Beruflich Dokumente
Kultur Dokumente
U S OtSTPiCT rOURT
IN THE UNITED STATES DISTRICT COURT
, IL L J
FOR THE DISTRICT OF NEW HAMPSHIRE
DAVID COUTURE
Plaintiff
v. / 0 -cu-yyo
PLAYDOM, INC.
a Delaware corporation
Defendant
COMPLAINT
INTRODUCTION
industry since 2003. He has been advertising and actively offering entertainment services
for television, film, and new media (digital media transmitted over multiple platforms)
using the PLAYDOM mark since May 30, 2008. Mr. Couture chose "Playdom" as a
combination of "play dumb" and the word "kingdom." In addition, he uses the slogan
"Where Comedy is King" to drive home the connection and uses one cohesive logo that
The defendant named here adopted the corporate name "Playdom, Inc." and the
addition, the defendant applied for the identical MARK with the United States Patent and
Trademark Office under the identical International and/or U.S. codes as the one legally
PLAYDOM PLAYDOM
The U.S.P.T.O. DENIED the defendant's application
When a cease and desist letter by the plaintiff was sent in a timely manner,
Since then, Defendant has attempted to bully Plaintiff with false accusations of
fraud, threats of legal action and lies in an attempt to force Plaintiff to abandon his
rightful claim to the PLAYDOM mark. Since the adoption of the Infringing Trademark,
Defendant has buried Plaintiff's legally registered and maintained trademark in a sea of
infringement.
While the defendant has tried to dismiss Plaintiff's use of the PLAYDOM mark
as fraud, the U.S.P.T.O. has thus far their claims in ruling against Defendant's Motion for
More recently, the defendant has announced the sale of their company along with
their website www.Plavdom.com and all the assets marketed under the Infringing Mark
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and all products and services offered and sold under the Infringing Mark. Accordingly,
David Couture has no choice but to commence this action to prevent the unjust
enrichment of a willful infringer, and to protect his PLAYDOM® brand and trademark
PARTIES
1. Plaintiff has maintained a website available on the World Wide Web with an
www.PlaydomInc.com since May 30, 2008. After the willful infringement by Defendant,
Plaintiff was forced to adopt an Internet address resolving at the Uniform Resource
organized in Delaware and California and having a principal place of business at 100 W.
Evelyn Ave., Suite 110 Mountain View, California 94041. Playdom, Inc. also maintains
a website on the World Wide Web with an Internet address resolving at the Uniform
3. This Court has original subject matter jurisdiction over Plaintiff's claims
pursuant to 28 U.S.C. §§ 1331 and 1338 and 15 U.S.C. §§ 1116 and 1121. This Court
has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.
4. This Court has personal jurisdiction over Defendant in that they do business
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presence.
BACKGROUND FACTS
6. David Couture, and at times his Agent, has been offering his services in the
entertainment industry since 2003. His services have been advertised and offered in
conjunction with the PLAYDOM mark since May 30, 2008. Plaintiff currently has
projects in consideration at 20tb Centry Fox Television, ABC Studios, and FX Network.
7. David Couture is the owner of the entire right, title and interest in and to, inter
United States Patent and Trademark Office ("USPTO") website evidencing Plaintiff's
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"PLAYDOM mark."
10. The PLAYDOM Trademark has been promoted both in the United States and
11. The PLAYDOM mark has also been advertised with business cards that
reference Plaintiff's website and distributed for the purpose of offering his entertainment
12. Plaintiff has used the email address playdonKSmac.com, utilizing the
Defendant's Conduct
Number 77666627), under IB filing status despite prior "use in commerce" of Plaintiff's
registered trademark for identical services and services in a closely related industry,
"www.Playdominc.com." appeared at or near the top position of the search engine results
through a simple search for Plaintiff's mark "PLAYDOM" using major search engines
14. As shown below, Defendant has advertised and offered for sale and or sold
their "virtual goods" and services using the Infringing Trademark. They utilized a
confusingly similar slogan "Where players rule," which has similar sentence structure
and evokes the same theme of "kingdom" as Plaintiff's slogan "Where Comedy is King."
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15. On April 28, 2010, Defendant's Attorney responded to Plaintiff's cease and
desist letter. They disagreed that there was any potential for consumer confusion or
infringement and claimed that Defendant and Plaintiff's services were clearly different.
Defendant's Attorney attempted to get permission for the use of Defendant's Infringing
Trademark Office.
16. On April 30, 2010, Defendant's application for the Infringing Trademark
was refused by the United States Patent and Trademark Office because of a likelihood of
confusion with the mark in U.S. Registration No. 3560701. Trademark Act Section 2(d),
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18. On February 18, 2010, Defendant filed a motion for Summary Judgment.
19. On June 23, 2010, The United States Patent and Trademark Office denied
21. The PLAYDOM Trademark has been used to advertise and offer Plaintiff's
entertainment services since May 30, 2008 through www.PlaydomInc.com and more
Trademark.
Plaintiff's federally registered trademark and website address mentioned therein, and the
offered for sale and sold "virtual goods," services and software using the Infringing
Trademark in direct and indirect competition with Plaintiff's genuine offering of services,
23. Defendant's use of the Infringing Trademark is likely to cause and is causing
confusion, mistake and deception among the general purchasing public and purchasing
business entities as to the connection between Plaintiff and Defendant and their services.
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Since Plaintiff has received inquiries regarding Defendant's business practices, it is fair
to say that Plaintiff easily could have lost potential business due to consumer confusion.
confusion because Defendant has and continues to operate in the same channels of
business, selling services and or goods to companies including but not limited to NBC
to be ascertained at trial.
the website www.Playdom.com on December 6, 2008 despite the fact that Plaintiff's
PLAYDOM Trademark was published for opposition on October 28, 2008 and clearly
states and provides proof in his application that said mark was first in use in commerce in
association with identical and confusingly similar services as Defendant on May 30,
2008.
and Services via the website www.Playdom.com beginning on or around March 11, 2009,
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to be ascertained at trial.
33. Plaintiff has used the PLAYDOM mark within and beyond the borders of
confusion with Plaintiff's legally registered PLAYDOM trademark (See EXHIBIT B).
to be ascertained at trial.
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favor and against Defendant on all of the above causes of action as follows:
1. That this Court preliminarily and permanently enjoin Defendant, their officers,
agents, servants, employees, attorneys and all persons in active concert or participation
PLAYDOM Mark.
referred to above;
2. That this Court enter a judgment finding that Defendant has infringed, and
3. That this Court enter a judgment finding that Defendant's use of the Infringing
Trademark has caused and or is likely to cause confusion among the general purchasing
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4. That this Court enter a judgment finding that Defendant's use of the Infringing
Trademark has caused and/or is likely to cause initial interest and post-sale confusion
among the general purchasing public as to the source of origin of the Infringing
Products/Services.
5. That this Court enter a judgment that the use or proposed use of the Suspended
6. That this Court order the withdrawal and abandonment of the Defendant's
7. That this Court certify the above orders to the Director of the United States
Patent and Trademark Office so the Director may make the appropriate entry upon the
records of the Patent and Trademark Office pursuant to the Lanham Act, 15 U.S.C. §
1119.
9. That this Court order the transfer of the domain name www.Playdom.com to
10. That this Court order Defendant to deliver up for destruction or show proof of
destruction of any and all products, advertisements, publications, labels and any other
materials in their possession, custody, or control that depict or reference the trademark(s)
11. That this Court order Defendant to file with this Court and to serve upon
Plaintiff a report in writing and under oath setting forth in detail the manner and form in
which Defendant has complied with any injunction resulting from this matter within
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14. That this Court grant such other and further relief as may
Richarh^N^ Foley
55 Market Street, 2B
Portsmouth, NH 03801
Tel: (603) 433-1303
Bar No. 10520
CERTIFICATE OF SERVICE
EXHIBIT A
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 16 of 29
Latest Status Info
Thank you for your request. Here are the latest results from the TARR web server.
Mark
PLAYDOM
(words only): PLAYDOM
Current Status: A cancellation proceeding has been l'*ilccl at the Trademark Trial and Appeal Board and is
now pending.
Register: Principal
If you are the applicant or applicant's attorney and have questions about this file, please contact the
Trademark Assistance Center at TrademaikAssi.stanccCentcr@uspto.yov
mp:/A,vr.uspt(>.gov/seivlei/t»rr?tt<|Mr>=serlalaentry« 77487907
Pige J of 3
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 17 of 29
Latest Status Info
I. David Couture
Address:
David Couture
9846 West Olympic Blvd.
Beverly Hills, CA 90212
United States
Legal Entity Type: Individual
Country of Citizenship: United States
Phone Number: 310-210-0222
ADDITIONAL INFORMATION
(NOT AVAILABLE)
(NOT AVAILABLE)
PROSECUTION HISTORY
NOTE: To view any document referenced below, click on the link to "Trademark Document
Retrieval" shown near the top of this page.
2009-07-27 - Attorney Revoked And/Or Appointed
hHp://Mrr.u«pto.gov/servlc!/iarr?r«gs«r=serlal4cmry-77<f87907
Page 2 of ?
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Utest Sl.itus Info
ATTORNEY/CORRESPONDENT INFORMATION
Attorney of Record
Richard N. Foley
Correspondent
Richard N. Foley
55 Market Street Suite 2B
Portsmouth. NH 0380J
h«tp://tnrr.iispto.3ov/5crwlcl/t»rr)re<jser=iiBrl«l*BntfY=77487907
Papt 3 of 3
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 19 of 29
EXHIBIT B
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 20 of 29
GmiUl - Mt View office space
•I
pQ ^ | 11 Playdom Inc <playdomlnc@gmail.com>
Best,
Reed Nescher
Playing as Real Papa Bear
951-849-9112
h
«'» : ''™«-^ta.eom/n M H/^l-2*», M . M 4241B^ W -pW,a«h- l »bo»ftm. BB lJ,3l £9 i04« W 5 b ,4
Page 1 o f )
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 22 of 29
Phone: 6685006277
Message- PLEASE CONTACT US ASAP IN REF. TO SOME CHARGES ON OUR ACCOUNT TO YOUR COMPANY. PLEASE CONTACT ME B
EMAIL WITH A COMPANY PHONE ».
THANK YOU
Company:
Message, i need to know whate kind Ol company this is i have a total on my debit card please call me
Best,
www.Qvakm.com
G bfiJOOStk
» Playdom Inc <playdominc@gmail.com>
Reed Nescher
Playing as Real Papa Bear
951-849-9112
https://mail.google.com/mail/?ui=2&ik=86a0d42416&view=pt&search=inbox&msg=12131c3f04dd5b54 Page 1 of 1
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 26 of 29
Phone: 8885006277
Message: PLEASE CONTACT US ASAP IN REF. TO SOME CHARGES ON OUR ACCOUNT TO YOUR COMPANY. PLEASE CONTACT ME BY
EMAIL WITH A COMPANY PHONE #.
THANK YOU
Company:
Message: i need to know whate kind of company this is i have a total on my debit card please call me
DAVID COUTURE )
Plaintiff )
v. )
PLAYDOM, INC. )
a Delaware corporation )
Defendant )
PLAINTIFF'S AFFIDAVIT
mark because Disney and their subsidiaries purchase and sell entertainment services and
goods including but not limited to production and writing services to the same potential
Multiple media outlets including but not limited to the New York Times reported
on at the end of July 2010 that Disney agreed to buy Playdom, Inc. for "a deal worth as
much as $763.2 million." The Deal is expected to close prior to Disney's 2010 fiscal
fourth quarter According to the Federal Trade Commission, Defendant was granted
My scripts and services that are currently in consideration at ABC, 20tl, Century
Fox, and FX could be adversely affected by any association, real or implied, with Disney,
confusion because Defendant has and continues to operate in the same channels of
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business, selling services and or goods to companies including but not limited to NBC
consumer confusion.
Media outlets and online forums are reporting on the Defendant's pending sale to
Disney, which has already increased consumer confusion and the chance for consumer
confusion due to the fact that Disney and its subsidiaries offer identical services within
the same channels of business as myself, Every day (bat passes only reinforces the
"www.PlaydomEntertainment.com".
I declare under penalty of perjury, that T have read the above complaint and 1
know jt is true of my own knowledge, except as lo those things staled upon information
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