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FIRST AMENDED THIRD PARTY COMPLAINT1
UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COMMODORES ENTERTAINMENTCORPORATION,
CASE NO. 6:14-cv-01335-RBD-GJKPlaintiff/Counter Defendant
v.
THOMAS McCLARY, and FIFTH AVENUEENTERTAINMENT, LLC,
Defendants/Counterclaimants. _______________________________________________/THOMAS McCLARY, and FIFTH AVENUEENTERTAINMENT, LLC,
Third Party Plaintiffs,
v.
COMMODORES ENTERTAINMENT CORP.,A NEVADA CORPORATION,COMMODORE ENTERTAINMENT CORP.,DAVID FISH, AN INDIVIDUAL, WILLIAM KING,AN INDIVIDUAL, WALTER ORANGE,AN INDIVIDUAL, SAL MICAELS AN INDIVIDUAL,PYRAMID ENTERTAINMENT GROUP, INC.,A NEW YORK CORPORATION, DOES 1-100,
Third Party Defendants. _______________________________________________/
DEFENDANTS THOMAS MCCLARY AND FIFTH AVENUE ENTERTAINMENT,LLCS FIRST AMENDED THIRD PARTY COMPLAINT AND
DEMAND FOR JURY TRIAL
Third Party Plaintiffs Thomas McClary and Fifth Avenue Entertainment, LLC, a Florida
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Limited Liability Company, allege as follows:
JURY DEMAND
1. Defendants//Counterclaimants and Third Party Plaintiffs Thomas McClary and Fifth
Avenue Entertainment, LLC hereby demand a jury in this action.
PARTIES
2. Third Party Plaintiff, Thomas McClary is an individual who at all times relevant hereto
was a resident of Orlando, Florida.
3. Third Party Plaintiff, Fifth Avenue Entertainment, LLC is a limited liability company
formed under the laws of the State of Florida, with its principle place of business locatedin Orlando, Florida.
4. Fifth Avenue Entertainment, LLC is a management company that manages booking and
touring for The Commodores featuring Thomas McClary and the artist Thomas
McClary.
5. The Plaintiff in this matter is Commodores Entertainment Corporation. Upon
information and belief, Plaintiff Commodores Entertainment Corporation is not a
corporation formed under the laws of any state.
6. Third Party Defendant, Commodores Entertainment Corp. is a Nevada Corporation doing
business throughout the United States, including Florida.
7. The Secretary of State of Nevada identifies the Third Party Defendant Commodores
Entertainment Corp . as an active domestic corporation. Commodores Entertainment
Corp. is a close corporation.
8. Third Party defendant Commodore Entertainment Corp. is a putative entity, origin
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unknown, which is represented to the United States Patent and Trademark Office as a
Nevada Corporation.
9. Third Party Defendant David Fish is an individual who is identified on the Nevada
Secretary of State business portal as the resident agent for Commodores Entertainment
Corp. Therefore, upon information and belief, Mr. Fish is a resident of Clark County,
Nevada. The conduct alleged herein was expressly aimed at Thomas McClary and Fifth
Avenue Entertainme nt, LLCs business in Florida and ability to conduct business through
the United States and the world, and caused harm, the brunt of which is suffered, and
which the third party defendant knows is likely to be suffered, in Florida, ThomasMcClary and Fifth Avenue Entertainment, LLCs home state.
10. Third Party Defendant William King is an individual who, at all times relevant hereto,
was a resident of Atlanta, Georgia. The conduct alleged herein was expressly aimed at
Thomas McClary and Fifth Avenue Entertai nment, LLCs business in Florida and ability
to conduct business through the United States and the world, and caused harm, the brunt
of which is suffered, and which the third party defendant knows is likely to be suffered,
in Florida, Thomas McClary and Fi fth Avenue Entertainment, LLCs home state.
11. Third Party Defendant Walter Orange is an individual who, at all times relevant hereto,
was a resident of Coral Springs, Florida. The conduct alleged herein was expressly
aimed at Thomas McClary and Fifth Avenu e Entertainment, LLCs business in Florida
and ability to conduct business through the United States and the world, and caused harm,
the brunt of which is suffered, and which the third party defendant knows is likely to be
suffered, in Florida, Thomas McCl ary and Fifth Avenue Entertainment, LLCs home
state.
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12. Third Party Defendant Sal Micaels is an individual who, at all times relevant hereto, was
a resident of New York, New York. Mr. Micaels is the owner and CEO of Pyramid
Entertainment Group, Inc. The conduct alleged herein was expressly aimed at Thomas
McClary and Fifth Avenue Entertainment, LLCs business in Florida and ability to
conduct business through the United States and the world, and caused harm, the brunt of
which is suffered, and which the third party defendant knows is likely to be suffered, in
Florida, Thomas McClary and Fifth Avenue Entertainment, LLCs home state.
13. Third Party Defendant Pyramid Entertainment Group, Inc. (Pyramid Entertainment ) is
a New York Corporation doing business in New York, the United States and the world.Pyramid Entertainment Group is an international talent booking agency. Pyramid
provides musical talent to open promotion concert events, corporate/private events,
casinos, fairs, festivals and more. Upon information and belief, Pyramid Entertainment
Group, Inc. is the booking agent for THE COMMODORES.
14. Third Party Defendants, Does 1-10, at all times relevant hereto were involved in the
misconduct which is alleged against the other defendants in this complaint. At such time
as the true names and identities of the Doe Defendants become known, Plaintiffs will
seek leave of this Court to amend this complaint alleging them as Defendants.
15. Unless specifically identified herein, the claims are asserted by both Third Party Plaintiffs
against all Third Party Defendants.
INTRODUCTORY ALLEGATIONS
Origin and success of The Commodores
16. Third Party Plaintiff, Thomas McClary co-founded a musical band in 1968 along with
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Lionel Richie. The band took the name The Commodores in 1968.
17. The individual members of the group began using the Commodores name and mark in
commerce in 1968.
18. The members of the group as of September, 1969 were: Lionel Richie, Thomas McClary,
Walter Orange, Ronald LaPread, Milan Williams, and William King.
19. Upon information and belief, since the bands formation in 1968, each member had equal
ownership in the trademarks. As of 2014, Mr. McClary and Mr. LaPread have never sold,
assigned, abandoned or otherwise relinquished their individual ownership interests in the
Commodores trademark . Thomas McClary has no information as to whether any of theremaining members of the Commodores assigned, sold, abandoned, relinquished or
otherwise discontinued his ownership in the Commodores mark.
20. The Commodores experienced its greatest success in the 1970's, due in part to the
substantial contribution of time and talent by all members of the group including Mr.
McClary.
21. From 1973-1982, James Carmichael, produced and co-arranged thirteen of The
Commodores albums, beginning with the album Machine Gun and including
Commodores 13 which was released in approximately 1982 or 1983. The Commodores
biggest hits, success and fame was during the 1970's and early 1980's.
22. In 1982, lead vocalist Lionel Richie left the Commodores to pursue a solo career.
23. In 1984, Mr. McClary stopped performing with The Commodores. Mr. McClary later
rejoined The Commodores for several live performances which are detailed below.
Mr. McClarys continued use of The Commodores mark
24. When Mr. McClary stopped performing with The Commodores in 1984, he went to
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Orlando where he continued to perform as The Co-Founder of The Commodores,
Thomas McClary . Mr. McClarys performances included performances for numerous
churches and charities, pe rforming The Commodores hit song Jesus Is Love among
other well known Commodores songs. McClary further performed for Shepherds
Hope a nonprofit medical facility whose fund -raising was spearheaded by a well known
former coach for the Orlando Magic, e very year as The Commodores featuring Thomas
McClary since 2001.
25. Mr. McClary is a core member of The Commodores as inducted in the Rock and Roll
Hall of Fame in 2003.26. Mr. McClary has appeared with The Commodores at several performances during 2006 -
2013.
27. Mr. McClary performed live with The Commodores on July 16 and 17, 2010 in
Bettendorf, Iowa and Santa Fe, New Mexico.
28. On June 23-24, 2010, David Fish sent an email to Mr. McClary confirming Mr.
McClarys participation in the live performances on July 16 and 17, 2010.
29. On August 7, 2010, David Fish sent Thomas McClary an e-mail pertaining to a proposal
to record a song that Mr. McClary had written, America.
30. On November 13, 2010, Thomas McClary, Ronald LaPread, J.D. Nicholas, Walter
Orange and David Fish met in Atmore, Alabama to discuss putting together a new
Commodore album of original songs with Mr. McClary, Mr. LaPread, Mr. King, Mr.
Orange, and Mr. Nicholas.
31. On December 8, 2010, David Fish sent an email to Ronald LaPread and Thomas McClary
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soliciting their help for original songs to start the recording process of a new album and
to reunite the original five Commodores in hope of getting Lionel Richie to eventually
join.
32. Shortly after the November 13, 2010 meeting, the group went to Mr. McCl arys home
and recording studio for a recording session. William King, James Carmichael, Walter
Orange, J.D. Nicholas, Ronald LaPread, David Fish and Thomas McCarthy were present.
33. On July 6, 2011 and Friday, July 8, 2011, William King and David Fish contacted Mr.
McClary regarding organizing a conference call to vote on whether they would use the
auditor, Greg McBowman, who Mr. McClary recommended to lead an audit of theCommodores record label Motown/Universal Music.
34. David Fish continued to correspond in group e-mails with Thomas McClary, Ronald
LaPread, Walter Orange, William King, J.D. Nicholas, and William King in 2012.
35. Since 1975, Mr. McClary has continually received quarterly royalty payments for his
membership in The Commodores.
The Commodores entities
36. In 1978, the members of the band formed a general partnership. By that time, they had
continuously used the name Commodores for over ten years, and developed substantial
goodwill. Each of the individual members had equal rights and ownership in the
Commodores name, common law trademark and goodwill.
37. The term of the partnership has expired.
38. On or about 1978, articles of incorporation were filed with the Nevada Secretary of State
establishing the Nevada Corporation, Commodores Entertainment Corp..
39. On or about 1977, a New York Corporation Commodores Merchandising Corporation
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was formed in New York State.
40. On or about 1979, the corporation Commodores Fan Club, Inc. was formed in New
York State.
41. On or about 1979, a corporation Commodores Entertainment Publishing Corp. was
formed in New York State.
42. On or about 1976, the corporations, Commodores Merchandising Corporation (a New
York corporation), Commodores Entertainment Publishing Corp. (A New York
corporation), and Commodores Fan Club, Inc. (a New York corporation) were merged
into the Nevada corporation Commodores Entertainment Corp.43. Upon information and belief, the shareholders in Commodores Entertainment Corp.
included Lionel Richie, Thomas McClary, Walter Orange, Ronald LaPread, Milan
Williams, and William King.
44. Mr. McClary and Mr. LaPread never sold, transferred or otherwise relinquished their
shares in Commodores Entertainment Corp. Mr. McClary has no knowledge as to
whether any other shareholders ever sold, transferred or otherwise relinquished his shares
in Commodores Entertainment Corp.
45. Mr. McClary remains a shareholder in Commodores Entertainment Corp.
46. Upon information and belief, none of the members of the band transferred their
individual common law ownership interests in the trademark or their interest in the good
will of The Commodores to the Partnership or any of the Commodores corporate
entities, nor did any receive consideration for the same.
47. Mr. McClary and Mr. LaPread never withdrew from the partnership or corporation and
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have never sold, transferred, assigned or otherwise relinquished their ownership interest
in the goodwill and the common law trademark THE COMMODORES.
48. According to the Nevada Secretary of State business entity search as of September 30,
2014, the officers and directors of Commodores Entertainment Corp. are William King,
President, Treasurer and Director, and Walter Orange, Secretary.
49. Upon information and belief Commodores Entertainment Corp. has failed to follow
corporate formalities. Mr. McClary has never received any notice to shareholders or
notice of shareholder meetings.
Registered Trademarks 50. Third Party Defendant, Commodore Entertainment Corp. is the registrant of the
following trademarks:
(a) THE COMMODORES, Regis tration number 2424689, first use in commerce date
4/1/1972. Filing date for this trademark is July 8, 1999;
(b) A logo/drawing of COMMODORES Registration number 2424686. The filing
date July 8, 1999, a first use in commerce date of 12/31/1968;
(c) The Commodores, Registration number 2497958, filed April 25, 2000, first use in
commerce 4/30/1972;
(d) The word mark Commodores a logo design, Registration number 2490360, first use
4/1/1972, filing date April 25, 2000.
51. Neither Commodore Entertainment Corp. nor Commodores Entertainment Corp. existed
at the time the mark The Commodores was first put into commerce in 1968.
52. Upon information and belief, The Commodores mark has not been registered outside of
the U.S. and Canada.
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53. Upon information and belief, Plaintiff Commodores Entertainment Corporation has not
registered the aforementioned trademark in any country or state.
The current Grammy winning Commodores
54. Upon information and belief. The current group that performs as The Commodores is
comprised of Walter Orange, William King, J.D. Nicholas and band calling itself The
Mean Machine
55. Upon information and belief, The Commodores do not have a webpage, nor do they own
Twitter name The Commodores, or the domain name thecommodores.com .
56. Upon information and belief, The Commodores have very little presence in the media,TV commercials, TV shows, or magazine ads.
57. The Commodores presence on the radio is the sound of the 70's and early 80's. Other
than one hit Grammy winning song, Nightshift , the current Commodores success and
exposure is very weak compared to the fame of the 1970's and 80's group.
58. Upon information and belief, The Commodores name is still prominent simply because
of the great songs that were recorded in the 70's and 80's that withstood the test of time.
These songs are still being played every day on radio, TV commercials, and movie sound
tracks.
59. Upon information and belief, since 2000, the Commodores have moved away from hard
ticket events, and mainly perform at private parties, corporate events, and casino groups.
Mr. McClarys use of the Commodores mark
60. When Mr. McClary stopped performing with The Commodores in 1984, he went to
Orlando where he continued to perform as "The Co-Founder of The Commodores,
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Thomas Mc Clary". Mr. McClarys performances included performances for numerous
churches and charities performing The Commodores hit song Jesus Is Love among
other well known Commodore songs. McClary further performed for Shepherds Hope
a nonprofit medical facility, whose fund-raising was spearheaded by a well known former
coach for the Orlando Magic, every year as The Commodores featuring Thomas
McClary since 2001.
61. Mr. McClary currently performs as Commodores Featuring Thomas McClary under
his own name and Fifth Avenue Entertainment, LLC. Mr. McClary has a right to use the
Commodores name.62. Promotional materials and bookings have always been represented as Commodores
Featuring Thomas McClary.
63. Fifth Avenue Entertainment, LLC and Thomas McClary have no t represented The
Commodores Featuring Thomas McClary as the current Commodores band.
64. Mr. McClary has a website: thomasmclary.com. Mr. McClary identifies himself as the
founder of the Commodores. He does not claim to be the Grammy Award winning
Commo dores. Further, he discloses that his band is The New 2014 Commodores
Featuring Thomas McClary.
65. Mr. McClary has a Facebook page of The Commodores Featuring Thomas McClary.
66. Mr. McClary uses his own distinct logo for The Commodores Featuring Thomas
McClary.
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FIRST CLAIM FOR RELIEF
TRADEMARK INFRINGEMENT UNDER THE LANHAM ACT 32, 15 U.S.C. 1114
(THOMAS McCLARY v. COMMODORES ENTERTAINMENT CORP, COMMODOREENTERTAINMENT CORP. )
67. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
68. Mr. McClary has a valid common law trademark in the mark The Commodores based
on his prior use in commerce as early as 1968.
69. The Commodore s mark identifies the music, sound and entertainment servic es
developed and provided by all members of the group, including Thomas McClary. The
individual members of the group controlled the quality and nature of the Commodores
sound. Therefore, these individuals each own the common law trademark.
70. Mr. McClary has used the trademark continuously through receipt of royalties,
performances for church organizations and through participation, performances and
collaboration with William King, Walter Orange, J.D. Nicholas and Ronald LaPread.
71. Mr. McClary has enforceable rights in "The Commodores" trademark.
72. Commodores Entertainment Corp. and Commodore Entertainment Corp.s wrongful use
of the name The Commodores comprises an infringement of Mr. McClary's common
law trademark "The Commodores" and is likely to cause confusion, mistake and
deception of the public as to the identity and origin of Mr. McClary's commercial
activities, causing irreparable harm to Mr. McClary to which there is no adequate remedy
at law.
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73. By reason of the foregoing acts, Commodores Entertainment Corp. and Commodore
Entertainment Corp. are liable to Mr. McClary for Trademark Infringement.
74. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to attorneys' fees.
75. Wherefore, Thomas McClary prays for such relief as set forth below.
SECOND CLAIM FOR RELIEF
UNFAIR COMPETITION UNDER LANHAM ACT 43 15 U.S.C. 1125(a)
(THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP, COMMODOREENTERTAINMENT CORP.)
76. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
77. The current Commodores currently use the names and likenesses of Thomas McClary,
Lionel Richie, Ronald LaPread, Milan Williams, Walter Orange, and William King to
promote the band. This includes social media sites like Facebook.
78. The use of the original Commodores members names and likenesses and claims that the
hit songs of the 1970's originated from the current band is a false designation of origin,
false or misleading description of fact.
79. This false designation of origin and false or misleading representation of fact is likely to
cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of such person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by another person.
80. This commercial advertising and/or promotion misrepresents the nature, characteristics,
qualities, of the current Commodores group as other person's goods, services, or
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commercial activities, namely the original members of The Commodores including
Mr. McClary.
81. Commodores Entertainment Corp. and Commodore Entertainment Corp. have published,
printed, displayed or otherwise publicly used Mr. McClary's name, photograph, or other
likeness to promote and identify the current Commodores Band.
82. The Commodores do not have Mr. McClarys permission to use his name or likeness in
advertising the current group. Mr. McClary did not given written or oral consent to such
use.
83. Commodores Entertainment Corp. and Commodore Entertainment Corp.s use of Mr.McClary's mark to promote, market and sell its products or services in direct competition
with Mr. McClary's goods and services is likely to cause confusion, mistake and
deception among consumers.
84. Commodores Entertainment Corp. and Commodore Entertainment Corp.s unfair
competition has caused and will continue to cause damage to Mr. McClary, and is
causing irreparable harm to Mr. McClary for which there is no adequate remedy at law.
85. By reason of the foregoing acts, Commodores Entertainment Corp. and Commodore
Entertainment Corp. are liable to Mr. McClary for Trademark Infringement.
86. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to Attorneys' fees.
87. Wherefore, Thomas McClary prays for such relief as set forth below.
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THIRD CLAIM FOR RELIEF
PASSING OFF - SECTION 43(a)
(THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP, COMMODOREENTERTAINMENT CORP.)
88. Third Party Plaintiff incorporates paragraphs 1-66 of this Third Party Complaint as if set
more fully herein.
89. The current Commodores currently use the names and likenesses of Thomas McClary,
Lionel Richie, Ronald LaPread, Milan Williams, Walter Orange, and William King to
promote the band. This includes social media sites like Facebook.
90. The current Commodores with the Mean Machine group also advertises themselves
as the originators of the hit songs like Three Times a Lady and Brick House.
91. By marketing The Commodores band using the names, likeness, songs, goods and
services of Thomas McClary, Lionel Richie, Ronald LaPread, Milan Williams, with
Walter Orange and William King, in interstate commerce, Commodores Entertainment
Corp. and Commodore Entertainment Corp. are passing off their goods and services to
the public as if they are the original group The Commodores.
92. As a result of Commodores Entertainment Corp. and Commodore Entertainment Corp.s
conduct, members of the public will and have been reasonably deceived and/or confused
into believing that by going to a concert held by The Commodores they are going to see
all of the original Commodores, or that Thomas McClary and other band members have
permitted The Grammy Award winning Commodores to use their names and likeness
to promote their band.
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93. Mr. McClary is damaged by such deception as it negatively impacts his ability to
distribute, market or otherwise exploit his products and musical performances as "The
Commodores Featuring Thomas McClary" and subjected him to consumer confusion.
94. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to attorneys' fees.
95. Wherefore, Thomas McClary prays for such relief as set forth below.
FOURTH CLAIM FOR RELIEF
DILUTION BY TARNISHMENT 15 U.S.C. 1125(c) (2)(C)
(THOMAS MCCLARY V. COMMODORES ENTERTAINMENT CORP., COMMODOREENTERTAINMENT CORP., WILLIAM KING and WALTER ORANGE)
96. Third Party Plaintiff incorporates paragraphs 1-66 in this Third Party Complaint as if set
more fully herein.
97. On or about September 24, 2014, The Commodores with the Mean Machine performed
at Epcot Center. The group promoted themselves as The Commodores Known for their
song "Three Times A Lady". The current Commodores are not known for the song
Three Times a Lady. The song was written by Lionel Richie when he was a member of
the original Commodores.
98. The Commodores were always a wholesome professional group, and presented
themselves to the public in that m anner. The current group performing as The
Commodores and The Commodores with the Mean Machine continue to exploit the
mark and goodwill of the original Commodores band.
99. The current group performing as The Commodores is tarnishing the mark and goodwill
of the band. On or about September 23, 2014, The Commodores and the Mean
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Machine performed live at Epcot Center in Orlando, Florida before an audience
comprised of mature adults and small children
100. Upon information and belief, the group introduce d themselves as The Commodores and
the Mean Machine. At the end of the show, Walter Orange, while throwing t -shirts to
the crowd, made a statement about funk and proceed to wipe his sweaty armpits with
a t-shirt - yelling something to the effect you want tome funk and threw the sweaty t -
shirt into the audience. This was unsavory conduct that shed a negative light on the
Commodores name.
101. Upon information and belief, during a show at Epcot Center, Walter Orange narratedwhat the group had learned from Mickey Mouse while William King and two of the band
members proceeded to walk/hop and grind (sexual rotation of the hips) as a
demonstration of what they learned from Mickey.
102. This conduct is inappropriate and tarnishes The Commodores mark.
103. Third Party Defendants Commodores Entertainment Corp., Commodore Entertainment
Corp., William King and Walter Orange have tarnished the famous Commodores mark
by portraying it in an unwholesome and unsavory context during the above described
performances(s) at Epcot Center.
104. This conduct is dilution by tarnishment as the mark loses its ability to serve as a
wholesome identifier of The Commodores Featuring Thomas McClary or any of Mr.
McClarys product s using the Commodores mark.
105. The result of Third Party De fendants conduct is that the public will associate the lack of
prestige in the Commodores Entertainment Corp., William King, and Walter Oranges
goods with Mr. McClarys unrelated goods as The Commodores Featuring Thomas
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McClary.
106. Mr. McClary is damaged by such conduct as it negatively impacts the wholesome
identity of his goods, and his ability to distribute, market or otherwise exploit his
products and musical performances as "The Commodores Featuring Thomas McClary".
107. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to Attorneys' fees pursuant to 15 U.S.C.A. 1117.
108. Wherefore, Thomas McClary prays for such relief as set forth below.
FIFTH CLAIM FOR RELIEF
COMMON LAW TRADEMARK INFRINGEMENT (THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP, COMMODORE
ENTERTAINMENT CORP.)
109. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
110. Since Mr. McClary's senior use of "The Commodores" mark, Mr. McClary has used the
mark continually in commerce.
111. When Mr. McClary stopped performing with The Commodores in 1984, he went to
Orlando where he continued to perform as "The Co-Founder of The Commodores,
Thomas McClary".
112. Mr. McClarys perf ormances included performances for numerous churches and
charities performing The Commodores hit song Jesus Is Love among other well known
Commodore songs.
113. McClary further performed for Shepherds Hope a nonprofit medical facility, whose
fundraising was spearheaded by a well known former coach for the Orlando Magic, every
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year as The Commodores featuring Thomas McClary since 2001.
114. Mr. McClary currently performs as Commodores Featuring Thomas McClary under
his own name and Fifth Avenue Entertainment, LLC. Mr. McClary claims a right to use
the Commodores name since 1968.
115. Promotional materials and bookings have always been represented as Commodores
Featuring Thomas McClary, or The New 2014 Commodores Featuring Thomas
McClary.
116. Fifth Avenue E ntertainment, LLC and Thomas McClary have not represented The
Commodores Featuring Thomas McClary as the current Commodores band.117. Mr. McClary has a website: thomasmclary.com. Mr. McClary identifies himself as the
founder of the Commodores. He does not claim to be the Grammy Award winning
Commodores. Further, he discloses that his band is The New 2014 Commodores
Featuring Thomas McClary.
118. Mr. McClary has a Facebook page of The Commodores Featuring Thomas McClary.
119. Mr. McClary uses his own distinct logo for The Commodores Featuring Thomas
McClary.
120. As a result of such use, the mark is associated with Mr. McClary as the founder,
songwriter, and performer, arranger of The Commodores band that acquired significant
fame in the United States and throughout the world. Mr. McClary's common law
ownership in the mark and the goodwill are valuable assets. Mr. McClary has an
enforceable right in the trademark.
121. By using the mark "The Commodores" after Mr. McClary's first use in commerce,
Commodores Entertainment Corp. and Commodore Entertainment Corp. have infringed
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and continue to infringe on Mr. McClary's common law mark.
122. Commodores Entertainment Corp. and Commodore Entertainment Corp.s use of The
Commodores mark with the names and likenesses of the original band members,
including Thomas McClary, upon information and belief have resulted and will continue
to result in consumer confusion.
123. Commodores Entertainment Corp. and Commodore Entertainment Corp. do not have
Mr. McClary's permission to use his common law mark.
124. As a direct and proximate result of Commodores Entertainment Corp. and Commodore
Entertainment Corp.'s actions, Mr. McClary has been damaged and will continue to bedamaged.
125. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to attorneys' fees.
126. Wherefore, Thomas McClary prays for such relief as set forth below.
SIXTH CLAIM FOR RELIEF
CANCELLATION OF REGISTERED TRADEMARKS
(THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP, COMMODOREENTERTAINMENT CORP.)
127. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
128. William King signed the application for trademarks that were filed on behalf of
Commodore Entertainment Corp. with the United States Patent and Trademark Office. In
the applications for the trademarks, William King made false representations regarding a
material fact, namely that there were no other individuals with rights to the trademark and
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that a corporation Commodore Entertainment Corp. was a valid Nevada corporation
that owned the mark.
129. Mr. King knew the statement was false as he knew that each individual member of The
Commodores, including Mr. McClary had each used the The Commodores mark since
1968 and had not relinquished or discontinued that use. Further, Mr. King, as president
and director of Commodores Entertainment Corp. knew there was no Nevada
corporation Commodore Entertainment Corp.
130. Mr. King made the misrepresentations on behalf of Commodores Entertainment Corp.
with the intent to induce reliance on the misrepresentation.131. Upon information and belief the United States Patent and Trademark examiner did
reasonably rely on the misrepresentations and issued a trademark registrations for the
marks.
132. Mr. McClary did not authorize registration of his common law mark by Commodore
Entertainment Corp. As a direct and proximate result of the misrepresentations, Mr.
McClary has suffered damages.
133. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Thomas
McClary is entitled to attorneys' fees.
134. Wherefore, Thomas McClary prays for such relief as set forth below.
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SEVENTH CLAIM FOR RELIEF
COMMERCIAL MISAPPROPRIATION OF LIKENESS AND IDENTITY F.S.A 540.08
(RIGHT OF PUBLICITY)
(THOMAS MCCLARY V. COMMODORES ENTERTAINMENT CORP, COMMODOREENTERTAINMENT CORP. )
135. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66, 77-86, 89-93 in this
Third Party Complaint as if set more fully herein.
136. The current Commodores curren tly use the name and likeness of Thomas McClary and
other original band members to promote the band. This includes social media sites like
Facebook.
137. Commodores Entertainment Corp. and Commodore Entertainment Corp. have published,
printed, displayed or otherwise publicly used Mr. McClary's name, photograph, or other
likeness to promote and identify the current Commodores Band.
138. The Commodores do not have Mr. McClarys permission to use his name or likeness in
advertising the current group.
139. As a direct and proximate result of Commodores Entertainment Corp. and Commodore
Entertainment Corp.s actions, Mr. McClary has been damaged and will continue to be
damaged
140. Wherefore, Thomas McClary prays for such relief as set forth below.
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EIGHTH CLAIM FOR RELIEF
REQUEST FOR DECLARATORY RELIEF 28 U.S.C. 2201(a)
(THOMAS MCCLARY V. COMMODORES ENTERTAINMENT CORP. AND COMMODOREENTERTAINMENT CORP.)
141. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
142. An immediate and actual controversy exists over Mr. McClary's ownership rights to "The
Commodores" mark.
143. Plaintiff Commodores Entertainment Corporation (CEC) claims that Mr. McClary has no
right to use The Commodores Mark.
144. Mr. McClary began using the Commodores name and mark in commerce in 1968.
145. Mr. McClary has never sold, assigned, abandoned or otherwise relinquished his
individual ownership interest in the Commodores trademark .
146. In 1984, Mr. McClary stopped performing with The Commodores.
147. When Mr. McClary stopped performing with The Commodores in 1984, he went to
Orlando where he continued to perform as "The Co-Founder of The Commodores,
Thomas McClary". Mr. McClarys performances included performances for numerous
churches and charities performing The Commodores hit song Jesus Is Love among
other well known Commodore songs. McClary further performed for Shepherds Hope
a nonprofit medical facility whose fund-raising was spearheaded by a well known former
coach for the Orlando Magic, every year as The Commodores featuring Thomas
McClary since 2001.
148. Mr. McClary is a core member of The Commodores as inducted in the Rock and Roll
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Hall of Fame in 2003.
149. Mr. McClary has appeared with The Commodores at several performances during 2006 -
2013, including but not limited to live performances on July 17 and 17, 2010 in
Bettendorf, Iowa and Santa Fe, New Mexico.
150. Mr. McClary has participated in the business affairs of The Commodores, including
meeting with Ronald LaPread, J.D. Nicholas, Walter Orange and David Fish met in
Atmore, Alabama to discuss putting together a new Commodore album of original songs
with Mr. McClary, Mr. LaPread, Mr. King, Mr. Orange, and Mr. Nicholas.
151. Later the group held a recording session at Mr. McClarys home and studio in Orlando,Florida and recorded the song America which Mr. McClary had written.
152. Thomas McClary also contributed to the process of selecting original songs to start the
recording process of a new album and to reunite the original five Commodores in hope of
getting Lionel Richie to eventually join.
153. On July 6, 2011 and Friday, July 8, 2011 William King and David Fish contacted Mr.
McClary regarding organizing a conference call to vote on whether they would use the
auditor, Greg McBowman, who Mr. McClary recommended to lead an audit of the
Commodores record label Motown/Universal Music.
154. David Fish continued to correspond in group e-mails with Thomas McClary, Ronald
LaPread, Walter Orange, William King, J.D. Nicholas, and William King in 2012.
155. Since 1975, Mr. McClary has continually received quarterly royalty payments for his
membership in The Commodores.
156. Mr. McClary alleges that he has senior rights to the mark The Commodores by his
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prior use, and he has not abandoned, or intended to abandon, his mark.
157. Wherefore, Thomas McClary prays that this Court declare that Mr. McClary as senior
user of "The Commodores" mark has common law rights to the mark over any rights to
the mark claimed by Commodores Entertainment Corp. or Commodore Entertainment
Corp.
NINTH CLAIM FOR RELIEF
VIOLATION OF FLORIDA'S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT
FLA. STAT. 501.201 et seq .
(THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP. AND COMMODOREENTERTAINMENT CORP.)
158. Third Party Plaintiffs incorporate paragraphs 1-66 in this Third Party Complaint as if set
more fully herein.
159. As alleged fully above, (i.e. allegations contained in claims 2, 3, 4, 5, 6, 7 and 8), Third
Party Defendants Commodores Entertainment Corp. and Commodore Entertainment
Corp. use of the Commodores mark in promotion of its goods and services, including
live musical performances is unfair competition as defined under the Florida Deceptive
and Unfair Trade Practices Act.
160. The conduct includes Third Party Defendants Commodores Entertainment Corp. and
Commodores Entertainment Corp.s infringement on Mr. McClarys trademark, engaging
in unfair competition, passing off the goods and services of the original Commodores
band as their own, fraud in trademark application, diluting the mark through tarnishment
and unsavory acts, and violating Mr. McClarys right of publicity.
161. By engaging in the acts described above, Third Party Defendants Commodores
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Entertainment Corp. and Commodore Entertainment Corp have engaged in unfair
methods of competition and unfair and deceptive acts practices in the conduct of trade or
commerce.
162. As a direct and proximate result of Third Party Defendants actions, Mr. McClary and
Fifth Avenue Entertainment, LLC have been damaged and will continue to be damaged.
163. Thomas McClary seeks a declaratory judgment that Third Party Defendants Commodores
Entertainment Corp. and Commodore Entertainment Corp.s conduct violates the Florida
Deceptive Use and Unfair Trade Practices act
164. Third Party Defendants Commodores Entertainment Corp. and CommodoresEntertainment Corp. have caused, and unless enjoined by the Court, will continue to
cause Thomas McClary irreparable harm.
165. Thomas McClary is entitled to recover actual damages, plus attorney's fees and court
costs as provided in FLA. STAT. 501.2105
166. In conducting such acts, Third Party Defendants Commodores Entertainment Corp. and
Commodore Entertainment Corp. acted with malice or disregard for Third Party
Plaintiffs rights, therefore, Third Party Plaintiff is entitled to punitive damages .
167. Wherefore, Thomas McClary prays for such relief as set forth below.
TENTH CLAIM FOR RELIEF
DEFAMATION/BUSINESS DISPARAGEMENT
(THOMAS MCCLARY and FIFTH AVENUE ENTERTAINMENT, LLC v. ALL THIRD PARTY
DEFENDANTS )
168. Third Party Plaintiffs incorporate paragraphs 1-66 in this Third Party Complaint as if set
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more fully herein.
169. In or about June, 2014 Third Party defendants David Fish, Walter Orange, William King,
individually and on behalf of Commodores Entertainment Corporation, Commodores
Entertainment Corp, Commodore Entertainment Corp., and Third Party Defendants Sal
Micaels and Pyramid Entertainment contacted West Hampton Beach Performing Arts
Center (WHBPAC) and misrepresented that Mr. McClary did not have the right to use
the mark The Commodores.
170. On or about August, 2014, Third Party Defendants through its agents, including but not
limited to, David Fish and Matt Santos sent an email blast to booking agents in the U.S.and Europe falsely stating that Walter Orange and William King were the only owners of
the "Commodores" mark and that Fifth Avenue Entertainment and Thomas McClary had
no right to use the Commodores name. Third Party Defendants and their agents continue
to make these false statements. Specific booking agents who received this e-mail
included Carlos Keyes in the United States and Italian promoter Luigi Sidero.
171. The statements in paragraphs 169-171 were false.
172. Third Party Defendants knew aforementioned the statements were false.
173. The aforementioned statements have damaged Mr. McClary's personal reputation and the
business reputation of Fifth Avenue Entertainment, LLC.
174. As a direct and proximate result of Third Party Defendants actions , Mr. McClary and
Fifth Avenue Entertainment, LLC have been damaged and will continue to be damaged.
175. In conducting such acts, Third Party Defendants acted with malice or disregard for Third
Party Plaintiff(s) rights, therefore, Third Party Plaintiffs are entitled to punitive damages
176. Third Party Plaintiffs have had to retain an attorney to prosecute this action; therefore,
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they are entitled to Attorneys' fees.
177. Wherefore, Third Party Plaintiffs pray for such relief as set forth below.
ELEVENTH CLAIM FOR RELIEF
INTERFERENCE WITH PRESENT ECONOMIC ACTIVITIES
(THOMAS MCCLARY and FIFTH AVENUE ENTERTAINMENT, LLC v. ALL THIRD PARTY
DEFENDANTS )
178. Third Party Plaintiff incorporates paragraphs 1-66 in this Third Party Complaint as if set
more fully herein.
179. On or about June, 2014, Fifth Avenue Entertainment entered into a contract with
WHBPAC for the performance of The Commodores Featuring Thomas McClary.
180. Fifth Avenue Entertainment instructed WHBPAC to use the name The Commodores
Featuring Thomas McClary on all advertising and promotion of the concert.
181. WHBPAC put Commodores on its marquee. Fifth Avenue Entertainm ent, LLC
instructed WHBPAC to change the marquee to The Commodores Featuring Thomas
McClary. WHBPAC did not have time or room on the marquee to change it.
182. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group knew that Thomas McClary and Fifth Avenue Entertainment had a
present business relationship with WHBPAC. The Third Party Defendants contacted
WHBPAC and misrepresented that Mr. McClary did not have the right to use the mark
The Commodores.
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183. Third Party Defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group threatened legal action against WHBPAC if it did not cancel The
Commodores Featuring Thom as McClary performance.
184. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group knew that Thomas McClary and Fifth Avenue Entertainment had acontract with WHBPAC.
185. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group intended to interfere with Thomas McClary and Fifth Avenue
Entertainments business relationship with WHBPAC.
186. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group interf ered with Thomas McClary and Fifth Avenue Entertainments
business relationship with WHBPAC, thus causing Thomas McClary and Fifth Avenue
Entertainment damages.
187. Prior to Thomas McClarys coming to New York for the performance at the WHBPAC,
James Birk, executive director of WHBPAC informed Mr. McClary that if the audience
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reception of the group was good, WHBPAC's standard policy is to automatically book
the act for the following year to come back . The Commodores Featuring Thomas
McClary tickets sales were sold-out or close to it and the group did two encores with
standing ovations for each.
188. After the show Thomas McClary inquired about the standard policy of the automatic
bookings to return, and Mr. Birk replied that he couldn't honor the policy to immediately
re-book The Commodores Featuring Thomas McClary. Mr. Birk told Mr. McClary he
needed to make sure WHBPAC would not encounter any legal action from CEC because
of the previous threats that he had gotten from CEC and statements from the Third PartyDefendants.
189. As a direct and proximate result of Third Party Defendants actions , Mr. McClary and
Fifth Avenue Entertainment, LLC have been damaged and will continue to be damaged.
190. In conducting such acts, Third Party Defendants acted with malice or disregard for Third
Party Plaintiff(s) rights ; therefore, Third Party Plaintiff(s) are entitled to punitive
damages.
191. Third Party Plaintiffs have had to retain an attorney to prosecute this action; therefore,
they are entitled to Attorneys' fees.
192. Wherefore, Third Party Plaintiffs pray for such relief as set forth below.
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TWELFTH CLAIM FOR RELIEF
INTERFERENCE WITH PROSPECTIVE ECONOMIC ACTIVITIES
(THOMAS MCCLARY and FIFTH AVENUE ENTERTAINMENT, LLC v. ALL THIRD PARTY
DEFENDANTS )
193. Third Party Plaintiff incorporates paragraphs 1-66 in this Third Party Complaint as if set
more fully herein.
194. Thomas McClary and Fifth Avenue Entertainment, LLC had future economic and/or
contractual relationships with booking agents and venues for live performances in 2015.
195. On or about August, 2014, Third Party Defendants through its agents, including but not
limited to, David Fish and Matt Santos caused an email blast to be sent to booking agents
in the U.S. and Europe falsely stating that Walter Orange and William King were the
only owners of the "Commodores" mark and that Fifth Avenue Entertainment and
Thomas McClary had no right to use the Commodores name. Specific booking agents
who received this e-mail included Carlos Keyes in the United States and Italian promoter
Luigi Sidero.
196. This email blast went throughout the talent buyers in the industry. It was forwarded to
Carlos Keyes by a few different buyers. The email says that if Pyramid hears of a show
announced or advertised for Thomas McClary using the Commodores name, they will
have their legal team contact them. That scared off many buyers. Mr. Keyes was talking
to many buyers at the time. The e-mail caused a major decline in the interest in booking
Mr. McClary.
197. Mr. McClary and Fifth Avenue Entertainment, LLC had a prospective economic
relationship to appear at the Tampa Bay Black Heritage Festival event in January, 2015.
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Mr. Keyes spoke to the event buyer who was 100% interested in have The Commodores
featuring Thomas McClary perform at the event on January 2015. The fee would have
been around $25K to $30K. A few days later, Mr. Keyes called and spoke to William
Sanders about booking for this event. Mr. Sanders said that someone on the committee
received Pyramid's email and they are no longer interested in presenting The
Commodores Featuring Thomas McClary at the festival.
198. The "Email from David Fish was also forwarded Carlos Keyes from an Italian promoter
Luigi Sidero. Mr. Sidero was adding shows in Europe to coincide with the UK tour
shows Mr. Keyes had booked for Thomas McClary. Mr. Sidero was going to book two(2) shows in Italy in February, 2015 at $25K each and add shows in Austria. Mr. Sidero
received this email from George Lietner who sent the email from David Fish. Because of
the e-mail, Mr. Sidero did not book the shows.
199. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., and Third Party Defendants Sal Micaels and Pyramid
Entertainment Group knew that Thomas McClary and Fifth Avenue Entertainment had
prospective business relationships with their own booking agent, Carlos Keyes, and other
booking agents in the United States and Europe.
200. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
Commodore Entertainment Corp., threatened legal action against Carlos Keyes if he did
not cease and desist from booking The Commodores with Thomas McClary for future
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live performances.
201. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
and Commodore Entertainment Corp., have interfered with Thomas McClary and Fifth
Avenue Entertainments prospective business opportunities, as Fifth Avenue
Entertainments ability to secure certain live appearances by The Commodores
Featuring Thomas McClary has declined.
202. On or about June 10, 2014, Fifth Avenue Entertainment, through its counsel Beryl
Thompson-McClary sent CEC a cease and desist letter.203. Third Party defendants David Fish, Walter Orange, William King, individually and on
behalf of Commodores Entertainment Corporation, Commodores Entertainment Corp,
and Commodore Entertainment Corp., and Sal Micaels and Pyramid Entertainment
Group continue to contact prospective booking agents and venues with the intent to
interfere with Fifth Avenue Entertainments business.
204. As a direct and proximate result of Third Party Defendants actions , Mr. McClary and
Fifth Avenue Entertainment, LLC have been damaged and will continue to be damaged.
205. In conducting such acts, Third Party Defendants acted with malice or disregard for Third
Party Pl aintiff(s) rights ; therefore, Third Party Plaintiff(s) are entitled to punitive
damages
206. Third Party Plaintiffs have had to retain an attorney to prosecute this action; therefore,
they are entitled to Attorneys' fees.
207. Wherefore, Third Party Plaintiffs pray for such relief as set forth below.
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THIRTEENTH CLAIM FOR RELIEF
BREACH OF DUTY OF LOYALTY AND UTMOST GOOD FAITH
(THOMAS MCCLARY v. WILLIAM KING AND WALTER ORANGE)
208. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
209. On or about 1978, articles of incorporation were filed with the Nevada Secretary of State
establishing the Nevada Corporation, Commodores Entertainment Corp..
210. On or about 1977, a New York Corporation Commodores Merchandising Corporation
was formed in New York State.
211. On or about 1979, the corporation Commodores Fan Club, Inc. was formed in New
York State.
212. On or about 1979, a corporation Commodores Entertainment Publishing Corp. was
formed in New York State.
213. On or about 1976, the corporations, Commodores Merchandising Corporation (a New
York corporation), Commodores Entertainment Publishing Corp. (A New York
corporation), and Commodores Fan Club, Inc. (a New York corporation) were merged
into the Nevada cor poration Commodores Entertainment Corp.
214. Upon information and belief, the shareholders in Commodores Entertainment Corp.
included Lionel Richie, Thomas McClary, Walter Orange, Ronald LaPread, Milan
Williams, and William King.
215. Mr. McClary and Mr. LaPread never sold, transferred or otherwise relinquished their
shares in Commodores Entertainment Corp. Mr. McClary has no knowledge as to
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whether any other shareholders ever sold, transferred or otherwise relinquished his shares
in Commodores Entertainment Corp..
216. Mr. McClary remains a shareholder in Commodores Entertainment Corp.
217. Upon information and belief, Walter Orange and William King are also shareholders and
officers of Commodores Entertainment Corp.
218. William King is a director of Commodores Entertainment Corp.
219. Commodores Entertainment Corp. is a close corporation.
220. As shareholders and officers William King and Walter Orange owed a duty of loyalty and
utmost good faith to Thomas McClary.221. As a director, William King owes Thomas McClary a duty of loyalty and utmost good
faith.
222. By committing the acts alleged herein, Mr. King and Mr. Orange have breached their
duties of loyalty and utmost good faith to Mr. McClary. The breaches include, but are not
limited to:
a. Denying Mr. McClarys lawful rig ht to use the Commodores trademark;
b. Denouncing Mr. McClarys rights as a shareholder in the corporation;
c. Failing to follow corporate formalities including shareholder meetings, keeping
minutes of meetings, and keeping Mr. McClary apprised of the business of the
corporation, including income, expenses, profits and losses;
d. Defaming Mr. McClary;
e. Interfering with Mr. McClarys business;
f. Performing as the Commodores in an unsavory and inappropriate manner which
tarnishes the Commodores name and reputation;
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g. Registering The Commodores mark with the United States Patent and
trademark Office under a false name and misrepresenting the ownership in the
mark.
223. The breaches are material.
224. Mr. McClary has asked that the breaches be cured.
225. As a direct and proximate cause of the breaches of duties of care and utmost loyalty, Mr.
McClary has suffered damages, and exact amount to be determined at trial.
226. In conducting such acts, Mr. King and Mr. Orange acted with malice or disregard for
Thomas McClar ys rights ; therefore, Thomas McClary is entitled to punitive damages.227. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Mr.
McClary is entitled to attorneys fees.
228. Wherefore, Thomas McClary prays for such relief as set forth below.
FOURTEENTH CLAIM FOR RELIEF
BREACH OF FIDUCIARY DUTY
(THOMAS MCCLARY V. WILLIAM KING AND WALTER ORANGE)
229. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
230. On or about 1978, articles of incorporation were filed with the Nevada Secretary of State
establishing the Nevada Corporation, Commodores Entertainment Corp..
231. On or about 1977, a New York Corporation Commodores Merchandising Corporation
was formed in New York State.
232. On or about 1979, the corporation Commodores Fan Club, Inc. was formed in New
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York State.
233. On or about 1979, a corporation Commodores Entertainment Publishing Corp. was
formed in New York State.
234. On or about 1976, the corporations, Commodores Merchandising Corporation (a New
York corporation), Commodores Entertainment Publishing Corp. (A New York
corporation), and Commodores Fan Club, Inc. (a New York corporation) were merged
into the Nevada corporation Commodores Entertainment Corp.
235. Upon information and belief, the shareholders in Commodores Entertainment Corp.
included Lionel Richie, Thomas McClary, Walter Orange, Ronald LaPread, MilanWilliams, and William King.
236. Mr. McClary and Mr. LaPread never sold, transferred or otherwise relinquished their
shares in Commodores Entertainment Corp. Mr. McClary has no knowledge as to
whether any other shareholders ever sold, transferred or otherwise relinquished his shares
in Commodores Entertainment Corp..
237. Mr. McClary remains a shareholder in Commodores Entertainment Corp.
238. William King is the President, Treasurer and Director of Commodores Entertainment
Corp.
239. Walter Orange is the Secretary of Commodores Entertainment Corp.
240. Commodores Entertainment Corp. is a close corporation.
241. As officers William King and Walter Orange owe a fiduciary duty to Thomas McClary.
242. As a director, William King owes a fiduciary duty to Thomas McClary.
243. By committing the acts alleged herein, Mr. King and Mr. Orange have breached their
duties to Mr. McClary. The breaches include, but are not limited to:
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a. Denying Mr. McClarys lawful right to use the Commodores trademark;
b. Denouncing Mr. McClarys rights as a shareholder in the corporation;
c. Failing to follow corporate formalities including shareholder meetings, keeping
minutes of meetings, and keeping Mr. McClary apprised of the business of the
corporation, including income, expenses, profits and losses;
d. Defaming Mr. McClary;
e. Interfering with Mr. McClarys business.
f. Performing as the Commodores in an unsavory and inappropriate manner which
tarnishes the Commodores name and reputation.g. Registering The Commodores mark with the United States Patent and
trademark Office under a false name and misrepresenting the ownership in the
mark.
244. The breaches are material.
245. Mr. McClary has asked that the breaches be cured.
246. As a direct and proximate cause of the breaches of duties of care and utmost loyalty, Mr.
McClary has suffered damages, and exact amount to be determined at trial.
247. In conducting such acts, Mr. King and Mr. Orange acted with malice or disregard for
Thomas McClarys rights ; therefore, Thomas McClary is entitled to punitive damages.
248. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Mr.
McClary is entitled to attorneys fees.
249. Wherefore, Thomas McClary prays for such relief as set forth below.
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FIFTEENTH CLAIM FOR RELIEF
ACCOUNTING
(THOMAS MCCLARY v. COMMODORES ENTERTAINMENT CORP.)
250. Third Party Plaintiff Thomas McClary incorporates paragraphs 1-66 in this Third Party
Complaint as if set more fully herein.
251. On or about 1978, articles of incorporation were filed with the Nevada Secretary of State
establishing the Nevada Corporation, Commodores Entertainment Corp..
252. On or about 1977, a New York Corporation Commodores Merchandising Corporation
was formed in New York State.253. On or about 1979, the corporation Commodores Fan Club, Inc. was formed in New
York State.
254. On or about 1979, a corporation Commodores Entertainment Publishing Corp. was
formed in New York State.
255. On or about 1976, the corporations, Commodores Merchandising Corporation (a New
York corporation), Commodores Entertainment Publishing Corp. (A New York
corporation), and Commodores Fan Club, Inc. (a New York corporation) were merged
into the Nevada corporation Commodores Entertainment Corp.
256. Upon information and belief, the shareholders in Commodores Entertainment Corp.
included Lionel Richie, Thomas McClary, Walter Orange, Ronald LaPread, Milan
Williams, and William King.
257. Mr. McClary and Mr. LaPread never sold, transferred or otherwise relinquished their
shares in Commodores Entertainment Corp. Mr. McClary has no knowledge as to
whether any other shareholders ever sold, transferred or otherwise relinquished his shares
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in Commodores Entertainment Corp..
258. Mr. McClary remains a shareholder in Commodores Entertainment Corp.
259. As a result of Mr. McClarys position as a shareholder, he is entitled to an accounting of
the income, expenses, loans to shareholders or others, retained earnings, dividends, assets
and liabilities of Commodores Entertainment Corp.
260. This accounting includes an examination by Mr. McClary or his agent of the
corporations financial and corporate books and records including but not limited to
contracts, balance sheets, income statements, profit and loss statements and tax returns.
261. Upon information and belief, Commodores Entertainment Corp. has failed to maintaincorporate formalities, including meetings, corporate minutes, or formal issuance of
shares.
262. Thomas McClary has never been provided with this information.
263. Wherefore, Thomas McClary prays that the Court order Commodores Entertainment
Corp. to allow Mr. McClary or his agent to examine the books and records of the
corporation and for an accounting of the income and expenses of the corporation.
264. Thomas McClary has had to retain an attorney to prosecute this action; therefore, Mr.
McClary is entitled to attorneys fees.
265. Wherefore, Thomas McClary prays for such relief as set forth below.
PRAYER FOR RELIEF
1. That Third Party Plaintiffs be awarded damages in excess of $100,000.00, the exact
amount of which will be determined at the time of trial.
2. That Third Party Defendants be ordered to pay to Third Party Plaintiffs a sum, the exact
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amount of which will be proven at the time of trial, for lost earnings, both past and future.
3. That Third Party Defendants be ordered to pay to Third Party Plaintiffs a sum, the exact
amount of which will be proven at the time of trial, for damage to Thomas McClarys reputa tion
and the business reputation of Fifth Avenue Entertainment, LLC.
4. That the Court order Commodores Entertainment Corp. to provide Mr. McClary with an
accounting and to permit the examination by Mr. McClary (or his agent) of Commodores
Entertainment Co rp.s books and records.
5. That the Court declare that Thomas McClary as senior user of "The Commodores" mark
has common law rights to the mark senior to the rights claimed by Commodores EntertainmentCorp. and Commodore Entertainment Corp.
6. That the Court cancel U.S. Trademark Registration Numbers 2424689, 2424686,
2497958, and 2490360.
7. That in the alternative, the Court rectify the aforementioned U.S. Trademark
Registrations to reflect the true ownership of the marks, including naming Thomas McClary as a
rightful owner.
8. That Third Party Plaintiffs be awarded the attorney's fees and court costs incurred in the
prosecution of this Third Party Complaint.
9. That Third Party Plaintiffs be awarded punitive damages in an amount the exact amount
of which will be determined at the time of trial for punitive damages.
10. And, that the Third Party Plaintiffs be awarded such other and further relief as the court
may deem just and equitable in the premises.
///
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Dated October 13, 2014. BY /s/ Marie Mirch
Marie MirchMirch Law Firm, LLP750 B Street #2500
San Diego, CA 92101(619) 501-6220Counsel for Defendants/Counterclaimants/Third Party Plaintiffs
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YERIFICATION
I Thomas McClary individually and on hehalf of Fifth Avenue Entertainmentveriry and swear under penalty of perjtrry rmder thre laws of the United States and State ofFlori@ that the foregoing is true and correct with the exception of those allegationsmade.rr4rurinftmatinn and-heJicf wlirJrlhay.e.a guylfrifh-hefieftohetnre..
Executed tfrirft tU day of Octotx:r zIl4.
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