IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN

Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
RUBY TUESDAY DESIGNS LLC,
a Michigan Limited Liability Company,
Plaintiff,
v.
CAMELFLAGE LLC,
a Colorado Limited Liability Company,
Defendant.
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Case No.:
Hon.
COMPLAINT AND JURY DEMAND
Plaintiff RUBY TUESDAY DESIGNS LLC. (“Ruby Tuesday” or “Plaintiff”) for its
Complaint against CAMELFLAGE LLC (“Camelflage” or “Defendant”) alleges:
NATURE OF THE ACTION
1.
This is a civil action for damages and injunctive relief arising out of Defendant’s
acts of trademark infringement, unfair competition, false designation of origin, passing off,
dilution and unjust enrichment under state and/or common law as a result of Defendant’s
wrongful acts, including willful infringement of Ruby Tuesday’s rights in the mark
KAMELFLAGE (the “KAMELFLAGE Mark”).
JURISDICTION AND VENUE
2.
This Court has jurisdiction over the subject matter of this action pursuant to 15
U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338(a) and (b). This Court also has jurisdiction over
the subject matter of this action pursuant to 28 U.S.C. §§ 1332(a). The parties are citizens of
Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 2 of 11
different states and, upon information and belief, the amount in controversy exceeds the sum or
value of seventy-five thousand dollars ($75,000), exclusive of interest and costs. Jurisdiction
over the state law claims is also appropriate under 28 U.S.C. § 1367(a) and principles of pendent
jurisdiction.
3.
This Court has personal jurisdiction over Defendant. Upon information and belief
Defendant conducts business in the state of Michigan through, at least, its interactive website
(www.camelflage.com) on which sales orders can be placed and on which the confusingly
similar term “CAMELFLAGE” mark is used in association with the sale of goods. This
www.camelflage.com website is accessible by Internet users throughout the country, including
users in Michigan. Defendant has used Plaintiff’s KAMELFLAGE Mark without authorization
or consent from Plaintiff, including in Michigan. Defendant’s actions are aimed, at least in part,
at Michigan residents.
4.
Venue in this District is proper pursuant to 28 U.S.C. §§ 1391(b). Upon
information and belief, a substantial part of the activity about which Plaintiff complains has
taken place in this Judicial District, and the damages suffered by Plaintiff were suffered, at least
in part, in this Judicial District.
THE PARTIES
5.
Plaintiff Ruby Tuesday is a Michigan Limited Liability Company, with its
principal place of business at 1560 Villa Road, Birmingham, Michigan 48009. Ruby Tuesday is
the owner of various proprietary rights in and to the KAMELFLAGE Mark.
2
Case 2:09-cv-14676-PDB-MAR
6.
Document 1
Filed 12/01/2009
Page 3 of 11
Upon information and belief, Defendant Camelflage is a Colorado Limited
Liability Company, with is principal place of business at 13934 Fillmore Street, Thornton
Colorado 80602.
GENERAL ALLEGATIONS
PLAINTIFF’S ACTIVITIES AND PROPRIETARY RIGHTS
7.
Plaintiff has been and is now engaged in the selling of undergarments and
undergarment inserts under the KAMELFLAGE Mark (“Plaintiff’s Goods and Services”).
Plaintiff’s Goods and Services are used in, at least, retail stores. A website including a
photograph of a the KAMELFLAGE Mark used in connection with the sale of undergarments
and undergarment inserts is attached as Exhibit A, a portion of which is reproduced below:
3
Case 2:09-cv-14676-PDB-MAR
8.
Document 1
Filed 12/01/2009
Page 4 of 11
Plaintiff has also sold its Goods and Services through its website using the
domain name www.kamelflage.com, which was registered by Plaintiff’s Chief Financial Officer,
Treger Strasberg, on February 17, 2009. This website, at all times relevant to this Complaint,
has been used for and continues to be used for the advertising and sales of undergarments and
undergarment inserts. A record of the domain name registration is attached as Exhibit B.
9.
Since at least March of 2009, Plaintiff’s KAMELFLAGE Mark has been widely
advertised and offered in interstate commerce throughout the United States. Plaintiff’s
KAMELFLAGE Mark is used extensively in the United States in connection with the Plaintiff’s
Goods and Services and in various advertising and promotional media, including the Internet.
An article in the New York Times dated March 31, 2009, referencing Plaintiff’s attempt to
persuade the Henri Bendel department store to sell undergarments using the KAMELFLAGE
Mark in commerce is attached as Exhibit C.
10.
As a result of the quality of Plaintiff’s Goods and Services and the widespread
promotion thereof under Plaintiff’s KAMELFLAGE Mark, Plaintiff’s Goods and Services have
met with substantial commercial success and widespread consumer recognition. As a further
result, Plaintiff’s distinctive KAMELFLAGE Mark has become extensively known, with the
KAMELFLAGE Mark having become a symbol of Plaintiff, its quality products and services,
and its goodwill.
DEFENDANT’S WRONGFUL ACTS
11.
Upon information and belief, Defendant knew of Plaintiff’s Mark and its
affiliation with Plaintiff’s Goods and Services no later than March 31, 2009.
4
Case 2:09-cv-14676-PDB-MAR
12.
Document 1
Filed 12/01/2009
Page 5 of 11
Nevertheless, on May 27, 2009, Defendant registered a domain name to a
misspelling of KAMELFLAGE – CAMELFLAGE – in its interactive www.camelflage.com
website. A record of the domain name registration is attached as Exhibit D.
13.
On May 29, 2009, Defendant applied for a registered trademark in the word
“CAMELFLAGE,” alleging a first use in commerce on March 15, 2009. Upon information and
belief, Defendant’s allegation of the date for the first use in commerce is false. A copy of the
registration information is attached at Exhibit E.
14.
On June 7, 2009, Defendant applied for a registered trademark as depicted below:
Defendant alleges a first use in commerce of the mark on March 15, 2009. Upon information
and belief, Defendant’s allegation of the date for the first use in commerce is false. A copy of
the registration information is attached at Exhibit F.
15.
Defendant is currently promoting undergarments on the www.cameflage.com
website using the word “CAMELFLAGE” and the graphic reproduced below.
5
Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 6 of 11
A copy of a page of the www.camelflage.com website is attached as Exhibit G.
16.
Upon learning of Defendant’s infringement of Plaintiff’s KAMELFLAGE Mark,
Plaintiff contacted Defendant to demand that the infringement cease, but Defendant continues to
use the KAMELFLAGE Mark in violation of Plaintiff’s rights therein. Indeed, on November 10,
2009, Defendant and Plaintiff were both guests on “The Howard Stern Show” wherein Plaintiff
discussed, inter alia, Defendant’s refusal to cease and desist her use of the KAMELFLAGE
Mark. A summary of the discussion from The Howard Stern Show is attached as Exhibit H.
17.
Defendant continues to use Plaintiff’s KAMELFLAGE Mark in connection with
the sale of undergarments, which are advertised in the same or similar marketing channels and
channels of trade used by Plaintiff and to the same or similar classes of purchasers to whom
Plaintiff offers its Goods and Services.
18.
Defendant’s selection and/or continued use of the KAMELFLAGE Mark for
undergarments, which is a misspelling of Plaintiff’s common law KAMELFLAGE Mark for
undergarments and inserts therefor, while aware of Plaintiff’s rights in such mark is a clear
indication of Defendant’s intent to trade on the goodwill inherent in Plaintiff’s KAMELFLAGE
Mark.
6
Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 7 of 11
INJURY TO PLAINTIFF AND THE PUBLIC
19.
Defendant’s unauthorized use of Plaintiff’s KAMELFLAGE Mark has and will
continue to irreparably injure Plaintiff by confusing customers, diverting sales, and diluting the
distinctiveness of Plaintiff’s KAMELFLAGE Mark. If permitted to continue, Defendant’s use of
Plaintiff’s KAMELFLAGE Mark will continue to irreparably injure Plaintiff, Plaintiff’s
KAMELFLAGE Mark, the reputation and goodwill associated therewith, Plaintiff’s reputation
for exceedingly high-quality services and products, and the public interest in being free from
confusion, mistake or deception.
20.
Defendant’s use of Plaintiff’s KAMELFLAGE Mark has caused and will continue
to cause confusion, mistake or deception as to the source or origin of Defendant’s goods and
services and is likely to suggest falsely a sponsorship, connection, license, endorsement or
association of Defendant’s goods and services with Plaintiff, thereby injuring Plaintiff and the
public.
COUNT I
Federal Unfair Competition
15 U.S.C. §1125(a)
21.
Plaintiff incorporates by reference the allegations of Paragraphs 1 - 20.
22.
The unauthorized use by Defendant of Plaintiff’s KAMELFLAGE Mark for
Defendant’s undergarments is likely to cause the public to mistakenly believe that such
publication originates from, is endorsed by or is in some way affiliated with Plaintiff and thus
constitutes trademark infringement, false designation of origin, passing off, and unfair
competition and is likely to cause Plaintiff’s KAMELFLAGE Mark to lose its significance as an
7
Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 8 of 11
indicator of origin. Defendant’s actions are in violation of Section 43(a) of the Lanham Act, 15
U.S.C. § 1125(a).
23.
Upon information and belief, the appropriation of Plaintiff’s KAMELFLAGE
Mark by Defendant as set forth above is a part of a deliberate plan to trade on the valuable
goodwill established in Plaintiff’s KAMELFLAGE Mark. With knowledge of Plaintiff and
Plaintiff’s rights in the KAMELFLAGE Mark, and with the deliberate intention to unfairly
benefit from Plaintiff’s goodwill generated through Plaintiff’s KAMELFLAGE Mark, the
actions of Defendant have been carried out in willful disregard of Plaintiff’s rights in violation of
15 U.S.C. Section 1125(a).
COUNT II
Common Law Unfair Competition, Misappropriation
And Trademark Infringement
24.
Plaintiff incorporates by reference the allegations of Paragraphs 1 - 23.
25.
By its aforesaid conduct calculated to increase business and profits by deceiving
and confusing members of the public, Defendant continues to misappropriate the valuable
goodwill of Plaintiff’s KAMELFLAGE Mark, to infringe Plaintiff’s rights therein, and to
unfairly compete with Plaintiff under the laws of Michigan.
COUNT III
Common Law Dilution
26.
Plaintiff incorporates by reference the allegations of Paragraphs 1 - 25.
8
Case 2:09-cv-14676-PDB-MAR
27.
Document 1
Filed 12/01/2009
Page 9 of 11
Defendant’s advertising and proposed sale of goods and services under Plaintiff’s
KAMELFLAGE Mark is likely to cause injury to the business reputation of Plaintiff and dilute
the distinctive quality of such famous mark in violation of Michigan law.
COUNT IV
Violation of The Michigan Consumer Protection Act,
MC.L. § 445.903
28.
Plaintiff incorporates by reference the allegations of Paragraphs 1 - 27.
29.
By its aforesaid conduct calculated to increase business and profits by deceiving
and confusing members of the public, Defendant continues to misappropriate the valuable
goodwill of Plaintiff’s KAMELFLAGE Mark, to infringe Plaintiff’s rights therein, and to
unfairly compete with Plaintiff under the laws of Michigan.
30.
Defendant’s unauthorized use of Plaintiff’s KAMELFLAGE Mark causes a
likelihood of confusion as to the source, sponsorship, approval or certification of the
undergarments at issue and constitutes unlawful, unfair, and fraudulent business practices and
unfair, deceptive, untrue, and misleading advertising under The Michigan Consumer Protection
Act, M.C.L. § 445.903 to improperly trade upon the reputation and goodwill of Plaintiff and
impair its valuable rights.
COUNT V
Unjust Enrichment
31.
Plaintiff incorporates by reference the allegations of Paragraphs 1 - 30.
32.
Defendant is being unjustly enriched to the damage and irreparable harm of
Plaintiff.
9
Case 2:09-cv-14676-PDB-MAR
Document 1
Filed 12/01/2009
Page 10 of 11
DEMAND FOR RELIEF
WHEREFORE, Plaintiff requests that this Court enter judgment in its favor on each and
every claim for relief set forth above and award it relief including, but not limited to, the
following:
A.
That Plaintiff is the owner of the entire right, title and interest in and to Plaintiff’s
KAMELFLAGE Mark.
B.
That rights in Plaintiff’s KAMELFLAGE Mark are valid, enforceable and
violated by Defendant and that Defendant has violated and is violating other relevant federal and
state laws and regulations.
C.
That Defendant, its agents, servants, employees, attorneys, and all persons in
active concert or participation with it, be preliminarily and permanently enjoined and restrained
from (1) using Plaintiff’s KAMELFLAGE Mark, any designations incorporating any of the
foregoing and any variations thereof; and (2) otherwise infringing Plaintiff’s KAMELFLAGE
Mark and competing unfairly with Plaintiff.
D.
That Defendant willfully violated Plaintiff’s rights.
E.
That Defendant be required to pay to Plaintiff’s damages according to proof and
Plaintiff’s statutory damages, together with prejudgment interest thereon, as Plaintiff has
sustained as a consequence of Defendant’s wrongful acts, and to account for and return to
Plaintiff any monies, profits and advantages wrongfully gained by Defendant.
F.
That all damages sustained by Plaintiff be trebled.
G.
That Defendant be required to pay to Plaintiff punitive and exemplary damages.
10
Case 2:09-cv-14676-PDB-MAR
H.
Document 1
Filed 12/01/2009
Page 11 of 11
That Defendant be required to pay to Plaintiff all attorney fees, expenses and costs
incurred in this action.
I.
That Defendant deliver up for impoundment during the pendency of this action,
and for destruction upon entry of judgment, all products, fixtures, writings, signage, artwork and
other materials that infringe Plaintiff’s rights, falsely designate source or origin, or otherwise
facilitate Defendant’s unfair competition with Plaintiff.
J.
That an Order be issued directing Defendant to file with this Court and serve on
Plaintiff’s attorneys, within thirty (30) days after the date of entry of any injunction, a report in
writing and under oath setting forth in detail the manner and form in which Defendant has
complied with the injunction.
K.
That Plaintiff be granted such further relief as this Court may deem appropriate.
.
Respectfully submitted,
December 1, 2009
By:___/s Michael B. Stewart__________
Michael B. Stewart (P45318)
Linda D. Kennedy (P64692)
RADER, FISHMAN & GRAUER PLLC
35933 Woodward Avenue, Suite 140
Bloomfield Hills, Michigan 48304
Telephone: (248) 594-0600
Facsimile: (248) 594-0610
Email: mbs@raderfishman.com
ldk@raderfishman.com
Attorneys for Plaintiff
11
Case 2:09-cv-14676-PDB-MAR
Document 1-2
Filed 12/01/2009
INDEX OF EXHIBITS
Exhibit A
Website pages with KAMELFLAGE mark
Exhibit B
Whois Report for www.kamelflage.com
Exhibit C
New York Times Article
Exhibit D
Whois Report for www.camelflage.com
Exhibit E
Registration information for CAMELFLAGE
Exhibit F
Registration information for CAMELFLAGE & Design
Exhibit G
Website page from www.camelflage.com
Exhibit H
Record of The Howard Stern Show
Page 1 of 1
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Document 1-3
Filed 12/01/2009
Page 1 of 6
Exhibit A; Page 1
Case 2:09-cv-14676-PDB-MAR
Document 1-3
Filed 12/01/2009
Page 2 of 6
Exhibit A; Page 2
Case 2:09-cv-14676-PDB-MAR
Document 1-3
Filed 12/01/2009
Page 3 of 6
Exhibit A; Page 3
Case 2:09-cv-14676-PDB-MAR
Document 1-3
Filed 12/01/2009
Page 4 of 6
Exhibit A; Page 4
Case 2:09-cv-14676-PDB-MAR
Document 1-3
Filed 12/01/2009
Page 5 of 6
Exhibit A; Page 5
Case 2:09-cv-14676-PDB-MAR
Document 1-3
Filed 12/01/2009
Page 6 of 6
Exhibit A; Page 6
Case 2:09-cv-14676-PDB-MAR
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Registrant:
Exhibit B; Page 1
Case
2:09-cv-14676-PDB-MAR
Treger
Strasberg
120 Morningside Dr.
Coral Gables, Florida 33133
United States
Document 1-4
Filed 12/01/2009
Page 2 of 2
Registered through: GoDaddy.com, Inc. (http://www.godaddy.
Domain Name: KAMELFLAGE.COM
Created on: 17-Feb-09
Expires on: 17-Feb-12
Last Updated on: 21-Nov-09
Administrative Contact:
Strasberg, Treger treger@tregerclothing.com
120 Morningside Dr.
Coral Gables, Florida 33133
United States
(305) 817-5057
Fax -Technical Contact:
Strasberg, Treger treger@tregerclothing.com
120 Morningside Dr.
Coral Gables, Florida 33133
United States
(305) 817-5057
Fax -Domain servers in listed order:
NS19.DOMAINCONTROL.COM
NS20.DOMAINCONTROL.COM
The previous information has been obtained either directly from the registrant or a registrar of the domain name
other than Network Solutions. Network Solutions, therefore, does not guarantee its accuracy or completeness.
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Registrar:
IP Address:
IP Location:
Lock Status:
DMOZ
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WebSite Title:
Data as of:
GODADDY.COM, INC.
97.74.144.121 (ARIN & RIPE IP search)
-(-)
clientDeleteProhibited
no listings
see listings
Kamelflage
23-Apr-2008
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Exhibit B; Page 2
Case 2:09-cv-14676-PDB-MAR
Document 1-5
Filed 12/01/2009
Page 1 of 2
Exhibit C; Page 1
Case 2:09-cv-14676-PDB-MAR
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Filed 12/01/2009
Page 2 of 2
Exhibit C; Page 2
Case 2:09-cv-14676-PDB-MAR
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The data contained in GoDaddy.com, Inc.'s WhoIs database,
while believed by the company to be reliable, is provided "as
with no guarantee or warranties regarding its accuracy. This
information is provided for the sole purpose of assisting you
in obtaining information about domain name registration recor
Any use of this data for any other purpose is expressly forbi
permission of GoDaddy.com, Inc. By submitting an inquiry,
you agree to these terms of usage and limitations of warranty
you agree not to use this data to allow, enable, or otherwise
dissemination or collection of this data, in part or in its e
purpose, such as the transmission of unsolicited advertising
and solicitations of any kind, including spam. You further a
not to use this data to enable high volume, automated or robo
processes designed to collect or compile this data for any pu
including mining this data for your own personal or commercia
Please note: the registrant of the domain name is specified
in the "registrant" field. In most cases, GoDaddy.com, Inc.
is not the registrant of domain names listed in this database
Registrant:
Exhibit D; Page 1
Case 2:09-cv-14676-PDB-MAR
Camelflage
LLC
13934 Fillmore Street
Thornton, Colorado 80602
United States
Document 1-6
Filed 12/01/2009
Page 2 of 2
Registered through: GoDaddy.com, Inc. (http://www.godaddy.
Domain Name: CAMELFLAGE.COM
Created on: 27-May-09
Expires on: 27-May-11
Last Updated on: 15-Aug-09
Administrative Contact:
LLC, Camelflage dw@wetherillinvestment.com
13934 Fillmore Street
Thornton, Colorado 80602
United States
+1.9136268421
Fax -Technical Contact:
LLC, Camelflage dw@wetherillinvestment.com
13934 Fillmore Street
Thornton, Colorado 80602
United States
+1.9136268421
Fax -Domain servers in listed order:
NS1.SHORTSQUEEZE.NET
NS2.SHORTSQUEEZE.NET
The previous information has been obtained either directly from the registrant or a registrar of the domain name
other than Network Solutions. Network Solutions, therefore, does not guarantee its accuracy or completeness.
Show underlying registry data for this record
Current Registrar:
IP Address:
IP Location:
Record Type:
Server Type:
Lock Status:
WebSite Status:
DMOZ
Y! Directory:
Secure:
Ecommerce:
Traffic Ranking:
Data as of:
GODADDY.COM, INC.
69.16.234.150 (ARIN & RIPE IP search)
US(UNITED STATES)-MICHIGAN-LANSING
Domain Name
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Case 2:09-cv-14676-PDB-MAR
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Filed 12/01/2009
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United States Patent and Trademark Office
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Word Mark
Goods and
Services
Standard
Characters
Claimed
Mark Drawing
Code
Serial Number
Filing Date
Current Filing
Basis
Original Filing
Basis
Owner
Type of Mark
Register
Live/Dead
Indicator
CAMELFLAGE
IC 025. US 022 039. G & S: Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic
uniforms; Hats; Jeans; Panties; Pants; Shirts; Swimsuits; Under garments; Underwear. FIRST USE: 20090315.
FIRST USE IN COMMERCE: 20090315
(4) STANDARD CHARACTER MARK
77747984
May 29, 2009
1A
1A
(APPLICANT) Camelflage LLC DBA Camelflage LIMITED LIABILITY COMPANY COLORADO 13934 Fillmore
Street Thornton COLORADO 80602
TRADEMARK
PRINCIPAL
LIVE
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Exhibit E
Case 2:09-cv-14676-PDB-MAR
Document 1-8
Filed 12/01/2009
Page 1 of 1
United States Patent and Trademark Office
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Word Mark
Goods and
Services
Mark Drawing
Code
Design Search
Code
Serial Number
Filing Date
Current Filing
Basis
Original Filing
Basis
Owner
Description of
Mark
Type of Mark
Register
Live/Dead
Indicator
CAMELFLAGE
IC 025. US 022 039. G & S: Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic
uniforms; Hats; Jeans; Panties; Pants; Shirts; Swimsuits; Under garments; Underwear. FIRST USE: 20090315.
FIRST USE IN COMMERCE: 20090315
(3) DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS
03.03.09 - Camels, dromedaries
03.03.24 - Stylized Elephants, hippopotami, rhinoceri, giraffes, alpacas, camels, llamas
77753862
June 7, 2009
1A
1A
(APPLICANT) Camelflage LLC DBA Camelflage LIMITED LIABILITY COMPANY COLORADO 13934 Fillmore Street
Thornton COLORADO 80602
Color is not claimed as a feature of the mark. The mark consists of Picture of a camel with the words Camelflage.
TRADEMARK
PRINCIPAL
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Exhibit F
Case 2:09-cv-14676-PDB-MAR
Document 1-9
Filed 12/01/2009
Page 1 of 1
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Camelflage™ is a Trademark of Camelflage LLC. Patent Pending. Copyright © 2009 Camelflage LLC. All rights Reserved.
Exhibit G
Case 2:09-cv-14676-PDB-MAR
Document 1-10
Filed 12/01/2009
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Competing Camel Toe Hiding Underwear Designers Call In. 11/10/09. 7:30am Howard said he had a person on the phone who invented these panties that hide camel toe. Howard said that's when your vagina shows through your pants. It shows the lips and sometimes clitoris. Howard said the cure would be to maybe have pants a little looser. Howard said this is Shannon on the phone. He said that they figured she might be a boring guest but there's another person who claims she stole her idea to have camel toe underwear. Shannon said she did a search before she put her's out and there was nothing in the patents. Howard had the other woman on the phone too. Her name was Treger. Her invention is CamelAmmo. She claims that they had to change the name when they found out that they had CamelFlage. Treger said that she can't have the trademark on that stuff because it's taken by someone else in Illinois. That's spelled with a K though. Howard asked Treger if her underwear also hides camel toe. They both do. The two of them were saying that they both have a patent but Treger said that she doesn't have a patent because they have a patent. Treger said that it appears that she stole their tag line from their web site too. Howard wanted to ask the women questions but they were busy arguing with each other. Howard said it's possible that both of them had the same ideas to do this. Treger said that it's not coincidence that they came up with this idea around the same time. She said that she found out that Shannon was going to be on the Stern Show through Twitter. Treger said that she had someone on her Facebook account bad mouthing her company and that's not cool. Shannon said she's never been on her Facebook. She said she's not ripping her off and she did do a patent search. Treger said that she appears to just want a quick buck. Howard said he doesn't think there's a quick buck there at all. Howard said that neither of them have a patent. They're both patent pending. Treger said they filed theirs 18 months ago. Shannon said she did a search and never found anything. Treger said that Shannon stole the name from them. Shannon said she didn't do that. Gary said that on Treger's web site it says that the patent is pending and she's saying that they have the patent. Shannon said that she wouldn't have followed through on this if she had seen a patent. SHE said she didn't appreciate her saying that she was a plagiarizer because she is not. Treger said that by the end of the year they're going to have it all. Howard asked Treger if she's going to have Shannon's sales coming to her. Treger said that it will all be theirs by the end of the year and she'll be a millionaire. Howard said he doesn't' think anyone cares about camel toe that much. Howard said that it is possible that they both came up with it around the same time. Treger didn't believe it. She said that she stole her name and the tag line from their web site. Shannon kept denying it. Exhibit H; Page 1
Case 2:09-cv-14676-PDB-MAR
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Filed 12/01/2009
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Howard asked Treger about finding out about this on Twitter. Treger said that she goes out and searches her first company name and she found this new company using the name and that's how she found out about it. Howard said he knew this was going to be good. He said this is the way huge corporations fight. The two of them were still going back and forth on that when Howard took some phone calls. A caller said he was an inventor of BonerFlage. He said he's going to be suing both of these ladies. Howard said it sounds like there's a lot of suing going on. Treger said that they're not going to be suing anyone. She said they're just going to do a Cease and Desist so she'll have to hand over all of her earnings. Gary came in and said that Treger was going to come up there this morning but they didn't invite her so she's downstairs at the cafe. Howard wanted to see what they looked like. Artie said he knows what Shannon looks like, she was up there one day. Artie said that she's hot. Shannon said this Treger is stalking her. She said she knows nothing about her but Treger is following her and she's stalking her. Shannon said she's not going to put up with this. Howard wanted Gary to get Treger up there. She just needed to come up there from the lobby. Howard put her on hold and got back to Shannon. Shannon said she came up with this idea a year ago when she was in Yoga class. She said she hadn't heard of this Treger woman until a couple of months ago. She said they researched it and found nothing. She said that she never stole anything from her. Howard said that Shannon is hot. He saw a picture of her out in Las Vegas. Howard found out she's a model in Denver. Robin asked her if she knew anything about this Treger woman at all. She said she didn't really know much until just recently. She said she did all of her research and she wouldn't have started the company if she knew all of this before. A caller said that he has a product called Moose Knuckle. Shannon said that's what they call it on big women. Howard took another call from a guy who said he hopes that both companies fail because he likes to see some camel toe. He said you want to reach out and shake hands with them. Another caller said he agrees with that guy about the underwear. Then Mark the Patent Attorney called in and said that this is a mess. He said that he would like to offer his services to them on a pro‐boner basis. He said that they have to figure out who came up with the idea first and prove it. Mark said that they have to have computer files showing when they first came up with it or something else to prove it. Benjy said that one of them is an insert and the other is sewn in. Howard asked Shannon what her's is. She said that her's is sewn in and the other product isn't. She said that the other one is a slip in from what she's heard. Howard asked Mark if she has a case. Mark said that patents aren't released for 18 months so there could be something in there that they don't know about. Howard asked Mark who he would want to represent. Mark asked who was hotter. Howard said he'd have to check out Treger. She came in a short time later and she was attractive too. Howard asked her how long ago she came up with her idea. She said it was February of 2008. Howard asked Shannon when she came up with her idea. She said it was April of 08. Treger said that her underwear has one that's sewn in and one that's just an insert. She was wearing them and demonstrated them for Howard. Howard said he didn't see any camel toe on her. Howard asked her to turn around so he could see her ass too. Howard told her to remove the tag next time she's on radio. Treger said she runs a non‐profit organization and the CamelAmmo thing. She said that they're making good money doing that and trying to make sure that they cover every angle. Treger said that she's going to combine both companies and she's going to take everything she has. She thinks that Shannon is ripping them off and she has every right to do what she's doing. Exhibit H; Page 2
Case 2:09-cv-14676-PDB-MAR
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Filed 12/01/2009
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Howard asked Treger if she thinks it's possible that they came up with the same idea at the same time. Treger said it's not possible. She said that she ripped her off. Shannon said that Treger is being evil to her and this isn't nice. She aid that little children must be scared of her. Jason came in and said that this Treger girl is a fuckin' bitch. He said that's the way she's coming off on the air. Jason said that Shannon was the one who contacted the show to promote her product. Jason said that maybe she should have a better attitude toward this Shannon girl. He said that she's trying to have her moment on the air. Jason said that they would have contacted the show instead if they wanted to sell this stuff. Jason said that they didn't even ask her to come on the show and she's there. Treger said that she wouldn't mind it if she was on any other show but when you go on Howard's show then she has to do something. Howard said that if Treger feels ripped off them Shannon must see why she would be upset with her. Shannon said that she would want to get credit for what she did if the whole thing were reversed. Shannon said that she would never act the way she did to her. Shannon said she will back out of this if the patent comes through. She said that she will back out if all of that comes through and she is found to have the patent before she did. A caller said that they should settle this on the Sybian. Treger said that's the one thing she told her husband she would not do. Howard said Shannon sent him a letter asking to come on the show to talk about this and he thought it was going to be a 2 second interview. It turned into this instead. A caller said that Shannon was saying that she didn't know about this until months ago but then she said she didn't know anything about it. Shannon said she was saying that her type of invention was different than the other stuff out there. Treger was showing them the underwear that they had and they did file for the sewn in camel tow thing. Treger said that they don't sell the sewn in version to the public. She said that they sell to stores though. Shannon said she didn't know that and she said there is no way she would know that. The caller on the line told Howard that Jesus was no Christian. Howard didn't know what the guy was talking about or why he mentioned it. Another caller said that this was the worst 20 minutes of radio ever. He said it's a combination of everything and they need to move along. Fred said there's another company called a Coochini that sounds very similar. Treger said that they know about that and they think that they're okay because their products are different enough. Jeff the Drunk called in and told them both to go fuck themselves. Howard gave both of the women plugs for their products and web sites. You can check them out at CamelFlage.com <http://www.camelflage.com/> and CamelAmmo.com <http://www.camelammo.com/> . Howard let Treger go after that. Mark the Patent Attorney called in again and joked that Scott DePace had just filed for the Labia Caddy which is something similar. Howard said he can imagine Robin wanting something like this. Robin said she doesn't need anything like that. She said that something like that is for women who want to go out in bikinis and not have their camel toe shown. Howard said it seems that Treger has been in the business a little longer. He wasn't sure who was going to be the winner in all of that. They had to go to break a short time later. Exhibit H; Page 3