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Apple v. Amazon.com Second Amended Complaint (11-16-11)

Apple v. Amazon.com Second Amended Complaint (11-16-11)

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"APPSTORE" case
"APPSTORE" case

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Published by: Charles Colman Law, PLLC on Nov 17, 2011
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SECOND AMENDED COMPLAINTNO. CV 11-01327 PJH 
DAVID R. EBERHART (S.B. #195474deberhart@omm.comRYAN J. PADDEN (S.B. #204515)rpadden@omm.comDAVID J. SEPANIK (S.B. #221527
)
 dsepanik@omm.comO’MELVENY & MYERS LLPTwo Embarcadero Center, 28th FloorSan Francisco, CA 94111Telephone: (415) 984-8700Facsimile: (415) 984-8701Attorneys for Plaintiff APPLE INC.
UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA
APPLE INC., a California corporation,Plaintiff,v.AMAZON.COM, INC., a Delawarecorporation, and AMAZON DIGITALSERVICES, INC., a Delawarecorporation,Defendants.Case No. CV 11-01327 PJH
SECOND AMENDED COMPLAINTFOR(1) Trademark Infringement; FalseDesignation of Origin and FalseDescription (Lanham Act § 43(a),15 U.S.C. § 1125(a))(2) Dilution (Lanham Act § 43(c),15 U.S.C. § 1125(c))(3) Trademark Infringement(Common Law)(4) Dilution (Cal. Bus. & Prof. Code§ 14247 and Common Law)(5) False Advertising (Lanham Act§ 43(a), 15 U.S.C. § 1125(a))(6) Unfair Competition (Cal. Bus. &Prof. Code § 17200)DEMAND FOR JURY TRIAL
 
Case4:11-cv-01327-PJH Document56 Filed11/16/11 Page1 of 17
 
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SECOND AMENDED COMPLAINTNO. CV 11-01327 PJH
Plaintiff Apple Inc. (“Apple”) brings this action to enjoin Amazon.com, Inc.and Amazon Digital Services, Inc.’s (collectively “Amazon”) unauthorized use of Apple’sAPP STORE ™ trademark. Apple seeks permanent injunctive relief and damages underthe laws of the United States and the State of California and alleges on knowledge as toitself and its own acts, and on information and belief as to all other matters, as follows:
NATURE OF ACTION
1. Apple is a market leading computer hardware, software, and mobilecomputing technology and services company. Its APP STORE mobile software downloadservice has transformed the way that mobile device users customize and expand thefunctionality of their devices. Apple, long renowned for its innovation and productdesign, introduced the APP STORE service and coined the APP STORE mark three yearsago. In that short period of time, the service has experienced phenomenal growth andsuccess, and the service is now available on over 250 million devices worldwide and over18 billion software programs have been downloaded by users.2. Amazon has been improperly using Apple’s APP STORE mark inconnection with Amazon’s mobile software developer program, has recently launched amobile software download service using Apple’s mark, and has announced the release of atablet device that will utilize certain aspects of the mobile software download service.Amazon’s uses are unauthorized and unlawful.
PARTIES
3. Plaintiff Apple is a corporation organized and existing under the lawsof the State of California and has its principal place of business in Cupertino, California.4. On information and belief, defendant Amazon.com, Inc. is acorporation organized and existing under the laws of the State of Delaware, with itsprincipal place of business in Seattle, Washington.5. On information and belief,
 
defendant Amazon Digital Services, Inc.is a corporation organized and existing under the laws of the State of Delaware with itsprincipal place of business in Seattle, Washington. On information and belief, defendant
Case4:11-cv-01327-PJH Document56 Filed11/16/11 Page2 of 17
 
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SECOND AMENDED COMPLAINTNO. CV 11-01327 PJH
Amazon Digital Services, Inc. is a wholly-owned subsidiary of defendant Amazon.com,Inc. and, at all times relevant to the allegations herein, has acted in concert with and/or atthe direction of defendant Amazon.com, Inc.
JURISDICTIONAL
 
STATEMENTJurisdiction
6. The Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 and 1338, 15 U.S.C. §§ 1116 and 1125, and 28 U.S.C. § 1367.
Venue
7. Venue lies within this district because a substantial part of the eventsgiving rise to these claims occurred in this district and Amazon resides in this judicialdistrict for purposes of 28 U.S.C. § 1391(b) and (c).
Intradistrict Assignment
8. This action arises in Santa Clara County because a substantial part of the events giving rise to the claim occurred in Santa Clara County. This is an intellectualproperty action subject to district-wide assignment pursuant to Civil Local Rule 3-2(c).
FACTUAL
 
ALLEGATIONSApple Coins, Uses In Commerce, And Protects APP STORE
9. On July 11, 2008, Apple launched its APP STORE service. Usingthe APP STORE mobile software application, users of Apple’s iPhone, iPod and, mostrecently, iPad mobile devices, can browse for and license a wide range of third partysoftware programs, including games, business, educational, finance, news, sports,productivity, social networking, health, reference, travel, and utility software. Users canalso browse and license software in the APP STORE section of Apple’s popular iTunesStore, accessed using Apple’s iTunes software.10. Prior to the introduction of the APP STORE service, operators of mobile communications networks offered a variety of downloadable mobile software suchas ringtones, wallpapers, and games. The operators branded their download services witha variety of terms that bore no similarity to APP STORE. For example, Verizon called its
Case4:11-cv-01327-PJH Document56 Filed11/16/11 Page3 of 17

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