R. Kelly v. Burrowes - First Amended Complaint PDF

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 1 of 23 PageID #:176
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT S. KELLY, p/k/a R.
KELLY, is an individual residing in
Cook County, Illinois,
Case No.: 1:14-cv-06115
PLAINTIFF,
Honorable Judge Holderman Presiding
v.
Kirk Burrowes, an individual residing in
New York; The KB Group, an entity
with its principal place of business in
New York; Unison Entertainment
Enterprises, an entity with its principal
place of business in Ontario, Canada;
RMG Real Music Group, Inc., an entity
with its principal place of business in
Ontario, Canada; Thomas Tripodi, an
individual residing in Ontario, Canada;
TicketBreak Ltd. with its principal place
of business in Ontario, Canada;
MapleCore, Ltd., with its principal place
of business in Ontario, Canada; G98.7
FM (CKFG), an entity with its principal
place of business located in Ontario,
Canada; Julz Media, an entity with its
principal place of business located in
Ontario, Canada; Julius Ossum, an
individual residing in Ontario, Canada;
Art Dukes, an individual residing in New
York; Visual Rhodes, Inc., an entity with
its principal place of business located in
Ontario, Canada; and The Niagara
Parks Commission, an agency of the
government of Ontario, Canada.
Jury Demand
DEFENDANTS.
FIRST AMENDED COMPLAINT

Plaintiff Robert S. Kelly (the performer known as R. Kelly) (hereinafter
collectively referred to as Plaintiff Kelly) by and through his attorneys, Law Office of
Heather L. Blaise, P.C., brings this action against Kirk Burrowes, an individual residing
in New York; The KB Group, an entity with its principal place of business in New York;
Unison Entertainment Enterprises, an entity with its principal place of business in
Ontario, Canada; RMG Real Music Group, Inc., an entity with its principal place of
business in Ontario, Canada; Thomas Tripodi, an individual residing in Ontario,
Canada; Ticketbreak Ltd. with its principal place of business in Ontario, Canada;
MapleCore, Ltd., with its principal place of business in Ontario, Canada; G98.7 FM
(CKFG), an entity with its principal place of business located in Ontario, Canada; Julz
Media, an entity with its principal place of business located in Ontario, Canada; Julius
Ossum, an individual residing in Ontario, Canada; Art Dukes, an individual residing in
New York; Visual Rhodes, Inc., an entity with its principal place of business located in
Ontario, Canada; and The Niagara Parks Commission, an agency of the government of
Ontario, Canada (hereinafter collectively referred to as Defendants) as it relates to
Defendants breach of contract of a performance agreement and unauthorized use of
Plaintiff Kellys name, likeness and tradename in connection with offering goods and
services and in support, Plaintiff alleges as follows:
JURISDICTION, VENUE AND PARTIES

1.
This Court has Diversity Jurisdiction under 28 U.S.C. 1332(a) because the
parties are citizens of different states and citizens or subjects of a foreign state and the
amount in controversy exceeds the sum or value of $75,000.
2.
Moreover, this Court has jurisdiction over Defendant Niagara Parks Commission
pursuant to 28 U.S.C. 1330 because Niagara Parks Commission falls into an exception
under 28.U.S.C. 1605(a)(2),(5):
(a) A foreign state shall not be immune from the jurisdiction of
courts of the United States or of the States in any case
[]
(2) in which the action is based upon a commercial activity
carried on in the United States by the foreign state; or upon an
act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or upon an
act outside the territory of the United States in connection with
a commercial activity of the foreign state elsewhere and that
act causes a direct effect in the United States;
[]
(5) not otherwise encompassed in paragraph (2) above, in
which money damages are sought against a foreign state for
personal injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious act or
omission of that foreign state or of any official or employee of
that foreign state while acting within the scope of his office or
employment; except this paragraph shall not apply to
(A) any claim based upon the exercise or performance or
the failure to exercise or perform a discretionary function
regardless of whether the discretion be abused, or
(B) any claim arising out of malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights; or
3.
This Court also has jurisdiction under and this Court has federal jurisdiction
pursuant to 28 U.S.C. 1338(a) because the claims for trademark infringement and false
endorsement fall under Section 43(a) of the Lanham Act, 15 U.S.C. 1125 (a).
4.
This Court has supplemental subject-matter jurisdiction over the pendent state law
claims under 28 U.S.C. 1367.

5.
This Court has personal jurisdiction over Defendants in that, among other things,
Defendants do business in this Judicial District, and Plaintiff does business and suffered
harm in this Judicial District.
6.
Venue is proper in this Judicial district pursuant to 28 U.S.C. 1391(b)-(d) and
1400(a) as the negotiation and acceptance of the contract substantially occurred in this
district; the injury of Defendants breach of the contract occurred in this district; the
injury to Plaintiff of Defendants unauthorized use of Plaintiffs name and likeness
occurred in this District, the injury to Plaintiff resulting from Defendants unfair and
deceptive trade practices and false endorsement occurred in this District; and Defendants
are either foreign entities or regularly conduct business in this District, and the Plaintiff is
a resident of this District and the injury to Plaintiffs tradename and to the
misappropriation of his name and likeness was felt in this district.
7.
Plaintiff Robert S. Kelly is the performing artist known as R. Kelly and is an
American singer-songwriter, record producer and rapper who has sold more than 40
million albums worldwide. Plaintiff Kelly is now, and at all times mentioned in this
Complaint was, a citizen of the United States, residing in Chicago, Illinois, Cook County.
8.
Plaintiff Robert Kelly is also the owner of the United States trademark R. Kelly
as it relates to entertainment services in the nature of live musical performances.
9.
Kirk Burrowes, is on information and belief an individual residing in New York
and the principal of Defendant The KB Group and is a promoter.

10.
The KB Group, is on information and belief, an entity with its principal place of
business in New York and is a promoter.

11.
Unison Entertainment Enterprises, is an entity with its principal place of business
in Ontario, Canada and is a promoter.

12.
RMG Real Music Group, Inc., is an entity with its principal place of business in
Ontario, Canada and is a promoter.

13.
Thomas Tripodi, is on information and belief an individual residing in Ontario,
Canada and the principal of Defendant The Real Music Group Inc. and is a promoter.
14.
Julz Media, is an entity with its principal place of business located in Ontario,
Canada.
15.
Julius Ossum, is an individual residing in Ontario, Canada.
16.
Julz Media and Julius Ossum are the registered owners of the website:
www.oneloveniagara.com.
17.
Art Dukes is, on information and belief, an individual residing in New York and
is a promoter.
18.
Visual Rhodes, Inc., is an entity with its principal place of business located in
Ontario, Canada and is a promoter.

19.
Ticketbreak Ltd. is an entity with its principal place of business in Ontario,
Canada and is the entity that sells tickets to the concert the subject of this lawsuit.
20.
MapleCore, Ltd. is an entity with its principal place of business in Ontario,
Canada.
21.
TicketBreak Ltd. is a division of MapleCore, Ltd. and is an agent or
representative of MapleCore, Ltd. MapleCore, Ltd. holds itself out as the principal of
TicketBreak Ltd. and TicketBreak Ltd. holds itself out as an agent of MapleCore, Ltd.
22.
TicketBreak Ltd is an on-line admission ticket agency that is used by artists and
their promoters to sell tickets to their fans and followers directly.

23.
TicketBreak, Ltd. registered a United States Trademark for the service make
TICKETBREAK on June 11, 2011 and maintains an active United States Trademark
under the Registration Number: 4220283 and Serial Number: 85335356.
24.
The TicketBreak.com website is an interactive website that is accessible by
Illinois residents.
25.
Illinois residents have purchased tickets and can purchase tickets to events
through the Ticketbreak.com website.

26.
There are at least approximately 60 subscribers to Ticketbreak.coms website who
are Illinois residents.

27.
Ticketbreak.com website is accessible by Illinois residents and the website
provides a North American phone number and not a phone number for Canadians only.
28.
When a user of the Ticketbreak.com website clicks on the Sell Tickets button,
the user is routed to MapleCore, Ltd.s website www.maplecore.com wherein

MapleCore, Ltd. explains that through TicketBreak, MapleCore offers a variety of
services related ticket sales for event producers, venue owners and performers. The
TicketBreak service allows artists to build a transactional relationship with their fan base
of their own website with custom-made tools that allows the artists to direct their
followers to the TicketBreak website to purchase tickets.
29.
Artists and promoters that use the TicketBreak service have followers who are
Illinois residents.
30.
MapleCore, Ltd and TicketBreak, Ltd. use the Internet to market, promote,
publicize and sell their music related products and tickets.

31.
MapleCore, Ltd and TicketBreak Ltd. have social media accounts including, but
not limited to, Facebook and Twitter wherein people from all over the world, including
Illinois, follow them.
32.
MapleCore Ltd. and TicketBreak Ltd have engaged in advertising, marketing
and/or solicitation activities directed at Illinois residents, in that they:

a. Have subscribed users that are Illinois residents;
b. Operate interactive websites that are accessible by Illinois residents and
that Illinois residents have, in fact, used to purchase and sell tickets and/or
merchandise;
c. Use social media like Facebook and/or Twitter to promote their services
and goods, including to Illinois residents who follow them;
d. Grant event producers, venue owners and performers, some of whom are
Illinois Residents, the ability to target their own fan base and direct those
individuals, some of whom are Illinois residents, to purchase goods and/or
tickets from MapleCore Ltd and/or TicketBreak Ltd;
e. In January 2014, Ticketbreak, Ltd. sent employees and/or agents to Illinois
to attend a music and/or entertainment industry networking conference;
f. Ticketbreak has sold tickets to Illinois residents; and
g. Plaintiff is informed and believes that Illinois residents were targeted by

MapleCore and Ticketbreak in connection with One Love Order at the
Border either though MapleCore and Ticketbreak directly or through
MapleCore and Ticketbreak promoters.
33.
The Ticketbreak service and Ticketbreak.com has been marketed by Illinois-based
acts and promoters to Illinois resident fans of said Illinois-based acts and promoters. The
point of the TicketBreak service to put MapleCore Ltd and TicketBreak Ltd on the
forefront of artist-to-fan transactions. As a result, MapleCore, Ltd and TicketBreak, Ltd
have marketed to artists and fans that are Illinois residents.
34.
For instance, on or about September 17, 2008, TicketBreak, Ltd. through one of
their promoter users, marketed an event in Chicago wherein fans would be brought in a
bus from Toronto to Chicago; provided with one (1) ticket to a UFC 90; a hotel in
Chicago for two days; and after party tickets.
35.
By way of further example, the performing artists known as DJ Heather and
Birds of Chicago are residents of Chicago, Illinois, and have contracted with
MapleCore Ltd and/or TicketBreak Ltd to sell their tickets through Ticketbreak.com
when promoting their live performances.
36.
Plaintiff is informed and believes that MapleCores business model by way of
TicketBreaks services is that MapleCore and/or TicketBreak share in the ticket price
and/or get a commission for every ticket sold by the use of the TicketBreak service.
37.
MapleCore, Ltd. has sold music-related merchandise in Illinois and Illinois
residents can purchase merchandise from MapleCore, Ltd. through its websites, including
those of its divisions, including but not limited to MapleMusic.com
38.
MapleCore, Ltd. also owns and operates a division known as Fontana North
Distribution, providing full marketing, promotional and publicity support, a nationally

dedicated sales force and access to the U.S. marketplace. Through this distribution
division, MapleCore, Ltd. has contracted with Alligator Records and Victory Records,
both Chicago, Illinois-based independent record labels from which MapleCore, Ltd.
distributes music and collects an income from such distribution.
39.
Plaintiff is informed and believes that Alligator Records and/or Victory Records
and/or the artists and/or their promoters have marketed the TicketBreak service to in
Illinois and/or to Illinois residents.
40.
MapleCore, Ltd. is an entertainment company with multiple divisions including
the e-commerce site MapleMusic.com, three record labels MapleMusic Recordings, Open
Road Recordings, and Pheromone Recordings, distribution arm Fontana North, and live
ticket services TicketBreak and Fan Experience.
41.
R. Kelly is from Chicago, Illinois and as a result, large concentration of R. Kelly
fans reside in Illinois. Chicago, Illinois is only approximately 8 hours driving distance
from Niagara Falls, where the Concert was held. By marketing the Concert over the
internet and through social media sources and making tickets available for purchase by
Illinois residence, Defendants intended to market to Chicago, Illinois where a large
concentration of R. Kellys fans reside.
Indianapolis Colts, Inc. v. Metropolitan
Baltimore Football Club Ltd. Pship, 34 F.3d 410, 412 (7th Cir. 1994).
42.
G98.7 FM (CKFG), an entity with its principal place of business located in
Ontario, Canada and is a radio station that is promoting the concert the subject of this
lawsuit.
43.
The Niagara Parks Commission, is an agency of the government of Ontario,
Canada.
44.
The Niagara Parks Commission (Niagara) licensed the Concert space to
Defendant RMG Real Music Group Inc. (RMG) for a three (3) day venue fee of
$45,000.00 or 18% of ticket sales, whichever is greater, pursuant to an April 4, 2014
License Agreement.
45.
Pursuant to the License Agreement, Niagara required that Defendant RMG accept
United States of America funds in the amount of $1.00 as an exchange rate.

46.
The Concert was specifically marketed to both Canadian and United States
residents. In fact, even the name One Love Order at the Border indicates that both
Canadians and Americans on both sides of the border were being targeted by Defendants,
including, but not limited to Niagara. Moreover, the Twitter marketing promoting the
Concert clearly targeted Americans in stating You need no visa at the border, because
there will be #oneloveOrder.
47.
Niagara posted advertisements regarding the Concert on its tourism website and
flyers.
48.
Niagara routinely engages in the commercial activity with the United States,
including marketing tourism of Niagara Falls to United States citizens, including selling
tickets to the Canadian Falls to Americans over Niagaras website. This Concert in
particular was marketed to American citizens and Defendant RMG was directed to accept
United States currency. Thus, Niagara fits into the 28.U.S.C. 1605(a)(2) exception of 28
U.S.C. 1330.
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49.
In addition, Plaintiffs action seeks money damages against Niagara for damage to
Plaintiffs property, namely his publicity rights to his name and likeness and his
tradename rights taken by the tortious act of trademark infringement and violations of the
Illinois Right to Publicity and thus, Niagara fits into the 28 U.S.C. 1605(a)(5) exception
of 28 U.S.C. 1330.
50.
Moreover, Niagara had approval rights for any advertisement related to the
Concert and that used Niagaras logo.
Niagara authorized the use of its logo in
connection with the unauthorized use of Plaintiffs name, likeness and tradename. See
Exhibit D. See 9.2.2 of the April 4, 2014 License Agreement, Exhibit J.
51.
Plaintiff is informed and believes that Defendants were and are working in
conjunction with respect to the use of publicity rights and trademarks owned by Plaintiff.
All of the Defendants have engaged in deeds, acts, or conduct in connection with the use
of trademark and publicity rights owned by Plaintiff in the United States and in the state
of Illinois through one or more of their agents, employees, representatives, and/or joint
venturers.
52.
At all times herein mentioned, all Defendants, both individually and collectively,
are and were agents and/or joint venturers of each other, and in doing the acts alleged
herein were acting within the course and scope of such agency or joint venture.
53.
Each Defendant had actual and/or constructive knowledge of the acts of the other
defendant(s) as described herein, and ratified, approved, joined in, acquiesced in, and/or
authorized the breaching and/or infringing acts of the other, and/or retained the benefits
of said breaching and/or infringing acts.
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54.
As a result, each and every defendant should be held jointly and severally liable
for the actions and/or omissions complained of herein.

FACTS
55.
Defendants are promoters and/or owners of a certain music festival known as
One Love Order at the Border, Niagara Falls, Canada (hereinafter the Concert) which
is scheduled to be held on July 4th-6th 2014.
56.
Defendants solicited Plaintiff Kelly to perform at the Concert and the
representatives for Defendants and Plaintiff Kelly engaged in negotiations for a period of
approximately four (4) weeks.
57.
On or about June 19, 2014, the parties finally reached an oral agreement regarding
the material terms of Plaintiff Kellys performance: namely that Defendant promoters and
owners of the Concert would pay Plaintiff Kelly a performance fee in the amount of
$200,000.00 (Two Hundred Thousand U.S. Dollars) for a 60 minute performance and a
30 minute meet and greet on either July 5th or 6th 2014.
58.
On June 20, 2014, Defendants, through The KB Group, sent Plaintiff Kelly a
written offer which included the material terms under which the parties had already
agreed to in principal: Plaintiff Kelly would be paid a performance fee in the amount of
$200,000.00 (Two Hundred Thousand U.S. Dollars) for a 60 minute performance and a
30 minute meet and greet on either July 5th or 6th 2014. See June 20, 2014 Written Offer,
attached as Exhibit A.
59.
In furtherance of the offer, Defendant Visual Rhodes, Inc. wired payment in the
amount of $99,000.00 (Ninety Nine Thousand U.S. Dollars) to the account of Defendant
co-promoter, Art Dukes to be tendered to Plaintiff Kelly upon acceptance of the offer.
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60.
On June 23, 2014 at 10:46 a.m., Plaintiff Kelly, through his authorized agent,
accepted the written offer for $200,000.00 with a long form agreement addressing
additional customary terms and riders. See Written Acceptance, attached as Exhibit B.
61.
Later on June 23, 2013, despite Plaintiff Kellys unequivocal acceptance of the
Offer, Defendant Visual Rhodes, Inc. informed Plaintiff Kelly that it and the other
Defendants did not intend to honor their agreement with Plaintiff Kelly and requested
that the funds held by Art Duke be returned to Defendant Visual Rhodes, Inc.
62.
Despite the fact that Defendants and Plaintiff Kelly had not reached an agreement
as to material terms of the engagement until on or about June 19, 2014, Defendants
nevertheless began promoting the Concert by advertising that R. Kelly would be
performing and used Plaintiff Kellys stage name and likeness in promoting the Concert.
63.
For instance, on June 9, 2014, Defendants posted an advertisement on its
Facebook page advertising the Concert which prominently featured Plaintiff Kelly as a
headlining performer and directed consumers to purchase tickets from Defendant
Ticketbreak Ltd., a division of Defendant MapleCore, Ltd.
See, June 9, 2014
Advertisement, attached as Exhibit C.

64.
Moreover, Defendants placed the same advertisement with the Niagara Falls
Tourism website. See, Niagara Falls Tourism Page, attached as Exhibit D.

65.
On June 16, 2014, TicketBreak, Ltd on its own behalf and as agent for Defendants
MapleCore, and remaining Defendants sent out an email promoting the Concert with R.
Kellys name and tradename. Plaintiff did not authorize the June 16, 2014 email.
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66.
On June 18th and 19th 2014, Defendants posted tweets on Twitter, once again
advertising the Plaintiff Kelly would be performing at the Concert and embedded images
of Plaintiff Kelly in the Tweets. See June 18th and 19th Tweets, attached as Exhibit E.
67.
On June 19, 2014, Defendants issued a press release advertising that Plaintiff
Kelly would be headlining the Concert and One876Entertainment.com directed

consumers to go to www.oneloveniagara.com for tickets. See June 19, 2014
Advertisement, attached as Exhibit F.
68.
On June 18th and 20th , 2014, Defendants, on their One Love Niagara Facebook
page once again advertised that Plaintiff Kelly would be headlining the Concert. See
June 18th and 20th, 2014, Facebook Postings, attached as Exhibit G.
69.
On June 25, 2014, TicketBreak, Ltd on its own behalf and as agent for Defendant
MapleCore, Ltd and remaining Defendants sent out an email to Concert ticket purchasers
stating that Plaintiff would not be performing at the Concert.
70.
On information and belief, the June 25, 2014 email contained false information
relating to the reason that Plaintiff would not be performing at the Concert.
71.
TicketBreak, Ltd on its own behalf and as agent for MapleCore, Ltd sold
approximately 600 tickets to the concert and refunded more than 200 of those tickets with
it informed Plaintiffs fans that he would not be performing at the Concert.
72.
As of July 2, 2014, Defendants continue to advertise on Defendant G98.7
(CKFG)s website that Plaintiff Kelly is headlining the Concert and directs consumers to
call Defendant Ticketbreak Ltd.s phone number to purchase tickets or to go to the
www.oneloveniagara.com website to purchase tickets, which in turn directs consumers to
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purchase tickets through Defendant Ticketbreak Ltd.s website Ticketbreak.com. See

G98.7s Advertisement, attached as Exhibit H.
73.
Plaintiff Kelly forewent other lucrative engagements in order to reserve his
professional availability for this Concert.

74.
Plaintiff Kelly incurred expenses in preparing to be present for this Concert.
75.
As of the very day the Concert was to begin, Defendants continue to use Plaintiff
Kellys name and likeness in connection with advertising their Concert.

76.
Plaintiff Kelly is the owner of the United States registered tradename R. Kelly
as it related to entertainment services in the nature of live musical performances on the

principal register under registration number 2638246. See Status Search Printout from
tsdr.uspto.gov, attached as Exhibit I.
77.
To date, Plaintiff Kelly has not licensed his tradename to any of the Defendants
for use in advertising their Concert.

78.
On information and belief, Defendants have misrepresented to Plaintiffs fans and
others the reason(s) why Plaintiff Kelly did not perform at the Concert. Thereby further
damaging Plaintiffs tradename, goodwill and reputation.
COUNT I
BREACH OF CONTRACT AGAINST KIRK BURROWES; THE KB GROUP;
UNISON ENTERTAINMENT ENTERPRISES; RMG REAL MUSIC GROUP,
INC.; THOMAS TRIPODI; ART DUKES; AND VISUAL RHODES, INC.
79.
Plaintiff realleges and incorporates by reference Paragraphs 1 through 78 of this
First Amended Complaint, as if fully alleged herein.

80.
As described above, the June 20, 2014 Written Offer offered by Defendants KIRK
BURROWES; THE KB GROUP; UNISON ENTERTAINMENT ENTERPRISES; RMG

REAL MUSIC GROUP, INC.; THOMAS TRIPODI; ART DUKES; AND VISUAL
15
RHODES, INC. (Count I Defendants) and accepted by Plaintiff Kelly on June 23, 2014
constitutes a valid contract.
81.
Count I Defendants sending of the June 20, 2014 Written Offer to Plaintiff was an
offer, and Plaintiff accepted this offer written acceptance on June 23, 2014 forming the
Performance Agreement.
Contract Formation: Consideration
82.
The Performance Agreement is supported by consideration in the form of an
exchange of mutual promises. Plaintiff agreed to perform for 60 minutes and be available
for a meet and greet for an addition 30 minutes. In exchange, Count I Defendants
promised to pay Plaintiff $200,000.00.
83.
In addition or in the alternative, the Performance Agreement is supported by
further consideration in the form of each party foregoing legal obligations and rights.
Plaintiff forewent booking alternative performances. Defendants advertised that Plaintiff
Kelly would be headlining their Concert.
Defendants Breach of Express Terms
84.
Rather than executing a long form agreement in good faith, after Plaintiff Kelly
accepted Count I Defendants material terms, Count I Defendants informed Plaintiff that
they would not honor the Performance Agreement, thereby breaching the agreement.
Defendants Breach of Implied Contract Terms
85.
The Performance Agreement, like all contracts entered into in Illinois, contained
an implied duty of good faith and fair dealing. Count I Defendants had a duty to perform
its obligations under the Performance Agreement consistent with its duty of good faith
and fair dealing and Count I Defendants breached the same by unilaterally refusing to
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honor the same while continuing to use the goodwill and commercial value of Plaintiff
Kelly to advertise the Concert and entice consumers to purchase tickets.
Causation and Damages
86.
As an actual and proximate result of Count I Defendants breaches of these
express and implied contractual terms described herein, Plaintiff Kelly has suffered harm
and is threatened with additional harm. Plaintiff has been damaged insofar as he is being
denied his performance fee of $200,000.00, he forewent other performance opportunities
to be present for Count I Defendants Concert; moreover his reputation has been
damaged in that his fans are now expecting him to perform and have undoubtedly
purchased tickets to see him perform only to be disappointed to find out that he will not
be performing, through no fault of his own. Moreover, he incurred expenses in preparing
to be present at Count I Defendants event, among others to be shown at trial.
87.
Plaintiff has attempted to mitigate his damages in that he has sought replacement
performances, but given the late notice and Fourth of July holiday weekend, Plaintiff has
not been successful in booking an alternative performance.
Specific Performance
88.
As a result, monetary damages may be insufficient to remedy Plaintiffs
reputational damages and Count I Defendants should be required to specifically perform

under the terms of the Performance Agreement.
89.
In the alternative, if the Court determines that an award of damages will be a
sufficient remedy, Plaintiff seeks damages for Count I Defendants breach of contract to
the maximum extent allowed by law, and, in any case, interest, costs, and attorneys fees
in an amount to be determined at trial.
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COUNT II
FALSE ENDORSEMENT
(SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. 1125 (A))
AGAINST ALL DEFENDANTS
90.
First Amended Complaint, as if fully alleged herein.

91.
Defendants, by their unauthorized appropriation and use of Plaintiffs tradename,
R. Kelly, have engaged, and are continuing to engage, in acts of wrongful deception of
the purchasing public, wrongful designation as to the source and sponsorship of goods
and services, wrongful deprivation of Plaintiffs good name and reputation, and the
wrongful deprivation of Plaintiff's right to public recognition and credit as owner of the
tradename R. Kelly.
92.
Plaintiff's action concerning Defendants trademark infringement and false
endorsement is related to Plaintiffs breach of contract action since both actions are based
on the same operative facts.
93.
Since at least on or about May 27, 2014 to the date of filing the initial complaint,
Defendants have marketed their concert by advertising that R. Kelly will be performing
at the Concert, without Plaintiff Kellys permission and without intending to actually pay
Plaintiff Kelly to perform at the Concert as previously agreed by Count I Defendants. As
a result, there is consumer confusion in that Defendants have advertised that R. Kelly
will be performing, when Plaintiff Kelly in fact, will not be performing and never granted
Defendants the right to use his tradename in connection with marketing their Concert.
Such conduct constitutes trademark infringement and false endorsement under the
Section 43(a) of the Lanham Act, 15 U.S.C. 1125 (a) Lanham Act.
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94.
Defendants, by their intentional and unauthorized appropriation and use of
Plaintiffs image and likeness and the R. Kelly trademark have engaged, and are
continuing to engage, in acts of the wrongful deception of the purchasing public,
including by falsely representing that Plaintiff authorized the marketing and sale of
tickets, wrongful designation as to the source and sponsorship of goods, along with
wrongful deprivation of Plaintiffs good name and reputation.
95.
These acts of false endorsement against Plaintiff have caused Plaintiff damages in
that Plaintiffs fans have purchased tickets to see Plaintiff Kelly perform under the
tradename R. Kelly, when Plantiff Kelly will not be performing due solely to Count I
Defendants actions. As a result, the R. Kelly fans will be disappointed, tarnishing the
reputation of the trade name.
96.
Defendants use of the image and likeness of Plaintiff and the R. Kelly
trademark constitutes a false designation or origin, false or misleading description of fact,

or false or misleading representation of fact, which is likely to cause confusion, mistake,
or to deceive as to the endorsement, affiliation, connection, or association of Defendants
with Plaintiff, including as to the sponsorship or approval of Defendants activities, in
violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
97.
Based on the scope and nature of the Defendants use of Plaintiffs image and
likeness, as well as the R. Kelly trademark, the potential for likelihood of confusion is
great.
98.
Defendants unauthorized and infringing activities as described herein has been
knowing, intentional, and malicious, and its misuses were carried out with the intent to
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trade upon the goodwill and reputation of Plaintiff and/or to unfairly compete with the
same.
COUNT III
INFRINGEMENT OF THE ILLINOIS RIGHT OF PUBLICITY ACT
99.
Complaint, as if fully alleged herein.

100.
765 ILCS 1075/30 of The Illinois Right of Publicity Act provides in pertinent
part: [a] person may not use an individuals identity for commercial purposes during
the individuals lifetime without having obtained previous written consent from the
appropriate person or persons specified in Section 20 of this Act or their authorized
representative.
101.
765 ILCS 1075/40, provides in pertinent part:
(a) A person who violates Section 30 of this Act may be

liable for either of the following, whichever is greater:
(1) actual damages, profits derived from the
unauthorized use, or both; or
(2) $1,000.
(b) Punitive damages may be awarded against a person
found to have willfully violated Section 30 of this Act.
102.
765 ILCS 1075/50 permits this Court to issue injunctive relief, including such
temporary restraining orders, preliminary injunctions, and permanent injunctions as may

be appropriate under this Act.
103.
765 ILCS 1075/55 permits this Court to award to the prevailing party reasonable
attorney's fees, costs, and expenses relating to an action under this Act.
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104.
Defendants did not and do not have a written consent to use Plaintiffs name
and/or likeness in connection with offering for sale tickets to their Concert and as a result,
Defendants willfully violated 765 ILCS 1075/30 and Plaintiff is entitled to actual
damages, punitive damages and attorneys fees and costs for bringing this claim.
105.
Plaintiffs action concerning Defendants violation of Plaintiffs Right of
Publicity is related to Plaintiffs breach of contract action since both actions are based on
the same operative facts.
COUNT IV
STATE AND COMMON LAW
UNFAIR COMPETITION AND DECEPTIVE TRADE PRACTICES
Illinois Uniform Deceptive Trade Practices Act (UDTPA), 815 ILCS 510/1
106.
Plaintiff repeats and realleges each and every allegation of paragraphs 1 through
78 as though fully set forth herein.

107.
As a result of its unauthorized use of the mark R. Kelly in connection with the
manufacture, advertising, and sale of Concert tickets, Defendants are likely to cause
confusion or to cause mistake or to deceive the public, in violation of the statutory and
common law of various States, including the State of Illinois and 815 ILCS 510/1.
108.
Defendants are likely to mislead prospective purchasers and retailers as to an
affiliation, connection, or association of Defendants with Plaintiffs R. Kelly brand, or as

to the origin, sponsorship, or approval by Plaintiff of Defendants use of the R. Kelly
brand, causing purchasers to rely thereon, in violation of the statutory and common law
of various states, including the State of Illinois and 815 ILCS 510/1.
109.
Defendants acts were undertaken in bad faith and in a deliberate attempt to
capitalize on the goodwill and reputation of Plaintiff and Plaintiffs R. Kelly trademark
21
for liver performances, and to mislead the public into believing that there is a connection,
affiliation, or association between Defendants Concert and Plaintiffs R. Kelly
tradename.
110.
By reason of Defendants; acts, Plaintiff has suffered and will continue to suffer
damage and injury to its business, reputation, and goodwill, and will sustain loss of
revenues and profits.
111.
Unless enjoined by this Court, Defendant will continue to perform the acts
complained of herein and cause said damages and injury, all to the immediate and
irreparable harm of Plaintiff, for which Plaintiff has no adequate remedy at law.
WHEREFORE, Plaintiff Kelly, by and through his attorney, Law Office of Heather L.
Blaise, P.C., request judgment against the Defendants, jointly and severally, for:
1. Breach of contract damages in the amount of $200,000.00;
2. Compensatory damages in the form of damage to reputation;
3. Compensatory damages for those expenses Plaintiff incurred in preparing
to be present to perform at the Concert;
4. In the alternative, an order requiring Defendants to specifically perform
the Performance Agreement;
5. An accounting for, and payment to the Plaintiff as actual damages, all the
following sums:
a. All gains, profits and advantages derived by Defendants as a result
of their unfair trade practices; unfair competition; and false
endorsement;
22
b. All gains, profits and advantages derived by Defendants as a result

of their infringement of Plaintiffs tradename and name and likeness;
6. In the alternative, statutory damages for each instance of the violation of
his publicity rights;
7. Additional damages for an amount determined at trial for false
endorsement;
8. Punitive damages for willful violation of 765 ILCS 1075/30;
9. Reasonable attorney fees and costs;
10. The costs of this action including, but not limited to, expert fees;
11. Enjoining Defendants from using Plaintiffs name and likeness and/or
tradename;
12. Prejudgment interest; and
13. Such other and further relief as the court deems proper.
JURY TRIAL DEMANDED
Plaintiff demands a trial by jury on all issues so triable.
Respectfully submitted,
/s/ Heather L. Blaise

One of Plaintiffs attorneys
Dated: December 3, 2014

Heather L. Blaise
20 N. Clark St., Suite 3100
Chicago, Illinois 60602
312-448-6602
ARDC No. 6298241
23

R. Kelly v. Burrowes - First Amended Complaint PDF

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Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 1 of 23 PageID #:176

IN THE UNITED STATES DISTRICT COURT

Case No.: 1:14-cv-06115

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 2 of 23 PageID #:177

FIRST AMENDED COMPLAINT

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 3 of 23 PageID #:178

JURISDICTION, VENUE AND PARTIES

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 4 of 23 PageID #:179

claims under 28 U.S.C. 1367.

Venue is proper in this Judicial district pursuant to 28 U.S.C. 1391(b)-(d) and

Plaintiff Robert S. Kelly is the performing artist known as R. Kelly and is an

as it relates to entertainment services in the nature of live musical performances.

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 5 of 23 PageID #:180

Kirk Burrowes, is on information and belief an individual residing in New York

and the principal of Defendant The KB Group and is a promoter.

business in New York and is a promoter.

Unison Entertainment Enterprises, is an entity with its principal place of business

in Ontario, Canada and is a promoter.

Ontario, Canada and is a promoter.

Thomas Tripodi, is on information and belief an individual residing in Ontario,

Julius Ossum, is an individual residing in Ontario, Canada.

Ontario, Canada and is a promoter.

Ticketbreak Ltd. is an entity with its principal place of business in Ontario,

MapleCore, Ltd. is an entity with its principal place of business in Ontario,

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 6 of 23 PageID #:181

TicketBreak Ltd. is a division of MapleCore, Ltd. and is an agent or

their promoters to sell tickets to their fans and followers directly.

The TicketBreak.com website is an interactive website that is accessible by

through the Ticketbreak.com website.

There are at least approximately 60 subscribers to Ticketbreak.coms website who

are Illinois residents.

Ticketbreak.com website is accessible by Illinois residents and the website

the user is routed to MapleCore, Ltd.s website www.maplecore.com wherein

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 7 of 23 PageID #:182

publicize and sell their music related products and tickets.

MapleCore Ltd. and TicketBreak Ltd have engaged in advertising, marketing

and/or solicitation activities directed at Illinois residents, in that they:

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 8 of 23 PageID #:183

g. Plaintiff is informed and believes that Illinois residents were targeted by

The Ticketbreak service and Ticketbreak.com has been marketed by Illinois-based

By way of further example, the performing artists known as DJ Heather and

Plaintiff is informed and believes that MapleCores business model by way of

MapleCore, Ltd. has sold music-related merchandise in Illinois and Illinois

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 9 of 23 PageID #:184

Distribution, providing full marketing, promotional and publicity support, a nationally

MapleCore, Ltd. is an entertainment company with multiple divisions including

R. Kelly is from Chicago, Illinois and as a result, large concentration of R. Kelly

Indianapolis Colts, Inc. v. Metropolitan

G98.7 FM (CKFG), an entity with its principal place of business located in

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 10 of 23 PageID #:185

The Niagara Parks Commission, is an agency of the government of Ontario,

The Niagara Parks Commission (Niagara) licensed the Concert space to

United States of America funds in the amount of $1.00 as an exchange rate.

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 11 of 23 PageID #:186

Concert and that used Niagaras logo.

Niagara authorized the use of its logo in

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 12 of 23 PageID #:187

for the actions and/or omissions complained of herein.

Defendants are promoters and/or owners of a certain music festival known as

Defendants solicited Plaintiff Kelly to perform at the Concert and the

Case: 1:14-cv-06115 Document #: 33 Filed: 12/03/14 Page 13 of 23 PageID #:188

For instance, on June 9, 2014, Defendants posted an advertisement on its

See, June 9, 2014