Case 3:17-cv-00028-RLY-MPB Document 1 Filed 02/15/17 Page 1 of 11 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

HENAGER FAMILY MUSEUM, INC )

d/b/a NATIONAL VETERANS )
MEMORIAL, )
)
Plaintiff, )
)
v. ) Cause No. 3:17-cv-28
)
COLUMBUS DOWNTOWN )
DEVELOPMENT CORP., )
)
Defendant. )

COMPLAINT

Comes now the Plaintiff, Henager Family Museum, Inc d/b/a National Veterans

Memorial (hereinafter Plaintiff or Henager), by counsel, and for its complaint against

the Defendant, Columbus Downtown Development Corp. (hereinafter Defendant or

CDDC), alleges as follows:

PARTIES

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

Buckskin, Gibson County, Indiana.

2. CDDC is an Ohio nonprofit corporation with its principal office Columbus,

Franklin County, Ohio.

NATURE OF ACTION AND JURISDICTION

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

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

and the common law of the state of Indiana.

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

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

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

has engaged in nationwide promotional activities targeting consumers throughout the

United States including, but not limited to, the state of Indiana, by means which include,

but are not limited to, the use of the Internet.

6. Venue is proper in this district under 28 U.S.C. 1391(a).

FACTS

A. Henager and the Mark.

7. Henager is the owner of United States Trademark Registration No.

3,420,974 (the 974 registration) for the mark NATIONAL VETERANS MEMORIAL (the

Mark). A true and accurate copy of the 974 registration is attached hereto as Exhibit A.

8. The 974 registration was filed on October 2, 2007 and granted on April 29,

2008, in connection with promoting public awareness of the need for reconciliation and

recognition by all veterans (the Objective).

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

NATIONAL VETERANS MEMORIAL, in Indiana.

10. Since as early as May, 2004, Henager began using the NATIONAL

VETERANS MEMORIAL mark in association with a museum that meets the Objective

and honors American military veterans (the NVM museum).

11. Since the NVM museum opened, it has remained opened continuously until

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

VETERANS MEMORIAL.

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

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

of United States military services.

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

attached hereto collectively as Exhibit B.

14. The NVM museum is promoted online through a website operated by the

Plaintiff, the purpose of which is to generate interests in and financial support for the NVM

museum and to generally publicize the nature of the NVM museum.

15. CDDC is currently in the process of developing a museum to honor

American military veterans which, according to CDDCs promotional materials, will be

operated using the name NATIONAL VETERANS MEMORIAL & MUSEUM (the CDDC

museum).

16. According to various promotional materials available on the Internet, CDDC

intends to open the CDDC museum sometime during 2018.

17. CDDC is aggressively promoting the CDDC museum under the name

NATIONAL VETERANS MEMORIAL & MUSEUM and is engaged in a nationwide

fundraising campaign for the construction of a CDDC museum building to be situated in

Columbus, Ohio.

18. CDDCs promotional activities include a website used for the purposes of

generating interest in and raising financial support for the CDDC museum.

19. Among the statements made by or on behalf of CDDC on the website for

the CDDC museum in support of the CDDC museum is the following:

There are almost 22 million living veterans throughout the

United States, from Greatest Generation to recent heroes

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coming home from Afghanistan and Iraq. And yet, there is no

single monument or museum dedicated to the Veterans
experience.

A copy of the page from the CDDC museum website which contains the above statement

is attached as Exhibit C.

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

veterans of all United States military conflicts.

20. The website for the CDDC museum promotes its proposed museum to the

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

American military veterans. Website searches for veterans memorial museums or

similar queries will result in access to both the NVM website and the CDDC website.

B. Effect of Defendants unlawful use of the Mark.

21. CDDCs continued use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM is confusingly similar to Henagers NATIONAL VETERANS MEMORIAL mark.

CDDC uses the name NATIONAL VETERANS MEMORIAL & MUSEUM for the same

type of services, i.e., a military museum honoring American veterans, as those for which

Henager uses the Mark. Further, CDDC intends to operate the CDDC museum in the

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

the NVM museum. The CDDC museum will thus be situated in the same regional

geographic area as the NVM museum.

22. The museum products and services which CDDC advertises and promotes

for the CDDC museum using the name NATIONAL VETERANS MEMORIAL & MUSEUM

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

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promoted by Henager in connection with the NVM museum. CDDCs and Henagers

advertising and promotional materials are directed to the same or similar consumers.

23. CDDCs continued use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM in its advertising and promotional materials and in connection with the CDDC

museum and its services is likely to diminish the goodwill associated with the NATIONAL

VETERANS MEMORIAL mark.

24. If CDDC continues to use the name NATIONAL VETERANS MEMORIAL &

MUSEUM in association with the CDDC museum, it will likely derive revenue from the

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

25. CDDCs use of the name NATIONAL VETERANS MEMORIAL & MUSEUM

is likely to cause confusion or mistake or to deceive consumers into believing that the

CDDC museum and the products and services advertised, promoted and offered at the

CDDC museum are sponsored, licensed or authorized by, or affiliated, connected or

otherwise associated with Henager and/or the NVM museum.

26. Henagers NATIONAL VETERANS MEMORIAL mark is registered with the

United States Trademark Office, and is of public record. Information concerning the NVM

museum, including Henagers use of the NATIONAL VETERANS MEMORIAL mark for

the NVM museum, is readily available through even a cursory Internet search. CDDCs

election to use a mark substantially similar if not identical to the NATIONAL VETERANS

MEMORIAL mark is with full knowledge of Henagers ownership of the NATIONAL

VETERANS MEMORIAL mark and Henagers right to use and control the use of the Mark

and CDDC has acted and continues to act without regard to Henagers property rights in

and to the NATIONAL VETERANS MEMORIAL mark.

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27. As a result of CDDCs use of the name NATIONAL VETERANS MEMORIAL

& MUSEUM, CDDC is being unjustly enriched at Henagers expense, and Henager is in

turn being damaged.

28. CDDCs use of the name NATIONAL VETERANS MEMORIAL & MUSEUM

in association with the CDDC museum and the products and services to be offered by the

CDDC museum has significantly injured Henagers interests. Specifically, CDDC (a) has

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

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

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

or affiliation of the CDDC museums products or services, (c) has damaged and threatens

to further damage Henagers significant and valuable goodwill in the NATIONAL

VETERANS MEMORIAL mark, (d) has injured and threatens to further injure Henagers

right to use the NATIONAL VETERANS MEMORIAL mark as the exclusive indicia of

origin of the NVM museum products and services in Indiana and throughout the United

States and (e) has lessened the capacity of the NATIONAL VETERANS MEMORIAL

mark to indicate that the products and services associated with the Mark are sponsored

by Henager and associated with the NVM museum.

29. Unless CDDCs unlawful use of the name NATIONAL VETERANS

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

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

law.

30. CDDCs unlawful use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM has been and continues to be deliberate, willful, intentional and in bad faith,

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with full knowledge and conscious disregard of Henagers rights in and to the NATIONAL

VETERANS MEMORIAL mark. In view of the egregious nature of CDDCs actions, this

is an exceptional case within the meaning of Section 35a of the Lanham Act, 15 U.S.C.

1117(a).

COUNT I

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

31. Henager incorporates by reference the allegations contained in paragraphs

1-31 of this Complaint as if fully set forth herein.

32. The acts of CDDC complained of herein are likely to cause confusion,

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

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

33. CDDCs actions constitute knowing, deliberate and willful infringement of

Henagers rights in and to the NATIONAL VETERANS MEMORIAL mark, which renders

this an exceptional case under 15 U.S.C. 1117(a).

COUNT II

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

34. Henager incorporates by reference the allegations contained in paragraphs

1-34 of this Complaint as if fully set forth herein.

35. The acts of CDDC complained of herein constitute unfair competition in

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

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

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

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36. CDDCs actions constitute knowing, deliberate and willful infringement of

Henagers rights in and to the NATIONAL VETERANS MEMORIAL mark, which renders

this an exceptional case under 15 U.S.C. 1117(a).

COUNT III

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

37. Henager incorporates by reference the allegations contained in paragraphs

1-37 of this Complaint as if fully set forth herein.

38. CDDCs wrongful use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM in association with the CDDC museum is likely to cause confusion, mistake

and deception among consumers as to the affiliation, connection and association of the

NVM museum with the CDDC museum, and/or to deceive consumers as to the origin,

sponsorship and approval by Henager of the CDDC museum.

39. CDDCs use of the name NATIONAL VETERANS MEMORIAL & MUSEUM

in association with the identification and promotion of the CDDC museum constitutes false

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

40. CDDCs actions constitute knowing, deliberate and willful infringement of

Henagers rights in and to the NATIONAL VETERANS MEMORIAL Mark, which renders

this an exceptional case under 15 U.S.C. 1117(a).

PRAYER FOR RELIEF

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

against CDDC as follows:

a. CDDC, its agents, servants, employees, board members, attorneys and all

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

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permanently enjoined from using the name NATIONAL VETERANS

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

the NATIONAL VETERANS MEMORIAL mark;

b. CDDC, its agents, servants, employees, board members, attorneys and all

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

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

materials to eliminate the name NATIONAL VETERANS MEMORIAL &

MUSEUM therefrom, and any other mark that is confusingly similar to the

NATIONAL VETERANS MEMORIAL mark;

c. CDDC, its agents, servants, employees, board members, attorneys and all

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

to deliver to the Court for destruction, or show proof of destruction, any and

all labels, signs, prints, packages, advertisements, and any other materials

or media in CDDCs possession or control that use the name NATIONAL

VETERANS MEMORIAL & MUSEUM, or any other mark that is confusingly

similar to the NATIONAL VETERANS MEMORIAL mark;

d. CDDC, its agents, servants, employees, board members, attorneys and all

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

to take all reasonably available steps to remove the name NATIONAL

VETERANS MEMORIAL & MUSEUM, and any other name that is

confusingly similar to the NATIONAL VETERANS MEMORIAL mark, as a

designator of the CDDC museum from any listing in any business directory,

internet directory, yellow pages and any other listing service;

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

thirty (30) days after the entry and service on CDDC of an injunction

enjoining its use of the name NATIONAL VETERANS MEMORIAL &

MUSEUM, a report in writing and under oath setting forth in detail the

manner and form in which CDDC has complied with the injunction;

f. Henager recover all damages it sustains as a result of CDDCs infringement

and unfair competition, and that said damages be trebled;

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

received through donations or otherwise resulting from the unlawful use of

the name NATIONAL VETERANS MEMORIAL & MUSEUM, and order that

such funds be paid over to Henager, with said amount increased as the

Court finds to be just and proper under the circumstances of this case;

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

1117(d);

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

damages as permitted by law to deter CDDC and all others similarly situated

from like unlawful conduct in the future;

j. Henager recover its attorneys fees;

k. Henager recover its costs of this action and prejudgment and post-judgment

interest; and

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

and appropriate.

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JURY DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Henager hereby

demands a trial by jury on all issues triable as of right by a jury.

Respectfully submitted,

____/s/ Keith E. Rounder

Keith E. Rounder, Atty No. 13758-53
Gary K. Price, Atty No. 15051-82
TERRELL, BAUGH, SALMON & BORN, LLP
700 South Green River Road, Suite 2000
Evansville, IN 47715
Telephone: (812) 479-8721
Facsimile: (812) 474-6059
E-mail: krounder@[Link];
gprice@[Link]
Attorneys for Plaintiff, Henager Family Museum,
Inc d/b/a National Veterans Memorial

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