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Fingerpointing Marks Ninn Worx_SR’s Suit Against Michael Ninn

Fingerpointing Marks Ninn Worx_SR’s Suit Against Michael Ninn
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Feb 25, 2009 1:30 PM PST    Text size: 
LOS ANGELES — As Michael Ninn plans the March release of Celluloid Addiction’s “Solamente,” he’s also gearing up for a battle being waged in federal court over the use of his stage name and related Internet properties.

The director, whose real name is Michael Fitzgerald, has been hit with a claim by Ninn Worx_SR, which was originally owned by Ninn, over the use of his pseudonym.

That suit, filed at U.S. District Court in Los Angeles, alleges Ninn is using a trademark he doesn’t own to direct and produce movies, thereby creating confusion in the marketplace and harming Ninn Worx_SR, which is majority owned by the operator of gentlemen’s club chain Spearmint Rhino.

Ninn, both parties agree, sold 100 percent of N Worx (his company’s fictitious business name at the time) in exchange for 49 percent interest to Ninn Worx_SR, plus $1,000. In addition, Ninn Worx_SR paid off N Worx accounts payable of about $221,000.

Further, Ninn claimed in the suit that he was to receive $300,000 per year and would become Ninn Worx_SR’s CEO.

The deal also included domain names MichaelNinn.com, MichaelNinn.tv, MichaeleNinn.net, NinnWorx.com, NinnWorx.net, NinnWorx.tv and NinnWorxCnema.com.

In the suit, Ninn Worx_SR claims that a year after the sale, Ninn began competing against the company, advertising the “Michael Ninn” mark and variations for competing products.

Ninn Worx_SR officials were particularly incensed, according to the suit, after Ninn distributed “Nymphetamine,” in which he represents the film was “directed by Michael Ninn.” They claim that Ninn marketed “Nymphetamine” using the pseudonym at ImNinn.com and promoted it at the AEE show in January.

Ninn now works exclusively with the new Celluloid Addiction imprint, which is headed by David Sutton of VCX.

"We are currently engaged in both production and marketing of the two Celluloid Addiction LLC series that Michael Ninn is directing for us under an exclusive agreement with absolutely no orders from a court that would limit that process to date," Sutton said. "We are not going to engage in any actions that would be in violation of a court order restricting Celluloid Addiction from pursuing this process, otherwise known as free trade.

"There have been no such orders to date. We will continue to operate under the assumption that our company, duly engaged in legal commerce, will not be restricted in that pursuit."

In the suit, Ninn Worx_SR counsel are asking for a temporary restraining order over the use of his pseudonym, which was never registered with the U.S. Patent and Trademark Office until this year. Ninn Worx_SR filed for the mark on Jan. 20, just nine days before the federal suit was filed.

“If [Ninn’s] infringing use of the Ninn marks and use of his other infringing marks does not immediately cease, [Ninn Worx_SR] will lose a significant number of customers due to the confusion between the marks and [Ninn Worx_SR] will be unable to recoup their businesses losses.”

Ninn, who has directed more than 60 adult films in 18 years, has mounted 18 points of defense, according to court documents filed Tuesday, including ones of fair use, fraud upon the trademark office, copyright preemption and failure to comply with trademark law requirements.

His attorney, Tim Riley, also has lashed out in a preliminary statement to the court that the real party behind plaintiff Ninn Worx_SR is John Gray.

“On May 29, 2008, shortly after Gray got a hold of N Worx film masters and a large budget film that Ninn was in the process of completing entitled ‘The Four,’ Gray locked Ninn out of his office, fired him as CEO of Ninn Worx and ceased all payments under the agreement,” said a filing opposing the proposed injunction.

Ninn, according to the filing, said Gray initially promised him “to grow N Worx from a $2 million company to a $20 million company.” But that would not be the case.

According to Ninn, Gray gave him an ultimatum.

“He told Ninn that unless he entered into an onerous settlement agreement that he would destroy Ninn, bankrupt him with legal fees and strip him of his lifelong pseudonym,” Ninn’s attorney wrote.

The settlement agreement, Ninn said, demanded that he sell his stock in Ninn Worx_SR to Gray for a “mere $300,000.” Ninn responded to Gray’s proposal informing him he would not give up his name.

Later, Gray and Ninn Worx_SR filed a suit separate of the federal one at Los Angeles Superior Court alleging that Ninn had breached his fiduciary duty by exceeding a budget relative to “The Four” and by not delivering a completed film.

“At the same time, Gray began delivering accounting statement to Ninn showing that the fees for his team of lawyers was being charged against the profits of the Ninn Worx_SR library, further miring the company in debt and rendering Ninn’s 49 percent worthless,” Ninn’s attorney wrote.

In the ongoing suit filed at Los Angeles Superior Court, Ninn brought counterclaims against Gray alleging fraud, misrepresentation, rescission of an agreement and breach of fiduciary duty.

Ninn, who did not return calls for comment this week, told XBIZ last year that he felt used as a pawn for Spearmint Rhino to make entry into the adult video market and get its own imprint, Spearmint Rhino Films, off the ground.

“I stand on the outside of Ninn Worx_SR along with my contract stars and my crew, knowing that I no longer have to live with the lie that the check is in the mail or that the corporate committee will get back to you as soon as they have reviewed your invoice and have reached a decision on paying you,” Ninn said.

Meanwhile, Spearmint Rhino COO Kathy Vercher told XBIZ last year that Ninn Worx_SR “invested in Michael’s vision.”

“We were to put the money in and we did that,” she said at the time. “We just could not fuel his fantasies anymore, making movies with no end to the budget in sight or whatever it was; it no longer made business sense. More money was going in than what was coming out.”

Ninn’s latest movie, “Solamente,” will be released on DVD and hits stores on March 3. The video features performers Jana Cova, Jennifer Dark, Heather Carolin and Georgia Jones, among others, as well as “Ninn’s signature lush style, breathtaking locations and high production values,” according to Celluloid Addiction.

Days later, on March 9, Ninn’s attorney, Riley, and Ninn Worx_SR attorney, Peter Garrell, will argue the federal case in Los Angeles. Riley and Garrell did not return phone calls for comment.

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