarding Linda
Shelton's divorce and removal from 3ABN.
| b. |
Danny Shelton and ASI conspired to prevent various
allegations and issues from being included in the fact-finding
tribunal.
| c. |
It was Danny Shelton that participated in an extra-marital
affair by becoming "involved" in "after hours activities" with
3ABN employee Brenda Walsh.
| d. |
During his marriage to Linda Shelton, Danny Shelton
had several inappropriate extra-marital relationships, of which
3ABN staff and board members were aware.
| e. |
Danny Shelton was preparing to divorce Linda Shelton beginning in 2003.
| f. |
Danny Shelton conducted an inappropriate relationship
with from August 2004 until they were married in 2006, and 3ABN's
officers and directors were aware of the relationship.
| g. |
Danny Shelton lied by claiming to have joint title
with Linda Shelton to a Toyota Sequoia automobile.
| h. |
The 3ABN board of directors had no authority to
authorize Danny Shelton's adulterous marriage or to allow his
continued employment by and direction of 3ABN.
| i. |
Danny Shelton perjured himself through the course
of court proceedings relating to his divorce from Linda Shelton.
| 51. |
Each and every one of the statements set forth above
is false and Defendants published them with malice, either knowing
them to be false or with wanton and reckless disregard for the
truth or falsity of the statements.
[page 16]
| 52. |
Defendants' conduct as heretofore set forth evidences
a malicious and purposeful campaign of defamation, slander, and
disparagement intended and designed to embarrass, discredit,
and defame 3ABN and its President Danny Shelton and to vitiate,
dishonor, and impair the reputation and goodwill of 3ABN and
its President Danny Shelton.
CAUSES OF ACTION
COUNT I: Infringement of Trademark (15 U.S.C. § 1114)
| 53. |
Plaintiffs restate and reallege Paragraphs 1 through
52 above, and hereby incorporate them by reference, as though
fully set forth herein.
| 54. |
Plaintiff 3ABN is the creator and proper owner and
holder of the trademarks "3ABN" and "Three Angels Broadcasting
Network" and has registered the same with the United States Patent
and Trademark Office.
| 55. |
Defendant Joy has used Plaintiff 3ABN's Marks in
the registered domain names "save3abn.com" and "save3abn.org."
| 56. |
Defendant Joy has used Plaintiff 3ABN's Marks in
the internet websites "www.save3abn.com" and "www.save3abn.org."
| 57. |
Defendant Joy has used Plaintiff 3ABN's Marks in
the embedded metatags "3ABN," "3-ABN," and "Three Angels Broadcasting
Network" on the Infringing Website.
| 58. |
Defendant Joy has used Plaintiff 3ABN's Marks in
commerce in connection with 3ABN's provision of ministerial and
informational services.
| 59. |
Defendant Joy's use of Plaintiff 3ABN's Marks is
without Plaintiffs' authorization, permission, or license, and
does not otherwise constitute a permissible use.
[page 17]
| 60. |
Defendant Joy's use of 3ABN's Marks has been willful
and deliberate, designed specifically to trade upon the enormous
goodwill associated with 3ABN and its 3ABN Marks.
| 61. |
Defendant Joy's unauthorized use of 3ABN's Marks
is likely to lead the public to believe the Infringing Website
is associated with, sponsored by, related to, affiliated with,
or originates with 3ABN when, in fact, it is not.
| 62. |
Plaintiff has been damaged by Defendant Joy's infringement
of its "3ABN" Marks, in an amount to be proven at trial, and
is entitled to treble damages, costs, and attorneys' fees, pursuant
to 15 U.S.C. §1117.
| 63. |
3ABN's goodwill is of enormous value, and 3ABN will
suffer irreparable harm should Defendant Joy's infringement be
allowed to continue to the detriment of 3ABN's reputation and
goodwill.
| 64. |
Defendant Joy's infringement will continue unless
enjoined by this Court and with respect to these continuing violations,
Plaintiff has no adequate remedy at law and is therefore entitled
to injunctive relief.
COUNT II: Dilution of Trademark (15 U.S.C. §1125(c)
| 65. |
Plaintiff restates and realleges Paragraphs 1 through
64 above, and hereby incorporates them by reference, as though
fully set forth herein.
| 66. |
Through Plaintiff 3ABN's extensive use of the 3ABN
Marks to identify its broadcast ministry, through Plaintiffs'
development of goodwill surrounding the Marks by its successful
operation and expansion of the broadcast ministry, and through
Plaintiffs' promotion and marketing efforts utilizing the Marks,
the 3ABN Marks are now recognized worldwide as symbols of a dedicated,
principled, Christ-centered ministry that is theologically faithful,
[page 18]
operationally sound, and financially conscientious.
3ABN's Marks are famous marks of inestimable value to 3ABN and
are relied upon by the public in distinguishing 3ABN from other
ministries, broadcasters, and recording producers.
| 67. |
After the 3ABN Marks had become famous, Defendant
Joy willfully intended to trade upon 3ABN's reputation and the
fame of its Marks by using the Marks in the Infringing Domain,
Infringing Website, Directing Website, and Infringing Metatags.
| 68. |
The use and planned use of the 3ABN Marks by Defendant
Joy has tarnished and disparaged, and thereby diluted, and is
likely to continue to tarnish, disparage, and thereby dilute,
the distinctive quality of and goodwill associated with the Marks.
| 69. |
Defendant Joy's willful dilution of 3ABN's Marks
has injured Plaintiff in an amount to be proven at trial.
| 70. |
3ABN's trademarks are of enormous value, and 3ABN
will suffer irreparable harm should Defendant Joy's trademark
dilution be allowed to continue to the detriment of 3ABN.
| 71. |
Defendant Joy's dilutive activities will continue
unless enjoined by this Court and, with respect to these continuing
violations, 3ABN has no adequate remedy at law and is therefore
entitled to injunctive relief.
COUNT III: Defamation
| 72. |
Plaintiffs restate and reallege Paragraphs 1 through
71 above, and hereby incorporates them by reference, as though
fully set forth herein.
| 73. |
Defendants have made numerous false statements of
fact with regard to both 3ABN and its President Danny Shelton.
[page 19]
| 74. |
Defendants have published those statements on the
Internet and at the website "www.save3ABN.com" and have thereby
communicated those false statements to someone other than the
Plaintiffs.
| 75. |
Defendants' false statements refer to Plaintiffs'
trade, business and profession, contain false accusations of
the commission of a crime by both Plaintiffs, and impute serious
misconduct to Plaintiffs 3ABN and Danny Shelton and are therefore
defamatory per se.
| 76. |
Defendants' false statements were purposefully and
maliciously designed and made to embarrass, discredit, and defame
3ABN and its President Danny Shelton and to vitiate, dishonor,
and impair the reputation and goodwill of 3ABN and its President
Danny Shelton.
| 77. |
Defendants' false statements have tended to and
have in fact harmed the reputation and goodwill of both 3ABN
and its President Danny Shelton, and have served to lower 3ABN
and President Danny Shelton in the estimation of the community.
| 78. |
As a direct and proximate result of the damage done
to Plaintiffs' reputations by Defendants' defamatory and disparaging
statements, viewers have ceased support of the ministry and donors
have reduced or stopped donations to 3ABN.
COUNT IV: Intentional Interference With Advantageous Economic Relations
| 79. |
Plaintiffs restate and reallege Paragraphs 1 through
78 above, and hereby incorporate them by reference, as though
fully set forth herein.
| 80. |
Defendants have made numerous false statements of
fact with regard to both 3ABN and its President Danny Shelton.
| 81. |
Defendants have published those statements in an
effort to discredit 3ABN and its President Danny Shelton and
in order to cause present and prospective viewers and donors
to the ministry to discontinue their financial support of the
ministry.
[page 20]
| 82. |
Defendants have intentionally interfered, tortiously
and/or with improper motive or means, with 3ABN's present and
prospective advantageous economic relationships with viewers
and donors.
| 83. |
As a direct and proximate result of Defendant's
actions, viewers and donors have discontinued their financial
support of the ministry.
JURY DEMAND
Plaintiff hereby demands a trial by jury for all issues so triable.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray:
| 1. |
That judgment be entered in favor of Plaintiffs
and against Defendants for all claims in Plaintiffs' Complaint
on the grounds that Defendants have knowingly and willfully infringed
upon and diluted Plaintiffs' trademarks, have willfully and maliciously
defamed plaintiffs, and have willfully and intentionally interfered
with Plaintiffs' advantageous economic relations.
| 2. |
That a permanent injunction issue restraining Defendants,
their agents, successors, assigns and all others in concert and
privity with Defendants, from infringing on 3ABN's Marks and
dilution of 3ABN's Marks.
| 3. |
That a permanent injunction issue restraining Defendants,
their agents, successors, assigns and all others in concert and
privity with Defendants, from using the 3ABN Marks in any internet
domain name, internet website name, or internet website metatags.
| 4. |
That a permanent injunction issue restraining Defendants,
their agents, successors, assigns and all others in concert and
privity with Defendants, from using the Infringing Domain, Directing
Domain or the Infringing Website.
| 5. |
That Defendant Joy be ordered to immediately surrender
the Infringing Domain and transfer registration of the Infringing
Domain and Directing website to Plaintiff 3ABN, completing all
paperwork necessary to transfer and paying all fees and costs
associated with transfer of the domain registration.
| 6. |
That Defendants be ordered to immediately remove
from all print and electronic publications the false statements
of fact alleged herein and otherwise established at trial.
| 7. |
That Defendants be ordered to immediately publish
a retraction of the false statements of fact alleged herein and
otherwise established at trial, and to publish that retraction
in the same forms and forum and to the same general and specific
audience as the false statements were originally made.
| 8. |
That compensatory damages be awarded to Plaintiffs
in an amount to be determined at trial, but in no event less
than $75,000 (exclusive of costs and interest).
| 9. |
That statutory damages be awarded Plaintiffs in
an amount to be determined at trial.
| 10. |
That Plaintiffs be awarded all costs and fees, including
attorneys' fees, incurred in the prosecution of this action.
| 11. |
That Plaintiffs are awarded such other and further
relief as this Honorable Court may deem just and equitable.
| Dated: April 5 , 2007 | FIERST, PUCCI & KANE, LLC | ||
| By: | [signed] J.P.P. | ||
John P. Pucci, BBO# 000000 J. Lizette Richards, BBO#000000 64 Gothic Street Northampton, MA 01060 Tel: 413-000-0000 Fax: 413-000-0000 | |||
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