Lloyd's v Nasa

David P. Mann, Individually and on Behalf of
all Underwriters at Lloyd's Subscribing Policies
Numbered 80617400 and 81064800; and
DpMann, Ltd

Plaintiffs,

-against-

N.A.S.A. INTERNATIONAL, INC.

Defendant.

Plantiffs, David P. Mann et al., by its attorneys, Mendes & Mount, LLP as and for its Complaint allege as follows:

1. The Corporation of Lloyd's was incorporated in 1871 by Act of Parliament of the United Kingdom. "Lloyd's of London" constitutes a collective mark registered on May 15, 1979 with the United States Patent and Trademark Office. Plaintiffs are among the Underwriters at Lloyd's entitled to use the "Lloyd's of London" collective mark. Pursuant to 15 U.S.C. § 1127 the term "collective mark" means a trade or service mark.

2. This is a civil action for false and misleading descriptions and representations in advertisements, unfair competition, injury to business reputation and for insurance contract recission arising under the common law, the statutes of the state of New York and the Federal Trademark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C. § 1051 et seq.

3. This court has original subject matter jurisdiction under § 39 of the Trademark Act of 1946, 15 U.S.C. § 1121 and the Judicial Code, 28 U.S.C. §§ 1331, 1338.

4. Supplemental jurisdictions exists under 28 U.S.C. § 1367 for those claims that arise out of the same transactions and occurrences.

5. This court has personal jurisdiction of the parties pursuant to New York Civil Practice Law & Rules §§ 301 and 302 because the defendant: (i) is doing business in New York; and (ii) transacted business in New York, in which the causes of action set forth below arose.

6. A substantial portion of the acts complained of herein occurred within this district and the balance occurred in interstate and international commerce.

7. Venue is founded on 28 U.S.C. § 1391(d)

8. David P. Mann, and all other individual plaintiffs subscribing policies 80617400 and 81064800, are underwriters in a London based insurance market commonly known as "Lloyd's of London," and are sometimes referred to as "Underwriters at Lloyd's."

9. dpMann Ltd. is the managing agent of a syndicate of underwriters at Lloyds of London known within the Lloyd's insurance market as Syndicate 435.

10. dpMann Ltd. is a limited liability corporation organized under the laws of the united Kingdom with its principal place of business in London, England.

11. Upon information and belief, defendant N.A.S.A. International Incorporated ("N.A.S.A.") is a corporation, incorporated under the laws of Antigua, with its principle place of business in Costa Rica.

12. Upon information and belief, N.A.S.A. operates a land-based casino and Sportsbook in the world.

13. On or about June 30, 1999, on behalf of its syndicate members, dpMann subscribed Confiscation Policy numbered 80617400 issued to N.A.S.A. On or about June 30, 1999, on behalf of its syndicate members, dpMann subscribed a credit Insurance policy numbered 81064800 issued to N.A.S.A. Attached hereto as Exhibit A and B respectively are true and complete copies of the confiscation and credit Insurance Polocies.

14. The Confiscation Insurance-Policy 80617400-insured against confiscation, expropriation, nationalization and deprivation in respect of N.A.S.A.'s physical property at it customer service center in Costa Rica.

15. The Credit Insurance-Policy 81064800-insured N.A.S.A.'s own funds held on deposit in their account at UBS (Panama) up to $ 1,000,000 against risks of the insolvency of UBS (Panama) and exchange transfer and embargo.

16. Neither Policy insures any of N.A.S.A.'s clients' accounts.

17. Under the terms and conditions of the Confiscation Policy, N.A.S.A. agreed that:

3. It is a condition precedent to any indemnity under this policy that the Assured shall not disclose the existence of this Policy at any time including but not limited to following any date of occurrence of a loss hereunder or following the expiry date of this Policy to any third party other than their own professional financial advisors (including any debt or equity provider as may be appropriate) on a confidential basis without the prior written consent of the Underwriters. [emphasis added]

18. In the Credit Insurance Policy, N.A.S.A. warranted

2. Warranted the Assured shall not disclose the existence of this Policy, at any time, either before or after an INSURED EVENT occurs and whether before or after the expiry of this Polciy, to any third party other than its own professional, financial and legal advisers and, where applicable, the Loss Payee (all on a confidential basis) without the prior written consent of Underwriters. [emphasis added]

19. On or about August 24, 1999 dpMann learned that N.A.S.A.'s web-site www.betonsports.com contained the following statements:

Rules

Number 5:

Lloyd's of London insures player's funds up to $1,000,000.

FREQUENTLY ASKED QUESTIONS

We are the most largely advertised sports book world wide, Investing over 3.5 million per year in advertising and Computer equipment. In our 30,000sq. Ft. office we provide you with over 300 computer stations, and we have 250 professionally trained clerks to take your action. Your money is also insured with Lloyd's of London. We are ranked # 1 and certified by the Offshore Gaming Association. (emphasis added)

Attached hereto as Exhibit C is a true and complete copy of the relevant pages from the www.betonsports.com web-site on August 24, 1999.

20. Upon information and belief, in addition to the web-site, N.A.S.A. placed and continues to run advertisements that are published in New York, New York, such as Forbes, that state:

N.A.S.A. has enhanced your security by acquiring additional insurance with Lloyds of London for our customers accounts, up to $1,000,000.

Attached hereto as Exhibit D is a true and complete copy of N.A.S.A.'s advertisement that appears in the fall issue of Forbes magazine.

21. dpMann demanded, via correspondence dated September 3, 1999 and September 10, 1999, that N.A.S.A. cease and desist from making any further representations concerning Lloyd's of London. Attached hereto as Exhibits E and F respectively are true and complete copies of the September 3rd and 10th letters.

22. dpMann subsequently learned that N.A.S.A. International placed an ad in the October 11, 1999 issue of Forbes magazine, directly with Forbes' New York Office, which was published in New York, New York, stating:

It is N.A.S.A.'s main tasks to pay our customers upon request within 48 hours. Players deposits of up to $1,000,000 are secured by a reserve fund insured by Lloyd's of London

Attached hereto as Exhibit G is a true and complete copy of N.A.S.A.'s advertisement that appears in the October 11, 1999 issue of Forbes magazine.

23. dpMann also learned that a full page advertisement appears in the 1999 Football edition of the Players Guide to Las Vegas Sports Books with the following statements:

• Your deposit is insured for up to one million dollars by Lloyd's of London
• Customers Accounts Insured by Lioyd's of London up to $1,000,000

Attached hereto as Exhibit H is a true and complete copy of N.A.S.A.'s Advertisement that appears in the 1999 Football edition of the Players Guide to Las Vegas Sports Books.

24. The statements made in N.A.S.A.'s advertisements and web-site concerning the insurance subscribed by dpMann on behalf of its syndicate members are false and misleading because they represent that "Lloyd's of London" insures N.A.S.A.'s Panamanian bank account up to $1,000,000-not N.A.S.A.'s clients' accounts.

25. On information and belief, N.A.S.A. has not obtained any type of insurance coverage from any other Underwriters in the Lloyd's market, and all of N.A.S.A.'s references to insurance coverage provided by "Lloyd's of London" are inaccurate and misleading descriptions of the coverage available under policies 81064800 and 80617400.

26. The statements set forth in the aforesaid advertisements and web-site were made without the consent of dpMann or the Underwrite subscribing policies 81064800 and 80617400.

27. The plaintiffs repeat and reiterate as if fully stated herein, all of allegations set forth in paragraphs 1 through 26, inclusive.

28. N.A.S.A., in connection with its provision of services in interstate and international commerce, falsely described and represented its Confiscation and credit policies.

29. Since at least 1892 to the present time Underwriters at Lloyd's have engaged continuously in the business of advertising, soliciting and underwriting insurance, in international and interstate commerce, using "Lloyd's of London" as a collective mark.

30. The Name "Lloyd's of London" maintains a strong collective reputation for the Underwriters at Lloyd's who endeavor to maintain their collective reputation as a preeminent international insurer.

31. Since at least 1892, the Underwriters at Lloyd's adopted for use in connection with the provision of commercial insurance services its trade mark and service mark "Lloyd's of London."

32. Certain Underwriters at Lloyd's are licensed to do business in Illinois since 1929.

33. Most Underwriters at Lloyd's are licensed to do business, and have conducted business in Kentucky since at least July 1, 1937.

34. Most Underwriters at Lloyd's are approved surplus lines insurers in New York and almost all the other 49 states in the United States.

35. The "Lloyd's of London" mark has been widely utilized by plaintiffs and other Underwriters at Lloyd's. Many millions of dollars have been spent in establishing the name "Lloyd's of London" so that the general public recognizes the words as identifying the high quality insurance services rendered by those Underwriters conducting business as "Lloyd's of London."

36. "Lloyd's of London" is the mark of those Underwriters at Lloyd's who, in total compromise Lloyd's. The name "Lloyd's of London" is protected from infringement or unauthorized use under the laws of the United Kingdom.

37. "Lloyd's of London" constitutes a collective mark registered on May 15, 1979 with the United States Patent and Trademark Office.

38. Upon information and belief, the statements set forth in N.A.S.A. web-site and aforesaid advertisements were made with intent to confuse, deceive or mislead the public into believing their wages were insured by Lloyd's of London.

39. Upon information and belief, N.A.S.A.'s advertisements and web-site induced public bettors - some of which reside in New York State - to wager with N.A.S.A. based upon the misrepresentation that gamblers' wagers were insured by Lloyd's of London.

40. N.A.S.A.'s advertisements and web-site misrepresent the nature, characteristics and qualities of both N.A.S.A. and "Lloyd's of London's" services.

41. N.A.S.A.'s false advertisements that Lloyd's of London insures N.A.S.A.'s customers' wagers threatens to damage plaintiffs through potential suites by disgruntled N.A.S.A. clients to recover on the purported insurance.

42. The false advertisements that Lloyd's of London insures N.A.S.A.'s customers' wagers damages plaintiffs' reputation as a preeminent international insurer.

43. The false advertisements that Lloyd's of London insures N.A.S.A.'s customers wagers damages plaintiffs because N.A.S.A. uses plaintiffs' mark for commercial gain without consent and without compensation plaintiffs.

44. Upon information and belief, public bettors have been and will continue to be confused, mistaken or deceived as to the affiliation, connection or association between N.A.S.A. and Lloyd's of London.

45. Upon information and belief, public bettors have been and will continue to be confused, mistaken or deceived as to Lloyd's of London sponsorship or approval of N.A.S.A. services.

46. The individual writer, editors and publishers of the October, 1999 issues of Insider's Football Betting Guide, (College and Professional editions) were actually confused, deceived of mistaken as to the affiliation association or connection between N.A.S.A. and Lloyd's of London's approval or sponsorship of N.A.S.A.'s services.

47. The individual writer, editors and publishers of the October, 1999 issues of Insider's Football Betting Guide, (College and Professional editions) were actually confused, deceived and mistakenly believed that "Lloyd's of London" insured N.A.S.A.'s customers' accounts.

48. The following statement appeared in the October, 1999 issue of Insider's Football Betting Guide '99 Season College Edition:

The clincher is that all customer accounts are insured by the real Lloyd's of London for up to $1,000,000… We believe NASA International is a very "sure bet",and therefore, we give NASA our highest rating. (Page 21)

Attached hereto as Exhibit I is a true and complete copy of the foregoing statement that appeared on page 21 in the October, 1999 issue of Insider's Football Betting Guide, College Edition.

49. The following statement appeared in the October, 1999 issue of Insider's Football Betting Guide '99 Season:

The clincher is that all customer accounts are insured by Lloyd's of London for up to $1,000,000. We believe NASA International is a very secure bet, and therefore, we give NASA our highest rating. (Page 26)

Attached hereto as Exhibit J is a true and complete copy the foregoing statement that appeared on page 25 in the October, 1999 issue of Insider's Football Betting Guide.

N.A.S.A. Willfully Violated the Lanham Act

50. Since at least August 1999, N.A.S.A. falsely represented and upon information and belief, continues to falsely represent that "Lloyd's of London" insured N.A.S.A.'s customers' accounts.

51. Plaintiff's letters of September 3 and 10, 1999 demanded that N.A.S.A. cease and desist from its false representations and unauthorized references to "Lloyd's of London."

52. Since at least August 1999, N.A.S.A. intentionally used the "Lloyd's of London" collective mark to trade upon the plaintiffs' good will and reputation and otherwise to compete unfairly with plaintiffs by using their mark without authority and without compensation.

53. Plaintiffs have been, and believe they will continue to be, damaged by such acts complained of herein.

Injunctive Relief-15 U.S.C. § 1116

54. Despite plaintiff's repeated demands that N.A.S.A. cease and desist from its conduct N.A.S.A., upon information and belief, continues the unauthorized use of the "Lloyd's of London" mark in connection with the advertising, promotion, and provision of its services

55. N.A.S.A.'s conduct has caused and will result in further irreparable injury to plaintiffs if N.A.S.A is not restrained from further violations of plaintiffs' rights, and plaintiffs have no adequate remedy at law.

56. N.A.S.A.'s use of the "Lloyd's of London" mark in marketing N.A.S.A.'s services as set forth above, violates Lanham Act § 43(a), 15 U.S.C. § 1125(a).

WHEREFORE, Plaintiffs pray:

1. That defendant corporation, its officers, directors, servants, agents, and employees, attorneys and all those persons in active concert or participation with them, be forthwith preliminarily and thereafter permanently enjoined and restrained from:

(a) using the designation "Lloyd's of London" or any other similar designation, alone or in combination with other words, to market, advertise or identify the defendants' services;

(b) otherwise infringing the "Lloyd's of London" collective service mark;

(c) misrepresenting the nature, characteristics and qualities of N.A.S.A.'s and plaintiffs' services;

(d) causing likelihood of confusion as to the affiliation, connection or association between N.A.S.A. and plaintiffs;

(e) causing likelihood of confusion as to plaintiffs' sponsorship, approval or endorsement of N.A.S.A.'s services;

(f) causing injury to plaintiffs' business reputation;

2. N.A.S.A. be directed to file with this Court and serve upon plaintiffs, within 30 days after service of the injunction, a report in writing and under oath, setting forth in detail the manner and form in which the defendants have complied with the injunction.

3. That N.A.S.A. be required to deliver up and destroy all literature, advertising and other material, in any and all media in which N.A.S.A. refers to "Lloyd's of London."

4. That plaintiffs recover their costs and attorney's fees in this suit; their damages; and defendant's profits.

5. That plaintiffs recover; treble damages suffered by plaintiffs; treble defendant's profits; and pre judgment interest because of the deliberate acts of infringement and unfair competition.

6. That plaintiffs have such other and further relief as the court may deem just.

Supplemental State Law Claims

Count 2

Declaratory Judgment Action Against N.A.S.A.:

57.The plaintiffs repeat and reiterate as if fully stated herein, all of allegations set forth in paragraphs 1 through 56, inclusive.

58. This Count 2 arises out of the same transactions and occurrences giving rise to Count 1.

59. Pursuant to the terms and conditions of policies 80617400 and 81064800, N.A.S.A. specifically agreed not to disclose the existence of Policies 80617400 and 81064800 without the written consent of the subscribing insurers.

60. N.A.S.A. failed to obtain plaintiffs' prior written consent before disclosing the existence of the aforesaid policies.

61. As a result of the foregoing, N.A.S.A. materially breached the conditions in Policies 80617400 and 81064800.

62. N.A.S.A. disclosed and continues to disclose the existence of policies 80617400 and 81064800 on its web-site and through national advertisements.

63. Upon information and belief, N.A.S.A, faxed the policies to a journalist employed by the Las Vegas Sporting News.

64. Plaintiffs did not, and do not consent to N.A.S.A.'s past, current or any future disclosures of policies 80617400 and 81064800.

65. The disclosures of policies 80617400 and 81064800 violated their confidentiality clauses and constitute a material breach of contract, which renders such contracts, null and void ab initio.

WHEREFORE, by reason of the above-mentioned facts, Plaintiffs request this Court declare that Policies 81064800 and 80617400 are null and void ab initio.

Count 3

Injunctive Relief to Stop Injury to Business Reputation

N.Y. G.B.L. 360(1)

66. Plaintiffs repeat and reiterate as if fully stated herein, all of the allegations set forth in paragraphs 1 through 65, inclusive.

67. This Count 3 arises out of the same transactions and occurrences giving rise to Count I.

68. The name "Lloyd's of London" maintains a strong reputation as a preeminent international insurer.

69. David P. Mann, and all other individual plaintiffs subscribing policies 80617400 and 81064800, are underwriters at "Lloyd's of London."

70. At all relevant times herein, dpMann Ltd. acted as the managing agent for a syndicate of Underwriters at Lloyd's of London.

71. N.A.S.A. used and, upon information and belief, continues to use the "Lloyd's of London" name for commercial purposes.

72. Plaintiffs never consented and do not consent to N.A.S.A.'s past, present and future use of the "Lloyd's of London" name.

73. The continued use of the "Lloyd's of London" name to mislead and deceive the public into believing defendant had obtained insurance coverage from plaintiffs and/or other Underwriters at Lloyd's, when it had not obtained such insurance coverage, continues to irreparably damage the strong business reputation of all Underwriters at Lloyd's, including the plaintiffs.

74. Plaintiffs have no adequate remedy at law.

75. Plaintiffs seek injunctive relief pursuant to New York General Business Law § 360(1) to cause N.A.S.A. to cease and desist from using the "Lloyd's of London" mark for commercial purposes.

WHEREFORE, the plaintiffs demand judgment that:

1. The defendant corporation, its officers, directors, servants, agents, and employees, be restrained from further advertising, representing, disclosing or otherwise using the "Lloyd's of London" mark.

2. The plaintiffs recover from the defendant the costs and disbursements of this action, including attorneys fees, and such other relief as the Court deems proper.

Count 4

Unjust Enrichment

76. Plaintiffs repeat and reiterate as if fully stated herein, all of the allegations set forth in paragraphs 1 through 75, inclusive.

77. This Count 4 arises out of the same transactions and occurrences giving rise to Count 1.

78. N.A.S.A. misrepresented the coverage it had obtained under policies 81064800 and 80617400, and falsely represented, without permission, that "Lloyd's of London" insured N.A.S.A.'s customers' accounts. N.A.S.A. made this representation to induce prospective clients to wager with N.A.S.A.

79. N.A.S.A, improperly used the "Lloyd's of London" mark for monetary gain. N.A.S.A.'s customers relied on the "Lloyd's of London" reputation in deciding to wager with N.A.S.A.

80. Plaintiffs never received any compensation for the use of the "Lloyd's of London" mark.

81. The revenue made as a result of N.A.S. A.'s conduct unjustly enriched N.A.S.A. at plaintiff s expense.

82. N.A.S.A. has been unjustly enriched by the revenue received as a result of N.A.S.A.'s conduct in using the "Lloyd's of London" mark.

WHEREFORE, the plaintiffs demand restitution of the amount of revenue made as a result of N.A.S.A.'s conduct concerning the "Lloyd's of London" mark.

Jury Demand

Plaintiffs hereby request trial by jury of all issues triable by right to a jury.

Dated: New York, New York
December 9, 1999

Yours etc.

Daniel T. O'Neil
MENDES & MOUNT, LLP
Attorneys for Plaintiffs
750 Seventh Avenue
New York, NY 10019
(212) 261 - 8000