Professional Documents
Culture Documents
Document 1-1
Filed 05/01/15
EXHIBIT A
Page 1 of 19
Case 3:15-cv-00748-PK
Document 1-1
Filed 05/01/15
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LTD.
u:s.
VIA
MAIL, and
U.S. Certified Mail, return
receipt requested.
RE:
Service of Process
Dear Sir or Madame:
Pursuant to Oregon Rules of Civil Procedure enclosed is the SUM:MONS and
COMPLAINT in the above referenced matter, filed April 3, 2015.
Enclosures:
SUMMO S
COMPLAINT
Exhibit A
Page 1 of 18
Case 3:15-cv-00748-PK
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Page 3 of 19
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COUNTY OF COLUMBIA
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.Plaintiff,
vs.
Microdaq.com, Inc., a New Hampshire
corporation,
Does 1through10,
Defendants.
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SUMMONS
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Robert R. Howard, ID
10 Main Street
Henniker, NH 03242
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You are hereby required to appear and defend the complaint filed against you in
the above entitled cause within thirty (30) days from the date of service of this
summons upon you, and in case of your failure to do so, for want thereof
Plaintiff(s) will apply to the court for the relief demanded in the complaint.
NOTICE TO THE DEFENDANT:
READ THESE PAPERS CAREFULLY!
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You must "appear" in this case or the other side will win
automatically. To "appear" you must file with the court a legal paper
called a "motion" or "answer." The "motion" or "answer" must be
given to the court clerk or administrator within 30 days along with
the required filing fee. It must be in proper form and have proof of
service on the plaintiffs attorney or, if the plaintiff does not have an
attorney, proof of service upon the plaintiff.
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Page 1 of2
SUMMONS
Case 3:15-cv-00748-PK
Document 1-1
Filed 05/01/15
Page 4 of 19
If you need help in finding an attorney, you may contact the Oregon
State
Bar's
Lawyer
Referral
Service
online
at
www.oregonstatebar.org or by calling (503) 684-3763 (in the
Portland Metropolitan area), or toll-free elsewhere in Oregon at
(800) 452-7636.
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Dated:
?i/~
ine, OR Bar No.: 13234
Lemoine aw Finn
1631 NE Bro~dway Street, Box 722
Portland, OR 97232
Tel: (503) 799-9745
Fax: (213) 402-3812
Email: ganolemoine@lemoinefirm.com
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Attorney for Plaintiff,
CONTROL SOLUTIONS, INC.
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STATE OF OREGON
County of Multnomah
) SS.
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You are hereby directed to serve a true copy of this summons, together with a true
copy of the complaint mentioned therein, upon the individual(s) or other legal
entity(ies) to whom or which this summons is directed, and to make your proof of
service, and an Affidavit of Service upon documents which you shall attach hereto.
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Page2 of2
SUMMONS
Case 3:15-cv-00748-PK
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Filed 05/01/15
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41312015 4:17:45 PM
15CV08320
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COUNTY OF COLUMBIA
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NOWINTO COURT, though undersigned counsel, comes Plaintiff, Control Solutions, Inc.,
which avers as follows:
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I.
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Plaintiff, Control Solutions, Inc., is a corporation organi7.ed under the laws of the State of
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Oregon, duly registered and in good standing with the Oregon Secretary of State, and with its
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principal place of business at 35851 Industrial Way, Suite D, St Helens, OR. County of
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Columbia. Control Solutions is in the business of selling certified, calibrated thennometers and
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data "loggers," devices that record temperature readings over time. Control Solutions has been in
business since 1996, selling throughout the 50 U.S. states and internationally.
2.
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Exhibit A
Page 4 of 18
Case 3:15-cv-00748-PK
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Filed 05/01/15
Page 6 of 19
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Defendant, Microdaq.com, Ltd., is a corporation organi7.ed under the laws of the State of New
Hampshire, having its principal place of business at 879 Maple Street, P.O. Box 439,
Contooc-00~ NH 03229, with its Agent for Service of Process being listed as Robert R. Howar~
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Ill, 10 Main Street, Henniker, NH 03242. Defendant is also in the business of selling certified
and calibrated temperature reading and logging devices, advertising its devices via the internet in
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O Does 1 through 10 are presently unknown persons.
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4.
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Intentional Interference with Economic Relations ;
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s.
Jurisdiction is proper in this Honorable Court pursuant to ORCP 4(D)(l - 2), Local injwy;
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Page2of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 5 of 18
Case 3:15-cv-00748-PK
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Filed 05/01/15
Page 7 of 19
trademark{s), trade name{s), and product name{s) in connection with the sale of goods and/or
provision of services within this State, or hasengaged in acts or omissions within this State
causing injury to Control Solutions, or has engaged in acts or omissions outside of this State
s
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causing injury within this State, or has otherwise established contacts within this State sufficient
to permit the exercise of personal jurisdiction.
6.
Venue is proper in this Honorable Court and Circuit pursuant to ORS 14.030 and 14.080 in that
the causes of action, business losses and financial hann., and injury to Control Solutions'
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O business and business interests occurred in St. Helens, OR, in the County of Columbia.
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7.
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Control Solutions advertises and sells its thermometers and temperature logger devices
throughout the United States and internationally, through its web domain
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"www.vfcdataloggers.com," and through its comj>any name, Control Solutions, Inc., and has
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8.
Having advertised and sold its thermometers and temperature logger devices throughout the
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United States through its web domain "www.vfcdataloggers.com" since 2009, Control Solutions
has established common law trademark and trade name rights and protection in the marks
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"www.vfcdataloggers.com" and "Control Solutions" from 2009 in the geographic areas in which
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The web domain "www.vfcdataloggers.com" was initially obtained, register~ and used by
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Control Solutions on the internet in 2009, thereby reinforcing Control Solutions' common law
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trademark and trade name rights and protection in that mark from 2009 forward.
Page 3of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 6 of 18
Case 3:15-cv-00748-PK
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10.
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On February 3, 2015, Control Solutions filed the mark '"vfcdataloggers.com" with the U.S.
Trademark Office, Number 86522855, thereby entitling Control Solutions to federal statutory
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trademark protection from that filing date forward.
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Control Solutions sells versions of certified and calibrated temperature reading and logging
devices under the following product names, and has done so since the referenced times:
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Product Name
2009
VFC5000
2009
2009
2009
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Having actively used the above terms in commerce throughout the United States, and since the
referenced dates, Control Solutions is entitled to common law trademark protection regarding
those terms as of the dates of first use and in the geographic areas in which those marks were
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used.
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Considering Control Solutions' longstanding sales history selling its products nationwide and
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internationally, via the internet, and via bids to various U.S. state agencies, Control Solutions'
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company name, trademarks, trade names, and product names and numbers have come to signify
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Control Solutions' products in the minds of a significant portion of consumers, with Control
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Solutions' marks evoking favorable images of Control Solutions and its products, and thereby
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possessing the distinctive quality of advertising value and consumer recognition, association, and
Page 4of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 7 of 18
Case 3:15-cv-00748-PK
Document 1-1
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acceptance.
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Filed 05/01/15
13.
Defendant, Microdaq.com, Ltd., ("Microdaq") was formed, according to the New Hampshire
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Secretary of State information, on November 13, 2000.
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14.
On or about February 28, 2015, Control Solutions learned that Defendant, Microdaq.com, Ltd.,
was using Control Solutions' trademarks, trade names, product names and/or part numbers in
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user searching one of Control Solutions' trademarks, trade names and/or product names/numbers
would receive as a search result a reference and hyperlink to Defendant/Defendant's website and
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In so doing, Defendant misappropriated Control Solutions' trademarks, trade names and product
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vfcdatalogger
VFC Data Logger
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VFC5000
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In so doing, Defendant drove customers that had searched for a Control Solutions trademark,
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trade name, product name/number away from Control Solutions website and purchasing system,
and to Defendant's website and purchasing system.
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Page 5of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 8 of 18
Case 3:15-cv-00748-PK
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Page 10 of 19
By Defendant using Control Solutions' trademarks, trade names and product names/numbers in
Solutions' trademarks, trade names and product names/numbers, as evidenced in the internet
screen shots attached as Exhibit A, returned the following search results and hyperlinks to
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See printout of such search results attached as Exhibit A.
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On March 10, 2015, Control Solutions sent a Cease and Desist letter via email to Defendant
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demanding that Defendant cease using Control Solutions' trademarks, trade names, product
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names/numbers.
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19.
On March 11, 2015, Ed Lombardi, identified as Defendant's Sales & Marketing Manager,
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replied, admitting that at least two Google Adwords campaigns had been in place which
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infringed on Control Solutions' trademarks, trade names and/or product names and/or
Page 6of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 9 of 18
Case 3:15-cv-00748-PK
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Document 1-1
20.
The above communication is an admission that Defendant was running Adword campaigns
utilizing Control Solutions' trademarks, trade names, product names and/or numbers.
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As the result of the foregoing actions Control Solutions lost sales of its products with such sales
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22.
Because Control Solutions typically receives revenue from recertifying devices it has sold to
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customers, loss of sales because of Defendant's wrongful conduct has also resulted in Control
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Solutions loss of future revenue which would have been generated from the future sale of
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additional devices to prior customers, along with revenue which would have been generated from
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Page 7of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 10 of 18
Case 3:15-cv-00748-PK
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Defendant's conduct constitutes unlawful business and trade practices in that, in the course of
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certification by, another, (3) represented goods and/or services as having sponsorship, approval,
characteristics, qualities as to goods and/or services that did not have such sponsorship, approval,
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Defendant's acts in violation of ORS 646.608 entitle Control Solutions to actual damages,
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punitive damages, equitable relief, and reasonable attorneys fees and costs.
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Defendant's acts constitute trademark counterfeiting pursuant to ORS 647.135 in that Defendant
knowingly and with the intent to sell or distribute and without the consent of the registrant,
Control Solutions, used, displayed, advertised, distributed, and offered for sale, items and
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services that were identified using a counterfeit of Control Solutions mark(s).
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Page 8of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 11 of 18
Case 3:15-cv-00748-PK
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Page 13 of 19
29.
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Defendants acts in violation of ORS 647 et seq entitle Control Solutions to, among other
damages, all profits the Defendant derived and all damages Control Solutions suffered from the
use, display or sale or Control Solutions marks.
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3 l.
It is alleged Defendant acted in bad faith, thereby entitling Control Solutions to three times the
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sum of the Defendant' s profits and Control Solutions damages and reasonable attorneys fees.
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32.
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To the extent Defendant is or in the future does improperly use Control Solutions trademarks,
trade names, product names/numbers, Control Solutions is entitled to injunctive relief pursuant to
ORS 647.107.
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33.
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34.
Defendant's conduct constitutes interference with prospective business advantage as (1) an
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economic interest existed in internet users that searched Control Solutions trademarks, trade
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names, product names/numbers, that, as evidenced by the search by such users, had a probability
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of future economic benefit to Control Solutions, (2) Defendant knew or should have known of
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such prospective relationship, (3) Defendant's wrongful acts disrupted such relationship, (4) the
Page 9 of IS
COMPLAINT FOR DAMAGES
Exhibit A
Page 12 of 18
Case 3:15-cv-00748-PK
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Filed 05/01/15
Page 14 of 19
acts did disrupt such relationship, (5) resulting in economic damages to Control Solutions
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36.
Defendant's conduct constitutes intentional interference with economic relations as it was (1) an
intentional interference with a proposed economic relationship, that being an internet user that
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searched for Control Solutions trademarks, trade names, product names and/or numbers; (2) with
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an improper motive or by use of improper means; and (3) resulting in damage beyond the fact of
interference itself.
CLAIMS FOR RELIEF
(Common Law Trademark Infringement of the Control Solutions' Marks)
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37.
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38.
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By reason of Control Solutions prior use of the Control Solutions' Marks, for temperature
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measurement and logging, and related products and services, Control Solutions has acquired
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common law trademark rights in the Control Solutions marks for such goods and services.
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39.
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26 confusion, and therefore has infringed on Control Solutions rights in its marks.
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40.
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Page 10of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 13 of 18
Case 3:15-cv-00748-PK
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Filed 05/01/15
Page 15 of 19
Control Solutions has been and may continue to be damaged by Defendant's actions unless
41.
Defendant's actions have been willful and malicious, with full knowledge of Control Solutions'
consequence, Control Solutions is entitled to injunctive relief, damages, its costs, Defendant's
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To the extent Defendant's supervisory personnel were unaware of the Google Adword
campaigns improperly misappropriating and misrepresenting Control Solutions' trademarks,
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trade names and/or product names/numbers, Defendant is liable for the acts of its employees
through respondeat superior.
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Control Solutions is the sole owner of the Control Solutions mark "vcfdataloggers.com.., USPTO
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No. 86522855.
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45.
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The goods and services provided by Control Solutions under and through the registered mark are
nearly identical to goods and services provided by Defendant under its infringing use of the mark
in Adword campaigns.
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46.
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Page 11 of 15
COMPLAINT FOR DAMAGES
Exhibit A
Page 14 of 18
Case 3:15-cv-00748-PK
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Filed 05/01/15
Page 16 of 19
1 The infringing use of the mark in Adword campaigns is very similar to the registered mark,
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being the dominant portion of both marks, and substantially the entire mark is subsumed in
Defendant's infringing mark and/or use.
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47.
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Defendant's use of the mark in Adword campaigns has likely caused confusion and/or mistake,
and/or deceived with respect to Control Solutions prior use of the mark.
48.
Defendant's use of the mark infringes on Control Solutions registered mark, thereby causing
49.
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Defendant's actions have been willful, deliberate and malicious, with full knowledge of Control
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Solutions rights and mark registration, and therefore this case is exceptional under 15 U.S.C.
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52.
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With respect to each of Control Solutions' marks, Defendant's use bas caused confusion,
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mistake, or has deceived as to the origin, sponsorship, or approval of Control Solutions' services.
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Such likely confusion, mistake or deception as to the origin of Control Solutions' goods and
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services under 15 U.S.C. l 125(a) is independent of the rights affoi:ded to Control Solutions'
Page 12of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 15 of 18
Case 3:15-cv-00748-PK
Document 1-1
Page 17 of 19
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Filed 05/01/15
53.
Pursuant to 15 U.S.C. 1117, Control Solutions is entitled to an injunction, its damages (trebled)
54.
Defendant's actions have been deliberate, willful and malicious with full knowledge of Control
Solutions' rights in the marks and in deliberate or reckless disregard of Control Solutions' rights,
and therefore this case is exceptional under 15 U.S.C. 1117, entitling Control Solutions to an
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CAUSE OF ACTION
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55.
56.
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In misappropriating and misrepresenting Control Solutions' trademarks, trade names and product
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names/numbers, the Google Adword search results gave the incorrect and false impression to
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customers searching for Control Solutions' products that Control Solutions' products were
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available through Defendant's website, or that the companies were somehow~ ox: that
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the companies were the same, or other confusion as to the source of goods sold.
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57.
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Defendant's misappropriations and misrepresentations in commercial advertising or promotion
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were disseminated to users of the internet that searched for Control Solutions' trademarks, trade
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names, product names/numbers, those users having been actually deceived or tended to be
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Page 13 of IS
COMPLAINT FOR DAMAGES
Exhibit A
Page 16 of 18
Case 3:15-cv-00748-PK
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58.
Filed 05/01/15
Defendant's misrepresentations were likely to influence the purchasing decisions of the persons
to whom they were disseminated and/or those who received search results based on the
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59.
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customers and sales, resulting in extensive business losses from loss of direct sales and future
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60.
Defendant's misrepresentations were made in commerce.
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61.
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damaging Control Solutions' reputation and the reputation of Control Solutions' products
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referenced herein.
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PRAYER
WHEREFORE, Control Solutions prays for judgment in its favor on all claims and for
an Order:
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a.
that Defendant's use of Control Solutions Marks has infringed, and if continuing,
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infringes, on Control Solutions registered Marks pursuant to Oregon Revised Statutes, and under
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common law trademark protection, and under 15 U.S.C. 1114 and 1117, and 1125(a), and
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such other laws as applicable. that Control Solutions has been damaged by such infringement.
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that such infringement was willful, malicious, and in deliberate or reckless disregard of the rights
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of Control Solutions;
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b.
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that Defendant's use of Control Solutions' Marks has, and if continuing, is likely
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COMPLAINT FOR DAMAGES
Exhibit A
Page 17 of 18
Case 3:15-cv-00748-PK
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Page 19 of 19
association of Control Solutions or its services under 15 U.S.C. l 125(a), that Control Solutions
has been damaged by such confusion, mistake, or deception, and that Defendant's conduct was
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willful and malicious and in deliberate or reckless disregard of the rights of Control Solutions;
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c.
officers, members and assigns, and all those in privity with them, if it/they have not yet done so,
to cease using Control Solutions' Marks described herein, and recall all offending materials, and
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d.
$1 ,200,000.00, a trebling of such damages as appropriate and pursuant to statute, and its costs,
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that this is an exceptional case and for an award of Control Solutions costs and
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g.
other costs, attorneys' fees, punitive damages, and such other relief as this Court
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Dated:
a-'
22
Gano
Lemoi
23
Law Firm
Portland, OR 97232
Tel: (503) 799-9745
Fax: (213) 402-3812
Email: ganolemoine@lemoinefirm.com
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Page 15of15
COMPLAINT FOR DAMAGES
Exhibit A
Page 18 of 18