Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 1 of 19 Page ID #:1 1 2 3 4 5 6 7 CHARLES N. SHEPHARD (SBN 078129) cshephard@ggfirm.com AARON J. MOSS (SBN 190625) amoss@ggfirm.com GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: 310.553.3610 Fax: 310.553.0687 Attorneys for Plaintiff TOHO CO., LTD. 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 8 12 TOHO CO., LTD., Case No. Plaintiff, 13 COMPLAINT FOR: 14 v. (1) COPYRIGHT INFRINGEMENT; 15 VOLTAGE PICTURES, LLC; NACHO VIGALONDO; and DOES 1 through 10, inclusive, (2) TRADEMARK INFRINGEMENT; 16 Defendants. 17 (3) VIOLATION OF §43(a) OF THE LANHAM ACT; 18 (4) FEDERAL TRADEMARK DILUTION; 19 (5) COMMON LAW UNFAIR COMPETITION; AND 20 (6) UNJUST ENRICHMENT 21 22 DEMAND FOR JURY TRIAL 23 24 25 26 27 28 84800-00001/2386564.3 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 2 of 19 Page ID #:2 1 Plaintiff Toho Co., Ltd. (“Toho”) alleges as follows: 2 3 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 4 NATURE OF THE ACTION 1. Godzilla is one of the most iconic fictional characters in the history of 5 motion pictures. Toho Co., Ltd., the copyright owner of the Godzilla character and 6 franchise of films, brings this lawsuit because defendants are brazenly producing, 7 advertising, and selling an unauthorized Godzilla film of their own. There is 8 nothing subtle about defendants’ conduct. They are expressly informing the 9 entertainment community that they are making a Godzilla film and are using the 10 Godzilla trademark and images of Toho’s protected character to generate interest in 11 and to obtain financing for their project. That anyone would engage in such blatant 12 infringement of another’s intellectual property is wrong enough. That defendants, 13 who are known for zealously protecting their own copyrights, would do so is 14 outrageous in the extreme. 15 16 17 JURISDICTION AND VENUE 2. This action arises under the United States Copyright Act, 17 U.S.C. §§ 18 101 et seq. and the Lanham Act, 15 U.S.C. § 1125. This Court has original 19 jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 20 1338 and 15 U.S.C. § 1121(a). The Court has supplemental jurisdiction over 21 Toho’s state law claims under 28 U.S.C. § 1367(a). 22 3. This Court has personal jurisdiction over each of the defendants named 23 in this Complaint, because each defendant does sufficient business in California and 24 this Judicial District, has sufficient minimum contacts with California and this 25 Judicial District, or otherwise intentionally avails itself of the California and Los 26 Angeles markets to render the exercise of jurisdiction over it by this Court 27 consistent with traditional notions of fair play and substantial justice. 28 84800-00001/2386564.3 1 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 3 of 19 Page ID #:3 1 4. Venue in this Judicial District is proper under 28 U.S.C. §§ 1391(b) 2 and (c) and 1400(a), in that a substantial part of the events giving rise to Toho’s 3 claims occurred in this Judicial District and one or more Defendants resides and 4 may be found in this Judicial District within the meaning of 28 U.S.C. § 1391(c). 5 6 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 7 THE PARTIES 5. Toho is a Japanese corporation and motion picture studio that is in the 8 business of producing and distributing motion pictures throughout the world. 9 Toho’s principal place of business is in Tokyo, Japan. Toho maintains an office in 10 Los Angeles, California to oversee the distribution of its films in the United States, 11 and to oversee the licensing, merchandising and enforcement of the intellectual 12 property that appears in its films. 13 6. Toho is informed and believes, and based thereon alleges, that 14 defendant Voltage Pictures, LLC (“Voltage”) is a limited liability company 15 organized and existing under the laws of the State of California, with its principal 16 place of business in Los Angeles County, California. Toho is informed and 17 believes, and based thereon alleges, that Voltage purports to be a staunch advocate 18 for the protection and enforcement of intellectual property rights, having filed 19 hundreds of copyright infringement lawsuits against those it claims to have 20 infringed its rights in films such as The Hurt Locker and Dallas Buyers Club. 21 7. Toho is informed and believes that defendant Nacho Vigalondo 22 (“Vigalondo”) is a motion picture director and writer who does business in Los 23 Angeles, California. Toho is further informed and believes, and based thereon 24 alleges, that Vigalondo is specifically doing business in Los Angeles California 25 with Voltage, which is producing the film at issue that Vigalondo wrote and is 26 slated to direct. 27 8. 28 Toho is unaware of the true names and capacities of the defendants sued herein as Does 1 through 10, inclusive, and therefore sues these defendants by 84800-00001/2386564.3 2 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 4 of 19 Page ID #:4 1 fictitious names. Toho will seek leave of the Court to amend this Complaint to 2 allege their true names and capacities when ascertained. Toho is informed and 3 believes, and based thereon alleges, that each fictitiously named defendant is 4 responsible in some way for the creation, production, advertising, selling, 5 distribution and/or exhibition of the film project at issue in this Complaint, and is 6 liable to Toho therefor. Voltage, Vigalondo and Does 1 through 10 are sometimes 7 referred to collectively herein as “Defendants.” 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 8 9. Toho is informed and believes, and based thereon alleges, that at all 9 times relevant herein, each of the Defendants was the agent, servant, or employee 10 of each other Defendant, and at all times relevant herein was acting in whole or at 11 least in part within the scope of such agency. As such, each and every Defendant 12 herein is equally responsible in whole or in part for each and every act alleged 13 herein. 14 15 ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF 16 Toho and the Godzilla Character 17 10. In or about 1954, Toho created a fictional character called “Godzilla,” 18 a giant, prehistoric monster brought to life in the modern world. At the same time, 19 Toho produced and distributed a feature-length motion picture entitled Gojira 20 (Japanese for Godzilla), based upon the reawakening of Godzilla by the detonation 21 of an atomic bomb. The film was released in the United States in or about 1956 22 under the title Godzilla, King of the Monsters. Thereafter, Toho produced and 23 distributed throughout the world a series of motion pictures based upon the further 24 adventures of Godzilla. Toho has produced approximately twenty seven (27) 25 sequel films featuring its Godzilla character (the “Godzilla Character”). 26 11. Toho has complied in all respects with the copyright laws of the 27 United States, and all other laws governing copyright, and is the owner of the 28 exclusive rights and privileges in and to the copyrights in Gojira, Godzilla, King of 84800-00001/2386564.3 3 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 5 of 19 Page ID #:5 1 the Monsters and in the subsequent Godzilla motion pictures. Toho’s copyrights 2 cover all visual elements in the motion pictures, including the appearance of the 3 Godzilla Character itself. Toho has registered the copyrights in its Godzilla films 4 with the United States Copyright Office, and these registrations are valid and 5 subsisting. 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 6 12. In addition to producing its own motion pictures featuring the Godzilla 7 Character, Toho has authorized third parties to create derivative works featuring the 8 character. Among those who, with Toho’s permission, have created Godzilla 9 motion pictures is Legendary Pictures, which produced a 2014 motion picture 10 entitled Godzilla (“the 2014 Godzilla Film”). The 2014 Godzilla Film was one of 11 the most successful films of 2014, generating more than $200,000,000 in domestic 12 box revenue and more than $500,000,000 in worldwide box office revenues. 13 13. Beginning in or about 1981, Toho duly registered the name and 14 character image of “Godzilla” as service marks and trademarks under the Lanham 15 Act, 15 U.S.C. § 1051 et seq., and Toho remains to this date the owner of these 16 marks. 17 14. Toho’s Godzilla films have been widely distributed in the United 18 States and throughout the world. In the course of the production and distribution of 19 these films, Toho and its licensees have expended significant effort advertising and 20 promoting the motion pictures under titles bearing the name of, and featuring, the 21 Godzilla Character. 22 15. Toho has developed a highly valuable goodwill in its Godzilla name 23 and character. Toho and its licensees have expended substantial effort and expense 24 to develop, advertise and market the Godzilla Character. As a result of these 25 activities, a secondary meaning has been created in the mind of the public 26 throughout the United States, and throughout the world, by which the name and 27 likeness of Godzilla have become strongly identified with Toho’s particular 28 character and the series of motion pictures featuring that character, such that Toho 84800-00001/2386564.3 4 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 6 of 19 Page ID #:6 1 has acquired common law trademark rights in the Godzilla name and Godzilla 2 Character. 3 16. Toho’s federally-registered trademarks and common law trademark 4 rights in the Godzilla Character are collectively referred to herein as the “Godzilla 5 Marks.” 6 7 17. The Godzilla Character and Godzilla Marks are famous throughout the United States and are immediately recognizable to and known by the public. 8 10 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 Defendants’ Infringing Conduct 18. Toho is informed and believes, and based thereon alleges, that on or 11 about May 9, 2015, on the eve of the 2015 Cannes Film Festival, Voltage circulated 12 an email blast to potential investors, distributors, sales agents, and others in the 13 entertainment community announcing a new film project called “Colossal.” The 14 email featured three large photos: the Godzilla Character, actress Anne Hathaway, 15 and a giant robot. Below the photos was a description of the project: “Gloria is an 16 ordinary woman who finds herself in an extraordinary circumstance. Tokyo is 17 under attack by Godzilla and a giant robot and, for some strange reason, Gloria is 18 the only person who can stop it. In order to do so, Gloria needs to figure out why 19 her seemingly insignificant existence has such a colossal effect on the fate of the 20 world.” A true and correct copy of the above-referenced portion of the email blast 21 appears below: 22 23 24 25 26 27 28 84800-00001/2386564.3 5 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 7 of 19 Page ID #:7 1 2 3 4 5 6 7 8 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 12 13 14 15 16 19. Toho is informed and believes, and based thereon alleges, that the 17 image of Godzilla included in Defendants’ email blast was taken directly from a 18 publicity photo for the 2014 Godzilla Film, as depicted below: 19 20 21 22 23 24 25 26 27 28 84800-00001/2386564.3 6 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 8 of 19 Page ID #:8 1 20. Accompanying Defendants’ email blast was a document containing 2 “Director’s Notes” from Vigalondo, the writer and director of Colossal. These 3 notes begin with a full page silhouette depiction of the Godzilla Character. A true 4 and correct copy of the silhouette image appears below: 5 6 7 8 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 12 13 14 15 16 17 18 19 20 21 22 23 21. In addition to the introductory silhouette, the Director’s Notes contain 24 several other images of the Godzilla Character taken from images appearing in 25 Toho’s series of Godzilla films, the 2014 Godzilla Film, and authorized Godzilla 26 merchandise. Some of these images from the Director’s Notes appear below. 27 28 84800-00001/2386564.3 7 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 9 of 19 Page ID #:9 1 2 3 4 5 6 7 8 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 12 13 14 15 16 17 18 19 20 21 22 22. The Director’s Notes also make clear that Defendants have not only 23 taken the Godzilla Character as their own, but that they also intend to use the 24 Godzilla Character in precisely the same way that Toho used the character in its 25 initial film – attacking Tokyo. As stated therein, “[W]e need scenes with the 26 monsters crushing Tokyo. . .” 27 28 84800-00001/2386564.3 8 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 10 of 19 Page ID #:10 1 23. Upon investigation, Toho learned that Vigalondo gave an interview in 2 August 2014 in which he made clear that he intends to create an unauthorized 3 derivative work based on the Godzilla Character: The script I finished and want to get financing for is 5 a twist on the kaiju eiga genre, the Godzilla genre. It’s 6 going to be the cheapest Godzilla movie ever, I 7 promise. It’s going to be a serious Godzilla movie but 8 I’ve got an idea that’s going to make it so cheap that 9 you will feel betrayed. You’re going to be so frustrated 10 by it, it’s not even possible. 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 4 The way I wrote the movie – and I don’t want to 12 explain too much – I found a way that is honest and 13 logical to make Godzilla in a costume, destroying cities, 14 models all the time. I wrote the movie in a way that the 15 story has a twist so it makes sense to do Godzilla this 16 way and I’m going to try to be the guy inside the costume 17 because I love filmmaking to the core and I’m a film 18 lover, one of dreams is not to direct a Godzilla movie but 19 to be inside the costume and destroy the cities. I want to 20 be the guy in the costume. 21 24. Consistent with their email blast, Defendants sought to find 22 distributors and others who would be interested in investing in and/or distributing 23 their unauthorized Godzilla film. At their suite at the 2015 Cannes Film Festival, 24 Defendants again advertised their project using the Godzilla Character. 25 Defendants’ sales booklet features a photograph of the Godzilla Character 26 accompanied by text stating that “Tokyo is under attack by Godzilla.” 27 Defendants also featured a poster for their project, with the Godzilla Character 28 depicted in the upper right hand corner: 84800-00001/2386564.3 9 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 11 of 19 Page ID #:11 1 2 3 4 5 6 7 8 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 12 13 14 15 16 17 18 25. Toho is informed and believes, and based thereon alleges, that 19 Defendants have knowingly used the Godzilla Character to attract interest and 20 attention in their “Colossal” project so that it would stand out in a crowded field of 21 competitors on the film sales circuit. 22 26. At no time did Defendants seek or obtain Toho’s permission or 23 consent to use or feature the Godzilla Character, or any substantially or confusingly 24 similar character, in their email blast, their advertising material or in their film 25 project. Upon learning of Defendants’ infringing activities, Toho demanded that 26 Defendants cease their exploitation of the Godzilla Character, but Defendants 27 refused to do so. 28 84800-00001/2386564.3 10 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 12 of 19 Page ID #:12 1 FIRST CLAIM FOR RELIEF 2 Against All Defendants For Copyright Infringement 3 contained in paragraphs 1 through 26, inclusive, as though they were fully set forth 5 herein. 28. By advertising, promoting, developing, producing, distributing, and 7 otherwise exploiting their own film using the Godzilla Character or a character 8 substantially similar to Godzilla, and/or by authorizing or contributing to the 9 foregoing, without Toho’s permission or consent, Defendants have infringed 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Toho realleges and incorporates by this reference the allegations 4 6 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 27. Toho’s copyright interests in Godzilla. 29. Toho is informed and believes, and based thereon alleges, that 12 Defendants’ infringing acts were, and continue to be, committed willfully and 13 knowingly. 14 30. As a direct and proximate result of Defendants’ copyright infringement 15 as alleged above, Toho has suffered and will continue to suffer injury and damage 16 in an amount to be determined at trial. Furthermore, Toho is informed and believes, 17 and based thereon alleges, that Defendants have received or will receive profits, 18 gains, or other benefits from their infringing activities, all of which should be 19 disgorged to Toho. In the alternative, Toho reserves the right to elect statutory 20 damages of up to $150,000 for Defendants’ willful infringement of each of its 21 copyrighted works. 22 31. Defendants’ infringement of Toho’s copyrighted works has caused and 23 will cause irreparable harm to Toho which cannot be fully compensated by money. 24 Toho has no adequate remedy at law. Therefore, in addition to monetary damages, 25 Toho is entitled to preliminary and permanent injunctive relief preventing 26 Defendants from continuing to infringe Toho’s copyrighted works. 27 28 32. Toho has and will incur attorneys’ fees in pursuing this action, which Toho is entitled to recover from Defendants, pursuant to 17 U.S.C. § 505. 84800-00001/2386564.3 11 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 13 of 19 Page ID #:13 1 SECOND CLAIM FOR RELIEF 2 Against All Defendants For 3 Trademark Infringement – 15 U.S.C. § 1114 4 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Toho realleges and incorporates by this reference the allegations 5 contained in paragraphs 1 through 26, inclusive, as though they were fully set forth 6 herein. 7 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 33. 34. By using the Godzilla Marks in connection with the advertising, 8 offering for sale, sale or other exploitation of their film project, and/or by 9 authorizing or contributing to the foregoing, without Toho’s permission and 10 consent, Defendants have infringed Toho’s interests in the Godzilla Character and 11 Godzilla Marks. Such conduct is likely to cause confusion, mistake or deception in 12 violation of 15 U.S.C. § 1114. 13 35. As a direct and proximate result of Defendants’ wrongful conduct, 14 Toho has been damaged and is entitled to recover Defendants’ wrongfully obtained 15 profits and three times Toho’s actual damages, pursuant to 15 U.S.C. § 1117(a). 16 36. Defendants’ violation of the Lanham Act has caused and will cause 17 irreparable harm to Toho which cannot be fully compensated by money. Toho has 18 no adequate remedy at law. Therefore, in addition to monetary relief, Toho is 19 entitled to preliminary and permanent injunctive relief preventing Defendants from 20 continuing to use Toho’s Godzilla Character or Godzilla Marks, or any confusingly 21 similar variations, on or in connection with any products, goods or services, or the 22 advertising of any products, goods or services. 23 37. Toho is informed and believes, and based thereon alleges, that 24 Defendants engaged in the foregoing conduct knowingly, willfully and 25 oppressively, intending to appropriate Toho’s intellectual property to the detriment 26 of Toho and to the confusion of the public. This constitutes an exceptional case 27 within the meaning of Section 35 of the Lanham Act, 15 U.S.C. § 1117, for which 28 Toho is entitled to its attorneys’ fees. 84800-00001/2386564.3 12 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 14 of 19 Page ID #:14 1 THIRD CLAIM FOR RELIEF 2 Against All Defendants For Violation Of 3 Section 43(a) Of The Lanham Act 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 4 38. Toho realleges and incorporates by this reference the allegations 5 contained in paragraphs 1 through 26 and 34, inclusive, as though they were fully 6 set forth herein. 7 39. By using the Godzilla Character and the Godzilla Marks in connection 8 with the advertising, offering for sale, sale or other exploitation of their film 9 project, and/or by authorizing or contributing to the foregoing, without Toho’s 10 permission and consent, Defendants have created, and will continue to create, 11 confusion in the marketplace and have falsely created the impression in the minds 12 of the public that Toho and its Godzilla Character and Godzilla Marks are somehow 13 associated or affiliated with Defendants, that Toho is somehow sponsoring or 14 endorsing Defendants’ film project and/or that Toho approved or authorized 15 Defendants’ use of the Godzilla Character or Godzilla Marks. Such conduct 16 violates section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 17 40. As a direct and proximate result of Defendants’ wrongful conduct, 18 Toho has been damaged and is entitled to recover Defendants’ wrongfully obtained 19 profits and three times Toho’s actual damages, pursuant to 15 U.S.C. § 1117(a). 20 41. Defendants’ violation of the Lanham Act has caused and will cause 21 irreparable harm to Toho which cannot be fully compensated by money. Toho has 22 no adequate remedy at law. Therefore, in addition to monetary relief, Toho is 23 entitled to preliminary and permanent injunctive relief preventing Defendants from 24 continuing to use Toho’s Godzilla Character or Godzilla Marks, or any confusingly 25 similar variations, on or in connection with any products, goods or services, or the 26 advertising of any products, goods or services. 27 28 42. Toho is informed and believes, and based thereon alleges, that Defendants engaged in the foregoing conduct knowingly, willfully and 84800-00001/2386564.3 13 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 15 of 19 Page ID #:15 1 oppressively, intending to appropriate Toho’s intellectual property to the detriment 2 of Toho and to the confusion of the public. This constitutes an exceptional case 3 within the meaning of Section 35 of the Lanham Act, 15 U.S.C. § 1117, for which 4 Toho is entitled to its attorneys’ fees. 5 6 FOURTH CLAIM FOR RELIEF 7 Against All Defendants For Violation Of 8 Federal Anti-Dilution Law (15 U.S.C. § 1125(c)) 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 43. Toho realleges and incorporates by this reference the allegations 10 contained in paragraphs 1 through 26, 34 and 39, inclusive, as though they were 11 fully set forth herein. 12 44. By using the Godzilla Character and the Godzilla Marks in connection 13 with the advertising, offering for sale, sale or other exploitation of their film 14 project, and/or by authorizing or contributing to the foregoing, without Toho’s 15 permission and consent, Defendants have created, and will continue to create, 16 dilution of the distinctive quality of Toho’s famous Godzilla Character and 17 Godzilla Marks. 18 45. Toho is informed and believes, and based thereon alleges, that 19 Defendants’ use and exploitation of the Godzilla Character and the Godzilla Marks 20 was willful and intentional, that Defendants were aware of Toho’s Godzilla 21 Character and Godzilla Marks, and that Defendants purposefully used Toho’s 22 character and marks to trade on Toho’s reputation, to cause confusion, mistake 23 and/or deception, and to take advantage of the goodwill and public recognition 24 associated with the Godzilla Character and the Godzilla Marks for their own 25 commercial advantage. 26 46. As a direct and proximate result of Defendants’ wrongful conduct, 27 Toho has been damaged and is entitled to recover Defendants’ wrongfully obtained 28 profits and three times Toho’s actual damages, pursuant to 15 U.S.C. § 1117(a). 84800-00001/2386564.3 14 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 16 of 19 Page ID #:16 1 will cause irreparable harm to Toho which cannot be fully compensated by money. 3 Toho has no adequate remedy at law. Therefore, in addition to monetary relief, 4 Toho is entitled to preliminary and permanent injunctive relief preventing 5 Defendants from continuing to use Toho’s Godzilla Character or Godzilla Marks, 6 or any confusingly similar variations, on or in connection with any products, goods 7 or services, or the advertising of any products, goods or services. 9 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Defendants’ violation of the federal Anti-Dilution Law has caused and 2 8 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 47. 48. Toho is informed and believes, and based thereon alleges, that Defendants engaged in the foregoing conduct knowingly, willfully and 10 oppressively, intending to appropriate Toho’s intellectual property to the detriment 11 of Toho and to the confusion of the public. This constitutes an exceptional case 12 within the meaning of Section 35 of the Lanham Act, 15 U.S.C. § 1117, for which 13 Toho is entitled to its attorneys’ fees. 14 15 FIFTH CLAIM FOR RELIEF 16 Against All Defendants for Common Law Unfair Competition 17 49. Toho realleges and incorporates by this reference the allegations 18 contained in paragraphs 1 through 26, 34, 39 and 44, inclusive, as though they were 19 fully set forth herein. 20 50. By their conduct as alleged above, Defendants have violated and 21 infringed Toho’s common law rights in its Godzilla Character and Godzilla Marks, 22 and have otherwise competed unfairly with Toho in violation of the common law of 23 the state of California. 24 25 26 51. As a direct and proximate result of Defendants’ conduct, Toho has suffered and is entitled to monetary damages in an amount to be proven at trial. 52. Defendants’ unlawful conduct has caused and will cause irreparable 27 harm to Toho which cannot be fully compensated by money. Toho has no adequate 28 remedy at law. Therefore, in addition to monetary relief, Toho is entitled to 84800-00001/2386564.3 15 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 17 of 19 Page ID #:17 1 preliminary and permanent injunctive relief enjoining Defendants from engaging in 2 further acts of unfair competition. 3 4 SIXTH CLAIM FOR RELIEF 5 Against All Defendants for Unjust Enrichment 6 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Toho realleges and incorporates by this reference the allegations 7 contained in paragraphs 1 through 26, 34, 39 and 44, as though they were fully set 8 forth herein. 9 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 53. 54. By their conduct as alleged above, Defendants have unjustly retained a 10 benefit to the detriment of Toho, and such benefit violates fundamental principles 11 of justice, equity and good conscience. 12 13 55. Accordingly, Toho is entitled to an order requiring Defendants to disgorge any and all such ill-gotten gains to Toho. 14 15 PRAYER FOR RELIEF 16 WHEREFORE, Toho prays judgment on its Complaint as follows: 17 1. For preliminary and permanent injunctive relief restraining and 18 enjoining Defendants and their officers, directors, agents, servants, employees, 19 representatives, partners, subsidiaries and attorneys, and all other persons or entities 20 acting in concert or participation with them or at their direction from: 21 22 (a) producing, distributing, exhibiting, and otherwise exploiting their film project entitled Colossal; and 23 (b) using the Godzilla Character, Godzilla Marks or any other 24 confusingly similar variation thereof, in connection with any film, or for any 25 advertising or promotional purposes; 26 2. For Toho’s damages according to proof; 27 3. At Toho’s election, for statutory damages for willful copyright 28 infringement pursuant to 17 U.S.C. § 504(c); 84800-00001/2386564.3 16 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 18 of 19 Page ID #:18 1 profits and other benefits which they received by reason of Defendants’ unlawful 3 conduct alleged herein; 5 6 7 5. That the amount of all monetary recovery be increased as provided by applicable law, up to three times; 6. For an order requiring Defendants to disgorge any and all gains or benefits conferred upon Defendants as a result of their violations of law; 8 7. For Toho’s attorneys’ fees and expenses; 9 8. For Toho’s costs of suit incurred herein; and 10 9. For such other and further relief as the Court may deem just and 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 That Defendants be required to account for and pay over to Toho their 2 4 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 4. proper. 12 13 DATED: May 19, 2015 14 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 15 By: /s/ Aaron J. Moss CHARLES N. SHEPHARD AARON J. MOSS Attorneys for Plaintiff TOHO CO., LTD. 16 17 18 19 20 21 22 23 24 25 26 27 28 84800-00001/2386564.3 17 COMPLAINT Case 2:15-cv-03772-RGK-RAO Document 1 Filed 05/19/15 Page 19 of 19 Page ID #:19 1 DEMAND FOR JURY TRIAL 2 3 4 Plaintiff Toho Co., Ltd. hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of Civil Procedure. 5 6 DATED: May 19, 2015 7 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 8 By: 10 11 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 9 /s/ Aaron J. Moss CHARLES N. SHEPHARD AARON J. MOSS Attorneys for Plaintiff TOHO CO., LTD. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 84800-00001/2386564.3 18 COMPLAINT