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MITCHELL D. KAMARCK
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT ALYSSA MILANO, an individual, Plaintiff, VS.
JOHN LINDGREN, an individual Defendants. JURY TRIAL DEMANDED
Case No. 98-3246 Plaintiff ALYSSA MILANO, by her attorneys, Rosenfeld, Meyer & Susman, LLP. for her Complaint against defendants JOHN LINDGREN, an individual doing business as Sex Picture and nudecelebrity.com, SEX PICTURE, a business entity of unknown form, MACHINENET, a business entity of unknown form, ALEXANDER POPARIC, an individual doing business as Machinenet and 10000celebs.com, and SASHA POPARIC, an individual doing business as Machinenet and 10000celebs.com. alleges:
1.This is an action for misappropriation of Alyssa Milano's identity in violation of the California common law of publicity and privacy, misappropriation of Alyssa Milano's right of publicity pursuant to California Civil Code Section 3344, unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a), trademark dilution under Section 43(c) of the Lanham Act, and for placing Alyssa Milano in a false light. Plaintiff seeks injunctive relief, an accounting and damages.
2. Jurisdiction over Alyssa Milano's claims under the Lanham Act arises under 28 U.S.C. Sections 1331 and 1338(a). Jurisdiction over Alyssa Milano's claims under state and common law arise under 28 U.S.C. Sections 1367 and 1338(b) and principles of pendent jurisdiction. 3. Venue is proper in this judicial district pursuant to U.S.C. Sections 1391(b) and 1392(a).
4. Plaintiff Alyssa Milano is a resident of the County of Los Angeles, California and utilizes her name, Alyssa Milano, in her profession as an actress and musician. 5. Upon information and belief, defendant Alexander Poparic is an individual residing in the County of Los Angeles, California and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 6. Upon information and belief, defendant Sasha Poparic is a resident of the County of Los Angeles and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 7. Upon information and belief, Machinenet is a business entity of unknown form with a principle place of business at 7047 Franklin Avenue, Los Angeles, California and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 8. Upon information and belief, Sasha and Alexander Poparic are doing business under the name Machinenet and 10000celebs.com and are assisting, aiding, and abetting each other and Machinenet in carrying out the activities and/or causing the injuries and damages complained of herein. Upon information and belief, at all times relevant hereto, Sasha Poparic, Alexander Poparic and Machinenet were the agents, servants and co-conspirator of each other, and was acting within the scope of such agency, employment and/or co-conspiracy in carrying out the activities alleged herein. 9. Upon information and belief, the website 10000celebs.com is available for viewing in this judicial district and members of that pornographic website are located in this judicial district and pictures of Alyssa Milano from that website are downloaded and printed in this judicial district. 10. Upon information and belief, defendant John Lindgren is a resident of the state of Minnesota and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 11. Upon information and belief, Sex Picture is a business entity of unknown form with a principal place of business at 449 S. Owasso Boulevard, Roseville, Minnesota and is doing business in this judicial district, and is and/or was carrying out the activities and/or causing the injuries and damages complained of herein in this judicial district and elsewhere. 12. Upon information and belief, John Lindgren is doing business under the name Sex Picture and nudecelebrity.com and is assisting, aiding, and abetting Sex Picture in carrying out the activities and/or causing the injuries and damages complained of herein. Upon information and belief, at all times relevant hereto, John Lindgren and Sex Picture were the agents, servants and co- conspirator of each other, and was acting within the scope of such agency, employment and/or co-conspiracy in carrying out the activities alleged herein. 13. Upon information and belief, the website nudecelebrity.com is available for viewing in this judicial district and members of that pornographic website are located in this judicial district and pictures of Alyssa Milano from that website are downloaded and printed in this judicial district.
14. Plaintiff Alyssa Milano is a well-known actress having appeared in five (5) television series, seventeen (17) theatrically released motion pictures, eight (8) television motion pictures and five (5) plays. She has also recorded five (5) record albums. 15. Milano started acting at the age of eight (8) as a member of the national touring company of Annie. Following, Annie, she appeared in a series of off-Broadway plays: Jane Eyre, Wendy Wasserstein's Tender Offer, All Night Long and Warning Signals. Her theatrical training lead to her starring in the television sitcom Who's the Boss from 1984 to 1992 as Samantha Micelli, the daughter of actor Tony Danza. During the eight year run of the show, Ms. Milano won three "Youth in Film" awards and appeared in 196 episodes. 16. During the time she was appearing in Who's The Boss, she also appeared in the theatrical motion pictures Old Enough (1984), Commando (1985), The Canterville Ghost (1986), Speed Zone! (1989), Little Sister (1992), Where the Day Takes You (1992) and the television motion pictures Dance Till Dawn (1988) and Crash Course (1988). 17. After Who's The Boss left the air in 1992, Ms. Milano appeared in numerous theatrical and television motion picture. In 1993 alone, she starred in the theatrical releases The Webbers, Double Dragon and Conflict of Interest and the television motion pictures Confessions of A Sorority Girl, Casualties of Love and Candles in the Dark. 18. Since 1993, she has starred in eight theatrical motion pictures: Embrace of the Vampire (1994), Public Enemy # 1 (1995), Poison Ivy 2: Lily (1995), Deadly Sins (1995), Glory Daze (1996), Fear (1996), Hugo Pool (1997) and Below Utopia (1998) and appeared in three television motion pictures: The Surrogate (1995), To Brave Alaska (1996) and Goldrush (1998). 19. In addition to her appearances in motion pictures, she has appeared as a special guest star in the following television series: The Outer Limits (1995), Rebel Highway (1994) and Spin City (1997). 20. In 1997, Ms. Milano appeared as a regular cast member in the television series Melrose Place. 21.Additionally, to date she has released five albums in Asia: Alyssa, Best of the World, Look In My Heart, Locked Inside A Dream and Do You See Me? Her most recent release, Do You See Me?, sold 35,000 copies in its first two weeks in release. Her first album, Look In My Heart, was second only to Madonna in Asia and went onto platinum status. Additionally, she has performed her music at the Tokyo music festival in the world famous Budoken. 22. As a result of her extensive work in television and motion pictures, Ms. Milano has become well-known throughout the world. Most recently, she has appeared on the covers of Maxim magazine, Details magazine (as one of "The Giris That Make You Lose Remote Control"), Fit magazine and in a special pullout poster in Detour magazine. TV Guide named Ms. Milano as one of television's top 20 sexy stars for 1997. 23. Ms. Milano also maintains an official website. Her website averages approximately one thousand (1,000) visitors every week. At that website, she has various information regarding her career and she rotates photographs of herself on an almost weekly basis. She has devoted substantial time and money in promoting herself and her goods and services under her birth name, Aiyssa Milano, and, in fact, the consuming public associates that name with her. Her name has become famous and distinct and is singularly associated with her.
24. Upon information and belief, the primary businesses of defendants are the creation and maintenance of pornographic websites on the Internet. Lindgren and Sex Picture maintain the pornographic website located at nudecelebrity.com and Alexander and Sasha Poparic and Machinenet maintain the pornographic website located at 10000celebs.com. 25. Upon information and belief, the pornographic websites at issue are degrading and patently offensive to the reasonable person and appearance in such websites, in itself, is personally degrading. The websites are not designed to present any newsworthy information but only to appeal to the prurient interests of the users and lacks serious literary, artistic, political, or scientific value. 26. Upon information and belief, pornographic web3ites such as 10000celebs.com and nudecelebrity.com generate revenue in three principal manners. First, pornographic websites, such as defendants', charge membership fees for users who wish to enter certain areas on the website that includes the vast majority of the pornographic material. Second, pornographic websites run banner advertisements on their pages and receive financial or other consideration depending upon the number of impressions caused by users on the particular page of the website containing the banner advertisement. These banner advertisements are, in fact, hyperlinks to the advertised website. Third, the pornographic websites receives financial or other consideration from age verification companies that register, for an annual fee, users as adults in order that the user can enter the pornographic websites. 27. As the pornographic websites receive financial or other remuneration simply from users visiting the site, they employ various methods to entice users to visit a site. Most of these methods involve the manipulation of the search engines that catalog the contents of websites on the Internet. These search engines are utilized by users throughout the United States, including this judicial district, to locate desired material or information on the Web. 28. One method employed by pornographic sites, such as the 10000celebs.com site, is the creation of metafiles or metatags that contain key words that the search engines will catalog. The metafiles are files attached to web pages that were originally designed to describe the graphics on the page. They are not immediately readable by the users but are readable by the search engines. A seven page metafile attached to a page in the 10000celebs.com site reads in pertinent part:
... 33 nude JPEG / 33 milano alyssa / 32 nude photographs/ 32 Christina applegate / 32 alyssa milano nude/ 31 shaved pussies..... 9 nude breasts / 9 nude alyssa milano 9 naked chics . . . 7 amateur sex / 7 alyssa milano pictures / 7 alyssa miiano pictures 7 alyssa milano nudes . . . 883 oral sex 855 alyssa milano / 828 blowjobs 653 cunt 488 clitoris / 331 pedophilia A true and correct copy of the 10000celebs.com metafile is attached hereafter as Exhibit A. These metafiles, in essence, serve as advertisements for such sites and are designed specifically to lure users to the site in order to produce revenue. 29. Most search engines not only include the domain name or URL of the websites that contain the requested information but also the actual words from the site surrounding the requested information. By way of example, a search for Alyssa Milano will result in the following search result: "www.10000celebs.com -- 883 oral sex / 855 alyssa milano / 828 blowjobs." 30. Additionally, in the free portion of the sites, which serve as an advertisement regarding the contents of the members-only portion of the site, the pornographic websites will include long lists of the names of celebrities who appear partially or totally nude in photographs obtainable in the members-oniy area of the website. Attached hereafter as Exhibit B is a true and correct copy of a page from the nudecelebrity.com listing over three hundred celebrities, including Alyssa Milano, whose nude pictures could be accessed in the pay area of the site. Attached hereafter as Exhibit C is a true and correct copy of a page from the 10000celebs.com listing-over two hundred celebrities, including Alyssa Milano, whose nude pictures could be accessed in the pay area of the site. Additionally, the free pages from 10000celebs.com include a picture of Ms. Milano. 31. Ms. Milano has not granted any of the defendants permission to use her name, likeness or image to promote such sites. 32. Defendants knowingly trade on and exploit Ms. Milano's identity, mark, reputation and other indicia closely associated with her. The activities of defendants are for the calculated purpose of deriving a commercial benefit from Ms. Milano's famous name. Their activities are designed to falsely suggest a connection with or sponsorship by Ms. Milano which does not exist or to cause mistake and deceive as to Ms. Milano's approval of defendants' sites. 33. In the fall of 1997 or the spring of 1998, on behalf of Ms. Milano, Cybertrackers contacted 10000celebs.com and nudecelebrity.com and informed those sites that they were impermissibly using Ms. Milano's name, likeness and/or image and to immediately cease and desist from exploiting Ms. Milano's name or image. Attached as Exhibit D is a true and correct copy of an e- mail sent to nudecelebrity.com. Defendants failed to quit exploiting Ms. Milano's name, likeness and/or image despite such warning and, instead, have continued to intentionally and maliciously exploit Ms. Milano's rights.
34. Ms. Milano repeats and realleges Paragraphs 1 through 33 as if fully set forth herein. 35. Defendants' unauthorized use of Ms. Milano's name, image and likeness is likely to cause confusion, mistake, or deception as to the source, affiliation or sponsorship of defendants and defendants' goods. The public is likely to believe that defendants' goods are somehow connected with, affiliated with or related to Ms. Milano. Defendants' unauthorized use of Ms.Milano's name and image falsely represents defendants as being legitimately connected with Ms. Milano and places beyond Ms. Milano's control her own reputation and ability to control the use of her name and image. 36. Upon information and belief, defendants' acts of unfair competition are willful and deliberate and with the intent to reap the benefits of Ms. Milano's goodwill and violates Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a). 37. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, which injuries and damages are not capable of determination or adequate remedy at law and, unless restrained, will cause further irreparable injury and damage to Ms. Milano. Ms. Milano has no adequate remedy at law.
38. Ms. Milano repeats and realleges Paragraphs 1 through 37 as if fully set forth herein. 39. Ms. Milano's name is extraordinarily famous and well-known throughout the United States having been used extensively by her for many years. By reason of Ms. Milano's extensive use of the name, this name has become highly distinctive of Ms. Milano's goods and services and is uniquely and exclusively associated with her. 40. Defendants' continued use of Ms. Milano's name in connection with goods and services that are not controlled by, affiliated with or sponsored by Ms. Milano is likely to dilute the distinctive quality of Ms. Milano's name by lessening the capacity of this name to exclusively identify and distinguish Ms. Milano and her goods and services. 41. Upon information and belief, the foregoing acts were done willfully and deliberately and with an intent to reap the benefits of Ms. Milano's goodwill and dilute the distinctiveness of Ms. Milano's mark in violation of Section 43 (c) of the Lanham Act, 15 U.S.C. Section 1125(c). 42. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage to Ms. Milano. Ms. Milano has no adequate remedy at law.
43. Ms. Milano repeats and realleges Paragraphs 1 through 42 as if fully set forth herein. 44. Defendants' unauthorized use of Ms. Milano's name and image inrelationship with the creation and management of their websites and the sale of memberships to their websites to view photographs of Ms. Milano willfully misappropriates Ms. Milano's identity for their commercial advantage in violation of Ms. Milano's right of publicity under the common law of California and other states. Such misappropriation includes the use of Ms. Milano's name to lure people to the defendants' two websites and using Ms. Milano's name, image or likeness to sell memberships to the pay portion of the website. 45. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Ms. Milano has no adequate remedy at law. 46.Defendants are misappropriating Ms. Milano's name and image inconscious disregard of her rights and such disregard entitles Ms. Milano to exemplary or punitive damages to make an example of defendants and to discourage the repeat of such actions.
47. Ms. Milano repeats and realleges Paragraphs 1 through 46 as if fully set forth herein. 48. Defendants are knowingly using Ms. Milano's name and likeness for the purposes of advertising their websites and membership therein in violation of Ms. Milano's rights under California Civil Code section 3344. 49. The aforesaid conduct is causing Ms. Milano to suffer irreparable injury and damage, and, unless restrained, will cause further irreparable injury and damage to plaintiff. Plaintiff has no adequate remedy at law.
50. Ms. Milano repeats and realleges Paragraphs 1 through 49 as if fully set forth herein. 51. Upon information and belief, defendants have knowingly and maliciously published photographs on their respective websites that place Ms. Milano in a false light. Upon information and belief, defendants are either: (1) publishing in the pay portion of their respective sites photographs commonly referred to as "pasties" or digitally altered photographs of Ms. Milano; (2) identifying photographs of a minor woman as a photograph of Ms. Milano; or (3) failing to identify the source of many of the photographs. By failing to identify the source, defendants place Ms. Milano in a false light because it permits members to believe that these are private pictures and not pictures from motion pictures or magazine shoots. 52. Defendants published the photographs in the manner described herein intentionally and with malicious intent entitling Ms. Milano to exemplary damages to make an example of defendants and to discourage the repeat of such actions.
WHEREFORE, plaintiff Alyssa Milano demands judgment: 1. Permanently enjoining defendants, their employees, agents, licensees, attorneys, successors, affiliates, subsidiaries and assigns, and all of those in active concert and participation with any of them from infringing or falsely utilizing Ms. Milano's name and/or image by falsely designating the origin, sponsorship of or affiliation of their business or services, from unfairly competing with Ms. Milano, from diluting the distinctive quality of Ms. Milano's name, and from commercially exploiting Ms. Milano's name, and specifically from:
(a) utilizing Ms. Milano's name, identity or image or any reasonable copy thereof in relationship with their websites or memberships related to such websites; 2. Awarding Ms. Milano damages including Ms. Milano's lost profits, defendants' profits and treble damages as permitted under 15 U.S.C. Section 1117 and 15 U.S.C. Section 1125(c) arising out of defendants' acts of unfair competition and violation of Ms. Milano's rights to privacy and publicity and such exemplary or punitive damages according to proof and prejudgement interest as may be awarded. 3. Directing that defendants deliver up to plaintiff all material incorporating or bearing plaintiff's name, likeness or image or colorable imitation thereof. 4. Directing that defendants file with the Court and serve upon plaintiff's counsel within thirty (30) days after entry of judgment a report in writing under oath setting forth in detail the manner and form in which defendants have complied with the requirements of the injunction and order. 5. Directing such other relief as the Court may deem proper to prevent the public from deriving the erroneous impression that defendants or defendants' business is associated or connected with Ms. Milano or that the goods or services provided by-or promoted by defendants are authorized by Ms. Milano or are related in any way to Ms. Milano. 6. That Ms. Milano have and recover her costs in this civil action including reasonable attorneys' fees and expenses. 7. That each defendant shall be jointly and severally liable for any monetary award to Ms. Milano. 8. That Ms. Milano have and recover such other and further relief as the Court may deem proper and fair. DATED: April 27, 1998
ROSENFELD, MEYER & SUSMAN, LLP
By: /s/
Plaintiff requests a trial by jury on all issues for which she is entitled to a jury. DATED: April 27, 1998
ROSENFELD, MEYER & SUSMAN, LLP
By: /s/
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