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Perfect 10 v. Megaupload - Complaint
Perfect 10 v. Megaupload - Complaint
COMPLAINT
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1 all times material herein, each of the Defendants was the agent and/or employee
2 of the other Defendants, and, in doing the things herein averred, was acting
3 within the course and scope of such agency and employment.
4 11. Each of the entity defendants herein is the alter ego of Schmitz in
5 that a unity of interest and ownership exists between he and the corporate
6 entities such that there does not exist a separateness between them and an
7 injustice would result if the acts in question were treated as those of only one of
8 the entities defendants. Schmitz formed Megaupload for the specific purpose of
9 engaging in the business of illegally storing, displaying, and distributing the
10 intellectual property of others. On information and belief, Schmitz alone profits
11 from the revenues derived from these entities and neither Megaupload entity
12 pays any taxes in the United States. Furthermore, neither is registered to
13 conduct business in the United States with any Secretary of State office. The
14 megaupload.com, megaporn.com, megarotic.com, megavideo.com, and
15 megaclick websites fail to identify a telephone number, or the identities of any
16 officers or directors.
17 THE BUSINESS OF PERFECT 10
18 12. The business of Perfect 10 consists of the design, creation,
19 production, marketing, promotion, and sale of copyrighted adult entertainment
20 products, including photographs, magazines, video productions, cell phone
21 downloads, and other media.
22 13. Perfect 10 was the publisher of the well-known magazine
23 PERFECT 10, but was forced to close that magazine because of rampant
24 infringement.
25 14. Perfect 10 creates or created, and sells or sold, calendars and other
26 merchandise featuring its images, and was involved in the licensing of
27 downloads of images for cell phones, but is not currently earning revenue from
28 that endeavor because of rampant infringement.
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1 built and owns the valuable goodwill symbolized by the Perfect 10 Marks.
2 Three of Perfect 10's registered trademarks, registration numbers 2235145,
3 2202643, and 2573998, have become incontestable under Section 15 of the
4 Lanham Act, 15 U.S.C. Section 1065.
5 19. Goods and services bearing the Perfect 10 Marks have been
6 featured and/or talked about on numerous television and radio shows (including
7 The Tonight Show, The Sopranos, The Amazing Race, Entourage, The Howard
8 Stern Show, Dawson’s Creek, Battledome, Fox News, Hard Copy, Entertainment
9 Tonight, Extra, The Dating Game, Temptation Island, Monday Night Football,
10 Hannity & Colmes, The O’Reilly Factor, The View, and Jenny Jones), in motion
11 pictures (including Orphan, Superbad, Knocked Up, Spiderman, American Pie,
12 Hollow Man, and The Way of the Gun), and in newspapers and periodicals.
13 20. The Perfect 10 Rights of Publicity: Perfect 10 contracts with
14 models in connection with its magazine and website. Perfect 10 secures
15 assignments from some of those models of their rights of publicity (the “Perfect
16 10 Rights of Publicity”). The Perfect 10 Rights of Publicity are valuable
17 because the identities, including the names and likenesses, of these models are
18 well-known and popular and attract/attracted purchasers of PERFECT 10
19 magazine and visitors and subscribers to perfect10.com.
20 21. The success of Perfect 10’s business is almost entirely dependent
21 on its intellectual property rights. Therefore, the ongoing and massive
22 infringements of Perfect 10’s rights, as herein described, is devastating to, and
23 threatens the existence of, Perfect 10’s business.
24 THE BUSINESS OF MEGAUPLOAD
25 22. Megaupload operates the internet websites megaupload.com,
26 megaporn.com, megarotic.com, megavideo.com, and megaclick.com, among
27 others, which are accessible throughout the United States and the world.
28 Megaupload.com, megaporn.com, megarotic.com, and megavideo.com are pirate
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1 Perfect 10 copyright notices, along with files that are labeled “Perfect 10” or
2 Perfect-10.
3 (c) Third, upon information and belief, Megaupload does not
4 own anything that it sells access to. Whether or not someone else uploaded the
5 copyrighted material to Megaupload servers does not give Megaupload the right
6 to make copies of, distribute, display, or sell access to those works.
7 FIRST CLAIM FOR RELIEF
8 (Copyright Infringement)
9 Against All Defendants
10 31. Perfect 10 re-avers and incorporates herein by reference each and
11 every averment of paragraphs 1 through 30 above as though fully set forth
12 herein.
13 32. Perfect 10 is the owner of all right, title, and interest to each of the
14 Perfect 10 Copyrighted Works. Perfect 10 has registered its works with the
15 United States Copyright Office. Perfect 10 has been issued United States
16 copyright certificates some of which are listed on Exhibit 1, attached hereto.
17 33. Each of the Perfect 10 Copyrighted Works consists of material
18 original with Perfect 10 and each is copyrightable subject matter.
19 34. Defendants have copied, reproduced, distributed, adapted, and/or
20 publicly displayed the Perfect 10 Copyrighted Works without the consent or
21 authority of Perfect 10, thereby directly infringing Perfect 10’s copyrights.
22 35. Defendants’ conduct constitutes infringement of Perfect 10’s
23 copyrights and exclusive rights under copyright in the Perfect 10 Copyrighted
24 Works in violation of Sections 106 and 501, et. seq. of the United States
25 Copyright Act, 17 U.S.C. §§ 106 and 501.
26 36. Defendants have induced, caused, and/or materially contributed to
27 unauthorized copying, reproduction, adaptation, public display, and/or
28 distribution of the Perfect 10 Copyrighted Works.
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1 to 17 U.S.C. § 505.
2 SECOND CLAIM FOR RELIEF
3 (Trademark Infringement)
4 Against All Defendants
5 46. Perfect 10 re-avers and incorporates herein by reference each and
6 every averment of paragraphs 1 through 45 above as though fully set forth
7 herein.
8 47. Perfect 10 is the owner of the Perfect 10 Marks, including the
9 registered trademark/service marks PERFECT 10, PERFECT10.COM, and P10.
10 The United States trademark/service mark registrations for PERFECT 10,
11 PERFECT10.COM, and P10 include Registration Nos. 2,202,643, 2,235,145,
12 2,573,998, 2,709,583, and 3,094,437 for, among other goods and services,
13 entertainment services in the nature of adult entertainment and beauty contests
14 provided via a global computer network; entertainment services in the nature of
15 beauty contests; and magazines featuring adult entertainment, beauty contests,
16 pictures of female models, interviews, fiction, and articles on human relations,
17 sports, entertainment, lifestyles, fitness, and calendars and unmounted
18 photographs.
19 48. The Perfect 10 Marks have been continuously used in commerce by
20 Perfect 10 and its predecessors, and are widely known throughout the United
21 States. Three of Perfect 10's registered trademarks, registration numbers
22 2235145, 2202643, and 2573998 have become incontestable under Section 15 of
23 the Lanham Act, 15 U.S.C. Section 1065.
24 49. Perfect 10 has spent millions of dollars promoting and advertising
25 the Perfect 10 Marks and products and services bearing the Perfect 10 Marks,
26 and has marketed and sold millions of dollars of products and services under the
27 Perfect 10 Marks.
28 50. As a direct result of the aforementioned use, promotion, and
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1 advertisement of the Perfect 10 Marks, Perfect 10 has built up and now owns
2 valuable goodwill symbolized by the Perfect 10 Marks.
3 51. As a direct result of the care and skill exercised by Perfect 10 over
4 the nature and quality of goods and services sold under the Perfect 10 Marks and
5 the extensive promotion, advertising, sale, and public acceptance thereof, the
6 Perfect 10 Marks have become known as a symbol of the goodwill that Perfect
7 10 has created throughout the United States and elsewhere by selling products
8 and services of high quality and by fairly and honorably dealing with the trade
9 and public in the sale of these products and services.
10 52. Defendants’ conduct, as averred herein, including using and
11 reproducing the Perfect 10 Marks in commerce in connection with the sale,
12 offering for sale, and advertising of goods and services on Megaupload websites
13 and by Affiliated Infringing Websites, for the purpose or with the effect of
14 directing consumers who are searching for authorized Perfect 10 products and
15 services to the Affiliated Infringing Websites and to Megaupload, constitutes
16 infringement of the Perfect 10 Marks in violation of Sections 32 and 43 of the
17 Lanham Act, 15 U.S.C. §§ 1114 and 1125.
18 53. Defendants’ conduct constitutes contributory infringement of the
19 Perfect 10 Marks.
20 54. Defendants’ conduct constitutes vicarious infringement of the
21 Perfect 10 Marks.
22 55. Defendants’ conduct has been and is willful and deliberate.
23 56. Perfect 10 is entitled to recover all damages sustained as a result of
24 Defendants’ unlawful conduct, including (a) Defendants’ profits, (b) Perfect 10’s
25 damages, (c) treble those amounts, (d) costs of suit, and (e) reasonable attorneys’
26 fees.
27 57. Defendants’ conduct is causing and, unless enjoined and restrained
28 by this Court, will continue to cause, Perfect 10 great and irreparable injury that
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