JAMES C. MAHAN, District Judge.
Plaintiffs BELLAGIO, LLC AND MIRAGE RESORTS, INC. and Defendants BELLAGIO CAR WASH & EXPRESS LUBE and TRI STAR CAR WASH state the following:
1. Plaintiffs have moved the Court for leave to file an amended complaint that more accurately identifies the Defendants in this action. (Doc. No. 17.)
2. The Defendants do not object to the proposed amendment.
3. Accordingly, Plaintiffs may file the proposed First Amended Complaint attached hereto as Exhibit A.
4. Plaintiffs hereby withdraw their motion for leave to file an amended complaint. (Doc. No. 17.)
For their complaint, Plaintiffs Bellagio, LLC, and Mirage Resorts, Incorporated ("MRI") (collectively defined below as "Bellagio") allege as follows:
1. This is an action by Plaintiffs Bellagio, LLC, and its parent, MRI, against Defendants Tri Star Auto Spa Inc. ("Tri Star") and Kislev, Inc. ("Kislev") (together "Defendants") for trademark dilution and cybersquatting arising out of Defendants' unauthorized and unlawful use in commerce of Plaintiffs' federally registered BELLAGIO trademarks in connection with Defendants' operation of a car wash in Lawndale, California. In this action, Plaintiffs seek injunctive relief as well as damages, attorneys' fees and costs.
2. This Court has original subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 1338, because Plaintiffs' claims arise under the federal trademark laws. This Court has supplemental jurisdiction over Plaintiffs' state and common law claims under 28 U.S.C. § 1367, because those claims are related to claims under this Court's original jurisdiction and form part of the same case or controversy under Article III of the United States Constitution.
3. This Court has personal jurisdiction over Defendants. Upon information and belief, the Defendants purposefully, willfully, and/or intentionally infringed upon Plaintiffs' BELLAGIO trademarks by adopting the world-famous BELLAGIO mark with the scripted B used by the Bellagio. Upon information and belief, the Defendants adopted this mark with the knowledge that the Bellagio hotel and casino is located in Nevada and with the knowledge that Plaintiffs would likely suffer injury or harm resulting from the infringement in Nevada. Defendants have purposefully directed their tortious conduct and activities at Plaintiffs in Nevada and Plaintiffs' claims arise out of such conduct and their activities directed at Plaintiffs in Nevada. The exercise of personal jurisdiction over Defendants is reasonable.
4. Venue is proper pursuant to 28 U.S.C. § 1391(b), because jurisdiction is not founded solely on diversity of citizenship and a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred, or a substantial part of property that is the subject of this action, is situated in this judicial district.
5. Bellagio, LLC is a Nevada limited liability company with its principal place of business in Las Vegas, Nevada. Bellagio owns and operates the Bellagio resort hotel and casino in Las Vegas, Nevada.
6. Mirage Resorts, Incorporated (defined above as "MRI") is a Nevada corporation with its principal place of business in Las Vegas, Nevada. MRI is the parent company of Bellagio and owns the BELLAGIO Marks (defined below) used by Bellagio, LLC. (For convenience, MRI and Bellagio, LLC, will be collectively referred to as "Bellagio" throughout the Complaint.)
7. Upon information and belief, Defendants Tri Star Auto Spa Inc. and Kislev, Inc. are commonly owned California corporations that ccurrently operate a car wash under the name "Bellagio Car Wash & Express Lube" located at 4457 Manhattan Beach Blvd, Lawndale, California, 90260. Defendants also operate aa website at <bellagiocarwash.com>. Upon information and belief, Tri Star is the registrant offthe <bellagiocarwash.com> domain name.
8. The Bellagio is a world-famous resort hotel and casino located on the Las Vegas Strip in Las Vegas, Nevada. The Bellagio features 3,933 guest rooms, 100,000 square feet of gaming, five pools, the Fountains of Bellagio, a conservatory and botanical garden, the Bellagio Gallery of Fine Art, a luxury shopping promenade, a spa andd salon, Cirque du Soleil's O show, world-renowned restaurants, lounges, a nightclub, wedding chapels, convention and meeting rooms, and other amenities.
9. Since opening in 1998, Bellagio has continuously used the BELLAGIO trademark, including the BELLAGIO word mark and a mark comprised of the word BELLAGIO against an enlarged scripted B ("B BELLAGIO Mark") (collectively, "BELLAGIO Marks") in connection with a wide variety of goods and services.
10. Bellagio has received widespread recognition and numerous awards. Some of these awards include:
11. Bellagio has spent millions of dollars to advertise and promote the BELLAGIO Marks and the associated goods and services in a variety of media, including, print, broadcast, and on the Internet through the web site accessible at < bellagio.com >.
12. Bellagio has been featured in the media throughout the United States and around the world, including in newspapers, magazines, television programs, and movies, such as Ocean's Eleven and Ocean's Thirteen.
13. Millions of consumers visit the Bellagio each year.
14. Bellagio owns several federal tradeemark registrations for the BELLAGIO Marks on the Principal Register of the United States Patent and Trademark Office ("USPTO") including:
15. Plaintiffs' federal trademark registrations for the BELLAGIO Marks are valid and subsisting, and have not been abandoned, cancelled, or revoked.
16. In addition to its federal trademark registrations, Bellagio owns Nevada state trademark registrations and common law rights in and to the BELLAGIO Marks for a variety of goods and services.
17. Based on the widespread recognition of the BELLAGIO Marks, Bellagio's extensive and widespread use of the BELLAGIO Marks, and other relevant factors, the BELLAGIO Marks have become famous within the meaning of the Trademark Dilution Revision Act.
18. Bellagio owns the exclusive right to use the BELLAGIO Marks in the United States and the right to stop others from using the same or similar marks for even unrelated uses.
19. Defendants have been using the BELLAGIO Marks in commerce to advertise, offer to sell, and sell car washes under the business named BELLAGIO CAR WASH & EXPRESS LUBE located at 4457 Manhattan Beach Blvd, Lawndale, California.
20. Below is a comparison of Defendants' exterior signage and the BELLAGIO mark:
21. Defendants began using the name BELLAGIO CAR WASH & EXPRESS LUBE after the BELLAGIO Marks were first used, registered and became famous.
22. Not only have Defendants adopted a mark that copies Plaintiffs' famous BELLAGIO Marks, Defendants have adopted, registered and used the <bellagiocarwash.com> domain name. This domain name is registered to Tri Star Car Wash located at 6344 Sepulveda Blvd., Van Nuys, California.
23. Defendants' use of the BELLAGIO Marks is designed to usurp and wrongfully trade off of the substantial investment and goodwill Plaintiffs have developed in the BELLAGIO Marks. Specifically, Defendants hope to use the BELLAGIO Marks to usurp and wrongfully trade off of Plaintiffs' well-known reputation for high quality and luxury products and services.
24. The Defendants' operation of a car wash using the BELLAGIO mark after Plaintiffs' BELLAGIO Marks have acquired nationwide fame is likely to dilute the distinctiveness of Plaintiffs' BELLAGIO Marks.
25. Plaintiffs' counsel has sent two cease and desist letters to Defendant Bellagio Car Wash & Express Lube demanding that Defendant immediately cease and desist from any and all use of the BELLAGIO Marks and provide a written response to Plaintiffs' counsel by September 17, 2013. Defendant failed to respond to the cease and desist letters.
26. Plaintiffs have not authorized, consented to, or otherwise licensed Defendants to make any use whatsoever of Plaintiffs' BELLAGIO Marks in commerce.
27. Plaintiffs incorporate the allegations in the preceding paragraphs as if fully set forth herein.
28. Since 1998, Plaintiffs have engaged in extensive, continuous, and substantially exclusive use of their distinctive BELLAGIO Marks in commerce such that consumers throughout the United States have come to recognize and associate the BELLAGIO Marks uniquely with Plaintiffs.
29. Accordingly, the BELLAGIO Marks have become famous throughout the United States, within the meaning of the Federal Trademark Dilution Act. While not pertinent to this cause of action, Plaintiffs also note that the BELLAGIO Marks have achieved international fame as well.
30. The Defendants have unlawfully adopted and begun using the BELLAGIO Marks in commerce without Plaintiffs' consent, authorization, or license.
31. The Defendants' unlawful adoption and use in commerce of the BELLAGIO Marks without Plaintiffs' consent, authorization, or license, began after the BELLAGIO Marks became famous in the United States.
32. The Defendants' unauthorized and unlawful adoption and use in commerce of a mark that is identical to or confusingly similar to Plaintiffs' BELLAGIO Marks is likely to dilute the distinctiveness of Plaintiffs' BELLAGIO Marks within the meaning of the Federal Trademark Dilution Act. and will continue to suffer irreparable injury and damages in an amount to be determined at trial.
34. Plaintiffs incorporate the allegations in the preceding paragraphs as if fully set forth herein.
35. The Defendants have registered, trafficked in, and/or used the <www.bellagiocarwash.com> domain.
36. The <www.bellagiocarwash.com> domain name is confusingly similar to Plaintiffs' BELLAGIO Marks.
37. The <bellagiocarwash.com> domain name is confusingly similar to Plaintiffs' own website, <bellagio.com>.
38. Plaintiffs' BELLAGIO Marks were distinctive and/or famous when Defendants registered, trafficked in, and/or used the <bellagiocarwash.com> domain.
39. Upon information and belief, the Defendants have or had a bad faith intent to profit from Plaintiffs' BELLAGIO Marks when it registered, trafficked in, and/or used the <bellagiocarwash.com> domain.
40. As a direct and proximate result of Defendants' conduct, Plaintiffs have suffered, and will continue to suffer, monetary loss and irreparable injury to their business, reputation, and goodwill.
B. Enter a preliminary and permanent injunction, pursuant to 15 U.S.C. § 1116(a) and 15 U.S.C. § 1125(d)(1)(C), prohibiting the Defendants and their respective officers, agents, servants, employees, and/or all other persons acting in concert or participation with them, from using the BELLAGIO Marks, or any confusingly similar variations thereof, in any Internet domain name, and requiring any registrar of the domain name <www.bellagiocarwash.com> to immediately place the domain name on hold and lock, prohibiting its transfer, and, upon the entry of judgment in Bellagio's favor or further order of the Court, transferring the registration for the domain name to Bellagio;
C. Enter an order awarding Plaintiffs compensatory, consequential, statutory, and/or exemplary damages in an amount to be determined at trial;
E. Enter an order awarding Plaintiffs reasonable attorneys' fees under the Lanham Act;
F. Enter an order awarding Plaintiffs costs incurred in connection with this matter; and
G. Enter an order awarding Plaintiffs such other and further relief as the Court deems just and equitable.