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Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 1 of 16

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J. Andrew Sjoblom (199369)


jasjoblom@hollandhart.com
HOLLAND & HART LLP
222 South Main Street, Suite 2200
Salt Lake City, UT 84101
Telephone: (801) 799-5800
Facsimile: (877) 665-1699

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Attorneys for Plaintiff


CHILDRENS MIRACLE NETWORK

IN THE UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHILDRENS MIRACLE
NETWORK, a Utah non-profit
corporation
______________________________

)
)
) CASE NO. '15CV0499 AJB DHB
)
)
)
Plaintiff,
)
COMPLAINT
vs.
)
)
)
(Demand for Jury Trial)
MIRACLE BABIES, a California
)
non-profit corporation,
)
)
Defendants.
)
_____________________________ )

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Plaintiff Childrens Miracle Network (CMN or Plaintiff) hereby claims


against defendant Miracle Babies as follows:
NATURE OF THE ACTION

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1.

This is an action for trademark infringement, false designation of

origin, unfair competition and related claims against Miracle Babies based on its
infringement of Plaintiffs Miracle-based trademarks that CMN uses in

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 2 of 16

connection with raising money for childrens hospitals throughout the United

States and Canada.


THE PARTIES

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2.

CMN is a Utah non-profit corporation with its principal place of

business in Salt Lake City, Utah. CMN is a charitable organization that raises

money for childrens hospitals throughout the United States and Canada. CMN

also creates awareness and educates the public about childrens health care issues,

the shortage of available resources, and good health care practices to prevent

accidents and disease, and the hospitals, institutions and people who provide

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childrens health care.


3.

Upon information and belief, Miracle Babies is a California non-profit

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corporation with its principal place of business in San Diego, California. Miracle

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Babies raises money to support the families of infants requiring health care.

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Miracle Babies also operates the Miracle Babies Family Network to provide

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support to the families of ill newborns, and Raising Miracles to provide support

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to families once they leave the hospital.


JURISDICTION AND VENUE

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4.

This is an action for trademark infringement and unfair competition

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under the Lanham Act (15 U.S.C. 1051-1127), common law trademark

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infringement and related state law claims.

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5.

This Court has subject matter jurisdiction over this action under 28

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U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (trademarks), and 15 U.S.C.

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1121 (trademarks). This Court has supplemental jurisdiction over CMNs state

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law claims under 28 U.S.C. 1367(a) because those claims arise from a common

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nucleus of operative facts alleged in CMNs federal claims.

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 3 of 16

6.

This Court has personal jurisdiction over Miracle Babies because it is

a California non-profit corporation with its principal place of business in San

Diego, California.
7.

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Venue is also proper in this District pursuant to 28 U.S.C.

1391(b)(1) because Miracle Babies resides in this District.

GENERAL ALLEGATIONS
8.

CMN is a charitable organization that raises money for childrens

hospitals throughout the United States and Canada. CMN also creates awareness

and educates the public about childrens health care issues, the shortage of

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available resources, and good health care practices to prevent accidents and

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disease, and the hospitals, institutions and people who provide childrens health

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care.

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9.

Over 170 hospitals and related institutions are members of CMN.

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10.

CMN has relationships with about 200 television stations, 250 radio

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stations, 100 corporate sponsors, and a number of celebrities and sports figures.
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CMN engages in a wide range of year-round activities to raise funds

and promote the awareness and educational mission of CMN.


12.

CMN has engaged in fundraising and promotion of its awareness and

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education mission for more than 30 years through, among other things, fundraising

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campaigns with the customers and employees of major companies, including

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Walmart, Marriott, Delta Airlines, Costco, Dairy Queen, RE/MAX, Ace Hardware,

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Food Lion, Coca-Cola, and Microsoft, awareness and education programs

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broadcast as part of the regular news programming on Fox television stations, a

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televised annual telethon, multi-day radiothon programs across the country,

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celebrity appearances promoting CMN and its mission on major national television

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news and talk shows, fundraising through a national network of credit unions,

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 4 of 16

cause marketing campaigns for consumer products of major companies,

advertising and recognition in national media and publications, and student-

organized dance marathon campaigns conducted at universities across the country.

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CMN also operates a website furthering its charitable mission,

including awareness and education, located at

www.childrensmiraclenetworkhospitals.org.

14.

CMN is the owner of numerous U.S. Trademark Registrations

involving the word MIRACLE that are used in connection with charitable

fundraising and related advertising. Specifically, CMN is the owner of the

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following U.S. Trademark Registrations that cover the mark MIRACLE:


a.

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United States Trademark Registration No. 1,553,246 for

CHILDRENS MIRACLE NETWORK for charitable fundraising services;


b.

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United States Trademark Registration No. 2,264,436 for

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CHILDRENS MIRACLE NETWORK for radio and television programming and

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production of radio and television programs in the field of children and childrens

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issues;
c.

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United States Trademark Registration No. 1,916,839 for

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CHILDRENS MIRACLE NETWORK for radio and television broadcasting in the

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field of children and childrens issues;


d.

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CHILDRENS MIRACLE NETWORK for providing health care information;


e.

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United States Trademark Registration No. 2,209,255 for

United States Trademark Registration No. 1,356,563 for

MIRACLES for a newsletter pertaining to charitable services;


f.

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United States Trademark Registration No. 1,343,289 for

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CHILDRENS MIRACLE NETWORK TELETHON for charitable fundraising

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services;

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 5 of 16

g.

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United States Trademark Registration No. 1,698,499 for

BOWLING FOR MIRACLES for charitable fundraising services;


h.

United States Trademark Registration No. 2,954,518 for

CHILDRENS MIRACLE NETWORK and design for charitable fundraising and

eleemosynary services in the field of monetary donations;


i.

United States Trademark Registration No. 2,954,517 for

CHILDRENS MIRACLE NETWORK and design for radio and television

broadcasting in the field of children and childrens issues;


j.

United States Trademark Registration No. 2,954,516 for

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CHILDRENS MIRACLE NETWORK and design for radio and television

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programming and production of radio and television programs in the field of

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children and childrens issues;


k.

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United States Trademark Registration No. 2,951,236 for

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CHILDRENS MIRACLE NETWORK and design providing health care

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information;
l.

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United States Trademark Registration No. 3,917,739 for

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CHILDRENS MIRACLE NETWORK HOSPITALS for charitable fundraising

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services;

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m.

United States Trademark Registration No. 1,851,682 for

MIRACLE HOME for real estate brokerage services;


n.

United States Trademark Registration No. 3,209,006 for KIDS

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ALL-STAR MIRACLE HOME for charitable fundraising and eleemosynary

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services in the field of monetary donations;

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United States Trademark Registration No. 3,209,007 for KIDS

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ALL-STAR MIRACLE HOME and design for charitable fundraising and

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eleemosynary services in the field of monetary donations;

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 6 of 16

p.

United States Trademark Registration No. 3,209,009 for

HOME OF MIRACLES and design for charitable fundraising and eleemosynary

services in the field of monetary donations; and


q.

United States Trademark Registration No. 3,387,880 for

MIRACLE SOUP for providing an interactive website for enabling

communications and collaboration among a charitable foundation and its

associates, sponsors and member hospitals in the field of charitable fundraising and

eleemosynary services.

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The foregoing registrations are valid and subsisting and constitute

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prima facie evidence of the validity of the foregoing marks and registrations, and

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of CMNs ownership of and exclusive right to use these marks in connection with

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the services set forth in the registrations. Moreover, most of the above

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registrations are incontestable and therefore constitute conclusive evidence of the

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validity of the marks and the registrations and of CMNs ownership of and

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exclusive right to use the marks in connection with the services set forth in the

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registrations. The registrations also provide constructive notice of CMNs

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ownership of the marks.

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In addition to CMNs registered marks identified above, CMN has

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used and is currently using numerous other marks, both registered and

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unregistered, containing the word Miracle in connection with the above

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described services.

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CMN has expended considerable expense and resources in advertising

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and promoting its goods and services under its registered and non-registered marks

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and as a result, CMN has acquired substantial good will and consumer recognition.

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Defendant Miracle Babies promotes services similar to CMNs

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services, including raising funds for and providing financial assistance to the

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families of critically-ill newborns and providing other support to families of

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COMPLAINT

Case 3:15-cv-00499-AJB-DHB Document 1 Filed 03/04/15 Page 7 of 16

critically-ill newborns using the names Miracle Babies, Miracle Babies Family

Network and Raising Miracles.

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19.

Miracle Babies operates a website furthering its charitable mission,

including awareness and education, located at www.miraclebabies.org.


20.

Defendants Miracle Babies, Miracle Babies Family Network and

Raising Miracles marks (the Infringing Marks) are confusingly similar to CMNs

various Miracle-based marks. In particular, the name Miracle Babies uses a

word that is identical to a word used in CMNs marks Miracle coupled with a

synonym (Babies) of another word in CMNs marks children.

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The Miracle Babies Family Network uses Miracle, Network and a

synonym for children.


22.

Defendants use of the Infringing Marks is likely to cause consumer

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confusion and a false association between CMNs services and the services offered

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by Defendant, falsely leading consumers to believe that the services emanate from

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the same source or that CMN and Miracle Babies are affiliated.

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Upon information and belief, this likelihood of confusion has resulted

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in and will continue to result in substantial and irreparable harm to CMN and to

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consumers.

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Defendants use of the Infringing Marks has been and is without

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permission or authority of Plaintiff and without any legitimate license to use

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CMNs marks.

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Miracle Babies acts have caused damage to CMN in an amount to be

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determined at trial. These acts will result in further damage and irreparable injury

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if Miracle Babies is not restrained by this Court from further violation of CMNs

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rights in its Miracle-based marks.

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Miracle Babies unlawful activity results in irreparable harm and

injury to CMN. Among other harms, it:

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COMPLAINT

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a.

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which its goods and services are presented to the general public;
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deceives the public as to the origin and sponsorship of such

goods and services; and


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deprives CMN of its absolute right to determine the manner in

wrongfully trades upon and cashes in on CMNs reputation,

goodwill, and exclusive rights in its Miracle-based marks.


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CMN is entitled to an injunction restraining Miracle Babies, its

officers, agents, servants, employees, attorneys, and all persons acting in concert

with them, from engaging in any further acts in violation of CMNs rights.

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CMN is further entitled to recover damages, including treble damages,

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interest, and attorneys fees and costs CMN has sustained and will sustain as a

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result of Miracle Babies acts as alleged herein. At present, the amount of such

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damages cannot be fully ascertained by CMN.

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CAUSES OF ACTION

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COUNT I

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(TRADEMARK INFRINGEMENT UNDER SECTION 43(a)(1)(A)

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OF THE LANHAM ACT)

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29.

CMN realleges and incorporates by reference all of the foregoing

paragraphs.
30.

Miracle Babies use of the Infringing Marks in interstate commerce

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without CMNs consent constitutes a false designation of origin, false or

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misleading description of fact, or false or misleading representation of fact, which

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is likely to cause confusion, or to cause mistake, or to deceive or mislead as to the

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affiliation, connection, or association of Miracle Babies with CMN, or as to the

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origin, sponsorship, or approval of Miracle Babies goods and activities in

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violation of 15 U.S.C. 1125(a).

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COMPLAINT

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31.

By so acting, Miracle Babies has violated 43(a) of the Lanham Act

(15 U.S.C. 1125(a)).


32.

CMN is informed and believes and thereon alleges that Miracle

Babies has derived and received, and will continue to derive and receive, gains,

profits, and advantages from Miracle Babies false designation of origin, false or

misleading statements, descriptions of fact, or false or misleading representations

of fact in an amount that is not presently known to CMN. By reason of Miracle

Babies actions, constituting false designation of origin, false or misleading

statements, false or misleading descriptions of fact, or false or misleading

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representations of fact, CMN has been damaged and is entitled to monetary relief

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in an amount to be determined at trial.

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33.

In addition, Miracle Babies unlawful actions have caused and

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continue to cause irreparable injury to the value and goodwill of CMNs

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Miracle-based marks, as well as irreparable injury to CMNs goodwill and

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reputation. CMN has no adequate remedy at law because damages are continuing

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and difficult to ascertain.

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34.

Upon information and belief, Miracle Babies actions were

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undertaken willfully with full knowledge of the falsity of such designation of

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origin and false descriptions or representations.

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35.

Because Miracle Babies, actions, on information and belief, were

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intentional willful and/or deliberate, CMN is entitled to an award of treble damages

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under 35(a) of the Lanham Act (15 U.S.C. 1117(a)).

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36.

On information and belief, this is an exceptional case, and thus CMN

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is entitled to an award of attorneys fees under 35(a) of the Lanham Act (15

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U.S.C. 1117(a)).

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37.

By reason of the foregoing, CMN is entitled to injunctive relief and

monetary damages against Miracle Babies.

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COMPLAINT

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COUNT II

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(TRADEMARK INFRINGEMENT UNDER 32 OF THE LANHAM ACT)


38.

CMN realleges and incorporates by reference all of the foregoing

paragraphs.
39.

CMN owns and possesses valid registrations issued by the USPTO for

the Miracle-based marks.


40.

Miracle Babies actions as described herein, including Miracle

Babies use of the Infringing Marks in interstate commerce to promote its services,
are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection or association of Miracle Babies with CMN, or as to the origin,
sponsorship or approval of Miracle Babies services and products by CMN.
Miracle Babies conduct constitutes trademark infringement in violation of 32 of
the Lanham Act (15 U.S.C. 1114).
41.

Miracle Babies trademark infringement has caused and continues to

cause damage and irreparable injury to the value and goodwill of CMNs
Miracle-based marks, as well as damages and irreparable injury to CMNs
business, goodwill, and reputation. CMN has no adequate remedy at law because
damages are continuing and difficult to ascertain. On information and belief,
Miracle Babies continued use of the Infringing Marks is deliberate, willful,
fraudulent, and constitutes a knowing infringement of CMNs Miracle-based
marks, and makes this case exceptional.
42.

By virtue of the foregoing, CMN is entitled to an award of attorneys

fees under 35(a) of the Lanham Act (15 U.S.C. 1117(a)).


43.

By virtue of the foregoing, CMN is entitled to injunctive relief and

monetary damages against Miracle Babies.

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COMPLAINT

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COUNT III

(COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR

COMPETITION)

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44.

CMN realleges and incorporates by reference all of the foregoing

paragraphs.
45.

As alleged above, CMN has a protectable interest in its Miracle-

based marks.
46.

Miracle Babies use of the Infringing Marks is likely to cause

consumer confusion and therefore infringes CMNs common law trademark rights

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under federal common law, California common law, and constitutes unfair

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competition.

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CMN is informed and believes, and thereon alleges, that Miracle

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Babies acts complained of herein are willful and deliberate and committed with

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knowledge that Miracle Babies unauthorized use of the CMN Marks and CMNs

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common law trademarks causes a likelihood of confusion.

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48.

CMN is informed and believes, and thereon alleges, that Miracle

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Babies has derived and received and will continue to derive and receive, gains,

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profits and advantages from Miracle Babies trademark infringement in an amount

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that is not presently known to CMN. By reason of Miracle Babies wrongful acts

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as alleged in this Complaint, CMN has been damaged and is entitled to monetary

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relief in an amount to be determined at trial.

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49.

Due to Miracle Babies trademark infringement, CMN has suffered

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and continues to suffer great and irreparable injury for which CMN has no

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adequate remedy at law.

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50.

Miracle Babies willful acts of trademark infringement under Federal

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and California common law constitute fraud, oppression, and malice. Accordingly,

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CMN is entitled to exemplary and/or punitive damages.

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COMPLAINT

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COUNT IV

(UNFAIR COMPETITION UNDER CAL. BUS. & PROF. CODE 17200)

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51.

CMN realleges and incorporates by reference all of the foregoing

paragraphs.
52.

As alleged above, CMN has a protectable interest in its Miracle-

based marks.
53.

Miracle Babies use of the Infringing Marks is likely to cause

consumer confusion and therefore infringes CMNs common law trademark rights

under federal common law, California common law, and constitutes unfair

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competition.
54.

Miracle Babies activities are likely to confuse, deceive, or mislead

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the public as to the origin or sponsorship of Miracle Babies goods, services, and

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activities.

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55.

Miracle Babies acts complained of herein constitute unfair

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competition against CMN as defined in Section 17200 of the California Business

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and Professions Code.

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56.

Upon information and belief, Miracle Babies wrongful and infringing

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activities have caused, and unless enjoined by this Court will continue to cause,

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irreparable injury and other damages to CMNs business, reputation, and good will

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in its marks. CMN has no adequate remedy at law.

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COUNT V

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(CYBERSQUATTING UNDER 43(d) OF THE LANHAM ACT)

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57.

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CMN realleges and incorporates by reference all of the foregoing

paragraphs.
58.

The Miracle-based marks used by CMN designate CMN as the

exclusive source of its services, and distinguishes CMN in the marketplace.

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COMPLAINT

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59.

CMN has not authorized Miracle Babies to use a Miracle-based

mark, or any mark that is confusingly similar, within any domain name, or as a

portion of any internet domain name.


60.

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On information and belief, Miracle Babies registered and operates the

www.miraclebabies.org domain name (the infringing domain).


61.

CMN is informed and believes, and thereupon alleges, that Miracle

Babies use of marks and terms which are confusingly similar to CMNs

Miracle-based marks, of which Miracle Babies was well aware before creating

its website, in its domain names, was and continues to be a deliberate, willful and

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bad faith intent to profit from CMNs goodwill, divert the public for Miracle

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Babies own gain, and cause confusion as to the association, sponsorship,

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endorsement or origin of Miracle Babies in violation of 15 U.S.C. 1125(d).


62.

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By reason of the above actions, CMN has suffered and will continue

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to suffer irreparable injury to its rights and substantial loss of goodwill and

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reputation unless and until Miracle Babies is restrained from continuing its

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wrongful acts and required to transfer ownership of the offending domain name to

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CMN.

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63.

By reason of the above actions, CMNs remedy at law is not adequate

to compensate it for the injuries inflicted by Miracle Babies conduct.


64.

Accordingly, CMN is entitled to preliminary and permanent

injunctive relief pursuant to 15 U.S.C. 1116.


65.

CMN is entitled to an order requiring Miracle Babies to transfer the

infringing domain to CMN.


66.

By reason of Miracle Babies acts as alleged herein, CMN is entitled

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to recover monies Miracle Babies derived through the infringing domain, any

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damages sustained by CMN, and costs of this action under 15 U.S.C. 1117.

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COMPLAINT

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67.

By reason of Miracle Babies acts as alleged herein, CMN is entitled

to recover, at its election, instead of monies to Miracle Babies or damages

sustained by CMN, statutory damages in an amount of $100,000 per domain name

under 15 U.S.C. 1117(d).

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68.

This is an exceptional case making CMN eligible for an award of

attorneys fees under 15 U.S.C. 1117.

COUNT VI

(UNJUST ENRICHMENT)

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69.

CMN realleges and incorporates by reference all of the foregoing

paragraphs.
70.

In committing the acts alleged herein, Miracle Babies has willfully

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and knowingly copied and infringed upon CMNs Miracle-based marks for its

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own illegal and unlawful purposes and as a direct and proximate result of Miracle

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Babies unlawful and improper acts, Miracle Babies has been unjustly enriched.

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71.

Moreover, CMN has suffered, and will continue to suffer, loss of

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revenues by virtue of Miracle Babies conduct and its unlawful and illegal acts

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have caused and are continuing to cause irreparable injury to CMN. Unless

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Miracle Babies is restrained, it will continue to infringe upon CMNs marks to the

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continued detriment of CMN.

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72.

Equity and good conscience dictate that Miracle Babies be required to

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account for and turn over to CMN an amount equal to the value of any benefits

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conferred upon Miracle Babies.

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COMPLAINT

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PRAYER FOR RELIEF

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WHEREFORE, Plaintiff demands judgment against Defendant as follows:


A.

Preliminarily and permanently enjoining Miracle Babies, and all other

persons participating or acting in concert with it, from infringing any of CMNs
rights in the Miracle-based marks;
B.

Preliminarily and permanently enjoining Miracle Babies, and all other

persons participating or acting in concert with it, from using the Infringing Marks
or any other marks confusingly similar to CMNs Miracle-based marks;
C.

Preliminarily and permanently enjoining Miracle Babies, and all other

persons participating or acting in concert with it, from engaging in unfair


competition;
D.

Preliminarily and permanently enjoining Miracle Babies, and all other

persons participating or acting in concert with it, from making a false


representation as to affiliation, connection, association with, or certification by
another, by its use of the Infringing Marks;
E.

An order of the Court directing Miracle Babies to deliver up to CMN

all literature, advertisements, business forms, signs, and any other representations,
regardless of form, which are in, or come to be in, Miracle Babies possession,
custody, or control and which bear the Infringing Marks or any other confusingly
similar variant to CMNs Miracle-based marks, and an order from the Court
compelling Miracle Babies to notify their direct customers, agents, and
representatives that its misuse of the Infringing Marks or any confusingly similar
variant is not connected with CMN;
F.

An order of the Court directing Miracle Babies to provide an

accounting of all revenues gained by Miracle Babies while engaging in the acts
complained of in this Complaint;

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COMPLAINT

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G.

Awarding CMN its actual damages, and awarding CMN any

additional damages that the Court deems just and equitable under the

circumstances of this case;

H.

Awarding treble damages in accordance with 35 of the Lanham Act

(15 U.S.C. 1117) on the claim asserted under 43(a) of the Lanham Act (15

U.S.C. 1125(a));

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I.

Establishing a constructive trust consisting of monies from or

obtained by Miracle Babies wrongful acts, to be held for the benefit of CMN;
J.

Awarding CMN damages to which it is entitled based upon Miracle

Babies unjust enrichment;


K.

Awarding CMN prejudgment interest at the rate established under 26

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U.S.C. 6621(a)(2) from the date of service of the Complaint through the date of

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judgment;

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L.

Awarding CMN its allowable costs and attorneys fees; and

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M.

Awarding CMN such other and/or further relief as is just and

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equitable.

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JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Local
Rule 38.1, CMN hereby demands trial by jury on all issues triable by a jury.

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Dated this 3rd day of March, 2015.

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HOLLAND & HART LLP

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/s/ J. Andrew Sjoblom


J. Andrew Sjoblom

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Attorneys for Plaintiff


Childrens Miracle Network

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COMPLAINT