brahmas lawsuit

7/27/2019 Brahmas Lawsuit

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PLAINTIFFSORIGINAL COMPLAINT JURY DEMAND AND APPLICATION FORPRELIMINARY AND PERMANENT INJUNCTIVE RELIEF PAGE 1 OF 31

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

THE TEXAS BRAHMAS, L.P. dba TBHOCKEY, L.P. and CENTRALPARTNERS, LLC dba CENTRALHOCKEY LEAGUE

Civil Action No. _____________

Plaintiffs

v. ORIGINAL COMPLAINT

LONE STAR BRAHMAS, LLC, TEXAS

HOCKEY PARTNERS, LLC, NYTEX

SPORTS, LLC, TEXAS BRAHMAS

YOUTH HOCKEY ASSOCIATION,

FRANK TRAZERRA Individually,

SALVATORE TRAZERRA, Individually,NORTH AMERICAN HOCKEY LEAGUE,WESTERN STATES HOCKEY LEAGUE

Jury Trial Requested

Defendants

PLAINTIFFSORIGINALCOMPLAINT,JURY DEMAND AND APPLICATION

FORPRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

TO THE HONORABLE JUDGE OF SAID COURT:

The Texas Brahmas, L.P. dba TB Hockey, L.P. (hereinafter Texas Brahmas or

Plaintiff) and Central Partners, LLC dba Central Hockey League (hereinafter CHL or

Central Hockey League or Plaintiff)(collectively Plaintiffs), hereby file this their Original

Complaint, Jury Demand and Application for Preliminary and Permanent Injunctive Relief

(Original Complaint) supported by the Declarations of Michael Barack and Rodney Steven

(contained in a separately filed Appendix) and Plaintiffs Brief in Support of Their Motion for

Preliminary Injunction filed concurrently herewith, complaining of Lone Star Brahmas, LLC,

Texas Hockey Partners, LLC, NYTEX Sports, LLC, Texas Brahmas Youth Hockey Association,

Case 4:13-cv-00865-O Document 1 Filed 10/22/13 Page 1 of 31 PageID 1


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Frank Trazerra, Salvatore Trazerra, North American Hockey League and Western States Hockey

League (collectively Defendants), and upon personal knowledge as to their own acts and

circumstances, and upon information and belief as to the acts and circumstances of others, allege

as follows:

I.

THE PARTIES

1. Plaintiff The Texas Brahmas, L.P. dba TB Hockey, L.P. is a limited partnershipduly organized and existing under the laws of the State of Delaware, with its principal place of

business located at 2653 Juniper Lane, Grapevine, Texas 76051.

2. Plaintiff Central Partners, LLC dba the Central Hockey League is a Nevadalimited liability company with its principal place of business located at 6751 Sunset Blvd., Ste.

200, Glendale, Arizona 85305-3124

3. Upon information and belief, Defendant Lone Star Brahmas, LLC is a Texaslimited liability company with its registered office located at 3355 Bee Cave Road, Suite 307,

Austin Texas 78746. Lone Star Brahmas, LLC may be served with process through its registered

agent, Rivas Goldstein, LLP at 3355 Bee Cave Road, Suite 307, Austin Texas 78746 or wherever

it may be found.

4. Upon information and belief, Defendant Texas Hockey Partners, LLC is a Texaslimited liability company with its principal place of business located at 8851 Ice House Drive,

North Richland Hills, Texas 76180. Texas Hockey Partners, LLC may be served with process

through its registered agent, Frank Trazzera at 8851 Ice House Drive, North Richland Hills,

Texas 76180 or wherever it may be found.

5. Upon information and belief, Defendant NYTEX Sports, LLC is a Texas limitedliability company with its principal place of business located at 8851 Ice House Drive, North

Richland Hills, Texas 76180. NYTEX Sports, LLC may be served with process through its



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registered agent, Frank Trazzera at 804 Meandering Woods Dr., Keller, Texas 76248 or

wherever he may be found.

6. Upon information and belief Defendant Texas Brahmas Youth HockeyAssociation is a Texas nonprofit corporation with its principal place of business located at 8851

Ice House Drive, North Richland Hills, Texas 76180. Texas Brahmas Youth Hockey

Association may be served with process through its registered agent Frank Trazzera at 8851 Ice

House Drive, North Richland Hills, Texas 76180 or wherever he may be found.

7. Upon information and belief, Defendant Frank Trazzera is an individual citizen ofthe State of Texas who may be served at his primary place of business, 8851 Ice House Drive,

North Richland Hills, Texas 76180 or wherever he may be found.

8. Upon information and belief, Defendant Salvatore Trazzera is an individualcitizen of the State of New York who may be served at his primary place of business, 470

Woodbury Rd., Cold Spring Harbor, New York 11724 or wherever he may be found. Because

Salvatore Trazzera engages in business in this state but does not maintain a regular place of

business in this state or a designated agent for service of process, and because this suit arose out

of his business in this state, he may be served through the Texas Secretary of State, John Steen,

as his agent for service, at Secretary of State, Citations Unit, P.O. Box 12079, Austin, Texas

78711-2079, Travis County, Texas.

9. Upon information and belief, Defendant North American Hockey League, is aTexas nonprofit corporation with its principal place of business located at 2601 Ave. of the Stars,

Suite 400, Frisco, Texas 75034. Defendant North American Hockey League may be served with

process through its registered agent, Mark Frankenfeld at 2601 Ave. of the Stars, Suite 400,

Frisco, Texas 75034 or wherever it may be found.

10. Upon information and belief, Defendant Western States Hockey League, Inc. is aCalifornia corporation with its principal place of business located at 17602 17 th Street, Suite 102-



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241, Tustin California 92780. Defendant Western States Hockey League, Inc. may be served

with process through its registered agent, Ronald R. White at 17602 17 th Street, Suite 102-241,

Tustin California 92780 or wherever he may be found.

II.JURISDICTION AND VENUE

11. Plaintiff brings this action pursuant to the Lanham Act, 15 U.S.C. 1050, et seq.This Court has original jurisdiction pursuant to 15 U.S.C. 1121, 28 U.S.C. 1331 and 28 U.S.C.

1338, and has supplemental jurisdiction over all other claims asserted herein pursuant to 28

U.S.C. 1367 due to the fact that such claims are so related to the claims in the action within the

original jurisdiction that they form part of the same case or controversy.

12. Personal jurisdiction exists over Defendants Lone Star Brahmas, LLC, TexasHockey Partners, LLC and NYTEX Sports, LLC in that upon information and belief said

Defendants are Texas limited liability companies which conduct business in the State of Texas

and within the Northern District of Texas, including maintaining offices at 8851 Ice House

Drive, North Richland Hills, Texas 76180.

13. Personal jurisdiction exists over Defendant Texas Brahmas Youth HockeyAssociation in that upon information and belief said Defendant is a Texas nonprofit corporation

which conducts business in the State of Texas and within the Northern District of Texas,

including maintaining offices at 8851 Ice House Drive, North Richland Hills, Texas 76180.

14. Personal jurisdiction exists over Defendant Frank Trazzera in that he is anindividual resident of the State of Texas or otherwise regularly conducts business in the State of

Texas.

15. Personal jurisdiction exists over Defendant Salvatore Trazzera in that he hassufficient contacts with the forum as a result of business conducted within the State of Texas and

within the Northern District of Texas, including, upon information and belief, ownership and



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control of Defendants Lone Star Brahmas, LLC, Texas Hockey Partners, LLC and NYTEX

Sports, LLC.

16. Personal jurisdiction exists over Defendant North American Hockey League inthat upon information and belief it is a Texas nonprofit corporation which conducts business in

the State of Texas and within the Northern District of Texas, including maintaining offices at

2601 Ave. of the Stars, Suite 400, Frisco, Texas 75034.

17. Personal jurisdiction exists over Defendant Western States Hockey League in thatit has sufficient minimal contacts with the forum as a result of business conducted within the

State of Texas and within the Northern District of Texas.

18. Venue is proper in this Court under 28 U.S.C. 1391 because a substantial part ofthe events or omissions giving rise to this lawsuit occurred in this Judicial District and

Defendants are subject to personal jurisdiction within this Judicial District.

III.

THE PLAINTIFFS BUSINESS, THE BRAHMAS

TRADEMARKS AND PRODUCTS/ SERVICES

19. Since about 1999 Texas Brahmas, LP and/or its predecessors has been developingand providing high-quality hockey exhibitions and related merchandise. The Brahmas franchise

and products have been extensively advertised locally which advertising has led to wide

consumer recognition.

20. Texas Brahmas, LP has owned and operated a team in the Central Hockey Leagueand/or its predecessors since 1999 (the Brahmas Hockey Club). Central Partners, LLC dba

Central Hockey League (CHL or Central Hockey League) by reason of a license agreement

by and between Texas Brahmas, LP and the Central Hockey League, has rights in and to the

marks described herein. While the Brahmas Hockey Club is not fielding a team in the upcoming

season, Plaintiffs are currently actively seeking an appropriate venue for the Brahmas Hockey

Club and intend to return to play in the 2014-15 or 2015-2016 season.



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21. The Texas Brahmas, L.P. has expended substantial time, money and otherresources in developing, advertising and otherwise promoting the legally-protected trademarks,

trade dresses and design elements which they use on or in connection with the advertisement and

sale of their services and products. As a result, services and products bearing the herein

described marks are widely recognized and exclusively associated by consumers, the public, and

the trade as being high quality services and products sourced from Plaintiffs, and have acquired

strong secondary meaning.

22. Plaintiff has marketed and sold its Brahmas services and products throughout theUnited States. In connection with these efforts Plaintiff Texas Brahmas, LP owns and operates

an internet website under the domain name www.brahmas.com.

23. Texas Brahmas, LP is the owner of the federally registered mark TEXASBRAHMAS, Registration Number 3,517,233 for the goods/services Entertainment services,

namely, providing professional ice hockey exhibitions and other related sports exhibitions in

International Class 41 which was registered on October 14, 2008.

24. Texas Brahmas, LP is the owner of the federally registered mark FORT WORTHBRAHMAS, Registration Number 2,707,709 for the goods/services trading cards, posters,

magazines and books regarding hockey, postcards, calendars, wrapping paper, paper gift boxes,

paper stickers, paper napkins, paper towels, poster books, notepads, paper hats, greeting cards

and student planners in International Class 16 which was registered on April 15, 2003.

25. Texas Brahmas, LP is the owner of the federally registered mark FORT WORTHBRAHMAS, Registration Number 2,707,710 for the goods/services stuffed toy animals, hockey

pucks, hockey goals, hockey targets, hockey sticks, mini goalie masks, mini toy vehicles,

namely, model ice rink resurfacers, toy banks, board games and in-line skates in International

Class 28 which was registered on April 15, 2003.



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26. Texas Brahmas, LP also owns common law marks, including, among othersTEXAS BRAHMAS, FORT WORTH BRAHMAS, BRAHMAS, a stylized mark comprised of a

stylized bull over the stylized word BRAHMAS depicted as: , a stylized mark

comprised of a stylized bull with a hockey stick over the stylized word BRAHMAS with

FORT WORTH in a banner over the stylized bull with a hockey stick, depicted as:

, a stylized mark comprised of a stylized bull depicted as: and a

stylized mark comprised of the stylized word Texas with the upper portion of the T in

Texas forming bulls horns with the word BRAHMAS in a banner underneath the stylized

Texas depicted as: used in connection with ice hockey exhibitions and

hockey related products. (See Appendix in Support of Plaintiffs Motion/Application for

Preliminary Injunctive Relief [hereinafter Appx.] at p. 4-6, 10, and Appx. p. 25, 26, 27, 28,

29, 30, 31). The federally registered TEXAS BRAHMAS Registration Number 3,517,233,

FORT WORTH BRAHMAS, Registration Number 2,707,709, FORT WORTH BRAHMAS,

Registration Number 2,707,710 and the common law marks described herein are hereinafter

referred to collectively as the Brahmas Marks.

27. FORT WORTH BRAHMAS Registration Number 2,707,709 and FORTWORTH BRAHMAS Registration Number 2,707,710 (hereinafter referred to collectively as the

(FORT WORTH BRAHMAS Marks) have become incontestable and are conclusive evidence

of the validity of the FORT WORTH BRAHMAS Marks, the registration of the FORT WORTH



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BRAHMAS Marks, Plaintiffs ownership of the FORT WORTH BRAHMAS Marks, and of its

exclusive right to use the FORT WORTH BRAHMAS Marks in commerce on or in connection

with the goods and/or services specified in the registrations.

28. Defendants have no license, authority or other permission to use any of theBrahmas marks including the federally registered TEXAS BRAHMAS and FORT WORTH

BRAHMAS trademarks and/or the marks: TEXAS BRAHMAS and/or FORT WORTH

BRAHMAS and/or BRAHMAS and/or and/or and/or

and/or .

IV.

FACTUAL OVERVIEW AND DEFENDANTS UNLAWFUL CONDUCT

29. Defendants entire business model is predicated upon the unauthorized and willfulexploitation and infringement of the Brahmas Marks.

30. The fact that Defendants are using the Brahmas Marks with the intent to causeconfusion and/or to cause mistake and/or to deceive is demonstrated by, among other things,

Defendants relationship with PlaintiffTexas Brahmas, LP.

31. Defendant NYTEX Sports, LLC is a limited partner of Plaintiff Texas Brahmas,LP. Upon information and belief Defendants Lone Star Brahmas, LLC, Texas Hockey Partners,

LLC and NYTEX Sports, LLC are Texas limited liability companies owned and controlled by

Defendants Frank Trazzera and Salvatore Trazzera.



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32. Upon information and belief, Defendants Frank Trazzera and Salvatore Trazzeraare individuals who are and have been doing business in their individual and corporate capacity

and hold themselves out to the public as the owners ofand/or as the owners and/or operators of

or in concert with Defendants Lone Star Brahmas, LLC and/or Texas Hockey Partners, LLC

and/or NYTEX Sports, LLC, and are individually, contributorily and vicariously liable for the

infringing activities described herein.

33. Upon information and belief, at all relevant times, Defendants Frank Trazzeraand/or Salvatore Trazzera personally participated in and/or had the ability and right to supervise,

direct, and control the infringing activities of Defendants Lone Star Brahmas, LLC and/or Texas

Hockey Partners, LLC and/or NYTEX Sports, LLC and/or Texas Brahmas Youth Hockey

Association alleged herein and are individually, contributorily and vicariously liable for the

infringing activities described herein.

34. Upon information and belief, Defendants Frank Trazzera and Salvatore Trazzeraderived direct financial benefits from the infringing activities alleged herein and are individually,

contributorily and vicariously liable for the infringing activities described herein.

35. For the period from April 30, 2007 through May 31, 2008 NYTEX HockeyManagement, LLC, upon information and belief a Texas limited liability company owned

operated and controlled by Defendants NYTEX Sports, LLC, Frank Trazzerra and Salvatore

Trazzera managed the Brahmas Hockey Club pursuant to a management agreement by and

between Texas Brahmas, LP and NYTEX Hockey Management, LLC.

36. For several years the Brahmas Hockey Club played its home games at theNYTEX Sports Centre located at 8851 Ice House Dr. North Richland Hills, Texas 76180. Upon

information and belief, NYTEX Sports Centre is owned and operated by Defendant NYTEX

Sports, LLC.



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37. In connection with its ownership and operation of the Brahmas Hockey Club inthe Central Hockey League Plaintiff Texas Brahmas, LP by agreement had granted permission to

junior teams and/or programs to use the Brahmas name and logo (JuniorBrahmas Programs).

From 2001 through 2006 Plaintiff Texas Brahmas, LP by agreement granted the Cowtown

Amateur Hockey Association permission to use the Brahmas name and logo for its

youth/amateur hockey program. In 2007 the Junior Brahmas Programs continued at NYTEX

Sports Centre located at 8851 Ice House Dr. North Richland Hills, Texas 76180. Upon

information and belief, NYTEX Sports Centre is owned and operated by Defendant NYTEX

Sports, LLC. On or about 2008 the amateur hockey association at the NYTEX Sports Centre

was established as the Texas Brahmas Amateur Hockey Association, which association, upon

information and belief, is under the control of Defendants NYTEX Sports, LLC, Frank Trazerra

and Salvatore Trazerra. As with the Cowtown Amateur Hockey Association, the Texas Brahmas

Amateur Hockey Association was permitted, under the direction and control of Plaintiff Texas

Brahmas, LP to use the Brahmas name and logo in connection with the Junior Brahmas

Programs.

38. When it became apparent that Defendants were planning on and intending to ownand operate a team in Defendant North American Hockey League, Plaintiff Texas Brahmas, LP,

on or about July 27, 2013 informed Defendants NYTEX Sports, LLC, Frank Trazerra and

Salvatore Trazerra that they no longer had any permission or authorization to use any of the

Brahmas Marks and should cease and desist any and all use of any of the Brahmas Marks and

refrain from any further use of any of the Brahmas Marks.

39. Demand has been made upon Defendants that they cease and desist using any ofthe Brahmas Marks and/or marks confusingly similar to any ofthe Brahmas Marks.

40. Plaintiff Texas Brahmas, LP confidential proprietary information was and uponinformation and belief, remains on a server and several laptop computers/hard drives owned and



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controlled by Defendant NYTEX Sports, LLC. Specifically, financial information, season ticket

lists, sponsor lists, marketing materials, sponsorship proposals and contracts, vendor contracts

and Plaintiff Texas Brahmas, LPs Telemagic database(Proprietary Materials).

41. Plaintiff Texas Brahmas, LP has demanded that Defendant NYTEX Sports, LLCtransfer all such Proprietary Materials to Plaintiff Texas Brahmas, LP and that any electronic or

hard copies of any of Plaintiff Texas Brahmas, LPs Proprietary Materials in Defendants

possession be permanently deleted or destroyed and that Defendants not make any use of such

Proprietary Materials.

42.

Upon information and belief, in June of 2013 Defendant Texas Hockey Partners,

LLC was formed. In July of 2013 Defendant North American Hockey League announced that its

Texas Tornado membership had been sold to Texas Hockey Partners, LLC and will become the

Lone Star Brahmas. According to the NAHL press release Defendant Texas Hockey Partners,

LLC is owned by Defendants Frank Trazzera and Salvatore Trazzera.

43. Upon information and belief Defendants Lone Star Brahmas, LLC, Texas HockeyPartners, LLC, NYTEX Sports, LLC, Texas Brahmas Youth Hockey Association, Frank Trazerra

and Salvatore Trazerra are making use of the Texas Brahmas, LP Proprietary Materials.

44. Despite the fact that Defendants have no license, authority or other permission touse any ofthe Brahmas Marks and have no legitimate interest or rights regarding the use of any

of the Brahmas Marks, in furtherance of their business Defendants have begun to employ

numerous infringing marks, in particular TEXAS BRAHMAS LONE STAR BRAHMAS

JR. BRAHMAS JUNIOR BRAHMAS, , ,



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, , , and . Set

forth below is a comparison of the Brahmas Marks and the infringing marks being used by

Defendants:

Plaintiffs Marks Infringing Marks Used by Defendants

TEXAS BRAHMAS(Reg. No. 3,517,233)

TEXAS BRAHMAS

FORT WORTH BRAHMAS(Reg. No. 2,707,709)

FORT WORTH BRAHMAS(Reg. No. 2,707,710)

FORT WORTH BRAHMAS

BRAHMAS

TEXAS BRAHMAS

LONE STAR BRAHMAS



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See Appx. p. 11-14 at 22(a)(k).

45. Despite the fact that Defendants have no license, authority or other permission touse any ofthe Brahmas Marks and have no legitimate interest or rights regarding the use of any

of the Brahmas Marks, Defendants employ the domains

www.lonestarbrahmas.pointstreaksites.com, www.brahmaland.com, and www.jrbrahmas.com

which incorporate Plaintiffs federally registered trademarks as part of their scheme to divert

consumers seeking genuine Texas Brahmas products and/or services to their multiple

commercial websites where Defendants promote, market and sell their competing products and

services.

46. Upon information and belief Defendants have made use of and continue to makeuse of Plaintiff Texas Brahmas, LPs Proprietary Materials, including season ticket lists,

marketing information and sponsorship information in order to promote, market and sell their

competing products and/or services.

47. Defendants have no license, authority or other permission to use any of theBrahmas Marks including the federally registered TEXAS BRAHMAS and FORT WORTH

BRAHMAS trademarks and/or the marks: TEXAS BRAHMAS and/or FORT WORTH



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BRAHMAS and/or BRAHMAS and/or and/or

.

48. Defendants past history with Plaintiffs leaves no doubt that, with respect toconduct complained of herein, Defendants have acted knowingly, willfully, deliberately and in

bad faith. Defendants have intentionally sought to cause confusion, to cause mistake and/or to

deceive.

49. Defendants have been informed they have no express or implied license orauthority or permission to use the Brahmas Marks including the TEXAS BRAHMAS, FORT

WORTH BRAHMAS Marks and the stylized mark comprised of a stylized bull over

BRAHMAS. Multiple demands have been made upon Defendants to cease and desist from

using the Brahmas Marks and/or confusingly similar marks in any manner. Despite numerous

demands Defendants refuse to cease the use of the Brahmas Marks and/or marks confusingly

similar to the Brahmas Marks and continue their unlawful conduct and have been, and currently

are promoting and advertising their goods and/or services directly in the Tarrant County, Texas

area, including but not limited to the following:

a. Established a new webpage (www.lonestarbrahmas.pointstreaksites.com) whichprominently displays and uses infringing such as a stylized bull and the wording

Lone Star Brahmas, Lone Star Brahmas. The website contains links to the

Lone Star Brahmas facebook and twitter pages. See screenshot of Lonestar

Brahmas home page, www.lonestarbrahmas.pointstreaksites.com attached as

Exhibit 8 to Barack Declartion. Clicking on the TICKETS on the menu bar

opens a page where information regarding ticket pricing can be found and tickets



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can be purchased and a Season Ticket Order Form for LONE STAR BRAHMAS

HOCKEY CLUB can be downloaded. See Appx. p. 14 at 23(a).

b. A Twitter account ( https://twitter.com/lonestarbrahmas) which utilizes the marks

Lone Star Brahmas and . Also accessible from the twitter

account under Photos and videos are depictions of the team jerseys bearing the

stylized bull from Plaintiffs Marks and :

See Appx. p. 15 at 23(b).

c. A Facebook page (https://www.facebook.com/lonestarbrahmas) which utilizes

the marks Lone Star Brahmas and . The Facebook page also

links to the Lone Star Brahmas webpage. See Appx. p. 15 at 23(c) and Appx. p.

95 - printout of Lone Star Brahmas Facebook page,

https://www.facebook.com/lonestarbrahmas attached as Exhibit 35 to Barack

Declaration.

d. A webpage for Junior Brahmas/Texas Brahmas Youth Hockey Association(http://www.jrbrahmas.com) which utilizes the marks Junior Brahmas Texas

Brahmas Youth Hockey Association



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. See Appx. p. 16 at 23(d). Clicking on

Forms under the Related Pages menu on the left side of the page opens a

Document Finder page. (See Id. - screenshot of Document Finder page from

the Junior Brahmas webpage attached as Exhibit 36 to Barack Declaration). The

first linked pdf document is Midget Minor Tryout Registration which when

clicked opens a pdf Jr Brahmas Try Out form which includes the Plaintiffs mark

. See Appx. p. 16 at 23(d). The second linked pdf document is

Scholarship Application & Guidelines which when clicked opens the pdf

document which includes the mark which is simply Plaintiffs

mark with purple replacing the blue used by Plaintiffs. (See

Appx. p. 16 at 23(d)). The third linked pdf document is Brahmas Billet

Handbook which when clicked opens the pdfdocument which includes Texas

Brahmas and discusses the mission and purpose of the Texas Brahmas

Hockey Club. (See Appx. p. 16 at 23(d)).

e. The NYTEX Sports webpage (http://www.nytexsports.com) which prominentlystates on the top of the homepage Home of Texas Brahmas Hockey under

NYTEX SPORTS CENTRE and below which are displayed the marks

and . (See Appx. p. 16-17 at 23(e)).

Clicking on the Ice Hockey Hockey Programs menu leads to a page with

links to the Lone Star Brahmas webpage



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(www.lonestarbrahmas.pointstreaksites.com), the Jr. Brahmas webpage

(http://www.jrbrahmas.com).

f. The North American Hockey League webpage (http://nahl.com) which lists theLone Star Brahmas as one of the teams in the league. (See Appx. p. 17 at 23(f)).

Clicking either on the Lone Star Brahmas logo or selecting the Lone Star

Brahmas from the Teams drop down menu leads to a page for Lone Star

Brahmas displaying the mark: , providing contact information

and providing a link (lonestarbrahmas.com) which opens the Lone Star

Brahmas website (www.lonestarbrahmas.pointstreaksites.com). (See Appx. p. 17

at 23(f)). The Lone Star Brahmas team page on the North American Hockey

League website also links to Recent News articles: Texas Hockey Partners

purchase and relocate Texas Tornado membership, Wildfong named head coach

of the NAHLs Lone Star Brahmas, Brahmas to select team this weekend, 24

teams in 24 days: Lone Star Brahmas. Brahmas split pair of weekend

exhibition games with Odessa. (See Appx. p. 17-18 at 23(f)).

g. The Western States Hockey Leagues webpage (http://wshl.org) which on itshomepage references in its League Headlines, the Texas Brahmas (See Appx.

p. 18 at 23(g) - screenshot of Western States Hockey League homepage attached

as Exhibit 26 to Barack Declaration). Clicking on the Texas Brahmas 2013-

2014 Season Preview link on the Western States Hockey League homepage

opens another page, Texas Brahmas 2013-2014 Season Preview

(http://wshl.org/2013/08/30/texas-brahmas-2013-2014-season-preview/) which

includes among other things, includes numerous references to the Texas

Brahmas and Brahmas and references the fact that the Texas Brahmas are

now sharing their facility with a Tier II North American Hockey League team by

the same name (See Appx. p. 18 at 23(g)).



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V.

CAUSES OF ACTION

COUNT ONE

Trademark InfringementLanham Act 32(a), 15 U.S.C. 1114

50. Plaintiffs hereby reallege and hereby incorporate by reference the allegations ofparagraphs 1 - 49 of this Original Complaint as if fully set forth herein.

51. This claim for relief is brought pursuant to 32 of the Federal Lanham Act, 15U.S.C. 1114(1) for infringement.

52. Defendants use ofthe Brahmas Marks, including the Brahmas Marks in domainnames which are identical to and/or confusingly similar to the Brahmas Marks, use of the

Brahmas Marks and/or marks confusingly similar to the Brahmas Marks in association with the

products and/or services Defendants sell constitutes the reproduction, counterfeiting, copying or

colorable imitating of a registered mark and application of such reproduction, counterfeit, copy

or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements

intended to be used in commerce upon or in connection with the sale, offering for sale,

distribution, or advertising of goods on or in connection with which is likely to cause confusion,

or to cause mistake or to deceive.

53. Defendants, upon information and belief, have committed and are committingthese acts with knowledge and intent to cause confusion, to cause mistake and/or to deceive and

with knowledge that such imitation is intended to be used to cause confusion, or to cause

mistake, or to deceive.

54. Upon information and belief, Defendants unlawful conduct as set forth herein hasbeen and continues to be willful, deliberate and in bad faith.

55. Defendants, by virtue of their actions described above, have caused and are likelyto continue causing Plaintiffs to suffer irreparable injury. Remedies available at law, such as

monetary damages, are inadequate to compensate for that injury. Considering the balance of



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hardships between Plaintiffs and Defendants, a remedy in equity is warranted. Public interest

would not be disserved by a preliminary and permanent injunction.

56. Pursuant to 15 U.S.C. 1117, Plaintiffs are also entitled to recover (i) Defendantsprofits, (ii) Plaintiffs ascertainable damages, (iii) Plaintiffs costs of suit, and (iv) treble damages

according to law. Defendants willful use of the Brahmas Marks is without excuse or

justification and renders this an exceptional case and entitles Plaintiffs to their reasonable

attorneys fees.

COUNT TWO

False Designation of Origin /False Descriptions

Lanham Act 43(a)&(b); 15 U.S.C. 1125(a)(1)(A)&(B)


58. This claim for relief is brought pursuant to 43(a) & (b) of the Federal LanhamAct, 15 U.S.C. 1125(a)(1)(A) & (B) for false designation of origin and false descriptions.

59. Defendants promotion, advertising, distribution, sale, and/or offering for sale oftheir products and/or services as described herein, and in particular their products and/or services

which are directly competitive with Plaintiffs products and/or services through and/or linked to

websites whose domain names incorporate the Brahmas Marks and/or are confusingly similar to

the BrahmasMarks together with Defendants unauthorized use of the Brahmas Marks and/or

marks confusingly similar to the Brahmas Marks is intended, and is likely to confuse, mislead,

or deceive consumers, the public, and the trade as to the origin, source, sponsorship, or affiliation

of the Defendants products and/or services, and is intended, and is likely to cause such parties to

believe in error that the Defendants products and/or services have been authorized, sponsored,

approved, endorsed or licensed by Plaintiffs, or that Defendants are in some way affiliated with

Plaintiffs.



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60. Furthermore, Defendants, in promoting, advertising, distributing, selling andoffering for sale their competing products and/or services as described herein, have been and are

also misrepresenting the nature, characteristics, and quality of their own products and/or services

by, among other things, falsely and fraudulently implying approval, association or sponsorship

by Plaintiffs thereby deceiving the general public and the consumers.

61. The foregoing acts of Defendants constitute a false designation of origin, andfalse and misleading descriptions and representations of fact, all in violation of 43(a) & (b) of

the Federal Lanham Act, 15 U.S.C. 1125(a)(1)(A) & (B).

62.

Upon information and belief, Defendants unlawful conduct as set forth herein has

been and continues to be willful, deliberate and in bad faith.




would not be disserved by a preliminary and permanent injunction.

64. Pursuant to 15 U.S.C. 1117, Plaintiffs are also entitled to recover (i) Defendantsprofits, (ii) Plaintiffs ascertainable damages, (iii) Plaintiffs costs of suit, and (iv) treble damages

according to law. Defendants willful use of the Brahmas Marks is without excuse or

justification and renders this an exceptional case and entitles Plaintiffs to their reasonable

attorneys fees.

COUNT THREE

Cyber Piracy Pursuant to Lanham Act - 43(d), 15 U.S.C. 1125(d)



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66. Defendants have registered, trafficked in, and/or used a domain name that wasdistinctive and/or famous at the time of registration of the domain name, and was identical to,

confusingly similar to, or dilutive ofthe Brahmas Marks

67. The lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.comdomain names that Defendants have registered and/or use incorporate the Brahmas Marks and

are confusingly similar to the Brahmas Marks which were distinctive and/or famous at the time

Defendants registered the lonestarbrahmaspointstreaksites.com, brahmaland.com, and

jrbrahmas.com domain names.

68. Defendants have registered and/or use the lonestarbrahmas.com, brahmaland.com,andjrbrahmas.com domain names with a bad faith intent to profit from Plaintiffs Marks.

69. By registering and/or using the lonestarbrahmas.pointstreaksites.com,brahmaland.com, and jrbrahmas.com domain names, Defendants intended to divert consumers

away from Plaintiffs and legitimate authorized distributors of Plaintiffs products and/or services

and divert those consumers to Defendants websites for commercial gain by creating a likelihood

of confusion as to the source, sponsorship, affiliation or endorsement ofDefendants websites in

a manner that harms the goodwill represented by the Brahmas Marks.

70. Plaintiffs have no adequate remedy at law that will compensate for the continuedand irreparable harm that will be caused if Defendants acts are allowed to contin ue, and are thus

entitled to both a preliminary and permanent injunction.

71. Pursuant to 15 U.S.C. 1125(d)(1)(C), the Court should order the transfer of theregistration of the domain names lonestarbrahmas.pointstreaksites.com, brahmaland.com, and

jrbrahmas.com to Plaintiffs. Alternatively, pursuant to 15 U.S.C. 1125(d)(1)(C), the Court



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should order the forfeiture or cancellation of the domain names

lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com.

72. Plaintiffs are entitled to an injunction preventing Defendants from using orholding or controlling the internet domain names lonestarbrahmas.com, brahmaland.com, and

jrbrahmas.com to anyone but Plaintiffs and ordering Defendants to transfer the domain names

lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com and any other

domain names Defendants have registered or caused to be registered or which Defendants

control containing any ofthe Brahmas Marks to Plaintiffs.

73.

Pursuant to 15 U.S.C. 1117(a) and 15 U.S.C. 1125(d)(1), Plaintiffs are entitled

to damages and Defendants profits with respect to the registration and maintenance of the

domain names lonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com and

any other domain names Defendants have registered or caused to be registered or which

Defendants control containing any ofthe Brahmas Marks.

74. As an alternative to its actual damages, Plaintiffs are entitled to recover statutorydamages in an amount up $300,000.00 and not less than $3,000.00 due to Defend ants

registration and use of the domain names lonestarbrahmas.com, brahmaland.com, and

jrbrahmas.com as well as Plaintiffs attorneys fees and costs.

COUNT FOURCommon Law Trademark Infringement


76. Plaintiffs own all rights, title and interest in and to the Brahmas Marks, includingall common law rights in such marks.

77. Defendants, without authorization or permission from Plaintiffs have used and arecontinuing to use marks that are identical to and/or confusingly similar to the Brahmas Marks.



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78. Defendants unauthorized use of the Brahmas Marks and/or marks confusinglysimilar to the Brahmas Marks is intended, and is likely to confuse, mislead, or deceive

consumers, the public, and the trade as to the origin, source, sponsorship, or affiliation of the

Defendants products and/or services, and is intended, and is likely to cause such parties to

believe in error that the Defendants products and/or services have been authorized, sponsored,

approved, endorsed or licensed by Plaintiffs, or that Defendants are in some way affiliated with

Plaintiffs.

79. Defendants, upon information and belief, have committed and are committingthese acts with knowledge and intent to cause confusion, to cause mistake and/or to deceive and

with knowledge that such imitation is intended to be used to cause confusion, or to cause

mistake, or to deceive.

80. Upon information andbelief, Defendants unlawful conduct as set forth herein hasbeen and continues to be willful, deliberate and in bad faith.




would not be disserved by a permanent injunction.

82. Plaintiffs are also entitled to recover (i) Defendants profits, (ii) Plaintiffsascertainable damages, (iii) Plaintiffs costs of suit, and (iv) exemplary damages according to

law.

COUNT FIVE

Misappropriation and Unfair Competition



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84. The foregoing acts of Defendants permit Defendants to use and benefit from thegoodwill and reputation earned by Plaintiffs and obtain a ready customer acceptance of

Defendants products and/or services, and constitutes unfair competition, pawning off, and

misappropriation in violation of Texas common law, for which Plaintiffs are entitled to recover

any and all remedies provided by such common law.

85. Upon information and belief, Defendants have made and will continue to makeprofits and gains to which they are not entitled.

86. Upon information and belief, Defendants intend to continue their infringing actsunless restrained by the Court.

87. Defendants acts have damaged and will continue to damage Plaintiffs andPlaintiffs have no adequate remedy at law.

COUNT SIX

Unjust Enrichment


89. By reason of the foregoing, Defendants have unjustly enriched themselves andcontinue to do so, in an unknown amount.

90. Plaintiffs are entitled to just compensation (including restitution of benefitsunjustly received) under the common law of the State of Texas.

VI.

APPLICATION FOR PRELIMINARY INJUNCTION

AND PERMANENT INJUNCTION



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92. Plaintiffs seek a preliminary injunction pursuant to Federal Rule of CivilProcedure 65 and 15 U.S.C. 1116 to enjoin Defendants their officers, agents, servants,

employees, attorneys, confederates, and all persons acting for, with, by, through, under or in

active concert and participation with them from using any of the Brahmas Marks and

Proprietary Materials.

93. As a direct and proximate result of Defendants unauthorized activities asdescribed herein Plaintiffs have suffered and will continue to suffer immediate and irreparable

harm through the loss of goodwill, business opportunities and protection of the Brahmas Hockey

Club franchise and business. The extent of the infringement by Defendants cannot be accurately

measured in dollars and cents but the actual damage to Plaintiffs and the Brahmas Marks is

substantial.

94. Furthermore, there is a substantial likelihood that Plaintiffs will prevail on themerits. Defendants have no license, authority or other permission to use any of the Brahmas

Marks, including the federally registered TEXAS BRAHMAS and FORT WORTH BRAHMAS

trademarks and/or the marks TEXAS BRAHMAS, and/or FORT WORTH BRAHMAS and/or

BRAHMAS and/or and/or and/or and their

actions to date, especially their continued use of the Brahmas Marks and/or marks confusingly

similar to the Brahmas Marks and Plaintiff Texas Brahmas, LPs Proprietary Materials despite

notice of the unlawfulness of their conduct constitutes intentional violations of the Lanham Act

and Texas statutory and common law.



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95. If the Court does not grant a preliminary injunction, Defendants will continuetheir unlawful activities which infringe upon Plaintiffs protected intellectual property. Plaintiffs

will continue to suffer irreparable injury if the Court does not enjoin Defendants from the

unauthorized use of the Brahmas Marks and/or marks confusingly similar to the Brahmas

Marks and Plaintiff Texas Brahmas, LPs Proprietary Materials because actual confusion in the

market is occurring and will continue to occur.

96. Defendants will not suffer undue hardship or loss as a result of the issuance of apreliminary injunction. Defendants can simply conduct their business without the use of the

Brahmas Marks and/or marks confusingly similar to the Brahmas Marks and Plaintiff Texas

Brahmas, LPs Proprietary Materials.

97. Issuance of a preliminary injunction would not adversely affect the public interestbecause it will eliminate the confusion that exists in the marketplace and minimize future

confusion.

98. Plaintiffs ask the Court to set its application for preliminary injunction for hearingat the earliest possible time and after hearing the request issue a preliminary injunction against

the Defendants in the manner specified below.

99. Further, Plaintiffs ask the Court to set its application for permanent injunctiverelief for a full trial on the issues in this application and after the trial to issue a permanent

injunction against the Defendants in the manner specified below.

100. Plaintiffs request that the Court find that no bond is necessary for facilitating theinjunctive relief requested herein.

VII.

CONDITIONS PRECEDENT



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101. All conditions precedent have been performed or have occurred or have beenwaived.

VIII.

JURY DEMAND

102. In accordance with Federal Rules of Civil Procedure 38 and 39, Plaintiffs asserttheir right under the Seventh Amendment to the United States Constitution and demands a trial

by jury on all issues so triable.

PRAYER FOR RELIEF

Plaintiffs The Texas Brahmas, L.P. and Central Hockey Partners, LLC dba the Central

Hockey League respectfully request that judgment be entered in their favor on all claims against

Defendants, and that the Court enter an order containing the following relief:

1. That Defendants, their officers, agents, servants, employees, attorneys,confederates, and all persons acting for, with, by, through, under or in active concert and

participation with them, and each of them who receives notice directly or otherwise of such

injunctions, be temporarily, preliminarily and permanently enjoined and restrained from:

a. using any of the Brahmas Marks, including the marks: TEXAS BRAHMAS,Reg. No. 3,517,233; FORT WORTH BRAHMAS, Reg. Nos. 2,707,709; FORT

WORTH BRAHMAS, Reg. No. 2,707,710; TEXAS BRAHMAS; FORT

WORTH BRAHMAS; BRAHMAS; ; ;

and/or or any reproductions, counterfeit copy or



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colorable imitation thereof or any mark confusingly similar thereto in any manner

in connection with the distribution, advertising, offering for sale, or sale of any

product and/or service not authorized by Plaintiffs to be distributed, advertised,

offered and/or sold in connection with any ofthe Brahmas Marks;

b. committing any acts calculated to cause consumers to believe that Defendantsproducts and/or services are those sold under the authorization, control or

supervision of Plaintiffs, or sponsored or approved by, or connected or associated

with Plaintiffs;

c.

further infringing the Brahmas Marks and damaging Plaintiffs goodwill and/or

engaging in any activity that will cause the distinctiveness of any of the Brahmas

Marks to be diluted;

d. engaging in any other activity constituting unfair competition with Plaintiffs oracts and practices that deceive consumers, the public, and/or trade including

without limitation the use of any of the Brahmas Marks and/or any

reproductions, counterfeit copy or colorable imitation thereof or any mark

confusingly similar thereto and/or Plaintiff Texas Brahmas, LPs Proprietary

Materials or otherwise competing unfairly with Plaintiffs in any manner;

e. shipping, delivering, holding for sale, transferring or otherwise moving, storing,distributing, returning, or otherwise disposing of, in any manner, products or

inventory not manufactured by or for Plaintiffs, nor authorized by Plaintiffs to be

sold or offered for sale, and which bear any of the Brahmas Marks or any

reproductions, counterfeit copy or colorable imitation thereof;

f. using any of the Brahmas Marks and/or any reproductions, counterfeit copy orcolorable imitation thereof or any mark confusingly similar thereto and/or



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Plaintiff Texas Brahmas, LPs Proprietary Materials in any way or manner to

open, operate, support, or maintain any hockey team or organization;

g. utilizing advertising, promotional or marketing materials (including vianewspapers, magazines, newsletters, the internet, television, radio and any other

mediums), websites, blogs, online links to other websites, direct mailings and/or

emailing, Twitter accounts, Facebook pages or business cards (collectively

Promotional Materials) that in any way or manner indicate to the public that

any of the Defendants uses of any of the Brahmas Marks and/or any

reproductions, counterfeit copy or colorable imitation thereof or any mark

confusingly similar thereto and/or Plaintiff Texas Brahmas, LPs Proprietary

Materials is/are licensed, authorized, endorsed and/or permitted or that any of the

Defendants is in some way affiliated with, associated with and/or sponsored by

Plaintiffs;

h. using, linking, transferring, selling, exercising control over or otherwise owningthe infringing domain names lonestarbrahmas.com, brahmaland.com, and

jrbrahmas.com;

i. registering, using and/or trafficking in any other domain names that incorporate,in whole or in part, whether alone or in combination with other terms any of the

Brahmas Marks and/or uses names, words, designations or other symbols

confusingly similar to any ofthe Brahmas Marks and/or registering, using and/or

trafficking in any other domain names that incorporate, in whole or in part,

whether alone or in combination with other terms Brahmas;

j. transferring to anyone other than Plaintiffs the domain nameslonestarbrahmas.pointstreaksites.com, brahmaland.com, and jrbrahmas.com

and/or any other domain names that incorporates, in whole or in part, any of the



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Brahmas Marks and/or use names, words, designations or other symbols

confusingly similar to any ofthe Brahmas Marks;

k. effecting assignments or transfers, forming new entities or associations orutilizing any other device for the purpose of circumventing or otherwise avoiding

the prohibitions set forth in any judgment or order in this action; and

l. instructing, assisting, aiding, or abetting any other person or business entity inengaging in or performing any of the activities referred to in subparagraphs (a)

through (k) above.

2.

An Order directing each of the Defendants, within thirty (30) days after the entry

and service upon Defendants of a preliminary injunction, to file with the Court and serve upon

Plaintiffs a written report under oath setting forth in detail the manner and form in which each of

the Defendants have complied with the provisions of the preliminary injunction;

3. That Defendants, their officers, agents, servants, employees, attorneys,confederates, and all persons acting for, with, by, through, under or in active concert and

participation with them deliver up and destroy all labels, signs, prints, packages, wrappers,

receptacles and advertisements in their possession bearing any of the Brahmas Marks or any

reproductions, counterfeit copy or colorable imitation thereof or any mark confusingly similar

thereto;

4. That Defendants account for and pay to Plaintiffs all profits realized byDefendants by reason of Defendants unlawful acts herein alleged and that the amount of

damages for infringement of the Brahmas Marks be increased by a sum not exceeding three

times the amount thereof as provided by law;

5. For an award of Plaintiffs damages, statutory damages, including statutorydamages of in an amount up to $300,000.00 and not less than $3,000.00 pursuant to the

Anticybersquatting Consumer Protection Act, and other damages arising out of Defendants acts.



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6. For an award to Plaintiffs of their ascertainable damages, costs, and attorneysfees;

7. Such other and further relief to which Plaintiffs may show themselves to be justlyentitled to, such other and further relief as equity may require and/or that this Court may

determine to be just and proper.

Respectfully submitted,

/s/ David J. PelsDavid J. PelsState Bar No. 15732875

Paul F. GianniState Bar No. 00784124

Shannon, Gracey, Ratliff & Miller, L.L.P.777 Main Street, Suite 3800Fort Worth, Texas 76102Telephone: (817) 336-9333Facsimile: (817) [email protected]@shannongracey.com

ATTORNEYS FOR PLAINTIFFS

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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