Case 2:09-cv-02192-KJD-RJJ Document 1 Filed 11/17/2009 Page 1 of 10

1 Lauri S. Thompson (Bar No. 6846)

Chris Austin (Bar No. 6559)
2 Laraine M.1. Burrell (Bar No. 8771)
GREENBERG TRAURIG, LLP
3 3773 Howard Hughes Parkway
Suite 400 North
4 Las Vegas, Nevada 89169
Telephone: (702) 792-3773
5 Facsimile: (702) 792-9002

6 Counsel for Plaintiff

7 UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
8
OpBiz, LLC D/B/A Planet Hollywood
9 Resort & Casino, a Nevada Limited Case No.
Liability Corporation
10 COMPLAINT FOR DAMAGES AND
Plaintiff, INJUNCTIVE RELIEF
11
v. (1) Cybersquatting under
12 15 USC § 1125(d)
Unister GmbH, an entity of unknown origin, (2) Trademark Infringement under
13 15USC§1114
Defendant
(3) Unfair Competition under
15 U.S.C. § 125(a)
(4) State Trademark Infringement Under
N.R.S. 600.420
16
, (5) Common Law Trademark Infringement
• 17 (6) Deceptive Trade Practices under
N.R.S. 598.0903, et seq.
18
(7) Intentional Interference with
19 Prospective Economic Advantage

20
For its complaint against Defendant, OpBiz, LLC D/B/A Planet Hollywood Resort &
21

22 Casino complains and alleges as follows:

23 NATURE OF ACTION

24 1. This is an action for trademark infringement and unfair competition under

25 federal statutes, with pendent claims for common law trademark infringement, state

26 deceptive trade practices, and intentional interference with prospective economic

27 advantage. OpBiz, LLC D/B/A Planet Hollywood Resort & Casino seeks damages,

28 attorneys' fees, costs, and preliminary and permanent injunctive relief.

1.

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1 JURISDICTION

2 2. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C.

3 §§1331 and 1338(a). This Court has supplemental jurisdiction over Defendant's state law

4 claims pursuant to 28 U.S.C. § 1367(a). This Court has personal jurisdiction over

5 Defendant based upon the following: (a) it operates a web site on the Internet that is

6 accessible to residents of the State of Nevada; (b) the web site offers links to hotel travel

7 and reservation websites under the guise of 'Hotel Planet Hollywood & Casino' and (c)

8 Defendant committed tortious acts that it knew or should have known would cause injury

9 to OpBiz, LLC D/B/A Planet Hollywood Resort & Casino in the State of Nevada.

10 3. Venue is proper in the United States District Court for the District of Nevada

11 under 28 U.S.C. § 1391(b) and (c). Venue lies in the unofficial Southern Division of this

12 Court.

13 PARTIES

4. OpBiz, LLC d/bla Planet Hollywood Resort & Casino ("PHRC") is a Nevada

limited liability company with its principal place of business in Las Vegas, Nevada.

16 5. Defendant Unister GmbH is a business entity of unknown origin that, upon

17 information and belief, operates in Leipzig, Germany.

18 ALLEGATIONS COMMON TO ALL COUNTS

19 STANDARD FACTS REGARDING DEFENDANT

20 6. PHRC is a Nevada limited liability company with its principal place of

21 business in Las Vegas, Nevada. Since September 1, 2004, OpBiz, LLC has been the

22 operator of the "Planet Hollywood Resort & Casino," a world class resort hotel casino,

23 which changed its name from the Aladdin Resort & Casino to Planet Hollywood Resort &

24 Casino on April 17, 2007. !JL

25 7. Planet Hollywood Resort & Casino is located on the world famous Las Vegas

26 strip. The property features over 100,000 square feet of gaming, fine dining restaurants, an
27 award~winning buffet, lounges, nightclubs and a full service spa.

28 III
2.

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1 8 Since the rebranding of the Planet Hollywood Resort & Casino, the resort has

2 continuously used the marks PLANET HOllYWOOD.COM and PH PLANET

3 HOllYWOOD RESORT & CASINO (the "PLANET HOllYWOOD Marks") in connection

4 with advertising and promoting its las Vegas property in the United States and around the

5 world. l.!t at ~ 6. Additionally, PHRC has made extensive use of the marks on, among

6 other things, signage, wearing apparel, and sales and promotional materials. Moreover,

7 PHRC is the licensee of several of the PLANET HOllYWOOD trademarks which are

8 owned and federally registered by Planet Hollywood (Region IV) Inc., a subsidiary of Planet

9 Hollywood International Inc. Since the announcement of the PH Towers by Westgate

10 project, Planet Hollywood (Region IV) Inc. also obtained a federal registration for the mark

11 PLANET HOllYWOOD TOWERS, to which OpBiz, llC is a licensee, in connection with

vacation real estate timeshare services, namely, financing, management, brokerage and

leasing of timeshare properties. l.!t

9. The PLANET HOllYWOOD name and marks are among the most widely

recognized names in the hotel, casino and restaurant industries. Planet Hollywood Resort

& Casino offers high quality resort services under the PLANET HOllYWOOD brand, and
,
• 17 OpBiz, llC and its affiliates have spent substantial sums of money to advertise and

18 promote the PLANET HOllYWOOD Marks in print, broadcast media and on the Internet

19 through the Planet Hollywood web sites, accessible throughout the United States and

20 around the world at <planethollywood.com> and <planethollywoodresort.com>. l.!t at ~ 8.

21 In addition, consumers book substantial numbers of rooms through the Planet Hollywood

22 websites and can obtain information about the resort hotel casino and its many amenities,

23 Id. True and correct copies of the home pages for Planet Hollywood's web sites are

24 attached hereto as Exhibit 1 and 2.

25 10. OpBiz, llC d/b/a Planet Hollywood Resort & Casino has made extensive use

26 of the PLANET HOllYWOOD Marks on, among other things, signage, wearing apparel,
27 and sales and promotional materials, and is a licensee of several federal registrations for

28 the PLANET HOllYWOOD Marks for various goods and services, including but not
3.

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1 limited to:

2 (a) PLANET HOllYWOOD TOWERS for vacation real estate timeshare services,

3 namely, financing, management, brokerage and leasing of timeshare properties.

4 (U.S. Reg. No. 3,500,732) See Exhibit 3;

5 (b) PlANETHOllYWOOD.COM for computer on-line ordering and telephone shop-

6 at-home services for merchandise related to motion pictures, musical

7 performances and recordings, celebrities, athletics, travel, cooking, restaurants

8 and chefs, and on-line ticket agency services featuring concert tickets and movie

9 passes; providing on-line entertainment information concerning motion pictures,

10 musical performances and recordings, celebrities, athletics, and celebrity chefs

11 and the location, hours and menus of restaurants; providing on-line cooking

12 instructions; providing a computer bulletin board in the fields of motion pictures,

13 musical performances and recordings, celebrities, athletics. travel, cooking,

restaurants and chefs via global computer network; providing on-line information

feature restaurant recipes, restaurant reviews and restaurant menus, providing

16 on-line travel information concerning reservations and bookings for temporary

17 lodging (U.S. Reg. No. 2,594,469) see Exhibit 4;

18 (c) PH PLANET HOllYWOOD RESORT & CASINO for clothing, namely t-shirts,

19 shirts, sweatshirts, polo shirts, sport shirts, shorts, jackets and caps; casino

20 entertainment services; hotel, restaurant and bar services

21 (U.S. Reg. No. 3.386.957) see Exhibit 5;

22 11. On or about July 18. 2009. Defendant registered the <planet-hollywood-

23 resort. com> Internet domain name ("the Infringing Domain Name") with PSI-USA. Inc.

24 d/b/a/ Domain Robot, a registrar for domain names. This domain name contains PLANET

25 HOllYWOOD Marks coupled with the descriptive word "resort" which describes one of

26 the very services offered by PLANET HOllYWOOD trademarks.

27 12. Some time after registration, Detendant linked the Infringing Domain Name to

28 an active hotel reservation website offering links to services provided by Plaintiffs

4.

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1 competitors. A true and accurate copy of the home page for this web site is attached

2 hereto as Exhibit 6 and is incorporated by reference. The Defendant's hotel travel and

3 reservation website offers services, including vacation and flight packages, that are

4 offered at Plaintiffs casino resorts under the guise of 'Hotel Planet Hollywood Resort &

5 Casino'. However, this is a "bait and switch," meaning a potential hotel client is told no

6 rooms are available at Planet Hollywood when a request is submitted, then a new page is

7 presented to book at other hotels presumably where the defendant will receive revenue

8 from a referral, in a pay-per-click fashion.

9 13. By registering and/or using a domain name containing PLANET

10 HOLLYWOOD trademarks, Defendant was and is attempting to trade on the goodwill of

11 OpBiz, LLC d/b/a Planet Hollywood Resort & Casino.

• 12 14. By registering and/or using a domain name containing PLANET
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13 HOLLYWOOD trademarks, Defendant was and is attempting to create an association
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. '" 14 between the Infringing Domain Name and the PLANET HOLLYWOOD trademarks.
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.. 15 15. PLANET HOLLYWOOD marks at issue in this case were distinctive at the
o •
," 16 time Defendant registered the Infringing Domain Name.
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" 17 16. Upon information and belief, the Defendant registered the Infringing Domain

18 Name with the bad faith intent to profit from PLANET HOLLYWOOD marks.

19 17. Upon information and belief, the Defendant has no trademark or other

20 intellectual property rights in the Infringing Domain Name.

21 18. Upon information and belief, the Defendant had no prior use of the Infringing

22 Domain Name in connection with the bona fide offering of any goods or services.

23 19. Upon information and belief, the Defendant intended to divert customers from

24 the Plaintiffs websites known throughout the United States and around the world at

25 <planethollywood.com> and <planethollywoodresort.com> to a web site accessible under

26 the domain name in a manner that could harm the goodwill represented by PLANET

27 HOLLYWOOD marks.

28 /II
5.

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1 20. PLANET HOllYWOOD marks incorporated in Defendant's domain name are

2 distinctive and famous.

3 21. Upon information and belief, the Defendant did not believe or have

4 reasonable grounds to believe that the use of the domain name was a fair use or

5 otherwise lawful.

6 FIRST CLAIM FOR RELIEF

(Cybersquatting under the
7 lanham Act, 15 U.s.C. § 1125(d))

8 22. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

9 forth herein.

10 23. Defendant has registered, trafficked in, andlor used a domain name that is

11 identical or confusingly similar to andlor dilutive of PLANET HOllYWOOD trademarks,

which were distinctive and/or famous at the time of registration of the domain name.

24. Upon information and belief, Defendant has or had bad-faith intent to profit

from PLANET HOllYWOOD trademarks.

25. As a direct and proximate result of such conduct, Plaintiff has suffered, and

will continue to suffer, monetary loss and irreparable injury to its business, reputation, and
,
• 17 goodwill.

18 SECOND CLAIM FOR RELIEF

(Trademark Infringement under
19 the lanham Act, 15 U.S.C. § 1114)

20 26. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

21 forth herein.

22 27. Defendant has used andfor is uSing in commerce a domain name which

23 contains PLANET HOllYWOOD trademarks, and, thus is confusingly similar to PLANET

24 HOllYWOOD names and trademarks.

25 28. Defendant's use in commerce of Defendant's marks and/or a mark

26 confusingly similar to Plaintiffs trademarks for Defendant's services, and Defendant's use

27 of an Internet domain name and associated web site identified in the Allegations Common

28 to All Counts section above, constitutes a reproduction, copying, counterfeiting, and

6.

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1 colorable imitation of PLANET HOllYWOOD trademarks in a manner that is likely to

2 cause confusion or mistake or is likely to deceive consumers.

3 29. By using PLANET HOllYWOOD marks andlor marks confusingly similar to

4 Plaintiffs trademarks with the knowledge that Plaintiff owns and has used, and continues

5 to use, its trademarks in las Vegas, across the United States, and around the world,

6 Defendant has intended to cause confusion, cause mistake, or deceive consumers.

7 30. Defendant is using a mark identical andlor confusingly similar to PLANET

8 HOllYWOOD trademarks in connection with the sale, offering for sale or advertising of

9 services in a manner that is likely to cause confusion, or to cause mistake, or to deceive

10 consumers as to affiliation, connection, or association with PHRC or as to the origin,

11 sponsorship, or approval of Defendant's services or commercial activities by PHRC.

31. Defendant's use of PLANET HOllYWOOD marks andlor marks confusingly

similar to PLANET HOllYWOOD trademarks has created a likelihood of confusion

among consumers who may falsely believe that Defendant's business or web site is

associated with Planet Hollywood Resort and Casinos or that PHRC sponsors or
approves of Defendant's services or commercial activities.

32. As a direct and proximate result of Defendant's infringement, PHRC has

18 suffered, and will continue to suffer, monetary loss and irreparable injury to its business,

19 reputation, and goodwill.

20 THIRD CLAIM FOR RELIEF

(Unfair Competition under the
21 Lanham Act, 15 US.C. § 1125(a))

22 33. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set
23 forth herein.
24 34. Defendant's use in commerce of marks identical and/or confusingly similar to

25 Plaintiffs trademarks in connection with Defendant's services, web site, and Internet
26 domain name, constitutes a false designation of origin and/or a false or misleading

27 description or representation of fact, which is likely to cause confusion, cause mistake, or

28 deceive as to affiliation, connection, or association with PHRC, or as to the origin,

7.

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1 sponsorship, or approval of Defendant's services or commercial activities.

2 35. Defendant's use in commerce of PLANET HOllYWOOD marks andlor marks

3 confusin91y similar to PLANET HOllYWOOD trademarks with the knowledge that PHRC

4 owns and has used, and continues to use, its trademarks constitutes intentional conduct

5 by Defendant to make false desi9nations of origin and false descriptions about

6 Defendant's services and commercial activities.

7 36. As a direct and proximate result of such unfair competition, PHRC has

8 suffered, and will continue to suffer, monetary loss and irreparable injury to its business,

9 reputation, and goodwill.

10 FOURTH CLAIM FOR RELIEF

(Common law Trademark Infringement)
11

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12 37. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

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38. By virtue of having used and continuing to use its trademarks, PHRC has

acquired common law rights in those marks.

39. Defendant's use of marks identical andlor confusingly similar to PLANET

§
§
• 17 HOllYWOOD trademarks infringes Plaintiffs common law rights in its trademarks, and

18 this use is likely to cause confusion, mistake, or deception among consumers, who will

19 believe that Defendant's services, web site and/or Internet domain name originates from,

20 or is affiliated with, or endorsed by PHRC when, in fact, it is not.

21 40. As a direct and proximate result of Defendant's infringement of Plaintiffs

22 common law trademark rights under Nevada and other common law, Plaintiff has

23 suffered, and will continue to suffer, monetary damages and irreparable injury to its

24 business, reputation, and goodwill.

25 SIXTH CLAIM FOR RELIEF

(Deceptive Trade Practices
26 under NRS. § 598.0915)

27 41. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

28 forth herein.
8.

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1 42. Upon information and belief, in the course of conducting Defendant's

2 business, Defendant knowingly made false representations as to affiliation, connection

3 andlor association with Plaintiff by using a mark confusingly similar to PLANET

4 HOllYWOOD trademarks and otherwise engaged in deceptive trade practices.

5 43. As the direct and proximate result of Defendant's conduct, Plaintiff has
6 suffered, and will continue to suffer, monetary damages and irreparable injury to its

7 business, reputation, and goodwill.

8 SEVENTH CLAIM FOR RELIEF

(Intentional Interference with
9 Prospective Economic Advantage)

10 44. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

11 forth herein.

45. Upon information and belief, at the time Defendant adopted and began using

the PLANET HOllYWOOD name and marks and since that time, Defendant knew and

has known that PHRC is in the business of providing resort hotel and, particularly, casino

and hotel services.

46. Upon information and belief, Defendant committed acts intended or designed

to disrupt PHRC's prospective economic advantage arising from advertising and/or

18 providing these services.

19 47. Defendant's actions have disrupted or are intended to disrupt Plaintiffs

20 business by, among other things, diverting web users away from Plaintiffs web sites.

21 48. Defendant has no legal right, privilege or justification for its conduct.

22 49. As a direct and proximate result of Defendant's intentional interference with

23 Plaintiffs prospective economic advantage, Plaintiff has suffered, and will continue to

24 suffer, monetary damages and irreparable injury.

25 50. Based on the intentional, willful and malicious nature of Defendant's actions,

26 Plaintiff is entitled to recover exemplary damages and reasonable attorneys' fees and

27 costs incurred in connection With this action.

28 III
9.

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1 PRAYER FOR RELIEF

2 WHEREFORE, Plaintiff, respectfully prays that the Court grant the following relief:

3 A. WHEREFORE, Plaintiff, OpBiz, llC D/B/A Planet Hollywood Resort & Casino

4 respectfully prays that the Court grant the following relief:

5 A. A preliminary and permanent injunction prohibiting Defendant, its respective

6 officers, agents, servants, employees and/or all persons acting in concert or participation

7 with it, from: (1) using PLANET HOllYWOOD trademarks or confusingly similar variations

8 thereof, alone or in combination with any other letters, words, letter strings, phrases or

9 designs, in commerce or in connection with any business or for any other purpose

10 (including, but not limited to, on web sites and in domain names); and (2) registering,

11 owning, leasing, selling, or trafficking in any domain names containing PLANET

HOllYWOOD trademarks or confusin91y similar variations thereof, alone or in combination

with any other letters, words, phrases or designs;

B. A preliminary and permanent injunction requiring the current domain name

registrar to transfer the <planet-hallywDod-resart.com> domain name to Plaintiff;

C. An award of compensatory, consequential, statutory, and punitive damages to

,
~ 17 Plaintiff in an amount to be determined at trial;

18 D. An award of interest, costs and attorneys' fees incurred by Plaintiff in

19 prosecuting this action; and

20 E. All other relief to which Plaintiff, OpBiz, llC D/B/A Planet Hollywood Resort &

21 Casino is entitled.

22 DATED: November I } ,2009.

~lP
23

24

25
4ans:ThOf11p~
Chris Austin (Bar No. 6559)
6846)

Laraine M.1. Burrell (Bar No. 8771)

26 3773 Howard HU9hes Parkway, Suite 400 N.
las Vegas, Nevada 89169
27 Counsel for Plaintiff

28
10.

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