MGA Entm't v. Louis Vuitton - Amended Complaint

Case 2:18-cv-10758-JFW-RAO Document 35 Filed 04/05/19 Page 1 of 16 Page ID #:145
1 BENJAMIN C. JOHNSON (SBN: 218518)

benjamin.johnson@mgae.com
2 JOSEPH A. LOPEZ (SBN: 268511)
3 joseph.lopez@mgae.com
MGA ENTERTAINMENT, INC.
4 16380 Roscoe Blvd
5 Van Nuys, CA 91406
Telephone: (818) 894-2525 ext. 6788
6 Fax: (818) 895-0771
7
Attorneys for Plaintiff
8 MGA Entertainment, Inc.
9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA
11
MGA ENTERTAINMENT, INC., a Case No. 2:18-cv-10758-JFW (RAOx)
12 California corporation
FIRST AMENDED COMPLAINT
13
Plaintiff, FOR:
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v. 1. DECLARATORY JUDGMENT
15
16 DEMAND FOR JURY TRIAL

LOUIS VUITTON MALLETIER, S.A., a
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French société anonyme; and DOES 1
18 through 10, inclusive.
19
Defendants.
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1
First Amended Complaint
1 Plaintiff, MGA ENTERTAINMENT, INC. (hereinafter referred to as

2 “Plaintiff” or “MGA”) for its First Amended Complaint herein alleges as follows:
3 INTRODUCTION
4 1. This action involves a claim for declaratory judgment pursuant to 28
5 U.S.C. §§ 2201(a) and 2202, to resolve an actual controversy within this Court’s
6 jurisdiction. Specifically, MGA seeks a declaration that both the name “Pooey
7 Puitton,” and the associated toy product with which it is used, do not infringe upon or
8 dilute any of the trademarks or other intellectual property rights of defendant Louis
9 Vuitton, S.A. (“Louis Vuitton”), is protected fair use, and/or is protected parody.
10 JURISDICTION AND VENUE
11 2. This Court has federal subject matter jurisdiction pursuant to 28 U.S.C.
12 §§ 1331 and 1338(a) because it arises under the laws of the United States, specifically
13 a request for declaratory judgment under 28 U.S.C. §§ 2201(a) and 2202, and that
14 concern issues of trademark under the Lanham Act, 15 U.S.C. §§ 1051 et seq.
15 3. Personal jurisdiction exists over Defendants in this judicial district

16 because Defendants regularly conduct, transact, and/or solicit business in California
17 and in this judicial district, and/or derives substantial revenue from business
18 transactions in California and in this judicial district, and/or otherwise avail
19 themselves of the privileges and protections of the laws of the State of California such
20 that this Court's assertion of jurisdiction over Defendants does not offend traditional
21 notions of fair play and due process, and/or Defendants’ infringing actions caused
22 injury to Plaintiff in California and in this judicial district such that Defendants should
23 reasonably expect such actions to have consequences in California and in this judicial
24 district.
25 4. Venue is proper, inter alia, pursuant to 28 U.S.C. § 1391(b)(2) because

26 Defendants conduct, transact, and/or solicit business in this judicial district.
27 ///
28 ///
2
1 PARTIES
5. Plaintiff MGA ENTERTAINMENT, INC. (“MGA”) is a California
2
corporation having an address and principal place of business at 16380 Roscoe Blvd,
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Van Nuys, California, 91406.
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6. Upon information and belief, Defendant LOUIS VUITTON
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MALLETIER, S.A. (“Louis Vuitton”), is a French société anonyme with a principal
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place of business at 2 rue du Pont-Neuf, Paris France F75001, and regular conducts,
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transacts, and/or solicits business in this judicial district.
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7. Defendants DOES 1 through 10 are individuals and/or entities whose
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true names and capacities are presently unknown to Plaintiff. At such time as said
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Defendants’ true names and capacities become known to Plaintiff, Plaintiff will seek
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leave to amend this Complaint to insert said true names and capacities of such
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individuals and/or entities.
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8. Upon information and belief, at all times relevant herein, Defendants,
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including Does 1 through 10, inclusive, and each of them, were and still are the partners,
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agents, employers, and/or employees of the other named Defendants, and each of them;
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that in so doing the things alleged, said Defendants were acting within the course
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and scope of said partnership, agency, or employment; and that in so doing the things
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alleged, said Defendants were acting at all times with the knowledge, consent, and
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authorization of each of the other Defendants.
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including Does 1 through 10, inclusive, and each of them, are the alter egos of each
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other; are characterized by a unity of interest in ownership and control among
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themselves such that any individuality and separateness between them have
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ceased; are a mere shell instrumentality and conduit through which Defendants
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carried on their business by use of each other’s names; completely controlled,
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dominated, managed, and operated each other’s business to such an extent that any
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individuality or separateness of the Defendants does not and did not exist;
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3
1 completely failed to observe any corporate formalities; and intermingled the assets of
2 each other, and other entities affiliated with them, to suit the convenience of
3 themselves and in order to evade legal obligations and liability.
4 STATEMENT OF FACTS
5 MGA and Pooey Puitton
6 10. MGA is a leading designer, developer, marketer, and distributor of
7 innovative children’s toys. MGA promotes and/or sells its products throughout the
8 U.S. and the world through major retailers, quality toy stores, department stores, and
9 online marketplaces.
10 11. MGA’s products include L.O.L. Surprise!, which was awarded Top
11 Selling Toy of the Year in the U.S. for 2017 and 2018, according to N.P.D. Group, a
12 retail tracking service; Bratz dolls, which at the height of their popularity outsold
13 Mattel’s Barbie dolls; and the Little Tikes Cozy Coupe, which was one of the first
14 molded-plastic toy cars sold in the United States.
15 12. One of MGA’s most successful new toys, launched in 2018, is the
16 POOPSIE SLIME SURPRISE line of products (“Poopsie Products”) directed towards
17 children. Poopsie Products consist primarily of ingredients that consumers can
18 combine to create “magical unicorn poop” slime that can then be stored in a portable
19 container. The “surprise” element of the products is the somewhat randomized nature
20 of the ingredients and the portable container.
21 13. Pooey Puitton is the name of a product (the “Pooey Name”) used in
22 association with one of the Poopsie Products, a handbag shaped toy container
23 described on MGA’s website as follows (the “Pooey Product”):
24 Make magical unicorn poop (slime) with Poopsie Slime

25 Surprise! With a little unicorn magic and sparkle, you can
26 customize unicorn poop and transform it multiple times! Poopsie
27 Slime Surprise Pooey Puitton purse is the ultimate super slime
28 surprise with over 35+ magic surprises! Magically make scented,
4
1 unicorn poop slime in a rainbow of colors! With a little unicorn

2 magic, sparkle, and crunch, you can customize your unicorn
3 poop again and again! When you gotta go, store the slime in the
4 air-tight storage to keep the unicorn poop fresh! Includes:
5 • 1 Pooey Puitton purse
6 • 12 Unicorn Food packets (slime powder) - just add
7 water to make a rainbow of poop!
8 • 6 Unicorn Magic packets, 4 Unicorn Sparkle
9 packets, 2 Unicorn Crunch packets, 4 mystery
10 scents, and 1 spoon.
11 • 1 exclusive bottle and 1 exclusive poop character
12 keychain.
13 • Instructional booklet and tons of storage to take
14 your poop on the go!
15 14. A picture of the outside of the Pooey Product, which most consumers
16 will first encounter when shopping for the product in online or in-store mass retailer
17 toy departments, is shown below:
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1 15. A picture of the opened Pooey Product, revealing its inner components,
2 intended to hold the unicorn poop ingredients, mixing container, and storage cup, is
3 shown below:
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19 Defendant Louis Vuitton and its Action Against Pooey Puitton

20 16. Louis Vuitton is a fashion designer of luxury luggage, leather goods,
21 handbags, and accessories, which it markets and sells worldwide.
22 17. On or around December 7, 2018, Louis Vuitton filed an action with the
23 Tribunal de Grade Instance de Paris (“Paris Court of First Instance”) entitled
24 “REQUÊTE AUX FINS DE SAISIE-CONTREFAÇON DE MARQUES DE
25 L'UNION EUROPEENNE” (“REQUEST FOR SEIZURE-COUNTERFEITS OF
26 EUROPEAN UNION TRADEMARKS”)(the “Confiscation Request”).

27 18. The Confiscation Request allegations included, but were not limited to,
28 that Louis Vuitton owned European Union trademark registrations for the word mark
6
1 Louis Vuitton (the “LV Word Mark”) bearing EUIPO Registration No. 15610 and for
2 the figurative mark shown below (the “LV Design Mark”) bearing EUIPO Registration
3 No. 009844391:
9
10 19. The Confiscation Request further alleged that the Pooey Name and Pooey
11 Product infringed upon and disparaged the LV Word Mark and LV Design Mark, and
12 requested relief including but not limited to allowing for the seizure of Pooey Products
13 and various materials related to the Pooey Products. Louis Vuitton subsequently
14 obtained orders from the Paris Court of First Instance requiring compliance with the
15 Confiscation Request from S.A. Maxi Toys France (“Maxi Toys”) and S.A.S. Splash
16 Toys (“Splash”), customers of MGA products in Europe. Upon information and belief,
17 Louis Vuitton sought this order on the Confiscation Request despite already being in
18 possession of a Pooey Product that it had purchased itself and which identified MGA
19 as the source of the Pooey Product.

20 20. On or about December 18, 2018, a process server acting on behalf of Louis
21 Vuitton appeared at the offices of Splash and served them with an order requiring them
22 to comply with the Confiscation Request.
24 Vuitton, appeared at the offices of Maxi Toys and served them with an order requiring
25 them to comply with the Confiscation Request, and did thereafter confiscate
26 approximately two Pooey Products. Maxi Toys thereafter informed MGA that Louis
27 Vuitton had seized Pooey Products on the alleged basis of trademark infringement of
28 the LV Word Mark and LV Design Mark.

7
1 22. On or around January 25, 2019, MGA received via mail a copy of a
2 lawsuit that Louis Vuitton had filed in France against MGA and other parties in the
3 Paris Court of First Instance (the “French Action”). An English translation of the
4 French Action was also mailed to MGA in which Louis Vuitton confirms the
5 allegations in paragraphs 17-21 of this First Amended Complaint, set forth
6 hereinabove, and further alleged the following:
7 • “The similarity between the terms POOEY PUITTON and the motifs and
8 patterns used on the [Pooey Product] cannot fail to create this inevitable
9 link between the use of these elements and renowned brands of LOUIS
10 VUITTON in the mind of the public.”
11 • “The defendants have undoubtedly damaged the distinctive character and
12 reputation attached to both the [LV Word Mark] and [LV Design
13 Mark].”
14 • “This use, the scatological nature of which is difficult to reconcile with
15 the image of excellence that are the characteristics of luxury brands, is
16 obviously likely to seriously cause prejudice to the distinctive character
17 and reputation of the [LV Word Mark] and [LV Design Mark].”
18 25. The French Action names MGA as a defendant, along with several of
19 MGA’s customers.
20 26. The French Action requests several forms of relief including but not
21 limited to disclosure injunction, desist and destruction, and compensation claims.
22 27. Louis Vuitton owns federal registrations in the United States for the LV
23 Word Mark and LV Design Mark bearing, respectively, United States Patent and
24 Trademark Office (“USPTO”) Registration Nos. 1990760 and 4192541, and these
25 marks are otherwise identical to their European Union counterparts upon which the
26 French Action is based.

27 28. MGA is further informed and believes, and upon such information and
28 belief alleges, that Louis Vuitton claims trademark rights, and may own USPTO
8
1 federal trademark registrations, in one or more of the design elements contained
2 within the LV Design Mark (the “LV Design Elements”) (collectively, the LV Word
3 Mark, LV Design Mark, and LV Design Elements are referred to herein as the “LV
4 Marks”).
5 29. MGA is a California corporation headquartered in Van Nuys, California.

6 The major decisions regarding the design, manufacture, and distribution of the Pooey
7 Name and Pooey Product are therefore made within the United States and within this
8 Court’s jurisdiction. Furthermore, MGA’s agreements with its customers, including
9 but not limited to those named as defendants in the French Action, are set forth under,
10 and subject to, California and U.S. law. Louis Vuitton has therefore put at issue legal
11 claims that affect this judicial district, including but not limited to, Louis Vuitton’s
12 claims with respect to the Pooey Name and Pooey Marks.
13 30. As a result of Louis Vuitton’s filing of the French Action, in which they
14 name MGA, a California corporation, and several of its customers as defendants, each
15 of which are bound by California and U.S. law with respect to any distribution or sale
16 of Pooey Products, Louis Vuitton has asserted claims against MGA and its customers
17 in the United States based upon its identical registrations for the LV Word Mark and
18 LV Design Mark in the United States, and with the USPTO.
19 31. As a result, an actual, present, and justiciable controversy has arisen

20 between MGA and Louis Vuitton concerning their respective rights in the LV Marks,
21 on the one hand, and the Pooey Name and Pooey Marks, on the other hand, and
22 therefore asks this Court to make a declaratory judgment as set forth hereinbelow.
23 There is No Likelihood of Confusion Between Pooey Puitton and Louis Vuitton

24 32. No reasonable consumer would mistake the Pooey Product for a Louis
25 Vuitton handbag. A side-by-side comparison of the Pooey Product and, upon
26 information and belief, the subject Louis Vuitton handbag is found below:
27 ///
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10 33. No reasonable consumer would mistake the Pooey Product as being
11 intended to be used as a handbag. The Pooey Product is not intended to, nor could it
12 reasonably be used to, serve the primary function of a handbag, which is to contain
13 and transport everyday items such as a wallet, a makeup kit, or a hairbrush. The
14 inside of the Pooey Product has multiple storage compartments that are designed
15 solely for the contents contained therein or other similar Poopsie Products.
16 34. The Pooey Product is sold in the toy section of online and through mass
17 market retailers for the suggested retail price of $69.99.
18 35. The Pooey Product is primarily marketed to and intended for use by
19 children.
20 36. The exterior of the Pooey Product is poop-shaped and made out of
21 hardened plastic, the exterior of which depicts three-dimensional cartoonish facial
22 features such as elongated eyelashes and pouted lips.
23 37. Upon information and belief, Louis Vuitton handbags are not poop-
24 shaped, are not made out of hardened plastic, and do not depict three-dimensional
25 cartoonish facial features such as elongated eyelashes and pouted lips.
26 38. Upon information and belief, Louis Vuitton handbags are not
27 manufactured with the sole intention of storing ingredients and materials for the
28 creation of slime or “magical unicorn poop.”

10
1 39. Upon information and belief, Louis Vuitton handbags are not sold in the
2 toy section of mass market retailers, nor are they sold online or in-store through such
3 mass market retailers.
4 40. Upon information and belief, Louis Vuitton handbags are not marketed
5 at the suggested retail price of $69.99.
6 41. Upon information and belief, Louis Vuitton handbags are not primarily
7 marketed to or intended for use by children.
8 42. Upon information and belief, Louis Vuitton handbags are designed to
9 primarily function as handbags, e.g. for the storage and transport of everyday items,
10 and reasonable consumers would understand that they are primarily designed for such
11 use.
12 43. Upon information and belief, Louis Vuitton handbags are typically made
13 out of high-end materials such as leather or crocodile skin.
14 44. Upon information and belief, Louis Vuitton handbags are sold by Louis
15 Vuitton directly through its website, standalone boutiques, or leased spaces in high-
16 end department stores, and are sold in the handbags, fashion, or accessory sections of
17 such boutiques or department stores.
18 45. Upon information and belief, Louis Vuitton handbags are luxury items
19 that typically retail from thousands to tens of thousands of dollars.
20 46. Upon information and belief, Louis Vuitton handbags are primarily
21 marketed to and intended to be used by adults.
22 47. The Pooey Name and the Pooey Product, on the one hand, and the LV
23 Marks and Louis Vuitton handbags, on the other hand, are not used for similar goods
24 and services or in the same classes, but for different goods and services in different
25 classes.
27 Marks and Louis Vuitton handbags, on the other hand, are not intended to serve
28 similar functions or similar uses, but rather serve different functions and different
11
1 uses.
3 Marks and Louis Vuitton handbags, on the other hand, are not manufactured using the
4 same or similar materials, but rather are manufactured using material that is of
5 obvious disparate quality.
7 Marks and Louis Vuitton handbags, on the other hand, are not marketed, sold, and
8 distributed in similar streams of commerce, but rather are marketed, sold, and
9 distributed through different channels of trade.

11 Marks and Louis Vuitton handbags, on the other hand, are not sold at similar price
12 points; rather, Louis Vuitton handbags are luxury items typically sold at price points
13 significantly higher than that of the Pooey Product’s suggested retail price of $69.99.
15 Marks and Louis Vuitton handbags, on the other hand, do not target similar
16 consumers; rather, Louis Vuitton handbags are primarily directed towards and
17 intended to be used by adults, while the Pooey Product is primarily directed towards
18 and intended to be used by children.
19 53. Based on the foregoing, there is no likelihood of confusion between the

20 Pooey Name and the Pooey Product, on the one hand, and the LV Marks and Louis
21 Vuitton handbags, on the other hand, or that Louis Vuitton sponsored or is associated
22 with the Pooey Name or the Pooey Product.
23 Pooey Puitton is Protected Fair Use and/or Parody

24 54. Furthermore, The Pooey Name and Pooey Product are protected fair use
25 and parody as set forth under 15 U.S.C. § 1125(c)(3)(A) and 15 U.S.C. §
26 1125(c)(3)(A)(ii).
27 55. Louis Vuitton and the LV Marks are associated with expensive, high-
28 end, luxury products that evoke wealth and celebrity, and that are typically worn by
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1 adults.
2 56. The Pooey Name and Pooey Product are designed to mock, criticize, and
3 make fun of that wealth and celebrity and be used by a child. The use of the Pooey
4 Name and Pooey Product in association with a product line of “magical unicorn
5 poop” is intended to criticize or comment upon the rich and famous, the Louis
6 Vuitton name, the LV marks, and on their conspicuous consumption.
7 57. The Pooey Product is sold alongside similar parodies of other brands
8 under the POOPSIE SLIME SURPRISE product line.
9 58. Neither the Pooey Product itself, nor any of the element or characteristics
10 of the Pooey Product, are used by MGA as a source identifier. Furthermore, the
11 Pooey Product contains several distinguishing design elements that, upon information
12 and belief, are not claimed by Louis Vuitton as a trademark, including question marks
13 and swirls of poop.
14 59. The Pooey Name and Pooey Product convey just enough of the original
15 LV Marks to allow consumers to appreciate the parody without appropriating the
16 entire marks. The differences are sufficiently obvious and the parody sufficiently
17 blatant such that no reasonable consumer encountering the Pooey Name or Pooey
18 Product would mistake its source or sponsorship as being Louis Vuitton.
19 Louis Vuitton’s History of Vexatious Litigation Against Protected Parody

20 60. Louis Vuitton has a history of not respecting parody rights in the United
21 States and filing vexatious lawsuits against such protected parody.
22 61. Such cases include Louis Vuitton Malletier S.A. v. Haute Diggity Dog,
23 507 F.3d 252 (4th Cir., 2007) and Louis Vuitton Malletier, S.A. v. My Other Bag, Inc.,
24 156 F. Supp. 3d 425 (S.D.N.Y. 2016), aff'd, 674 F. App'x 16 (2d Cir. 2016), cert.
25 denied, 138 S. Ct. 221 (2017), both of which it ultimately lost and which decisions
26 were upheld on appeal.

27 62. Other instances of Louis Vuitton’s vexatious litigation include losing a
28 lawsuit in a Dutch court against artist Nadia Plesner for her Darfurnica painting and
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1 Simple Living t-shirts which parodied Louis Vuitton and were intended to raise
2 awareness of and money for the conflict in Darfur, and threatening to sue the
3 University of Pennsylvania for parodying Louis Vuitton’s trademark in a poster
4 advertising a symposium on trademark law.
5 63. Louis Vuitton’s claims of infringement have affected MGA’s rights in

6 POOPSIE SLIME SURPRISE, the Pooey Name and Pooey Product vis-à-vis its
7 domestic and foreign customers, and specifically in California, and therefore affects
8 the interstate and foreign commerce of the United States.
9 FIRST CAUSE OF ACTION

10 Declaratory Judgment
11 (28 U.S.C. § 2201(a) and 2202)
12 64. Plaintiff repleads and incorporates by reference each and every allegation
13 set forth in the preceding paragraphs as if fully set forth herein.
14 65. Louis Vuitton is the purported owner of the LV Marks.

15 66. Louis Vuitton has claimed that the Pooey Name and Pooey Product
16 infringe upon or dilute LV’s purported rights in the LV Marks.
17 67. MGA denies that the Pooey Name or the Pooey Product infringe upon or
18 dilute the LV Marks.
19 68. MGA further claims that the Pooey Name and the Pooey Product are
20 protected fair use under 15 U.S.C. § 1125(c)(3)(A), and/or are protected parody under
21 15 U.S.C. § 1125(c)(3)(A)(ii).
22 69. An actual, present, and justiciable controversy has arisen between

23 Plaintiff and Defendants concerning their respective rights.
24 70. Louis Vuitton’s claims of infringement or dilution have affected MGA’s

25 rights in POOPSIE SLIME SURPRISE, the Pooey Name and the Pooey Product in
26 the United States vis-à-vis its domestic and foreign customers, and therefore affects
28 71. Furthermore, Louis Vuitton’s claims in the French Action based upon
14
1 LV Marks are tantamount to claims against MGA with respect to the identical LV
2 Marks in the United States, and registered with the USPTO.
3 72. MGA seeks a declaration of its rights pursuant to 28 U.S.C. §§ 2201(a)

4 and 2202 that the Pooey Name and Pooey Product are non-infringing of the LV
5 Marks, do not dilute the LV Marks, are protected fair use under 15 U.S.C. §
6 1125(c)(3)(A), and/or are protected parody under 15 U.S.C. § 1125(c)(3)(A)(ii).
8 PRAYER FOR RELIEF

9 WHEREFORE, MGA prays for judgment as follows:
10 A. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
11 of the Pooey Name and Pooey Product do not infringe or dilute Louis
12 Vuitton’s purported rights in the LV Marks, and do not cause a likelihood
13 that consumers will be confused as to the source or sponsorship of MGA’s
14 Pooey Name and Pooey Product;
15 B. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
16 of the Pooey Name and Pooey Product are protected fair use under 15
17 U.S.C. § 1125(c)(3)(A);
18 C. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
19 of the Pooey Name and Pooey Product are protected parody under 15
20 U.S.C. § 1125(c)(3)(A)(ii);
21 D. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA may
22 continue to market and distribute its Pooey Product, and may continue to
23 use the Pooey Name in association with the Pooey Product;
24 E. For MGA’s reasonable attorneys’ fees;
25 F. For all costs of suit; and
26 G. For such other and further relief as the Court may deem necessary and
27 proper.
28 ///
15
2 DATED: April 5, 2019

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By: /s/ Benjamin C. Johnson
5
BENJAMIN C. JOHNSON
6 JOSEPH A. LOPEZ
Attorney for Plaintiff
7
MGA Entertainment, Inc.
8

10 Plaintiff hereby demands a trial by jury on all issues so triable.
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DATED: April 5, 2019 MGA ENTERTAINMENT, INC.
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BENJAMIN C. JOHNSON
15 JOSEPH A. LOPEZ
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Case 2:18-cv-10758-JFW-RAO Document 35-1 Filed 04/05/19 Page 1 of 17 Page ID #:161
1 BENJAMIN C. JOHNSON (SBN: 218518)

benjamin.johnson@mgae.com
2 JOSEPH A. LOPEZ (SBN: 268511)
3 joseph.lopez@mgae.com
4 16380 Roscoe Blvd
5 Van Nuys, CA 91406
Telephone: (818) 894-2525 ext. 6788
6 Fax: (818) 895-0771
7
Attorneys for Plaintiff
8 MGA Entertainment, Inc.
9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA
11
MGA ENTERTAINMENT, INC., a Case No. 2:18-cv-10758-JFW (RAOx)
12 California corporation
FIRST AMENDED COMPLAINT
13
Plaintiff, FOR:
14
v. 1. DECLARATORY JUDGMENT
15

LOUIS VUITTON MALLETIER, S.A., a
17
French société anonyme; and DOES 1
18 through 10, inclusive.
19
Defendants.
20
21
22
23
24
25
26
27
28
1
1 Plaintiff, MGA ENTERTAINMENT, INC. (hereinafter referred to as

2 “Plaintiff” or “MGA”) for its First Amended Complaint herein alleges as follows:
3 INTRODUCTION
4 1. This action involves a claim for declaratory judgment pursuant to 28
5 U.S.C. §§ 2201(a) and 2202, to resolve an actual controversy within this Court’s
6 jurisdiction. Specifically, MGA seeks a declaration that both the name “Pooey
7 Puitton,” and the associated toy product with which it is used, do not infringe upon or
8 dilute any of the trademarks or other intellectual property rights of defendant Louis
9 Vuitton, S.A. (“Louis Vuitton”), is protected fair use, and/or is protected parody.
10 JURISDICTION AND VENUE
11 2. This Court has federal subject matter jurisdiction pursuant to 28 U.S.C.
12 §§ 1331 and 1338(a) because it arises under the laws of the United States, specifically
13 a request for declaratory judgment under 28 U.S.C. §§ 2201(a) and 2202, and that
14 concern issues of trademark under the Lanham Act, 15 U.S.C. §§ 1051 et seq.
15 3. Personal jurisdiction exists over Defendants in this judicial district

16 because Defendants regularly conduct, transact, and/or solicit business in California
17 and in this judicial district, and/or derives substantial revenue from business
18 transactions in California and in this judicial district, and/or otherwise avail
19 themselves of the privileges and protections of the laws of the State of California such
20 that this Court's assertion of jurisdiction over Defendants does not offend traditional
21 notions of fair play and due process, and/or Defendants’ infringing actions caused
22 injury to Plaintiff in California and in this judicial district such that Defendants should
23 reasonably expect such actions to have consequences in California and in this judicial
24 district.
25 4. Venue is proper, inter alia, pursuant to 28 U.S.C. § 1391(b)(2) because

26 Defendants conduct, transact, and/or solicit business in this judicial district.
27 ///
28 ///
2
COMPLAINT
1 PARTIES
5. Plaintiff MGA ENTERTAINMENT, INC. (“MGA”) is a California
2
corporation having an address and principal place of business at 16380 Roscoe Blvd,
3
Van Nuys, California, 91406.
4
6. Upon information and belief, Defendant LOUIS VUITTON
5
MALLETIER, S.A. (“Louis Vuitton”), is a French société anonyme with a principal
6
place of business at 2 rue du Pont-Neuf, Paris France F75001, and regular conducts,
7
transacts, and/or solicits business in this judicial district.
8
7. Defendants DOES 1 through 10 are individuals and/or entities whose
9
true names and capacities are presently unknown to Plaintiff. At such time as said
10
Defendants’ true names and capacities become known to Plaintiff, Plaintiff will seek
11
leave to amend this Complaint to insert said true names and capacities of such
12
individuals and/or entities.
13
14
including Does 1 through 10, inclusive, and each of them, were and still are the partners,
15
agents, employers, and/or employees of the other named Defendants, and each of them;
16
that in so doing the things alleged, said Defendants were acting within the course
17
and scope of said partnership, agency, or employment; and that in so doing the things
18
alleged, said Defendants were acting at all times with the knowledge, consent, and
19
authorization of each of the other Defendants.
20
21
including Does 1 through 10, inclusive, and each of them, are the alter egos of each
22
other; are characterized by a unity of interest in ownership and control among
23
themselves such that any individuality and separateness between them have
24
ceased; are a mere shell instrumentality and conduit through which Defendants
25
carried on their business by use of each other’s names; completely controlled,
26
dominated, managed, and operated each other’s business to such an extent that any
27
individuality or separateness of the Defendants does not and did not exist;
28
3
COMPLAINT
1 completely failed to observe any corporate formalities; and intermingled the assets of
2 each other, and other entities affiliated with them, to suit the convenience of
3 themselves and in order to evade legal obligations and liability.
4 STATEMENT OF FACTS
5 MGA and Pooey Puitton
6 10. MGA is a leading designer, developer, marketer, and distributor of
7 innovative children’s toys. MGA promotes and/or sells its products throughout the
8 U.S. and the world through major retailers, quality toy stores, department stores, and
9 online marketplaces.
10 11. MGA’s products include L.O.L. Surprise!, which was awarded Top
11 Selling Toy of the Year in the U.S. for 2017, and currently accounts for seven of the
12 top 10 toys in the United States in 2018, according to N.P.D. Group, a retail tracking
13 service; Bratz dolls, which at the height of their popularity outsold Mattel’s Barbie
14 dolls; and the Little Tikes Cozy Coupe, which was one of the first molded-plastic toy
15 cars sold in the United States.
16 12. One of MGA’s most successful new toys, launched in 2018, is the
17 POOPSIE SLIME SURPRISE line of products (“Poopsie Products”) directed towards
18 children. Poopsie Products consist primarily of ingredients that consumers can
19 combine to create “magical unicorn poop” slime that can then be stored in a portable
20 container. The “surprise” element of the products is the somewhat randomized nature
21 of the ingredients and the portable container.
22 13. Pooey Puitton is the name of a product (the “Pooey Name”) used in
23 association with one of the Poopsie Products, a handbag shaped toy container
24 described on MGA’s website as follows (the “Pooey Product”):
25 Make magical unicorn poop (slime) with Poopsie Slime

26 Surprise! With a little unicorn magic and sparkle, you can
27 customize unicorn poop and transform it multiple times! Poopsie
28 Slime Surprise Pooey Puitton4purse is the ultimate super slime
COMPLAINT
1 surprise with over 35+ magic surprises! Magically make scented,

2 unicorn poop slime in a rainbow of colors! With a little unicorn
3 magic, sparkle, and crunch, you can customize your unicorn
4 poop again and again! When you gotta go, store the slime in the
5 air-tight storage to keep the unicorn poop fresh! Includes:
6 • 1 Pooey Puitton purse
7 • 12 Unicorn Food packets (slime powder) - just add
8 water to make a rainbow of poop!
9 • 6 Unicorn Magic packets, 4 Unicorn Sparkle
10 packets, 2 Unicorn Crunch packets, 4 mystery
11 scents, and 1 spoon.
12 • 1 exclusive bottle and 1 exclusive poop character
13 keychain.
14 • Instructional booklet and tons of storage to take
15 your poop on the go!
16 14. A picture of the outside of the Pooey Product, which most consumers
17 will first encounter when shopping for the product in online or in-store mass retailer
18 toy departments, is shown below:
19
20
21
22
23
24
25
26
27
28
5
COMPLAINT
1 15. A picture of the opened Pooey Product, revealing its inner components,
2 intended to hold the unicorn poop ingredients, mixing container, and storage cup, is
3 shown below:
9
10
11
12
13
14
15
16
17
18
19 Defendant Louis Vuitton and its Action Against Pooey Puitton

20 16. Louis Vuitton is a fashion designer of luxury luggage, leather goods,
21 handbags, and accessories, which it markets and sells worldwide.
22 17. Upon information and belief, onOn or around December 7, 2018, Louis
23 Vuitton filed an action with the Tribunal de Grade Instance de Paris (“Paris Court of
24 First Instance”) entitled “REQUÊTE AUX FINS DE SAISIE-CONTREFAÇON DE
25 MARQUES DE L'UNION EUROPEENNE” (“REQUEST FOR SEIZURE-

26 COUNTERFEITS OF EUROPEAN UNION TRADEMARKS”)(the “Confiscation
27 Request”).
28 18. The Confiscation Request allegations included, but were not limited to,
6
COMPLAINT
1 that Louis Vuitton owned European Union trademark registrations for the word mark
2 Louis Vuitton (the “LV Word Mark”) bearing EUIPO Registration No. 15610 and for
3 the figurative mark shown below (the “LV Design Mark”) bearing EUIPO Registration
9
10 No. 009844391:
11 19. The Confiscation Request further alleged that the Pooey Name and Pooey
12 Product infringed upon and disparaged the LV Word Mark and LV Design Mark, and
13 requested relief including but not limited to allowing for the seizure of Pooey Products
14 and various materials related to the Pooey Products. Louis Vuitton subsequently
15 obtained orders from the Paris Court of First Instance requiring compliance with the
16 Confiscation Request from S.A. Maxi Toys France (“Maxi Toys”) and S.A.S. Splash
17 Toys (“Splash”), customers of MGA products in Europe. Upon information and belief,
18 Louis Vuitton sought this order on the Confiscation Request despite already being in
19 possession of a Pooey Product that it had purchased itself and which identified MGA
20 as the source of the Pooey Product.
22 Vuitton appeared at the offices of Splash and served them with an order requiring them
23 to comply with the Confiscation Request.
25 Vuitton, appeared at the offices of Maxi Toys and served them with an order requiring
26 them to comply with the Confiscation Request, and did thereafter confiscate
27 approximately two Pooey Products. Maxi Toys thereafter informed MGA that Louis
28 Vuitton had seized Pooey Products on the alleged basis of trademark infringement of
7
COMPLAINT
1 the LV Word Mark and LV Design Mark.
2 22. claimed to one of MGA’s customers that the Pooey Name and the Pooey
3 Product infringed upon or diluted one or more Louis Vuitton trademarks, including but
4 not limited to the word mark LOUIS VUITTON (the “LV Word Mark”) and the
5 following design mark (the “LV Design Mark”):
6 ///
7 ///
9
10
11
12
13 23. Upon information and belief, Louis Vuitton owns federal registrations in
14 the United States for the LV Word Mark and LV Design Mark bearing, respectively,
15 United States Patent and Trademark Office (“USPTO”) Registration Nos. 1990760
16 and 4192541.
17 24. MGA is further informed and believes, and upon such information
18 and belief alleges, that Louis Vuitton claims trademark rights, and may own USPTO

22 Marks”).On or around January 25, 2019, MGA received via mail a copy of a lawsuit
23 that Louis Vuitton had filed in France against MGA and other parties in the Paris
24 Court of First Instance (the “French Action”). An English translation of the French
25 Action was also mailed to MGA in which Louis Vuitton confirms the allegations in
26 paragraphs 17-21 of this First Amended Complaint, set forth hereinabove, and further
27 alleged the following:
28
8
COMPLAINT
1 • “The similarity between the terms POOEY PUITTON and the motifs and
2 patterns used on the [Pooey Product] cannot fail to create this inevitable
3 link between the use of these elements and renowned brands of LOUIS
4 VUITTON in the mind of the public.”
5 • “The defendants have undoubtedly damaged the distinctive character and
6 reputation attached to both the [LV Word Mark] and [LV Design
7 Mark].”
8 • “This use, the scatological nature of which is difficult to reconcile with
9 the image of excellence that are the characteristics of luxury brands, is
10 obviously likely to seriously cause prejudice to the distinctive character
11 and reputation of the [LV Word Mark] and [LV Design Mark].”
12 25. The French Action names MGA as a defendant, along with several of
13 MGA’s customers.
14 26. The French Action requests several forms of relief including but not
15 limited to disclosure injunction, desist and destruction, and compensation claims.
16 27. Louis Vuitton owns federal registrations in the United States for the LV
17 Word Mark and LV Design Mark bearing, respectively, United States Patent and
18 Trademark Office (“USPTO”) Registration Nos. 1990760 and 4192541, and these
19 marks are otherwise identical to their European Union counterparts upon which the
20 French Action is based.
21 28. MGA is further informed and believes, and upon such information and
22 belief alleges, that Louis Vuitton claims trademark rights, and may own USPTO
26 Marks”).
27 29. MGA is a California corporation headquartered in Van Nuys, California.
28 The major decisions regarding the design, manufacture, and distribution of the Pooey
9
COMPLAINT
Case 2:18-cv-10758-JFW-RAO Document 35-1 Filed 04/05/19 Page 10 of 17 Page ID
#:170
1 Name and Pooey Product are therefore made within the United States and within this
2 Court’s jurisdiction. Furthermore, MGA’s agreements with its customers, including
3 but not limited to those named as defendants in the French Action, are set forth under,
4 and subject to, California and U.S. law. Louis Vuitton has therefore put at issue legal
5 claims that affect this judicial district, including but not limited to, Louis Vuitton’s
6 claims with respect to the Pooey Name and Pooey Marks.
7 30. As a result of Louis Vuitton’s filing of the French Action, in which they
8 name MGA, a California corporation, and several of its customers as defendants, each
9 of which are bound by California and U.S. law with respect to any distribution or sale
10 of Pooey Products, Louis Vuitton has asserted claims against MGA and its customers
11 in the United States based upon its identical registrations for the LV Word Mark and
12 LV Design Mark in the United States, and with the USPTO.
13 31. As a result, an actual, present, and justiciable controversy has arisen

14 between MGA and Louis Vuitton concerning their respective rights in the LV Marks,
15 on the one hand, and the Pooey Name and Pooey Marks, on the other hand, and
16 therefore asks this Court to make a declaratory judgment as set forth hereinbelow.
17 There is No Likelihood of Confusion Between Pooey Puitton and Louis Vuitton

18 32. No reasonable consumer would mistake the Pooey Product for a Louis
19 Vuitton handbag. A side-by-side comparison of the Pooey Product and, upon
20 information and belief, the subject Louis Vuitton handbag is found below:
21 ///
22 ///
23
24
25
26
27
28
10
COMPLAINT
#:171
9
10 33. No reasonable consumer would mistake the Pooey Product as being
11 intended to be used as a handbag. The Pooey Product is not intended to, nor could it
12 reasonably be used to, serve the primary function of a handbag, which is to contain
13 and transport everyday items such as a wallet, a makeup kit, or a hairbrush. The
14 inside of the Pooey Product has multiple storage compartments that are designed
15 solely for the contents contained therein or other similar Poopsie Products.
16 34. The Pooey Product is sold in the toy section of online and through mass
17 market retailers for the suggested retail price of $569.99.
18 35. The Pooey Product is primarily marketed to and intended for use by
19 children.
20 36. The exterior of the Pooey Product is poop-shaped and made out of
21 hardened plastic, the exterior of which depicts three-dimensional cartoonish facial
22 features such as elongated eyelashes and pouted lips.
23 37. Upon information and belief, Louis Vuitton handbags are not poop-
24 shaped, are not made out of hardened plastic, and do not depict three-dimensional
25 cartoonish facial features such as elongated eyelashes and pouted lips.
26 38. Upon information and belief, Louis Vuitton handbags are not
27 manufactured with the sole intention of storing ingredients and materials for the
28 creation of slime or “magical unicorn poop.”

11
COMPLAINT
#:172
1 39. Upon information and belief, Louis Vuitton handbags are not sold in the
2 toy section of mass market retailers, nor are they sold online or in-store through such
3 mass market retailers.
4 40. Upon information and belief, Louis Vuitton handbags are not marketed
5 at the suggested retail price of $569.99.
6 41. Upon information and belief, Louis Vuitton handbags are not primarily
7 marketed to or intended for use by children.
8 42. Upon information and belief, Louis Vuitton handbags are designed to
9 primarily function as handbags, e.g. for the storage and transport of everyday items,
10 and reasonable consumers would understand that they are primarily designed for such
11 use.
12 43. Upon information and belief, Louis Vuitton handbags are typically made
13 out of high-end materials such as leather or crocodile skin.
14 44. Upon information and belief, Louis Vuitton handbags are sold by Louis
15 Vuitton directly through its website, standalone boutiques, or leased spaces in high-
16 end department stores, and are sold in the handbags, fashion, or accessory sections of
17 such boutiques or department stores.
18 45. Upon information and belief, Louis Vuitton handbags are luxury items
19 that typically retail from thousands to tens of thousands of dollars.
20 46. Upon information and belief, Louis Vuitton handbags are primarily
21 marketed to and intended to be used by adults.
23 Marks and Louis Vuitton handbags, on the other hand, are not used for similar goods
24 and services or in the same classes, but for different goods and services in different
25 classes.
27 Marks and Louis Vuitton handbags, on the other hand, are not intended to serve
28 similar functions or similar uses, but rather serve different functions and different
12
COMPLAINT
#:173
1 uses.
3 Marks and Louis Vuitton handbags, on the other hand, are not manufactured using the
4 same or similar materials, but rather are manufactured using material that is of
5 obvious disparate quality.
7 Marks and Louis Vuitton handbags, on the other hand, are not marketed, sold, and
8 distributed in similar streams of commerce, but rather are marketed, sold, and
9 distributed through different channels of trade.

11 Marks and Louis Vuitton handbags, on the other hand, are not sold at similar price
12 points; rather, Louis Vuitton handbags are luxury items typically sold at price points
13 significantly higher than that of the Pooey Product’s suggested retail price of $569.99.
15 Marks and Louis Vuitton handbags, on the other hand, do not target similar
16 consumers; rather, Louis Vuitton handbags are primarily directed towards and
17 intended to be used by adults, while the Pooey Product is primarily directed towards
18 and intended to be used by children.
19 53. Based on the foregoing, there is no likelihood of confusion between the

20 Pooey Name and the Pooey Product, on the one hand, and the LV Marks and Louis
21 Vuitton handbags, on the other hand, or that Louis Vuitton sponsored or is associated
22 with the Pooey Name or the Pooey Product.
23 Pooey Puitton is Protected Fair Use and/or Parody

24 54. Furthermore, The Pooey Name and Pooey Product are protected fair use
25 and parody as set forth under 15 U.S.C. § 1125(c)(3)(A) and 15 U.S.C. §
26 1125(c)(3)(A)(ii).
27 55. Louis Vuitton and the LV Marks are associated with expensive, high-
28 end, luxury products that evoke wealth and celebrity, and that are typically worn by
13
COMPLAINT
#:174
1 adults.
2 56. The Pooey Name and Pooey Product are designed to mock, criticize, and
3 make fun of that wealth and celebrity and be used by a child. The use of the Pooey
4 Name and Pooey Product in association with a product line of “magical unicorn
5 poop” is intended to criticize or comment upon the rich and famous, the Louis
6 Vuitton name, the LV marks, and on their conspicuous consumption.
7 57. The Pooey Product is sold alongside similar parodies of other brands
8 under the POOPSIE SLIME SURPRISE product line.
9 58. Neither the Pooey Product itself, nor any of the element or characteristics
10 of the Pooey Product, are used by MGA as a source identifier. Furthermore, the
11 Pooey Product contains several distinguishing design elements that, upon information
12 and belief, are not claimed by Louis Vuitton as a trademark, including question marks
13 and swirls of poop.
14 59. The Pooey Name and Pooey Product convey just enough of the original
15 LV Marks to allow consumers to appreciate the parody without appropriating the
16 entire marks. The differences are sufficiently obvious and the parody sufficiently
17 blatant such that no reasonable consumer encountering the Pooey Name or Pooey
18 Product would mistake its source or sponsorship as being Louis Vuitton.
19 Louis Vuitton’s History of Vexatious Litigation Against Protected Parody

20 60. Louis Vuitton has a history of not respecting parody rights in the United
21 States and filing vexatious lawsuits against such protected parody.
22 61. Such cases include Louis Vuitton Malletier S.A. v. Haute Diggity Dog,
23 507 F.3d 252 (4th Cir., 2007) and Louis Vuitton Malletier, S.A. v. My Other Bag, Inc.,
24 156 F. Supp. 3d 425 (S.D.N.Y. 2016), aff'd, 674 F. App'x 16 (2d Cir. 2016), cert.
25 denied, 138 S. Ct. 221 (2017), both of which it ultimately lost and which decisions
26 were upheld on appeal.

27 62. Other instances of Louis Vuitton’s vexatious litigation include losing a
28 lawsuit in a Dutch court against artist Nadia Plesner for her Darfurnica painting and
14
COMPLAINT
#:175
1 Simple Living t-shirts which parodied Louis Vuitton and were intended to raise
2 awareness of and money for the conflict in Darfur, and threatening to sue the
3 University of Pennsylvania for parodying Louis Vuitton’s trademark in a poster
4 advertising a symposium on trademark law.
5 63. Louis Vuitton’s claims of infringement have affected MGA’s rights in

6 POOPSIE SLIME SURPRISE, the Pooey Name and Pooey Product vis-à-vis its
7 domestic and foreign customers, and specifically in California, and therefore affects
9 ///
10 FIRST CAUSE OF ACTION
11 Declaratory Judgment
12 (28 U.S.C. § 2201(a) and 2202)
13 64. Plaintiff repleads and incorporates by reference each and every allegation
14 set forth in the preceding paragraphs as if fully set forth herein.
15 65. Louis Vuitton is the purported owner of the LV Marks.

16 66. Louis Vuitton has claimed that the Pooey Name and Pooey Product
17 infringe upon or dilute LV’s purported rights in the LV Marks.
18 67. MGA denies that the Pooey Name or the Pooey Product infringe upon or
19 dilute the LV Marks.
20 68. MGA further claims that the Pooey Name and the Pooey Product are
21 protected fair use under 15 U.S.C. § 1125(c)(3)(A), and/or are protected parody under
22 15 U.S.C. § 1125(c)(3)(A)(ii).
23 69. An actual, present, and justiciable controversy has arisen between

24 Plaintiff and Defendants concerning their respective rights.
25 70. Louis Vuitton’s claims of infringement or dilution have affected MGA’s

26 rights in POOPSIE SLIME SURPRISE, the Pooey Name and the Pooey Product in
27 the United States vis-à-vis its domestic and foreign customers, and therefore affects

15
COMPLAINT
#:176
1 71. Furthermore, upon information and belief, Louis Vuitton’s claims in the
2 French Action based upon LV Marks are tantamount to claims against intends to
3 make similar claims against MGA with respect to the identical LV Marks in the
4 United States, and registered with the USPTO based upon its LV Marks.
5 72. MGA seeks a declaration of its rights pursuant to 28 U.S.C. §§ 2201(a)

6 and 2202 that the Pooey Name and Pooey Product are non-infringing of the LV
7 Marks, do not dilute the LV Marks, are protected fair use under 15 U.S.C. §
8 1125(c)(3)(A), and/or are protected parody under 15 U.S.C. § 1125(c)(3)(A)(ii).
9
10 ///
11 ///
12 ///
13 PRAYER FOR RELIEF

14 WHEREFORE, MGA prays for judgment as follows:
15 A. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
16 of the Pooey Name and Pooey Product do not infringe or dilute Louis
17 Vuitton’s purported rights in the LV Marks, and do not cause a likelihood
18 that consumers will be confused as to the source or sponsorship of MGA’s
19 Pooey Name and Pooey Product;
20 B. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
21 of the Pooey Name and Pooey Product are protected fair use under 15
22 U.S.C. § 1125(c)(3)(A);
23 C. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA’s use
24 of the Pooey Name and Pooey Product are protected parody under 15
25 U.S.C. § 1125(c)(3)(A)(ii);
26 D. Pursuant to 28 U.S.C. §§ 2201(a) and 2202, a declaration that MGA may
27 continue to market and distribute its Pooey Product, and may continue to
28 use the Pooey Name in association
16 with the Pooey Product;
COMPLAINT
#:177
1 E. For MGA’s reasonable attorneys’ fees;

2 F. For all costs of suit; and
3 G. For such other and further relief as the Court may deem necessary and
4 proper.
5 ///
8 DATED: April 5, 2019

9
10
11
BENJAMIN C. JOHNSON
12 JOSEPH A. LOPEZ
13
14

16 Plaintiff hereby demands a trial by jury on all issues so triable.
17
DATED: April 5, 2019 MGA ENTERTAINMENT, INC.
18
19
20
BENJAMIN C. JOHNSON
21 JOSEPH A. LOPEZ
22
23
24
25
26
27
28
17
COMPLAINT

MGA Entm&#39;t v. Louis Vuitton - Amended Complaint

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MGA Entm&#39;t v. Louis Vuitton - Amended Complaint

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Case 2:18-cv-10758-JFW-RAO Document 35 Filed 04/05/19 Page 1 of 16 Page ID #:145

1 BENJAMIN C. JOHNSON (SBN: 218518)

9 UNITED STATES DISTRICT COURT

16 DEMAND FOR JURY TRIAL

1 Plaintiff, MGA ENTERTAINMENT, INC. (hereinafter referred to as

15 3. Personal jurisdiction exists over Defendants in this judicial district

18 transactions in California and in this judicial district, and/or otherwise avail

25 4. Venue is proper, inter alia, pursuant to 28 U.S.C. § 1391(b)(2) because

3 themselves and in order to evade legal obligations and liability.

14 molded-plastic toy cars sold in the United States.

17 children. Poopsie Products consist primarily of ingredients that consumers can

23 described on MGA’s website as follows (the “Pooey Product”):

24 Make magical unicorn poop (slime) with Poopsie Slime

1 unicorn poop slime in a rainbow of colors! With a little unicorn

17 toy departments, is shown below:

19 Defendant Louis Vuitton and its Action Against Pooey Puitton

24 “REQUÊTE AUX FINS DE SAISIE-CONTREFAÇON DE MARQUES DE

25 L'UNION EUROPEENNE” (“REQUEST FOR SEIZURE-COUNTERFEITS OF

26 EUROPEAN UNION TRADEMARKS”)(the “Confiscation Request”).

19 as the source of the Pooey Product.

22 to comply with the Confiscation Request.

28 the LV Word Mark and LV Design Mark.

5 allegations in paragraphs 17-21 of this First Amended Complaint, set forth

6 hereinabove, and further alleged the following:

26 French Action is based.

1 federal trademark registrations, in one or more of the design elements contained

5 29. MGA is a California corporation headquartered in Van Nuys, California.

8 Court’s jurisdiction. Furthermore, MGA’s agreements with its customers, including

12 claims with respect to the Pooey Name and Pooey Marks.

18 LV Design Mark in the United States, and with the USPTO.

19 31. As a result, an actual, present, and justiciable controversy has arisen

23 There is No Likelihood of Confusion Between Pooey Puitton and Louis Vuitton

22 features such as elongated eyelashes and pouted lips.

25 cartoonish facial features such as elongated eyelashes and pouted lips.

28 creation of slime or “magical unicorn poop.”

3 mass market retailers.

17 such boutiques or department stores.

5 obvious disparate quality.

9 distributed through different channels of trade.

18 and intended to be used by children.

19 53. Based on the foregoing, there is no likelihood of confusion between the

22 with the Pooey Name or the Pooey Product.

23 Pooey Puitton is Protected Fair Use and/or Parody

6 Vuitton name, the LV marks, and on their conspicuous consumption.

13 and swirls of poop.

18 Product would mistake its source or sponsorship as being Louis Vuitton.

19 Louis Vuitton’s History of Vexatious Litigation Against Protected Parody

26 were upheld on appeal.

3 University of Pennsylvania for parodying Louis Vuitton’s trademark in a poster

4 advertising a symposium on trademark law.

5 63. Louis Vuitton’s claims of infringement have affected MGA’s rights in

8 the interstate and foreign commerce of the United States.

9 FIRST CAUSE OF ACTION

14 65. Louis Vuitton is the purported owner of the LV Marks.

22 69. An actual, present, and justiciable controversy has arisen between

24 70. Louis Vuitton’s claims of infringement or dilution have affected MGA’s

2 Marks in the United States, and registered with the USPTO.

3 72. MGA seeks a declaration of its rights pursuant to 28 U.S.C. §§ 2201(a)

6 1125(c)(3)(A), and/or are protected parody under 15 U.S.C. § 1125(c)(3)(A)(ii).

8 PRAYER FOR RELIEF

2 DATED: April 5, 2019

9 DEMAND FOR JURY TRIAL

1 BENJAMIN C. JOHNSON (SBN: 218518)

9 UNITED STATES DISTRICT COURT

16 DEMAND FOR JURY TRIAL

1 Plaintiff, MGA ENTERTAINMENT, INC. (hereinafter referred to as

15 3. Personal jurisdiction exists over Defendants in this judicial district

MGA Entm't v. Louis Vuitton - Amended Complaint

MGA Entm't v. Louis Vuitton - Amended Complaint