Case 8:16-cv-00340-CEH-EAJ Document 29 Filed 04/12/16 Page 1 of 9 PageID 151

UNITED STATES DISTRICT

COURT MIDDLE DISTRICT OF
FLORIDA TAMPA DIVISION
SILAS BEACH GATEWOOD, III.,
Plaintiff,
Case Number: 8:16-cv-340-T-36EAJ
v.
FRENCHYS CORPORATE, INC. and
MICHAEL G. PRESTON,
Defendants.
__________________________________________/
AMENDED COMPLAINT FOR
COPYRIGHT INFRINGEMENT AND RELATED CAUSES
COMES NOW, Plaintiff Silas Gatewood, III, (Plaintiff) and files this Amended
Complaint for Copyright Infringement and Related Causes against Defendants Frenchys
Corporate, Inc., (Frenchys) and Michael G. Preston (Preston)(collectively
Defendants), on the grounds and the amounts set forth herein.
Background
1.

Plaintiff is an artist that is known locally and professionally as Silas

Beach.
2.

Plaintiff has been recognized in numerous publications for his artwork,

which include but are not limited to aquatic themed drawings and other artwork.
3.

Plaintiffs artwork is distinctive and instantly recognizable and has been

featured in numerous local businesses and events and publications for more than twenty
five years.
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4.

Plaintiff is a well-known artist, especially in the Clearwater community

and his FishBone artwork is recognizable as original to him. See Exhibit A.

5.

Plaintiff owns the copyright on one of his most prominent designs, which

can best be described as the FishBone artwork. See Exhibit B.

6.

Plaintiff prominently advertises his famous Fishbone artwork on his

website www.silasbeach.com as The Original FishBone and designates the date of

creation and prominently displays the copyright notice. See the image reproduced below:

7.

Plaintiff has offered his works for commercial purposes to third-parties on

his website www.silasbeach.com and has received royalties and other compensation for
such works.

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8.

Plaintiff incorporates the FishBone artwork into his trademark SILAS

BEACH and Design (see bottom right corner in above image). As such, the FishBone
artwork functions as a source identifier for Plaintiff and for Plaintiffs business.
9.

Plaintiffs FishBone artwork is instantly recognizable and associated with

Plaintiff such that Defendants prominent use of the FishBone throughout its restaurant
and merchandise creates a false association with Plaintiff or otherwise creates the false
impression that Plaintiff is associated or otherwise endorses Defendants restaurant and
products.
10.

Defendant Frenchys is a well-known company that runs various

restaurants in the Clearwater Beach area.

11.

Defendant Preston is the president of Frenchys and upon information and

belief is the moving force behind the infringement and false association alleged herein.
12.

Defendants have used and continue to infringe upon, without permission

or legal right, Plaintiffs FishBone artwork for commercial purposes and have profited
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from the artwork of Plaintiff.

13.

Defendants have embarked on a pattern of using and profiting from

Plaintiffs FishBone artwork to the detriment of Plaintiff without providing any

compensation to Plaintiff.
14.

Defendants have no legal excuse or justification or permission to use

Plaintiffs FishBone artwork for commercial purposes.

15.

Plaintiff has demanded that Defendants cease and desist from using

Plaintiffs FishBone artwork, but Defendants have refused.

16.

By using Plaintiffs well-known and copyrighted FishBone artwork,

Defendants create the false impression that Plaintiff has endorsed Frenchys use of the
FishBone artwork, and/or that Plaintiff is someone associated with Frenchys restaurant
and products.
JURISDICTION AND VENUE
17.

This Court has jurisdiction of the subject matter of this action pursuant to

28 U.S.C. 1331, 17 U.S.C. 101, et. seq., and 15 U.S.C. 1125.

18.

Plaintiff is a long-time resident of Clearwater, Florida.

19.

Defendant Frenchys is a Florida Corporation doing business in

Clearwater, Florida.
20.

Upon information and belief, Defendant Preston, a Florida resident, is the

President of Frenchys and is the moving force behind the infringement and false
association.
21.

All material events occurred in Pinellas County, Florida.

22.

Both Plaintiff and Defendants are under the jurisdiction of the Middle
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District Court, Tampa Division.

MATERIAL ALLEGATIONS
23.

Plaintiff is a local artist who draws and paints aquatic artwork.

24.

Plaintiffs artwork has been copyrighted and registered with the assigned

Copyright Registration Number VA-1-978-769. See Exhibit B.

25.

The FishBone artwork is original to Plaintiff and he owns all right and title

to same. The FishBone artwork of Plaintiff, as used by Defendants in an infringing

manner is either identical or strikingly similar to the artwork that has been copyrighted by
Plaintiff. See Exhibit C.
26.

The FishBone artwork has been used for commercial purposes by

Defendants without Plaintiffs consent or permission.

27.

Defendants do not have Plaintiffs permission to create a false association

with Plaintiff.
28.

Defendants do not hold any license to use Plaintiffs FishBone artwork.

29.

Defendants do not hold any endorsement to associate with Plaintiff.

30.

Defendants have not compensated Plaintiff for the use of Plaintiffs

FishBone artwork or the false association with Plaintiff.

31.

Plaintiff sent Defendants a cease and desist letter regarding Defendants

unauthorized use of Plaintiffs FishBone artwork.

32.

Defendants did not cease and desist from using Plaintiffs FishBone

artwork.
33.

Because Defendants continued to use Plaintiffs FishBone artwork after

receiving actual notice of Plaintiffs rights, Defendants actions are willful and with
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disregard for Plaintiffs rights.

34.

Defendants actions constitute infringement on Plaintiffs copyright in the

FishBone artwork.
35.

Defendants actions constitute a violation of the Lanham Act as its use of

the FishBone artwork creates a false association with Plaintiff.

COUNT I
Copyright Infringement Of FishBone Artwork
36.

Plaintiff repeats and re-alleges each and every allegation set forth in

paragraphs 1-35.
37.

Plaintiff owns Copyright Registration No. VA-1-978-769 and therefore

has complied with the statutory formalities for registration.

38.

Plaintiffs FishBone artwork is original to Plaintiff.

39.

Defendants copied the original elements of Plaintiffs FishBone artwork

and such use of the FishBone and artwork is without Plaintiffs permission, consent and
without any legal authority or right.
40.

Defendants unauthorized use of the FishBone artwork is strikingly similar

to Plaintiffs FishBone artwork.

41.

Defendants use of Plaintiffs FishBone artwork constitutes willful and

ongoing infringement in violation of 17 U.S.C. 501.

42.

Plaintiff has been harmed by Defendants infringement of Plaintiffs

FishBone artwork.

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COUNT II
False Association Violation of the Lanham Act 15 U.S.C. 1125
43.

Plaintiff realleges and incorporates the foregoing allegations, inclusive, as

if fully stated herein.

44.

Because of the well-known nature of Plaintiffs FishBone designs there is

a false association created by Defendants use of the FishBone design with Plaintiff.
45.

Defendants unlawful use of Plaintiffs FishBone artwork falsely suggests

to the public that Plaintiff endorses Defendants restaurant and products.

46.

Plaintiff does not endorse Defendants restaurant and products and does

not want to be associated or otherwise affiliated with Defendants.

47.

Defendants actions are causing damage to Plaintiff and unless enjoined,

will continue to cause injury to Plaintiff and his business.

RELIEF
WHEREFORE, Plaintiff an Order from this Court that:
1.

Defendants have infringed the FishBone artwork in violation of 17 U.S.C.

101 et. seq.;

2.

Judgment be entered against each Defendant for an award of all

damages available to Plaintiff under 17 U.S.C 101, et. seq., including but not
limited to injunctive and declaratory relief damages available under Section 504 for
damages and profits as well as attorney fees and costs under Section 505 for
Defendants violations of Section 501.
3.

Defendants have engaged in false association in violation of 15 U.S.C.

1125;
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4.

Defendants has been unjustly enriched;

5.

Defendants conduct was intentional, willful and/or malicious;

6.

That Defendants officers, directors, agents, servants, employees,

affiliates, attorneys, parents, subsidiaries, divisions, successors and assigns, and

those persons acting in concert or in participation with Defendants be enjoined from
making, selling, marketing, distributing, or displaying the products bearing the
Infringing FishBone artwork.
7.

Requiring Defendants to deliver to Plaintiff for destruction all

products bearing the Infringing FishBone artwork and the Defendants be required to
recall all such products that it has delivered, shipped or otherwise provided to any
distributors, customers, or third parties, and refund any monies paid for such
products;
8.

For actual damages suffered by Plaintiff as a result of Defendants

unlawful conduct, in an amount to be proven at trial, including without limitation lost

profits and costs for corrective advertising, as well as pre-judgment interest at the
maximum rate authorized by law;
9.

For costs of the suit and reasonable attorneys fees.

10.

For Restitution relief against Defendants and in favor of Plaintiff,

including disgorgement of wrongfully obtained profits and any other appropriate

relief; and
11.

For such further relief as this Court deems just and proper.
JURY DEMAND

Plaintiff hereby demands trial by jury of all issues so triable.

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Respectfully submitted on 12th day of April 2016.

John Gadd
W. JOHN GADD, ESQUIRE
FBN: 463061
Bank of America Building
2727 Ulmerton Road Suite 250
Clearwater, FL 33762
Telephone: (727) 524-6300
wjg@mazgadd.com
Frank Herrera
Florida Bar No.: 494801
H NEW MEDIA LAW
224 Datura Street
Suite 101
West Palm Beach, Florida 33401
Telephone: (561) 841-6380
fherrera@hnewmedia.com
CERTIFICATE OF SERVICE
I certify that a true and accurate copy of the forgoing has been filed with the Courts
electronic filing system which is designed to electronically send a copy of the same to all
counsel of record on this 12th day of April 2016.

s/ WJohn Gadd
W. JOHN GADD, ESQUIRE
FBN: 463061
Bank of America Building
2727 Ulmerton Road Suite 250
Clearwater, FL 33762
Telephone: (727) 524-6300
wjg@mazgadd.com