fargo” “defendant ”) - star...

UNITED STATES DISTRICT COURTDISTRICT OF MINNESOTA

Wells Fargo & Company,

Plaintiff,

vs.

John Does 1-10,

Defendants.

Court File No.:

COMPLAINT FOR DAMAGES ANDINJUNCTIVE RELIEF

JURY TRIAL DEMANDED

Plaintiff Wells Fargo & Company (“Wells Fargo”) files this complaint against

Defendants John Does 1-10 (“Defendants”) and alleges and states as follows:

PARTIES

1. Wells Fargo is a corporation duly authorized and existing under the laws of the

state of Delaware, having its principal place of business located at 420 Montgomery Street, San

Francisco, California 94104.

2. Defendants John Does 1-10 are individuals and entities who participated in the

scheme described herein to defraud consumers by using fictitious WELLS FARGO letterhead,

trademarks and other information.

JURISDICTION AND VENUE

3. This is an action for infringement of federally registered trademarks and federal

unfair competition arising under the Lanham Act, 15 U.S.C. §§ 1114 and 1125, et seq, for

violation of the Racketeer Influenced and Corrupt Organization Act (“RICO”) under 18 U.S.C. §

1962, et seq, and for acts which constitute deceptive trade practices and consumer fraud in

Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 of 14

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violation of the Minnesota Deceptive Trade Practices Act, Minn. Stat. § 325D.44 and the

Minnesota Consumer Fraud Act, Minn. Stat. § 325 F.69, et seq.

4. This Court has original jurisdiction over this action under 28 U.S.C. §§ 1331,

1338(a) and 1338 (b) and supplemental jurisdiction over the state law counts. Venue is proper in

this district pursuant to § 1391(b). All claims associated herein arise out of the same case of

facts.

GENERAL ALLEGATIONS

5. Wells Fargo is, and for decades has been, engaged in providing quality banking

and financial services to the public under numerous well-known service marks, trade names, and

trademarks, including but not limited to, the famous WELLS FARGO® mark.

6. Wells Fargo is the registered owner of the mark WELLS FARGO®. The WELLS

FARGO® mark is registered with the United States Patent and Trademark Office as Registration

Nos. 779,187; 891,203; 1,131,103; 1,136,497; 1,138,966; 1,167,626; 1,181,279; 1,274,680;

2,555,996; 2,555,997; 2,561,807; 2,597,836; 2,617,850; 2,688,407; 2,694,042; 2,800,535;

2,808,874; 2,810,815; 2,810,816; and 3,626,451 for a wide variety of goods and services. The

WELLS FARGO® mark has been continuously used since the dates stated in the registrations.

True and correct copies of Plaintiff’s WELLS FARGO® registrations are attached hereto as

Exhibit A. Each of these registrations is valid and enforceable. Pursuant to 15 U.S.C. § 1065,

Wells Fargo’s rights in these registrations are incontestable.

7. Wells Fargo is the registered owner of the red and gold WELLS FARGO® box

logo which is registered with the United States Patent and Trademark Office as Registration Nos.

2,526,696; 2,680,835; 2,680,854; 2,683,387; 2,690,610; 2,690,612; 2,697,633; 2,802,581;

2,810,817; 2,810,818; 2,810,819; and which has been used continuously since the dates stated in


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each registration. True and correct copies of these registrations are attached hereto as Exhibit B.

Pursuant to 15 U.S.C. § 1065, Wells Fargo’s rights in many of these registrations are

incontestable.

8. The WELLS FARGO® mark and the WELLS FARGO® box logo are known

throughout the United States as identifying Wells Fargo as a source of, inter alia, quality banking

and financial services. Wells Fargo spends millions of dollars each year on advertising featuring

its marks.

9. The WELLS FARGO® mark and the WELLS FARGO® box logo are of great

and incalculable value to Wells Fargo, are highly distinctive and arbitrary, and have become

associated in the public mind with, inter alia, banking and financial products and services of the

highest quality and reputation originating with Wells Fargo.

10. Wells Fargo’s extensive use in interstate commerce of the WELLS FARGO®

mark and the WELLS FARGO® box logo in the United States has caused the public and

members of the banking and financial services trade to associate goods and services bearing the

WELLS FARGO® mark and the WELLS FARGO® box logo with Wells Fargo and Wells Fargo

alone.

11. Wells Fargo closely controls the use and reproduction of its WELLS FARGO®

mark and the WELLS FARGO® box logo to ensure that all of its current and potential customers

can rely upon those marks as signifying quality, inter alia, banking and financial services.

12. Wells Fargo’s substantial investment in and use of its marks has helped Wells

Fargo to realize substantial revenue from its banking and financial services business.


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DEFENDANTS’ ILLEGAL ACTIONS

13. In 2009, after the WELLS FARGO® marks had been prominently used and

promoted, Wells Fargo received complaints regarding a false and misleading funds verification

letter, which on its face, appears to originate from Plaintiff Wells Fargo. A true and correct copy

of this letter is attached hereto as Exhibit C. Wells Fargo did not create or mail this letter, nor

did any individual or entity have authority to do so.

14. Exhibit C purports to originate from an actual Wells Fargo branch manager,

Tigran Sargisya, contains a false and misleading phone number that purports to be Tigran

Sargisya’s business line, and is stamped with a false and misleading seal that purports to be a

Wells Fargo seal. Tigran Sargisya is an employee of Wells Fargo but did not authorize the use of

her name on the letter. Wells Fargo did not create the seal, nor did it authorize any individual or

entity to use the same.

15. Subsequent investigation by Wells Fargo revealed that phone number listed on

Exhibit C is a working phone number. When dialed, the message plays Wells Fargo music,

states the name of Tigran Sargisya and asks that you leave a message. The voice is not that of a

Wells Fargo employee or of Tigran Sargisya. Investigation also revealed that the number is a

personal cell phone number.

16. On October 30, 2009, counsel for Wells Fargo sent correspondence to the service

provider for the cell phone number listed on Exhibit C, Reachme.com, disclosing the fraudulent

use of the cell phone number, and seeking suspension of the cell phone number and disclosure of

the identity of the individual or entity who purchased the cell phone contract. To date,

Reachme.com has refused to either suspend the cell phone number or to disclose the identity or


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address of the individual or entity that purchased the cell phone contract without compensation

for the disclosure.

17. In March 2010, an individual presented a letter which purported to be a “Bank

Proof of Funds Letter,” to a Wells Fargo branch bank located in Detroit Lakes, Minnesota

seeking verification of the Wells Fargo account number stated in the letter. A copy of the “Bank

Proof of Funds Letter” is attached as Exhibit D. Also presented with the “Bank Proof of Funds

Letter” was a second letter which purportedly originated from a Panamanian corporation, which

states that Wells Fargo is authorized to verify funds in its Wells Fargo account, referencing the

same Wells Fargo account number stated on the Exhibit D. A copy of the purported Panamanian

letter is attached as Exhibit E.

18. Exhibit D also purports to originate from an actual Wells Fargo branch manager,

Tigran Sargisya, contains a false and misleading phone number that purports to be Tigran

Sargisya’s business line, and is stamped with a false and misleading seal that purports to be a

Wells Fargo seal. Tigran Sargisya did not authorize the use of her name on the letter, and Wells

Fargo did not create the seal, nor did it authorize any individual or entity to use the same.

19. Upon information and belief, Defendants’ use of the documents contained in

Exhibit C and Exhibit D is part of a scheme to defraud individuals and entities seeking

financing for commercial projects or to invest in such projects. Defendants use documents such

as those attached as Exhibits C and D to convince investors that Defendants have large funds

available for financing and/or investing. The accounts described, and the funds stated to reside in

said accounts, are entirely fictitious.

20. All statements and uses of Wells Fargo trademarks, including the WELLS

FARGO® mark and the WELLS FARGO® box logo, are made without the approval of Plaintiff


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and are designed to intentionally deceive the public as to the relationship between Plaintiff and

Defendants.

21. Defendants have no affiliation, association or connection whatsoever with

Plaintiff. Plaintiff does not sponsor, approve or authorize any of Defendants’ use of the WELLS

FARGO® mark or the WELLS FARGO® box logo. The letters attached as Exhibits C and D

do not originate from Wells Fargo or any affiliate of Wells Fargo.

22. Defendants’ use of the WELLS FARGO® mark and the WELLS FARGO® box

logo is likely to, and is intended to, cause confusion, mistake or deception as to Defendants’

affiliation with Wells Fargo.

23. Defendants’ unauthorized use of the WELLS FARGO® mark and the WELLS

FARGO® box logo has caused and is causing Plaintiff irreparable harm. It is impossible to

know how many persons have been confused, mislead and deceived by Defendants’ unauthorized

use of the WELLS FARGO® mark and the WELLS FARGO® box logo, or who have been

deceived to believe that Plaintiff authorized, sponsored or approved of Defendants’ use of the

same, or that Defendant or its business is affiliated or connected in any way with Plaintiff.

24. Defendants’ unauthorized use of the WELLS FARGO® mark and the WELLS

FARGO® box logo caused and continues to cause irreparable damage to the reputation and

goodwill of Plaintiff, which has no control over Defendants’ activities.

25. Actual confusion has occurred as a result of Defendants’ actions.

26. Defendants have engaged in the conduct described above willfully, intentionally,

knowingly, maliciously, wantonly, oppressively and in reckless disregard of the obvious and

inevitable injurious consequences of their conduct. Defendants have a bad-faith intent to trade

on and profit from Plaintiff’s goodwill and reputation and to confuse and mislead the public.


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FIRST CLAIM FOR RELIEFViolation of Lanham Act for Intentional Infringement,

15 U.S.C. § 1114(1)

27. Plaintiff re-alleges and incorporates by reference the allegations set forth above in

paragraphs 1 through 26.

28. Plaintiff is informed and believes that Defendants willfully, knowingly and

intentionally used in interstate commerce the WELLS FARGO® mark without Plaintiff’s

consent or authorization.

29. Defendants’ infringement of the WELLS FARGO® mark is likely to cause

confusion, or to cause mistake, or to deceive the consuming public in violation of Section 32 of

the Lanham Act (15 U.S.C. § 1114(1)).

30. Defendants’ unlawful acts have caused and continue to cause Plaintiff to suffer

damages, including irreparable injury to Plaintiff’s business reputation, goodwill and to the

integrity of their marks.

31. Plaintiff’s remedies at law cannot adequately compensate it for the ongoing

injuries threatened by Defendants’ continuing conduct. Unless Defendants are restrained and

enjoined, Defendants will continue to commit unlawful acts, causing Plaintiff to suffer further

irreparable injury.

32. Because Defendants’ infringement is intentional, Plaintiff is entitled to treble

damages and reasonable attorneys’ fees under 15 U.S.C. § 1117.

SECOND CLAIM FOR RELIEFViolation of Lanham Act for Intentional Infringement,

15 U.S.C. § 1114(1)




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34. Plaintiff is informed and believes that Defendants willfully, knowingly, and

intentionally used in interstate commerce the WELLS FARGO® box logo without Plaintiff’s

consent or authorization.

35. Defendants’ infringement of the WELLS FARGO® box logo is likely to cause

confusion, or to cause mistake, or to deceive the consuming public in violation of Section 32 of

the Lanham Act (15 U.S.C. § 1114(1)).

36. Defendants’ unlawful acts have caused and continue to cause Plaintiff to suffer

damages, including irreparable injury to Plaintiff’s business reputation, goodwill and to the

integrity of their marks.

37. Plaintiff’s remedies at law cannot adequately compensate it for the ongoing

injuries threatened by Defendants’ continuing conduct. Unless Defendants are restrained and

enjoined, Defendants will continue to commit unlawful acts, causing Plaintiff to suffer further

irreparable injury.



THIRD CLAIM FOR RELIEFViolation of Lanham Act for False Designation of Origin,

15 U.S.C. § 1125(a)



40. Defendants’ acts constitute false designation of origin, source or sponsorship and

false or misleading descriptions and representations in violation of Section 43 of the Lanham Act

(15 U.S.C. § 1125(a)). Such acts by Defendants were knowing, willful and intentional.


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FOURTH CLAIM FOR RELIEFRICO Claim - Violation of 18 U.S.C. § 1961 et seq.



43. Defendants’ constitute an enterprise engaging in racketeering activity in violation

of 18 U.S.C. § 1961 et seq. Defendants have unlawfully engaged in at least two acts of

racketeering activity in interstate commerce the following conduct of such enterprises’ affairs

through a pattern of racketeering activity including, but not limited to, wire fraud, mail fraud and

bank fraud in violation of 18 U.S.C. §§ 1341, 1343 and 1344 to support a fraudulent scheme to

induce consumers to make payments by wire transfer to Defendants for services Defendants do

not in fact provide.

44. Wells Fargo was injured by reason of, and as a direct and proximate result of,

Defendants’ fraudulent actions, in that Defendants’ use of the WELLS FARGO® mark and the

WELLS FARGO® box logo in a manner that has caused, and will continue to cause, a likelihood

of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the

respective products and services of Defendants by Plaintiff.

FIFTH CLAIM FOR RELIEFViolation of Minnesota Deceptive Trade Practices Act

Minn. Stat. § 325D.44




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46. Defendants have, in the course of their business, used the WELLS FARGO®

mark and the WELLS FARGO® box logo in a manner that has caused, and will continue to

cause, a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval

or certification of the respective products and services of Defendants by Plaintiff. Defendants’

use of the WELLS FARGO® mark and the WELLS FARGO® box logo is likely to cause

damage to Plaintiff. Defendants have and are therefore engaged in deceptive trade practices

within the meaning of Minn. Stat. § 325D.43, et seq.

47. Plaintiff is entitled to an injunction pursuant to Minn. Stat. § 325D.45, subd. 1.

48. Because Defendants have willfully engaged in the described deceptive trade

practices knowing them to be deceptive, Plaintiff is entitled to its reasonable attorneys’ fees

pursuant to Minn. Stat. § 325D.45, subd. 2.

SIXTH CLAIM FOR RELIEFViolation of Minnesota Consumer Fraud Act

Minn. Stat. § 325F.69



50. The Minnesota Consumer Fraud Act provides, in pertinent part, as follows:

The act, use, or employment by any person of any fraud, false pretense, falsepromise, misrepresentation, misleading statement or deceptive practice, with theintent that others rely thereon in connection with the sale of any merchandise,whether or not any person has in fact been mislead, deceived or damaged thereby,is enjoinable as provided herein.

Minn. Stat. §325F.69, subd. 1.

51. Defendants have, in the course of their business, used the WELLS FARGO®

mark and the WELLS FARGO® box logo in a manner that has caused, and will continue to


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cause, a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval

or certification of the services of Defendants.

52. Defendants’ use of the WELLS FARGO® mark and the WELLS FARGO® box

logo was false, misleading, and deceptive. Plaintiff has not ratified or authorized Defendants’

use of the WELLS FARGO® mark and the WELLS FARGO® box logo. All statements made

by Defendants on letters such as Exhibits C and Exhibit D are entirely false.

53. Minn. Stat. § 8.31 provides the Minnesota Attorney General with broad statutory

authority to investigate violations of law regarding unlawful practices barred by the Minnesota

Consumer Fraud Act.

54. The Private Attorney General Statute provides that any person injured by a

violation of the laws entrusted to the Attorney General to investigate and enforce, including the

Minnesota Consumer Fraud Act, may recover damages, together with costs and reasonable

attorneys’ fees. Minn. Stat. §8.31, subd. 3a.

55. Plaintiff has been injured as a result of Defendants’ violation of the Minnesota

Consumer Fraud Act in that Defendants’ conduct has caused, and will continue to cause, a

likelihood of confusion, mistake and deception as to the source, sponsorship, approval or

certification of the services of Defendants.

56. Awarding Plaintiff its attorneys’ fees under the Minnesota Consumer Fraud Act

will confer a public benefit in that Defendants are intentionally deceiving the public through the

use of the WELLS FARGO® mark and the WELLS FARGO® box logo to defraud consumers.

In exposing and prosecuting Defendants’ false and fraudulent conduct as a private attorney

general, Plaintiff is serving the public interest.

57. Plaintiff is entitled to an injunction pursuant to Minn. Stat. § 325F.70.


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58. Plaintiff is entitled to recover its costs and disbursements herein, including

reasonable attorneys’ fees that they have and will incur as a result of Defendants’ violation of the

Minnesota Consumer Fraud Act.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Wells Fargo respectfully prays for judgment against

Defendants as follows:

A. That the Court grant preliminary and permanent injunctive relief against

Defendants, their agents, servants, employees, attorneys, successors, licenses, and assigns, and

anyone acting in concert or privity with Defendants, jointly and severally:

(1) from using the WELLS FARGO® mark and the WELLS FARGO® box logo or

any other similar term or terms likely to cause confusion therewith, in connection

with the advertisement, marketing, distribution, sale or offer for sale of their goods

and/or services;

(2) from unfairly competing with Wells Fargo;

(3) from using any other trademark, service mark, trade name, corporate name, word

or symbol or doing any other acts likely to induce the belief that Defendants’

commercial activities, products, services or business, are Plaintiff’s commercial

activities, products, services or business or that Defendants are in any way

authorized or sponsored by or connected, endorsed, or associated with Plaintiff or

with Plaintiff’s commercial activities, products, services or business; and

(4) with such injunction including a provision directing Defendants to file with the

Court and serve on Plaintiff within thirty (30) days after the service on Defendants


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of such injunction a report in writing under oath setting forth in detail the manner

and form in which Defendants have complied with the injunction;

B. That the Court order Defendants to deliver to the Court for impoundment and

destruction any and all solicitations, advertising, circulars, price lists, signs, banners, business

stationery, prints, packages, labels, containers, freights, cartons, receptacles, wrappers, art work

and other materials in their possession or custody or under their control that infringe Plaintiff’s

WELLS FARGO® mark and the WELLS FARGO® box logo and any other of Plaintiff’s

trademarks, service marks, or trade name;

C. That the Court award treble damages to Wells Fargo, together with costs, interest

and attorneys’ fees as permitted by 15 U.S.C. § 1117(a); Minn. Stat. § 325D.45, subd. 2; Minn.

Stat. § 325F.69, subd. 1; and 18 U.S.C. § 1964;

D. That the Court award Wells Fargo such sum or sums as the Court may find to be

just pursuant to 15 U.S.C. § 1117(a);

E. That the Court award Wells Fargo its costs and attorneys’ fees in prosecuting this

action; and

F. That the Court award Wells Fargo such other relief as it deems just and proper.

JURY DEMAND

Plaintiff requests a jury trial for all issues so triable.


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Date: April 6, 2010 BARNES & THORNBURG LLP

By: s/ Felicia J. BoydFelicia J. Boyd, MN #186168Laura N. Maupin, MN #324942100 South Fifth Street, Suite 1100Minneapolis, MN 55402Tel.: (612) 333-2111Fax: (612) 333-6798

ATTORNEYS FOR PLAINTIFFWELLS FARGO & COMPANY

MIDS01 FBOYD 600024v1


Case 0:10-cv-01142-MJD-FLN Document 1-1 Filed 04/06/10 Page 1 of 35

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