MECHANICAL UNIVERSITY BOARD

OF TRUSTEES,

Plaintiff, CASE NO.: 

V.

RK NETMEDIA, INC., a Florida

Corporation, and JohnlJane Does 1-8,

Defendants.

VERIFIED COMPLAINT

(INJUNCTIVE RELIEF REQUESTED)

Plaintiff FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY

BOARD OF TRUSTEES (“FAMU TRUSTEES”), hereby sues RK NETMEDIA,INC. (“RK”) and John/Jane Does 1-8 (collectively “Defendants”), and for its

causes of action alleges as follows:

NATURE OF ACTION

1. This is an action for false or misleading descriptions and

misrepresentations under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),

federal trademark dilution under Section 43(a) of the Lanham Act, 15 U.S.C. §

1125(c), disparagement and injury to business reputation and trademark dilution
2. Florida Agricultural and Mechanical University is a public university

of the State of Florida. The FAMU TRUSTEES is a constitutionally created entity

that administers the Florida Agricultural and Mechanical University.

3. RK is a Florida corporation with its principal place of business in

Miami Beach, Florida. Upon information and belief, RK is the owner and

operator of several sexually explicit websites, including a website with the

domain name “daredorm.com.”

4. The true names and capacities of John/Jane Doe Defendants 1-8

are unknown to FAMU TRUSTEES at this time. Each John/Jane Doe Defendant

is known to FAMU TRUSTEES only by their depiction in the internet video that is

the subject of this lawsuit. FAMU TRUSTEES believes that information obtained

in discovery will lead to the identification of each John/Jane Defendants’ true

name and citizenship. 1

JURISDICTION AND VENUE

5. Jurisdiction over FAMU TRUSTEES’ claims is based on 28 U.S.C.

§ 1331 and 1367.

6. This Court has in personam jurisdiction over RK because it

operates a commercial, interactive website that is displayed in this District and is

1 FAMU TRUSTEES will promptly seek leave to amend its Verified Complaintupon obtaining the names and capacities of John/Jane Doe Defendants 1-8.

2
because RK solicits and engages in business within this District and is

responsible for tortious conduct directed at Florida Agricultural and Mechanical

University in this District.

STATEMENT OF FACTS

8. Florida Agricultural and Mechanical University was founded in 1887

and has a strong reputation and tradition as one of the nation’s oldest and most

distinguished public universities.

9. Florida Agricultural and Mechanical University is dedicated to the

advancement of knowledge, resolution of complex issues and the empowerment

of citizens and communities and embraces persons of all races, ethnic origins

and nationalities as life-long members of the university community.

10. Florida Agricultural and Mechanical University’s core values are

Scholarship, Excellence, Openness, Fiscal Responsibility, Accountability,

Collaboration, Diversity, Service, Fairness, Courage, Integrity, Respect,

Collegiality, Freedom, Ethics and Shared Governance.

11. Florida Agricultural and Mechanical University extensively uses and

promotes the initials of its name, “FAMU,” as a trademark and service mark.

12. Florida Agricultural and Mechanical University is the owner of

Florida State Trademark Registration No. T05000000054 for the mark “FAMU”

3
rights in its “FAMU” mark long before the activities at issue in this lawsuit and the

“FAMU” mark serves as a powerful and famous indicator of goods and services

provided by or otherwise affiliated with Florida Agricultural and Mechanical

University.

14. Florida Agricultural and Mechanical University first used its “FAMU”

mark in interstate commerce in connection with its activities as a public university

in 1953 and has produced and sold merchandise bearing the “FAMU” mark since

1953.

15. Florida Agricultural and Mechanical University’s “FAMU” mark has

achieved significant fame and public recognition.

16. Because of its widespread use in connection with Florida

Agricultural and Mechanical University’s activities and licensed merchandise, the

“FAMU” mark has tremendous power as a source identifier of Florida Agricultural

and Mechanical University, particularly when used in connection with other

indicia identifying or suggesting Florida Agricultural and Mechanical University.

17. Florida Agricultural and Mechanical University also extensively

uses and promotes its tradename, “Rattlers,” as a trademark and service mark.

18. Florida Agricultural and Mechanical University developed trademark

rights in its “Rattlers” mark long before the activities at issue in this lawsuit and

4
19. Florida Agricultural and Mechanical University first used its

“Rattlers” mark in interstate commerce in connection with its activities as a public

university in 1985 and has produced and sold merchandise bearing the “Rattlers”

mark since 1985.

20. Florida Agricultural and Mechanical University’s “Rattlers” mark has

achieved significant fame and public recognition.

21. Because of its widespread use in connection with Florida

Agricultural and Mechanical University’s activities and licensed merchandise, the

“Rattlers” mark has tremendous power as a source identifier of Florida

Agricultural and Mechanical University, particularly when used in connection withother indicia identifying or suggesting Florida Agricultural and Mechanical

University.

22. Florida Agricultural and Mechanical University also uses an orange

and green color scheme in interstate commerce in connection with itseducational services and its licensed apparel and other merchandise, including

the uniforms for its athletic teams, souvenirs and memorabilia.

23. Florida Agricultural and Mechanical University’s school colors were

chosen to represent the major industry in the State of Florida (citrus). The

5
repeatedly in connection with Florida Agricultural and Mechanical University’s

athletic teams and its many other organizations, activities and services, as wellas with goods sold by Florida Agricultural and Mechanical University or its

licensees.

25. Florida Agricultural and Mechanical University first used the orange

and green color scheme in connection with its educational services in 1887 and

has produced and sold merchandise bearing the orange and green color scheme

since 1887.

26. Florida Agricultural and Mechanical University uses the orange and

green color scheme in connection with its “FAMU” and “Rattlers” marks, its

name, as an element of its logos and design marks, and in numerous other

contexts.

27. Florida Agricultural and Mechanical University used and promoted

its orange and green color scheme continuously and extensively well before RK’s

operation of the daredormcom website referenced herein.

28. Florida Agricultural and Mechanical University’s orange and green

color scheme has achieved significant fame and public recognition, especially

when appearing in connection with collegiate activities and events.

6
Florida Agricultural and Mechanical University, particularly when used in

connection with other indicia identifying or suggesting Florida Agricultural and

Mechanical University.

30. Florida Agricultural and Mechanical University licenses its marks

through its licensing agent, The Collegiate Licensing Company (“CLC”), which is

the nation’s leading collegiate licensing and marketing representative. CLC

assists collegiate licensors in protecting and controlling the use of their logos

through trademark licensing. CLC represents more than 190 universities, bowl

games, and conferences, including Florida Agricultural and Mechanical

University.

RK’S NFRlNGING ACTM11ES

31. RK operates the website “daredorm.com,” which depicts individuals

engaging in sexually explicit activities in what appears to be dorm rooms at

various college campuses throughout the United States.

32. RK charges a fee to internet consumers who wish to view the

videos depicted on its “daredorm.com” website.

33. On or about March 1, 2010, RK posted a full-length video on its

“daredorm.com” website depicting no less than eight (8) individuals engaging in

7
depictions of and oral references to Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks.

35. The ‘BigRattler77” video also depicts Florida Agricultural and

Mechanical University’s orange and green color scheme in connection with the

“FAMU” and “Rattlers” marks.

36. The caption for the “BigRattler77” video states that it was filmed ‘at

a historically black college in Florida.”

37. The “BigRattler77” video also suggests that the individuals depicted

therein are Florida Agricultural and Mechanical University students and contains

derogatory and highly offensive racial innuendo and visual depictions of gang

signs purportedly associated with Florida Agricultural and Mechanical University.

38. RK did not seek or receive permission from Florida Agricultural and

Mechanical University to depict and use its “FAMU” and “Rattlers” marks and

orange and green color scheme on the “daredorm.com” website or any other

medium.

39. John/Jane Doe Defendants 1-8 did not seek or receive permission

from Florida Agricultural and Mechanical University to depict and use its “FAMU”

and “Rattlers” marks and orange and green color scheme in the “BigRattler77”

video.

8
41. Upon information and belief, the “BigRattler77” video was not filmed

on the campus of Florida Agricultural and Mechanical University.

42. Upon information and belief, John/Jane Doe Defendants 1-8

received $10,000.00 from RK in exchange for the “BigRattler77” video.

43. Florida Agricultural and Mechanical University has requested RK to

remove the “BigRattler77” video from its “daredorm.com” website and destroy all

copies thereof.

44. Upon information and belief, RK has yet to remove the

“BigRattler77” video from its “daredorm.com” website.

45. The “BigRattler77” video is a transparent attempt to trade on the

good name and identity of Florida Agricultural and Mechanical University and its

marks by wrongly insinuating that its students routinely engage in the debasing

and degrading behavior depicted therein.

46. The “BigRattler77” video is likely to deceive, confuse and mislead

prospective purchasers and viewers of the video into believing that the video wasproduced, authorized or is in some manner associated with Florida Agricultural

and Mechanical University.

47. Persons and consumers viewing the “BigRattler77” video on RK’s

“daredorm.com” website are likely to associate and attribute the behavior

9
engendered by the “Big Rattler77” video is causing substantial irreparable harm to

Florida Agricultural and Mechanical University and its good name and will

continue to cause substantial irreparable harm unless such acts are promptly

restrained by this Court.

49. RK willfully, intentionally and maliciously adopted, caused to be

adopted or contributed to the imitations of and references to Florida Agricultural

and Mechanical University’s marks and orange and green color scheme in the

“BigRattler77” video.

50. Florida Agricultural and Mechanical University has no adequate

remedy at law to cure the substantial irreparable harm caused by the

“BigRattler77” video depicted on RK’s “daredorm.com” website.

51. FAMU TRUSTEES has been forced to retain the undersigned

counsel and is obligated to pay reasonable attorneys’ fees to protect its rights

and interest as well as the taxpayers of the State of Florida.

CAUSES OF ACTION

COUNT I — FEDERAL FALSE DESCRIPTION

AND MISREPRESENTA11ON OF MARKS

52. FAMU TRUSTEES realleges paragraphs 1 through 51, supra.

10
54. RK’s “daredorm.com” website and “BigRattler77” video contain

false representations of fact which misrepresent the nature, characteristics and

qualities of Florida Agricultural and Mechanical University and its marks, and

falsely associates Florida Agricultural and Mechanical University with RK and the

individuals depicted in the “BigRattler77” video and their miscreant behavior.

55. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website and the “BigRattler77” video

depicted therein is likely to cause confusion among the public as to the

sponsorship or affiliation of the “daredorm.com” website and “BigRattler77” video.

56. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website constitutes false or misleading

descriptions and misrepresentations in violation of Section 43(a) of the Lanham

Act, 15 U.S.C. § 1125(a).

57. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website has caused and is causing

substantial irreparable harm and damage to Florida Agricultural and Mechanical

11
remedy at law to cure RK’s unlawful use of its marks.

WHEREFORE, FAMU TRUSTEES respectfully requests the Court to

enter preliminary and permanent injunctions restraining RK from utilizing Florida

Agricultural and Mechanical University’s trademarks or any colorable imitation

thereof in connection with RK’s “daredorm.com’ website or any other medium

and awarding FAMU TRUSTEES damages in an amount to be determined at

trial, including treble damages pursuant to 15 U.S.C. § 1117(a), reasonable

attorneys’ fees and costs for prosecuting this matter, and any further relief theCourt deems just and proper.

COUNT II- FEDERAL TRADEMARK DILUTION

59. FAMU TRUSTEES realleges paragraphs I through 51, supra.

60. RK utilizes Florida Agricultural and Mechanical University’s “FAMU”

and “Rattlers” marks and orange and green color scheme in interstate commerce

in connection with its “daredorm.com” website and the videos depicted thereon.

61. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website occurred well after these marks

became famous.

12
Florida Agricultural and Mechanical University’s reputation and good name and

to cause dilution of Florida Agricultural and Mechanical University’s marks.

63. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website dilutes and tarnishes the distinctivequality of Florida Agricultural and Mechanical University’s marks in violation of

Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).

64. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website has caused and is causing

substantial irreparable harm and damage to Florida Agricultural and Mechanical

University, and unless permanently restrained by this Court, such irreparable

injury will continue.

65. Florida Agricultural and Mechanical University lacks an adequate

remedy at law to cure RK’s dilution of its trademarks.

WHEREFORE, FAMU TRUSTEES respectfully requests the Court to

enter preliminary and permanent injunctions restraining RK from further dilutingand tarnishing Florida Agricultural and Mechanical University’s trademarks or anycolorable imitation thereof and awarding FAMU TRUSTEES damages in an

13
COUNT III - INJURY TO ACADEMIC AND BUSINESS REPUTATION

AND DILUTION OF TRADEMARK UNDER FLORIDA LAW

66. FAMU TRUSTEES realleges paragraphs I through 51, supra.

67. Pursuant to Florida Statute § 495.061 (2009), Florida Agricultural

and Mechanical University’s Certificate of Registration for the “FAMU” mark is

prima fade evidence regarding the validity of the registration, Florida Agricultural

and Mechanical University’s ownership of the “FAMU” mark and exclusive right to

use the “FAMU” mark in Florida.

68. RK utilizes Florida Agricultural and Mechanical University’s “FAMU”

and “Rattlers” marks and orange and green color scheme in interstate commerce

in connection with its “daredorm.com” website and the videos depicted thereon.

69. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website occurred well after these marks

became famous.

70. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website dilutes and tarnishes the distinctivequality of Florida Agricultural and Mechanical University’s marks and has caused

and will continue to cause substantial injury to Florida Agricultural and

14
University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com’ website has caused and is causing

substantial irreparable harm and damage to Florida Agricultural and Mechanical

University, and unless permanently restrained by this Court, such irreparable

injury will continue.

72. Florida Agricultural and Mechanical University lacks an adequate

remedy at law to cure RK’s dilution and tarnishment of its trademarks and injury

to Florida Agricultural and Mechanical University’s business and academic

reputation.

73. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website was willfully intended to trade on

Florida Agricultural and Mechanical University’s reputation and good name and

to cause dilution of Florida Agricultural and Mechanical University’s marks.

WHEREFORE, FAMU TRUSTEES respectfully requests the Court to

enter preliminary and permanent injunctions restraining RK from further diluting

and tarnishing Florida Agricultural and Mechanical University’s trademarks or any

colorable imitation thereof and awarding FAMU TRUSTEES damages in an

amount to be determined at trial, including treble damages pursuant to Florida

15
74. FAMU TRUSTEES realleges paragraphs 1 through 51, supra.

75. Florida Agricultural and Mechanical University owns and enjoys

common law trademark rights in its “FAMU” and “Rattlers” marks and its orange

and green color scheme, which rights are superior to any rights that RK may

claim in these marks.

76. RK utilizes Florida Agricultural and Mechanical University’s “FAMU”

and “Rattlers” marks and orange and green color scheme in connection with its

“daredorm.com” website in a manner likely to deceive and confuse the

consuming public as to the sponsorship or affiliation of the “BigRattler77” video.

77. RK’s operation of its daredorm.com website as alleged herein

constitutes trademark infringement in violation of the common law of the State of

Florida.

78. RK’s unauthorized use of Florida Agricultural and Mechanical

University’s “FAMU” and “Rattlers” marks and orange and green color scheme in

connection with its “daredorm.com” website has caused and is causing

substantial irreparable harm and damage to Florida Agricultural and Mechanical

University, and unless permanently restrained by this Court, such irreparable

injury will continue.

16
enter preliminary and permanent injunctions restraining RK from utilizing Florida

Agricultural and Mechanical University’s trademarks or any colorable imitation

thereof in connection with RK’s daredorm.com website or any other medium and

awarding FAMU TRUSTEES damages in an amount to be determined at trial,

costs associated with prosecuting this matter, and any further relief the Court

deems just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, FAMU TRUSTEES

demands a trial by jury on all issues so triable.

Respectfully submitted this 16th day of March 2010.

Florida Bar No.: 0168092

rmitchell(qray-robinson.com

ALLEN C. WINSOR, ESQ.

Florida Bar No.: 0016295

awinsor(ciray-robinson.com

MICHAEL D. PORTER, ESQ.

Florida Bar No.: 0031149

mporterqray-robinson.com

GRAYROBINSON, P.A.

Post Office Box 3068Orlando, Florida 32802-3068

(407) 843-8880 Telephone

(407) 244-5690 Facsimile

Lead Trial Counsel for Plaintiff,

Florida Agricultural and Mechanical

University Board of Trustees

17
Office of the General Counsel

1601 S. Martin Luther King Blvd., Ste 300

Tallahassee, Florida 32307-31 00

(850) 599-3591 Telephone(850) 561-2862 Facsimile

General Counsel for Plaintiff,

Florida Agricultural and MechanicalUniversity Board of Trustees

18
state and county aforesaid, to take acknowledgments, personally appeared

Henry L. Kirby, as Associate Vice President for Student Life and Dean of

Students of FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY

BOARD OF TRUSTEES, the Plaintiff in this case, who, after being duly sworn,

deposes and says that he has personal knowledge of the facts recited in the

complaint and the material allegations contained therein and that the facts recited

in the complaint are true and correct.

WITNESS my hand and official seal in the County and State aforesaid this

16th day of March, 2010.

(AFFIX NOTARY STAMP)

Nota Puc, State of Florida

Typed Name:Kcy %ie- oIS1-i

My Commission No. DD I 05 15

My Commission Expires: / /—

\7\282 -#3089417 vi

19