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FPX v. Google Complaint

FPX v. Google Complaint

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Published by Eric Goldman
FPX v. Google complaint seeking to form a class action lawsuit against AdWords alleging trademark infringement--see my blog post at http://blog.ericgoldman.org/archives/2009/05/google_hit_with.htm
FPX v. Google complaint seeking to form a class action lawsuit against AdWords alleging trademark infringement--see my blog post at http://blog.ericgoldman.org/archives/2009/05/google_hit_with.htm

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Published by: Eric Goldman on May 12, 2009
Copyright:Attribution Non-commercial

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12/02/2010

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1IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF TEXASMARSHALL DIVISIONFPX, LLC (D.B.A. FIREPOND)Individually and on Behalf of AllOthers Similarly Situated,Plaintiff,v.(1)
 
GOOGLE, INC.;(2)
 
YOUTUBE, LLC;(3)
 
AOL, LLC;(4)
 
TURNER BROADCASTING SYSTEM,INC.;(5)
 
MYSPACE, INC. AND(6)
 
IAC/INTERACTIVECORPDefendants.Civil Action No. _______________CLASS ACTION COMPLAINTJURY TRIAL DEMANDED
CLASS ACTION COMPLAINT
This is a class action complaint in which Plaintiff, FPX, LLC (doing business as“Firepond”) on behalf of itself and all others similarly situated, pursuant to Rule 23 of theFederal Rules of Civil Procedure, by and through the undersigned Counsel of Record, complainand allege, upon information and belief, except as to those paragraphs applicable to the namedPlaintiff, which are based on personal knowledge, against Defendants Google, Inc., YouTube,LLC, AOL, LLC, Turner Broadcasting System, Inc., MySpace, Inc. and IAC/InterActiveCorp asfollows:
PARTIES
1.
 
Plaintiff and Class Representative:a.
 
Plaintiff, FPX, LLC (“Firepond”) is a Texas limited liability company with itsprincipal place of business at 207C N Washington Street, Marshall, TX.
Case 2:09-cv-00142 Document 1 Filed 05/11/2009 Page 1 of 45
 
2b.
 
Firepond was founded in 1983 as Clear with Computers, Inc. to develop andmanufacture software assisting a variety of businesses in all aspects of thesales process and in the configuration, pricing and quotation of a variety of products. At the time of its founding, Firepond’s only assets were thecomputer program and strong desire to distribute the program to salespeople,so the company’s first headquarters was a small building on the lot of a localFord dealership. The intention was to sell its software directly to farmequipment manufacturers and to automotive dealers.c.
 
Firepond owns the trademarks “Firepond” and “Firepond CPQ,” (collectivelythe “Firepond Marks”).d.
 
Firepond offers and provides a number of software products and online non-downloadable software for assisting a variety of businesses in all aspects of the sales process and in the configuration, pricing and quotation of a variety of products as well as corresponding consulting services, analysis andmaintenance (collectively the “Firepond Products and Services”) under theFirepond Marks.e.
 
The Firepond Marks are unique and distinctive, and, as such, designate asingle source of origin.f.
 
Firepond’s main Internet website using the Firepond Marks and featuringinformation on many of the products and services of Firepond can be accessedvia the domain name “www.firepond.com” which has been registered andcontinuously used since 1999.
Case 2:09-cv-00142 Document 1 Filed 05/11/2009 Page 2 of 45
 
3g.
 
The Firepond Marks are valid and enforceable trademarks. Firepond owns thefollowing United States trademark registrations for the Firepond Marks:Trademark: Firepond;Registration No. 2,968,557Class 9: Computer software for creating sales presentations, for creatingtwo and three dimensional models of product configurations, forcreating marketing data libraries, for drafting sales proposalsand for sales training, for use in the financial, insurance,manufacturing, transportation, and retail sales and marketingindustries.Date of First Use in Commerce: January 31, 2005Class 42: Consulting, analysis, implementation and maintenance servicesin the field of computer software.Date of First Use in Commerce: January 31, 2005Registration Date: July 12, 2005Trademark: Firepond CPQ;Registration No. 3,439,414Class 42: Providing online non-downloadable software, namely providingan online non-downloadable suite of computer software thatenables a company's sales force and supporting organizations toconfigure complex products and services, accurately priceproducts and services, develop price quotes, generate highquality proposals, automate and simplify product pricing andconfiguration, improve order accuracy and reduce the cost of sales, optimize sales processes, create product catalogs, andprovide an interactive selling system.First Use in commerce: August 2005Registration Date: June 3, 2008h.
 
Plaintiff Firepond has been personally injured in its business and property as adirect and proximate result of the violations set forth herein. The injury anddamage suffered is economic and non-economic in nature and includes, but isnot limited to: diversion of business; confusion; loss of revenue; loss of goodwill, and other such related injury and damage.2.
 
The Putative Class Members
Case 2:09-cv-00142 Document 1 Filed 05/11/2009 Page 3 of 45

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