This is the complete text of the strange legal document filed by George Scherr with the federal court in Illinois, and served upon Marc Abrahams in Massachusetts in August, 1997. George is acting as his own lawyer.
George's original complaint is 27 pages long. The page breaks are preserved here. This text file probably contains some typographical errors that occurred the scanning process -- other than that, this text is identical to that in the original document. We did NOT correct any of the errors (typographical or factual) contained in George's original document.
George's original document came with a stack of "exhibits," which brought the total thickness of the pile to about 1.5 inches thick. Those "exhibits" are not included here as they would take a huge amount of time to scan and convert into text.
================================================ ================================================ ================================================ RECEIVED AUG 01 1997 MICHAEL W. DOBBINS CLERK, U.S. DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION No. 97C 5453 Judge: JUDGE HOLDERMAN MAGISTRATE JUDGE BOBRICK GEORGE H. SCHERR, Plaintiff MARC ABRAHAMS, WISDOM SIMULATORS, INC., IMPROBABLE RESEARCH, INC. Defendants COMPLAINT Plaintiff, George H. Scherr, pro se, complains of defendants, Marc Abrahams, Wisdom Simulators, Inc., and Improbable Research, Inc, alleging as follows: INTRODUCTION 1. This is an action far unfair competition arising under the Trademark Laws of the United States, 15 U.S.C. Section 1125[a]; for deceptive business practices arising under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 et seq. [formerly the Illinois Deceptive Business Practices Act, 121-1/2 III. Rev. Stat. Sections 262 et seq.]; for deceptive trade practices arising under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 et seq. [formerly the Illinois Deceptive Trade Practices Act, 121-1/2 III. Rev. Stat. Sections 311 et seq.] ; for trademark infringement arising under the Trademark Laws of the United States, 15 U.S.C. Sections 1051-1127; for trademark infringement arising under Illinois common law; for dilution arising under the Illinois Anti-Dilution Act, 140 III. Rev. Stat. Section 22; [See also 765 ILCS 1035/15]; for violation of Section 2 of the Federal Trade Commission Act and the Illinois Little F.T.C. Act, 121 1/2 III. Rev. Stat. Section 262 [See also 815 ILCS 505/2 et seq.]; for fraud and conspiracy to defraud, in violation of Title 18, U.S.C., -1- ================================================ Chapter 63, Section 1341; and U.S.C., Title 18, Chapter 63, Section 1343 ; for racketeering in violation of title 18, U.S.C., Chapter 95, Section 1951; and for the dissemination of false advertisements in violation of U.S.C., Title 15, Chapter 2, Section 52. 2. This Court has jurisdiction under 15 U.S.C. Section 1121; 28 U.S.C. Section 1338 [b]; U.S.C, Title 18, Chapter 63, Sections 1341 and 1343 ; U.S.C. Title 15, Chapter 34, Sections 1311 and 71; and the pendent jurisdiction of the Court. Venue in this Judicial District is proper under U.S.C. Title 28, 1391; 28 U.S.C. 1331; 28 U.S.C. 1332: U.S.C. Title 18. 1965; and U.S.C. Title 18, Chapter 211. PARTIES 3. The plaintiff, George H. Scherr [Scherr] is a resident of the State of Illinois residing in Park Forest, Illinois and is the publisher and editor of the JOURNAL OF IRREPRODUCIBLE RESULTS. 4. The JOURNAL OF IRREPRODUCIBLE RESULTS [JIR] is a journal published in the State of Illinois, and distributed nationally and internationally. The JOURNAL OF IRREPRODUCIBLE RESULTS is a humor and satire publication having its principal place of business at 350 East Sauk Trail, South Chicago Heights, IL 60411. 5. Defendant Marc Abrahams [Abrahams] is an individual and is a resident of the State of Massachusetts residing at 44C Sacramento Street, Cambridge, Massachusetts, 02138. Defendant Abrahams is the publisher and editor of a magazine called the ANNALS OF IMPROBABLE RESEARCH [AIR]. Abrahams has been and, on information and belief, continues to be the President, Treasurer, and one of the Directors of Wisdom Simulators, Inc. [Wisdom] [Exhibit 1, collectively]. -2- ================================================== Marc Abrahams, on information and belief, was and continues to be the President, Treasurer, Clerk, and the only Director of the Defendant IMPROBABLE RESEARCH, INC. [Improbable Res. Inc.] (Exhibit 2, collectively). 6. Defendant Wisdom Simulators Inc. was a corporation having its principal office located at 44-C Sacramento Street, Cambridge, Massachusetts 02138, the resident address of Defendant Abrahams. Wisdom Simulators was registered to do business in the State of Massachusetts, and did solicit and do business in the State of Illinois, elsewhere in the United States, and in this judicial district Wisdom was dissolved voluntarily on August 22, 1995, [Exhibit 1] but continued to do business past the date of dissolution. [Exhibits 3, 4, and 5]. Exhibits 3 and 4 are documents recovered from the Internet which were dated 9-596 and 9-596 , respectively. 7. Defendant Improbable Research, Inc. is a corporation established in the state of Massachusetts whose registered location is 44C Sacramento Street, Cambridge, Massachusetts 02138, which address is the identical address of the Wisdom Simulators, Inc. as well as Defendant Marc Abrahams. Defendant, Improbable Research, inc. is the owner of THE ANNALS OF IMPROBABLE RESEARCH and AIR. [Exhibit 6]. 8. Defendants are engaged in direct competition with Plaintiff in the business of publishing and selling a journal of satire and critique principally directed to the scientific and medical communities, which journals are both marketed in the United States and in this judicial district. -3- ================================================ COUNT I UNFAIR COMPETITION 9. Long prior to any activities of Defendants complained of herein, Plaintiffs originated, adopted, and commenced to use in interstate commerce the trademarks, JOURNAL OF IRREPRODUCIBLE RESULTS, and JIR to identify its journal and JIR related publications. 10. Except for the period from March 1, 1989, to June 27, 1994, during which period Blackwell Scientific Publications, Inc. acquired the publication rights to the JOURNAL Of IRREPRODUCIBLE RESULTS and JIR from Scherr in return for certain considerations, during all other periods from 1960 to present, Plaintiff has continuously used the registered trademarks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR in interstate commerce to identify and distinguish its publication from the goods and services of others. 11. Since long prior to any use by the Defendants of the terms complained of herein, Plaintiffs have expended a great deal of money, time, and effort in advertising and promoting throughout the United States its journal including any books published containing articles from the Journal and sold under the trademarks JOURNAL OF IRREPRODUCIBLE RESULTS AND JIR. 12. The marks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR were registered by the United States Patent and Trademark Cmice on November 21, 1972, under registration Nos. 947,620 and 947,621, respectively. Both marks were registered for a term of 20 years from the date November 21, 1972. 13. The affidavit of Use and Incontestability for the JOURNAL OF IRREPRODUCIBLE RESULTS, Registration Number 947,620, was filed with the United States Patent and Trademark Office on August 7, 1979, examined, found acceptable and entered into the registration file. 14. By virtue of these efforts, the trademarks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR have become associated in the minds of purchasers of the satire Journal published by Plaintiff -4- ============================================ Scherr including any books published which include these articles and including any subsequent publications or releases made either by wire, radio, or via the Internet; and in the minds of the general public with Plaintiffs valuable goods which has been built up with the trademarks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR. 15. Recently, and long subsequent to Plaintiff Scherr's adoption, use and acquisition of secondary meaning in its trademarks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR, Defendants designed, manufactured, packaged and distributed for sale in the United States, including the northern district of the State of Illinois, journals and abstracts of journals bearing the designations of ANNALS OF IMPROBABLE RESEARCH and the letters AIR. 16. On information and belief, Defendant's use of the designations AIR and ANNALS OF IMPROBABLE RESEARCH was with the full knowledge of Plaintiff Scherr's prior and extensive use of his trademarks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR. 17. The designation AIR is confusingly similar to Plaintiff's registered trademark JIR. 18. The designation of ANNALS OF IMPROBABLE RESEARCH is confusingly similar to Plaintiff's registered trademark JOURNAL OF IRREPRODUCIBLE RESULTS. 19. In addition to the use of these designations by Defendant, each being confusingly similar to trademarks owned by Plaintiff, Defendants' journal ANNALS OF IMPROBABLE RESEARCH and promational literature for said journal contain innumerable features which contribute to the striking similarity to the contents of Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS. 20. A copy of Plaintiffs journal JOURNAL OF IRREPRODUCIBLE RESULTS [JIR] is attached hereto as Exhibit 7. 21. A copy of Defendant's journal ANNALS OF IMPROBABLE RESEARCH [AIR] is attached hereto as Exhibit 8. 22. It is evident from Defendant's use of the designations of ANNALS OF IMPROBABLE RESEARCH and AIR, each being confusingly similar to registered trademarks owned by Plaintiff -5- ======================== and letter symbols associated with Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS and JIR as well as similarly styled layout and subject matter on a product which is in direct competition with Plaintiff's publication, that Defendants have deliberately and willfully set out to trade upon the reputation and good will that Plaintiffs have established in the market by deliberately and maliciously engaging in massive copying of the format of the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR, and have deliberately and willfully set out to disseminate erroneous, improper, and derogatory assertions about the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR. Thus: A. Defendants have and have caused to be erroneously, deliberately, and improperly asserted and advertised that "AIR was created by the founders and entire former editorial staff (1955-1994] of the JOURNAL OF IRREPRODUCIBLE RESULTS.........". A few of the plethora of such improper and erroneous assertions are: "The Annals of Improbable Research [AIR] is a splendidly subversive science humor magazine produced by the founders and entire former editorial staff [1955-1994] of the 'Journal of Irreproducible Results'....". [See Exhibit 9]. "The American staff of Journal of Irreproducible Results [JIR], the oldest and best-known satirical science journal, has left to set up a competing magazine after several years of disagreements with its British publisher. The 40-member board of scientists which includes seven Nobel prizewinners, went with them". [See Paragraph 1, in Exhibit 10]. "For students involved in research, the Annals of Improbable Research is one link you may find yourself increasingly attached to. AIR is the recent electronic reincarnation of the now defunct Journal of Irreproducible Results [JIR], which described itself as 'the oldest satirical journal of science.". [See Paragraph 3, in Exhibit 11]. -6- ========================================== "The entire editorial staff of 'the Journal of Irreproducible Results' fed up after years of fighting red tape, has resigned to start a new science humor magazine. The new magazine will be called The Annals of Improbable Research [AIR]." [See Exhibit 12]. B. Defendants have improperly and illegally usurped the Internet subscribers to the mini-journal of JOURNAL OF IRREPRODUCIBLE RESULTS [mini-JIR] and utilized them to promote their mini ANNALS OF IMPROBABLE RESEARCH [mini-AIR] articles on the Internet. Thus, they have promoted on the Imernet and in this jurisdiction information that: "I have been receiving [free!] mini-JIR over the Internet. Will I receive the new publication automatically? A. Yes, if you were included on the old list, you are now automatically included on the mini-AIR distribution list. You don't need to do anything at all." [See Paragraph 3, in Exhibit 13]. C. Defendants have erroneously, maliciously, and improperly advertised and caused to be advertised that AIR is the successor to JIR thus claiming that JIR was no longer published [See Exhibits 14, 11, and Exhibit 15 under ANNALS OF IMPROBABLE RESEARCH]. D. JIR instituted the lg Nobel Prize [Exhibit 16] as well as other promotional data and AIR mimics the promotional data of JIR in its advertisements distributed world wide on the Internet and through other media, into the State of Illinois and into this jurisdiction. See Exhibit 17 which sets forth:(1) ------------------------------------ (1) For the benefit of the Court, Plaintiff has underlined the promotional phrases that are copied verbatim by Defendants. -7- =========================================== "The mini-Journal of Irreproducible Results publishes news about overly stimulating research and ideas. Specifically: a] Haphazardly selected superficial [but advanced] extracts af research news and satire from the Journal of Irreproducible Results [JIR]. b] News about the annual Ig Nobel Prize ceremony. Ig Nobel Prizes honor'achievements that cannot or should not be reproduced.' A public ceremony is held at MIT, in Cambridge Massachusetts, every autumn. The ceremony is sponsored jointly by JIR and by the MIT Museum. c] News about other science humor activities conducted by the MIT Museum and JIR. Note Exhibit 18 in which the language in promoting mini-AIR is taken literally verbatim from previous advertising for mini-JIR [Exhibit 17], in that it sets forth in Exhibit 18: "The mini-Annals of Improbable Research [mini-AIR] publishes news about improbable research and ideas. Specifically: a) Haphazardly selected superficial (but advanced!) extracts of research news and satire from the Annals of Improbable Research. b) News about the annual In Nobel Prize ceremony. c) News about other science humor activities intentional and otherwise. E. The JOURNAL OF IRREPRODUCIBLE RESULTS promoted itself as "Official Journal of the Society for Basic Irreproducible Research" (See Cover 2 of Exhibit 7 attached hereto]. Defendants, mimicked this designation by asserting that the ANNALS OF IMPROBABLE RESEARCH is the house organ of "The Association for the Advancement of Improbable Research." [See Paragraph 2 in Exhibit 19]. F. The articles published in JIR have been directed primarily to the scientific and medical community and the articles in AIR follow exactly this same format and -8- ========================================= intent. Note the promotional literature for JIR [See Paragraph 1 in Exhibit 20 attached hereto]: "Since 1955, the Journal of Irreproducible Results has been the publication of record for overly stimulating research and ideas. JIR publishes original articles, news of particularly egregious scientific results, and short notices of satiric and humorous intent;" Defendants utilize the same scope of interest and clientele in promoting their Journal. See Exhibit 9 attached, which sets forth that: "The Annals of Improbable Research [AIR] is a splendidly subversive science humor magazine produced by the founders and entire former editorial staff [1955-1994] of The Journal of Irreproducible Results'.....". G. JIR has published and continues to publish 32 pages plus 4 pages of cover and AIR publishes exactly the same format. [Compare Exhibits 7 and 8 attached hereto]. H. The JOURNAL OF IRREPRODUCIBLE RESULTS instituted and continued to promote a limerick contest [Exhibit 21] and the Defendants have chosen to mimic this format of JIR in their publication AIR [See Exhibit 22]. I. The JOURNAL OF IRREPRODUCIBLE RESULTS was characterized as ".....a sort of MAD Magazine for the Stephen Hawking crowd" by the Boston Globe (Exhibit 23 is taken from Volume 38, Number 6, 1943 issue of the JOURNAL OF IRREPRODUCIBLE RESULTS]. Defendants have and have caused to be advertised the identical statement, now maliciously and erroneously attributing it to the ANNALS OF IMPROBABLE RESEARCH [See Paragraph 8 of Exhibit15]. J. The following table which compares same of the innumerable points of similarity that Defendants have improperly utilized in publishing THE ANNALS OF -9- ======================================= IMPROBABLE RESEARCH which have been taken from the JOURNAL OF IRREPRODUCIBLE RESULTS are represented in TABLE I by comparison of the Vol. II, No. 5 September/October 1996, ANNALS OF IMPROBABLE RESEARCH to Volume 37, Number 3, May/June 1992, of the JOURNAL OF IRREPRODUCIBLE RESULTS, attached hereto as Exhibits 8 and 7, respectively. TABLE I JOURNAL OF IRREPRODUCIBLE RESULTS ANNALS OF IMPROBABLE RESEARCH Volume 37. Number 3 May/June 1992 Vol. II. No, 5 September/October 1996 Editor: Marc Abrahams Marc Abrahams Editor Emeritus: Alexander Kohn Alexander Kohn Associate Editor: Stanley Eigen Stanley Eigen Associate Editor: Mark Dionne Mark Dionne Assistant Editor: Stephen Drew Stephen Drew Art/Photo Editor: Bob Smith Bob Smith Circulation Brenda Twersky Brenda Twersky Circulation: James Mahoney James Mahoney EDITORIAL BOARD ANTHROPOLOGY: Jonathan Marks Jonathan Marks ASTRONOMY: Jay M. Pasachoff Jay M. Pasachoff ASTRONOMY: Robert Kirshner Robert Kirshner ASTRONOMY: David Slavsky David Slavsky BIOMATERIALS: Alan S. Litsky Alan S. Litsky BIOPHYSICS: Leonard X Finegold Leonard X Finegold BUREAUCRATIC AFFAIRS: Miriam Bloom Miriam Bloom -10- ========================================= TABLE I [cont'd] CHEMISTRY: Dudley Herschbach Dudley Herschbach CHEMISTRY: Benjamin J. Luberoff Benjamin J. Luberoff COMPUTER SCIENCE: Dennis J. Frailey Dennis J. Frailey COMPUTER SECURITY: Harold J. Highland Harold Joseph Highland COMPUTER SOFTWARE: Heidi Roizen Heidi Roizen DENTISTRY: Walter J. Kent Walter Kent DENTISTRY: Joseph J. Marbach Joseph Marbach DEVELOPMENTAL PSYCHOLOGY: Neil V. Salkind Neil J. Salkind ECONOMICS: Ernst W. Stromsdorfer Ernst W. Stromsdorfer ECONOMICS: Hein Schreuder Hans Schreuder GEOGRAPHY: G. H. Dury George H. Dury GEOLOGY: John C. Holden John C. Holden GEOLOGY: John F. Splettstoesser John Splettstoesser HISTORY OF SCIENCE & MEDICINE: T. Healey Tim Healey INTELLIGENCE: Marilyn Vos Savant Marilyn Vos Savant LAW: Ronald A. May Ronald A. May MARINE GEOLOGY: Constance Sancetta Constance Sancetta MATERIALS SCIENCE: Robert M. Rose Robert M. Rose MATHEMATICS: Lee Segel Lee Segel METHODOLOGY: Stanley Rudin Stanley Rudin METHODOLOGY: Rodney L. Levin Rod Levine MICROBIOLOGY: G. Roland Vela Roland G. Vela MOLECULAR BIOLOGY: Sir John Kendrew Sir John Kendrew -11- ================================ TABLE I [cont'd] NEUROENGINEERING Jerome Y. Lettvin Jerome Lettvin ORTHOPEDIC SURGERY: Glenn R. Johnson Glenn R. Johnson PEDIATRICS: Robert E. Merrill Robert E. Merrill PEDIATRICS: Ronald B. Mack Ronald M. Mack PHARMACOLOGY: G. Kimmeli Stanton Stanton G. Kimmel PHYSICS: Sheldon Lee Glashow Sheldon Glashwv PHYSICS: H. J. Lipkin Harry Lipkin POLITICAL SCIENCE: Richard G. Neimi Richard G. Neimi PSYCHIATRY AND NEUROLOGY: Robert Hoffman Robert S. Hoffman PSYCHOLOGY: Louis Lippman Louis G. Lippman PULMONARY MEDICINE: Traian Mihaescu Traian Mihaescu RADIOLOGY: David N. Rabin David Rabin SCIENCE AND PUBLIC POLICY: Daniel S. Greenberg Dan Greenberg SURGERY: Douglas Lindsey Douglas Lindsey UROLOGY: Mark Sullivan Mark Sullivan K. On or about October 13, 1995, Defendant Abrahams broadcast a program from CBC entitled "As It Happens", which radio program, on information and belief, was broadcast into the state of Illinois, into other states in the United States, and into this Judicial District, wherein the following are verbatim citations from this radio broadcast: Commentator Speaking: "......The Journal of Irreproducible Results. The very name tells the tale. But earlier this year that Journal expired. Its editor Mark Abrahams packed his fun-filled pen and moved an. Happily where he moved to was to a new satire adventure,......" "What happened to the JOURNAL OF IRREPRODUCIBLE RESULTS?" -12- ======================================= Defendant Abrahams speaking: "It was a sad thing that happened." "The new magazine is called the "Annals of Improbable Research." "Most of the old columns are coming with us too since all of the columnists are coming." The contents of the entire recorded tape of the broadcast is contained in Exhibit 24 attached hereto]. 23. Defendants' use of the designation AIR in commercial advertising and promotion is confusingly similar to the trademark JIR owned by the Plaintiff, as well as the use of similarly styled language and packaging of their journal, which is likely to cause confusion, mistake, or deceive the general public as to affiliation or connection including prospective purchases of products offered by Plaintiff into believing that the Defendant's product is a product of JIR or is in some way associated with JIR or is a successor to JIR as to cause irreparable damage and injuries to Plaintiff. The use of the designations AIR and the ANNALS OF IMPROBABLE RESEARCH, each being confusingly similar to trademarks owned by Plaintiff as well as the use of similarly styled packaging of the journal ANNALS OF IMPROBABLE RESEARCH constitute a false designation of origin and a false representation of fact in violation of Section 43 [a] of the Trademark Laws of the United States 15, U.S.C. Section 1125 Ia]. 24. The use by Defendants of the designations ANNALS OF IMPROBABLE RESEARCH and AIR, each being confusingly similar to the trademarks owned by the Plaintiff and letter symbols associated with the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR as well as the similarly styled packaging of the journal AIR constitute unfair methods of competition, deceptive business practices, false and/or misleading representation of facts, in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 et seq. -13- =================================== 25. The use by Defendants of the designation of ANNALS OF IMPROBABLE RESEARCH and the letters AIR, each being confusingly similar to the trademarks owned by the Plaintiff and letter symbols associated with the JOURNAL OF IRREPRODUCIBLE RESULTS as well as the similarly styled packaging of the journal AIR constitute a deceptive trade practice in violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 et seq. 26. The use by defendants of the designation of ANNALS OF IMPROBABLE RESEARCH as well as the designated mark AIR each being confusingly similar to trademarks owned by the Plaintiffs as well as similarly styled packaging of the journal ANNALS OF IMPROBABLE RESEARCH, has caused and will continue to cause substantial and irreparable damage and injury to the Plaintiffs and to the public unless enjoined by this Court. 27. During the period 1990 to 1994, when Defendant Abrahams was employed by Blackwell Scientific Publications as the editor of the JOURNAL OF IRREPRODUCIBLE RESULTS, Abrahams consistently utilized the symbol (R) to indicate that the JOURNAL OF IRREPRODUCIBLE RESULTS was a registered trademark After Defendant Abrahams abandoned his position as editor and failed to purchase the rights to JIR from Plaintiff Scherr, he deliberately and maliciously failed to show such (R) mark when citing JIR in his promotional literature and advertisements. [Compare Exhibits 7, 25, and 26 with Exhibits 9, 12, and 13]. 28. Plaintiff has no adequate remedy at law. COUNT II TRADEMARK INFRINGEMENT 29. Plaintiff adopts and realleges paragraphs 1 through 28. -14- ============================================= 30. Defendants' use of the designation AIR is likely to cause confusion, mistake or deceive the general public, including prospective purchasers of the journal offered by Plaintiff, into believing that Defendant's product is a product of Plaintiff or is a successor to Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS or is in some manner or otherwise associated with Defendants as to cause irreparable damage and injury to Plaintiff. 31. Defendant's use of the designation ANNALS OF IMPROBABLE RESEARCH is likely to cause confusion, mistake or deceive the general public, including prospective purchasers of products offered by Plaintiff into believing that Defendant's journal is a product of Plaintiff or is a successor to Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS or is in some manner or otherwise associated with Defendants as to cause irreparable damage and injury to Plaintiff. 32. Defendants' use of the designation AIR and ANNALS OF IMPROBABLE RESEARCH constitute trademark infringement in violation of 15 U.S.C. Section 1114. 33. Defendant's use of the designation AIR has caused and will continue to cause substantial and irreparable damage and injury to Plaintiff and to the public unless enjoined by this Court. 34. Defendant's use of the designation of ANNALS OF IMPROBABLE RESEARCH has caused and will continue to cause substantial and irreparable damage and injury to Plaintiff and to the public unless enjoined by this Court. COUNT III DILUTION 35. Plaintiff adopts and realleges paragraphs 1 through 28. 36. Defendants' use of the designation AIR is likely to dilute the distinctive quality of Plaintiff's JIR trademark in that it is likely to diminish the strong source indicating quality of Plaintiff's JIR trademark and it is likely to damage Plaintiff's business -15- ================================================== reputation or diminish or blur the reputation associated in the public mind with the Plaintiff and Plaintiff's JIR trademark. 37. Defendant's deliberate omission of the symbol (R) designation in referring to the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR is likely to diminish the strong source indicating the quality of Plaintiff's JIR trademarks and it is likely to damage Plaintiff's business reputation or diminish or blur the reputation associated in the public mind with Plaintiff's JIR trademarks. 38. Defendants' use of the designation ANNALS OF IMPROBABLE RESEARCH is likely to dilute the distinctive quality of Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS' trademark in that it is likely to diminish the strong source indicating the quality of Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS' trademark and is likely to damage Plaintiff's business reputation or diminish or blur the reputation associated in the public mind with Plaintiff and Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS' trademark. 39. Defendants' use of the designation AIR constitutes trademark dilution in violation of the Illinois Anti-Dilution Act, 140 111. Rev. Stat. Section 22. 40. Defendants' use of the designation ANNALS OF IMPROBABLE RESEARCH constitutes trademark dilution in violation of the Illinois Anti-Dilution act, 140 III. Rev. Stat. Section 22. 41. Defendants' use of the designation AIR has caused and will continue to cause substantial and irreparable damage and injury to the Plaintiffs and to the public unless enjoined by this Court. 42. Defendants' use of the designation ANNALS OF IMPROBABLE RESEARCH has caused and will continue to cause substantial and irreparable damage and injury to Plaintiff and to the public unless enjoined by this court. -16- ================================ COUNT IV F.T.C. VIOLATIONS 43. Plaintiff adopted and realleges paragraphs 1 through 28. 44. Defendants' products sold under the designations ANNALS OF IMPROBABLE RESEARCH and AIR are periodicals as that term is defined in the Federal Trade Commission Act. 45. Defendants have caused its products when sold, to be sent in interstate commerce and thereby maintains a substantial course of trade in these products in commerce, as that term is defined in the Federal Trade Commission Act. 46. Defendants in the course and conduct of its business, disseminates and causes to be disseminated by various means, including by the United States mail, on the Internet, on the radio, and other means, certain advertisements concerning its products and media sources of interstate circulation in commerce, for the purpose of inducing the purchase of its journal. 47. Typical and illustrative of the statements and representations made in Defendants' journal and in Defendants' advertising, but not all inclusive thereof, are the following: "The Annals of Improbable Research [AIR] is a splendidly subversive science humor magazine produced by the founders and entire former editorial staff [1955-1994] of the 'Journal of Irreproducible Results'....". [See Exhibit 9]. "The American staff of Journal of Irreproducible Results (JIR), the oldest and best-known satirical science journal, has left to set up a competing magazine after several years of disagreements with its British publisher. The 40-member board of scientists which includes seven Nobel prizewinners, went with them". [See Paragraph 1 in Exhibit 10]. "For students involved in research, the Annals of Improbable Research is one link you may find yourself increasingly attached to. AIR is the recent electronic reincarnation of the now-defunct Journal of Irreproducible Results (JIR), which described itself as -17- ======================================== 'the oldest satirical journal of science". [See Paragraph 3 in Exhibit 11]. "The entire editorial staff of "the Journal of Irreproducible Results' fed up after years of fighting red tape, has resigned to start a new science humor magazine. The new magazine will be called The Annals of Improbable Research [AIR]." [See Exhibit 12]. "The Annals of Improbable research [AIR) is a splendidly subversive science humor magazine produced by the founders and entire former editorial staff [1955-1994] of 'The Journal of Irreproducible Results'....". [See Exhibit 9]. 48. Through the use of the above statements and representations, and others of similar import and meaning not expressly set forth herein, Defendants represent directly, have caused to be represented, or represent by implicatian that: a. The JOURNAL DF IRREPRODUCIBLE RESULTS was no longer being published. b. The ANNALS OF IMPROBABLE RESEARCH is a successor to the JOURNAL OF IRREPRODUCIBLE RESULTS. c. The entire editorial staff writing for the JOURNAL OF IRREPRODUCIBLE RESULTS has left the JOURNAL OF IRREPRODUCIBLE RESULTS (JIR), and now produces the ANNALS OF IMPROBABLE RESEARCH [AIR]. d. All of the columnists from the JOURNAL OF IRREPRODUCIBLE RESULTS have moved over to the ANNALS OF IMPROBABLE RESEARCH. 49. At the time the above statements were made, Defendants had no reasonable basis from which to conclude that these representations were true. 50. The use by Defendants of these false, misleading, deceptive, and unfair statements, representations, acts and practices has the capacity and tendency to mislead members of the consuming public into the erroneous and mistaken belief that such statements and representations are true and, as a result, to purchase substantial quantities of Defendants' journal. -18- =================================== 51. Defendants' use of these false, misleading, deceptive, and unfair statements, representations, acts and practices constitute the dissemination of false advertisements and unfair and deceptive acts or practices in or affecting commen=e and unfair methods of competition in or affecting commerce in violation of U.S.C. 15, Chapter 2, Section 52, and the Federal Trade Commission Act, Chapter 2. 52. Defendants' use of these false, misleading, deceptive, and unfair statements, representations, acts, and practices constitute unfair and deceptive acts or practices in violation of the Illinois Little F.T.C. Act, 121 1/2 ILL. Rev. Stat. Sec. 262. 53. Defendants' use of these false, misleading, deceptive, and unfair statements, representations, acts, and practices has caused and will continue to cause substantial and irreparable damage and injury to Plaintiff and to the public unless enjoined by this Court. COUNT V FRAUD CONSPIRACY TO DEFRAUD 54. Plaintiff adopts and realleges paragraphs 1 through 28. 55. On or about the dates set forth below in the state of Illinois from elsewhere, Defendant Abrahams acting individually, as well as Defendant Wisdom Simulators, Inc. acting in concert with Defendant Abrahams, on information and belief, devised the scheme and intended to devise a scheme and artifice to defraud the Plaintiff and to obtain the valuable property constituting the trademarks, the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR, and the good will constituting the subscribers and the editors of the Journal, by means of false and fraudulent pretenses, representations, as set forth above and also as described as foilows. A. Abrahams, during his tenure as editor of the JOURNAL OF IRREPRODUCIBLE -19- ======================================= RESULTS from 1990-1994, deliberately neglected to published manuscripts submitted by authors to the JOURNAL OF IRREPRODUCIBLE RESULTS and utilizing pseudonyms, published articles in the Journal which he himself had written and which articles were not consistent with the tone of the Journal as being a humorous and satirical magazine. Thus Abrahams deliberately prostituted the purpose and tone of the articles in the Journal JIR, and by his own admissions, turned the Journal into an outlet for his own literary aspirations. (See Exhibit 27, collectively attached hereto). B. Defendant Abrahams abandoned his responsibilities as editor of the JOURNAL OF IRREPRODUCIBLE RESULTS in '1994, and retained copies of submitted manuscripts by authors, copies of correspondence to JIR, the names and addresses of the editorial staff of JIR, as well as the names and addresses of the subscribers to the MiniJIR [See Exhibit 28 attached hereto], all of which were the property of Plaintiff Scherr. C. As a proximate result of the scheme devised by Defendants Abraham and Wisdom Simulators, Inc., the subscriptions to the Journal dropped from 15,000 subscribers in 1990 to less than 5000 subscribers in 1994. D. During Defendant Abrahams' tenure from 1990 to 1994 when employed by Blackwell Scientific Publishers, Inc., as editor of the JOURNAL OF IRREPRODUCIBLE RESULTS, Plaintiff repeatedly apprised Abrahams that the registrations for the marks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR were to expire on November 21, 1992 [See Par. 12 above]. Defendants Abrahams and Wisdom Simulators, inc. refused to take any action and deliberately permitted the registrations to lapse despite the fact that they continued to utilize the (R) mark in the publication of the JOURNAL OF IRREPRODUCIBLE RESULTS [See Exhibits 29 and 30]. -20- ===================================================== E. On or about June 27, 1994, when Plaintiff discovered that the registration marks JOURNAL OF IRREPRODUCIBLE RESULTS and JIR had been permitted to expire, Plaintiff Scherr filed for and received registration for the two marks [Exhibits 31 and 32 attached hereto). F. At the time that Abrahams was still an editor of the JOURNAL OF IRREPRODUCIBLE RESULTS, Abrahams instituted secret negotiations with potential purchasers for the rights to the JOURNAL OF IRREPRODUCIBLE RESULTS wherein Abrahams would continue to cause to diminish the value of the Journal in order to make feasible its sale so that he would become its publisher and editor. Such negotiations were continued by Abrahams with Scherr when Defendant Abrahams and Wisdom Simulators, Inc. came to to Chicago on July 19, 1991, and at another time in order to negotiate with Plaintiff Scherr as well as others for the purchase of the rights to the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR. 56. Defendants Abrahams and Wisdom Simulators, Inc. threatened Scherr that failure by Scherr to sell his rights to them at their offered price would result in Defendants' instituting publication of a competing journal and their retention of all the files entrusted into their custody during Abraham's tenure as editor of the JOURNAL OF IRREPRODUCIBLE RESULTS. 57. Plaintiff Scherr refused to sell his rights to the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR and Abrahams and Wisdom Simulators, Inc., immediately thereafter proceeded to publish and promote a journal similar in so many ways and of such similar format and scope as to be deliberately confused with the JOURNAL OF IRREPRODUCIBLE RESULTS which journal they called the ANNALS OF IMPROBABLE RESEARCH. Abrahams and his codefendants, had devised and intended to devise the scheme and artifice to defraud the Plaintiff and to obtain the valuable property constituting the know-how and subscribers to the JOURNAL OF -21- ====================================================== IRREPRODUCIBLE RESULTS as well as its editors by means of false and fraudulent pretenses, representations, and promises as described above and in the following: A. Defendant Abrahams represented that the JOURNAL OF IRREPRODUCIBLE RESULTS had expired and that all of the columnists that had been writing for the JOURNAL OF IRREPRODUCIBLE RESULTS are coming over now to write for the ANNALS OF IMPROBABLE RESEARCH ([See Exhibit 12 attached hereto]. B. Defendant Abrahams and Wisdom Simulators, Inc., placed and had placed communications on the Internet and by the use of wire communications set forth that the JOURNAL OF IRREPRODUCIBLE RESULTS was no longer being published and that the entire Editorial Board of the publication hitherto called the JOURNAL OF IRREPRODUCIBLE RESULTS [JIR] had all moved to Defendant Abrahams and his journal ANNALS OF IMPROBABLE RESEARCH (AIR). [See Exhibits 11 and 33 attached hereto]. 58. The execution of the scheme and artifice of Defendants did place and cause to be placed in an authorized depository for mail matter, and aided and abetted the mailing of the items set forth above, as well as the use of wire, radio, and Internet communications in falsifying the demise of the JOURNAL OF IRREPRODUCIBLE RESULTS and JIR which resulted in a deliberate attempt to diminish the subscribers to the JOURNAL OF IRREPRODUCIBLE RESULTS. 59. Defendants' use of these false, misleading, deceptive, and unfair statements, representations, acts, and practices constitute fraud and conspiracy to commit fraud in violation of U.S.C. Title18, Chapter 63, Section 1341 and U.S.C. Title 18, Chapter 63, Section 1343. 60. Defendants' use of these false, misleading, deceptive, and unfair statements, representations, acts, and practices has caused and will continue to cause substantial and irreparable damage and injury to the Plaintiff and to the public unless enjoined by this Court. -22- =================================================== COUNT VI RACKETEERING 61. Plaintiff adopts and realleges paragraphs 1 through 28 and paragraphs 55 through 60. 62. Such scheme and artifice to defraud Plaintiff Scherr on the part of Defendants, either one of which alone would constitute racketeering in violation of Title 18, U.S.C., Chapter 95, Section 1951. 63. Plaintiff has made every reasonable offer to meet with Defendants in an attempt to amicably resolve the issues set forth in this complaint [Exhibit 5), but Defendants have rebuffed Plaintiff and refused to discuss an amicable resolution. WHEREFORE, Plaintiff, George H. Scherr, respectfully prays that this Honorable Court: 1. Order a judgment for Plaintiff and against Defendants, jointly and severally, on Count I for unfair competition in violation of 15 U.S.C. Section 1125[a]; for deceptive business practices in violation of 815 ILCS, 505/2: a. for compensatory damages in excess of $200,000.00 b. order that such proven damages be trebled c. for punitive damages in an amount of $500,000.00 d. order such action and grant such further relief as this Court may deem appropriate and equitable 2. Order a judgment for Plaintiff and against Defendants, jointly and severally, on Count II for -23- ====================================================== for trademark infringement in violation of 15 U.S.C. Sections 1051-1127 and the Illinois Common Law: a. for compensatory damages in an amount in excess of $200,000.00 b. order that such proven damages be trebled c. for punitive damages in an amount of $200,0OO.O0 d. order such action and grant such further relief as this Court may deem appropriate and equitable 3. Order a judgment for Plaintiff and against Defendants, jointly and severally, on Count III for trademark dilution in violation of140 III. Rev. Stat. Section 22: a. for compensatory damages in an amount in excess of $100,000.00 b. for punitive damages in an amount of $200,000.00 c. order such action and grant such further relief as this Court may deem appropriate and equitable 4. Order a judgment for Plaintiff and against Defendants, jointly and severally, on Count IV for violation of the Little F.T.C. Act, 121 1/2 III. Rev. Stat. Section 262; for violation of Chapter 2 of the Federal Trade Commission Act and for violation of U.S.C. 15, Chapter 2, Section 52. a. for compensatory damages in an amount in excess of $200,000.00 b. for punitive damages in an amount of $200,000.00 c. order such action and grant such further relief as this Court may deem appropriate and equitable 5. Order a judgment for Plaintiff and against Defendants, jointly and severally, on Count V for violation of U.S.C. Title 18, Chapter 63, Section 1341; U.S.C. Title 18, Chapter 63, Section1343. a. for compensatory damages in an amount in excess of $200,000.00 -24- ====================================================== b. order that such proven damages be trebled c. for punitive damages in an amount of $200,000.00 d. order such action and grant such further relief as this Court may deem appropriate and equitable 6. Order a judgment for Plaintiff and against Defendgnts, jointly and severally, on Count VI for violation of Title 18, U.S.C., Chapter 95, Section 1351. a. for compensatory damages in an amount in excess of $200,000.00 b. order that such proven damages be trebled c. for punitive damages in an amount of $200,000.00 d. order such action and grant such further relief as this Court may deem appropriate and equitable 7. Order a preliminary and permanent injunction restraining Defendants, their directors, officers, agents, servants, employees, successors, assigns and all persons acting in active concert or participation with Defendants, from doing, causing, aiding, or abetting any of the following: a. engaging in any acts or activities directly or indirectly calculated to trade upon the reputation or goodwill of Plaintiff and the JOURNAL OF IRREPRODUCIBLE RESULTS or to unfairly compete with Plaintiff and the JOURNAL OF IRREPRODUCIBLE RESULTS in any manner; b. directly or indirectly infringing Plaintiff's registered trademark JOURNAL OF IRREPRODUCIBLE RESULTS; c. directly or indirectly infringing Plaintiff's registered trademark JIR; d. directly or indirectly trading on Plaintiff's JOURNAL OF IRREPRODUCIBLE RESULTS and the symbol JIR; -25- ===================================================== e. using in the sale, offering for sale, promotion, advertising, marketing and distribution of a journal or related goods or on any packaging, cartons, labels, display cards, wrappers or any advertising matters whatsoever, JOURNAL OF IRREPRODUCIBLE RESULTS or JIR or any simulation or imitation or derivation thereof, in such a manner so as to cause confusion or be likely to cause confusion or deceive Plaintiff's customers and the purchasing public into the belief that the goods sold by Defendants are the goods of Plaintiff or are sponsored by or otherwise associated with Plaintiff; 8. An order requiring Defendants to remove and/or have removed from the Intemet all references to AIR and the ANNALS OF IMPROBABLE RESEARCH and any language therein which may cause confusion, or is likely to cause confusion, or to deceive Plaintiff's customers and the purchasing customers into the belief that the goods sold by Defendants are the goods of Plaintiff or are sponsored by or otherwise associated with Defendants; 9. An order granting such other and further relief as this court may deem just and honorable. Respectfully submitted, by George H. Scherr, Ph.D., pro se 33 Monee Road Park Forest, IL 60466 Phone: (708)784-1256 Fax: (708) 758-3276 -26- ==================================================== AFFIDAVIT I, George H. Scherr, having been duly sworn, state that I have read the foregoing complaint and that the statements set forth in this instrument are true and correct, except as to matters herein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. By: George H. Scherr, Ph.D. pro se -27- =====================================================