robert heinlein copyright trademark action

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PLAINTIFFS

ARTHUR M. DULA, AS TRUSTEE OF THE ROBERT A. AND VIRGINIAHEINLEIN PRIZE TRUST DATED 1991

DEFENDANTS

START PUBLISHING LLC

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBERMarc P. Mistrial Phone:212-684-3900

Gottlieb, Rackman & Reisman PC [email protected] Madison Avenue, 8th Fir New York NY 10016

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OF VETERAN'S [ ] 362 PERSONAL INJURY -BENEFITS MED MALPRACTICE

[ ]160 STOCKHOLDERS

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( ] 190 OTHER

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[ 1210 LAND [ ] 442 EMPLOYMENTCONDEMNATION [ ] 443 HOUSING/

[ ]220 FORECLOSURE ACCOMMODATIONS

[ ]230 RENT LEASE & [ ] 445 AMERICANS WITH

EJECTMENT DISABILITIES -

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[ J 368 ASBESTOS PERSONALINJURY PRODUCT

LIABILITY

PERSONAL PROPERTY

[ 1 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING

FORFEITURE/PENALTY

[ ] 625 DRUG RELATED

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21 USC 881

[ ] 690 OTHER

[ 1 380 OTHER PERSONALPROPERTY DAMAGE

[ 1 385 PROPERTY DAMAGEPRODUCT LIABILITY

PRISONER PETITIONS

[ 1463 ALIEN DETAINEE[ )510 MOTIONS TO

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28 USC 2255

[ 1 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER

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[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION[ ] 560 CIVIL DETAINEE

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JUDGE C0T6UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ARTHUR M. DULA, AS TRUSTEE OFTHE ROBERT A. AND VIRGINIA

HEINLEIN PRIZE TRUST DATED 1991,

Plaintiff,

14 CV i JL O

CIVIL ACTION NO.

COMPLAINT

START PUBLISHING LLC,

Defendant.

ECF CASE

C

O

•par

ooro

Arthur M. Dula, as a trustee of The Robert A. and Virginia Heinlein Prize Trust

Dated 1991 (hereinafter "Plaintiff' or the "Trust"), for his Complaint against the

defendant Start Publishing LLC ("Defendant"), alleges:

JURISDICTION AND VENUE

1. This is an action for (i) copyright infringement under the Copyright Act, 17

U.S.C. § 101, et seq.; (ii) trademark infringement under the Lanham Act, 15 U.S.C. §

1114 et seq.; (iii) false designation of origin under the Lanham Act, 15 U.S.C. §1125 (a);

(iv) trademark counterfeiting under the Lanham Act, 15 U.S.C. § 1114etseq.; (v)

common law trademark infringement under the law of the State of New York; (vi)

common law unfair competition under the law of the State of New York; and (vii)

common law injury to business reputation and dilution under New York General

Business Law § 360-I.

2. This Court has jurisdiction over the subject matter of these claims

pursuant to 28 U.S.C. § 1338 and under principles of supplemental jurisdiction, 28

U.S.C. §1367(a).

3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.

THE PARTIES

4. Arthur M. Dula is a trustee of The Robert A. and Virginia Heinlein Prize

Trust Dated 1991, a trust organized and existing under the laws of the State of Texas.

Arthur M. Dula brings this action in his capacity as a trustee of the Trust.

5. The Trust is authorized to do business in the State of New York, with an

office at Spectrum Literary Agency, described below. The Trust is registered with the

New York State Charities Bureau, under registration number 43-70-03.

6. The Trust is the successor-in-interest to, and the owner of, all copyrights

and trademarks in and relating to works authored by Robert A. Heinlein ("Heinlein"),

except for six copyrights owned by The Robert A. and Virginia Heinlein Library

Foundation. The Trust owns the copyright and trademark asserted in the present

litigation, which have been, and are continuing to be, infringed by Defendant.

7. Spectrum Literary Agency, with a business address of 320 Central Park

West Suite 1-D, New York, NY 10025, is the agent for the Trust, and conducts all

licensing and permissions relating to Heinlein's works on behalf of the Trust, throughout

the United States.

8. Upon information and belief, defendant Start Publishing LLC is a Delaware

limited liability company with a principal place of business at 609 Greenwich Street,

Floor 6, New York, NY 10014.

9. Upon information and belief, defendant Start Publishing LLC does

business in this District, and is otherwise within the jurisdiction of this Court.

FACTS COMMON TO ALL COUNTS

10. Robert A. Heinlein, one of the foremost authors of science fiction, was

born on July 7, 1907. A graduate of the United States Naval Academy and a naval

officer, he turned to writing science fiction in the late 1930's, with his first story being

published in 1939. His writing endeavors were met with almost immediate success.

Heinlein was the first science fiction writer whose work was published in magazines of

general circulation, and among the first to publish successful novel-length works. Over

the course of his career, Heinlein authored over thirty books and over fifty short stories,

and was the recipient of several of the prestigious and well-known "Hugo" awards for

best writing in the science fiction genre. Heinlein's works have formed the basis for four

motion pictures and two television series, and have sold millions of copies throughout

the world. His books are available in digital format for download on all of the leading

platforms, including the Apple Books store, the Google Play store, the Amazon Kindle

store and the Barnes and Noble Nook Book store (collectively, the "Ebook Stores").

Although Heinlein died in 1988, his name and reputation continue to inspire readers and

fellow writers to this day, and he remains an icon of high quality, informative writing in

the science fiction field.

11. As the owner of all intellectual property rights in the works of Heinlein, the

Trust owns the federally registered trademark ROBERT A. HEINLEIN, Registration

Number 4,145,235, in connection with science fiction books. A copy of the trademark

registration is attached as Exhibit A.

12. The Trust owns a U.S. copyright registration in "Assignment in Eternity," a

collection of four short stories which includes Heinlein's short story "Jerry Was A Man."

"Assignment in Eternity" was registered with the Copyright Office of the United States in

1953 under the title "Assignment in eternity; 4 long science fiction stories. Edited & rev.

by Robert Anson Heinlein" under Registration Number A00000110007, and the

copyright for this work was renewed in 1981 under Renewal Number RE 84-405. A

printout from the United States Copyright Office website evidencing this registration and

renewal is attached as Exhibit B.

13. Defendant has reproduced, distributed, made available, advertised,

offered for sale and sold copies of Heinlein's work "Jerry Was A Man" under the title

"Jerry Is A Man" in the Ebook Stores.

14. A printout of the Google Play webpage for Defendant's "Jerry Is A Man" is

attached as Exhibit C.

15. A printout of the Amazon Kindle store webpage for Defendant's "Jerry Is A

Man" is attached as Exhibit P.

16. A printout of the Apple iBooks store webpage for Defendant's "Jerry Is A

Man" is attached as Exhibit E.

17. A printout of the Barnes and Noble Nook Book Store webpage for

Defendant's "Jerry Is A Man" is attached as Exhibit F.

18. The descriptions of Defendant's "Jerry Is A Man" ebook in the Ebook

Stores state that the short story is by "Grandmaster Robert A. Heinlein."

19. Defendant's "Jerry Is A Man" ebook features the text "Copyright © 2012 by

Start Publishing LLC."

20. These infringing copies are harming the Trust's reputation for quality as

they are, inter aliai posted under the incorrect name "Jerry Is A Man."

21. A customer review posted under the title "Great story, but..." on the

Amazon Kindle webpage for the infringing copy, Exhibit D, states "This edition seems

kind of sketchy to me. For one thing, it got the title wrong...."

22. Additionally, the Barnes and Noble Nook Book store page, Exhibit F,

features a customer review that states, inter alia, "The story ends on page 42, even

though the font is VERY LARGE. The cover image comes from a stock photo company.

There is no title on the binder because the binder is too narrow. If you really want to do

read this short story, buy Assignment in Eternity for about $10."

23. Upon information and belief, Defendants' infringing copies of Heinlein's

copyright works has been purchased and downloaded by users around the country,

including users in this District.

COUNT I

Copyright Infringement of "Assignment In Eternity"

24. Plaintiff repeats and realleges each allegation in paragraphs 1 to 21 as if

fully set forth herein.

25. This count arises under the Copyright Act, 17 U.S.C. § 101, et seq.

26. One of Heinlein's works is "Assignment in Eternity," which includes the

short story "Jerry Was A Man."

27. This work is wholly original and is copyrightable under the Copyright Laws

of the United States, 17 U.S.C. §101 et seq.

28. "Assignment in Eternity" was registered with the Copyright Office of the

United States in 1953 under the title "Assignment in eternity; 4 long science fiction

stories. Edited & rev. by Robert Anson Heinlein" under Registration Number

A00000110007, and the copyright for this work was renewed in 1981 under Renewal

Number RE 84-405.

29. All copies of "Assignment in Eternity" have been sold in conformity with

the provisions of the Copyright Laws of the United States. Plaintiff is the owner of all

right, title and interest in the copyright of "Assignment in Eternity" and has the right to

sue for infringement thereof.

30. Defendant has infringed said copyright by reproducing, distributing,

making available, offering for sale, and selling a virtually identical textual copy of this

copyrighted work in the Ebook Stores. All of the aforesaid activities of Defendant are in

violation of the rights of Plaintiff under 17 U.S.C. §101 et seq.

31. All of the acts of Defendant, as set forth in the preceding paragraphs, were

without the permission, license or consent of Plaintiff.

32. The aforesaid acts of infringement by Defendant require an imposition on

Defendant of statutory damages in the amount of $ 150,000.00, and will, if continued,

cause a loss of rights by Plaintiff in an amount exceeding $ 1 million.

COUNT II

Trademark Infringement



34. This count arises under the Lanham Act, 15 U.S.C. § 1114, et seq.

35. Plaintiff is the owner of the right, title and interest in and to the federally

registered trademark No. 4145235 for the mark ROBERT A. HEINLEIN in connection

with science fiction books.

36. Defendant has affixed, applied and used in connection with the

unauthorized reproduction, distribution, advertising, making available, offering for sale

and sale of copies of Heinlein's work representations of the trademark ROBERT A.

HEINLEIN, and has caused such copies to enter into commerce in the United States, to

Plaintiff's detriment.

37. Defendant has improperly reproduced, distributed, advertised, made

available, offered for sale and sold unauthorized copies of the work bearing the

ROBERT A. HEINLEIN trademark with the intent to cause confusion and mistake, to

deceive and mislead the purchasing public and to improperly appropriate the valuable

trademark rights of Plaintiff.

38. The acts of Defendant described herein were undertaken without the

permission, license or consent of Plaintiff and are damaging to Plaintiff.

39. Defendant's wrongful acts have injured Plaintiff in an amount thus far not

determined, but if continued will result in damages of at least $1 million. Further,

Defendant's wrongful acts have caused and will continue to cause Plaintiff to suffer

irreparable harm for which it has no adequate remedy at law.

COUNT III

False Designation of Origin



41. This count arises under the Lanham Act, 15 U.S.C. § 1125 (a).

42. Defendant's efforts to misrepresent itself as a legitimate source of the

work bearing the ROBERT A. HEINLEIN mark takes control of the reputation and

goodwill of the work away from the Trust, which owns and is responsible for the goodwill

of the ROBERT A. HEINLEIN mark in the United States and elsewhere in the world.

43. Defendant has improperly offered for sale and sold unauthorized copies of

the work bearing the ROBERT A. HEINLEIN mark that is the subject of the Trust's

trademark registration with the intent to cause confusion and mistake, to deceive and

mislead trade and the purchasing public and to improperly appropriate Plaintiff's

valuable trademark rights.

44. Defendant's said acts violate Section 43 (a) of the Lanham Act, 15 U.S.C.

§ 1125(a).

8


determined, but if continued will result in damages of at least $1 Million. Further,



COUNT IV

Trademark Counterfeiting



47. This count arises under the Lanham Act, 15 U.S.C. § 1114, et seq.

48. Plaintiff has never authorized Defendant to use the ROBERT A.

HEINLEIN mark, to apply the mark to the works of Heinlein or to offer for sale or sell

copies bearing the mark.

49. Defendant has reproduced, distributed, advertised, made available,

offered for sale and sold these counterfeit copies of a work by Heinlein which bear a

counterfeit of the ROBERT A. HEINLEIN mark in a manner that is identical to or

substantially indistinguishable from the registered mark.

50. Upon information and belief, Defendant's acts have been done willfully

and intentionally, with full knowledge of Plaintiff's trademark rights.

51. Defendant's infringing acts have caused and will continue to cause

Plaintiff irreparable harm and injury.


available, offered for sale and sold counterfeit copies of this work by Heinlein bearing

the counterfeit trademark with the intent to cause confusion and mistake, to deceive the

public and to improperly appropriate Plaintiff's valuable trademark rights.

53. Defendant's said acts violate Section 32 of the Lanham Act, 15 U.S.C. §

1114.


determined, but if continued will result in damages of at least $ 1 million. Further,



COUNT V

New York Common Law Trademark Infringement



56. This count arises under the common law of the State of New York.

57. Plaintiff owns all right, title and interest in and to the ROBERT A.

HEINLEIN trademark, including all common law rights in such mark, and such mark is

distinctive.

58. Defendant has affixed, applied and used in connection with the improper

reproduction, distribution, advertisement, making available, offering for sale and sale of

unauthorized copies of the work representations of the trademark ROBERT A.

HEINLEIN, and has caused such unauthorized copies to enter into commerce in the

10

United States, to Plaintiff's detriment.


available, offered for sale and sold unauthorized copies of the works bearing the

counterfeit ROBERT A. HEINLEIN trademark with the intent to cause confusion and

mistake, to deceive and mislead the purchasing public and to improperly appropriate the

valuable trademark rights of Plaintiff.

60. The acts of Defendant described herein were undertaken without the

permission, license or consent of Plaintiff and are damaging to Plaintiff.





COUNT VI

New York Common Law Unfair Competition



63. This count arises under the common law of the State of New York.

64. Upon information and belief, Defendant has intentionally misappropriated

the ROBERT A. HEINLEIN mark that is the subject of the Trust's trademark registration

with the intention of causing confusion, mistake and deception among consumers as to

the source of the work and with the intent to unfairly profit from Plaintiff's goodwill at

11

Plaintiff's expense.

65. As a result of the foregoing, Defendant's actions constitute unfair

competition and misappropriation, which have had and will continue to have a

detrimental effect on the general consuming public in violation of the common law of the

State of New York.





COUNT VII

Injury to Business Reputation and Dilution



68. This count arises under § 360-I of the New York General Business Law.

69. By reason of the practices and acts set forth above, Defendant is likely to

injure the Trust's reputation and dilute the distinctive quality of the ROBERT A.

HEINLEIN mark.

70. These acts of Defendant are without the permission, license or consent of

Plaintiff and, unless enjoined by this Court, Defendant will continue these practices and

acts, thereby harming Plaintiff's business reputation and causing Plaintiff immediate and

irreparable injury.

12


determined, but if continued will result in damages of at least $ 1 million. Further,



WHEREFORE, Plaintiff prays for a judgment against Defendant as follows:

A. Finding that (i) Defendant has violated the Copyright Laws of the

United States of America (17 U.S.C. §§ 101 et seq.); (ii) Defendant has violated Section

32 of the Lanham Act (15 U.S.C. § 1114); Section 43 (a) of the Lanham Act (15 U.S.C.

§ 1125 (a)); and Section 43 (c) of the Lanham Act (15 U.S.C. § 1125(c)); (iii) Defendant

has diluted the ROBERT A. HEINLEIN mark in violation of New York General Business

Law § 360-1; and that (iv) Defendant has engaged in trademark infringement and

unfair competition under New York common law.

B. That Defendant be enjoined preliminarily during the pendency of

this action, and permanently from infringing Plaintiff's registered copyright and

trademark in any manner including but not limited to reproducing, printing, reprinting,

publishing, vending, distributing, making available, offering for sale, selling, displaying,

promoting or advertising any copies of the work;

C. Directing Defendant to deliver to Plaintiff for destruction all items in

its possession bearing any of Plaintiff's trademarks and/or any unauthorized

reproductions, counterfeits, copies or colorable imitations thereof;

13

D. Directing Defendant to immediately delete or destroy all of their files

and hard drives displaying or bearing Plaintiffs copyrighted work or trademark;

E. Directing Defendant to remove all references to or images of the

copyrighted work and the ROBERT A. HEINLEIN mark from the Ebook Stores;

F. Directing Defendant to account to Plaintiff for all profits resulting

from Defendant' infringing activities;

G. Directing the Ebook Stores to disable and remove Defendant's

infringing copy of Heinlein's copyrighted work and all mentions of the ROBERT A.

HEINLEIN mark;

H. Awarding Plaintiff its damages from Defendant's wrongful acts;

I. Awarding Plaintiff three times the amount of Plaintiff's damages or

Defendant' profits, whichever is greater;

J. Awarding Plaintiff the cost of this action, as well as reasonable

attorneys' fees;

K. Awarding Plaintiff punitive damages as a result of Defendant's

wrongful acts;

L. Awarding Plaintiff, at its election, statutory damages for a

copyrighted work in connection with which Defendant's infringing copy of the Plaintiff's

work;

M. Directing that this Court retain jurisdiction of this action for the

purpose of enabling the Trust to apply to the Court at any time for such further orders

and interpretation or execution of any order entered in this action, for the modification of

14

any such order, for the enforcement or compliance therewith and for the punishment of

any violations thereof; and

N. Awarding Plaintiff such other and further relief as the Court may

deem just and proper.

Dated: June 10,2014

GOTTLIEB, RACKMAN& REISMAN, P.C

fatGeorge Gottlieb, Esq. (GG-5761)[email protected] P. Misthal, Esq. (MPM-6636)[email protected] M. Purow (JP-0052)[email protected] Madison Avenue

New York, New York 10016(212)684-3900(212) 684-3999 (fax)

15

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