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..:vTUSTIN EHRLIcH rny-?!?W!__ _-.^(.) . ) FILEDI'l"**[giEo;t:,*:JANHERzo(\)--,nf

ttosANcELEssuPeRroRcouRr233 Wilshire Boulevard, Suite 550 r .9/ Y )Santa Monica, Califomia 90401-1210 \V- v\tetephone: iitbl +5e-6660 ) S!- JN NOV 19 ?lJ0?relephone: (310) 4s8-6660

,/.u,$f,..flAttomeys for Ptaintiffs kD-i*y"ANTHONY KIEDIS: CHAD SMTTH; - VJOHN FRUSCIAT{TE; MICHAEL "FLEA' BALZARY,

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dba RED HOT CHILI PEPPERS.

SUPERIOR COURT OF TITE STATE OF CALITORNIA

FOR TIIE COI.TNTY OF LOS ANGELES . CENTRAL

ANTHONTY KIEDIS; CHAD SMITIT; IOHN )FRU_SCIAIVTE; MICHAEL "FLEA" BALZARY, )dba RED HOT CHILI PEPPERS, )

)Plaintiffs,

vs,

SHOWTIME NETWORKS INC., a Delawarecorporation; TWILIGHT TIME FILMS, INC,, aCalifornia corporation; AGGRESSIVEMEDIOCRITY, INC., a Californla corporatiou;TOM IGPINoS; DOES l-100

CASE NO. rr,. z (DtJd0894COMPLAINT FOR:

1. Unfair Competition (Lanham Act)2. Unfair Compedtion (Cal, B&P

$17200)3. Dilution (I-anham Ac$4. Dilut ion(Cal. B&P$ 14330)5. Unjust Enrichment

DEI\,IAND FOR JURY TRIAI

Defendants,

PARTIF"s

l. Plaintiff Anthony Kiedis is, and at all relev&nt times herein has been, ani f i i 3;"1 i :

individual residing in [.os Angeles Couffy, California. S j ;1 ili ;,j;ii i'- 3 tl-i;*il

2. Ptaintiff Chad Smith is, and at all relevant tirnes herein has bdr#fr $dfv' ''11* rirs :g

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"5": i . : , . , ; iresiding io l-os Angeles County, Califomia. " i

';i$3. Ptaintiff lohn Fnrsciante is, and at all relevant times herein has beensn ,i S Jib ", lt

+-'.individual residing in Los Angeles County, California.

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4, Pkintiff Michaet "Flea' Balzary is, and at all relevant times herein nas bc;f;i anr.: I ;?:

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individual residing in Los Angeles County, Califomia.

5. Plaintiffs are, ud at all relevant times herein, have been doing business as the

Red Hot Chili Peppers.

6. Plaintiffs are infomed and believe, and thereon allege, that D€fendant Sbowrime

Networks lnc., is and at all relevant times was, a Delaware Corporation and is, and at att

relevanr times herein has been, a wholly owned subsidiary of C.B.S.

7. Plaintiffs arc informed and believe, ud thereon allege, that Defendant 'lVilight

Time Films, Inc., is and at all relevant cimes was', a California Corporarion.

8' Plaintiffs are informed and beiieve, and thereon allege, that Defendant Aggressive

Mediocrity, Inc., is and at all relevant rimes was, a Califomia Corporation.

9. Plaintiffs arc informed and believe. and thereon allege, that Defendanr :fom

Ikpinos is, and at all relevant times hereiu has been, an iudividual residing in Los Angeles

Cowlty, California. Plaintiffs are further informed aad believe that Defendant Kapinos Js the

crsator, writer, and exeoutive producer of a televislon show titled uCalifornication."

10. Ptaintiffs do not know the true names or capacities, whether individuals,

associates, corponlte or otheryise, of defendants DOES I through l@, inclusive, and therefore,

Plaintiffs sue said DOE defendants by such fictitiots names and witl seek leave of this Court to

amend this complaint to slrcw their true nsmes arrd capacities when the same has been

ascertained. Plaintiffs are informed and believe and based fiereon allege, that defendants

DOES I through 100 inclusive, and each of them, were in sorno way responsible for the wrongs

alleged herein.

11. Plaintiffs ue informed and believe and based thereon allege, that except as

otherwise alleged, each defendant, irrcluding those referred to herejn as DOES I through 100,

inclusive, is and at all relevant times was, the agent, arrployee, partnerr joint venturer,

subsidiary or affiliate of each of the othet defendants and, in doing the things alleged herein,

was acting within the course and scope of such positions wittr the permission, knowledge and

consent of each of the other defendants.

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GEnTERAL ALIEGATT_ONS

12, Anthony Kiedis, Chad Smith. John Frusciante, and Michael -Flea" Balzary, dba

Red Hot Chili Peppers, are sole authors of the composition titled "Californication" (the

"Cornposition"). Indeed, the Composition is registered with BMI as "Californication.n

13. ln 1999, the Composition was recorded by The Red Hot Chili Peppers, initially

exploitod on their album entitled "Californication" (the "Album") and was later released as a

single.

14, From 1999 to $re presenl the Composition and Album have enjoyed exraordinary

critical and commercial recognition in n variety of media, including but not lirnited to retail

sdes, digital downloads, acclairned music videos, exten$ive nadio play, and garnered a variety

of prestigious awards, both nationally and internationally.

15. The Album has sold in excess of 14 rnillion copies, received a Gramrny

nomination fot Best Rock Album of the Year in 1999 and received the Best Album nomination

at the 1999 MTV Europe Music Awards. Since rhen, the Album's popularity and relevance has

endured as illustrated by its listing on Rolling Stone's List of the Top 500 Albums of All Time,

inclusion on 'The Dcflrnitive 200' which represents the 200 most influential and popular albums

of all time, as selected by the National Association of Recording Merchandisen and lhe Rock &

Roll Hall of Fame, as well as receipt of the Mrxt-Have Album at the My VH-l Awards hetd in

2000, among other awards.!

The Album's sales figurcs reprcsent remendous popularity in the United States andinterna$orully. The Alburn's certifications throughout the world are ss follows:United States (5 tinrs platinurr); Australia (8 rimes platinum); New Zealand(platinurn); Japan (doublc ptatinum); Hong Kong (Gold); lndonesia (7 tirnesplarirrum); Korca (Gold); Malaysia (double platinum); Philippines (4 times platinum);Singapore (double platinum); Taiwan (platinum); Thailand (triple platinum): Canada(6 times platinuru); Ausria (6 tirnes platinum); Czech (five tinre$ platinum); Hurgary(three tfuncs platinum); Poland (seven times platinum); Belgium (two times plrtinum);Denmark (seveu times platinum); Finland (double platinum);Germany (eight rirnesplrtinurn); Hotland (threc tirnes platinum); Norway (tluee dmes Platinum); Swederr(six cinps platinum); Switzerland (four times platinum); Ireland (twelve timesplatinum); United Kingdom (thrce times platinum); France (double platinum); Greece(double platinum); ttaly (diamond); Portugal (five times Platinum); SPain (doublepluinunr); Argentina (three times platinum): Brazil (two times diamond); Chile (fourrimes platinum); Columbia (platinum); Mexico (three times platinum).

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16. Muttiple singles off the Ahum werc nominated for Grammy and other industry

awards, including the single tfiat capcured tfie 1999 Grammy Award for Best Rock Song. Songs

on the Album have been played on domestic radio alone well over one (1) million times.

17. The Composjtion itself was a tremerdou commercial and critical success. The

Composition has been digially downloaded (]eg;ally) nearly a half million times jn tbe last two

(2) years (despite being released in 199). Further, the Composition has been played on

domestic radio alone nearly 200,000 times and was nominated for the 2001 Gramrny Award ficr

best performance by a duo or group with vocal.

18. In addition, the Composition also received significant publicity, acclaim, and

commercial and critical praise as a result of its poputar musis video. The musis video for the

Cornpositiort has been played on domestic television in excess of t500 times in the U.S. alone,

was voted the 35D Greatest Video of Alt Time by VH-[, was nominated for four MTV Video

Music Awards in 2000 winning for Best Directiorr and Best Art Direction, was named Best

International Video at MuchMusic Video Awards and won Best Modern Rock Clip of the Year

at the Biltboard Music Awards in 2000, among many other accolades.

19. Plaintiffs are informed ard believc, arrd thereon allege, that beginning in late

2007, Defendants began, pncducing, creating, distributing, and airing, a television sedes also

entitled " Californication. " (hereinafter "the Show" ).

20- In addition, a recurring character in the Show is named or nicknmed and/or

referred to as 'Dani California." 'Dani California' is also the name of a character who is the

subject of or rnentioned in three Red Hot Chili Pepper songs (all crjtically and commercially

very successful), including the Composition, More specifically, 'Dani California' is the title of

anorher multiple Grarnmy winning hit shgle by ttre Red Hot Chiti Peppers that was rcleased in

Febnrary 2006 and reached No.l on numelous U.S. and lntentational charts.

21. Plaintiffs are inforrned and believe, and thereon allege, that Defendants have

made use of the interrrct, billboards, print media, and television, for purposes of advertising the

Sbow and have done or will do the same with DVD copies of the Show fot sale.

22. In addition to distribution of DVD versiom of the Show, Defendants have

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Ilf disaibuted and, on information and beliel will continue ro distribure music compilation alburnsil

2ll consistine only of songs used on the Show. On informarion and belief, these musical

3lf conpiration albums recently became available on iTunes bwing the word "Californication' int l

+ff the tirte(s).

til 23. The musical compilation albums are available for sale on the popular music retailtl6ll site, iTunes, as are the Album and tbe Composition, along with other songs wrirten and

zll pertonnuO by the Red Hot Chili Peppers. In fact, when one enters the search term

tll "Culirorication' in iTunes, the search retrieves botlr the Alburn and other songs wrirten andt l9fi nerfonned by the Red Hot Chili Peppers, but also the compilation albums from the Show and

rOfl tfre individual tracks appeariog rhereon.t l, r l l

trll Frnsr qLArM FoR RELTEFt3ll (Violation of Section 43(a) of the Lanham Act, Against All Defendanrs)

1ltnll 24. Plaintiffs reallege urd incorporate by reference Paragraphs I through 2il u if

tsll nrffy set forth herein.t l

t6fl 25. The title of the Composition is inherently distinctive, famous, and has been tbe

17ll subject of the subsnntial advertising and pronotion, has been used and advertised throughoutt l

tall me United States and thp world, is widely recognized by consumers and those irr the trade, andtl

tlll imrneAiately associated in the mind of the consumer and ftose in the rade, with Plair[iffs, their

ZOll Composition, and the Album. The title 'Californication' has therefore acguired secondarytl

21ll meaning. The actions andconduct of Defendsnts, as set forthbelow, haveoccurred longafter

Zll maintiffs' title acquircd secondary meaning,l l

,rll 26. Defendants' actions of creating, marketing, promotirrg, offering for distribution,

Z+ll ana distributing the television series "Californicadon" constitutes a false designation of origin,t l

25ll and has caused and continues to cause a likelihood of confusion, mistake, and deception as to

ZOll source, sponsorship, affiliation, and/or connection in the minds of the public.

Zlll n. The foregoing applies with equal force with regard to the distribution,I t

28ll advertising, and sale of compilatiotu of music from the Show which is also tabeled with the titleilt !_l l coranrlnr -5-

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"Californicadort. "

2E' Defendants' false designation of origin has violated Section 43(a) of the Lanham

Act, 15 U.S.C. $1125(a) in that Defendants have used in connection with goods and services a

false designation of origin, a false or misleading descripdorr which is likely to cause confusion

and to cause mistake, and to deceive as to the affiliation, connecdon, or association of the Show

with Plaintiffs and as to the origin, sponsorship, and approval by Plaintiffs of the Show and its

related material,

29. By reason of the foregoing, Plaintiffs have been injured in an arnount not yet

fully ascertained, according to proof at trial. ln addition, as a result of Defendants' violations

of the Lantum Act, Plaintiffs have suffered, and continue to suffer, irreparable harm, and

Plaintiffs' have no adequate remedy at law with respecr to this injury.

30, Plaintiffs are informed and believe, and thereon allege, that Defendants' actions

have been fraudulent, knowing, willful, and wanton, entitling Plaintiffs to damages, lreble

damages, profits, attomey's fees, and &e coss of this acdon.

sEcoNp cLArM FoR BELTE{(Claim for Unfair Competition Under Business and Professions

Code $ 172W, Against All Defendants)

31. Plaintiffs reallege and incorporateby reference Paragraphs I through 30 as if

fully set forth herein.

32, The title of the Composition is inherently distinctive, famous, and has been lhe

subjecr of substantial advertising and promotion, has been used and advertised throughout the

United States and the world, is widely recognized by consumers and those in the trade, and

imrnediately associated in the rnind of the consumer and those in the rade, with Plairrtiffs, their

Composition, and the Album, Tbe tille 'oCalifornication" has therpfore acquired secondary

meaning. The actions and conduct of Defendants, as ser forth below, have occurred long after

Plaintiffs' ritle acquired secondary meaning.

33. Defendants' actions of qeating, marketing, promoting, offering for distribution,

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and disrributing the television series "Califomication" constitutes a false designation of origin,

and has crused end continues to cau$e a likelihood of confusion, mistake, and deception as to

sourte, sponsonhip, affrliation, and/or connection in the minds of the public.

34. The foregoing applies with equal force with regard to the distribution,

advertising, and sale of compilations of music fiom the show which is also labeled with the title

"Californicadon.'

35. Defendants' false designation of origin has violated Section 43(a) of the lanham

Act, 15 U.S.C. $ 1125(a) in that Defendants have used in connection with goods and services a

false desigr:ation of origin, a false or misleading description which is likely to cause confusion

and to cause mistake, and to deceive as to tlte affiliation, connection, or association of the Show

with Plaintiffs and as to the origin, sponsorship, and approval by Plaintiffs of the Show and ils

related material.

36. By reason of the foregoing, Plaintiffs have been injurod in an amount not yet

fully ascertained, according ro proof at trial. In additiorr, as a result of Defendants' violations

of the Lanham Act, Plaintiffs have sufferod, and continue to suffer, irreparable harm, and

Ptaintiffs'have no adequate rernedy at law with respect to this injury.

37. Plaintiffs are informed and believe, and thereon allege, rhat Defendan(,s' action$

have been fraudulent, knowing, willful, and wanton, entitling Plaintiffs to equitable relief

including disgorgement and restitution,

TTIIBD CLAIM FOB B]PtIEF

(Violation of Section 43(a) of the Lanham Act For

Dilution, Against All Defendants)

38. Plaintiffs rcallege and incorporate by reference Paragraphs I lhrough 37 as if

fully set forth herein.

39. As set forth in Paragraphs l4-I8 above, the (Californication" mark i$ a famous

rnark and wa$ so ptior to Defendants' use thereof.

40. Further, Defendants' use of the "Californication" mark dilutes the quality of the

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mark by diminishing the capacity of the mark to identify and distinguish goods, services,

sponsorship, and affiliation.

41. Tbis is true with equal force as to Defendants'use of the Californication matk in

the sale of music from the Show bearing the word "Califomication" begause said use constitutes

use of the identical mark, in the identical rnedia (music), in tire identical retail space (including

but limited to rhe iT\rnes music store.).

A- By reason of the forcgoing, Plaintiffs have been injure.d in an amount nor yet

fully ascertained, accotding to proof at trial. In addition, as a result of Defendarus' violations

of the Lanham Act, Plaintiffs have suffered, and continue to suffer, irreparable hann, and

Plaintiffs'have no adequate rernedy at law with respect to this injury.

43. Plaintiffs are informed and believe, and thereon allege, that Defendants' actions

have been fraudulent, knowing, willftrl, and wanton, entitling Plaintiffs to damages, treble

damages, profi.ts, attorney's fees, and the costs of this action,

rouRIH cLArM FOR RELIET-'(Violation of Cal. Business And Professions Code $14330

For Dilution, Against All Defendants)

44. Plaintiffs realtege and incorporate by reference Paragraphs I through 43 as if

fully set fonh herein.

45, As set forth inParagraphs 14-18 above, the "Califomication" mark is a famous

mark and was so prior to Defendanh'use thereof.

46. Further, Defendants' use of the "Californicalion" mark dilutes the qualiry of the

mark by diminishing the capacity of the mark to identify and disdrrguish goods, services,

sponsorship, and affiliation.

41 , This is tnre with equal force as to Defendants' use of the Califomication mark in

the sale of nusic from the Show bearing the word "Californication" because said use constitutes

use of the identical mark, in the identical media (music), in the identical retail space (including

but limited to thc iT\rnes music store.).

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48. By rcason of the foregoing, Plaintiffs have been injured in an amount not yet

fully ascertained, according to proof at trial. In addition, as a result of Defendants, viotationsof Business And Professions Code $ 14330, Plainriffs have suffered, and continue to suffer.ineparable harm, and Plaintifft' have no adequate remedy at law with respect to this iqtury.

49. Plaintiffs are informed and believe, and thereon allege, that Defendants, aetionshave been fraud.ulent, knowing, willful, and wanton, entitling plaintiffs to damages, trebledamages, profits, attorney's fees, and the cos(s of this action.

FTFTTI C_LArM FOR RELTEF

(Unjut Enrichment, Against All Defendants)

50. Plaintiffs reallege and incorporate by reference Paragraphs I through 4g as iffully set forth herein.

51' As a result of the wrongful acts of Defendants, as set forth above, Defendantshave been unjustly enriched and benefiued.

52' Defendants, and each of them, have an obligation to pay plaintiffs rhe entireamount to wlrich they have been uqiustty enriched, and Plaintiffs are entitled to the hnpositionof a constructive trust, such that Defendants, and each of them, are involuntarily trusteesholdingall such surns in theirposessiort for Plaintiffs'benefit with a dury to rransfer such sumsto Plaintiffs forthwith.

WHEREFORE, plalntiffs Bray for relief as follows:

l. For a permanent injunction enjoining Defendants, its officers, dircctors,

managing agents, and all those acting at its direction or on its behal( from using 0re titte"Californication" as the title to its television show (and any music or other memorabilia

associated therewith), or any confusingfy similar title;

2, For actual damages, according to proof, to be trebied;

3. For an accounting, restitution, and disgorgement of all profits derived by

Defendantsi

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4. For punitive darnages according to proof;

5, For attomey's fees and costs of suil incurred herein;

6. For such other and further relief as the Court deems just and proper.

DATED: November 19. 2007 THE LAW OFFICES OF IAN HERZOGA Prcfessional Corporation

tor PlaintiffsY KIEDIS; CHAD SMITH;

FRUSCIANTE; MICHAEL "FL,EA"Y, dba RED HOT CI{ILI PEPPERS

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