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Kuklachev v. Gelfman

March 25, 2009

YURI KUKLACHEV, DMITRI KUKLACHEV, PLAINTIFFS,
v.
MARK GELFMAN, GELFMAN INTERNATIONAL ENTERPRISES, INC., YANIS GELFMAN, TRIBECA PERFORMING ARTS CENTER, TICKETMASTER.COM, PALACE OF FINE ARTS, WILKINS THEATER AT KEAN UNIVERSITY, ONLINESEATS.COM, JOHN HANCOCK HALL, GWINNETT CENTER, NAPA VALLEY OPERA HOUSE, LA'S WILSHIRE EBELL'S THEATER, SEATTLE REPERTORY THEATER, DMITRY KRASSOTKINE, YURI POTOSKI, MICHAEL ZLOTNIKOV, ANDREW YANKOVIS, STANISLAV NEMOY, VLADIMIR KRASNOLOZHKIN, AND VLADIMIR ANISIMOV, DEFENDANTS.



The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge

SIFTON, Senior Judge

MEMORANDUM OPINION AND ORDER

Yuri Kuklachev and Dmitri Kuklachev ("plaintiffs") commenced this action against defendants Mark Gelfman, Gelfman International Enterprises, Inc. ("Gelfman Inc."), Yanis Gelfman (collectively, the "Gelfmans"), several performance venues, two ticket outlets, Yuri Pototski ("Pototski"), Michael Zlotnikov ("Zlotnikov"), and Dmitry Krassotkine ("Krassotkine"), on June 2, 2008. Plaintiffs make the following claims in their complaint against each of the defendants: (1) federal trademark infringement under the Lanham Act, 15 U.S.C. § 1114; (2) false representation under the Lanham Act, 15 U.S.C. § 1125(a); (3) unfair competition and false designation under the Lanham Act, 15 U.S.C. § 1125(a); (4) trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c); (5)cybersquatting in violation of the Lanham Act, 15 U.S.C. § 1125(d); (6) violation of privacy and publicity rights under the New York Civil Rights Law, Article 5, § 50 and § 51, N.Y. CLS Civ. R. § 50, 51; (7) injury to business reputation and trademark dilution under N.Y. GBL § 360-L; (8) unfair competition and false advertizing under the New York Unfair Trade Practices Law, GBL § 349-50 and New York City Administrative Code § 20-700, § 20-701; (9) unfair competition under New York common law; (10) unjust enrichment under New York common law; (11) copyright infringement; (12) trade dress infringement under the Lanham Act, 15 U.S.C. § 1125(a); (13) fraud; (14) conversion; (15) fraud in trademark application;*fn1 and (16) prima facie tort. Now before the Court is a motion for judgment on the pleadings, or, in the alternative, for summary judgment, filed on behalf of defendants Yanis Gelfman, Pototski, Zlotnikov,*fn2 and Krassotkine (for the purposes of this motion, "defendants"), on the ground that they were not responsible for the activities complained of by plaintiffs. For the reasons stated below, the motion for judgment on the pleadings is granted.*fn3

BACKGROUND

Familiarity with prior decisions in this case is presumed. The following facts are drawn from the complaint, which must be taken as true for the purpose of the motion for judgment on the pleadings, and the parties' submissions in connection with this motion. Disputes are noted.

The Parties

Yuri Kuklachev ("Kuklachev") is a Russian national who tours the world with his troupe of cats and clowns, putting on theatrical performances. Kuklachev performs in the shows, manages the troupe, and organizes performances. Dmitri Kuklachev is Yuri Kuklachev's son, and is the artistic director and star performer of the troupe.

Defendant Mark Gelfman is the president of Gelfman Inc., a promotional and management business for entertainments. Yanis Gelfman is Mark Gelfman's son.

Defendants Pototski and Krassotkine were crew members in the production of the allegedly infringing show.

Factual Background

In the early 1970's, plaintiff Kuklachev, a well-recognized clown, became known for public entertainments performed with his troupe of cat performers and clowns. Complaint at ¶ 44 ("Compl."). Rather than training the cats to perform tricks, Kuklachev selected his cats for each role based on their individual skills and preferences, much like actors in a theater. Id. at ¶ 45. By the mid-1970's, Kuklachev's cat performances were a recognized success in various countries and in the United States. Id. at ¶ 46.

In 2005 and 2006, Kuklachev brought his performance to the United States for an extended tour, during which there were numerous successful performances, all under the "Moscow Cats Theatre" name (the "Kuklachev Show") Id. at ¶ 50. For these tours, Kuklachev hired Gelfman, Inc. to assist the plaintiffs in arranging and marketing their performances. Id. at ¶ 59.

In early 2007, plaintiffs began planning another tour of the Moscow Cats Theatre in the United States, expecting to continue their cooperation with Gelfman, Inc. Id. at ¶ 62. At that time, the plaintiffs learned that the Gelfmans were already producing cat-based theatrical performances in the United States under the name "Moscow Cats Theatre." Id. at ¶ 67. The performances conducted by the Gelfmans (the "Gelfman Show") are similar in nature to the ones performed by plaintiffs, using similar promotional methods. Id. at ¶ 74. For their performances, defendants conducted an advertising campaign that included the terms "Moscow Cats Theatre" and "Moscow Cats" in conjunction with plaintiffs' likenesses and images and plaintiffs' Moscow Cats Theater promotional materials. Defendants used a poster showing an image of Dmitri Kuklachev with a cat doing a "front-paw stand" on his hand*fn4 to advertize the 2007 Los Angeles and San Francisco tours of the allegedly infringing show. Id. at ¶ 71. This poster also contained the words "World's Only" in front of the term "Moscow Cats Theatre." Id. at ¶ 72. Additional posters and other performance-related materials bear portraits of Kuklachev and other references to plaintiffs. Id. at ¶ 73. The defendants sold copies of promotional materials, including T-shirts, key chains, and recordings of plaintiffs' performances, developed by plaintiffs. Id. at ¶ 168. These advertising and promotional materials caused actual confusion among the members of the audience, who thought that Kuklachev and his troupe were performing in Gelfman's shows. Id. at ¶ 69.

According to the complaint, Yanis Gelfman was the general manager of the allegedly infringing show, id. at ¶ 21, Krassotkine was listed on Gelfman, Inc.'s website as "press representation, id. at ¶ 25, ...


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