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Complaint East Carolina University v Cisco Systems

Complaint East Carolina University v Cisco Systems

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Published by Lara Pearson
Federal case for trademark infringement, false designation of origin, unfair competition, deceptive & unfair trade practices
Federal case for trademark infringement, false designation of origin, unfair competition, deceptive & unfair trade practices

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Categories:Types, Business/Law
Published by: Lara Pearson on Jan 27, 2013
Copyright:Attribution Non-commercial

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01/27/2013

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IN THE UNITED STATES DISTRICT COURTFOR THEEASTERN DISTRICT OF NORTH CAROLINA(EASTERN DIVISION)EAST CAROLINA UNIVERSITY,Plaintiff,vs.CISCO SYSTEMS, INC.,Defendant.Civil Action No. __________________ COMPLAINT AND JURY DEMANDPlaintiff East Carolina University(hereinafter, “Plaintiff”), by and for itscomplaintagainst Defendant Cisco Systems, Inc.(hereinafter, “Defendant”), alleges as follows:
I.THE PARTIES
1.Plaintiff is a constituent institution of the University of North Carolina and aneducational institution chartered under the laws of the State of North Carolina having a principaloffice atEast Fifth Street, Greenville, North Carolina27858.2.Upon information and belief, Defendant Cisco Systems, Inc.is aCaliforniacorporation with a principal place of business at 170 West Tasman Dr., San Jose California95134.
II.JURISDICTION AND VENUE
3.This is an action for:(i) trademark infringementandfalse designation of originunder the Trademark Act of 1946, also known as the Lanham Act, codified at 15 U.S.C. § 1051
et seq.
;(ii) common law trademark infringement and unfair competition;and (iii) unfair or deceptive trade practices pursuant to N.C. Gen. Stat. § 75-1.1
et seq
.4.This Court has subject matter jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C.§§ 1331 and 1338(a).5.This Court has personal jurisdiction over Defendantbecause, upon informationand belief, Defendanthas substantialcontacts inthe Eastern District of North Carolinaby,among other things, maintaininga place of business at 7100-8 Kit Creek Road, Morrisville,
Case 4:13-cv-00003-FL Document 1 Filed 01/11/13 Page 1 of 7
 
 North Carolina27709 in Wake County, North Carolina, and purposefully availingitselfof the benefits and protections of North Carolina law by regularly conducting business in this State andDistrict.
III.FACTUAL BACKGROUND
6.Plaintiff is the owner ofthe federally registered trademark“TOMORROWSTARTS HERE(U.S. Trademark Registration No.3,950,816, used continuously in commercesince at least March31, 2002) for “[e]ducation services in the nature of courses at the universitylevel”(the “Mark”). Plaintiff’s Markisvalid and enforceable. A copy of the registrationcertificate for the Markis attached as Exhibit1.7.Plaintiffhas also acquired extensive common law trademark rights in the Mark.By way ofexample, Plaintiff has utilized “TOMORROW STARTS HERE”in association withPlaintiff’s College of Technology and Computer Science,research, software development,intellectual property and licensing, in addition tocommercialization of technology and softwarelong prior to Defendant’s adoption of the identical markfor overlapping goods and services.8.Plaintiff has investeda considerable amount in advertising utilizingthe Mark ovethe past decade.9.Upon information and belief, Defendantinitiated apurported $100 millionadvertising campaignon December 10, 2012 utilizing the mark “TOMORROW STARTSHERE.” A copy of the new advertising campaign page of Defendant’s website is attached asExhibit 2along with Defendant’s home page at Exhibit 3, and a copy of a news article related toDefendant’s use of Plaintiff’s Mark is attached as Exhibit 4.10.Upon information and belief, Defendant applied for three federal trademark applicationson December 10, 2012, all for the mark “TOMORROW STARTS HERE” (U.S.Trademark Application Ser. Nos. 85/799,142; 85/799,149; and 85/799,152), (hereinafter,“Defendant’s Applications”). Notably, Application Ser. No. 85/799,142 includes a descriptionof the goods: “downloadable electronic instructional materials, namely, manuals, guides, testmaterials, and magazines in the field of technology.”
Case 4:13-cv-00003-FL Document 1 Filed 01/11/13 Page 2 of 7
 
IV.FIRST CLAIM FOR RELIEF: TRADEMARK INFRINGEMENTUNDER 15 U.S.C. §1114
11.Plaintiff incorporates by reference the preceding allegations of this complaint.12.On information and belief, Defendantisinfringing Plaintiff’s Markby,
inter alia
,using in commerce the “TOMORROW STARTS HERE”mark. Such use in commerce is likelyto cause forward and/or reverse confusion, or to cause mistake, or to deceiveas to Defendant’saffiliation, connection, or association with Plaintiff, or as to the origin, sponsorship, or approvalof Defendant’scommercial activities by Plaintiff.13.As a direct and proximate consequence of Defendant’sactions, Plaintiff hassuffered irreparable injury, and will continue to suffer such harm unless Defendant is preliminarily and permanently enjoined from itsunlawful conduct.
V.SECONDCLAIM FOR RELIEF: FALSE DESIGNATION OF ORIGINUNDER 15 U.S.C. §1125(a)
14.Plaintiff incorporates by reference the preceding allegationsof this complaint.15.Defendant’suse of “TOMORROW STARTS HERE” isconfusingly similar toPlaintiff’s Mark andconstitutes false designation of origin,false description,and mis-representation of Defendant’sgoods and services, and is likely to cause confusion, mistake, anddeception as to the origin, sponsorship, approval, or association of Defendant’sgoods, services,and commercial activities in violation of 15 U.S.C. §1125(a).16.Upon information and belief, Defendant hasengaged in this false designation oorigin and false description and representation of itsgoods and services in an effort to willfully,intentionally, and unfairly compete with Plaintiff, and such actions constitute unfair competition.17.Defendant’sactions complained of herein have damaged Plaintiff, and willcontinue to damage Plaintiff, causing injury to Plaintiff’s reputation and goodwill.
VI.THIRDCLAIM FOR RELIEF: COMMON LAW TRADEMARINFRINGEMENT
18.Plaintiff incorporates by reference the preceding allegations of this complaint.19.Defendant’s usein commerce of “TOMORROW STARTS HERE” isconfusinglysimilarto Plaintiff’s Markwithout authorization from Plaintiff. Such unauthorized use by
Case 4:13-cv-00003-FL Document 1 Filed 01/11/13 Page 3 of 7

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