Complaint _ Tac Stars Adv Proc

THE HONORABLE BRIAN D. LYNCH
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IN THE UNITED STATES BANKRUPTCY COURT FOR THE
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WESTERN DISTRICT OF WASHINGTON AT TACOMA
IN RE:
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ROBERT R. BOWERS and MARIAN L.
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BOWERS,
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Debtors.
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MARK D. WALDRON, Trustee of the )
Estate of Robert. R. Bowers and Marian L. )
Bowers,
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Plaintiff,
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v.
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DION L. EARL, individually; TACOMA
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STARS, a Washington nonprofit
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corporation; and SOUTH SOUND
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CHARITIES, a Washington nonprofit
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corporation d/b/a PACIFIC SPORTS AND )
EVENTS CENTER,
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Defendants.
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Chapter 7
Case No. 13-43937-BDL
Honorable Brian D. Lynch
Adversary Proceeding No. __________
COMPLAINT TO DETERMINE
OWNERSHIP OF PROPERTY, FOR
TURNOVER OF ESTATE PROPERTY,
FOR INJUNCTIVE RELIEF, AND
VIOLATION OF AUTOMATIC STAY
COMES NOW the Trustee of the above-entitled estate, MARK D. WALDRON, by
and through its attorneys ORLANDINI & WALDRON, P.S., and alleges as follows:
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 1
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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PARTIES
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filed a Chapter 7 Bankruptcy Petition on June 13, 2013.
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Plaintiff.
Mark D. Waldron was appointed to serve as the Chapter 7
Trustee of the Debtors’ bankruptcy estate.
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Defendants.
a.
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Debtors. Robert R. Bowers and Marian L. Bowers, husband and wife,
Dion L. Earl, upon information and belief, is and was at all times
material to this matter an individual and a resident of King County, Washington.
b.
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Tacoma Stars, upon information and belief, is a Washington
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nonprofit corporation formed by Dion L. Earl on or about April 23, 2014, and assigned
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Washington State UBI No. 603396905 (hereafter, “Earl’s Tacoma Stars”)
c.
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South Sound Charities, upon information and belief, is a
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Washington nonprofit corporation formed by Marian L. Bowers on or about May 20,
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2013, doing business as Pacific Sports and Events Center (hereafter, “Charities”).
JURISDICTION AND VENUE
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4.
This adversary proceeding is brought in accordance with Bankruptcy Rule
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This Court has jurisdiction over this proceeding pursuant to 28 U.S.C.
7001.
§157(a) and (b). Venue is appropriate under 28 U.S.C. §1409.
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This matter is a core proceeding within the meaning of 28 U.S.C. §157(b).
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 2
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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FACTUAL ALLEGATIONS
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Estate’s Ownership of Tacoma Stars’ Tradename and Trademark
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The Schedules filed by the Debtors with this Court under penalty of
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perjury, as amended, identify the “Tacoma Stars logo” as a personal property asset of
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the Debtors’ estate.
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8.
On or about November 25, 2009, the Debtors executed a document
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entitled Settlement, Release, and Indemnification Agreement which contained the
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following express acknowledgement of the Debtors’ ownership of the Tacoma Stars’
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name and logo:
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12.
Lane and Kelly Smith recognize that Marian and Robert
Bowers own all right, title and interest in the Tacoma Stars, the nonprofit corporation that owns the Tacoma Stars, and the name and logo of
the Tacoma Stars.
(Emphasis added).
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In pleadings filed by the Debtors in Washington State Superior Court Case
No. 11-2-13552-2, the Debtors represented that they were the owners of all right, title
and interest in the Tacoma Stars, including the name and logo.
10.
Debtor Marian L. Bowers, examined on October 21, 2013 pursuant to this
Court’s Order for a 2004 exam [Dkt. #12], testified under oath that she individually has
owned the “Tacoma Stars” name since 2008. The following exchange occurred under
oath during that 2004 exam:
Q:
Okay. Who owns the name “Tacoma Stars”?
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A:
I do.
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Q:
You do?
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 3
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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A:
Uh-huh.
…
Q:
Okay. If I could back up just a second, you mentioned a moment
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ago that you own the name – you, Marian Bowers, own the name
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“Tacoma Stars” or the rights to the name?
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A:
Correct.
Q:
Did you mean to say that Tacoma Stars, Inc., owns the name or
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you, individually, own the name?
A:
I believe I, individually, own it.
Q:
Okay. When did you acquire that?
A:
In 2008.
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(Emphasis added).
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Trustee’s Motion to Sell Tacoma Stars’ Tradename and Trademark
11.
On April 2, 2014, the Trustee filed with this Court a Motion to Sell Personal
Property of the Debtors’ estate (“Trustee’s Motion to Sell”) [Dkt. #43], requesting
permission from the Court to sell the following described personal property of the
Debtors’ estate to Tacoma Soccer Center:
a) the “Tacoma Stars” name and logo and exclusive use of the “Tacoma
Stars” name and logo, including all of the following:
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trademarks;
all applications and registrations and the goodwill connected with
the use of and symbolized by the foregoing;
all copyrights, including all applications and registrations related to
the foregoing;
all internet domain name registrations, including without limitation,
www.tacomastars.com;
any and all royalties, fees, income, payments and other proceeds
now or hereafter due or payable with respect to the foregoing; and
all other intellectual property and related proprietary rights,
interests, and protections, including all rights to sue and recover
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 4
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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and retain damages, costs and attorney fees for past, present and
future infringement and any other rights relating to the foregoing.
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(Hereafter collectively referred to as the “Tacoma Stars’ tradename and trademark”.)
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No objection was filed to the Trustee’s Motion to Sell the Tacoma Stars’
tradename and trademark.
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On May 9, 2014, the Court entered its Order approving the Trustee’s
Motion to Sell and authorizing the Trustee to sell the Tacoma Stars’ tradename and
trademark according to the Court’s Order [Dkt. #55].
Dion L. Earl’s Formation of Earl’s Tacoma Stars, Registration of the Tacoma
Stars’ Trademark, and Business Conducted Under the Tacoma Stars’ Tradename
and Tademark
14.
On or about April 23, 2014, three weeks after the Trustee’s Motion to Sell
the Tacoma Stars’ trademark and tradename was filed, Dion L. Earl filed paperwork with
the Washington State Secretary of State to form a non-profit corporation called the
“Tacoma Stars”.
15.
On or about April 23, 2014, Dion L. Earl filed paperwork with the
Washington State Secretary of State registering a trademark using the Tacoma Stars’
name and logo.
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Upon information and belief, Dion L. Earl is a friend and/or associate of
Debtor Marian L. Bowers.
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Upon information and belief, Dion L. Earl and/or Earl’s Tacoma Stars are
conducting business using the Tacoma Stars’ trademark and tradename, or a
confusingly similar name and logo.
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 5
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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18.
Upon information and belief, Dion L. Earl has entered a team called the
“Tacoma Stars” or “Stars” into the Major Arena Soccer League (“MASL”).
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Upon information and belief, Debtors Marian L. and Robert R. Bowers
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attended the MASL owners’ meeting on May 17-18, 2014 in Baltimore, Maryland, where
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they held themselves out as the owners/representatives of the Tacoma Stars.
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20.
Upon information and belief, Dion L. Earl has assumed control of the
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Tacoma Stars’ Facebook page created and previously maintained by Debtor Marian L.
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Bowers.
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21.
In a letter dated May 12, 2014 the Trustee advised Dion L. Earl of the
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estate’s interest in the Tacoma Stars’ tradename and trademark and demanded that he
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cease and desist use of the same.
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On or about May 21, 2014, Dion L. Earl contacted the Trustee by
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telephone to advise the Trustee that he did not recognize the Trustee’s claim of
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ownership on behalf of the Debtors’ estate and did not intend to cease and desist use of
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the Tacoma Stars’ tradename and trademark.
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Charities’ Ongoing Use of the Tacoma Stars’ Tradename and Trademark
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Upon information and belief, Debtor Marian L. Bowers formed Charities
and is the Chairman of the Board of Charities.
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Charities controls the website www.pacificsportscenter.com, where it uses
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the Tacoma Stars’ tradename and trademark to advertise a close affiliation with the
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Tacoma Stars and to promote Charities’ goods and services, including the sale of
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 6
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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Tacoma Stars apparel and the promotion of regular Tacoma Stars’ Youth Academies
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operated by Charities.
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FIRST CAUSE OF ACTION –
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Determination Regarding Estate’s Property Pursuant to 11 U.S.C. §541(a)(1)
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Pursuant to 11 U.S.C. §541(a)(1), the filing of the Debtors’ Chapter 7
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petition created an estate comprised of “all legal or equitable interests of the debtor in
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property as of the commencement of the case.”
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For the reasons stated above, the Tacoma Stars’ tradename and
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trademark
constituted
personal
property
belonging
to
the
Debtors
at
the
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commencement of their bankruptcy case, and as such, all legal and equitable interests
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of the Debtors in that property became part of the Debtors’ bankruptcy estate and
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subject to the Trustee’s authority to administer the same.
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SECOND CAUSE OF ACTION –
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Turnover of Property to the Estate Pursuant to 11 U.S.C. §542(a)
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Pursuant to 11 U.S.C. §542(a), and subject to limited exceptions
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inapplicable under the circumstances, an entity in possession, custody, or control of
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property of the estate that the Trustee may administer shall deliver the property to the
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Trustee.
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28.
Should the Court rule that the Tacoma Stars’ tradename and trademark
constituted property of the Debtors’ estate at all times relevant hereto, Defendants
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 7
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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should be ordered to immediately deliver to the Trustee all such property, including
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without limitation, the administrative rights login for the Tacoma Stars’ Facebook page.
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Defendants should be directed to immediately cease and desist use of the
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Tacoma Stars’ tradename and trademark and enjoined from future use of the same in
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order to prevent further diminution in value to the property and harm to the Debtors’
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estate.
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THIRD CAUSE OF ACTION –
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Injunctive Relief
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Injunctive relief is warranted where a party has a clear legal or equitable
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right, a well-grounded fear of immediate invasion of that right, and the acts complained
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of are either resulting in or will result in actual and substantial injury.
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The right to use the Tacoma Stars’ tradename and trademark belongs to
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the Trustee and its successors and assigns. Defendants may not use the Tacoma
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Stars’ tradename or trademark or similarly confusing marks because such use would
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likely deceive, mislead or confuse ordinary persons into believing they are dealing with
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one concern when in fact they are dealing with the other.
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32.
Defendants’ use of the Tacoma Stars tradename and trademark
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constitutes unfair use and the Tacoma Stars’ tradename and trademark is entitled to
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protection by injunction from future unfair use. The Trustee asks the Court to impose a
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temporary restraining order, and ultimately, a permanent injunction.
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 8
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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FOURTH CAUSE OF ACTION –
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Violation of Automatic Stay Imposed by 11 U.S.C. §362
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Pursuant to 11 U.S.C. §362(a)(3) the automatic stay operates as a stay
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applicable to all entities, of any act to obtain possession of property of the estate or
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property from the estate or to exercise control over property of the estate.
34.
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As a consequence of Defendants’ violation of the automatic stay, the
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Trustee has a right to recover actual damages, including costs and attorneys’ fees, and
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may recover punitive damages, as well, pursuant to 11 U.S.C. §362(k).
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For the reasons stated above, Defendants are in violation of the automatic
stay.
FOR THESE REASONS, the Trustee seeks the entry of an order providing as
follows:
A. Finding that the Tacoma Stars’ tradename and trademark were at all times
relevant hereto the exclusive property of the Debtors’ estate;
B. Finding that the Trustee and his successors and assigns have the
exclusive right to use the Tacoma Stars’ tradename and trademark;
C. Finding that Defendants are not the owners of and do not have rights to
use the Tacoma Stars’ tradename or trademark;
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D. Ordering Defendants to turnover to the Trustee all property of the Debtors’
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estate, including without limitation, the administrative rights login for the
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Tacoma Stars’ Facebook page;
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 9
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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E. Ordering Defendants to cease all use of the Tacoma Stars’ tradename
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and trademark, including without limitation the publication of the Tacoma
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Stars’ name and logo on all webpages and other mediums of
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communication with the public maintained or controlled by Defendants;
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F. Issuing a temporary restraining order restraining Defendants, their
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directors, officers, agents, servants and employees from using or adopting
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any tradename or trademark containing the word “Stars” or any other
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confusingly similar to the Tacoma Stars’ tradename or trademark;
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G. Issuing a permanent injunction restraining Defendants, their directors,
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officers, agents, servants and employees from using or adopting any
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tradename or trademark containing the word “Stars” or any other
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confusingly similar name or mark to the Tacoma Stars’ trademark or
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tradename;
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H. Ordering Defendants not to direct or aid third parties in the adoption of
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logos with trade dress that is confusingly similar to the Tacoma Stars’
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tradename or trademark;
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I. Finding Defendants in violation of the automatic stay imposed by 11
U.S.C. §362(a)(3);
J. Ordering Defendants to pay actual damages and/or punitive damages as
allowed by 11 U.S.C. §362(k);
K. Ordering Defendants to pay the Trustee’s attorneys’ fees and costs as
allowed by law; and,
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 10
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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L. Granting the Trustee such other and further relief as is just and proper.
DATED this 30th day of May, 2014.
ORLANDINI & WALDRON, P.S.
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/s/ Mark D. Waldron
Mark D. Waldron (WSBA #9578)
Attorney for Trustee
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LAW OFFICES
ORLANDINI & WALDRON
Adversary Complaint - 11
A Professional Services Corporation
6711 Regents Blvd. W.
Tacoma WA 98466
Telephone: 253.565.5800
Fax: 253.564.2998
Website: orlandini-waldron.com
e-mail: [email protected]
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