IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION
THE PROCTER & GAMBLE COMPANY
and THE PROCTER & GAMBLE
DISTRIBUTING COMPANY,
Plaintiffs,
v.
RANDY L. HAUGEN, individually,
and d/b/a FREEDOM ASSOCIATES,
INC. and FREEDOM TOOLS INCOR-
PORATED; and JOHN DOES 1-10,
Defendants.
COMPLAINT FOR INJUNCTIVE RELIEF AND ACTUAL DAMAGES
(Jury Trial Demanded)
Civil No. 1:95CV 0094W
The Procter & Gamble Company and The Procter & Gamble Distributing Company, for their complaint in this action, state as follows:
I. THE PARTIES
1. The Procter & Gamble Company (hereinafter sometimes referred to as "P&G") is an Ohio corporation with its principal place of business in Cincinnati, Ohio, and P&G is therefore a citizen of Ohio. P&G and its subsidiary and affiliated companies manufacture consumer products and sell them in Utah and throughout the United States. These products include TIDE laundry detergent, CASCADE dishwashing detergent, FOLGER coffee, MR. CLEAN household cleaning products, and many other food, laundry, cleaning and personal care products.
2. The Procter & Gamble Distributing Company (hereinafter sometimes referred to as "P&G Distributing") is an Ohio corporation with its principal place of business in Cincinnati, Ohio, and P&G Distributing is therefore a citizen of Ohio. P&G Distributing sells P&G products including those identified in Paragraph 1 to retailers and distributors throughout the United States, including the State of Utah. P&G Distributing is a subsidiary of P&G.
3. Defendant Randy L. Haugen is a citizen of the State of Utah and a "Diamond" level distributor of Amway consumer products in the distribution chain of The Amway Corporation. Defendant Haugen is a past co-chairman of the Business Operations Committee of the Amway Distributors Association Council (hereinafter "ADAC") Thirty Amway distributors serve on the ADAC. Fifteen of the thirty distributors on the ADAC are appointed by The Amway Corporation. The "mission" of the ADAC is to "advise and consult" with The Amway Corporation "on all aspects of the business and to take an active role in shaping Amway's future." (See Exhibit A.) As announced in The Amway Corporation's May 1995 AMAGRAM publication, a copy of which is attached as Exhibit B, and made a part of this Complaint, Defendant Haugen is presently and at the time of the actions giving rise to this Complaint a member of the Executive Committee of the ADAC. The Executive Committee establishes goals and objectives for the Business Operations and the Legal and Ethics Committees of the ADAC. Defendant Haugen also conducts business as Freedom Associates, Inc. and Freedom Tools Incorporated, both of which are Utah corporations involving or related to the distribution of Amway products.
4. Defendants John Does 1-10, whose complete identities and addresses are unknown at this time, upon information and belief, are individual distributors and/or businesses involved in the sale and distribution of Amway consumer products.
5. The Amway Corporation is a Michigan corporation with its principal place of business in Ada, Michigan. Amway, through its chain of distributors, including the Defendants, sells and distributes nationwide consumer products such as SA8 PLUS PREMIUM laundry detergent, CRYSTAL BRIGHT dishwashing detergent, EXQUISITE and NINE TO FIVE coffee products, DURISHINE household cleaning product and many other food, laundry, cleaning and personal care products. These Amway products distributed by Defendants compete with P&G's products in the consumer market nationwide. Furthermore, Amway specifically advertises against P&G's products in its publications, such as AMAGRAM and the Amway Product Demonstrations Guide. Copies of such advertisements are attached as Exhibit C and made a part of this Complaint.
6. The Amway Corporation provides for its distributors communication systems known as "Amvox Network Voice Messaging" and "Amvox by Voice-Tel" which use the telephone lines of interstate commerce. Specifically, Amway advertises and provides for cash and other valuable consideration subscriptions to Amway's Amvox communication systems for its distributors. Copies of Amway's Amvox advertisement and Amway's Amvox subscription order form are attached as Exhibit D and made a part of this Complaint.
II. JURISDICTION AND VENUE
7. The matter in controversy exceeds, exclusive of interest and costs, the sum of Fifty Thousand ($50,000.00) Dollars.
8. The jurisdiction of this Court is based upon a federal question and diversity of citizenship pursuant to 28 U.S.C. Sections 1331 and 1332.
9. Venue is proper in the United States District Court for the District of Utah under 28 U.S.C. Section 1391 because the Defendants reside in the State of Utah and/or committed a substantial part of the acts giving rise to the claims in this action within this judicial district.
III. FACTS APPLICABLE TO ALL CLAIMS
10. P&G was formed in 1837. In 1882 P&G registered in the United States Patent and Trademark Office a trademark called the "Moon and Stars" design. Successive minor variations of this design were also federally registered. A copy of one such registration for P&G's "Moon and Stars" trademark, United States Registration No. 298059, is attached as Exhibit E and made a part of this Complaint.
11. The "Moon and Stars" trademark is a corporate symbol under which P&G has conducted business throughout the United States for over a hundred years. This business has been based upon the principle of providing products of superior quality and value that best meet the needs of consumers.
12. In or about April and May 1995, Defendants, with actual knowledge of their falsity or with malicious and reckless disregard as to their truth or falsity, circulated and published in the States of Utah and Nevada, through the Amvox communication systems and through other media, completely false and defamatory written and oral statements. Both forms of defamatory expression disparaged Plaintiffs' products, business interests, reputation and goodwill. A transcript of certain such false and defamatory oral statements that were published through the Amvox communication system is attached as Exhibit F and made a part of this Complaint. The statements falsely and maliciously associate P&G and P&G Distributing with satanism and falsely and maliciously describe the "Moon and Stars" trademark as a satanic symbol. The statements also falsely and maliciously assert that the President of P&G appeared on a nationally televised talk show and discussed P&G's relationship to satanism and P&G's support for the church of satan. The statements further promote a boycott of P&G products which compete with the Amway products that Defendants promote and distribute for profit.
13. P&G Distributing and P&G and its subsidiaries and affiliates do not have and never have had any connection, relationship, or association whatsoever with satanism, devil worship or any church of satan. P&G representatives, executives and employees have never appeared on any television program or show asserting any connection with satanism or the church of satan.
14. Defendants, individually and in concert, have made the false, defamatory and product disparaging statements contained in Exhibit F to increase their economic gain, to enhance their Amway distributorship, and, to sell Amway products, all to the detriment of Plaintiffs.
15. The statements published and circulated by Defendants as set forth in Exhibit F contain vicious misrepresentations of fact and false statements which were known by Defendants to be false or were made maliciously and with reckless disregard as to their truth or falsity and which have caused harm and damage to Plaintiffs and their business.
16. Defendants' conduct and acts as alleged above have caused P&G and P&G Distributing irreparable injury and such conduct will continue to the irreparable harm of Plaintiffs unless enjoined by this Court.
COUNT ONE:
DEFAMATION PER SE
17. Plaintiffs incorporate as if fully restated herein their prior allegations in Paragraphs 1 through 16 of the Complaint.
18. Defendants knowingly and intentionally slandered, libeled and defamed Plaintiffs by publishing the false, malicious and non-privileged statements concerning Plaintiffs, their executives and employees, and products, which proximately caused harm and damages to Plaintiffs' reputation, prestige and standing as well as Plaintiffs' business and products.
COUNT TWO
COMMON LAW UNFAIR COMPETITION
19. Plaintiffs incorporate as if fully restated herein their prior allegations in Paragraphs 1 through 18 of the Complaint.
20. Defendants committed unfair competition and deceptive trade practices in violation of Utah common law which proximately caused harm and damage to Plaintiffs' business and products.
COUNT THREE
UTAH TRUTH IN ADVERTISING ACT
21. Plaintiffs incorporate as if fully restated herein their prior allegations in Paragraphs 1 through 20 of the Complaint.
22. Defendants violated the Utah Truth in Advertising Act, Utah Code Ann. 13-11a-1 through 13-11a-5 (1989 & Cum.Supp. 1992) which proximately caused harm and damage to Plaintiffs' business and products.
COUNT FOUR
SECTION 43(a) OF THE LANHAM ACT
23. Plaintiffs incorporate as if fully restated herein their prior allegations in Paragraphs 1 through 22 of the Complaint.
24. Defendants published the false and deceptive statements concerning Plaintiffs and their products in commerce, thereby committing false and deceptive trade practices in violation of Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125(a), which proximately caused harm and damage to Plaintiffs' business and products.
COUNT FIVE
TORTUOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
25. Plaintiffs incorporate as if fully restated herein their prior allegations in Paragraphs 1 through 24 of the Complaint.
26. Defendants have tortiously[sic] and intentionally interfered with Plaintiffs' business relationships and expectancies with consumers in Utah and Nevada.
IV. RELIEF
WHEREFORE, Plaintiffs pray for relief as follows:
a. judgment against Defendants jointly and severally for compensatory damages in excess of Fifty Thousand ($50,000.00) Dollars;
b. punitive damages in appropriate amount to deter Defendants and others from the conduct complained of;
c. attorneys' fees;
d. for an order permanently restraining Defendants and their agents, individually and jointly, from publishing or in any manner causing to be published or circulated the statements in Exhibit F or any similar false statements purporting to connect Plaintiffs or any of their subsidiaries or affiliated corporations and their products to satanism or devil worship or the church of satan; and
e. for such other and further relief to which ! Plaintiffs are entitled.
V. JURY DEMAND
Pursuant to Rule 38(b), Federal Rules of Civil Procedure, Plaintiffs demand trial by jury. DATED this 25th day of August, 1995.
Respectfully submitted,
CAMPBELL MAACK & SESSIONS
/s/TRACY H. FOWLER
WILLIAM H. CHRISTENSEN
ELIZABETH KING
One Utah Center, Thirteenth Floor
201 South Main Street
Salt Lake City, Utah 84111-2215
(801) 537-5555 telephone
and
THOMAS S. CALDER
JOHN E. JEVICKY
DINSMORE & SHOHL
1900 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
(513) 977-8200 telephone
OF COUNSEL:
Joseph P. Suarez, Esq.
The Procter & Gamble Company
Legal Division
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
(513) 983-4194 telephone
Attorneys for Plaintiffs The Proctor
& Gamble Company and The Procter &
Gamble Distributing Company
Plaintiffs' Addresses:
The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, Ohio 45202
The Procter & Gamble Distributing Company One Procter & Gamble Plaza Cincinnati, Ohio 45202
Defendants' Address:
Mr. Randy L. Haugen, Individually, and
d/b/a Freedom Associates, Inc. and
Freedom Tools Incorporated
2488 Bonneville Terrace
Ogden, Utah 84403
-------------------------------------
Exhibit F, transcript from Amvox communication system:
Thursday, 1:24 P.M.
Remote Message from Randy and Valorie Haugen
"This is a great message, listen to it."
Thursday, 12:17 A.M.
Remote Message from "This is Randy double Your numbers."
"Hello Randy, attached is a very interesting message. Love you. Bye, bye."
Wednesday, 11:38 P.M.
Remote Message from [name deleted]
"Randy, this is [name deleted] -- hey you may have already received a message like this, uh, before but, um, figured I'd send it to you just in case you haven't. It's, uh, pretty interesting. Anyway talk to you later. Love you man. Bye, bye."
Wednesday, 10:25 P.M.
Remote Message from [names deleted]
"Hey [name deleted], it's [name deleted].
I wanna run something by you real quick that I think you will find pretty interesting. Just talking to a guy the other night about this very subject and it just so happens that a guy brings information in and lays it on my desk this morning, so here it goes.
It says the president of Procter & Gamble appeared on the Phil Donahue Show on March 1, '95. He announced that due to the openness of our society, he was coming out of the closet about his association with the church of satan. He stated that a large portion of the profits from the Procter & Gamble products go to support his satanic church. When asked by Donahue if stating this on television would hurt his business, his reply was 'there are not enough Christians in the United States to make a difference.' And below it has a list of the Procter & Gamble products which I'll read:
Duncan Hines, Folgers, Gleem, Bold, Crisco, Jif, Bounce, Puritan, Always, Cascade, Secret, Attends Under Garments, Cheer, Sure, Oil of Olay, Joy, Head N Shoulders, Wondra, Comet, Pert, Camay, Dawn, Prell, Coast, Downy, Vidal Sassoon, Ivory, Gain, Luvs, Lava, Mr. Clean, Pampers, Safeguard, Oxydol, Pepto Bismol, Charmin, Spic N Span, Scope, Puffs, Tide, Crest, Zest, Top Job
It says if you are not sure about a product, look for the symbol of the ram's horn that will appear on each product beginning in April. The ram's horn will form the 666 which is known as satan's number. I'll tell you it really makes you count your blessings to have available to all of us a business that allows us to buy all the products that we want from our own shelf and I guess my real question is, if people aren't being loyal to themselves and buying from their own business, then whose business are they supporting and who are they buying from. Love you. Talk to you later. Bye."
