The order by U.S. District Judge Margaret M. Morrow deals a blow to Tucci, who had hoped to seek a California jury adjudicate her infringement and cybersquatting claims.
Veteran performer Tucci, whose real name is Carole Molloy, registered her stage name with the U.S. Patent and Trademark Office in 2007. Her suit alleges that the defendants registered and operated a number of websites — FlowerTucci.com, FlowerTucciPix.com, FlowerTucciNude.com and Club-FlowerTucci.com, among others — and are exploiting them without her permission.
Reality Kings and LLL have made motions for a court venue move because her arbitration agreement in her contract stipulated it.
But Tucci has been fighting a venue move, claiming that the contract’s provisions were the result of “overreaching” or “overweening bargaining power.”
Tucci said she discussed with the companies her intention not to be solely exclusive when she signed a January 2007 deal, but she later was found to have worked on Elegant Angel shoots and was terminated as a contract performer.
The Reality Kings/LLL deal was a rich one for Tucci, who was to be paid $130,000 per year, as well as a $5,000 signing bonus and a necklace.
According to the suit, once the companies believed Tucci had agreed to the terms of the exclusive performance contract, it purchased FlowerTucci.com from a company called Aligned Acquisitions for $10,088.
Morrow, in her order, said that determining the extent of the rights in the services agreement will clearly impact her trademark infringement, unfair competition and misappropriation claims.
“The services agreement signed by Molloy states, however, that ‘although [Tucci] will retain the ownership right over the stage name ‘Flower Tucci’ after the expiration of this agreement, [the companies’] rights hereunder shall include the right to continue to use such stage name in connection with the display, sale, promotion, republication and licensing of the content,’ ” Morrow said, who noted that Tucci additionally acknowledged the companies interest in promoting FlowerTucci.com.
The suit, so far, has focused mostly on whether her Reality Kings/LLL contract is enforceable and not procedurally unconscionable.
Tucci, in her suit, said that she was fraudulently induced to enter into a services agreement based on statements by LLL that her work with Elegant Angel would not be deemed a breach.
Tucci argued that if the enforceability of the contract is fraudulent that she’d be able to nix a motion to move the court venue to Florida, where Reality Kings and LLL are based.
But Morrow on Friday said that Tucci has not demonstrated that the contract is procedurally unconscionable or unenforceable and gave the green light for the case to move to Florida.
“Having concluded that the arbitration provision in the services agreement is enforceable, and that it operates effectively as a forum-selection clause, [Tucci] will have to bring her claims in the forum designated in the arbitration clause if they fall within the provision’s scope,” Morrow said.
Tucci's suit also targets Scorching Sands Inc., hosting company Net227 Inc., registrar NameCheap, as well as webmasters T. Kgels, Adam Nalepowski and Michael Puskarz.
