THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Cameo Publishing Group and ) C/A No.: 2008-CV-_________-_________
The Association for the Promotion of )
Campus Activities, Inc. )
)
Plaintiffs, )
) COMPLAINT
vs. )
)
The National
Association for Campus )
Activities, Inc., Alan
Davis, )
Adam Brentnall, Jon Dooley, )
Glenn Farr, Sonicbids Corporation, )
Campus Entertainment,
LLC, )
TRP Marketing, Inc. d/b/a TRP )
Sports &
Entertainment Marketing )
and Mark Hall )
)
Defendants. )
_________________________________ )
COMPLAINT
NOW
INTO COURT, through undersigned counsel, come Southeast Sanctions, Inc
d/b/a Cameo Publishing Group (“CAMEO”) and The Association for the Promotion of
Campus Activities (“APCA”), who with respect represent
as follows:
JURISDICTION
AND VENUE
1.
The jurisdiction of this Court is invoked pursuant to
federal question jurisdiction, 28 U.S.C. § 1331, as the major issues involved
herein are questions of federal law.
2.
The wrongful acts were committed, in whole or in part,
in this District and most of the defendants are domiciled in this District,
including defendant NACA, through which all of the defendants are associated
and with whom all the other defendants do business in some manner such as
partnership or joint venture.
PARTIES
3.
Plaintiff Southeast Sanctions, Inc. d/b/a Cameo
Publishing Group (“CAMEO”) is a for-profit corporation formed under the laws of
the State of
4.
Plaintiff, the Association for the Promotion of Campus
Activities, Inc. (“APCA”), is a for-profit corporation formed under the laws of
the State of
5.
Defendant THE NATIONAL ASSOCIATION FOR CAMPUS
ACTIVITIES (“NACA”) is a non-profit corporation formed under the laws of the
State of
6.
Defendant ALAN DAVIS is an individual of the age of
majority domiciled in
7.
Defendant ADAM Brentnall is an individual of
the age of majority domiciled in
8.
Defendant JON DOOLEY is an individual of the age of
majority domiciled in
9.
Defendant GLENN FARR is an individual of the age of
majority domiciled in
10.
Defendant SONICBIDS
CORPORATION is a for-profit corporation domiciled in the State of
11.
Defendant CAMPUS ENTERTAINMENT, LLC, is a for-profit
South Carolina Limited Liability Company formed under the laws of the State of
12.
Defendant TRP MARKETING,
INC. d/b/a TRP SPORTS AND ENTERTAINMENT MARKETING is a
for-profit corporation domiciled in the State of
13.
Defendant MARK HALL is an individual of the age of
majority domiciled in
FACTS
History of Defendant
NACA
14.
Since its inception in the 1960’s, defendant NACA has
claimed nonprofit status under the educational exemption of the Internal Revenue Code, Section 501(c), and its
stated objective was to foster and promote the growth and welfare of campus
activities and student life and to advance campus activities in higher
education.
15.
NACA started as
small conglomerate of school administrators with no real commercial
objectives of its own. In or around 1986,
NACA’s focus shifted and it has since become a de-facto for-profit commercial
enterprise making profits into the millions of dollars by promoting talent
conventions whereby member artists “showcase” their talent to NACA’s member
schools. School talent buyers
subsequently purchase the artists’ services at those profitable NACA’s
conferences.
16.
NACA charges membership fees to its member schools;
charges membership fees to its member artists and agents; charges delegate fees
to schools and artists to attend and/or showcase their talents at their
conferences; charges advertising fees to members for advertising on its
website, http://www.naca.org, and in its
magazine, Campus Activities Programming
Magazine; and makes substantial profits in its ongoing commercial
enterprise.
17.
All of these fees, equaling several million dollars a
year, are made under the umbrella of NACA’s aforementioned tax exempt status. Through
those dues, advertising, and other fees collected from NACA member schools,
artists, agents, and advertisers, NACA’s total yearly gross revenues and gains
equal over $5,000,000.00 a year.
18.
Prior to the formation of APCA, NACA was a true
monopoly in the campus activities market, having nearly 100% of the total
market share, no real national competition in the market, and no threat to its
multi-million dollar profits.
19.
APCA was formed in 1994 as a national competitor to
NACA. APCA offers mostly identical
services to those of NACA, but APCA has its own distinctive mark, which existed
at all times relevant to the wrongful actions of the defendants set forth
herein, including the defendant’s numerous Internet domain registrations. APCA has enjoyed great success in the market,
initially in the Southeast region of the country. APCA has also grown into the Northeast region
and has made some slight inroads into other regions. Nevertheless, APCA still has less than thirty
percent (30%) of the market share, while NACA still retains about seventy
percent (70%) of the market share.
20.
Since its inception, APCA has suffered repeated and
systematic predatory attacks from NACA by means of unfair competition and
unfair trade practices in an ongoing effort by NACA to run APCA out of the
market and to retain its monopolistic control of the market, to the detriment
of the entire campus activities marketplace.
21.
W.C. Kirby
started Cameo in 1991.
22.
Prior to starting CAMEO, Mr. Kirby worked for
eleven years as NACA’s director of advertising and print services. Mr. Kirby
formed CAMEO for the purpose of selling printing services and publishing a
national magazine regarding campus activities.
CAMEO’s magazine, published as Campus Activities Magazine, is in direct
competition with NACA’s magazine.
23.
Cameo’s magazine was first called “
Campus Activities Today,” but that name was changed to “Campus
Activities Magazine.”
24.
The name Campus
Activities Magazine is a federally registered mark and it belongs to
plaintiff CAMEO.
25.
CAMEO publishes both a print and online version of its
magazine, Campus Activities Magazine. The online version is on the Internet at www.campusactivitiesmagazine.com.
26.
CAMEO has been doing business under its registered
mark, “Campus Activities Magazine”, on a national level since its inception in
1991 and has owned and operated its website at www.campusactivitiesmagazine.com
since the mid 1990s, all of which was well-known to NACA at all times relevant
hereto.
27.
Sometime in late 2005 or early 2006, NACA and its
co-defendants conspired to drive traffic away from CAMEO’s
website (www.campusactivitiesmagazine.com)
and towards NACA’s website (www.naca.org) by
means of purchasing domains including the federally-registered CAMEO service
mark, “Campus Activities Magazine”.
28.
On or about February 11, 2006, NACA and its
co-defendants purchased no less than seven (7) domain names which are
deceptively similar to CAMEO’s federally-registered
mark and pointed all of those domains to NACA’s own website at www.naca.org.
29.
The domains were purchased by NACA using NACA’s
non-profit funds, but were placed in the name of defendant Adam Brentnall, who
was acting in concert and in conspiracy with defendants ALAN DAVIS, JON DOOLEY,
and GLENN FARR and with the actual or imputed knowledge of the other
co-defendants.
30.
The domains purchased by ALAN DAVIS, JON DOOLEY, and
GLENN FARR in ADAM BRENTNALL’s name and utilized by
NACA include: campusactivitiesmagazineonline.com campusactivitiesmagazine.net
campusactivitiesmagazine.org, campusactivitiesmagazine.biz,
campusactivitiesmagazine.us, campusactivitiesmagazine.ws,
and campusactivitiesmagazine.info, all of which the
defendants intentionally redirected to NACA’s homepage at www.naca.org.
31.
The defendants acted in bad faith by purchasing the
infringing domains and their bad faith continues today through their ongoing
use and development of these domains.
The defendants’ bad faith is further shown by the fact
that, despite being put on notice of these specific issues previously by APCA,
the defendants still have several active websites infringing on CAMEO’s registered mark and still have those sites pointing
towards their own website and driving traffic away from CAMEO’s
site.
32.
NACA and its co-defendants have all profited unfairly
from the use of these infringing websites for a period of over two (2) years,
from February 11, 2006, through the present day. Those profits made by NACA were at the
expense of CAMEO.
33.
APCA has been doing business under its service mark, “APCA”,
on a national level since its inception in 1994 and has owned an operated its
website at www.apca.com since 1996, all of
which was well-known to NACA at all times relevant hereto.
34.
Sometime in late 2005 or early 2006, NACA and its
co-defendants conspired to drive traffic away from APCA’s website (www.apca.com) and towards NACA’s website (www.naca.org) by means of purchasing domains
including the APCA service mark (“APCA”).
35.
On or about February 11, 2006, NACA and its
co-defendants purchased no less than fifty-four (54) domain names which are
deceptively similar to APCA’s mark and pointed all of those domains to NACA’s
own website at www.naca.org.
36.
The domains were purchased by NACA using NACA’s
non-profit funds, but were placed in the name of defendant Adam Brentnall, who
was acting in concert and in conspiracy with defendants ALAN DAVIS and JON
DOOLEY and with the actual or imputed knowledge of the other co-defendants.
37.
The domains purchased by ALAN DAVIS and JON DOOLEY in
ADAM BRENTNALL’s name and utilized by NACA include: apca.tv, apca.name, apca.biz, apcaonline.com, apcalive.com, myapca.biz,
apcasucks.biz, apcasucks.com, apcasucks.info,
apcasuckslive.com, apcasucks.net, apcasucksonline.com, apcasucks.org,
ihateapca.com, ihateapca.info, ihateapca.net, ihateapca.biz, ihateapca.org, and many others, all of which
redirected to NACA’s homepage at www.naca.org.
38.
NACA/BRENTNALL/DAVIS/DOOLEY
and their co-defendants also purchased domains directly targeted at APCA’s core
profit-center, which is the facilitation of block purchasing or “block booking”
of entertainment, particularly through the use of what is known as “cooperative
buying” or “co-op buying”. Co-op buying
is a system whereby member schools are able to receive reduced rates on talent
when they book the same artist collectively within a few days of each
other. This co-op buying is at the core
of what APCA does and APCA’s viability in the campus activities market is
totally contingent upon its ability to facilitate the “co-op buying” or “block
booking” of talent.
39.
On or about February 11, 2006, NACA/BRENTNALL/DAVIS/DOOLEY and their co-defendants purchased
and utilized block booking and co-op buying domain names containing APCA’s
service mark (“APCA”) and directed those domains directly to NACA’s own block
booking and co-op buying web pages, in an attempt to deceive the marketplace
and compete unfairly with APCA by use of deceptive means. Those domains purchased and utilized by NACA
for that improper purpose include: apcablockbookit.com, blockbookitapca.biz, blockbookitnowapca.biz,
blockbookapca.biz, apcablockbookit.info,
apcablockbookitlive.com, apcablockbookit.net, apcablockbookitonline.com,
apcablockbookit.org, apcaco-opbuying.biz, apcacoopbuying.biz, apcaco-opbuying.com,
apcacoopbuying.com, apcaco-opbuying.info, apcacoopbuying.info, apcaco-opbuyinglive.com,
apcacoopbuyinglive.com, apcaco-opbuying.net, apcacoopbuying.net,
apcaco-opbuyingonline.com, apcacoopbuyingonline.com, apcaco-opbuying.org, apcatourschedules.biz, apcatourschedules.com, apcatourschedules.info, apcatourscheduleslive.com,
apcatourschedules.net,
apcatourschedulesonline.com, apcatourschedules.org, apcablockbookit.biz,
apcacoopbuying.org, myapcatourschedules.biz, and
others.
40.
NACA’s block booking is presented to the public and
the campus activities marketplace in partnership with defendant SONICBIDS CORPORATION, who is NACA’s “partner”[2] in
all of its online block booking activities through
what NACA calls on its website the “NACA/Sonicbids
CO-OP Buying system”.[3]
41.
It is alleged that defendants SONICBIDS
CORPORATION, CAMPUS ENTERTAINMENT, LLC, and TRP
MARKETING, INC. d/b/a TRP SPORTS AND ENTERTAINMENT
MARKETING either knew or should have known of NACA’s illegal activities
vis-ŕ-vis these domains.
42.
It is further alleged that defendants SONICBIDS CORPORATION, CAMPUS ENTERTAINMENT, LLC, and TRP MARKETING, INC. d/b/a TRP
SPORTS AND ENTERTAINMENT MARKETING all profited directly and indirectly from
NACA’s illegal use of these domains to their joint and individual benefit and
profit and to the detriment of plaintiff APCA.
43.
The defendants were and still are all clearly in bad
faith in the purchasing and continued use of these domains. NACA and its partners and co-defendants all
clearly knew at all times that block booking / co-op buying is at the core of
APCA’s business, as is clear from NACA’s own statements taken from NACA’s
Facebook page (http://www.facebook.com/pages/NACA/9212558519?ref=s),
which states (bold emphasis added):
In 1960, a group of school representatives formalized
a simple and practical idea to help increase the buying power of their campus
programming dollars. They developed a process that allowed schools within close
geographical proximity to work together to share travel and other logistical
costs for artists and performers booked for campus shows over a certain block
of dates. This process, now known as
Cooperative Buying or CO-OP Buying, forms the cornerstone of the National
Association for Campus Activities (NACA)
44.
NACA and its co-defendants all profited unfairly from
the use of these infringing websites for a period of over two (2) years, from
February 11, 2006, until after their discovery by APCA on or about February 18,
2008. Those profits made by NACA were at
the expense of APCA and to the detriment of APCA, as well as the campus
activities marketplace as a whole.
45.
On February 19, 2008, after discovering NACA’s ongoing
deceptive practices regarding its website, APCA sent via means which were
certain to get the message to NACA a cease and desist
letter detailing what was already known on that date as to NACA’s usurpation of
APCA’s service mark and trade name and its deceptive use of domains. That letter was sent as an open letter to the
entire campus activities market, including many NACA members.[4]
46.
NACA did, in fact, receive the letter and did respond
to the letter by way of several incredulous email and personal responses to
members of the campus activities market written by defendants DAVIS and DOOLEY,
as well as others, wherein NACA defended the practice of purchasing APCA’s
domain names as only a “preventative measure,” stating that the practice was a
proper and “a common business decision to protect the interests of an
organization”.
47.
NACA also falsely stated on February 20, 2008, that
(1) it did not own the “APCA” domains and (2) each and every one of the sites
were being taken down. Contrary to that
assertion, NACA retained control and ownership of the domains and NACA further
refused to stop the direction of traffic to its site via the use of those
infringing domain names. The domains
remained under the ownership and control of NACA and most of the infringing
domains remained active and still pointing to NACA for well over a month after
the initial request from APCA.
48.
On February 23, 2008, almost a week after the first
request from APCA, as a result of NACA’s ongoing refusal to stop its illegal
behavior vis-ŕ-vis the websites, counsel for APCA sent to NACA another demand
that NACA cease and desist the use of the infringing domains immediately. That demand was sent via facsimile to NACA
and receipt was confirmed by fax machine receipt. That letter stated, in pertinent part, Please accept this letter as notice that you are to cease
and desist these unlawful actions immediately.
Moreover, you are to turn over to APCA immediately a full list of each
and every domain name that NACA has ever purchased which includes the mark APCA
(in any form) and turn over ownership of each and every such domain to my
client immediately. If you fail to
comply with this demand immediately, we will be left with no option but to file
suit against you in a court of competent jurisdiction. As prior demands have not been heeded, this
letter will be our last demand prior to filing suit.
49.
While NACA did eventually stop redirection of the
infringing sites (at least the sites that APCA knew about at the time), NACA
refused to comply with the demand to turn over control of the domains to APCA.
50.
Moreover, even after the second demand letter was sent
by APCA’s attorney, NACA continued to purchase infringing domains with the APCA
service mark, including the domain apcablockbookit.us,
which was purchased by NACA on February 25, 2008, according to whois records (two days AFTER the second demand was sent by
APCA’s attorney). The whois registration information for that site reads as
follows: “Domain Registration Date: Mon Feb 25 15:13:37 GMT 2008”.
51.
After receiving the second demand from APCA’s
attorney, NACA attempted to ostensibly change the ownership information of
several of the infringing domains, but several of those domains nevertheless
continued to redirect to NACA’s website at www.naca.org.
52.
To date, NACA has refused to comply with APCA’s demand
to turn over the domains and NACA has instead made multiple attempts to
continue to profit from its cybersquatting scheme by selling the domains to
several third parties and/or by auctioning the domains for a profit. In fact,
APCA is informed and believes that at least one of the offending domain names
has been sold for value to a third-party purchaser.
Losses in Advertising Revenue Due to the
Defendants’ Actions
53.
Like CAMEO, defendant NACA operates both a printed version
and an online version of its magazine, Campus
Activities Programming Magazine, which is in direct competition with the
plaintiff’s print magazine, Campus
Activities Magazine. NACA sells
advertising in that magazine and in other NACA print publications for sums
ranging from a few hundred dollars to over $2,500.00 per individual ad.
54.
NACA also sells advertising on its website, www.naca.org.
The minimum web advertising fees on NACA’s website are priced by NACA at
$750.00 per month per advertiser, in addition to other online advertising,
which is linked to NACA’s print publication, Camus Activities Programming Magazine, which offers print
advertising and online advertising via what NACA’s website calls the “digital version
of Campus Activities Programming”
available online on NACA’s website, http://www.naca.org.[5]
55.
CAMEO’s print
magazine, Campus Activities Magazine, began
publication in 1991 and enjoyed success in the years prior to 2006, when NACA
registered the infringing domains mentioned herein.
56.
In 2006, immediately after NACA and its co-defendants
purchased the above-cited “Campus Activities Magazine” domains and began
directing those domains to NACA’s website, CAMEO noticed an immediate and
devastating hit to its advertising revenues in both online and print
publications.
57.
NACA has also used and abused its market dominance in
other manners calculated to unfairly compete with CAMEO and to cause CAMEO to
lose advertising revenue and revenue related to its online and print
publications, including not allowing NACA members to display CAMEO’s magazine in their booths at NACA conventions,
bullying NACA members into advertising with NACA instead of CAMEO, and in other
ways to be shown at trial.
58.
NACA’s predatory actions in these respects caused such
injury to CAMEO’s advertising revenue and
profitability.
59.
In addition to its website, NACA also operates a print
magazine, Campus Activities Programming
Magazine, which is in direct competition with APCA’s print magazine, The APCA Student Activities Journal. NACA sells advertising in that magazine and
in other NACA print publications for sums ranging from a few hundred dollars to
over $2,500.00 per ad.
60.
NACA also sells advertising on its website, www.naca.org.
The minimum web advertising fees on NACA’s website are priced by NACA at
$750.00 per month per advertiser, in addition to other online advertising which
is linked to NACA’s print publication, Campus
Activities Programming Magazine, which offers print advertising and online
advertising via what NACA’s website calls the “digital version of Campus Activities Programming” available
online on NACA’s website, http://www.naca.org.[6]
61.
APCA’s print magazine, The APCA Student Activities Journal, began publication in 2004 and
APCA enjoyed success with the magazine in the years 2004 and 2005.
62.
In 2006, immediately after NACA and its co-defendants
purchased the above-cited “APCA” domains and began directing those domains to
NACA’s website, APCA noticed an immediate and devastating hit to its
advertising revenues in both online and print publications.
63.
NACA has also used and abused its market dominance in
other manners calculated to unfairly compete with APCA and to cause APCA to
lose advertising revenue and revenue related to its online and print
publications..
64.
NACA’s predatory actions in these respects caused such
injury to APCA’s advertising revenue that APCA has been forced to discontinue
the print magazine completely, due to lack of advertising revenue resulting in
extreme unprofitability.
65.
Despite the fact that NACA is a non-profit and despite
the fact that its sole stated raison
d’ętre is to advance campus activities in higher education, defendants ALAN
DAVIS and NACA have lately engaged in systematic and repeated attempts to
retain and solidify NACA’s position as a monopoly in the campus activities
market by way of predatory activities and other actions not proper for a
non-profit entity supposedly formed for the benefit of the marketplace as a
whole.
66.
NACA has routinely and repeatedly attempted to shut
APCA, CAMEO, and others out of the market by refusing access to the market and
penalizing member artists and agents who choose to do business with CAMEO and
other entities that NACA sees as a threat to its market dominance.
67.
NACA has used its market prominence to force schools,
agents and artists to cease doing business with CAMEO and has bullied and
threatened retaliation against NACA members who desired to do business with
CAMEO.
68.
69.
When APCA attempted to contact DAVIS and NACA about
this and stated to NACA that their predatory tactics were not in the best interests
of the campus activities market,
70.
The defendant’s violations of the Lanham Act set forth
herein are also a violation of the Unfair Trade Practices Law.
71.
In 2006, APCA began a new program, whereby APCA reached
out to many Historically Black Colleges and Universities (“HBCU’s”),
in an attempt to address specific needs of HBCU’s and
to increase HBCU participation in APCA and the
college activities marketplace as a whole.
APCA spent several thousands of dollars courting the HBCU’s
and tailoring conference showcases for the HBCU’s.
72.
In January of 2008, when APCA attempted to capitalize
on its goodwill with the HBCU’s by way of membership
and conference attendance, DAVIS and NACA suddenly announced a new “HBCU Connections Program” and announced that NACA would
allow the HBCU’s to attend that year’s NACA
conference totally free of charge. NACA,
who had not shown any special interest in the HBCU’s
since the formation of APCA and had never during that time directed any
large-scale program or campaign directly for the benefit of HBCU’s,
made that move solely as an attempt to disrupt APCA’s business and to cause a
loss to APCA, all in its ongoing attempt to run APCA from the market and to
retain its monopoly.
73.
In fact, NACA never followed up on its pursuit of the HBCU’s. When APCA
was forced to abandon its HBCU program (as a direct
result of NACA’s interference), DAVIS and NACA abandoned their feigned interest
in the HBCU’s, leaving that sector of the campus
activities market much worse than they found it.
74.
On or about February 1, 2007, NACA formed defendant Campus Entertainment, LLC,[7] a for-profit
joint venture between NACA and the for-profit corporation, defendant TRP Marketing, Inc. d/b/a TRP
Sports & Entertainment Marketing.
75.
Although Campus
Entertainment, LLC, is a for-profit corporation, it is capitalized and
funded with NACA’s non-profit funds and touted by NACA on its website as “a
subsidiary of The National Association for Campus Activities (NACA)”.
76.
The new for-profit LLC is domiciled at NACA’s
headquarters at
77.
Defendant MARK HALL, who was at the time a NACA
employee and a friend and crony of defendant ALAN DAVIS, was ostensibly
installed by
78.
The new for-profit company, defendant Campus Entertainment, LLC, was formed
for several purposes, including the hosting of The Verge College Music Conference.
The Verge College Music Conference
is a de-facto NACA conference which uses NACA’s non-profit funds as capital,
but from which profit is taken by individuals associated with NACA
(specifically including defendant MARK HALL) who would not otherwise be
entitled to take profits from the non-profit NACA.
79.
The Verge College
Music Conference is an annual college entertainment conference in direct
competition with APCA, which offers the same exact services as NACA and APCA,
but which actively seeks out corporate sponsorship for profit and offers
prospective corporate sponsors unique access to NACA’s collegiate student
membership for a profit.
80.
The Verge
College Music Conference is held every Spring,
around the same time of year as APCA’s National Conference—APCA’s largest and
most lucrative conference.
81.
Whilst the access being sold to corporate sponsors by Campus Entertainment, LLC, is access to NACA’s
membership, NACA as a nonprofit entity does not benefit from the corporate
sponsorships or the targeting of its collegiate membership and the profit is
instead taken in whole by the for-profit company and its private owners,
including defendants MARK HALL and ALAN DAVIS.
82.
The joint venture’s website (www.campusentertainment.net) invites
corporate sponsors to pay fees to the for-profit joint venture and in return
they will receive unparalleled access to NACA’s member students and member
schools. The website states (bracketed
text added):
Our
campus network of more than 1,000 colleges and universities has a total
enrollment of more than six million students [NACA’s membership] and includes
campuses in each of the top 50 U.S. metro markets [NACA’s member schools].
Our
goal is to produce a lasting positive experience and create passion for your
brand. CE’s [Campus Entertainment’s] campus events and customized programs
provide unlimited opportunities to deliver your message and stand out from the
crowd. No one has more experience with college touring and entertainment than
CE and NACA! Campus Entertainment is a subsidiary of the National Association
for Campus Activities (NACA). NACA is the largest campus activities
organization in the world with more than 1,000 college and university members
across the U.S. Founded in 1960, NACA has almost 50 years of experience with
entertainment and educational programs targeting college students.
CE
[Campus Entertainment] connects you to key student leaders and influencers on
over 1,000 campuses. Through our exclusive relationship with NACA we have direct
access to campus staff responsible for booking touring entertainment and
educational events.
Our
goal is to produce a lasting positive experience and create passion for your
brand.
83.
The plaintiffs specifically allege that NACA’s funding
of this for-profit entity was for the specific purpose of circumventing the
laws regarding nondistribution of surpluses, in order
to allow co-conspirators and highly-placed individuals within NACA, including
defendants MARK HALL and ALAN DAVIS, to obtain personal wealth at the expense
of the nonprofit entity and the campus activities marketplace as a whole. Those co-conspirators and NACA officials,
specifically including defendants DAVIS and HALL, profited personally but
risked no personal loss, as the for-profit entity is funded with NACA’s
non-profit funds, through the non-profit’s network, using the non-profit’s untaxed
assets.
84.
The plaintiff also specifically alleges that the
planning and execution of this for-profit money-making scheme by DAVIS, HALL and
other co-conspirators has been one of the driving forces behind NACA’s
predatory actions vis-ŕ-vis CAMEO, APCA, and the campus activities market as a
whole.
85.
Additionally, the collusion of DAVIS and HALL and
their use of NACA’s untaxed nonprofit funds to run a for-profit enterprise for
personal gain, as well as their concerted efforts to monopolize the campus
activities market, also constitutes unfair competition, violations of the
Lanham Act, and per se violations of the Unfair Trade Practices Laws.
86.
NACA conspired with the other defendants with the
specific intent of causing injury to APCA and CAMEO and actually causing
special damages to be suffered by APCA and CAMEO.
87.
Defendants ALAN DAVIS and ADAM Brentnall and JOHN DOOLEY and
GLENN FARR also conspired with each other to purchase domains which they had
actual knowledge were the intellectual property of the plaintiff with the
specific intent of causing injury to APCA and CAMEO and actually causing
special damages to be suffered by APCA and CAMEO.
88.
Defendants DOOLEY and DAVIS both admitted to having
knowledge of the practice of illegally purchasing domains which were the legal
property of others and then illegally pointing those domains to NACA’s website
and defended said practices as “common business practice” in emails Dooley sent
to people and groups in the marketplace.
89.
The defendants showed actual malice in planning and
executing the said conspiracy against APCA and CAMEO and as a result the plaintiffs
are each entitled to punitive damages against each of the defendants.
90.
After discovering NACA’s ongoing deceptive practices
regarding its website, CAMEO considered sending a “cease and desist” letter to
NACA along with a demand that NACA transfer ownership of the domains to
CAMEO. However upon further
investigation by CAMEO, the following was discovered:
91.
At or near the same time that NACA purchased the
aforementioned domains which infringe on CAMEO’s federally-registered
mark, NACA also purchased several other domains which infringe on the mark of
plaintiff APCA, as is outlined above.
92.
When APCA discovered NACA’s infringing sites on or
about February 11, 2008, APCA sent NACA a cease and desist
letter asking NACA to take the websites down and to turn over control of the
websites to APCA. NACA refused to comply
and instead transferred the domains to several domain resellers and
auctioneers, possibly even placing some of the domains in foreign nations and
beyond the reach of the
93.
To date, NACA has refused to comply with APCA’s demand
to turn over the domains and NACA has instead made multiple attempts to
continue to profit from its cybersquatting scheme against APCA by selling the
domains to several third parties and/or by auctioning the APCA domains for a
profit.
94.
In fact, APCA specifically alleges that the defendants
are still actively attempting to profit from their wrongful acts still trying
to harm APCA by means of unfair competition.
On or about August 7, 2008, the defendants sold one of the “APCA”
domains to a third party purchaser for a profit in their ongoing attempts to
deny APCA access to the domains which are rightfully theirs and to continue to
profit from their cybersquatting and other unlawful acts taken in continued bad
faith.
95.
As a result of this knowledge, plaintiff CAMEO alleges
that it would have been a vein and useless act to forward a demand letter to
NACA regarding the infringement on its mark and that such would have only acted
to harm CAMEO further by giving defendant NACA time to transfer the “Campus
Activities Magazine” domains beyond the reach of the plaintiff and/or outside
of the
96.
As a result of the foregoing, plaintiffsAPCA and CAMEO both ask for a temporary
restraining order and a permanent injunction against the defendants as set
forth below. .
97.
Plaintiffs are both entitled to a declaratory judgment
declaring the illegality of the actions taken by the defendants in
cybersquatting and trademark infringement.
98.
Plaintiffs are both further entitled to a declaratory
judgment establishing that defendants have knowingly acted in a manner intended
to deprive each of the plaintiffs of their guaranteed rights in their
respective service marks, trade names, and Internet identities.
99.
To the extent that the defendants have refused to
relinquish ownership and control of the many domains which infringe on the
plaintiffs’ respective service mark and which constitute cybersquatting under
the Anti-Cybersquatting and Piracy Act (“ACPA”), and
to the extent that the wrongful actions of the defendants are subject to
repetition unless enjoined and plaintiffs will each thereby be subject to
irreparable harm on account of the actual, potential, and ongoing damage to
their respective business and goodwill, plaintiffs are each entitled to a
temporary restraining order and after a hearing a permanent injunction against
such activities and ordering that the wrongful actions of the defendants not be
repeated in the future.
100.
Plaintiffs will demonstrate irreparable injury as
follows:
101.
Ongoing and likely future infringements on the plaintiffs’
respective service marks, considering (1) the past actions of the defendants,
(2) the defendants’ ongoing use of the infringing domains despite having been
put on notice of similar infringements; (3) the defendants’ ongoing efforts to
continue to purchase infringing domains even after having been put on notice;
(4) the defendants’ ongoing attempts to sell the infringing domains already
purchased by them for further profit; and (5) the defendants ongoing attempts
to place the infringing domains out of the reach of the plaintiffs and possibly
out of the reach of the United States.
102.
Ongoing and likely damage to the plaintiffs’
respective businesses, business reputations, and goodwill by the defendants’
wrongful actions, considering (1) the past actions of the defendants in
intentionally purchasing so many infringing domains, (2) the defendants’
ongoing refusal to relinquish control of similar infringing domain names; (3)
the defendants continued and current use of the domains infringing on the registered
mark of Cameo Publishing and Campus
Activities Magazine; (4) the defendants’ past efforts to transfer ownership
of infringing domains beyond the reach of the owners and possibly even to
persons in foreign nations beyond the reach of the Courts of the United States;
and (5) the defendants’ ongoing attempts to sell the infringing domains already
purchased by them for further profit.
103.
Threatened damage to one’s business, inter alia, constitutes irreparable
injury.
104.
As will be shown in an accompanying memorandum of law
to be submitted forthwith, plaintiffs will demonstrate compliance with all of
the other requisites for the issuance of a TRO and a
permanent injunction.
ENTITLEMENT TO DAMAGES
105.
Plaintiffs are each entitled to individual statutory
damages for cybersquatting in violation of the Anti-Cybersquatting and Piracy
Act (“ACPA”), equaling to between ONE THOUSAND
DOLLARS ($1,000.00) and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per domain for
the infringing domains purchased by the defendants for improper cybersquatting
purposes. The plaintiffs each
specifically elect for said statutory damages for cybersquatting in this
instance.
106.
The plaintiffs are further entitled to damages for
trademark infringement for the systematic and repeated infringements on their
respective service marks, which were repeatedly committed by the defendants
knowingly, in bad faith, and with actual malice.
107.
The plaintiffs are further entitled to damages for
unfair competition, including attorney’s fees.
108.
The plaintiffs are further entitled to damages for the
monopolistic actions of defendant NACA in violation of the Lanham Act,
including treble damages and attorney’s fees.
109.
The plaintiffs are further entitled to damages for
Civil Conspiracy under
110.
The plaintiffs are further entitled to damages under
the Unfair Trade Practices Laws of the State of
111.
The plaintiffs are also entitled to special and statutory
damages and attorney’s fees on account of their federally-registered service
marks.
112.
The plaintiffs are also entitled to actual damages,
both general and special, on account of the policies and actions of the
defendants.
LEAVE TO FURTHER AMEND
113.
Inasmuch as the decisions made by the defendants were
done in secret and there has been no opportunity for discovery; and inasmuch as
the plaintiffs are not aware of the knowledge and acts of other persons
associated with NACA such as individual NACA Board Members; and inasmuch as the
plaintiffs are not even totally aware at this time of the exact number of
infringing domains purchased by NACA and the other co-conspirators, who have
admitted in publicly-broadcasted emails that they and NACA purchased “thousands
of domains”; plaintiffs respectfully request and reserve the right to amend,
after discovery, in order to add other defendants and to make further
allegations of wrongful action and wrongdoing which may come to light after
discovery.
WHEREFORE, plaintiffs, Southeast
Sanctions, Inc d/b/a Cameo Publishing Group (“CAMEO”) and The Association for
the Promotion of Campus Activities (“APCA”), demand judgment against
defendants, THE NATIONAL ASSOCIATION FOR CAMPUS ACTIVITIES, INC., ALAN DAVIS,
ADAM BRENTNALL, JON DOOLEY, GLENN FARR, MARK HALL, SONICBIDS CORPORATION, CAMPUS ENTERTAINMENT, LLC, and TRP MARKETING, INC., d/b/a TRP
SPORTS & ENTERTAINMENT MARKETING as follows:
i. Declaring
the illegality of the actions alleged hereinabove, including but not limited to
the defendants’ cybersquatting on domains which infringe on the plaintiffs’
respective service marks under federal law, including the ACPA;
ii. Statutory
damages of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per domain for
cybersquatting under the ACPA;
iii. Actual
damages in an amount of actual damages deemed appropriate by the trier of fact
on account of the wrongful actions taken against plaintiffs for trademark
infringement, unfair competition, and unfair trade practices;
iv. Treble
damages and attorney’s fees for violations of the South Carolina Unfair Trade
Practices laws;
v. Treble
damages and attorney’s fees for violations of the Lanham Act and for infringing
on the plaintiffs’ federally-registered marks;
vi. Special
damages and punitive damages against the defendants for Civil Conspiracy under
vii. After due
proceedings, a temporary restraining order and a permanent injunction enter
ordering that the wrongful actions, described hereinabove, are not repeated by
the defendants, and that the defendants immediately cease and desist from
purchasing and/or controlling and/or transferring and/or selling and/or
auctioning any infringing domains and that the defendants immediately
relinquish control of all infringing domains to the plaintiffs forthwith;
RESPECTFULLY
SUBMITTED BY:
______________________________
Adam S.
Lambert
Tel.
(504) 433-0289
Fax (504)
433-0840
Email: LSULawyer@aol.com
URL: http://www.Lambert-Law.com
Pro Hac Vice Counsel for APCA & CAMEO
AND
Law Offices of Noah M. Hicks
II, LLC
By: _____________________________
Noah M. “CHip” Hicks, II
Post
Office Box 7996
Tel.
(803) 708-4842
Fax
(803) 708-4844
Email
CHicks@NMHLawFirm.com
Local
Counsel for APCA & CAMEO
[1]
http://www.naca.org/NACA/Members/COOP/
[2] SonicBids calls NACA it’s “partner” on its publicly-posted
website. See SonicBids website: http://www.sonicbids.com/about/partners.asp. And, just as NACA links to SonicBids’ website from www.naca.org,
SonicBids links back to NACA’s website from its website
at www.sonicbids.com.
[4]
APCA sent notice to NACA via these means because NACA had always historically
refused to communicate with APCA employees at all and it was decided that an
open letter to the campus marketplace would be the only means by which APCA
could effectively ensure that NACA would receive the message. The decision was correct, as NACA did receive
the message immediately and responded the very next day via emails written by
defendants DAVIS and DOOLEY.
[5] http://www.naca.org/NR/rdonlyres/BFF32E01-B146-41EF-BEF8-DEE993ED9CE5/0/20082009Ad_Rates.pdf
[6] http://www.naca.org/NR/rdonlyres/BFF32E01-B146-41EF-BEF8-DEE993ED9CE5/0/20082009Ad_Rates.pdf
[7]
The entity “Campus Entertainment” was doing business under the name “Campus
Entertainment” and “The Verge Music Festival” for quite some time prior to
February 11, 2007. The conference was
being advertized as early as 2006 and NACA purchased the for-profit’s domain, www.campusentertainment.net,
with NACA funds in November of 2002.
However, according to the South Carolina Secretary of State, the entity
Campus Entertainment, LLC, was not formed until February 11, 2007. Plaintiff reserves the right to supplement
and amend if additional information is learned about another corporate entity
having been formed by NACA prior to February 11, 2007.