Anderson v. Baker, CIVIL ACTION NO. 4:14-CV-1211

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtMELINDA HARMON
PartiesWAYNE ANDERSON; dba VISIONWORLD ENTERTAINMENT, et al, Plaintiffs, v. HARVEY BAKER, et al, Defendants.
Docket NumberCIVIL ACTION NO. 4:14-CV-1211
Decision Date28 May 2014

HARVEY BAKER, et al, Defendants.



SIGNED: May 28, 2014


Pending before the Court is Original Complaint and Application for Injunctive Relief (Doc. 1) filed by Plaintiffs Wayne Anderson and Roxell Richards, individually and d/b/a Visionworld Entertainment ("Plaintiffs" or "Visionworld") against Defendants Harvey and Shannon Baker ("Defendants" or the "Bakers"). The complaint sets forth fourteen claims for relief, principally for fraudulent trademark registration, trademark infringement, trademark dilution, trade-dress infringement, copyright infringement, breach of contract, and tortious interference with contractual relations. (Id. ¶¶ 53-93). Plaintiffs seek permanent injunctive relief, declaratory relief, and damages. (Id. ¶ 105). Upon review and consideration of the application, response, and reply; the testimony and evidence presented at the three-day evidentiary hearing, and the applicable law, the Court grants, in part, Visionworld's application for preliminary injunction.

I. Background

Visionworld is a Texas-based entertainment consulting and management company that is owned and operated by Anderson and Richards. Harvey Baker and Shannon Baker are the parents and legal representatives of their fifteen-year-old daughter, Kaylah Baker. Kaylah

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aspires to become a professional singer and entertainer. She began performing in local pageants and competitions when she was six years old under the name "Kaylah Baker." (Doc 2 ¶ 10). In May 2013, Kaylah and Shannon met Anderson after Kaylah performed at an NBA All-Star event in Houston. The parties were introduced by Anderson's client, "Miss Mykie," the host of a popular show on the B.E.T. Network. After the meeting, Shannon contacted Anderson and solicited his services to "take Kaylah's career to another level." (Id. ¶ 9).

On May 25, 2013, the parties entered into an "exclusive management agreement" ("the Agreement"). (Exclusive Management Agreement, Pl.'s Ex. 2). The purpose of the agreement was "to promot[e] and enhance[] [Kaylah]'s career and to assist in all business transactions with associates and affiliates in regards to all aspects of entertainment such as music, television, and film." (Id. ¶ 1.01). Under the Agreement, Anderson was obligated to "oversee and manage [Kaylah's] business affairs in its entirety and to control the promotion and production of such said projects in music, television and film." (Id. ¶ 3.01). For her part, Kaylah agreed to perform at all bookings that Visionworld arranged, to perform music selected by Visionworld, and to attend all scheduled meetings and rehearsals. (Id. ¶ 3.02). In addition, Kaylah and her parents agreed to forward to Visionworld all inquiries and information regarding prospective bookings. (Id. ¶ 3.01). Her parents also agreed to provide an initial deposit of $2,000 for services to be rendered. (Id. ¶ 3.02). The Agreement gave Visionworld the right to "have full, exclusive and complete authority and discretion in the management and control of the business of the exclusive Agreement for the purposes herein stated and [to] make all decisions affecting the business of the Agreement in regards to [Kaylah] and will also consult with [Kaylah's] guardian." (Id. ¶ 5.01). The Agreement allocated 75% of all profits, losses, and expenses to Kaylah and 25% to

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Anderson. (Id. ¶¶ 4.01, 7). The term of the agreement was one year with an option to renew for a second one-year term. (Id. ¶¶ 1.02 -1.03).

Once the Agreement was signed, Visionworld began developing and promoting a brand and image for Kaylah. As an initial step, Visionworld contracted with stylist Ebony Tezeno to create a signature look and persona for Kaylah. Anderson requested that Shannon send him an email with Kaylah's full name and birthdate so that he could draft the management agreement. Shannon sent Anderson an email wherein she wrote Kaylah's full name as: Kaylah Sharvey Baker. (E-mail Correspondence Between Shannon and Anderson, Pl.'s Ex. 17). Anderson testified that after he received Shannon's email, he began researching variations of Kaylah's name to see if there were any potential conflicts with other performers in the entertainment industry. His research revealed that an artist was already performing under the name "Kaylah B," thereby creating a conflict with Kaylah's name. Tezeno testified that she suggested to Visionworld and the Bakers that Kaylah use the stage name Sharvé, excluding the "y" and adding an accent to her middle name, Sharvey.

Working in consultation with Visionworld, Tezeno created a distinctive and unique "flashback" look for Sharvé, a hybrid of 1980s and 1990s teen fashion. (E-mail Correspondence Between Tezeno and Visionworld, Pl.'s Ex. 3; Examples of the Sharvé Trademark and Trade Dress, Pl.'s Ex. 5; Photograph Depicting Sharvé Trade Dress, Pl.'s Ex. 6). Sharvé's "signature look" included a side-ponytail or hat and a heart-sign hand gesture. (Doc. 1 ¶ 29; Pl.'s Ex. 5). All parties testified that great care was taken to ensure that Sharvé's look was wholesome and age appropriate. Visionworld created a fan club for Sharvé, the "Sweetheartz," and set up a charitable foundation in her name, the "Sweetheart Foundation." (Pl.'s Ex. 3; Examples of the Sharvé Trademark and Trade Dress).

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Visionworld also contracted with a graphic designer who created various designs and logos incorporating the name Sharvé to be used for promotional goods and merchandise. (Pl.'s Ex. 3; Doc. 1 ¶ 19). In July 2013, Visionworld hired a web designer to create Sharvé's promotional website. Shannon Baker purchased the domain name for $25. (Domain Registration, Def.'s Ex. 5). In August 2013, Shannon gave Visionworld the passwords for the promotional social-media accounts that she had previously created for Kaylah, including Facebook, Instagram, Twitter, and Gmail, so that Visionworld could convert the accounts and manage them under the names Sharvé or iamSharvé. (E-mail Correspondence Between Shannon Baker and Wayne Anderson, Def.'s Ex. 2; Facebook Screenshot, Def.'s Ex. 4).

Over the next several months, Visionworld invested significant amounts of time and money in developing the Sharvé brand and mark. Kaylah received "vocal lessons, one-on-one and stage-performance coaching, make-up, and styling." (Doc. 1 ¶ 24). Visionworld also funded and coordinated photoshoots, videoshoots, marketing campaigns, concert appearances, and personal appearances for Sharvé. (Id. ¶ 24). Visionworld also contracted with some of its affiliates, including songwriters, producers, choreographers, and videographers, to record a single and music video of Sharvé entitled "What You Think I'm On?" ("What You Think I'm On?" Copyright Catalog Entry, Pl.'s Ex. 7; "What You Think I'm On?" Music Video; Pl.'s Ex. 21). Overall, Visionworld estimates that it invested approximately $100,000 in developing the Sharvé brand and mark. (Doc. 1 ¶ 32; Expense Reports, Pl.'s Ex. 15). The Bakers also invested approximately $20,000. (Doc. 1 ¶ 32; Receipts, Def.'s Ex. 3).

In late 2013, the relationship between Plaintiffs and the Bakers started to break down when the Bakers began questioning the allocation of the funds they invested and demanded an accounting. The parties, represented by counsel, held a meeting in February 2014 to discuss the

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accounting issues. (Doc. 1 ¶ 33-34). The parties also disagreed over the social-media accounts. Visionworld managed these accounts very closely and promptly deleted any photos posted by Kaylah or Shannon Baker that it found incongruous with the Sharvé mark and brand. (Doc. 1 ¶ 28). To prevent Visionworld from accessing the accounts, Shannon Baker changed all the passwords in February 2014. (Id. ¶ 33). Sometime in late 2013 or early 2014, Anderson informed Shannon Baker that after the termination of the contractual relationship, Kaylah would have no rights to the Sharvé name, mark, or any of the associated trade dress. The relationship continued to sour, and on March 3, 2014 Shannon Baker sent Anderson an email terminating the relationship. (E-mail Correspondence Between Shannon Baker and Wayne Anderson, Pl.'s Ex. 9). Thereafter, Shannon Baker contacted many of Plaintiffs' affiliates, including dancers and songwriters, in an effort to continue Kaylah's relationship with the affiliates. (Doc. 1 ¶ 45).

Shannon Baker continues to manage and promote Kaylah under the name Sharvé. Plaintiffs complain that the images appearing on Sharvé's social-media accounts in recent months are more sexualized and are inconsistent with the wholesome image of Sharvé that Visionworld created and marketed. (Recent Images of Sharvé, Pl.'s Ex. 19 & Pl.'s Ex. 24). Plaintiffs claim that they regularly receive calls and complaints from affiliates who believe that Visionworld is Sharvé's manager and are troubled by the new image that they believe Visionworld is creating for Sharvé. On March 4, 2014, Shannon Baker filed an application with the United States Patent and Trademark Office ("USPTO") to secure rights to the Sharvé mark. (Trademark Application, Pl.'s Ex. 11). On the application, Shannon Baker wrote that the owner of the mark is "Baker, Kaylah Sharvé aka Sharvé." (Id.). Shannon further stated that the first use of the mark was "at least as early as February 15, 2010" and...

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