case 2:10 cv 00189 mhb document 1

8/14/2019 Case 2:10 Cv 00189 MHB Document 1

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COMPLAINT - 1

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Venkat Balasubramani (pro hac vicepending)FOCAL PLLC8426 40th Avenue SWSeattle, WA 98136Tel: (206) 529-4827Fax: (206) 260-3966Email: [email protected]

John A. Conley, State Bar #016429382 E Palm LanePhoenix, AZ 85004-1531Tel: (602) 307-0780Fax: (602) 307-0784Email: [email protected]

Attorneys for Plaintiff, PET HOLDINGS, INC.

IN THE UNITED STATES DISTRICT COURTDISTRICT OF ARIZONA

PET HOLDINGS, INC., a Delaware corporation,

Plaintiff,

vs.

JOHN DOE, registrant of domain name< failbook.com >,

Defendant.

NO.

COMPLAINT FORCYBERSQUATTING(FAILBOOK.COM), COPYRIGHTAND TRADEMARKINFRINGEMENT, AND UNFAIRBUSINESS PRACTICES

JURY TRIAL REQUESTED

PLAINTIFF, Pet Holdings, Inc. (PH I) respectfully submits this Complaint against John

Doe, the registrant of the domain < failbook.com > (Registrant), which is registered through

GoDaddy.com, Inc., a domain name registrar (the Registrar) that is located in this judicial

district. In support thereof, Plaintiff alleges as follows:

NATURE OF ACTION

This is an action for cybersquatting, trademark infringement, copyright infringement,

unfair competition, and breach of contract (terms of service). Registrant registered the domain

name < failbook.com > (the I nfri nging Domain) with the Registrar. The website accessible via

the Infringing Domain (the I nfri nging Site) displays an exact copy of the contents of PHIs Site

Case 2:10-cv-00189-MHB Document 1 Filed 01/27/10 Page 1 of 22


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(the PHI Site) accessible via the domain name (the PHI Domain Name),

which has been registered by PHI. The Infringing Site contains a for sale notation in the corner

that indicates that the Registrant is attempting to sell the Infringing Domain (but using PHIs

copyrighted materials, trademarks, and goodwill to do so). PHI has not granted the Registrant

permission to use any of the foregoing PHI intellectual property.

The PHI Site is a humorous site that pokes fun at on-line, public errors made by users of

social networking sites, with some of the content posted by third parties. The PHI Site contains

PHIs intellectual property, including PHIs service marks FAILBOOKING, a flaming head logo,

the tag line too funny to unfriend, and the house mark CHEEZBURGER, and copyrights in,

inter alia, certain entries, the flaming head logo and the design and layout of the website. The

Infringing Site contains unauthorized copies of these marks and copyrighted works and thereby

infringes on PHIs intellectual property rights. Registrants blatant attempt to divert users from

the PHI Site to the Infringing Site also constitutes unfair competition and breach of contract.

I. PARTIES1. Plaintiff Pet Holdings, Inc. is a corporation organized and existing under the laws

of Delaware and has a principal address at 190 Queen Anne Avenue North, Suite 250, Seattle,

Washington 98109.

2. Defendant is an individual or entity of unknown location who registered the

Infringing Domain. According to the WHOIS information forthe Infringing Domain, the

Registrar is GoDaddy.com, 14455 N. Hayden Rd., Ste. 219, Scottsdale, Arizona 85260. The

Registrant information is private, but the registration was effected through privacy protection

services offered by GoDaddy.com through Domains by Proxy, Inc. (which is located at 15111 N.

Hayden Rd., Ste. 160, PMB 353, Scottsdale, Arizona 85260).

II. JURISDICTION AND VENUE3. Subject Matter Jurisdiction: This Court has original subject matter jurisdiction

pursuant to 28 U.S.C. 1331 and 1367, 15 U.S.C. 1051, et seq. (the Lanham Act), and 17

U.S.C. 101, et seq. (the Copyright Act).



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4. Personal Jurisdiction: This Court has personal jurisdiction over the Defendant

because it has registered the Infringing Domain through an agent located in this judicial district

and the Registrar is located in this judicial district.

5. Venue: Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(2) because

a substantial part of the events or omissions giving rise to the claims occurred in this judicial

district and a substantial part of the property that is the subject of the action is situation in the

judicial district. Namely, Defendant has registered the Infringing Domain with an agent located

in this judicial district and the Registrar is located in this judicial district.

III. FACTS6. Plaintiff is a Seattle-based web company that operates the CHEEZBURGER

network of humorous media properties, including, for example, the websites accessible via

failbooking.com, failblog.org, myfirstfail.com, cheezburger.com, lolcats.com,

crazythingsparentssay.com, probablybadnews.com, engrishfunny.com, and thisisphotobomb.com.

Plaintiffs websites are extremely popular the sites receive approximately 5.5 million webpage

views daily. PHI constantly launches new websites, products, and media properties. In addition

to the websites, PHI has published books, sponsored events, and operates an online retail store.

7. In early January 2010, PHI launched the PHI Site (at failbooking.com), a humor-

oriented site that highlights funny miscommunications in social networking posts. True and

correct copies of screenshots from PHIs Site are attached hereto as Exhibit A. Many of the early

entries on the PHI Site were created by PHI or its employees.

8. PHIs Site incorporates intellectual property owned by PHI. Namely, the PHI Site

is part of the CHEEZBURGER network and the CHEEZBURGER mark appears on the PHI Site.

PHI owns Application Serial Number 77/806,474, filed on August 17, 2009, for the mark

CHEEZBURGER in connection with Entertainment services, namely, providing web sites

featuring text, photos, images, and other audiovisual material of a humorous nature in

International Class (IC) 041. PHI also owns Registration Number 3,426,428, registered on

February 26, 2008, for the mark I CAN HAS CHEEZBURGER? in connection with Providing



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On-Line Forums for the Transmission of Images and Messages among Computer Users

concerning Animals and Humor in IC 038.

9. PHI also holds rights in the following unregistered marks, which it has used on

PHIs Site since the site launched on or around January 6, 2010, all in connection with providing

web sites featuring text, photos, images, and other audiovisual material of a humorous nature:

Mark

FAILBOOKING

TOO FUNNY TO UNFRIEND

The CHEEZBURGER marks, the Flaming Head Logo mark, the FAILBOOKING mark, and the

TOO FUNNY TO UNFRIEND mark are referred to collectively, hereinafter, as the PH I

Marks. PHI has actively promoted these Marks, which are distinctive.

10. PHI holds copyright rights in works appearing on PHIs Site. On January 22,

2010, PHI applied for registrations in the works titled FAILBOOKING WEB SITE JANUARY

19, 2010. The application was submitted on an expedited basis and bears the number 1-

318713462. True and correct copies of the works for which registration is being obtained are

attached are attached hereto as Exhibit B. PHI also owns copyright rights in the Flaming Head

Logo and in the design and layout elements ofPHIs Site, specifically (1) the banner at the top of

the page with the Flaming Head Logo, the FAILBOOKING Mark, and the Tagline on a blue

background, and (2) the headings and features in the right column, namely the portions identified

by the following headings: (a) Featured Fails!, (b) Daily Updates, (c) The Big Book of Fail, (d)

Failbooking on Facebook, (e) Whats on your mind?, (f) Cheezburger Network, and (g) Even

Moar Lulz. The foregoing works are referred to collectively, hereinafter, as the PH I

Copyri ghted Works.



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11. PHIs Site bears the following Copyright legend at the bottom: Copyright

2001-2010 Funny Facebook Status Messages and PostsFailbooking (the PHI Copyright

Notice).

12. The Terms of Use for the PHI Site (and all ofPHIs Sites in the CHEEZBURGER

network), accessible via a hyperlink < Term of Use > at the bottom of each page of the PHI Site

and available at , provide, in relevant part, as

follows:

3.A. You agree not to distribute in any medium any part of the Websites,including but not limited to Content and User Submissions (each as definedbelow), without Pet Holdings prior written authorization. . . .

3.C. You agree not to access User Submissions (defined below) or Content throughany technology or means other than any explicitly authorized means designated byPet Holdings. . . .

3.D. You agree not to use the Websites for any commercial use, without the priorwritten authorization of Pet Holdings. Prohibited commercial uses include any ofthe following actions taken without Pet Holdings express approval: . . .

4. Any use of the Websites or its Content or services that Pet Holdingsfinds, in its sole discretion, to use its resources or User Submissions withthe effect of competing with or displacing the market for the Websites, itsContent, or its User Submissions. . . .

5.A. The content on the Websites, except all User Submissions, including withoutlimitation, the text, software, scripts, graphics, photos, sounds, music, pictures,interactive features and the like (Content) and the trademarks, service marks andlogos contained therein (Marks), are owned by or licensed to Pet Holdings,subject to copyright and other intellectual property rights under the law. Contenton the Websites is provided to you AS IS for your information and personal useonly and may not be downloaded, copied, reproduced, distributed, transmitted,broadcast, displayed, sold, licensed, or otherwise exploited for any other purposeswhatsoever without the prior written consent of the respective owners. PetHoldings reserves all rights not expressly granted in and to the Websites and theContent. . . .

5.D. You may access Content, User Submissions and other content only aspermitted under this Agreement. Pet Holdings reserves all rights not expresslygranted in and to the Content and the Websites. . . .

5.E. You agree to not engage in the use, copying, reproduction, transmission,broadcast, selling, licensing, downloading, or otherwise exploiting any of theContent other than expressly permitted herein, including any use, copying, ordistribution of User Submissions of third parties obtained through the Websites forany commercial purposes. . . .



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13. At some time following launch of the PHI Site, the Infringing Site launched as an

exact copy of the entire contents of the PHI Site. True and correct copies of screenshots of the

Infringing Site are attached hereto as Exhibit C. In copying the entire contents of the PHI Site,

the Infringing Site also copies the PHI Marks, the PHI Copyrighted Works, and the PHI

Copyright Notice, as well as the posts made by third parties. In fact, Registrant did not even

change the hyperlinks on the sitethe hyperlink for legal on the Infringing Site directs to

< failbooking.com/legal >, the webpage with legal information for the PHI Site, and the hyperlink

for Terms of Use on the Infringing Site directs to < icanhascheezburger.com/terms-of-use/ >,

the page containing the terms of use for the PHI Site.

14. Registrant has requested that visitors to the Infringing Site recommend the

Infringing Site on Digg, a website accessible at < www.digg.com >, where web users can submit

web content that they find interesting and recommend this content to fellow users. Individuals

within the Digg community may see the recommendations for the Infringing Site and visit that

website, rather than the legitimate sitethe PHI Site.

15. Finally, and most importantly, Registrant is offering the Infringing Site for sale,

through appropriating PHIs copyrighted material, trademarks, and goodwill. By copying the

entire contents of the PHI Site and posting those contents on the Infringing Site, which has a

nearly identical domain name, Registrant is using the PHI Marks in bad faith, and diverting traffic

from the PHI Site, thereby depriving PHI of users, customers, and potential advertising revenue.

IV. FIRST CAUSE OF ACTIONANTI-CYBERSQUATTING CONSUMER PROTECTION ACT (15 U.S.C. 1125(d))

16. Plaintiff incorporates herein by reference and realleges the allegations set forth in

paragraph 1-15, above.

17. Registrant registered and/or used the Infringing Domain with a bad faith intent to

profit from the PHI Marks, including PHIs FAILBOOKING mark.

18. PHIs FAILBOOKING mark was distinctive and at the time Registrant used the

Infringing Domain in a way that infringed on the ACPA rights of Pet Holdings.



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19. The Infringing Domain, < failbook.com >, is confusingly similar to PHIs

FAILBOOKING mark. The only difference between the Infringing Domain and PHIs

FAILBOOKING mark is the gerund ending in PHIs mark. Furthermore, the Infringing Site and

the PHI Site are identical, and Registrant propagated content through the Infringing Site to make

them appear identical.

20. PHI has suffered injury from Registrants registration and/or use of the Infringing

Domain. Registrants acts violate PHIs rights under the ACPA (15 U.S.C. 1125(d)).

V. SECOND CAUSE OF ACTIONTRADEMARK INFRINGEMENT (15 U.S.C. 1125(a))



22. Registrant has used the PHI Marks, without authorization, on the Infringing Site.

Further, the Infringing Domain, < failbook.com >, is confusingly similarto PHIs

FAILBOOKING mark.

23. PHIs first use of its marks is prior to Registrants use of the PHI Marks.

24. Registrants use of the PHI Marks is likely to cause confusion, or to cause mistake,

or to deceive as to the affiliation, connection, or association of Registrant with PHI, or as to the

origin, sponsorship, or approval of Registrants goods, services, or commercial activities by

another person.

25. PHI has been damaged or is likely to be damaged by Registrants use of PHIs

Marks.

VI. THIRD CAUSE OF ACTIONCOPYRIGHT INFRINGEMENT (17 U.S.C. 501)



27. Plaintiff owns the PHI Copyrighted Works and displays them on the PHI Site.

Plaintiff applied for copyright registration on an expedited basis (1-318713462) and this



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registrationcovering the banner and certain PHI-created entries on the PHI Siteshould issue

shortly.

28. Without authorization, Registrant (a) reproduced the PHI Copyrighted Works on

the Infringing Site, and (b) displayed the PHI Copyrighted Works publicly.

29. Registrants activities recited in the foregoing paragraph constitute willful

infringement of the PHI Copyrighted Works. Namely, Registrant knew that it did not own rights

in the PHI Copyrighted Works and that another party owned the rights in the PHI Copyrighted

Works, yet Registrant reproduced and displayed the PHI Copyrighted Works without

authorization.

30. Plaintiff has suffered injury from Registrants foregoing activities.

VII. FOURTH CAUSE OF ACTIONREMOVED OR ALTERED COPYRIGHT MANAGEMENT

INFORMATION (17 U.S.C. 1202)



32. Registrant has, without the authority of PHI or the law, (1) intentionally removed

or altered copyright management information, (2) distributed copyright management information

knowing that the copyright management information has been removed or altered without

authority of PHI or the law, and (3) distributed works and copies of works, knowing that

copyright management information has been removed or altered without authority of PHI or the

law, knowing, or having reasonable grounds to know, that it will induce, enable, facilitate, or

conceal an infringement of PHIs copyright rights. Namely, Registrant copied the PHI Copyright

Notice via electronic means and placed PHIs Copyright Notice on the Infringing Site without

authority of Registrant or the law, knowing, or having reasonable grounds to know, that this

copying and placement would induce, enable, facilitate, or conceal its infringement of copying

and distributing PHIs Copyrighted Works.

33. PHI has been damaged by Registrants foregoing actions.



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VIII. FIFTH CAUSE OF ACTIONUNFAIR COMPETITION UNDER WASHINGTON AND ARIZONA LAW



35. Plaintiff owns trademark rights in the PHI Marks.

36. PHIs first use of its marks is prior to Registrants use of the PHI Marks.

37. Registrant has used the PHI Marks on the Infringing Site and the Infringing

Domain is confusingly similar to PHIs FAILBOOKING mark.

38. Registrants use of the PHI Marks is likely to cause confusion, or to cause mistake,

or to deceive as to the affiliation, connection, or association of Registrant with PHI, or as to the

origin, sponsorship, or approval of Registrants goods, services, or commercial activities by

another person. Namely, Registrant copies the PHI Marks exactly and uses them on a website

identical to the PHI Site.

39. Registrant has taken further steps to divert traffic from the PHI Site. Namely, it

has invited visitors to the Infringing Site to recommend its website on Digg and thereby induce

other web users to visit the Infringing Site instead of the PHI Site.

40. PHI has been damaged or is likely to be damaged by Registrants foregoing

actions.

IX. SIXTH CAUSE OF ACTIONBREACH OF CONTRACT / VIOLATION OF TERMS OF SERVICE



42. Registrant agreed to comply with the Terms of Use for the PHI Site by accessing

the PHI Site. The language at the bottom of the front page for the PHI Site specifies that visitors

to the site agree to the Terms of Use, and Section 1 of the Terms of Use likewise obligate visitors

of the site to comply with the Terms of Use.

43. Accordingly, Registrant agreed that it would not:



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(a)distribute in any medium any part of PHIs Sitewithout PetHoldings prior written authorization (Section 3.A.)

(b)access User Submissions or Content through any technology or meansother than any explicitly authorized means designated by Pet

Holdings. (Section 3.C.)

(c)use the Websites for any commercial use, without the prior writtenauthorization of Pet Holdings[, including] [a]ny use of the Websites orits Content or services that Pet Holdings finds, in its sole discretion, to

use its resources or User Submissions with the effect of competing withor displacing the market for the Websites, its Content, or its User

Submissions. (Section 3.D.4.)(d)download, copy, reproduce, distribute, transmit, broadcast, display, sell,

license, or otherwise exploit PHIs Sitefor any other purposeswhatsoever without the prior written consent of the respective owners.

(Section 5.A.)

(e)access Content, User Submissions and other content [except] aspermitted under this Agreement. (Section 5.D.)

(f) engage in the use, copying, reproduction, transmission, broadcast,

selling, licensing, downloading, or otherwise exploiting any of theContent other than expressly permitted herein, including any use,

copying, or distribution of User Submissions of third parties obtainedthrough the Websites for any commercial purposes. (Section 5.E.)

44. Registrant failed to comply with the Terms of Use. Namely, Registrant distributed

accessed, used, used for commercial use, copied, reproduced, transmitted, downloaded, displayed,

and otherwise exploited the PHI Site, and the content thereon, without PHIs authorization.

45. Registrant therefore breached its obligations under the Terms of Use.

46. PHI has been damaged by Registrants breaches.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

1. An Order prohibiting Registrant from using the PHI Marks, or marks confusingly

similar to the PHI Marks.

2. An Order requiring transfer of the Infringing Domain to Plaintiff under 15 U.S.C.

1125(d)(1)(C) and for statutory damages.

3. An Order prohibiting Registrant from exercising any of Plaintiffs exclusive rights



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in the PHI Copyrighted Works.

4. An Order prohibiting Registrant from removing or altering the PHI Copyright

Notice, or any copyright management information relating to the PHI Copyrighted Works.

5. Damages for each cause of action, in an amount to be determined at trial.

6. With respect to the claims for copyright infringement under 17 U.S.C. 501,

Plaintiff may elect to recover statutory damages, pursuant to 17 U.S.C. 504(c)(1), and in the

event that proof at trial shows the infringement was willful, Plaintiff may elect to recover

increased statutory damages for such willful infringement pursuant to 17 U.S.C. 504(c)(2).

7. With respect to the claims for removed or altered copyright management

information under 17 U.S.C. 1202, Plaintiff may elect to recover statutory damages under 17

U.S.C. 1203(c)(3)(B).

8. Costs and attorneys fees, pursuant to 17 U.S.C. 505 and 1203(b)(4) and (5).

9. For such other relief as this Court may deem just and proper.

DATED this 27th

day of January 2010.

FOCAL PLLC

By:/s/ Venkat Balasubramani

Venkat Balasubramani (pro hac vice pending)8426 40

thAve SW

Seattle, WA 98136tel: (206) 529-4827fax: (206) 260-3966email: [email protected]

John A. Conley, State Bar #016429382 E Palm LanePhoenix, AZ 85004-1531Tel: (602) 307-0780Fax: (602) 307-0784Email: [email protected]



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EXHIBIT A



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EXHIBIT B



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EXHIBIT C



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case 2:10 cv 00189 mhb document 1

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