John Fogerty v. Cook - 2nd Amended Complaint

Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 1 of 17 Page ID #:450
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MICHAEL D. ROUNDS (CA State Bar No. 133972)

mrounds@bhfs.com
BROWNSTEIN HYATT FARBER SCHRECK, LLP
5371 Kietzke Lane
Reno, Nevada 89511
Telephone: 775.324.4100
Facsimile: 775.333.8171
MITCHELL J. LANGBERG (CA State Bar No. 171912)
mlangberg@bhfs.com
LAURA BIELINSKI (CA State Bar No. 264115)
lbielinksi@bhfs.com
2049 Century Park East, Suite 3550
Los Angeles, CA 90067-3007
Telephone: 310.500.4600
Facsimile: 310.500.4602
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Attorneys for Plaintiffs

POOR BOY PRODUCTIONS, INC.,
CREEDENCE CLEARWATER REVIVAL,
STUART COOK, DOUGLAS CLIFFORD,
AND PATRICIA FOGERTY
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JOHN FOGERTY
Plaintiff,
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vs.
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STUART COOK, an individual;

DOUGLAS CLIFFORD, an individual;
and POOR BOY PRODUCTIONS,
INC., a corporation,
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Case No. 2:15-cv-06069-FMO (FFMx)

consolidated with
2:15-cv-06501-FMO (FFMx)
SECOND AMENDED COMPLAINT
JURY DEMAND
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Defendants.
AND RELATED ACTIONS
Plaintiffs Poor Boy Productions, Inc. ("Poor Boy"), Creedence Clearwater
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Revival ("CCR"), a partnership, Stuart Cook ("Cook"), Douglas Clifford
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("Clifford"), and Patricia Fogerty ("Ms. Fogerty") (collectively "Plaintiffs"), by
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and through their undersigned attorneys Brownstein, Hyatt, Farber and Schreck,
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for their Second Amended Complaint against Defendant John Fogerty
("Defendant" or "Fogerty"), allege the following:

JURISDICTION AND VENUE
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1.
This action arises under the Acts of Congress relating to the Lanham
Act, Title 15 U.S.C. 1051, et seq., and the common law. This is also an action
for declaratory relief, breach of contract, breach of the implied covenant of good
faith and fair dealing, and breach of fiduciary duty under California law.
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2.
Jurisdiction is based on federal question pursuant to 28 U.S.C.
1331 and 1338 because this action involves federal questions of law. This Court
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has supplemental jurisdiction over the claims brought under the common law
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pursuant to 28 U.S.C. 1338(b) and 1367(a).
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3.
Defendant is subject to this Court's personal jurisdiction because he is
a resident of the State of California and this District.

4.
As determined by Judge Robert C. Jones, United States District Court
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Judge for the District of Nevada, venue is proper in this judicial district pursuant
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to 28 U.S.C. 1391(b)(1).
PARTIES
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5.
Plaintiff Poor Boy is a Nevada corporation with its principal place of
business located in Incline Village, Nevada.

6.
Plaintiff CCR is a California partnership comprised of Messrs. Cook,
Clifford, Ms. Fogerty and Fogerty.
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7.
Plaintiff Clifford is a resident of the State of Nevada.
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8.
Plaintiff Cook is a resident of the State of Florida.
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Plaintiff Ms. Fogerty is a resident of the State of Arizona.
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Defendant Fogerty is a resident of the State of California and this
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District.
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FACTS
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The musical group and partnership Creedence Clearwater Revival was
originally comprised of Douglas Clifford, Stuart Cook, Tom Fogerty and John
Fogerty. Tom Fogerty passed away in 1990, and his interest in CCR's property,
including intellectual property and royalties, passed to his wife, Ms. Fogerty.
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CCR is the owner of U.S. Trademark Registration No. 1222931 ("'931
Reg."), issued by the United States Patent and Trademark Office ("USPTO") on
January 4, 1983, for the Mark CREEDENCE CLEARWATER REVIVAL for
"entertainment servicesnamely, a vocal and instrumental group" in International
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Class 41. A copy of the '931 Reg. is attached hereto as Exhibit A. CCR also owns
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all common law rights related to the Creedence Clearwater Revival Mark and its
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derivatives (collectively the CCR Mark)
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In or about February and March 1992, Cook, Clifford, Fogerty and
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Ms. Fogerty executed an Assignment of Trademark, which was subsequently
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recorded with the USPTO ("Assignment"). A copy of the Assignment is attached
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hereto as Exhibit B. The Assignment states, in relevant part, as follows:

a.
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"CREEDENCE CLEARWATER REVIVAL, a firm consisting
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of John Fogerty, Doug Clifford, Stu Cook and Tom Fogerty is the owner of" the
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CCR Mark;
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b.
Tom Fogerty passed away and Ms. Fogerty is his sole heir;
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c.
"it is the intention of the parties and the purpose of this
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Assignment to substitute Tricia Fogerty in the place and stead of the deceased Tom
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Fogerty in said partnership for the sole purpose of establishing her ownership
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interest in and to said service mark and the registration thereon, and for no other
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purpose"; and
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d.
"the interest of said Tom Fogerty, solely in connection with
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his interest in the Service Mark: CREEDENCE CLEARWATER REVIVAL and
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the registration thereon, together with the goodwill of the business with which said
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mark was used, is hereby sold, transferred and assigned to CREEDENCE
CLEARWATER REVIVAL, a firm consisting of John Fogerty, Doug Clifford, Stu
Cook and Tricia Fogerty, as heir to the deceased Tom Fogerty."
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On or about March 1, 1995, Clifford, Cook and Ms. Fogerty, a
majority of the CCR partners, executed a Licensing Agreement ("License") on
behalf of CCR, for a term of ten years with an option to extend the term for an
additional ten years, with Poor Boy. Among other things, the License granted Poor
Boy the right to use the name CREEDENCE CLEARWATER REVISITED
("REVISITED Mark"), in connection with musical performances.
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Shortly after the License was executed, Clifford and Cook, through
Poor Boy, began touring using the REVISITED Mark.

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On July 2, 1996, Fogerty filed a Complaint in the United States
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District Court Central District of California Western Division against Poor Boy,
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Cook, Clifford and Ms. Fogerty styled Fogerty v. Poor Boy Productions, Inc., et
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al., Case No. CV 96-4634 RMT (RNBx) alleging, among other things, that Fogerty
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was synonymous with the CCR Mark and that there was therefore infringement
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and a likelihood of confusion regarding Fogertys association with CREEDENCE
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CLEARWATER REVISITED.
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Fogerty also sought and obtained a preliminary injunction against the
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Defendants in that action from performing under the REVISITED Mark. The
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Ninth Circuit Court of Appeals reversed that order in an unpublished opinion in
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Fogerty v. Poor Boy Productions, Inc., et al., 124 F.3d 211 (9th Cir. 1997), finding
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that there was no evidence that the American public believed that Fogerty was
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associated with CREEDENCE CLEARWATER REVISITED. The Ninth Circuit
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further found that the record does not support Fogertys efforts to deny that a
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partnership owned the mark or that it makes decisions regarding the mark by
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majority vote.
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After the Ninth Circuit reversed the district court's preliminary

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injunction order, through counsel, the parties entered into a settlement agreement
("Settlement Agreement") on or about January 9, 2001 that resulted in a dismissal
with prejudice of the action. A copy of this Settlement Agreement is attached
hereto as Exhibit C. Pursuant to the Settlement Agreement, the parties agreed that
Fogerty would withdraw his objection to Clifford's and Cook's performing under
the REVISITED Mark. Id. The parties also agreed that Clifford, Cook and Ms.
Fogerty would not authorize any other persons or entities to perform under the
names CREEDENCE, CREEDENCE CLEARWATER or any derivative of those
names without the prior written permission of Fogerty. Id. The parties also agreed
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that Poor Boy would pay additional monies to Fogerty. Id.

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At the time Plaintiffs entered into the License and at the time they
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entered into the Settlement Agreement, and through the present date, Fogerty was
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and is a copartner in CCR for at least purposes of ownership of the CCR Mark and
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the 931 Reg., and Plaintiffs reasonably believed that he was and is a copartner in
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the CCR partnership. Fogerty stated in the Assignment that a partnership existed
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and that he was a copartner in the partnership, and has acted as a copartner in
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matters concerning ownership of the CCR Mark and 931 Reg. since at least 1992.
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These actions include, but are not limited to, licensing the CCR Mark as a
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copartner and ceasing infringing use of the CCR Mark and 931 Reg. on several
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occasions since the execution of the Settlement Agreement because the CCR
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partnership did not consent to his infringing use.
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Plaintiffs relied on Fogerty's express representations and course of
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conduct that he was a copartner in the CCR partnership from at least the time of
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the Assignment and through the present date.
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Fogerty is estopped from denying the existence of the CCR
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partnership for at least purposes of CCR's ownership of the CCR Mark and the 931
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Reg. and a partnership further exists through the parties long-time and undisputed
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course of conduct.
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By executing the Assignment and receiving the benefit of the
goodwill associated with the CCR Mark and 931 Reg. through the present date,
Fogerty is estopped from challenging the validity of the CCR Mark and 931 Reg.
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Poor Boy has continuously used the REVISITED Mark in commerce
in connection with live musical performances since at least 1995, except for the
brief period it was enjoined.
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After entering into the Settlement Agreement, Poor Boy fully
performed under the terms of that Agreement, and paid the agreed-upon monies to
Fogerty. However, in a July 9, 2011 article for Ultimateclassicrock.com, Fogerty
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publically condemned and objected to Poor Boy's, Clifford's and Cook's use of the
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REVISITED Mark in direct contravention of the Settlement Agreement, falsely
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stating, among other things, that it breaks a longstanding band agreement." See
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http://ultimateclassicrock.com/john-fogerty-condemns-former-bandmates/, a copy
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of which is attached hereto as Exhibit D.
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After publication of this article, Poor Boy, through counsel, sent a
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letter to counsel for Fogerty enclosing checks for performances and merchandise
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for use of the REVISITED Mark for the second and third quarters of 2011, and
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demanding cessation of Fogerty's malfeasance and breach of the Settlement
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Agreement. Fogerty did not respond, and, as a result, Poor Boy ceased paying
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Fogerty monies under the Settlement Agreement. To this day, the article and its
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false statements can still be accessed at http://ultimateclassicrock.com/john-
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fogerty-condemns-former-bandmates/.
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In addition to violating the terms of the Settlement Agreement,
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Fogerty has in the recent past used the CCR Mark without the permission of CCR.
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Examples of such infringing uses are attached collectively hereto as Exhibit E.
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Most recently, Plaintiffs learned that Fogerty has used the CCR Mark,
and derivations thereof, without permission from CCR, as follows:

a.
on Fogerty's Facebook page located at

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www.facebook.com/johnfogerty, Fogerty attributes the page to
"John Fogerty/Creedence Clearwater Revival" under the
category "Musician/Band." In the "About" section of the page,
Fogerty lists the following as "Members" of "John
Fogerty/Creedence Clearwater Revival": "John Fogerty, Kenny
Aronoff, Bob Malone, Shane Fogerty, James Lomenzo, and
Devon Pangle" ("Facebook Infringement"). Of these
individuals, only Fogerty is or ever was a member of the
musical group Creedence Clearwater Revival;

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through his website located at www.johnfogerty.com, Fogerty
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sells: (i) baseball caps bearing solely the word CREEDENCE,
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for $30; (ii) hockey pucks bearing the world famous Creedence
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Clearwater Revival "Green River" album cover, for $10
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unsigned, and $150 autographed by Fogerty; (iii) sweatshirts
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bearing CREEDENCE CLEARWATER REVIVAL for $50;
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(iv) t-shirts bearing CREEDENCE CLEARWATER REVIVAL
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for $30; and (v) autographed Creedence Clearwater Revival
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albums for $150 (collectively, "Merchandise Infringement");
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and
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Fogerty titled his forthcoming January 2016 series of his shows
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at The Venetian hotel in Las Vegas, Nevada ("Venetian"),
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JOHN FOGERTY PEACE, LOVE & CREEDENCE
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("Venetian Infringement" and, together with Facebook
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Infringement and Merchandise Infringement, "Recent
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Infringement"). True and correct copies of documents
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evidencing the Recent Infringement are attached as Exhibit F.
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After Plaintiffs sent Fogerty and Venetian a cease and desist letter on
or about October 26, 2015, regarding the Venetian Infringement, Fogerty and/or
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Venetian changed the name of January 2016 Venetian show from JOHN
FOGERTY PEACE LOVE AND CREEDENCE to JOHN FOGERTY
FORTUNATE SON IN CONCERT.
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On November 12, 2015, Fogerty sent a letter to Plaintiffs, accusing
Plaintiffs and their counsel of attempting to wrongfully interfere with Fogerty's
contractual relationship with Venetian by the October 26, 2015 cease and desist
letter, "through meritless trademark contentions using an abandoned mark against
protected First Amendment activity."
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The CCR Mark has not been abandoned in any sense. The CCR Mark
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remains world famous today, and is used to identify the band as a source of CCR
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recordings that are sold in stores and over the internet and performed on radio daily
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around the world. In addition, the CCR Mark has been used by Plaintiffs Clifford
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and Cook to promote their previously recorded work with Creedence Clearwater
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Revival, and Poor Boys substantial, continued and licensed use of the
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REVISITED Mark has inured to the benefit of the CCR Mark and the CCR
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partnership. Defendant Fogerty has recognized the ownership, strength and
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continued use of the CCR Mark repeatedly since at least 1992, by licensing third
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parties through the partnership and ceasing his own infringing use of the CCR
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Mark and 931 Reg. on several occasions.
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31.
Fogerty has, and has intended to, explicitly mislead the consuming
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public as to an affiliation, connection, association, origin, sponsorship or approval
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of his goods and services by CCR, including in connection with the Recent
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Infringement.
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Fogerty's unauthorized use of the CCR Mark and derivations thereof
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creates a likelihood of confusion, mistake and deception as to the affiliation,
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connection, association, origin, sponsorship or approval of its goods and services,
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by or with CCR, all to CCR's irreparable loss and damage. His infringing conduct
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is not protected by the First Amendment because he is using the CCR Mark as a
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trademark to identify source and not in a descriptive sense to state his former
affiliation with the musical group CREEDENCE CLEARWATER REVIVAL or
the playing of its music.
33.
Consumer confusion will likely occur as a result of Fogerty's acts
complained of herein unless Fogerty is enjoined from continuing said acts.
Furthermore, CCR will suffer irreparable injury to its reputation and goodwill
unless Fogerty is so enjoined.
34.
Fogerty has recently alleged that Poor Boy, Clifford and Cook have
violated the terms of the Settlement Agreement by failing to pay royalties and, at
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least impliedly, by asserting that Messrs. Clifford and Cook are required to at all
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times but have not performed together. As such, Fogerty has recently demanded
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payment of all monies allegedly owing from December 2011 to the present,
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including an accounting of performances where Clifford and Cook have not
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performed together. Plaintiffs Cook, Clifford and Poor Boy deny these allegations.
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CLAIM I
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(Trademark Infringement - 15 U.S.C. 1114(a))
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Plaintiffs repeat, reallege, and reiterate each and every paragraph set
forth above as if fully set forth herein.

36.
By the acts complained of herein, Fogerty has used in connection with
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his services and/or goods a reproduction, counterfeit, copy or colorable imitation of
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the CCR Mark protected by the 931 Reg., in connection with the sale, offering for
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sale, distribution and advertising of his entertainment services and/or goods, and
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such use is likely to cause confusion, mistake and deception amongst the
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consuming public in violation of 15 U.S.C. 1114(a).
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Fogerty's aforesaid acts have caused and will continue to cause great
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and irreparable injury to Plaintiffs and, unless such acts are restrained by this
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Court, such acts will continue and Plaintiffs will therefore continue to suffer great
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and irreparable injury.

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Plaintiffs have been damaged by Defendants' willful infringement in
an amount according to proof.
CLAIM II
(Lanham Act Violation - 15 U.S.C. 1125(a))
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By the acts complained of herein, Fogerty has used in connection with
his entertainment services and/or goods a false designation of origin, description or
representation, including use of the CCR Marks and derivations thereof, which is
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likely to cause confusion, mistake or to deceive as to origin, affiliation, connection,
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sponsorship or association of Fogerty with Plaintiffs, or as to the origin,
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sponsorship or approval of Fogerty's services and/or goods by Plaintiffs, in
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violation of 15 U.S.C. 1125(a).
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41.
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Plaintiffs have been damaged by Defendant's willful unfair
competition in an amount according to proof.
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CLAIM III
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(Unfair Competition at Common Law)
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The aforesaid acts of Fogerty constitutes the sale and passing-off of
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his services and/or goods as Plaintiffs' services and/or goods, infringement,
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imitation and misappropriation of the CCR Mark, unjust enrichment, and unfair
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competition with Plaintiffs, in violation of Plaintiffs' rights at common law.
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45.

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Plaintiffs have been damaged by Defendants' willful unfair
competition in an amount according to proof.
CLAIM IV
(Declaratory Relief - 28 U.S.C. 2201-2202)
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By reason of the foregoing allegations, an actual case or controversy
has arisen and exists between Plaintiffs and Fogerty as to:

a.
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whether Fogerty has, or Plaintiffs Clifford, Cook and Poor Boy

have, violated the Settlement Agreement;
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b.
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whether Plaintiffs Clifford, Cook, Poor Boy and CCR have

wrongfully interfered with Fogerty's contract with Venetian;
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c.
whether CCR has abandoned the CCR Mark; and
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d.
whether Fogerty's infringing conduct as described herein is

protected First Amendment activity.
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49.
Given the nature of Fogerty's charges, Plaintiffs will continue to suffer
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harm and damage unless this Court declares that Plaintiffs have not violated the
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Settlement Agreement and have not wrongfully interfered with Fogerty's contract
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with Venetian, that CCR has not abandoned the CCR Mark, and that Fogerty's
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conduct is not protected First Amendment Activity.
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CLAIM V
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(Breach of Contract)
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51.
Poor Boy, Clifford, Cook, Ms. Fogerty and Fogerty entered into the

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Settlement Agreement on or about January 9, 2001, whereby Fogerty agreed to
withdraw his objection to Clifford's and Cook's performing under the REVISITED
Mark. See Exhibit D. The parties also agreed that Clifford, Cook, and Ms.
Fogerty would not authorize any other persons or entities to perform under the
names CREEDENCE, CREEDENCE CLEARWATER or any derivative of those
names without the prior written permission of Fogerty. Id. The parties also agreed
that Poor Boy would pay monies to Fogerty for uses the REVISITED Mark. Id.
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52.
Poor Boy, Clifford, Cook, and Ms. Fogerty performed under the terms
of the Settlement Agreement with Fogerty until Fogerty breached the Settlement
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Agreement by publically condemning and objecting to Poor Boy's use of the
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REVISITED Mark, which he agreed to pursuant to the Settlement agreement. See
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Exhibit D.
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53.
As a direct and proximate result of Fogerty's actions and breach of
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contract, Poor Boy, Clifford, Cook, and Ms. Fogerty have suffered damages in an
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amount in excess of $75,000, and in an amount according to proof.
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CLAIM VI
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(Breach of Implied Covenant of Good Faith and Fair Dealing)
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54.

55.
The Settlement Agreement between Poor Boy, Clifford, Cook, and
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Ms. Fogerty and Fogerty contains an implied covenant of good faith and fair
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dealing.
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56.
The implied covenant of good faith and fair dealing requires that
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Fogerty do nothing to injure the right of Poor Boy, Clifford, Cook, and Ms.
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Fogerty to receive the benefits of that Settlement Agreement, that Fogerty give full
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cooperation to Poor Boy, Clifford, Cook, and Ms. Fogerty, and Fogerty refrains
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from doing any act to prevent or impede Poor Boy, Clifford, Cook, and Ms.
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Fogerty's enjoyment of the benefit of that Agreement.

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57.
The acts and omissions described herein have resulted in Fogerty's
breach of not only the Settlement Agreement with Poor Boy, Clifford, Cook, and
Ms. Fogerty, but have also resulted in the breach of Fogerty's covenant of good
faith and fair dealing as applied to that Agreement.
58.
As a direct and proximate result of Fogerty's actions and breaches of
implied covenant of good faith and fair dealing, Poor Boy, Clifford, Cook, and Ms.
Fogerty have suffered damages in an amount in excess of $75,000, and in an
amount according to proof.
CLAIM VII
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(Breach of Fiduciary Duty Cal. Corp. Code. 16401, 16404, 16501)
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59.

60.
Cal. Corp. Code 16401(g) states that a "partner may use or possess
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partnership property only on behalf of the partnership." Cal. Corp. Code 16501
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provides that a "partner is not a coowner of partnership property and has no interest
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in partnership property that can be transferred, either voluntarily or involuntarily."
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Cal. Corp. Code 16404 provides that "(a) the fiduciary duties a partner owes to
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the partnership and the other partners are the duty of loyalty and the duty of care
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set forth in subdivisions (b) and (c)." Subsection (b)(3) of Cal. Corp. Code
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16404 provides that a partner must refrain from competing with the partnership in
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the conduct of the partnership business before the dissolution of the partnership.
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61.
By using the CCR Mark without CCR's permission, contesting the
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validity of the CCR Mark and denying the existence of a partnership, Fogerty has
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violated his fiduciary duties to that partnership.
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62.
As a direct and proximate result of Fogerty's actions and breaches of
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fiduciary duty, CCR, Cook, Clifford and Ms. Fogerty have suffered damages in an
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amount in excess of $75,000, and in an amount according to proof.
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PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request this Court for the following
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relief:
1.
That the Court find that Fogerty has been and is infringing the CCR
Mark and corresponding '931 Reg., and is competing unfairly with Plaintiffs, and
otherwise has been unjustly enriched.
2.
That Plaintiffs be awarded their damages and Fogerty's profits
attributable to his infringement of the CCR Mark and corresponding '931 Reg.
under 15 U.S.C. 1117(a).
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3.
That Plaintiffs be awarded three times the profits attributable to
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Fogerty's infringement of the CCR Mark and corresponding '931 Reg. under 15
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U.S.C. 1117(a).
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4.
That Plaintiffs be awarded their reasonable attorneys' fees and costs of
suit, under 15 U.S.C. 1117(a).

5.
That an injunction be issued against Fogerty and his servants, agents,
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employees, successors and assigns, and all persons acting in concert or privity with
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him, enjoining each of them, singly and collectively, from:
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a.
further using, promoting, advertising, and marketing the
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"Creedence Clearwater Revival" service mark and trademark,
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or any name, mark or designation confusingly similar thereto;
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b.
further holding himself out to the public as being affiliated with
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or sponsored by CCR in any manner, or committing any acts
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likely to imply any such relationship or affiliation;
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c.
requiring Fogerty to deliver to Plaintiffs for destruction all
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infringing material in his possession, custody or control bearing
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the "Creedence Clearwater Revival" service mark or trademark,
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or any other names, marks or designations confusingly similar
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thereto; and
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d.
requiring Fogerty to cease objecting to the use of, or stating that
Poor Boy, Clifford, Cook and Fogerty do not have an
agreement for the use of, the REVISITED Mark in commerce.

6.
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That an order be issued preventing Fogerty's infringement and unfair
competition and awarding all applicable damages for Fogerty's conduct.

7.
That the Court declare:

a.
Fogerty has, and Plaintiffs have not, violated the Settlement

Agreement;
b.
Plaintiffs have not wrongfully interfered with Fogerty's contract

with Venetian;
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c.
CCR has not abandoned the CCR Mark; and
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d.
Fogerty's conduct as described herein is not protected by the

First Amendment.
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8.
For general damages.
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9.
For incidental damages.
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10.
For consequential damages.
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11.
For costs of suit incurred herein.
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12.
For reasonable attorneys' fees.
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13.
For pre-judgment and post-judgment interest.
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That the Court grant Plaintiffs such other relief as is just and proper.
DATED this ___

23rd day of December, 2015.
By: /s/ Michael D. Rounds

mrounds@bhfs.com
5371 Kietzke Lane
Reno, Nevada 89511
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MITCHELL J. LANGBERG (CA State Bar No.

171912)
mlangberg@bhfs.com
lbielinksi@bhfs.com
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055523\0002\14003155.2
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2:15-cv-06069-FMO (FFMx)
JURY DEMAND
Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs Poor Boy Productions, Inc.,
Creedence Clearwater Revival, Stuart Cook, Douglas Clifford, and Patricia
Fogerty hereby demand a jury trial on all issues triable by jury.
DATED this 23rd

___ day of December, 2015.
By: /s/ Michael D. Rounds

mrounds@bhfs.com
5371 Kietzke Lane
Reno, Nevada 89511
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MITCHELL J. LANGBERG (CA State Bar No.

171912)
mlangberg@bhfs.com
lbielinksi@bhfs.com
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055523\0002\14003155.2
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2:15-cv-06069-FMO (FFMx)

John Fogerty v. Cook - 2nd Amended Complaint

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John Fogerty v. Cook - 2nd Amended Complaint

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Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 1 of 17 Page ID #:450

MICHAEL D. ROUNDS (CA State Bar No. 133972)

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

STUART COOK, an individual;

Case No. 2:15-cv-06069-FMO (FFMx)

Revival ("CCR"), a partnership, Stuart Cook ("Cook"), Douglas Clifford

("Clifford"), and Patricia Fogerty ("Ms. Fogerty") (collectively "Plaintiffs"), by

SECOND AMENDED COMPLAINT

Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 2 of 17 Page ID #:451

for their Second Amended Complaint against Defendant John Fogerty

("Defendant" or "Fogerty"), allege the following:

Jurisdiction is based on federal question pursuant to 28 U.S.C.

pursuant to 28 U.S.C. 1338(b) and 1367(a).

Defendant is subject to this Court's personal jurisdiction because he is

a resident of the State of California and this District.

As determined by Judge Robert C. Jones, United States District Court

Plaintiff Poor Boy is a Nevada corporation with its principal place of

business located in Incline Village, Nevada.

Plaintiff CCR is a California partnership comprised of Messrs. Cook,

Clifford, Ms. Fogerty and Fogerty.

Plaintiff Clifford is a resident of the State of Nevada.

Plaintiff Cook is a resident of the State of Florida.

Plaintiff Ms. Fogerty is a resident of the State of Arizona.

Defendant Fogerty is a resident of the State of California and this

SECOND AMENDED COMPLAINT

Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 3 of 17 Page ID #:452

The musical group and partnership Creedence Clearwater Revival was

CCR is the owner of U.S. Trademark Registration No. 1222931 ("'931

January 4, 1983, for the Mark CREEDENCE CLEARWATER REVIVAL for

"entertainment servicesnamely, a vocal and instrumental group" in International

derivatives (collectively the CCR Mark)

In or about February and March 1992, Cook, Clifford, Fogerty and

Ms. Fogerty executed an Assignment of Trademark, which was subsequently

recorded with the USPTO ("Assignment"). A copy of the Assignment is attached

hereto as Exhibit B. The Assignment states, in relevant part, as follows:

"CREEDENCE CLEARWATER REVIVAL, a firm consisting

"it is the intention of the parties and the purpose of this

"the interest of said Tom Fogerty, solely in connection with

his interest in the Service Mark: CREEDENCE CLEARWATER REVIVAL and

Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 4 of 17 Page ID #:453

mark was used, is hereby sold, transferred and assigned to CREEDENCE

CLEARWATER REVIVAL, a firm consisting of John Fogerty, Doug Clifford, Stu

Cook and Tricia Fogerty, as heir to the deceased Tom Fogerty."

On or about March 1, 1995, Clifford, Cook and Ms. Fogerty, a

majority of the CCR partners, executed a Licensing Agreement ("License") on

Boy the right to use the name CREEDENCE CLEARWATER REVISITED

("REVISITED Mark"), in connection with musical performances.

Poor Boy, began touring using the REVISITED Mark.

On July 2, 1996, Fogerty filed a Complaint in the United States

and a likelihood of confusion regarding Fogertys association with CREEDENCE

Fogerty also sought and obtained a preliminary injunction against the

Ninth Circuit Court of Appeals reversed that order in an unpublished opinion in

associated with CREEDENCE CLEARWATER REVISITED. The Ninth Circuit

After the Ninth Circuit reversed the district court's preliminary

SECOND AMENDED COMPLAINT

Case 2:15-cv-06069-FMO-FFM Document 34 Filed 12/23/15 Page 5 of 17 Page ID #:454

("Settlement Agreement") on or about January 9, 2001 that resulted in a dismissal

with prejudice of the action. A copy of this Settlement Agreement is attached

names CREEDENCE, CREEDENCE CLEARWATER or any derivative of those

that Poor Boy would pay additional monies to Fogerty. Id.

partnership did not consent to his infringing use.