Vivid Files Infringement Suit Over 'Vivid Cabaret Nightclub'

Jul 17, 2013 11:45 AM PST

PALM BAY, Fla. — Vivid Entertainment on Monday filed a trademark infringement and cybersquatting lawsuit against a Florida entrepreneur who allegedly markets the "Vivid Cabaret Nightclub" without permission from the adult entertainment brand.

Jose Baserva and his limited liability company, J&B, are accused of  using Vivid Entertainment's trademark illegally through VividCabaret.com and several FaceBook pages.

The lawsuit is a timely one, coming the same week Vivid Entertainment opened its first Vivid Cabaret. The new Vivid Cabaret Los Angeles club will be followed by another one in New York later this year.

The federal lawsuit said that operators of Vivid Cabaret in Palm Bay — Vivid LLC — entered into a nonmonetary settlement agreement in May over using Vivid Entertainment's trademarks, agreeing to cease using them.

Baserva and J&B sold the all of the assets of Vivid Cabaret Nightclub to Vivid LLC in 2011, the suit said.

According to the settlement agreement, club operators were "unaware that use of the mark in connection with the club violated Vivid's federally registered trademark" and agreed to discontinue use of it.

The accord included other covenants, as well, including agreements to not challenge Vivid Entertainment's trademark. In consideration, Vivid agreed it wouldn't seek damages to any claims.

But Baserva, according to the suit, is still marketing Vivid Cabaret Nightclub online.

"Despite the sale of Vivid Cabaret Nightclub to Vivid LLC, J&B is still using plaintiff’s trademark on the infringing website and, upon information and belief, commercially gaining from the continued advertisement and promotion of the infringing website and/or the infringing domain name," the suit said.

The suit also said defendants recently filed a trademark application for the mark "Vivid Cabaret" for adult entertainment suits.

Further, the suit said, the "defendants plan on opening and operating other adult entertainment nightclubs."

On VividCabaret.com, the site proclaims that Vivid Cabaret clubs are coming soon in Miami, Orlando and Tampa.

Some of the charges leveled against Baserva and J&B PB include liable for use of false designation of origin, cybersquatting, trademark infringement and deceptive and unfair practices and unfair competition under Florida statutes.

The suit seeks a permanent injunction enjoining defendants from using the "Vivid" and VividCabaret.com name, including "colorable imitation," online and offline; a transfer of VividCabaret.com to plaintiffs; a civil judgment; and attorneys fees.

"[Vivid Entertainment] has been damaged as a direct and proximate cause of defendants’ practices described above," the suit said. "Defendants are, thus, liable to plaintiff in an amount that adequately compensates it for practices, plaintiff’s commercial damages in lost sales and licensing fees, plus a civil penalty .... "

Vivid Entertainment attorney Paul Turner declined comment to XBIZ on Wednesday. Baserva was not able to be reached for comment.

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