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Gonzaga sues daiquiri factory owner for copyright infringement

By Rob Kauder, Internet Content Manager, robk@kxly.com
Published On: Apr 09 2014 02:11:54 PM CDT
Updated On: Apr 09 2014 08:20:22 PM CDT

Gonzaga University has filed suit against Jamie Pendleton, the owner of Spokane Downtown Daiquiri Factory, for using Spike, the Gonzaga Bulldogs mascot, and Gonzaga University's trademarks to promote his business. KXLY4's Caiti Currey reports.

SPOKANE, Wash. -

Gonzaga University has filed suit against Jamie Pendleton, the owner of Spokane Downtown Daiquiri Factory, for using Spike, the Gonzaga Bulldogs mascot, and Gonzaga University's trademarks to promote his business.

A suit was filed Tuesday on behalf of the Corporation of Gonzaga University against Pendleton Enterprises, LLC, Pendleton Broadcasting, Inc. and Jamie Pendleton. The suit claims that Pendleton has been using Gonzaga University's trademarks -- including Spike -- to promote his businesses.

A nine-page addendum to the suit is filled with pictures of a person dressed as Spike, wearing a Gonzaga University sweatshirt with a bulldog head and paws, in various scenes either acting as a DJ for 104.5 JAMZ, standing in front of the establishment, holding a bottle of Fireball liquor inside the bar or holding a glass next to a beverage machine with a stenciled name on its face that reads "Bulldog Lemonade."

One of Pendleton's past marketing ploys at the time he opened the Spokane Downtown Daiquiri Factory was a drink called Date Grape Kool-Aid, which raised the ire of victims of sexual assault locally and prompting Kraft Foods, owner of the Kool-Aid brand, to step in to protect its brand.

In its suit, Gonzaga's legal team addresses the controversy over the drink, saying the publicity, including media attention, was considered negative publicity. When coupled with Pendleton's extensive use of Gonzaga's trademarks, including an individual dressed up like Spike used to promoted and an individual dressed up as Spike being used to promote a drink called Bulldog Lemonade.

"In the past weeks for example, multiple concerned citizens have voiced a concern or outrage that Gonzaga University would be affiliated or associated with a business that would engage in conduct such as naming a drink Date Grape Koolaid," Gonzaga's lawsuit states.

On the Spokane Downtown Daiquiri Factory Facebook page, the business, which has long shunned interviews with the media over the Date Grape Kool-Aid controversy, has already fired back at Gonzaga University's lawsuit.

"Fyi will the real Gonzaga Bulldog Mascot Come Forward. There really is no confusion.. We think a few Attorneys and the Law Department at GU need to try our #HaterAidQlaid or #ProtesteraidQlaid or #BulldogLemonadeQlaid 1/2 Price this Thursday Starting at 4pm. Bulldogs of all breeds creeds and colors.. As well as any other trademark or stray animal welcome.. including Cats & Ducks. We ate [sic] a EEOC Community Drinkery," the business posted Wednesday morning.

Gonzaga's lawsuit claims that Pendleton and his related businesses have violated the Lanham Act, in that he allegedly has deceived the public into believing there is a connection between the university and his business through the use of Spike and Gonzaga University's trademarks in advertising his businesses; that Pendleton and his businesses have infringed on Gonzaga's trademarks through the use of its logos and a mascot dressed up to look like Spike, giving people the impression the business is affiliated with the university; and violation of Washington state's Consumer Protection Act through commercial and unauthorized use of Gonzaga's trademarks.

The university in its suit claims that Pendleton, through his use of Gonzaga trademarks, has caused the school irreparable harm by associating it with a business which has been the focus of protests and negative publicity, specifically the promotion of the Date Grape Kool-Aid.

The suit asked that Pendleton and his related businesses immediately cease and desist using Gonzaga trademarks -- including Spike -- in all of his businesses, including 104.5 FM and Spokane Downtown Daiquiri Factory, that he post "corrective advertising" including statements on websites and social media where Pendleton clarifies his businesses are in no way affiliated with Gonzaga University. The university also requested a trial by jury with an award of direct and indirect damages, trial costs and attorney fees.

Gonzaga issued a statement after the suit was filed Tuesday, which said that, "Gonzaga University greatly values the good reputation our community has helped the University build and is therefore protective of its name, trademarks and likenesses. When these are threatened, the University attempts to work out a resolution and, when necessary, takes legal action to protect them. Gonzaga is supportive of small businesses and appreciates the pride our community takes in the University."

The original backlash over the Date Grape Kool-Aid resulted in a number of protests of the Spokane Downtown Daiquiri Factory, as well as protesters contacting businesses advertising on Pendleton's radio station 104.5 JAMZ, which resulted in a number of those businesses canceling advertising schedule. According to the FCC website, 104.5 KGZG, managed by Pendleton since the spring of 2010, is listed as "Licensed and Silent" as of April 7, which means the station is no longer broadcasting. The only acknowledgment from Pendleton the radio station is off-the-air is a one word "Yes" response to a Facebook query from someone asking if the only place to listen to his station was over the Internet on his website.

Pendleton has personally declined multiple requests for interviews in the past and has not responded to a request for comment for this story. He has, however, posted to his personal Facebook account that Gonzaga's reasoning for suing him has more to do with the basketball team's post-season performance in the NCAA championships than copyright infringement.

"btw never cheer on your Home team in your Hometown during March madness... they just might sue you after the loose a game.. just saying," Pendleton posted to his personal Facebook account Wednesday morning.

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