You are on page 1of 15

1

KG, HOLMS, PATERNO & BERLINER, LLP


HOWAR E. KIG, ESQ., STATE BANO. 77012
2 STEPHND. ROTHSCHD, ESQ., STATE BAR NO.l32514
ROTHSCHID@KBLA W.COM
3
1900 A VN OF TH STARS
, <
25T FLOOR
Los AGELES, CALIORA y0067-4506
4
TELEPHON: (310) 282-8989
FACSIE: (31 0) 282-8903
5
Attoreys for Plaintiffs Charles Sclnnidt
6
and Christopher Orlado Torres
7
8
UNITED STATES DISTRICT COUT
9
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
10
11 CHRLES L. SCHIDT an
individual; CHISTOP
H
R
12
ORANDO TORRES, an individual,
13
Plaintiffs,
14
vs.
15
WARNER BROS.
16 |
Defaware limited liability company,
17
18
Defendants.
CASE NO. CV13-02824 JFW(MWx)
FIRST AMENDED COMPLAINT
FOR COPYRIGHT
INFRINGEMENT, FALSE
ADVERTISINq

TRADEMARK
INFRINGEMEl"T, UNFAIR
COMPETITION and
ACCOUNTIGS
DEMAND FOR JRY TRIAL
19 Plaintiffs Charles L. Sclnnidt ("Schmidt") and Christopher Orlando Tores
20 (" Torres") (collectively, "plaintiffs"), hereby allege as follows:
21 BACKGROUND OF TIS ACTION
22 1. This case is to remedy defendants Warer Bros. Entertainment, Inc.
23 (" W") and 5th Cell Media, LLC's ("51h") willful infingements of plaintiffs'
24 copyrights and trademarks in the memes "Keyboard Cat" and " Nyan Cat."
25 "Keyboard Cat" and " Nyan Cat" are kown and enjoyed by tens of millions of
26 people. That popularity makes them extremely valuable for commercial uses.
27 Unlike W and 5th, many other companies, respecting plaintiffs' intellectual
28 property rights, regularly pay substantial license fees to use plaintiffs' memes
4107.060/646706.1
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 1 of 15 Page ID #:45
KING, HOLES,
PATERNO &
BERUNER, llP
1 commercially.
2 2. A meme is a communication of ideas or information and can be in
3 virtally any format--words, an image, a design, a video, a cartoon, or anything else
4 through which information can be communicated. Frequently memes consist of
5 copyrightable creative works or trademarks. Successful memes "go viral" and can
6 reach hundreds of millions of consumers and become sought-afer marketing tools.
7 "Keyboard Cat" and " Nyan Cat" are among the best-kown examples.
8 3. "Keyboard Cat" is a video of Schmidt's cat, Fatso, wearing a shirt and
9 sitting upright with its paws on the keys of an electric keyboard, which Schmidt
10 manipulated to make Fatso appear to be playing a tune. Among other accolades,
11 "Keyboard Cat" is number two on Current TV's "50 Greatest Viral Videos" list.
12 Schidt created and owns the copyright to "Keyboard Cat" and the trademark
13 consisting of the words "Keyboard Cat." "Keyboard Cat" was one of the first
14 memes to become a widespread interet viral phenomenon and still is wildly
15 popular, most recently featured in a national Starburst candy television and online
16 marketing and advertising campaign.
17 4. " Nyan Cat" is a cartoon. Nyan Cat, a character with a eat's face and a
18 body resembling a horizontal breakfast bar with pink frosting sprinkled with light
19 red dots, fl ies across the screen, leaving a steam of exhaust in the form of a bright
20 rainbow in its wake. Torres created and owns the copyright to " Nyan Cat" and the
21 trademarks consisting of Nyan Cat's name and image. " Nyan Cat" was the fifh
22 most-watched video on YouTube.com in 201 1, and won the " Meme of the Year"
23 award at the prestigious 2012 Webbys.
24 5. The "W" logo also is a meme, even though it is only two letters inside
25 the outline of a shield. Of course, W employs an army of lawyers who use
26 trademark and copyright law to zealously protect its intellectual propert, including
27 its logo.
28 6. Yet, W, along with game developer 5
t
, have knowingly and
4107.060/646706.1
2
FIRST AMENDED COMLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 2 of 15 Page ID #:46
KING, HOLMES,
PATERNO&
BERUNER, LLP
1 intentionally infinged plaintiffs' copyrights and tademarks by using Nyan Cat in
2 its "Scribblenauts Unlimited" game released in or about January 2012, and the
3 words "Keyboard Cat" and Fatso's image in successive, different versions of W's
4 top sell ing "Scribblenauts" games, including, most recently, "Scribblenauts
5 Unlimited." Compounding their infingements, defendants have used Nyan Cat and
6 Keyboard Cat, even identifing them by name, to promote and market
7 "Scribblenauts Unlimited," all without plaintiffs' permission and without any
8 compensation to plaintiffs. Hence the instant action.
9 JISDICTION AND VENE
10 7. This action is brought, and subject matter jurisdiction lies within this
11 Court, pursuant to 28 U.S. C. Sections 133 1, 1338 ad 2201. This Court has federal
12 question jurisdiction in this matter in that plaintiffs seek relief pursuant to the
13 Copyright Act of 1976, 17 U.S. C. 101 et seq. and under the Lanham Act, 15
14 U.S.C. 1 1 14 et seq. This Court has supplemental jurisdiction pursuant to 28
15 U.S.C. 1367 over any claims arising under state law because those claims are so
16 related to the claims in the action within the Court's original jurisdiction that they
17 form part of the same case or controversy under Article III of the United States
18 Constitution.
19 8. Venue lies within this district pursuant to 28 U.S.C. sections 139 1(b)(2)
20 and (3), (c), and (d) and 1400(a) because W resides for venue purposes ad is
21 subject to personal jurisdiction in this district; W and, on information and belief,
22 5
1
h
regularly and systematically conduct business in this district and did so in
23 connection with the acts and omissions alleged herein, and therefore, are subject to
24 personal jurisdiction in this district; and because a substantial part of the alleged acts
25 and omissions in creating, marketing, producing and selling the infinging game
26 gives rise to the claims for the copyright and trademark infingements and unfair
27 business practices at issue herein occurred in this district.
28
4107.060/646706.1
3
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 3 of 15 Page ID #:47
KING, HOLMES,
PATERNO&
BERlNER, LLP
THE PATIES 1
2 9. Schmidt created and is the registered ower of the copyright in the
3 audio-visual work entitled "Keyboard Cat," pursuant to United States Copyright
4 Offce Registration Number PA0001696099, registered on September 22, 2010.
5 Schmidt also owns the trademark consisting of the words "Keyboad Cat" (the
6 "Keyboard Cat Mark"). He has applications pending with the United States Patent
7 and Trademark Office to register the Keyboard Cat Mark, U.S. Serial Numbers
8 85709355 and 85709363, including for use in digital media such as the different
9 Scribblenauts games. Schmidt is ad at all times material herein has been a resident
10 of the State of Washington.
11 10. Torres created and is the registered owner of the copyright in the
12 electronic file entitled " Nyan Cat," pursuant to United States Copyright Office
13 Registration Number VAu001063390, registered on April 16, 201 1. Tores owns
14 trademarks consisting of Nyan Cat's name and image (the "Nyan Cat Marks"), and
15 has applications pending with the United States Patent and Trademark Offce to
16 register the trademark for the name, U.S. Serial Number 85357643, and the image,
17 U.S. Serial Numbers 85576372 and 85576370, including for use in sofware such as
18 "Scribblenauts Unlimited." Torres is and at all times material herein has been a
19 resident of the State of Texas.
20 11. WB is a corporation organized ad existing under the laws of the State
21 of Delaware, with its principal place of business in Los Angeles County, Califoria.
22 WB is engaged in business in many parts of the entertainment industy, including
23 developing, distributing and marketing computer games such as the Scribblenauts
24 games.
25 12. 5
1
h
is a limited liability company organized and existing under the laws
26 of the State of Delaware engaged in the business of creating and developing
27 computer games, including "Scribblenauts," which WB released in or about
28 September 2009, "Super Scribblenauts," which WB released in or about October
4107.060/646706.1
4
FIRST AENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 4 of 15 Page ID #:48
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 2010, "Scribblenauts Remix," which W released in or about October 201 1, and
2 "Scribblenauts Unlimited," which W released in or about November 2012. On
3 inforation ad belief, 5
1
h
's offices are located in the State of Washington, but, fom
4 at least 2009 to the present, 51
h
's managerial and other employees have regularly and
5 fequently traveled to this district to work with W on the development and
6 marketing of the various iterations of Scribblenauts.
7 13. Plaintiffs sue Does 1 through 10, inclusive, herein under fictitious
8 names. Plaintiffs do not kow their true names and capacities. When plaintiffs
9 ascertain the Doe defendants' true names and capacities, plaintiffs will amend this
10 complaint by inserting teir tue names and capacities herein. On information and
11 belief each defendant named herein as a Doe acted with te other Defendants and is
12 responsible for the damages to plaintiffs herein alleged. Each reference in this
13 complaint to defendants, or to any of them, also refers to all defendants sued under
14 fictitious names.
15 14. On information and belief at all times material herein each of the
16 defendants was the agent and employee of the other defendants, and in doing the
17 things hereinafer alleged, was acting within the course and scope of such agency
18 and employment.
19
FIRST CLAIM FOR RELIEF
20
(y Schmidt for Copyright Infringement against all Defendants)
21 15. Schmidt incorporates by reference as if set forth in full herein the
22 allegations of Paragraphs 1 through 14 above.
23 16. Schmidt is, and at all material times hereto has been, the owner of the
24 copyright in "Keyboard Cat" and is entitled and authorized to protect it against
25 copyright infingement. As the owner, Schmidt secured the exclusive rights under
26 17 U.S.C. Section 106, among others, to prepare derivative works using "Keyboard
27 Cat."
28 17. Defendants infinged, and are continuing to infringe, upon Schmidt's
4107.060/646706.1
5
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 5 of 15 Page ID #:49
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 copyright, including by copying, reproducing, preparing, causing, contributing to,
2 and participating in the unauthorized copying, reproduction, and use of Keyboad
3 Cat and Fatso in "Super Scribblenauts," "Scribblenauts Remix," and "Scribblenauts
4 Unlimited," which defendants have publicly marketed, advertised and sold to
5 consumers, including in the Central District of Califoria.
6 18. Schmidt did not authorize defendants to copy, reproduce, perform, or
7 use Keyboard Cat or Fatso's image in any Scribblenauts game, or at all. Defendants
8 did not seek or obtain any permission, consent, or license fom plaintiff for the
9 copying, reproduction, performance, or use of Keyboard Cat or Fatso's image in any
10 Scribblenauts game, or for any other purpose.
11 19. Defendants' infinging acts alleged herein were willfl, deliberate, and
12 committed with prior notice and knowledge of Schmidt's copyright. At a minimum,
13 defendants acted in reckless disregard of Schmidt's copyright.
14 20. As a result of their actions, defendants ae liable to Schmidt for willfl
15 copyright infingement under 17 U.S.C. Section 501. Schmidt suffered, and will
16 continue to suffer, substantial damage, including the value of defendants'
17 unauthorized use, loss of other licensing opportunities, and other losses, in an
18 amount not yet ascertained, but which will be determined according to proof. In
19 addition to Schmidt's actual damages, Schmidt is entitled to receive all profits made
20 by defendants fom their wrongfl acts, pursuant to 17 U.S.C. Section 504; and an
21 accounting of and constuctive trust overall revenues that defendants have received
22 as a result of their wrongfl acts. In the alterative, Schmidt is entitled to statutory
23 damages pursuant to 17 U.S.C. Section 504(c), which should be enhanced by 17
24 U.S.C. Section 504(c)(2) because of defendats' willful copyright infingement.
25 2 1. Schmidt also is entitled to recover his attoreys' fees and costs of suit
26 under 17 U.S.C. Section 505.
27 Ill
28 Ill
4107.060/646706.1
FIRST AMENDED COMPLAINT
6
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 6 of 15 Page ID #:50
KNG, HOLMES,
PATERNO&
BERLINER, LLP
1
2
SECON CLA FOR RELIEF
(y Torres for Copyright Infringement against all Defendants)
3 22. Torres incorporates by reference as if set forth in full herein the
4 allegations of Paragraphs 1 through 21 above.
5 23. Torres is, and at all material times hereto has been, the owner of the
6 copyright in " Nyan Cat" and is entitled and authorized to protect it against copyright
7 infingement. As the owner, Torres secured the exclusive rights under 17 U. S.C.
8 Section 106, among others, to prepare derivative works using " Nyan Cat. "
9 24. Defendants infinged, and are continuing to infinge, upon Torres'
10 copyright, including by copying, reproducing, preparing, causing, contributing to,
11 and participating i te unauthorized copying, reproduction, and use of Nyan Cat in
12 "Scribblenauts Unlimited," which defendants have publicly marketed, advertised
13 and sold to consumers, including in the Central District of Califoria.
14 25. Torres did not authorize defendants to copy, reproduce, perform, or use
15 Nyan Cat in "Scribblenauts Unlimited," or at all. Defendants did not seek or obtain
16 any permission, consent, or license fom plaintiff for the copying, reproduction,
17 performance, or use of Nyan Cat in "Scribblenauts Unlimited" or for any other
18 purose.
19
20
21
22
23
24
25
26
27
28
26. Defendants' infinging acts alleged herein were willfl, deliberate, and
comitted with prior notice and knowledge of Torres' copyright. At a minimum,
defendants acted in reckless disregard of Torres' copyright.
27. As a result of their actions, defendants are liable to Torres for willfl
copyright infingement under 17 U.S. C. Section 501. Torres suffered, and will
continue to suffer, substantial damage, including the value of defendats'
unauthorized use, loss of other licensing opportunities, and other losses, in an
amount not yet ascertained, but which will be determined according to proof. In
addition to Torres' actual damages, Torres is entitled to receive all profts made by
defendants from their wrongful acts, pursuant to 17 U.S.C. Section 504; and an
4107.060/646706.1
7
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 7 of 15 Page ID #:51
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 accounting of and constructive trust overall revenues that defendants have received
2 as a result of their wrongfl acts. In the alterative, Torres is entitled to statutory
3 damages pursuant to 17 U.S.C. Section 504( c), which should be enhanced by 17
4 U.S. C. Section 504(c)(2) because of defendants' willful copyright infingement.
5 28. Torres also is entitled to recover his attoreys' fees and costs of suit
6 under 17 U.S. C. Section 505.
7 THI CLAIM FOR RELIEF
8 (By Schmidt for False Advertising-- Lanham Act, 15 U.S.C. 1125(a) against
9
all Defendants)
10 29. Schmidt realleges and incorporates by reference paragraphs 1 through
11 28, inclusive above, as though fully set forth.
12 30. Schmidt is the owner of and applicant for Federal registration of the
13 Keyboard Cat Mark.
14 3 1. On information and belief, defendants' use of the Keyboard Cat Mark
15 in connection with the marketing, distribution, and sale of each of the Scribblenauts
16 games is and was likely to, intended to, did, and will continue to confse and
17 mislead the public and misrepresent and create the false impression that the
18 Scribblenauts games were approved, endorsed, sponsored, connected or affiliated
19 with Schmidt.
20 32. Schmidt never authorized, approved, endorsed, or sponsored any
21 Scribblenauts game and never authorized, approved, or consented to defendants' use
22 of the Keyboard Cat Mark.
23 33. As a direct and proximate result of defendants' conduct, Schmidt has
24 been damaged and will continue to be damaged in an amount to be proven at trial.
25 34. Pursuant to 15 U.S. C. 1 1 17(a), Schmidt is entitled to an Order: (a)
26 requiring defendants to account for and pay to Schmidt all profits derived by
27 defendants fom their conduct alleged herein, to be increased according to
28 applicable provisions of law, and (b) awarding all damages sustained by Schmidt
4107.060/646706.1
8
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 8 of 15 Page ID #:52
KING, HOLES,
PATERNO&
BERLINER, LLP
1 and caused by defendants.
2 35. Defendants' conduct alleged herein was intentional, egregious, and
3 without foundation in law and, therefore, under 15 U.S.C. 1117(a) Schmidt is
4 entitled to an award of treble damages against defendants, and each of them.
5 36. Defendants' acts make this an exceptional case under 15 U.S.C.
6 1117(a), thereby entitling Schmidt to an award of reasonable attoreys' fees.
7 FOURTH CLAI FOR RELIF
8 (By Torres for False Advertising-- Lanham Act, 15 U.S.C. 1125(a) against all
9 Defendants)
10 37. Torres realleges and incorporates by reference paragraphs 1 through 36
11 inclusive above, as though flly set forth.
12 38. Torres is the owner of and applicant for the Nyan Cat Marks.
13 39. On information and belief, defendants' use of the Nyan Cat Marks in
14 connection with the marketing, distribution, and sale of "Scribblenauts Unlimited" is
15 and was likely to, intended to, did, and will continue to confse and mislead the
16 public and misrepresent and create the false impression that "Scribblenauts
17 Unlimited" was approved, endorsed, sponsored, connected or affiliated with Tores.
18 40. Torres never authorized, approved, endorsed, or sponsored
19 "Scribblenauts Unlimited" and never authorized, approved, or consented to
20 defendants' use of the Nyan Cat Marks.
21 41. As a direct and proximate result of defendants' conduct, Torres has
22 been damaged and will continue to be damaged in an amount to be proven at trial.
23 42. Pursuant to 15 U.S.C. 1117(a), Torres is entitled to an Order: (a)
24 requiring defendants to account for and pay to Torres all profts derived by
25 defendants from their conduct alleged herein, to be increased according to
26
applicable provisions of law, and (b) awarding all damages sustained by Torres and
27 caused by defendants.
28 43. Defendants' conduct alleged herein was intentional, egregious, and
4107.060/646706.1
9
FIRST ANDED COMLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 9 of 15 Page ID #:53
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 without foundation in law and, therefore, under 15 U.S.C. 1 1 17(a) Tores is
2 entitled to an award of treble damages against defendants, and each of them.
3 44. Defendats' acts make this an exceptional case under 15 U.S. C.
4 1 1 17(a), thereby entitling Torres to a award of reasonable attoreys' fees.
5 FIFTH CLAIM FOR RLIEF
. 6 (By Schmidt for Trademark Infringement-Lanham Act, 15 U.S.C. 1125(a)
7 against all Defendants)
8 45. Schmidt realleges and incororates by reference paragraphs 1 through
9 44, inclusive above, as though flly set forth.
10 46. Without Schmidt's permission or consent, defendants have engaged in
11 the unauthorized use in commerce of reproductions, counterfeits, copies ador
12 imitations of the Keyboad Cat Mark in connection with defendants' advertising,
13 distribution, offering for sale, and sales of the Scribblenauts games.
14 47. Defendants' unauthorized use of Schmidt's trademark in commerce on
15 and in connection with the Scribblenauts games, is and was likely to cause
16 confsion, or to cause mistake, or to deceive the public, as described above, in
17 violation of the Lanham Act, 15 U.S.C. 1 125(a). Defendants have committed
18 these acts with the knowledge and intent that their use of plaintiffs trademak would
19 cause confsion, deception, or mistake.
20 48. As a direct and proximate result of defendants' willfl infinging
21 conduct as described above, Schmidt has been damaged ad will continue to be
22 damaged in amounts to be proven at trial. Defendants' infinging conduct entitles
23 Schmidt to recover his actual damages, trebled, together with defendants' profi ts,
24 and his attorey fees ad costs.
25
I I I
26 Ill
27 Ill
28 Ill
4107.060/646706.1
FIRST AMNDED COMLAINT
10
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 10 of 15 Page ID #:54
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 SIXTH CLAIM FOR RELIF
2 (By Torres for Trademark Infringement-Lanham Act, 15 U.S.C. 1125(a)
3 against all Defendants)
4 49. Torres realleges and incorporates by reference paragraphs 1 through 48,
5 inclusive above, as though flly set forth.
6 50. Without Torres' permission or consent, defendants have engaged in the
7 unauthorized use in commerce of reproductions, counterfeits, copies ador
8 imitations of the Nyan Cat Marks in connection with defendants' advertising,
9 distribution, offering for sale, and sales of "Scribblenauts Unlimited."
10 5 1. Defendants' unauthorized use of Torres' trademarks in commerce on
11 and in connection with "Scribblenauts Unlimited" is and was likely to cause
12 confsion, or to cause mistake, or to deceive the public, as described above, in
13 violation of the Laham Act, 15 U.S. C. 1 125(a). Defendats have committed
14 these acts with the knowledge and intent that their use of Tores' trademaks would
15 cause confusion, deception, or mistake.
16 52. As a direct and proximate result of defendants' willfl infinging
17 conduct as described above, Torres has been damaged and will continue to be
18 damaged in amounts to be proven at trial. Defendants' infinging conduct entitles
19 Torres to recover his actual damages, trebled, together with defendants' profts, and
20 his attorey fees and costs.
21 SEVENTH CLAIM FOR RELIEF
22 (By Schmidt for Unfair Competition, California Bus.& Prof. Code 17200 et
23 seq., against all Defendants)
24 53. Schmidt realleges and incorporates by reference paragraphs 1 through
25 52, inclusive above, as though flly set forth.
26 54. Defendants' wrongfl acts described herein constitute unlawfl, unfair,
27 and faudulent business practices ad misleading advertising under Califora
28 Business & Professions Code 17200 et seq.
4107.060/646706.1
1 1
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 11 of 15 Page ID #:55
KING, HOLMES,
PATERNO&
BERLINER, LLP
1 55. Schmidt has been damaged and will continue to be damaged by
2 defendants' unlawfl, unfair, and faudulent business practices and misleading
3 advertising, as described above.
4 56. Schmidt is entitled to an injunction prohibiting defendants fom
5 continuing the practices described above, and to restitution of all amounts acquired
6 by defendants by means of their acts of unfair competition.
7 EIGHTH CLAIM FOR RELIEF
8 (By Torres for Unfair Competition, California Bus.& Prof. Code 17200 et
9 seq., against all Defendants)
iO 57. Torres realleges and incorporates by reference paragraphs 1 through 56,
11 inclusive above, as though flly set forth.
12 58. Defendants' wrongfl acts described herein constitute unlawfl, unfair,
13 and faudulent business practices and misleading advertising under Califoria
14 Business & Professions Code 17200 et seq.
15 59. Torres has been damaged and will continue to be damaged by
16 defendants' unlawfl, unfair, and faudulent business practices and misleading
17 advertising, as described above.
18
19
20
21
22
23
24
25
26
27
28
60. Torres is entitled to an injunction prohibiting defendants fom
continuing the practices described above, ad to restitution of all amounts acquired
by defendants by means of their acts of unfair competition.
NINTH CLAI FOR RELIEF
(By Schmidt for an Accounting against all Defendants)
6 1. Plaintiffs reallege and incorporate by reference paragraphs l through
60, inclusive above, as though flly set forth.
62. Schmidt is entitled to recover as damages and restitution profts derived
by defendants fom their sale and exploitation of "Scribblenauts," "Super
Scribblenauts," "Scribblenauts Remix," and "Scribblenauts Unlimited." The exact
amounts due are unown and cannot be ascertained without an accounting of
4107.060/646706.1
12
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 12 of 15 Page ID #:56
KING, HOLES,
PATERNO&
BERUNER,llP
1 defendants' fnancial records. Schmidt seeks an accounting in order to determine
2 the precise amount of defendants' profits or other ill-gotten gains, and the amounts
3 of royalties due to him.
4 TENTH CLAIM FOR RELIEF
5 (y Torres for an Accounting against all defendants)
6 63. Plaintiffs reallege and incorporate by reference paragraphs 1 through
7 62, inclusive above, as though flly set forth.
8 64. Torres is entitled to recover as damages and restitution profts derived
9 by defendants fom their sale ad exploitation of "Scribblenauts Unlimited", and
10 fom their wrongfl uses of the Nyan Cat Marks. The exact amounts due are
11 unknown and cannot be ascertained without an accounting of defendants' fnancial
12 records. Torres seeks an accounting in order to determine the precise aount of
13 defendants' profts or other ill-gotten gains, and the amounts of royalties due to him.
14 WRFOR, plaintiffs pray for judgment, as follows:
15 1. For damages according to proof, plus interest at the legal rate;
16 2. For temporary, preliminary and permanent injunctive relief enjoining
17 defendants fom manufacturing, distributing, marketing, promoting or selling
18 Scribblenauts games with plaintiffs' copyrighted material and trademarks;
19 3.
20 4.
21 5.
22 Ill
23 Ill
24 Ill
25 Ill
26 Ill
27 Ill
28 Ill
4107.060/646706.1
For an accounting;
For a constructive trust;
For treble damages;
FIRST AMENDED COMPLAINT
13
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 13 of 15 Page ID #:57
KING, HOLMES,
PATERNO &
BERLINER, LLP
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Ill
Ill
Ill
6.
7.
8.
DATED:
4107.060/646706.1
For punitive damages;
For costs and attorey fees incurred herein; and
For such other and fuher relief as the Court deems just and proper.
May 3, 2013 KG, HOLMS, PATERO &
BERLIER, LLP
By <i
STEPHN D. ROTHSCllD
Attoreys for Plaintiffs Charles Schmidt and
Christopher Orlando Torres
14
FIRST AMENDED COMPLAINT
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 14 of 15 Page ID #:58
KING, HOLMES,
PATERNO&
BERLINER, llP
1 DEMAND FOR JRY TRL
2 Plaintiffs demand a trial by jury on all issues so tiable.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DATED: May 3, 2013
4107.060/646706.1
FIRST AMENDED COMPLAINT
KG, HOLMS, PATERO &
BERLINER, LLP
STEPHN D. ROTHSCHD
Attoreys for Plaintiffs Charles Schmidt ad
Christopher Orlando Torres
15
Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 15 of 15 Page ID #:59