{K0625157.1}

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Henager Family Museum, Inc. 

d/b/a National Veterans

Memorial,

Plaintiff,

vs.

Columbus Downtown Development 

Corp.,

Defendant.

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Case No. 2:17-cv-726

Judge 

Magistrate Judge

COMPLAINT

For its complaint against Defendant, Columbus Downtown Development Corp. 

(“Defendant”), Plaintiff, Henager Family Museum, Inc d/b/a National Veterans 

Memorial (“Henager”) alleges as follows:

PARTIES

1. Henager is an Indiana nonprofit corporation with its principal office in 

Buckskin, Gibson County, Indiana.

2. Defendant is an Ohio nonprofit corporation with its principal office in

Columbus, Franklin County, Ohio.

NATURE & JURISDICTION

3. This is an action for Trademark Infringement and Unfair Competition 

brought pursuant to Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. § 1114(1)(a) 

and the common law of the state of Ohio.

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4. The Court has jurisdiction over this action under Section 39 of the Lanham 

Act, 15 U.S.C. § 1121, and Title 28 of the United States Code, Sections 1331 and 1338.

5. The Court has personal jurisdiction over Defendant because, inter alia, 

Defendant is located in the Southern District of Ohio and does substantial business in 

the district. 

6. Venue is proper in this district under 28 U.S.C. § 1391(b)(1) and (2).

THE FACTS

A. Henager’s Mark: the Original “National Veterans Memorial.”

7. More than a decade ago, around May of 2004, Henager began using the 

mark “NATIONAL VETERANS MEMORIAL” in association with a museum that meets 

the objective of promoting public awareness of the need for reconciliation and 

recognition by all veterans (the “Objective”) and honors American military veterans 

(“the NVM museum”).

8. In furtherance of the Objective, Henager applied for the mark NATIONAL 

VETERANS MEMORIAL (“the Mark”) with the United States Patent and Trademark 

Office (the “USPTO”) on October 2, 2007.

9. On April 29, 2008, the USPTO awarded to Henanger ownership of United 

States Trademark Registration No. 3,420,974 (“the ‘974 registration”) for the Mark. A 

copy of the ‘974 registration is attached as Exhibit A.

10. The Mark is an “actual use” mark with USPTO under 15 U.S.C. § 1051(a).

11. Henager also has common law rights in the Mark, including the name 

NATIONAL VETERANS MEMORIAL, in at least Indiana, if not the greater Midwest.

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12. Since the NVM museum opened, it has remained opened continuously 

until the present day and throughout that time it has been known by the name 

NATIONAL VETERANS MEMORIAL.

13. Since at least 2008, the NVM museum has operated the website 

http://www.nationalveteransmemorial.org/ (the “NVM museum website”).

14. The NVM museum is dedicated to honoring American veterans of all 

military conflicts in which the United States has been involved, including veterans of all 

branches of United States military services.

15. Examples of promotional documents used by the NVM museum are 

attached collectively as Exhibit B.

16. The NVM museum is promoted online through the NVM museum 

website operated by Henager, the purpose of which is to generate interests in and 

financial support for the NVM museum and to generally publicize the nature of the 

NVM museum.

B. Defendant’s Unlawful Use of Henager’s Mark.

17. Defendant is currently in the process of developing “a new memorial and 

museum being built in Columbus, Ohio to honor veterans’ contributions to our free and 

safe society,” which, according to Defendant’s promotional materials, will be operated 

using the name NATIONAL VETERANS MEMORIAL & MUSEUM (“the NVMM”).

18. Defendant intends to open the NVMM sometime in 2018.

19. Defendant is aggressively promoting the NVMM under the name 

NATIONAL VETERANS MEMORIAL & MUSEUM and is engaged in a nationwide 

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fundraising campaign for the construction of a building to be situated in Columbus, 

Ohio.

20. Defendant’s promotional activities include a website used for the 

purposes of generating interest in and raising financial support for the NVMM.

21. Among the statements made by or on behalf of Defendant on the website 

for the NVMM in support of the NVMM is the following:

There are almost 22 million living veterans throughout the United 

States, from Greatest Generation to recent heroes coming home from 

Afghanistan and Iraq. And yet, there is no single monument or 

museum dedicated to the Veteran’s experience.

A copy of the page from the NVMM website which contains the above statement

(http://www.nationalvmm.org/) is attached as Exhibit C.

22. In fact, the NVM museum is dedicated to the experiences of United States 

military veterans of all United States military conflicts.

23. The website for the NVMM promotes its proposed museum to the same 

consumers as those who are interested in memorial museums dedicated to American 

military veterans, such as the NVM museum. Website searches for “veterans memorial 

museums” or similar queries will result in access to both the NVM website and 

Defendant’s website.

C. The USPTO Informs Defendant that its application for NVMM “is refused 

because of a likelihood of confusion with the mark in U.S. Registration No. 

3420974.”

24. Defendant applied for a trademark for “NATIONAL VETERANS 

MEMORIAL & MUSEUM” from the USPTO on October 6, 2016.

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25. Defendant’s application is for an “intend-to-use” trademark under 15 

U.S.C. § 1051(b).

26. The USPTO assigned Defendant’ application serial number 87195052.

27. On January 23, 2017, the USPTO sent Defendant an office action letter. A 

copy of that office action letter is attached as Exhibit D.

28. In its office action letter to Defendant, the USPTO stated that “Registration 

of the applied-for mark is refused because of a likelihood of confusion with the mark in 

U.S. Registration No. 3420974.”

29. U.S. Registration No. 3420974 is Henager’s Mark.

30. The USPTO noted that: 

Here, applicant’s mark is NATIONAL VETERANS MEMORIAL & 

MUSEUM in connection with “Conducting guided tours of a museum; 

Education services, namely, providing displays and exhibits in the field of 

history; Education services, namely, providing displays and exhibits in the 

field of honoring the service and sacrifice of veterans of all eras, conflicts 

and branches of the military; Education services, namely, providing 

exhibitions, presentations and field trips in the fields of history and 

honoring the service and sacrifice of veterans of all eras, conflicts and 

branches of the military; Museum services; Museums.”

The cited registration is NATIONAL VETERANS MEMORIAL, which is 

registered in connection with “Promoting public awareness of the need for 

reconciliation and recognition of all veterans.”

31. In comparing Henager’s Mark with Defendant’s application, the USPTO 

established that the:

wording in the cited registration is fully contained within applicant’s 

mark. Applicant has merely added the wording ‘& MUSEUM’ to the 

wording in the cited registration....

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Accordingly, applicant’s [Defendant’s] mark is similar in sound, 

appearance and overall commercial impression to the mark in the cited 

registration [Henager’s Mark].

32. Considering the relatedness of the services offered by Henager’s Mark 

with Defendant’s application, the USPTO cogently concluded that “upon encountering 

applicant’s and registrant’s marks, consumers are likely to be confused and mistakenly 

believe that the respective services emanate from a common source. Accordingly, 

applicant’s mark must be refused registration under Section 2(d) of the Lanham Act.” 

(emphasis added).

33. Defendant was provided six (6) months to respond to the USPTO’s 

January 23, 2017 office action letter. (“TO AVOID ABANDONMENT OF APPLICANT’S 

TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S 

COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE 

ISSUE/MAILING DATE BELOW. A RESPONSE TRANSMITTED THROUGH THE 

TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED 

BEFORE MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE 

PERIOD.”). (emphasis in original).

34. But as of the date of the filing of this Complaint, Defendant has failed to 

even respond to the USPTO’s office action letter. A copy of the USPTO docket for 

Defendant’s application serial number 87195052 is attached as Exhibit E.

D. Effect of Defendant’s Unlawful use of the Mark.

35. Defendant’s continued use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM is confusingly similar to Henager’s NATIONAL VETERANS 

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MEMORIAL mark. Defendant uses the name NATIONAL VETERANS MEMORIAL & 

MUSEUM for the same type of services – a military memorial/museum honoring 

American veterans – as those for which Henager uses the Mark. 

36. Further, Defendant intends to operate the NVMM in the middle portion of 

the state of Ohio, an adjoining state to Indiana where Henager operates the NVM 

museum. The NVMM will thus be situated in the same regional geographic area as the 

NVM museum.

37. The museum products and services which Defendant advertises and 

promotes for the NVMM using the name NATIONAL VETERANS MEMORIAL & 

MUSEUM are offered and/or promoted in the same channels of trade as those offered 

and/or promoted by Henager in connection with the NVM museum. As the USPTO 

noted in its office action letter, Defendant’s and Henager’s advertising and promotional 

materials are directed to the same or similar consumers. See Exhibit D.

38. Defendant’s continued use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM in its advertising and promotional materials and in 

connection with the NVMM and its services is likely to diminish the goodwill 

associated with the NATIONAL VETERANS MEMORIAL mark.

39. If Defendant continues to use the name NATIONAL VETERANS 

MEMORIAL & MUSEUM in association with the NVMM, it will likely derive revenue 

from the products and services offered and/or promoted under that name.

40. Defendant’s use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM is likely to cause confusion or mistake or to deceive consumers into believing 

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that the NVMM and the products and services advertised, promoted and offered at the 

NVMM are sponsored, licensed or authorized by, or affiliated, connected or otherwise 

associated with Henager and/or the NVM museum.

41. Henager’s NATIONAL VETERANS MEMORIAL mark is registered with 

the USPTO, and is of public record. In fact, Defendant has actual knowledge of the 

Mark through the USPTO’s office action letter. See Exhibit D.

42. Information concerning the NVM museum, including Henager’s use of 

the NATIONAL VETERANS MEMORIAL mark for the NVM museum, is readily 

available through even a cursory Internet search. 

43. Defendant’s election to use a mark substantially similar if not identical to 

the NATIONAL VETERANS MEMORIAL mark is with full knowledge of Henager’s

ownership of the NATIONAL VETERANS MEMORIAL mark and Henager’s right to 

use and control the use of the Mark – as the USPTO informed Defendant on January 23, 

2017 – and Defendant has acted and continues to act without regard to Henager’s 

property rights in and to the NATIONAL VETERANS MEMORIAL mark.

44. As a result of Defendant’s use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM, Defendant is being unjustly enriched at Henager’s expense, 

and Henager is in turn being damaged.

45. Defendant’s use of the name NATIONAL VETERANS MEMORIAL & 

MUSEUM in association with the NVMM and the products and services to be offered 

by the NVMM has significantly injured Henager’s interests. Specifically, Defendant: (a) 

has traded upon and continues to trade upon the significant and valuable goodwill in 

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the NATIONAL VETERANS MEMORIAL mark; (b) is likely to cause confusion among 

the consuming public, including patrons and potential donors, as to the source, 

sponsorship or affiliation of the NVMM’s products or services; (c) has damaged and 

threatens to further damage Henager’s significant and valuable goodwill in the 

NATIONAL VETERANS MEMORIAL mark; (d) has injured and threatens to further 

injure Henager’s right to use the NATIONAL VETERANS MEMORIAL mark as the 

exclusive indicia of origin of the NVM museum products and services in Indiana and 

throughout the United States; and (e) has lessened the capacity of the NATIONAL 

VETERANS MEMORIAL mark to indicate that the products and services associated 

with the Mark are sponsored by Henager and associated with the NVM museum.

46. Unless Defendant’s unlawful use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM is enjoined by the Court, such unlawful use will cause 

irreparable injury to Henager and to the public for which there is no adequate remedy 

at law.

47. Defendant’s unlawful use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM has been and continues to be deliberate, willful, intentional 

and in bad faith, with full knowledge and conscious disregard of Henager’s rights in 

and to the NATIONAL VETERANS MEMORIAL mark. In view of the egregious nature 

of Defendant’s actions, this is an exceptional case within the meaning of Section 35a of 

the Lanham Act, 15 U.S.C. §1117(a).

COUNT I

FEDERAL TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114(1)(a)

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48. Henager incorporates by reference the allegations contained in the 

preceding and following paragraphs of this Complaint as if fully set forth herein. 

49. The acts of Defendant complained of herein are likely to cause confusion, 

mistake, or deception as to origin, sponsorship or approval and therefore constitute 

federal trademark infringement and violation of 15 U.S.C. § 1114(1)(a).

50. Defendant’s actions constitute knowing, deliberate and willful 

infringement of Henager’s rights in and to the NATIONAL VETERANS MEMORIAL 

mark, which renders this an exceptional case under 15 U.S.C. § 1117(a).

COUNT II

UNFAIR COMPETITION UNDER 15 U.S.C. § 1114(1)(a)

51. Henager incorporates by reference the allegations contained in the 

preceding and following paragraphs of this Complaint as if fully set forth herein.

52. The acts of Defendant complained of herein constitute unfair competition 

in violation of Section 43(a) of the Lanham Act and 15 U.S.C. § 1114(1)(a). Henager is 

entitled to recover actual and treble damages, attorneys’ fees, and the costs of this 

litigation pursuant to 15 U.S.C. § 1117 and injunctive relief pursuant to 15 U.S.C. § 1116.

53. Defendant’s actions constitute knowing, deliberate and willful 

infringement of Henager’s rights in and to the NATIONAL VETERANS MEMORIAL 

mark, which renders this an exceptional case under 15 U.S.C. § 1117(a).

COUNT III

FALSE DESIGNATION UNDER 15 U.S.C. § 1114(1)(a)

54. Henager incorporates by reference the allegations contained in the 

preceding and following paragraphs of this Complaint as if fully set forth herein.

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55. Defendant’s wrongful use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM in association with the NVMM is likely to cause confusion, 

mistake and deception among consumers as to the affiliation, connection and 

association of the NVM museum with the NVMM, and/or to deceive consumers as to 

the origin, sponsorship and approval by Henager of the NVMM.

56. Defendant’s use of the name NATIONAL VETERANS MEMORIAL & 

MUSEUM in association with the identification and promotion of the NVMM 

constitutes false designation under 15 U.S.C. § 1114(1)(a).

57. Defendant’s actions constitute knowing, deliberate and willful 

infringement of Henager’s rights in and to the NATIONAL VETERANS MEMORIAL 

Mark, which renders this an exceptional case under 15 U.S.C. § 1117(a).

PRAYER FOR RELIEF

WHEREFORE, Henager prays that the Court enter judgment in its favor and 

against Defendant as follows:

a. Defendant, its agents, servants, employees, board members, attorneys and 

all those persons in active concert or participation with any of them, be 

permanently enjoined from using the name NATIONAL VETERANS 

MEMORIAL & MUSEUM, and any other name that is confusingly similar 

to the NATIONAL VETERANS MEMORIAL mark;

b. Defendant, its agents, servants, employees, board members, attorneys and 

all those persons in active concert or participation with any of them, be 

required to modify all signage, advertising, social media usage and 

promotional materials to eliminate the name NATIONAL VETERANS 

MEMORIAL & MUSEUM therefrom, and any other mark that is 

confusingly similar to the NATIONAL VETERANS MEMORIAL mark;

c. Defendant, its agents, servants, employees, board members, attorneys and 

all those persons in active concert or participation with any of them, be 

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required to deliver to the Court for destruction, or show proof of 

destruction, any and all labels, signs, prints, packages, advertisements, 

and any other materials or media in Defendant’s possession or control that 

use the name NATIONAL VETERANS MEMORIAL & MUSEUM, or any 

other mark that is confusingly similar to the NATIONAL VETERANS 

MEMORIAL mark;

d. Defendant, its agents, servants, employees, board members, attorneys and 

all those persons in active concert or participation with any of them, be 

required to take all reasonably available steps to remove the name

NATIONAL VETERANS MEMORIAL & MUSEUM, and any other name 

that is confusingly similar to the NATIONAL VETERANS MEMORIAL 

mark, as a designator of the NVMM from any listing in any business 

directory, internet directory, yellow pages and any other listing service;

e. Defendant be ordered to file with this Court and to serve upon Henager,

within thirty (30) days after the entry and service on Defendant of an 

injunction enjoining its use of the name NATIONAL VETERANS 

MEMORIAL & MUSEUM, a report in writing and under oath setting forth 

in detail the manner and form in which Defendant has complied with the 

injunction;

f. Henager recover all damages it sustains as a result of Defendant’s 

infringement and unfair competition, and that said damages be trebled; 

g. Defendant be ordered to conduct an accounting to determine the funds it 

has received through donations or otherwise resulting from the unlawful 

use of the name NATIONAL VETERANS MEMORIAL & MUSEUM, and 

order that such funds be paid over to Henager, with said amount

increased as the Court finds to be just and proper under the circumstances 

of this case; 

h. Henager be awarded statutory damages as provided in 15 U.S.C. § 

1117(d); 

i. Defendant and all others acting in concert with it be directed to pay 

punitive damages as permitted by law to deter Defendant and all others 

similarly situated from like unlawful conduct in the future; 

j. Henager recover its attorneys’ fees; 

k. Henager recover its costs of this action and prejudgment and postjudgment interest; and 

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l. Henager recover such other and further relief as the Court may deem just 

and appropriate.

Respectfully submitted, 

/s/ Samir B. Dahman

Samir B. Dahman (0082647)

Trial Attorney

Alexis V. Preskar (0095619)

Email: sbd@kjk.com; avp@kjk.com

Kohrman Jackson & Krantz LLP

10 West Broad Street, Suite 1900

Columbus, OH 43215

Tel: 614.427.5750

Fax: 216.621.6536

Counsel for Plaintiff Henager Family 

Museum, Inc. d/b/a National Veterans

Memorial

JURY DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff Henager Family 

Museum, Inc. d/b/a National Veterans Memorial demands a trial by jury on all issues 

so triable.

Respectfully submitted, 

/s/ Samir B. Dahman

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