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Digital Chocolate v Zynga Complaint

Digital Chocolate v Zynga Complaint

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Published by Eric Goldman

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Published by: Eric Goldman on Aug 26, 2010
Copyright:Attribution Non-commercial

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10/30/2011

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C
OOLEY
LLP
A
TTORNEYS
A
T
L
AW
 
123456789101112131415161718192021222324252627282
D
IGITAL
C
HOCOLATE
,
 
I
NC
.’
S
C
OMPLAINT
 
N
ATURE
O
F
T
HE
A
CTION
 
1.
 
Plaintiff Digital Chocolate, Inc. (“Digital Chocolate”) is a leading developer andpublisher of innovative games played by individuals in more than 53 countries on mobile devices,online social networks, and other platforms. Since 2004, Digital Chocolate has offered for sale apopular action game under the mark MAFIA WARS. Notwithstanding Digital Chocolate’s well-known and longstanding use of the MAFIA WARS mark, in September 2008 Defendant ZyngaGame Network Inc. (“Defendant” or “Zynga”) introduced a competing game under the mark MAFIA WARS.
2.
 
Digital Chocolate has repeatedly objected to Zynga’s ongoing use of the MAFIAWARS mark, but despite Digital Chocolate’s notices and demands, Zynga has persisted inoffering its game under the MAFIA WARS mark. Although in May 2009 Zynga expresslyassured Digital Chocolate, in writing, that “Zynga does not claim trademark rights in MAFIAWARS,” just two months later Zynga filed an application with the United States Patent andTrademark Office (“USPTO”) seeking to register MAFIA WARS as its trademark. Despite beingon notice of Digital Chocolate’s senior rights and infringement claim, Zynga repeatedlymisrepresented to the USPTO that no other entity owned or claimed rights in the MAFIA WARSmark.
3.
 
Through duplicity and bad faith, Zynga has effectively hijacked the MAFIAWARS mark from Digital Chocolate and is aggressively marketing its games under the MAFIAWARS mark to Digital Chocolate’s substantial detriment. To protect its intellectual propertyrights and prevent Zynga from benefitting from its wrongful conduct, Digital Chocolate hasinitiated this action.
T
HE
P
ARTIES
 
4.
 
Plaintiff Digital Chocolate, Inc. (“Digital Chocolate”) is a Delaware corporationhaving its principal place of business at 1855 South Grant Street, San Mateo, California 94402-7017. ///  /// 
 
C
OOLEY
LLP
A
TTORNEYS
A
T
L
AW
 
123456789101112131415161718192021222324252627283
D
IGITAL
C
HOCOLATE
,
 
I
NC
.’
S
C
OMPLAINT
 
5.
 
Digital Chocolate is informed and believes, and based thereon alleges thatDefendant Zynga Game Network Inc. is a Delaware corporation having its principal place of business at 365 Vermont Street, San Francisco, California 94103.
J
URISDICTION AND
V
ENUE
 6.
 
This Court has jurisdiction of this action under 15 U.S.C. §§ 1119, 1121, and1125, and 28 U.S.C. §§ 1331, 1338, and 1367. This action is filed,
inter alia
, under the UnitedStates Trademark Act of July 5, 1946, as amended, 15 U.S.C. § 1501
et seq.
(the “Lanham Act”).
7.
 
This Court has personal jurisdiction over Defendant because,
inter alia
, Defendantmaintains its principal place of business in California.
8.
 
Venue is proper in this District pursuant to 28 U.S.C. § 1391, as both partiesmaintain their principal place of business in this District and a substantial part of the eventsgiving rise to the claims alleged herein occurred in this District.
I
NTRA
-D
ISTRICT
A
SSIGNMENT
 9.
 
This is an Intellectual Property Action within the meaning of Civil Local Rule 3-2(c), and is to be assigned on a District-wide basis accordingly.
GENERAL
 
ALLEGATIONSD
IGITAL
C
HOCOLATE
A
ND
I
TS
MAFIA
 
WARS
 
M
ARK
 10.
 
Digital Chocolate is a developer and publisher of popular mass market games andsocial networking applications which are made available to consumers through a variety of platforms, including mobile phones, the Internet, social networking services, and game consoles.Founded in 2003, Digital Chocolate rapidly developed a reputation as a producer of high-qualityand popular multi-platform games. Via partnerships with leading distributors, DigitalChocolate’s products are available throughout the United States and around the world. DigitalChocolate has engaged in strategic acquisitions to expand its distribution and product offeringsand, in June 2004, acquired Sumea Interactive Ltd. (“Sumea”), a premier game developer basedin Finland. That acquisition expanded Digital Chocolate’s reach to 110 distribution partners inmore than 53 countries on 5 continents. /// 

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