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yes, this is the filed suit. Long....post....but it is what it is!
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO CUBS BASEBALL CLUB,
LLC,
Plaintiff,
v.
JOHN PAULWEIER, an individual;
PATRICK WEIER, an individual; and
DOES 1-3.
Defendants.
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CASE NO. ________________
COMPLAINT
Plaintiff Chicago Cubs Baseball Club, LLC (“Cubs”), by and through its undersigned
counsel, for its complaint against John Paul Weier, Patrick Weier, and Does 1-3, alleges as
follows:
PARTIES
1. Plaintiff Cubs is a Delaware limited liability company with a principal place of
business at Wrigley Field, 1060 West Addison Street, Chicago, Illinois 60613. The Cubs are the
owner of the Chicago Cubs Major League Baseball team, which plays its home games at Wrigley
Field, the world famous, 100-year-old natural grass baseball ballpark located at 1060 West
Addison Street, Chicago, Illinois.
2. Defendants John Paul Weier and Patrick Weier are residents of the State of
Illinois, residing in Chicago, Illinois.
3. Defendants John Does are individuals who work together with, or under the
direction, control or employment of Defendant John Paul Weier, and on information and belief,
are residents of the State of Illinois.
1:14-cv-5507
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NATURE OF THE ACTION
4. This action is brought to halt the unlawful conduct of Defendants who dress as a
costumed bear character under the name “Billy Cub,” wearing a Cubs cap and baseball jersey,
each bearing the famous marks and trade dress of the Cubs (the “‘Billy Cub’ Character”).
Lurking around the Wrigley Field and the Wrigleyville area at those times when Cubs fans are
most apt to be present, particularly before, during and after Cubs’ home games, the costumed
Defendants interact with Cubs fans by posing for photos or videos with the fans and engaging in
other mascot-like activities (such as dancing with fans), and then seek to hustle those same fans
for “fees” or “tips.” Defendants deliberately seek to create the impression the “Billy Cub”
Character is a mascot of the Cubs and otherwise related to the Cubs, which it is not. The
portrayal is damaging to the goodwill of the Cubs and misleading to fans who, thinking the lifesize
bear draped in a Cubs jersey and cap is affiliated with the Cubs, complain to the team about
the “Billy Cub” Character’s inappropriate and unsavory actions.
5. Defendants’ unsavory actions recently have escalated to physical violence. On
Saturday, April 5, 2014, Defendant Patrick Weier, dressed as the offending “Billy Cub”
Character, complete with a Cubs cap and a gray jersey confusingly similar to Cubs’ road jersey,
entered the John Barleycorn bar at 3524 N. Clark, less than a block from Wrigley Field, to solicit
bar patrons to pay him. When a bar patron removed the “head” of the “Billy Cub” Character,
exposing Mr. Weier’s face, Mr. Weier turned and punched the bar patron and proceeded to
engage in a violent altercation—all of which was captured on video by another patron and went
viral on the Internet later that evening. (See Exhibit A hereto.) Headlines of the incident
included “Here Is A Cubs Mascot Punching A Dude For Taking His Head Off.” These images
of what appears to be a Cubs mascot engaged in a bar fight are not the images or conduct
Plaintiff condones or promotes.
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6. Despite Plaintiff’s repeated requests, Defendant John Paul Weier and his partners
have refused to cease their efforts to trade off of the iconic Cubs’ reputation. Therefore, Plaintiff
brings this lawsuit to protect the Cubs’ rights and image among the Cubs’ fans.
JURISDICTION AND VENUE
7. The Court has subject matter jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C.
§§ 1331, 1338 and 1367, in that this is a civil action involving claims arising under the laws of
the United States, including an Act of Congress relating to trademarks, and wherein all other
claims are so related to claims within the Court’s original jurisdiction that they form part of the
same case or controversy.
8. Defendants Weiers and John Does (collectively the “Defendants”) reside in,
transact business in, and have other contacts with the state of Illinois, and are therefore subject to
the personal jurisdiction of this Court.
9. Venue is proper in this federal judicial district under 28 U.S.C. § 1391(b) and (c)
because, upon information and belief, all Defendants are residents of Illinois and at least one
Defendant resides in this district. Venue is also proper in this judicial district under 28 U.S.C.
§ 1391(b)(2) because a substantial part of the events giving rise to the claims asserted herein
occurred in this judicial district.
FACTS
Plaintiff and The Cubs’ Famous Marks
10. The Cubs are a founding member of the National League of professional baseball,
founded in 1876, making them one of the oldest continuously-operating baseball clubs in history.
The Cubs are Chicago’s oldest professional sports team.
11. The Cubs are well-known for their location at historic Wrigley Field. Opened in
1914, Wrigley Field is the second oldest Major League ballpark and the only remaining Federal
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League ballpark. For most of the last decade, Wrigley Field and the Cubs have welcomed more
than three million baseball fans per season. The portion of the Lake View neighborhood
surrounding Wrigley Field has become known as “Wrigleyville,” in honor of the famous ballpark
it surrounds.
12. The Cubs are also well-known for the bear symbol and design that has
continuously been used as a symbol in advertisements and merchandise synonymous with the
Cubs.
13. The Cubs own and have continuously used numerous trademarks, service marks,
logos, designs, stylizations, images, trade dress and other indicia which contain or comprise the
terms CUBS, CUB, CUBBIES, other CUB-formative marks, CHICAGO (stylized) and/or a
depiction of various bear designs, as well as the pinstriping, uniform designs and/or positioning
of the marks or names, logos or other elements on the Chicago Cubs’ uniforms, apparel or other
merchandise, including, without limitation, the marks shown in Exhibit B attached hereto (the
“CUBS Marks”), to identify its baseball club, its baseball stadium, its baseball game and
exhibition services, and a wide range of related goods and services.
14. The Cubs own numerous United States federal trademark registrations for many
of the CUBS Marks, including, but not limited to, the list and accompanying certificates of
registrations attached as Exhibit C (also “CUBS Marks”). All of the registrations in Exhibit C
are valid, subsisting and in full force and effect, and a substantial number of these registrations
are incontestable.
15. Long prior to any use by Defendants of the CUBS Marks, the Cubs, and their
licensees, and/or sponsors have extensively licensed, promoted and advertised goods and
services bearing the CUBS Marks, and have sold such goods and offered such services in
commerce continuously throughout the United States. Specifically, Plaintiff has extensively
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licensed, promoted and sold numerous bear designs of plush toys, figurines, hats and dolls
bearing the CUBS Marks.
16. As a result of this extensive use of the CUBS Marks in the United States, the
CUBS Marks have, for decades prior to Defendants’ activities complained of here, functioned as
unique identifiers for Plaintiff and its goods and services, acquiring distinctiveness among the
relevant consuming public. As a result of this extensive use of the CUBS Marks in the United
States, extensive and continuous media coverage, high degree of consumer recognition of the
CUBS Marks, and a loyal fan base, the CUBS Marks are famous within the meaning of Section
43(c) of the United States Trademark Act, 15 U.S.C. § 1125(c).
17. Through the long-standing use of the CUBS Marks in the United States, Plaintiff
has established enormous goodwill in the CUBS Marks.
Defendants’ Infringing, Deceptive, and Unlawful Conduct
18. Defendants have adopted a costumed character under the name “Billy Cub,” that
purports to pass itself off as a mascot of the Cubs, which it is not. The “Billy Cub” Character
consists of an individual dressed in a full body, bear costume wearing one of several Cubs
baseball jerseys depicting the fictitious player name “Billy Cub” on its back and branded with
the CUBS Marks or marks confusingly similar thereto, and carrying a cooler with a handmade
“pics for tips” sign taped to its side. In addition to the Cubs jersey, the “Billy Cub” Character
often wears a baseball hat or batting helmet branded with the CUBS Marks. Depictions of the
“Billy Cub” Character are attached as Exhibit D.
19. Defendants, working alone or in combination of approximately four “Billy Cub”
characters at a time, dressed in the “Billy Cub” Character and using the name “Billy Cub,” stand
outside the gates of Wrigley Field during baseball games to solicit cash tips in exchange for
various entertainment services, including photographs and videos. In addition to standing
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outside of the main gates of Wrigley Field, Defendants circulate among the Cubs’ patrons, ticket
holders and fans in the vicinity of Wrigley Field and elsewhere in the Chicago area and beyond.
20. Defendants, as the “Billy Cub” Character, have made rude, profane and
derogatory remarks and gesticulations to patrons, ticket holders, fans, or other individuals
located in the area of Wrigley Field. Such comments are sometimes related to the amount or
provision of tips to Defendants. Defendants, as the “Billy Cub” Character, have also made lewd
comments and racial slurs to ticket holders, fans, or other individuals located in the area of
Wrigley Field.
21. Defendants’ unauthorized conduct tarnishes the Cubs’ reputation and goodwill,
and has recently escalated into violent acts while wearing the unauthorized character and CUBS
Marks during the Cubs’ Opening Weekend. On Saturday, April 5, 2014, after the Cubs’ second
home game of the season, Defendant Patrick Weier, while wearing the unsanctioned Cubs’ bear
outfit with the CUBS Marks, entered the John Barleycorn bar at 3524 N. Clark near Wrigley
Field and repeatedly punched a bar patron -- all of which was captured on video by another
patron and immediately went viral on the Internet. (See Exhibit A hereto.)
22. Defendant John Paul Weier has operated or controlled certain websites, domain
names and social media webpages, from which Defendant has promoted the “Billy Cub”
Character and sold merchandise, including t-shirts, mugs, and key chains, that infringe and trade
on the goodwill of Plaintiff and the CUBS Marks.
23. Defendant Weier has attempted to connect the “Billy Cub” Character and its
related goods and activities to Plaintiff by adopting, using, advertising and offering for sale
goods and services under the infringing name and mark “Billy Cub.” Further connecting the
“Billy Cub” Character to Plaintiff is the fact that the “Billy Cub” Character purports to be the
life-size physical embodiment of the CUBS Marks, specifically the bear design and symbol.
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24. In donning the “Billy Cub” Character, including Cubs apparel that appears to be
licensed by Plaintiff, and engaging in promotional and commercial activities, including the sale
of merchandise and entertainment services, under the BILLY CUB name and mark (collectively
the “Activities”), Defendants deliberately create the impression the “Billy Cub” Character is
sponsored by or affiliated with Plaintiff. Specifically, through these actions Defendants are
holding the “Billy Cub” Character out as a mascot of the Cubs.
25. The Cubs have an official mascot, Clark the Cub. Among other activities, on
game days the Cubs’ Clark the Cub welcomes fans at the entrances to Wrigley Field and poses
for pictures. Below is a picture of Clark the Cub with two young fans in front of the ballpark.
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26. Defendant's Billy Cub Character stands outside these very same Wrigley Field
entrances on game days and offers to pose for pictures with Cubs fans. (Unlike Clark the Cub,
however, Defendant Billy Cub Character charges fans "tips" for this service.) Below is a picture
of one of the Defendants engaging in his business outside the Sheffield and Addison entrance.
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27. Defendants’ entire marketing image and business plan has been built around the
creation of a perceived connection to the Cubs, Wrigley Field, and the famous CUBS Marks.
Defendants have conducted the Activities without the Cubs’ permission or authority.
Defendants’ creation of a commercial enterprise solely based on unlawfully infringing the CUBS
Marks is indicative of their clear intent to trade upon the fame, goodwill, and reputation of
Plaintiff and the CUBS Marks, dilutes the distinctiveness of the CUBS Marks, and tarnishes the
CUBS Marks.
28. The Cubs and Major League Baseball have notified Defendant John Paul Weier of
the Cubs’ rights in the famous CUBS Marks and demanded Defendant John Paul Weier cease the
Activities and his infringing use of the CUBS Marks. Plaintiff attempted to negotiate with
Defendant John Paul Weier in 2013 in an effort to avoid litigation. Defendant John Paul Weier
has refused to cease his Activities and use of the CUBS Marks. Further, the Activities by
Defendant Weier and Weier’s partners have escalated in their negative and damaging impact on
the Cubs’ goodwill and the famous CUBS Marks, including specifically Defendant Weier’s
recent act of violence in a bar.
29. The Cubs are alarmed by the recent escalation into violence and fear further
violence could endanger Cub fans. Further still, the Cubs are concerned future violence on the
part of the “Billy Cub” Character could mistakenly be attributed to the Cubs.
30. Defendants’ unauthorized use of the CUBS Marks and other indicia connected
with Plaintiff is likely to cause confusion, mistake or deception as to the source and origin of
Defendants’ goods and services, including the “Billy Cub” Character, and is further likely to
cause consumers to draw the false impression that Defendants’ goods or services, including the
“Billy Cub” Character, are authorized, endorsed or sponsored by Plaintiff.
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31. Through these Activities, Defendants have caused actual confusion, mistake or
deception as to the source of origin of Defendants’ goods and services, including the “Billy Cub”
Character. For example, Defendant Patrick Weier’s April 5, 2014 act of violence at the John
Barleycorn bar was immediately associated with the Cubs’ mascot, Clark. On Twitter, Cub fans
tweeted:
4/7/14, 5:40 PM @ClarktheCub decks a guy who stole his head in
Wrigleyville. youtu.be/4vIRzE5Iruw
4/6/14, 8:06 PM @Deadspin has a viral video of @ClarktheCub
punching a guy at a bar. #cubs this could be a tougher year
4/7/14, 11:58 AM. See the video of Clark the Cub punching a fan
in a bar? The mascot dude is HUGE and he flattened that guy.
youtube.com/watch?v=8NX9Rp…
4/7/14, 10:31 AM. #ClarktheCub He chose to mess with the
wrong mascot - ifunny.mobi/i/1OmMxMSs1
In addition, on a number of occasions, consumers have contacted Plaintiff to notify Plaintiff
about Defendants’ rude or threatening behavior.
32. Defendants’ unauthorized use of the CUBS Marks and other indicia connected
with Plaintiff is likely to cause dilution by tarnishment of the CUBS Marks and goodwill with
consumers.
33. Defendants’ unauthorized use of the CUBS Marks and other indicia connected
with Plaintiff is likely to cause dilution by blurring of the CUBS Marks and goodwill with
consumers.
34. Unless and until Defendants are enjoined from any further unauthorized
exploitation of the CUBS Marks and other Cubs indicia, Defendants will continue to use such
designations and engage in the Activities in violation of the Cubs’ rights.
35. By virtue of their unlawful conduct, Defendants have made or will make
substantial profits and gains to which they are not in law or equity entitled.
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36. Defendants’ actions have been willful, wanton, reckless and in total disregard of
Plaintiff’s trademark rights.
37. As a result of Defendants’ unlawful actions, the Cubs have been or will be
damaged and have suffered, and will continue to suffer, immediate and irreparable injury for
which Plaintiff has no adequate remedy at law.
COUNT I
(Federal Trademark Infringement of a Federally Registered Mark, Lanham Act § 32(1))
38. Plaintiff repeats and realleges the allegations set forth in Paragraph 1-37 above
with the same force and effect if set forth fully herein.
39. The Cubs are the owner of all right, title, and interest in and to the registered
CUBS Marks.
40. Defendants’ unauthorized use of the federally registered CUBS Marks is likely to
cause confusion, mistake or deception as to Defendants’ goods and services, including the “Billy
Cub” Character, and is further likely to cause consumers to draw the false impression that
Defendants’ goods or services, including the “Billy Cub” Character, are authorized, endorsed or
sponsored by Plaintiff.
41. Defendants’ actions have been willful, wanton, reckless and in total disregard of
Plaintiff’s federally registered trademark rights.
42. As a result of Defendants’ unlawful actions, the Cubs have been and will be
damaged and have suffered, and will continue to suffer, immediate and irreparable injury for
which Plaintiff has no adequate remedy at law.
43. Defendants’ conduct as described above constitutes infringement of the federally
registered CUBS Marks in violation of Section 32(1) of the Lanham Act of 1946, as amended, 15
U.S.C. § 1114(1).
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44. Plaintiff is entitled to injunctive, monetary and other relief pursuant to
Sections 34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, 1118, and 1125(c).
COUNT II
(Trademark Infringement of Lanham Act § 43(a))
45. Plaintiff repeats and realleges the allegations set forth in Paragraph 1-44 above
with the same force and effect if set forth fully herein.
46. The Cubs have common law rights in the CUBS Marks.
47. Defendants’ unauthorized use of the CUBS Marks is likely to cause confusion,
mistake or deception as to the affiliation, source, connection, origin, sponsorship or approval of
Defendants’ goods and services, including the “Billy Cub” Character, and is further likely to
cause consumers to draw the false impression that Defendants’ goods or services, including the
“Billy Cub” Character, is authorized, endorsed or sponsored by Plaintiff.
48. Defendants’ actions have been willful, wanton, reckless and in total disregard of
the Cubs’ trademark rights.
49. As a result of Defendants’ unlawful actions, the Cubs have been and will be
damaged and have suffered, and will continue to suffer, immediate and irreparable injury for
which Plaintiff has no adequate remedy at law.
50. Defendants’ conduct as described above constitutes the use in commerce of false
designations of origin, false or misleading descriptions of fact, or false and misleading
representations of fact in violation of Section 43(a) of the Lanham Act of 1946, as amended, 15
U.S.C. § 1125(a).
COUNT III
(Federal Trademark Dilution by Tarnishment, Lanham Act § 43(c))
51. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1-50 above
with the same force and effect if set forth fully herein.
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52. As described above, the CUBS Marks are famous and distinctive and had
achieved such fame in the United States decades before Defendants commenced their dilutive
Activities.
53. Defendants’ commercial use of the CUBS Marks is likely to dilute, actually
dilutes, and will continue to dilute the famous and distinctive CUBS Marks by tarnishment.
54. Defendants’ aforementioned Activities and use of the CUBS Marks is likely to
cause dilution by tarnishment of the famous and distinctive CUBS Marks because such use by
persons or entities not affiliated with the Cubs creates an association arising from the similarity
between the “Billy Cub” Character and the famous CUBS Marks which harms the reputation of
the famous CUBS Marks.
55. Defendants’ actions have been intentional, willful, wanton, reckless and in total
disregard of the Cubs’ trademark rights.
56. Defendants’ acts of dilution by tarnishment have caused irreparable injury and
damage to the Cubs, and unless this Court enjoins Defendants from further commission of said
acts, the Cubs will continue to suffer irreparable injury and damage for which they have no
adequate remedy at law.
57. Defendants’ acts set forth above constitute trademark dilution by tarnishment in
violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
58. Plaintiff is entitled to injunctive, monetary and other relief pursuant to
Sections 34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, 1118, and 1125(c).
COUNT IV
(Federal Trademark Dilution by Blurring, Lanham Act § 43(c))
59. Plaintiff repeats and realleges the allegations set forth in Paragraph 1-58 above
with the same force and effect if set forth fully herein.
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60. As described above, the CUBS Marks are famous and distinctive and had
achieved such fame in the United States decades before Defendants commenced their infringing
Activities.
61. Defendants’ commercial use of the CUBS Marks is likely to dilute, actually
dilutes, and will continue to dilute the distinctive quality of the famous CUBS Marks by blurring.
62. Defendants’ aforementioned Activities and use of the CUBS Marks is likely to
cause dilution by blurring of the famous and distinctive CUBS Marks because such use by
persons or entities not affiliated with the Cubs creates an association arising from the similarity
between the “Billy Cub” Character and the CUBS Marks that impairs the distinctiveness of the
famous CUBS Marks.
63. Defendants’ actions have been intentional, willful, wanton, reckless and in total
disregard of the Cubs’ trademark rights.
64. Defendants’ acts of dilution by blurring have caused irreparable injury and
damage to the Cubs, and unless this Court enjoins Defendants from further commission of said
acts, the Cubs will continue to suffer irreparable injury and damage for which they have no
adequate remedy at law.
65. Defendants’ acts set forth above constitute trademark dilution by blurring in
violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
66. Plaintiff is entitled to injunctive, monetary and other relief pursuant to
Sections 34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, 1118, and 1125(c).
COUNT V
Illinois Uniform Deceptive Trade Practices Act
67. Plaintiff repeats and realleges the allegations set forth in Paragraph 1-66 above
with the same force and effect if set forth fully herein.
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68. By the unauthorized acts described herein, Defendants have engaged in unlawful
and unfair business practices that have injured and will continue to injure Plaintiff in its business
and property, in violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS §§
510, et seq.
69. Defendants have violated the Illinois Uniform Deceptive Trade Practices Act by
passing off their goods or services as those of Plaintiff, causing a likelihood of confusion or
misunderstanding as to the source, affiliation, connection or association of their goods or
services, and engaging in conduct which creates a likelihood of confusion or misunderstanding
among the public.
70. Defendants’ unauthorized, commercial Activities trade on the business reputation
and goodwill of Plaintiff with the intention of deceiving the public into believing that Defendants
are affiliated, connected or associated with Plaintiff in violation of the Illinois Uniform
Deceptive Trade Practices Act, 815 ILCS § 510/1-7.
71. Defendants’ acts described herein have caused, and if not enjoined will continue
to cause, irreparable and continuing harm to the CUBS Marks and Plaintiff’s business, reputation
and goodwill. Plaintiff has no adequate remedy at law as money damages are inadequate to
compensate Plaintiff for the injuries caused by Defendants.
72. As a direct and proximate result of Defendants’ conduct alleged herein,
Defendants have been unjustly enriched and should be ordered to disgorge any and all profits
earned as a result of such unlawful conduct.
COUNT VI
Illinois Dilution and Injury to Business Reputation Under Illinois Law
(Trademark Registration and Protection Act, 765 ILCS 1036/65)
73. Plaintiff repeats and realleges the allegations set forth in Paragraph 1-72 above
with the same force and effect if set forth fully herein.
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74. Plaintiff has rights in the CUBS Marks, which are uniquely associated with
Plaintiff as the source of goods and services offered in connection with the CUBS Marks.
75. The CUBS Marks are highly distinctive in connection with the goods and services
offered under the CUBS Marks.
76. The CUBS Marks are widely recognized by the general consuming public of
Illinois as a designation of the source for Plaintiff’s goods and services.
77. The CUBS Marks are famous in Illinois and were famous before Defendants
began their Activities in commerce.
78. Defendants’ infringing Activities in commerce lessen the capacity of the CUBS
Marks to identify and distinguish Plaintiff’s goods and services, and causes dilution of the
distinctive quality of the CUBS Marks in violation of the Illinois Trademark Registration and
Protection Act, 765 ILCS § 1036/65.
79. Plaintiff has been, and will continue to be, damaged by Defendants’ acts that
cause dilution of the CUBS Marks in an amount to be determined at trial.
80. Defendants’ conduct is willful, deliberate, intentional, and in bad faith.
81. Defendants’ acts in violation of the Illinois Trademark Registration and Protection
Act, 765 ILCS § 1036/65 have caused, and will continue to cause irreparable harm to Plaintiff
and the goodwill associated with the CUBS Marks, for which Plaintiff has no adequate remedy at
law. Thus, Plaintiff is entitled to injunctive relief.
COUNT VII
Unfair Competition Under Illinois Common Law
82. Plaintiff repeats and realleges the allegations set forth in Paragraphs 1-81 above
with the same force and effect if set forth fully herein.
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83. Plaintiff has common law and federal trademark rights in the CUBS Marks, which
are uniquely associated with Plaintiff as the source of goods and services offered in connection
with the CUBS Marks.
84. Defendants’ unauthorized Activities and use of the BILLY CUB mark in
commerce in connection with the advertising, promotion, and offering for sale of merchandise
and entertainment services is likely to cause confusion or mistake with the CUBS Marks, or to
deceive as to the source, affiliation, connection, association, or sponsorship of Defendants’ goods
or services, in violation of the common law of unfair competition of Illinois.
85. Plaintiff has been, and will continue to be, damaged by Defendants’ infringement
and unfair competition in an amount to be determined at trial.
86. Defendants’ conduct is willful, deliberate, intentional, and in bad faith, making
this an exceptional case.
87. Defendants’ acts of unfair competition have caused, and will continue to cause
irreparable harm to Plaintiff and the goodwill associated with the CUBS Marks, for which
Plaintiff has no adequate remedy at law. Plaintiff is thus entitled to injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment in their favor and against Defendants on all
counts and as follows:
A. That Defendants, their agents, servants, employees, successors, assigns, and all
those controlled by them, or in active concert or participation with them, be permanently
enjoined and restrained from:
(1) Using, registering or applying to register or authorizing others to use,
register or apply to register anywhere for any goods or services any name, mark or
domain name comprising or containing BILLY CUB or CUBS, CUB, CUBBIES,
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CUBBY, or any of the other Cubs Marks, including, without limitation, the Cubs
Uniform Trade Dress, or any other Cubs indicia, or any other names, trademarks, service
marks, trade dress colors and/or features, stylizations, images and/or indicia confusingly
similar thereto or dilutive thereof as a trademark, service mark, trade name, business
name, character or mascot name, and/or domain name or in any social networking
account or location in a manner that in confusingly similar to or dilutive of Plaintiff’s
rights.
(2) Registering or applying to register or authorizing others to register or
apply to register anywhere for any goods or services a depiction of: (i) the Billy Cub
Character shown on Exhibit D hereto; and/or (ii) a bear or cub character or design
identical or similar to the bear itself depicted in Exhibit C alone (without apparel); and/or
(iii) a bear or cub character or design identical or similar to the bear depicted in Exhibit C
dressed in or bearing any baseball-themed apparel or indicia and/or bearing the Cubs
Marks, including without limitation, the Cubs Uniform Trade Dress, or any other indicia
of the Cubs, and/or any names, marks, trade dress, or indicia confusingly similar thereto
or dilutive thereof.
(3) Engaging in, or authorizing anyone to engage in, any activities anywhere
in which the Defendants render any services or provide any goods or authorize others to
render any services or provide any goods, including without limitation, by live
appearances or via any medium or in connection with any goods or services, as, or
relating to, the “Billy Cub” Character, i.e., a bear or cub character or design identical or
similar to the bear or cub depicted in Exhibit B hereto and depicting the Cubs Marks,
including, without limitation, the Cubs Uniform Trade Dress, and/or other indicia of the
Cubs, and/or wearing baseball apparel.
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(4) Engaging in, or authorizing anyone to engage in, any activities in which
the Defendants render any services or provide any goods or authorize others to render any
services or provide any goods: (i) using a character or design of a bear or cub (including,
without limitation, wearing a costume) together with any Cubs Marks, including, but not
limited to, the Cubs Uniform Trade Dress or any other Cubs indicia or any name, mark,
trade dress or indicia confusingly similar thereto or dilutive thereof; and/or (ii) using a
character or design of a bear or cub (including, without limitation, wearing a costume)
with generic baseball indicia of any kind in any manner.
(5) Engaging in, or authorizing others to engage in, any other activities which
falsely represent or suggest that Defendants’ activities, actions, goods or services are
associated or affiliated with, licensed, authorized, endorsed, or sponsored by, or are a
sponsor of, Plaintiff or its affiliates, including, without limitation, representing or
misleading explicitly or implicitly that Defendants are in any way associated or affiliated
with, or licensed, authorized, endorsed, approved, or sponsored by, or are a sponsor of,
Plaintiff or its affiliates.
B. That Defendants be ordered to deliver for destruction all articles of merchandise,
displays, signs, plaques, advertisements, packaging, costumes, brochures, order forms, price lists,
or any other materials in Defendants’ possession or control or in the possession or control of
Defendants’ agents which bear or personify the CUBS Marks, the name “Billy Cub”, the “Billy
Cub” Character, or any other confusingly similar names, marks, designs or articles.
C. That Defendants be ordered to remove all depictions or references to the CUBS
Marks or the name “Billy Cub” or the “Billy Cub” Character, or any other confusingly similar
marks, on all websites and other mediums related to commercial activities owned, operated, or
under the control of Defendants.
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D. That Defendants be ordered to abandon, withdraw, or otherwise terminate the
legal effect of any fictitious business name statements, business licenses, public records, or other
such documents that they may have filed in any jurisdiction, as to which they have used the name
“Billy Cub”, or any other confusingly similar name.
E. That Defendants be ordered to file with this Court and serve on Plaintiff within 14
days after entry of such order, a report in writing, under oath, setting forth in detail the manner of
Defendants’ compliance with all of the foregoing requirements.
F. That Defendants be required to account for and pay over to Plaintiff, all gains,
profits, and advantages derived by Defendants from Defendants’ infringement of the CUBS
Marks.
G. That Defendants be ordered to pay Defendants’ profits and any damages sustained
by Plaintiff.
H. That Defendants be ordered to pay to Plaintiff as punitive damages a sum equal to
three (3) times the amount of Plaintiff’s actual damages, plus interest and costs of this action
I. That Plaintiff recovers prejudgment interest on its damages.
J. That Defendants be ordered to pay Plaintiff’s attorneys fees under 765 ILCS
1036/65 and as an exceptional case under the Lanham Act.
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K. That the Court grant Plaintiff such other relief as the Court deems just.
Dated: July 18, 2014 DENTONS US LLP
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