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1 Venkat Balasubramani (pro hac vice pending) FOCAL PLLC 2 8426 40th Avenue SW Seattle, WA 98136 3 Tel: (206) 529-4827 Fax: (206) 260-3966 4 Email: venkat@focallaw.com 5 John A. Conley, State Bar #016429 382 E Palm Lane 6 Phoenix, AZ 85004-1531 Tel: (602) 307-0780 7 Fax: (602) 307-0784 Email: johnconley@jbslaw.net 8 Attorneys for Plaintiff, PET HOLDINGS, INC. 9 10 11 12 PET HOLDINGS, INC., a Delaware corporation, 13 14 vs. Plaintiff, NO. COMPLAINT FOR CYBERSQUATTING (FAILBOOK.COM), COPYRIGHT AND TRADEMARK INFRINGEMENT, AND UNFAIR BUSINESS PRACTICES JURY TRIAL REQUESTED IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

15 JOHN DOE, registrant of domain name < failbook.com >, 16 Defendant. 17 18 19

PLAINTIFF, Pet Holdings, Inc. (“PHI”) respectfully submits this Complaint against John

20 Doe, the registrant of the domain < failbook.com > (“Registrant”), which is registered through 21 GoDaddy.com, Inc., a domain name registrar (the “Registrar”) that is located in this judicial 22 district. In support thereof, Plaintiff alleges as follows: 23 24 NATURE OF ACTION This is an action for cybersquatting, trademark infringement, copyright infringement,

25 unfair competition, and breach of contract (terms of service). Registrant registered the domain 26 name < failbook.com > (the “Infringing Domain”) with the Registrar. The website accessible via 27 the Infringing Domain (the “Infringing Site”) displays an exact copy of the contents of PHI’s Site
COMPLAINT - 1

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1 (the “PHI Site”) accessible via the domain name <failbooking.com> (the “PHI Domain Name”), 2 which has been registered by PHI. The Infringing Site contains a “for sale” notation in the corner 3 that indicates that the Registrant is attempting to sell the Infringing Domain (but using PHI’s 4 copyrighted materials, trademarks, and goodwill to do so). PHI has not granted the Registrant 5 permission to use any of the foregoing PHI intellectual property. 6 The PHI Site is a humorous site that pokes fun at on-line, public errors made by users of

7 social networking sites, with some of the content posted by third parties. The PHI Site contains 8 PHI’s intellectual property, including PHI’s service marks FAILBOOKING, a flaming head logo, 9 the tag line “too funny to unfriend,” and the house mark CHEEZBURGER, and copyrights in, 10 inter alia, certain entries, the flaming head logo and the design and layout of the website. The 11 Infringing Site contains unauthorized copies of these marks and copyrighted works and thereby 12 infringes on PHI’s intellectual property rights. Registrant’s blatant attempt to divert users from 13 the PHI Site to the Infringing Site also constitutes unfair competition and breach of contract. 14 15 1. I. PARTIES

Plaintiff Pet Holdings, Inc. is a corporation organized and existing under the laws

16 of Delaware and has a principal address at 190 Queen Anne Avenue North, Suite 250, Seattle, 17 Washington 98109. 18 2. Defendant is an individual or entity of unknown location who registered the

19 Infringing Domain. According to the “WHOIS” information for the Infringing Domain, the 20 Registrar is GoDaddy.com, 14455 N. Hayden Rd., Ste. 219, Scottsdale, Arizona 85260. The 21 Registrant information is private, but the registration was effected through privacy protection 22 services offered by GoDaddy.com through Domains by Proxy, Inc. (which is located at 15111 N. 23 Hayden Rd., Ste. 160, PMB 353, Scottsdale, Arizona 85260). 24 25 3. II. JURISDICTION AND VENUE

Subject Matter Jurisdiction: This Court has original subject matter jurisdiction

26 pursuant to 28 U.S.C. §§ 1331 and 1367, 15 U.S.C. § 1051, et seq. (the Lanham Act), and 17 27 U.S.C. § 101, et seq. (the Copyright Act).
COMPLAINT - 2

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1

4.

Personal Jurisdiction: This Court has personal jurisdiction over the Defendant

2 because it has registered the Infringing Domain through an agent located in this judicial district 3 and the Registrar is located in this judicial district. 4 5. Venue: Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because

5 a substantial part of the events or omissions giving rise to the claims occurred in this judicial 6 district and a substantial part of the property that is the subject of the action is situation in the 7 judicial district. Namely, Defendant has registered the Infringing Domain with an agent located 8 in this judicial district and the Registrar is located in this judicial district. 9 10 6. III. FACTS

Plaintiff is a Seattle-based web company that operates the CHEEZBURGER

11 network of humorous media properties, including, for example, the websites accessible via 12 failbooking.com, failblog.org, myfirstfail.com, cheezburger.com, lolcats.com, 13 crazythingsparentssay.com, probablybadnews.com, engrishfunny.com, and thisisphotobomb.com. 14 Plaintiff’s websites are extremely popular – the sites receive approximately 5.5 million webpage 15 views daily. PHI constantly launches new websites, products, and media properties. In addition 16 to the websites, PHI has published books, sponsored events, and operates an online retail store. 17 7. In early January 2010, PHI launched the PHI Site (at failbooking.com), a humor-

18 oriented site that highlights funny miscommunications in social networking posts. True and 19 correct copies of screenshots from PHI’s Site are attached hereto as Exhibit A. Many of the early 20 entries on the PHI Site were created by PHI or its employees. 21 8. PHI’s Site incorporates intellectual property owned by PHI. Namely, the PHI Site

22 is part of the CHEEZBURGER network and the CHEEZBURGER mark appears on the PHI Site. 23 PHI owns Application Serial Number 77/806,474, filed on August 17, 2009, for the mark 24 CHEEZBURGER in connection with “Entertainment services, namely, providing web sites 25 featuring text, photos, images, and other audiovisual material of a humorous nature” in 26 International Class (“IC”) 041. PHI also owns Registration Number 3,426,428, registered on 27 February 26, 2008, for the mark I CAN HAS CHEEZBURGER? in connection with “Pro viding
COMPLAINT - 3

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1 On-Line Forums for the Transmission of Images and Messages among Computer Users 2 concerning Animals and Humor” in IC 038. 3 9. PHI also holds rights in the following unregistered marks, which it has used on

4 PHI’s Site since the site launched on or around January 6, 2010, all in connection with providing 5 web sites featuring text, photos, images, and other audiovisual material of a humorous nature: 6 7 8 9 10 11 12 13 The CHEEZBURGER marks, the Flaming Head Logo mark, the FAILBOOKING mark, and the 14 TOO FUNNY TO UNFRIEND mark are referred to collectively, hereinafter, as the “PHI 15 Marks”. PHI has actively promoted these Marks, which are distinctive. 16 10. PHI holds copyright rights in works appearing on PHI’s Site. On January 22, “TOO FUNNY TO UNFRIEND” “FAILBOOKING” Mark

17 2010, PHI applied for registrations in the works titled “FAILBOOKING WEB SITE JANUARY 18 19, 2010.” The application was submitted on an expedited basis and bears the number 119 318713462. True and correct copies of the works for which registration is being obtained are 20 attached are attached hereto as Exhibit B. PHI also owns copyright rights in the Flaming Head 21 Logo and in the design and layout elements of PHI’s Site, specifically (1) the banner at the top of 22 the page with the Flaming Head Logo, the FAILBOOKING Mark, and the Tagline on a blue 23 background, and (2) the headings and features in the right column, namely the portions identified 24 by the following headings: (a) Featured Fails!, (b) Daily Updates, (c) The Big Book of Fail, (d) 25 Failbooking on Facebook, (e) What’s on your mind?, (f) Cheezburger Network, and (g) Even 26 Moar Lulz. The foregoing works are referred to collectively, hereinafter, as the “PHI 27 Copyrighted Works.”
COMPLAINT - 4

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11.

PHI’s Site bears the following Copyright legend at the bottom: “Copyright ©

2 2001-2010 Funny Facebook Status Messages and Posts – Failbooking” (the “PHI Copyright 3 Notice”). 4 12. The Terms of Use for the PHI Site (and all of PHI’s Sites in the CHEEZBURGER

5 network), accessible via a hyperlink < Term of Use > at the bottom of each page of the PHI Site 6 and available at <http://icanhascheezburger.com/terms-of-use/>, provide, in relevant part, as 7 follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
COMPLAINT - 5

3.A. You agree not to distribute in any medium any part of the Websites, including but not limited to Content and User Submissions (each as defined below), without Pet Holdings’ prior written authorization. . . . 3.C. You agree not to access User Submissions (defined below) or Content through any technology or means other than any explicitly authorized means designated by Pet Holdings. . . . 3.D. You agree not to use the Websites for any commercial use, without the prior written authorization of Pet Holdings. Prohibited commercial uses include any of the following actions taken without Pet Holdings’ express approval: . . . 4. Any use of the Websites or its Content or services that Pet Holdings finds, in its sole discretion, to use its resources or User Submissions with the effect of competing with or displacing the market for the Websites, its Content, or its User Submissions. . . . 5.A. The content on the Websites, except all User Submissions, including without limitation, the text, software, scripts, graphics, photos, sounds, music, pictures, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Pet Holdings, subject to copyright and other intellectual property rights under the law. Content on the Websites is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Pet Holdings reserves all rights not expressly granted in and to the Websites and the Content. . . . 5.D. You may access Content, User Submissions and other content only as permitted under this Agreement. Pet Holdings reserves all rights not expressly granted in and to the Content and the Websites. . . . 5.E. You agree to not engage in the use, copying, reproduction, transmission, broadcast, selling, licensing, downloading, or otherwise exploiting any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Websites for any commercial purposes. . . .

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13.

At some time following launch of the PHI Site, the Infringing Site launched as an

2 exact copy of the entire contents of the PHI Site. True and correct copies of screenshots of the 3 Infringing Site are attached hereto as Exhibit C. In copying the entire contents of the PHI Site, 4 the Infringing Site also copies the PHI Marks, the PHI Copyrighted Works, and the PHI 5 Copyright Notice, as well as the posts made by third parties. In fact, Registrant did not even 6 change the hyperlinks on the site – the hyperlink for “legal” on the Infringing Site directs to 7 < failbooking.com/legal >, the webpage with legal information for the PHI Site, and the hyperlink 8 for “Terms of Use” on the Infringing Site directs to < icanhascheezburger.com/terms-of-use/ >, 9 the page containing the terms of use for the PHI Site. 10 14. Registrant has requested that visitors to the Infringing Site recommend the

11 Infringing Site on Digg, a website accessible at < www.digg.com >, where web users can submit 12 web content that they find interesting and recommend this content to fellow users. Individuals 13 within the Digg community may see the recommendations for the Infringing Site and visit that 14 website, rather than the legitimate site – the PHI Site. 15 15. Finally, and most importantly, Registrant is offering the Infringing Site for sale,

16 through appropriating PHI’s copyrighted material, trademarks, and goodwill. By copying the 17 entire contents of the PHI Site and posting those contents on the Infringing Site, which has a 18 nearly identical domain name, Registrant is using the PHI Marks in bad faith, and diverting traffic 19 from the PHI Site, thereby depriving PHI of users, customers, and potential advertising revenue. 20 21 22 IV. FIRST CAUSE OF ACTION

ANTI-CYBERSQUATTING CONSUMER PROTECTION ACT (15 U.S.C. § 1125(d)) 16. Plaintiff incorporates herein by reference and realleges the allegations set forth in

23 paragraph 1-15, above. 24 17. Registrant registered and/or used the Infringing Domain with a bad faith intent to

25 profit from the PHI Marks, including PHI’s FAILBOOKING mark. 26 18. PHI’s FAILBOOKING mark was distinctive and at the time Registrant used the

27 Infringing Domain in a way that infringed on the ACPA rights of Pet Holdings.
COMPLAINT - 6

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19.

The Infringing Domain, < failbook.com >, is confusingly similar to PHI’s

2 FAILBOOKING mark. The only difference between the Infringing Domain and PHI’s 3 FAILBOOKING mark is the gerund ending in PHI’s mark. Furthermore, the Infringing Site and 4 the PHI Site are identical, and Registrant propagated content through the Infringing Site to make 5 them appear identical. 6 20. PHI has suffered injury from Registrant’s registration and/or use of the Infringing

7 Domain. Registrant’s acts violate PHI’s rights under the ACPA ( 15 U.S.C. § 1125(d)). 8 9 10 21. V. SECOND CAUSE OF ACTION

TRADEMARK INFRINGEMENT (15 U.S.C. § 1125(a)) Plaintiff incorporates herein by reference and realleges the allegations set forth in

11 paragraph 1-20, above. 12 22. Registrant has used the PHI Marks, without authorization, on the Infringing Site.

13 Further, the Infringing Domain, < failbook.com >, is confusingly similar to PHI’s 14 FAILBOOKING mark. 15 16 23. 24. PHI’s first use of its marks is prior to Registrant’s use of the PHI Marks. Registrant’s use of the PHI Marks is likely to cause confusion, or to cause mistake,

17 or to deceive as to the affiliation, connection, or association of Registrant with PHI, or as to the 18 origin, sponsorship, or approval of Registrant’s goods, services, or commercial activities by 19 another person. 20 21 Marks. 22 23 24 26. VI. THIRD CAUSE OF ACTION 25. PHI has been damaged or is likely to be damaged by Registrant’s use of PHI’s

COPYRIGHT INFRINGEMENT (17 U.S.C. § 501) Plaintiff incorporates herein by reference and realleges the allegations set forth in

25 paragraph 1-25, above. 26 27. Plaintiff owns the PHI Copyrighted Works and displays them on the PHI Site.

27 Plaintiff applied for copyright registration on an expedited basis (1-318713462) and this
COMPLAINT - 7

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1 registration – covering the banner and certain PHI-created entries on the PHI Site – should issue 2 shortly. 3 28. Without authorization, Registrant (a) reproduced the PHI Copyrighted Works on

4 the Infringing Site, and (b) displayed the PHI Copyrighted Works publicly. 5 29. Registrant’s activities recited in the foregoing paragraph constitute willful

6 infringement of the PHI Copyrighted Works. Namely, Registrant knew that it did not own rights 7 in the PHI Copyrighted Works and that another party owned the rights in the PHI Copyrighted 8 Works, yet Registrant reproduced and displayed the PHI Copyrighted Works without 9 authorization. 10 11 12 13 14 31. 30. Plaintiff has suffered injury from Registrant’s foregoing activities. VII. FOURTH CAUSE OF ACTION

REMOVED OR ALTERED COPYRIGHT MANAGEMENT INFORMATION (17 U.S.C. § 1202) Plaintiff incorporates herein by reference and realleges the allegations set forth in

15 paragraph 1-30, above. 16 32. Registrant has, without the authority of PHI or the law, (1) intentionally removed

17 or altered copyright management information, (2) distributed copyright management information 18 knowing that the copyright management information has been removed or altered without 19 authority of PHI or the law, and (3) distributed works and copies of works, knowing that 20 copyright management information has been removed or altered without authority of PHI or the 21 law, knowing, or having reasonable grounds to know, that it will induce, enable, facilitate, or 22 conceal an infringement of PHI’s copyright rights. Namely, Registrant copied the PHI Copyright 23 Notice via electronic means and placed PHI’s Copyright Notice on the Infringing Site without 24 authority of Registrant or the law, knowing, or having reasonable grounds to know, that this 25 copying and placement would induce, enable, facilitate, or conceal its infringement of copying 26 and distributing PHI’s Copyrighted Works. 27 33.
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PHI has been damaged by Registrant’s foregoing actions.

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1 2 3

VIII. FIFTH CAUSE OF ACTION UNFAIR COMPETITION UNDER WASHINGTON AND ARIZONA LAW 34. Plaintiff incorporates herein by reference and realleges the allegations set forth in

4 paragraph 1-33, above. 5 6 7 35. 36. 37. Plaintiff owns trademark rights in the PHI Marks. PHI’s first use of its marks is prior to Registrant’s use of the PHI Marks. Registrant has used the PHI Marks on the Infringing Site and the Infringing

8 Domain is confusingly similar to PHI’s FAILBOOKING mark. 9 38. Registrant’s use of the PHI Marks is likely to cause confusion, or to cause mistake,

10 or to deceive as to the affiliation, connection, or association of Registrant with PHI, or as to the 11 origin, sponsorship, or approval of Registrant’s goods, services, or commercial activities by 12 another person. Namely, Registrant copies the PHI Marks exactly and uses them on a website 13 identical to the PHI Site. 14 39. Registrant has taken further steps to divert traffic from the PHI Site. Namely, it

15 has invited visitors to the Infringing Site to recommend its website on Digg and thereby induce 16 other web users to visit the Infringing Site instead of the PHI Site. 17 40. PHI has been damaged or is likely to be damaged by Registrant’s foregoing

18 actions. 19 20 21 41. IX. SIXTH CAUSE OF ACTION

BREACH OF CONTRACT / VIOLATION OF TERMS OF SERVICE Plaintiff incorporates herein by reference and realleges the allegations set forth in

22 paragraph 1-40, above. 23 42. Registrant agreed to comply with the Terms of Use for the PHI Site by accessing

24 the PHI Site. The language at the bottom of the front page for the PHI Site specifies that visitors 25 to the site agree to the Terms of Use, and Section 1 of the Terms of Use likewise obligate visitors 26 of the site to comply with the Terms of Use. 27 43.
COMPLAINT - 9

Accordingly, Registrant agreed that it would not:

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 44.

(a) “distribute in any medium any part” of PHI’s Site “without Pet Holding’s prior written authorization” (Section 3.A.) (b) “access User Submissions or Content through any technology or means other than any explicitly authorized means designated by Pet Holdings.” (Section 3.C.) (c) “use the Websites for any commercial use, without the prior written authorization of Pet Holdings[, including] [a]ny use of the Websites or its Content or services that Pet Holdings finds, in its sole discretion, to use its resources or User Submissions with the effect of competing with or displacing the market for the Websites, its Content, or its User Submissions.” (Section 3.D.4.) (d) download, copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit PHI’s Site “for any other purposes whatsoever without the prior written consent of the respective owners. ” (Section 5.A.) (e) “access Content, User Submissions and other content [except] as permitted under this Agreement.” (Section 5.D.) (f) “engage in the use, copying, reproduction, transmission, broadcast, selling, licensing, downloading, or otherwise exploiting any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Websites for any commercial purposes. ” (Section 5.E.) Registrant failed to comply with the Terms of Use. Namely, Registrant distributed

16 accessed, used, used for commercial use, copied, reproduced, transmitted, downloaded, displayed, 17 and otherwise exploited the PHI Site, and the content thereon, without PHI’s authorization. 18 19 20 21 22 45. 46. Registrant therefore breached its obligations under the Terms of Use. PHI has been damaged by Registrant’s breaches. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 1. An Order prohibiting Registrant from using the PHI Marks, or marks confusingly

23 similar to the PHI Marks. 24 2. An Order requiring transfer of the Infringing Domain to Plaintiff under 15 U.S.C.

25 § 1125(d)(1)(C) and for statutory damages. 26 27
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3.

An Order prohibiting Registrant from exercising any of Plaintiff’s exclusive rights

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1 in the PHI Copyrighted Works. 2 4. An Order prohibiting Registrant from removing or altering the PHI Copyright

3 Notice, or any copyright management information relating to the PHI Copyrighted Works. 4 5 5. 6. Damages for each cause of action, in an amount to be determined at trial. With respect to the claims for copyright infringement under 17 U.S.C. § 501,

6 Plaintiff may elect to recover statutory damages, pursuant to 17 U.S.C. § 504(c)(1), and in the 7 event that proof at trial shows the infringement was willful, Plaintiff may elect to recover 8 increased statutory damages for such willful infringement pursuant to 17 U.S.C. § 504(c)(2). 9 7. With respect to the claims for removed or altered copyright management

10 information under 17 U.S.C. § 1202, Plaintiff may elect to recover statutory damages under 17 11 U.S.C. § 1203(c)(3)(B). 12 13 8. 9. Costs and attorney’s fees, pursuant to 17 U.S.C. §§ 505 and 1203(b)(4) and (5). For such other relief as this Court may deem just and proper.

14 DATED this 27th day of January 2010. 15 16 17 18 19 20 21 22 23 24 25 26 27
COMPLAINT - 11

FOCAL PLLC By: /s/ Venkat Balasubramani Venkat Balasubramani (pro hac vice pending) 8426 40th Ave SW Seattle, WA 98136 tel: (206) 529-4827 fax: (206) 260-3966 email: venkat@focallaw.com John A. Conley, State Bar #016429 382 E Palm Lane Phoenix, AZ 85004-1531 Tel: (602) 307-0780 Fax: (602) 307-0784 Email: johnconley@jbslaw.net

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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