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8/8/2019 Complaint Playdom v Playdom
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
DAVID COUTURE
Plaintiff
v.
PLAYDOM, INC.a Delaware corporation
Defendant
/ 0 -cu-yyo
U S OtSTPiCT
, IL L J
COMPLAINT
Plaintiff David Couture ("David Couture" or "Plaintiff) hereby files this
Complaint on personal knowledge as to his activities and on information and belief as to
the activities of others:
INTRODUCTION
David Couture is an individual who has been working in the entertainment
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
consists of a court jester hat and a king's crown (below).
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The defendant named here adopted the corporate name "Playdom, Inc." and the
website www.Playdom.com with complete disregard for Plaintiff's trademark rights. In
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
registered and maintained by Plaintiff (below).
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,
Plaintiff was rebuffed.
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
Summary Judgment in association with the defendant's Petition for Cancellation of
Plaintiff's PLAYDOM mark.
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
2
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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
from increased consumer confusion.
PARTIES
1. Plaintiff has maintained a website available on the World Wide Web with an
Internet address resolving at the Uniform Resource Locater ("URL")
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
Locator ("URL")www.PlaydomEntertainment.com (while still actively using
www.PlaydomInc.coml to differentiate his services from Defendant's.
2. Defendant Playdom, Inc., formally doing business as YouPlus, is a corporation
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
Resource Locator ("URL")www.Playdom.com.
JURISDICTION AND VENUE
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
3
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http://www.playdominc.com/http://www.playdomentertainment.com/http://www.playdominc.coml/http://www.playdom.com/http://www.playdom.com/http://www.playdominc.coml/http://www.playdomentertainment.com/http://www.playdominc.com/8/8/2019 Complaint Playdom v Playdom
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and in this District.
5. Venue is appropriate in this judicial district under 28 U.S.C. 1391 in that
Defendant is subject to personal jurisdiction by reason of their pervasive Internet
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
alia, the following federally-registered trademark:
Registration Number Trademark Goods and Services
3,560,701 PLAYDOM Entertainment and educational services,namely, providing advice and informationfor music, video and film concept and
script development; Entertainmentservices, namely, a multimedia programseries featuring comedy, action andadventure distributed via variousplatforms across multiple forms oftransmission media; Motion picture filmproduction; Production of televisionprograms; Script writing services;Scriptwriting services.
8. Attached to this complaint as Exhibit A is a true copy of printouts from the
United States Patent and Trademark Office ("USPTO") website evidencing Plaintiff's
ownership of this trademark. The registration in Exhibit A is valid, subsisting,
4
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unrevoked, uncancelled, and incontestable.
9. This registered trademark is referred to as "PLAYDOM Trademark" or
"PLAYDOM mark."
10. The PLAYDOM Trademark has been promoted both in the United States and
throughout the world via the World Wide Web.
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
services associated with the PLAYDOM trademark.
12. Plaintiff has used the email address playdonKSmac.com, utilizing the
PLAYDOM Trademark, in association with entertainment services.
Defendant's Conduct
13. On February 9, 2009, Defendant filed for Trademark Application, (Serial
Number 77666627), under IB filing status despite prior "use in commerce" of Plaintiff's
Trademark (the "Infringing Trademark") and despite Plaintiff's identical federally-
registered trademark for identical services and services in a closely related industry,
namely online interactive entertainment. In addition, Plaintiff's website,
"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
including but not limited to Google and Yahoo.
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."
5
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Defendant also incorporates a crown into their logo.
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 and attempted to intimidate Plaintiff with accusations of fraud on the
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),
15 U.S.C. 1052(d); see TMEP 1207.01 et seq.
17. Undeterred, on June 15, 2009, Defendant filed for Cancellation of
Registrant's registered, legal, and maintained trademark.
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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
Defendant's motion for Summary Judgment.
FIRST CLAIM FOR RELIEF
(Trademark Infringement - 15 U.S.C. 1114)
20. Plaintiff hereby realleges and incorporates by reference the preceding
allegations of this Complaint as if full set forth herein.
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
recently through www.PlaydomEntertainment. com. A keyword search for "playdom" in
the major Internet search engines produced Plaintiff's website address,
www.PlaydomInc.com, in first position prior to Defendant's use of the Infringing
Trademark.
22. Without Plaintiff's authorization or consent, and presumed knowledge of
Plaintiff's federally registered trademark and website address mentioned therein, and the
fact that Defendant's Infringing Website, www.Playdom.com, is identical to the
PLAYDOM Trademark, Defendant has intentionally and knowingly advertised and
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,
in or affecting interstate commerce.
23. Defendant's use of the Infringing Trademarkis 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.
7
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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.
24. Defendant's use of Infringing Trademark is likely to cause and is causing
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
Universal and Disney/ABC/ESPN.
25. As a result of Defendant's activities, Plaintiff has been damaged in an amount
to be ascertained at trial.
SECOND CLAIM FOR RELIEF
(False Designation of Origin; false description or representation - 15 U.S.C. 1125(d))
28. Plaintiff hereby realleges and incorporates by reference the preceding
allegations of this Complaint as if full set forth herein.
29. Defendant, doing business as YouPlus, or an Agent of Defendant registered
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.
30. Defendant, formerly known as YouPlus, actively offered Infringing Products
and Services via the website www.Playdom.com beginning on or around March 11, 2009,
despite Plaintiff's official and uncontested registration of his PLAYDOM mark on
January 13, 2009 (Registration No. 3560701).
31. As a result of Defendant's actions, Plaintiff has been damaged in an amount
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to be ascertained at trial.
THIRD CLAIM FOR RELIEF
(Common Law Trademark Infringement)
32. Plaintiff hereby realleges and incorporates by reference the preceding
allegations of this Complaint as if full set forth herein.
33. Plaintiff has used the PLAYDOM mark within and beyond the borders of
California in the advertising and offering of entertainment services.
34. Defendant's acts constitute willful infringement of Plaintiff's exclusive rights
in the PLAYDOM Trademark, in violation of state common law.
35. Defendant knowingly infringed the Plaintiff's Trademark to cause confusion,
mistake, and deceive to the damage of the Plaintiff.
36. Defendant's Infringing Trademark has and continues to cause consumer
confusion with Plaintiff's legally registered PLAYDOM trademark (See EXHIBIT B).
Defendant's pending sale to Disney threatens to do irreparable harm to Plaintiff's
PLAYDOM mark and cause increased consumer confusion.
37. As a result of Defendant's actions, Plaintiff has been damaged in an amount
to be ascertained at trial.
9
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PRAYER FOR RELIEF
WHEREFORE, David Couture respectfully requests entry of judgment in his
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
with any of them:
a. From using in any manner the PLAYDOM Trademark, or any other
designation that is confusingly similar to the PLAYDOM Mark.
b. From any form of defamation regarding the Plaintiff or the
PLAYDOM Mark.
c. From the destruction, deletion or concealment of financial records or
other documents associated with YouPlus or Playdom, Inc.
d. From transferring Playdom, Inc.'s assets, intellectual property, or cash
to any individual or business entity without approval from the Court.
e. From otherwise competing unfairly with Plaintiff in any manner; and
f. From conspiring with, aiding, assisting or abetting any other person or
business entity in engaging in or performing any of the activities
referred to above;
2. That this Court enter a judgment finding that Defendant has infringed, and
willfully infringed, the PLAYDOM Trademark.
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
public as to the source of origin of the Infringing Products and Services.
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4. That this Court enter a judgment finding that Defendant's use ofthe 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
Playdom Trademark Application (Trademark Application Serial No. 77666627) causes
confusion or is likely to cause confusion with the PLAYDOM Trademark.
6. That this Court order the withdrawal and abandonment of the Defendant's
Suspended Playdom Trademark Application;
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 ofthe 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
Plaintiff, the rightful owner of the PLAYDOM Trademark.
10. That this Court order Defendant to deliver up for destruction or show proofof
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)
covered by this Court's judgment;
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
thirty days after service of such injunction.
11
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12. That this Court award David Couture such damages,
compensatory and otherwise, as the proof may show.
13. That this Court award David Couture reasonable attorneys'
fees and costs incurred in connection with this action.
14. That this Court grant such other and further relief as may
be deemed just, proper and equitable under the circumstances.
Date: September 28, 2010 Respectfully submitted,
DAVID COUTURE
By his attorney,
Richarh^N^ Foley
55 Market Street, 2B
Portsmouth, NH 03801
Tel: (603) 433-1303
Bar No. 10520
CERTIFICATE OF SERVICE
I, Richard N. Foley, Esq., hereby certify that the within
MOTION was served on Attorney Derek Eletich by FAX 650.963.8094
Date: September 28, 2009
Richard_N."Foley
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EXHIBIT A
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Latest Status Info
Thank you for your request. Here are the latest results from the TARR web server.
This page was generated by the TARR system on 2010-09-27 04:32:34 ET
Serial Number: 77487907 Assignment Informatipn Trademark Document Retrieval
Registration Number: 3560701
Mark
PLAYDOM
(words only): PLAYDOM
Standard Character claim: Yes
Current Status: A cancellation proceeding has been l'*ilccl at the Trademark Trial and Appeal Board and isnow pending.
Date of Status: 2009-06-17
Piling Date: 2008-05-30
Filed as TEAS Plus Application: Yes
Currently TEAS Plus Application: Yes
Transformed into a National Application: No
Registration Date: 2009-0 J -13
Register: Principal
Law Office Assigned: LAW OFFICE 103
Ifyou are the applicant or applicant's attorney and have questions about this file, please contact theTrademark Assistance Center at [email protected]
Current Location: 650 -Publication And Issue Section
mp:/A,vr.uspt(>.gov/seivlei/trr?tt=serlalaentry 77487907Pige J of 3
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Latest Status Info
Date In Location: 2009-OJ -13
LAST APPLICANT(S)/OWNER(S) OF RECORD
I. David Couture
Address:David Couture9846 West Olympic Blvd.Beverly Hills, CA 90212United StatesLegal Entity Type: IndividualCountry of Citizenship: United StatesPhone Number: 310-210-0222
GOODS AND/OR SERVICES
International Class: 041Class Status: ActiveEntenainment. and educational services, namely, providing advice and information for music, video and filmconcept and script development; Entertainment services, namely, a multimedia program series featuringcomedy, action and adventure distributed via various platforms across multiple forms of transmission.media; Motion picture film production; Production of television programs; Script writing services;Scriptwriting servicesBasis: 1(a)First Use Date: 2008-05-30First Use in Commerce Date: 2008-05-30
ADDITIONAL INFORMATION
(NOT AVAILABLE)
MADRID PROTOCOL INFORMATION
(NOT AVAILABLE)
PROSECUTION HISTORY
NOTE: To view any document referenced below, click on the link to "Trademark DocumentRetrieval" shown near the top of this page.
2009-07-27 - Attorney Revoked And/Or Appointed
hHp://Mrr.upto.gov/servlc!/iarr?rgsr=serlal4cmry-77
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Utest Sl.itus Info
2009-07-27 - TEAS Revoke/Appoint Attorney Received
2009-06-17 - Cancelation Instituted No. 999999
2009-01-13 Registered - Principal Register
2008-10-28 - Published for opposition
2008-10-08 - Notice of publication
2008-09-25 - Law Office Publication Review Completed
2008-09-25 - Assigned To LIE
2008-09-16 - Approved for Pub - Principal Register (Initial exam)
2008-09-1J - Assigned To Examiner
2008-06-04 - Notice Of Pseudo Mark Mailed
2008-06-03 - New Application Entered In Tram
ATTORNEY/CORRESPONDENT INFORMATION
Attorney of RecordRichard N. Foley
CorrespondentRichard N. Foley55 Market Street Suite 2BPortsmouth. NH 0380J
htp://tnrr.iispto.3ov/5crwlcl/trr)re
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EXHIBIT B
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GmiUl - Mt View office space
IpQ ^ | 11 Playdom Inc
Mt View office space1 message
Francois Cornll Thu, Apr 30, 2009 at 1:47 PMTo:[email protected]
Hello: should Playdom have any office space needs in the near future, please don't hesitate to contact me directlyat 408.588.2303
Best,
Francois CorniI || Associate
GVA Kidder Mathews
3945 Freedom Circle, Suite 900
Santa Clara, CA 95054
T 408.970,9400 Ext 303 M 650.619.5036
F 408.970.0648
www.avakm.com
JjJTTJfeesa wvwicfer Urn owimnmint befors printingfft'.f onml!
hHpS://mAH.9oo !,|e.com/W,l|/?W|=2()
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Gmall - Chtailng being allowed on Mobsters!
Playdon ic
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Prom: ALICIA HAWKINS
SuOjod: Playdom Entertainment inquiry (ALICIA HAWKINS)
Dole: June 7, 2010 2:08:30 P MPD T
To: plftydommac.com
Reply-To: ALICIA HAWKINS
Name: ALICIA HAWKINS
Company NETST0RM INTERNET SERVICES
Phone: 6685006277
Email Address: billingnel9torm,net
Message- PLEASE CONTACT US ASAP IN REF. TO SOME CHARGES ON OUR ACCOUNT TO YOUR COMPANY. PLEASE CONTACT ME BEMAIL WITH A COMPANY PHONE .
THANK YOU
DflteflTima' 2010-06-07 14:08:30 PDT
Sender IP; 12.109.220.59 [United States) I drnk^eedvphtpei/lxRelerrer;
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From: brenda dark Siiblcct: Playdom Entenainment Inquiry (brende dark )
Dale : September t, 2010 5:07:07 PM POTTo: piaydom(3>mac com
Reply-To: brenda dark
Name: brenda dark
Company:
Phone- 901 5175566
Email Address, blgdavel Obelleoulh.nel
Message, i need to know whate kind Ol company this is i have a total on my debit card please call me
Datemme: 2010-09-01 17-07.07 PDTSender IP: 74.226.04.74 [United States] I dmMeedvphtpevi*Relerrer:
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9/27/10 2:
Playdom Inc
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mail - Cheating being allowed on Mobsters! 4/24/10 9:5
G Playdom Inc
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From: ALICIA HAWKINS Subject: Playdom Entertainment Inquiry (ALICIA HAWKINS)
Date: June 7, 2010 2:08:30 PM PDTTo; [email protected]
Reply-To: ALICIA HAWKINS
Name: ALICIA HAWKINS
Company: NETSTORM INTERNET SERVICES
Phone: 8885006277
Email Address: [email protected]
Message: PLEASE CONTACT US ASAP IN REF. TO SOME CHARGES ON OUR ACCOUNT TO YOUR COMPANY. PLEASE CONTACT ME BYEMAIL WITH A COMPANY PHONE #.
THANK YOU
Date/Time: 2010-06-07 14:08:30 PDTSender IP: 12.109.220.59 [United States] I dmk46edvphtpev1x
Case 1:10-cv-00440 Document 1 Filed 09/28/10 Page 26 of 29
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From: brenda dark Subject: Playdom Entertainment Inquiry (brenda dark)
Date: September 1, 2010 5:07:07 PM PDTTo: [email protected]
Reply-To: brenda dark
Name: brenda dark
Company:
Phone: 901 5175566
Email Address: bigdavel @bellsouth.net
Message: i need to know whate kind of company this is i have a total on my debit card please call me
Date/Time: 2010-09-01 17:07:07 PDTSender IP: 74.226.64.74 [United States] I dmk46edvphtpev1 x
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TN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE ^13
DAVID COUTURE )
Plaintiff )
v. )
PLAYDOM, INC. )a Delaware corporation )
Defendant )
PLAINTIFF'S AFFIDAVIT
Playdom, Inc/s sale to Disney would cause irreparable barm to my PLAYDOM
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
customers, both businesses and individuals, as myself.
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
early termination of the merger's waiting period on August 20,2010.
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,
Defendant's use of my PLAYDOM trademark is likely to cause and is causing
confusion because Defendant has and continues to operate in the same channels of
1
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business, selling services and or goods to companies including but not limited to NBC
Universal and Disney/ABC/ESPN.
In addition, Defendant advertises and olters and/or sells interactive
applications/software for Disney/ABC/ESPN's famous program "The World Series of
Poker" on their website, www.Playdom.com, increasing the likelihood of causing
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
connection between my PLAYDOM mark and Disney's goods and services.
Defendant announced that it is developing interactive Disney-thcmed games. Use
of Disney's iconic characters would do irreparable harm to my PLAYDOM mark within
the Entertainment Industry and every customer who visits my website
"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
and belief, and as to those 1 believe it to be true.
Executed September 22, 2010.
V I'A'uh LS Urf^fc
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http://www.playdom.com/http://www.playdomentertainment.com/http://www.playdomentertainment.com/http://www.playdom.com/