Free Kick Master v. Apple and Amazon - Third Amended Complaint PDF

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 1 of 35
EUGENE ALKANA State Bar No. 60411

131 North El Molino Avenue Suite 310
Pasadena, California 91101
626--796-8170 FAX: 626-795-6138
eugenealkana@yahoo.com
Counsel for PLAINTIFFS FREE KICK MASTER LLC
AND FREE KICK MASTER Junior, LLC.
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
FREE KICK MASTER, LLC.
9107 Wilshire Blvd. #450
Beverly Hills, California 90210
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CASE 4:15 cv 03403
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JUDGE PHYLLIS HAMILTON
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CHIEF DISTRICT JUDGE
and
,
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FREE KICK MASTER Junior, LLC
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9107 Wilshire Blvd #450
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Beverly Hills, California 90210
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THIRD AMENDED COMPLAINT
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FOR INJUNCTIVE RELIEF AND
Plaintiffs,
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MONEY DAMAGES:
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(1) TRADEMARK INFRINGEMENT
v.
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(2) FALSE DESIGNATION OF
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ORIGIN
APPLE- (I-tunes) , Inc.
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(3) CONTRIBUTORY TRADEMARK
APPLE
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INFRINGEMENT
1 Infinite Loop
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(4) UNFAIR COMPETITION UNDER
Cupertino, California 95104.
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CAL. BUS. & PROF. CODE 17200
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ET SEQ.
and
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(5) FALSE ADVERTISING UNDER
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CAL. BUS. & PROF. CODE 17500
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ET SEQ.
AMAZON
Corporation Service Company
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(6) STATE COMMON LAW
300 Deschutes Way SW, Suite 304
)
TRADEMARK INFRINGEMENT
Seattle, Washington 98501
)
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THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
FILED BY FREE KICK MASTER LLC, et al. 4:15 cv 03403
and
GOOGLE, Inc.
Google Mountain View
1600 Amphitheatre Parkway
Mountain View, California 94043.
and
SAMSUNG
Samsung Electronics America, Inc.
105 Challenger Road
Ridgefield Park, New Jersey 07660.
Defendants.
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)
)
)
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)
)
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)
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THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

AND MONEY DAMAGES
(Jury Demand Endorsed Hereon)
Plaintiffs Free Kick Master, LLC, and Free Kick Master Junior, LLC, by Counsel and for
their Complaint, allege as follows:
The Parties
1. Plaintiff Free Kick Master LLC is a limited liability company formed and existing
under the laws of the State of Nevada, with its principal places of business in the States of
Nevada and California. It is the owner of the FREE KICK MASTER trademark.
2. Plaintiff Free Kick Master Junior LLC is a limited liability company formed and
existing under the laws of the State of Nevada, with its principal places of business in the States
Nevada and California. It is the owner of the FREE KICK MASTER Junior trademark.
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3. Upon information and belief, Defendant Apple (I-tunes), Inc. is a corporation formed
and existing under the laws of the State of California with its principal place of business in the
State of California at 1 Infinite Loop Cupertino, California 95104.
4.
Upon information and belief, Defendant Amazon is a corporation formed and
existing under the laws of the State of Delaware with its principal place of business in the State
of Washington at 410 Terry Ave. North Seattle, Washington 98109.
5. Upon information and belief, Defendant Google, Inc., is a corporation formed and
existing under the laws of the State of Delaware, with its principal place of business in the State
of California at 1600 Amphitheatre Parkway Mountain View, California 94043.
6. Upon information and belief, Samsung Electronics America, Inc., (Samsung) is a
Corporation formed and existing under the laws of the State of New York with its principal place
of business in the State of New Jersey at 105 Challenger Road Ridgefield Park, New Jersey
07660.
7. Upon information and belief, all four Defendants conduct significant business
in the computer and telecommunications industry in the State of California and most, if not all,
other states in the United States, as well as in many foreign countries..
.
Jurisdiction and Venue
8. This action arises under the trademark law of the United States, the Lanham Act
15 U.S.C. 1051, et seq.; under the Doctrine of Contributory Trademark Infringement as
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developed by the United States Supreme Court in Inwood Labs, Inc. v. Ives Labs, Inc., 456
U.S. 844, 853 (1982) and Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 984
(9th Circuit 1999); and under the statutory and common law of the State of California.
9. Federal question jurisdiction is conferred pursuant to 28 U.S.C. 1331 and 28
U.S.C. 1338(a), and 15 U.S.C. 1121 (a).
10. Subject matter jurisdiction over the claims brought under state statutory and
common law is conferred pursuant to 28 U.S.C. 1338(b) and 28 U.S.C. 1367(a).
11. Venue in this court is based on 28 U.S.C. 1391(b) and (c).
Factual Background
12. On 1/19/2007 Registrant S. L. Serauxi filed for registration of the trademark
FREE KICK MASTER. It was given application serial number 77087178.
13. On 10/30/2007 the FREE KICK MASTER mark was registered with registration
number 3322947. (See Exhibit I)
14.On 3/10/2008, Registrant S. L. Serauxi assigned his entire interest in the trademark
to Plaintiff Free Kick Master Limited located in Suite 7 Hadfield House Library Street, Gibraltar.
15. On 10/11/2013 Free Kick Master Limited assigned its entire interest in the
Trademark to Plaintiff Free Kick Master, LLC, a Nevada Corporation.
16. Plaintiff Free Kick Master LLC is the current owner of the FREE
KICK MASTER mark.
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17. The FREE KICK MASTER trademark is registered in the European (EU) Office
for Harmonization (#4644671). (See Exhibit II).
18. The FREE KICK MASTER trademark was intended for use by Free Kick Master
LLC in the production of television shows and sports movies, radio and television programs,
namely sports program production, film production, organization of sports events, and
organizing sporting events, including soccer football games..(See Exhibit I, trademark
information). (See also Exhibit III, a history of Free Kick Master Event found on Wikipedia).
19. The FREE KICK MASTER mark was intended to extend to the production of
computer games and applications. This is evidenced by the registration of the FREE KICK
MASTER JUNIOR trademark on May 27, 2008, under registration number 3433938, The
FREE KICK MASTER Junior mark is currently owned by Plaintiff Free Kick Master Junior
LLC. (See Exhibit IV, FREE KICK MASTER JUNIOR trademark information).
20. The Free Kick Master Junior trademark is for use in Board games: Toy,
namely battery powered computer game with LCD screen which features animation and sound
effects. The mark consists of a black rectangle inside of which there appears a drawing of a
soccer field within its own rectangular box. (Exhibit IV, page 2, Description of Mark).
21.. Defendants Apple, Amazon, Google, and Samsungs, use, sale, distribution,
promotion, certification, or authorization of the various Free Kick Master apps and games
(whether developed, marketed, or authorized by Defendants or third parties) in the State
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of California and the rest of the world is without authorization or consent from the Plaintiffs.
22. Defendants use, sale, distribution, promotion, certification, or authorization
of Free Kick Master apps and games causes a likelihood of confusion, mistake or deception
in the minds of the public.
23.. This confusion arises because the Free Kick Master mark owned by Plaintiff
Free Kick Master LLC
is
identical or very nearly identical to the names of the Free
Kick Master games developed, marketed, distributed, certified, or authorized, by all four
Defendants. The illustrations provided in conjunction with these games show soccer balls,
soccer players, and other football themes. (See Exhibits II, V, VI, VII, VIII).
24. A FREE KICK MASTER event was held on July 5, 2008 at Reliant Stadium in
Houston, Texas. This event was planned and developed by Free Kick Master, LLC. The event
featured some of the most well known and recognized soccer and football players from around
the world. (See Exhibit IX, X: License agreement and Player list). Upon knowledge and
belief, the event was attended by over 45,000 spectators at the stadium and broadcast in 190
countries and territories by IMG/FOX SPORTS INTERNATIONAL TV in direct transmission
and via Futbol Mundial and Trans World Sports TV programs...
25. The format, player positions, and rules of play of the Free Kick Master apps
developed, sold, marketed, authorized, certified, and provided free of charge, by or through or
with the cooperation of all four Defendants are very similar to the format, player positions,
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and rules of the original FREE KICK MASTER event held on July 5, 2008 at Reliant Stadium in
Houston Texas. This similarity is a source of confusion to the public as to the source and
origin of the applications and downloads.
.
26. A FREE KICK MASTER event (using the 2008 format) was to be held in 2010
at the MGM Grand Garden Arena, in Las Vegas, Nevada, but was cancelled when MGM began
facing Bankruptcy issues. (See Exhibit III, history on Wikipedia). See also, Exhibit XI,
License Agreement with MGM, The planning of the event included participation agreements
with various well known players (Exhibit XII) and agreements with broadcasters such as CBS
Sports and Home Box Office (HBO) Sports . (Exhibit XIII).
27. A 2012 FREE KICK MASTER event in Buenos Aires,. Argentina, was in the
planning stages, with many famous soccer players making commitments to participate in
the game. (Exhibit XIV) Plaintiff expended significant time and resources planning the event.
28. Plaintiff Free Kick Master LLC had developed a board game. Plaintiff Free
Kick Master was instrumental in the development of the Michael Ballack Edition of
a Free Kick Masters Junior electronic game. Plaintiff Free Kick Master had also developed
a line of watches, as well. (See Exhibit XV).
29. As stated above, Plaintiff Free Kick Master Junior LLC was formed in order to
develop and promote computer games (such as the Michael Ballack Edition game) based upon
the format and rules of the FREE KICK MASTER events promoted by Free Kick Master LLC.
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30 A FREE KICK MASTER event was to be held in 2013 at the SunLife Stadium
in 2013. (See Exhibit XVI). This event was never held because sponsors withdrew support, in
part, indicating that the prospects for profit from development of FREE KICK MASTER or
FREE KICK MASTER Junior computer games and apps would not be profitable since
companies like the instant Defendants were involved in developing, marketing, distributing,
authorizing, and certifying Free Kick Master apps and downloads mimicking the previous
FREE KICK MASTER sporting events described above.
31. A FREE KICK MASTER event (2014 copyright) was in the planning stages.
(Exhibit XVII), along with rules governing the games, physical board games, electronic games,
watches, and other memorabilia.. Interest in the event has been expressed, by the Singapore
Sports Hub in the Country of Singapore. (Exhibit XVIII).
32. Upon information and belief, Plaintiffs assert that their past and current plans
for FREE KICK MASTER live events and sales of FREE KICK MASTER and FREE KICK
MASTER JUNIOR products such as board games and video games, as well as FREE KICK
MASTER memorabilia have been, and will continue to be, thwarted by the actions of the
Defendants. Attempts to communicate with Defendants have been fruitless (Exhibit XIX,
Affidavit of Slobodan Petrovic and Miroslav Nestorovic) Plaintiffs and their agents attempts to
communicate (for example, with Defendant Samsung (Exhibit XX)), have been ignored.
Plaintiffs have good reason to believe that Defendants will continue developing, advertising,
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selling, promoting, certifying, assisting third parties in development of, and even providing free
downloads of Free Kick Master for the foreseeable future.
COUNTS APPLICABLE TO DEFENDANT APPLE
33. Plaintiffs incorporate as if fully rewritten herein the statements and allegations
contained in the preceding paragraphs 1 through 32.
34. Defendant Apple (I-Tunes) operates a business called the App Store. The
App Store is a service that allows users to download applications and programs developed by
Defendant Apple and third party developers for use on Apple devices such as I-phones, I-pads,
and other Apple devices, as well as third party devices approved by and registered with Apple.
35. There is evidence that Apple has provided a Free Kick Master game in
its App Store. .It has also been advertised by third parties for use in I-phones and I-pads.. This
application (game) has been available since 2011. In fact, it has even been provided for free and
even advertised in other languages (Russian, Spanish, etc.). (See Exhibit XXI, advertisements
of Free Kick Master in the App Store and on other websites for I-Phone and I-pad downloads
English and other languages, including Russian and Spanish).
36. The, name, format, player positions, and rules of play of the Free Kick
Master apps developed, sold, marketed, authorized, certified, and provided free of charge,
by or through, or with the cooperation of Defendant Apple are very similar to the format,
player positions, and rules of the original FREE KICK MASTER event held on July 5, 2008 at
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Reliant Stadium in Houston Texas. This similarity is a source of confusion to the public as to the
source and origin of the concepts and ideas behind the applications and downloads.
37. Plaintiffs never gave Apple permission for its trademark to be used on these
games. Plaintiffs never gave any of the third party websites or web developers who developed
apps compatible with Apple devices permission to use its trademark. Plaintiffs never gave
Apple permission to market or sell Free Kick Master apps or games on the App Store or
through any other vehicle or to authorize such apps for download into Apple devices.
38. Third party developers of applications for use on Apple branded products
such as the Apple I-phone and I-pad use Apple Software to develop applications. This
is a service which Apple provides to prospective developers. Apple grants developers a limited
license to use the Apple Software for development and testing of applications per the terms and
conditions of the IOS Developer Program License Agreement. (Exhibit XXII). In order to use
Apple Software and related services, the developer must agree to the License Agreement.
39. Applications developed under the IOS Developer Program License
Agreement can be distributed in four ways: (1) Through the App Store, if selected by Apple
(2) Through the VPP/B2B Program Site, if selected by Apple (3) on a limited basis for
use of Registered Devices (as defined below [devices registered with Apple]) and (4)
for beta testing through Apples Test Flight Program. (Exhibit XXII, page 1)
40. Applications developed using the Apple Software may only be
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distributed if selected by Apple (in its sole discretion) for distribution via the App. Store,
VPP/BWB Program Site, for beta distribution or for limited distribution on Registered
Devices (ad hoc distribution) (Exhibit XXII, Section 3.2(g)).
41. Apple reserves the right to reject applications which are obscene,
pornographic, or defamatory (Exh. XXII , Section 3.3.20). If the application has any other
content other than master recordings or musical compositions, the developer must either own
all such content or have permission from the content owner to use it in [the] application.
(Exh. XXII, Section 3.3.19).
42. Apples App Store Review Guidelines contain strict conditions on
functionality, trademarks, violence, privacy, pornography, etc. (See Exh. XXIII ).
43. Apple rejects apps for any content or behavior that [it]..believe[s] is over
the line. [A]s a Supreme Court Justice once said, Ill know it when I see it.... (Exh. XXIII)
44.
If it sounds like [Apple is a]..control freak, well maybe its because
[Apple is ]..so committed to [its]..users and making sure they have a quality experience with
[Apples] products. (Exhibit XXIII, page 1). (Italics and emphasis added).
45. Apple is an admitted control freak. (Exh. XXIII) As a control freak,
it must have direct control and monitoring over every item in its App Store and every app
compatible with its devices. Apple reserves the right to reject any app at its own discretion.
46. Having such a high degree of self-proclaimed control over development,
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testing, certification, and the selection process, Defendant Apple should have known, had
every reason to know, and every opportunity to discover that it was helping develop, certifying,
and marketing infringing products such as the Free Kick Master app, whether those products
were developed by Apple itself or by third party developers for use in Apple devices.. Not only
that, but it ignored communications from Plaintiffs agents. (Exhibit XIX).
Count I -- Trademark Infringement (Defendant APPLE)
contained in all of the preceding paragraphs 1 through 46.
48. For the reasons above, Defendant Apples use of the FREE KICK MASTER
mark in developing Free Kick Master apps constitutes an infringement of Plaintiffs
registered trademarks and causes a likelihood, confusion mistake, and deception to the public,
resulting in irreparable harm to the Plaintiffs for which there is no adequate remedy at law.
49. Upon information and belief, Apples acts have been willful, deliberate, and
and intended to interfere with Plaintiffs use of the FREE KICK MASTER mark and intended
use of the FREE KICK MASTER Junior mark.. To add insult to injury, the downloads have
been offered at no cost.
50. By reason of the foregoing acts, Defendant Apple is liable for trademark
infringement under 15 U.S.C. 1114.
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Count II -- False Designation of Origin under the Lanham Act (Defendant APPLE)
contained in the preceding paragraphs.
52. This count arises under Section 43(a) of the Lanham Act 15 U.S.C. 1125(a).
53. Defendant Apples use of the FREE KICK MASTER mark causes a likelihood
of confusion, mistake, and deception among the public and others as to the origin of the mark as
more fully described above.
54. The public and others are likely to believe that Apples Free Kick Master
apps are provided by, sponsored by, approved by, licensed by, affiliated with, or in some other
way legitimately connected with the Plaintiffs,. This has caused, and will cause damage and
injury to the Plaintiffs, in terms of their ability to promote its FREE KICK MASTER sporting
events and various computer apps and games derived therefrom.
55. Defendant Apple will continue to infringe upon the FREE KICK MASTER
and FREE KICK MASTER Junior marks absent an injunction. There is no adequate remedy at
law and, consequently, an injunction protecting Plaintiffs rights is proper.
Count III Contributory Trademark Infringement (Defendant APPLE)
56. As explained in the paragraphs above, Defendant Apple operates the App
Store (a service) , where users can download apps developed by Apple and third party
developers and sellers..
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57. As explained above, Defendant Apple provides Apple Software to third

party developers and third party developer websites pursuant to an IOS Developer Program
License Agreement, so that third party developers can develop apps for use in Apple devices
such as the iPhone and the iPad.
58. As explained above, third party developers used the App Store to market
their Free Kick Master apps. They also used Apple Software to develop Free Kick Master
apps compatible with Apple devices, such as i-phones and i-pads.
59. As explained above, Apple exercised very strict controls over the products
provided in its App Store and over products developed using Apple Software.
60. As explained above, Apple should have known, had every reason to
know, and had every opportunity to discover that it was marketing, promoting, and certifying
apps infringing on the Free Kick Master and Free Kick Master Junior marks.
61. In addition, Apple had ignored communications from Plaintiffs agents.
62. For all of the reasons stated above, Defendant Apple is liable to Plaintiffs
for Contributory Infringement of the the FREE KICK MASTER mark as defined and explained
in Inwood Labs, Inc., v. Inves Labs, Inc., 456 U.S. 844 (1982), Lockheed Martin Corp. v.
Network Solutions, 194 F. 3d 980 (9th Cir. 1999), and other related cases.
Count IV State Common Law Trademark Infringement_(Defendant APPLE)
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64. In In re Marriage of Shelton, 173 Cal. Rptr. 629, 118 Cal. App. 3d 811, 814815 (1981), in the context of a trade name, the Court stated that (citing Visser v. Macres (1963)
214 Cal App. 2d 249, 29 Cal. Rptr. 367), The test is whether the similarity between the two
names will deceive or confuse the publicProof of actual deception or confusion is not
required; probability or likelihood is sufficient.
65. Confusion in the instant matter arises because the Free Kick Master mark
owned by Plaintiff Free Kick Master LLC
is identical or very nearly identical to the
names of the Free Kick Master games developed, marketed, distributed, certified, or
authorized, by Defendant Apple The illustrations provided in conjunction with these games
show soccer balls, soccer players, and other football themes, just as intended to be shown in
games developed and to be developed by Plaintiff Free Kick Master Junior..
66. The format, player positions, and rules of play of the Free Kick Master
apps developed, sold, marketed, authorized, certified, and provided free of charge by,
through, or with the cooperation of Defendant Apple are very similar to the format, player
positions, and rules of the original FREE KICK MASTER event held on July 5, 2008 at Reliant
Stadium in Houston Texas. This similarity is a source of confusion to the public as to the origin
of the applications and downloads.
67. Defendant Apples, acts complained of above constitute trademark
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infringement under the Common Law of the State of California.

68. Defendant Apples conduct as alleged above has damaged and will continue to
damage Plaintiffs goodwill and reputation, and has resulted in a loss of revenue and business
opportunities for both Plaintiffs for past and future production of sporting events and products
stemming therefrom, in an amount to be determined.
69. Defendants Apples acts complained of herein constitute malice, oppression,
and/or fraud, thus entitling Plaintiffs to recover punitive damages.
Count IV California Bus. & Prof. Code Sec. 17200 et seq. (Defendant APPLE)
71. Per Cal. Bus. and Prof. Code Sec. 17200, unfair competition shall
mean and include any unlawful, [or] unfair,business act or practice.
72.
The previous paragraphs dealing with Defendant Apple have already pled
Direct and Contributory Infringement on the part of Apple, as well as violation of California
Common Law with respect to the FREE KICK MASTER MARK. These constitute
unlawful business practices.
73. Specifically, Defendant Apple has made available Free Kick Master
apps, including those developed by third party developers and websites in its own App Store
and elsewhere. It has provided Apple Software along with an IOS Developer Program License
Agreement to third party developers and developer websites to develop, market, promote, and
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certify Free Kick Master apps to be sold through the App Store and other venues, and to be
compatible with various Apple devices, including the I-Phone and the I-Pad.
74. Apple has not obtained or asked Plaintiffs permission for any of these
activities, and, despite its self-proclaimed control over developers, has not required the
third party developers to obtain Plaintiffs permission or leave to do so.
75. Apple has not shared any revenue or proceeds from this activity with
Plaintiffs. This constitutes an unfair business practice.
76. Defendant Apples acts of unfair competition have proximately caused and
will continue to cause Plaintiffs to suffer injury, loss of money and profits, loss and limitation
of business opportunities, and loss of goodwill --- to a degree and in an amount to be proven in
trial.. Unless Defendant Apple is enjoined, it will cause further injury, whereby Plaintiffs have
have no adequate remedy at law.
Count VI False Advertising: Calif. Bus. and Prof. .Code Sec. 17500 et seq. (APPLE)
78.
Cal. Bus. and Prof. Code Section 17500 provides that
It is unlawful for any corporation..or any employee thereof with intent directly or
indirectly to dispose of real or personal property or to perform services,. to make or
disseminate or cause to be made or disseminated before the public in this state, or to make or
disseminate or cause to be made or disseminated from this state before the public in any state,
or any advertising device, or in any other manner or means whatever, including over the
Internet, any statement, concerning that real or personal property or those services, professional
or otherwise, or concerning any circumstance or matter of fact connected with the proposed
performance or disposition thereof, which is untrue or misleading, and which is known, or which
by the exercise of reasonable care should be known, to be untrue or misleading
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79. In the instant matter, Defendant Apple advertised Free Kick Master
downloads on I-tunes, allowed them to be offered in the App Store, and on various websites
for its devices, and even offered them for free.
80. Apple also assisted third party developers in developing Free Kick Master
apps compatible with Apple devices such as i-Phones and i-Pads (through its Apple Software)
and allowed the apps to be advertised as such (i.e., compatible with Apple devices) on
various websites on the Internet.
81. Apple exercised highly strict and overarching control over the development,
approval and certification of apps compatible with its devices.
82. Due to its self proclaimed control, Apple had every reason to know, every
opportunity to discover, and most certainly should have known, that the Free Kick Master
apps it was promoting and helping to develop were in no way authorized or licensed by
Plaintiffs.
83. Upon information and belief, the use of the FREE KICK MASTER mark,
the accompanying symbols, formats, and player rules of the Free Kick Master apps are
misleading to the public, in that they make the public believe that Plaintiffs had some connection
to the development and marketing of the apps.
84. By the aforesaid acts, Defendant Apple has engaged and is engaging in
false advertising in violation of California Business and Professions Code Sec. 17500 et seq,
resulting in injury and loss of money to Plaintiffs in an amount to be proven at trial.
85. If Defendant Apple is permitted to proceed with the aforesaid acts, Plaintiffs
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will continue to be injured by reason of Defendant Apples misleading advertising.

86. If Defendant Apple is permitted to proceed to practice the aforesaid acts of
false designation, Plaintiffs will sustain serious and irreparable injury. Unless preliminarily
and permanently enjoined, Plaintiffs believe that there is a substantial possibility that
87. In addition, Apples acts, if allowed to proceed and continue, will cause
Plaintiffs to lose opportunities to promote Free Kick Master live events and to develop their own
lines of simulated computer games and other products. Plaintiffs Free Kick Master LLC
and Free Kick Master Junior LLC may also be forced to prepare and publish corrective
advertising to ameliorate public confusion over the source of origin of Apples products, all to
Plaintiffs damage in as yet an unascertained amount. In the meantime, Defendant Apple will
continue to profit from its sale of Free Kick Master apps and computer games.
COUNTS APPLICABLE TO DEFENDANT AMAZON
Count VII - Contributory Trademark Infringement (Defendant AMAZON)
88. Plaintiffs incorporate as if fully rewritten herein the statements and
allegations contained in the preceding paragraphs 1 through 32 (Paragraphs preceding
Counts I through V applicable to Defendant Apple).
89. Defendant Amazon operates a marketplace, the Amazon Appstore, through
which it has been possible for customers to purchase or obtain apps or programs developed by
third party app developers such as JuizhangTech, Ltd. Such apps included FreeKick Master
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Freefor free--- with an original release date of April 12, 2011. (See Exhibit XXIV).
90. Defendant Amazon sells the Kindle Fire device. Certain third party
developers, such as apkforkindle.com created and advertised the Free Kick Master Challenge
as being the Top APK for Amazon Kindle Fire. (See Exhibit XXV). Both exhibits feature
the Free Kick Master and Free Kick Master Junior soccer or football theme.
91. The names of the Free Kick Master programs or apps authorized,
marketed, promoted, and distributed by Amazon or allowed on its Kindle devices have names
identical or nearly identical to the FREE KICK MASTER mark. Additionally, these apps show
soccer balls, soccer players, and other football themes contemplated by both Plaintiffs. Also, the
format, player positions, and rules of play of these Free Kick Master apps are very similar
to the format, positions, and rules of the original FREE KICK MASTER event held on
July 6, 2008, at Reliant Stadium in Houston, Texas.
92. Due to the similarity of format, name, rules, and themes, Amazons use,
promotion, and distribution, and authorization of the so called Free Kick Master apps causes
a likelihood of confusion, mistake, and deception to the public.
93. The Amazon Apps & Services Developer Portal is a service provided
by Amazon to developers to distribute their mobile apps, digital software, and video games on
Android, PC, Mac, and web based platformsWith Amazons self service account, developers
can manage [their] mobile apps.and video games and market them to tens of millions of
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Amazon customers. Developers can also sell their mobile apps on Amazon devices. (Exh.
XXVI, page 1).
94. Exhibit XXVI (Amazon Apps & Services Developer Portal)
demonstrates the degree of control Amazon has over the development, sales, and marketing of
apps. Amazon receives 30% of the revenue (revenue split, Exhibit XXVI, page 1 of 28).
95. Amazon promotes apps (Exh. XXVI, page 1); approves apps (Exh.
XXVI, p 2); tests apps prior to their availability to make sure that they do[] not impair the
functionality of the mobile device (Exh. XXVI, page 4); wraps your binary with
code that allows Amazon to enforce its DRM,.. and enforce its program policies
(Exh. XXVI, page 6).
96. If [Amazon] determines than an app contains, facilitates, or promotes
content prohibited by these guidelines, [Amazon] will reject the app submission. Prohibited
content includes offensive content, pornography, illegal activity, intellectual
property infringement: [Amazon] prohibit[s] any app to which you do not have the
necessary rights to make available in Amazon or that violates.[Amazons ] copyright
policy. (Exhibit XXVI, page 8). (Emphasis and Italics added).
97.. Amazon requires that you have ownership or license rights to the
code and content (Copyright policy, Exh. XXVI, page 8), and boasts a very strict
anti-counterfeiting policy: the sale of counterfeit products, including any products that
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have been illegally replicated, [or] reproduced, .. is strictly prohibited. (Exh. XXVII).
98. Also, [Amazon] is constantly innovating on behalf of itscustomers and
working with content owners, vendors, and sellers to improve the ways it detects and
prevents counterfeit products. (See Exhibit XXVII, par. 2). Amazon has a very strict
policy on attempts to divert transactions or buyers, as well as a policy on unauthorized or
improper business names. (Exhibit XXVIII, page 1). Finally, Amazon also allows apps
already available on Google Play to be sold on Amazon. (Exhibit XXVI, page 12).
99. In this fashion, Amazon exercises a great deal of control over the apps
which it develops, accepts, distributes, markets, and authorizes.
100. Through its self proclaimed and very strict development process (including
prohibiting the app to which you do not have the necessary rights(See Exh. XXVI, p. 8)
Amazon had every reason to know, every opportunity to discover, and clearly should have
known that it was promoting, distributing and certifying infringing Free Kick Master products.
101. On top of that, attempts at contact by Plaintiffs agents appeared to have been
intentionally ignored. (Exhibit XIX).
102. None of the third party app developers have ever asked for or obtained
Plaintiffs permission to use the FREE KICK MASTER trademark in conjunction with their
apps. Defendant Amazon has never obtained Plaintiffs permission to market, sell, approve,
or certify any apps bearing the FREE KICK MASTER mark.
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103. For all of the reasons stated above, Defendant Amazon is liable to Plaintiffs
for Contributory Infringement of the the FREE KICK MASTER and FREE KICK MASTER
Junior marks as defined and explained in Inwood Labs, Inc., v. Inves Labs, Inc., 456 U.S. 844
(1982), Lockheed Martin Corp. v. Network Solutions, 194 F. 3d 980 (9th Cir. 1999), and other
related cases.
COUNTS APPLICABLE TO DEFENDANT GOOGLE
Count VIII - Contributory Trademark Infringement (Defendant GOOGLE)
105. Defendant Google, Inc., operates Google Play, a distribution platform that
was created and operates to serve as the marketplace and office online store to purchase
applications for the Android operating system. Google allows developers of apps (programs) for
Android mobile devices to distribute those apps, including Free Kick Master apps, to android
device users. (See Exhibit XXIX).
106. The apps on Google Play include apps developed by third parties such
as Game Joy Inc., and Imaging Games. These apps feature the soccer or football motif and use
the Free Kick Master name.
107. As in the case of Amazon, Googles Google Play distribution platforms
23
use, distribution, and promotion of Free Kick Master apps and games causes a likelihood of
confusion, mistake, and deception to the public.
108. This arises because the FREE KICK MASTER mark is identical or very
similar to the names of the games promoted on Google Play. Additionally, the motifs, rules of
play, formats, and player positions of those games are very similar to the rules, format, and
player positions in Plaintiff Free Kick Master LLCs July 6, 2008, Reliant Stadium event.
109. Defendant Google, Inc., has a Launch Checklist for publishing apps
on Google Play. (Exhibit XXX ). This manual teaches the developer to: Understand the
Publishing Process, (Exh. XXX, page 1); Determine your apps content rating (Exh. XXX,
page 4); as well as other topics.
110. Google Play Program Developer Policies provide controls on content such
as sexually explicit material, violence, hate speech, sensitive events, impersonation, intellectual
property, illegal activities, etc.. (See Exh. XXXI, pp. 1-3). In this fashion, Google
controls and monitors the programs and apps it accepts, distributes, and markets.
111. In this fashion, like Amazon, Google exercises a great deal of control over
the apps which it develops, accepts, distributes, markets, and authorizes.. Through
its self proclaimed and strict development process, Google had every reason to know, every
opportunity to discover, and should have known that it was promoting, distributing and
certifying infringing products. After all, all that Google and Amazon had to do was to Google
24
the Free Kick Master and Free Kick Master Junior trademarks to see that they existed.
112. Plaintiffs agents attempts to communicate with Google were in
vain and were never answered. (Exhibit XIX).
113. None of the third party developers featured on Google Play have ever asked
Plaintiffs for permission to use the FREE KICK MASTER mark. Defendant Google has never
asked for or obtained Plaintiffs permission to authorize, distribute, market or sell any apps using
the FREE KICK MASTER or FREE KICK MASTER Junior marks.
114. For all of the reasons stated above, Defendant Google is liable to Plaintiffs
for Contributory Infringement of the FREE KICK MASTER mark as explained in Inwood Labs,
Inc., v. Inves Labs, Inc., 456 U.S. 844 (1982), Lockheed Martin Corp. v. Network Solutions,
194 F. 3d 980 (9th Cir. 1999), and other related cases.
COUNTS APPLICABLE TO DEFENDANT SAMSUNG
Count IX - Contributory Trademark Infringement (Defendant SAMSUNG)
116. Upon information and belief, Defendant Samsung sells many electronic
devices and products on the internet and in stores and electronics outlets, including the Galaxy
mobile devices.. These Samsung devices can accommodate and accept apps including those
25
featuring the FREE KICK MASTER name or trademark developed by third party developers and
marketed by third party website providers.
117. For example, Exh. XXXII features android4samsung.coms Free Kick
Master League for Samsung Mobile, Tablet, Galaxy S3, Galaxy S4, Galaxy S5, and the
Samsung Omnia. The developer is Shooter Boomer. Exh XXXIII features app4samsung.coms
Free Kick Master for Samsung, developed by GameJoy, Inc.
118. Exh. XXXIV features mob.orgs Finger Free Kick Master compatible
with Samsung (and Apple) phones. Mobilesmspk.net also features Finger Free Kick Master
downloads to a variety of Samsung mobile devises (Galaxy devices, etc.). Mmobiles24.com
features Free Kick Master Samsung PM A740 Java Games. (See Exhibit XXXIV).
119. Samsung affords developers of apps and websites featuring those apps the
means to make those apps compatible with Samsung devices, provided that the apps also adhere
to very strict Samsung guidelines on content,
120. Samsung operates a Developers Website (a service) and publishes
Terms and Conditions for use of this website, in order that a developer (or a developer
website) which goes into to business of creating apps compatible with Samsung devices does not
violate Content Standards, including any copyright, database right or trademark of any other
person. [Samsung] will determine at [its] discretion whether a contribution breaches the
content Standards.. ( Exh XXXV, page 2 of 5). (Emphasis and italics added).
26
121. Samsung retains a non-exclusive license to use any contribution submitted

to its Developers Website. (Exh. XXXV, page 3 of 5).
122. Samsung also certifies any application that runs on any Galaxy device.
(See Exh. XXXVI, page 1 of 7). The certification policy has very strict criteria with respect to
an apps functionality, usability, device compatibility, use of copyrights and trademarks,
content (prohibition of violence, drugs, adult content, defamation, invasion of privacy, etc. ).
(Exhibit XXXVI, pages 2, 3, 4 of 7).
123. Samsung requires that any app to be loaded into a Galaxy device and meant
to be distributed on a website designated by Samsung Affiliate must be tested by Samsung to
meet quality assurance and content standards. 30% of any revenue from sales or downloads of
such apps is to be paid to Samsung. (Exh. XXXVII ). In this way, Samsung exercises a great
degree of control over apps and programs and collects revenue from apps and programs which
are meant to be installed in Samsung devices.
124. Neither Samsung, nor any of the third party developers who developed apps
compatible with and/or certified by Samsung to be installed in Samsung devices, ever asked for
obtained permission from the Plaintiffs to use the FREE KICK MASTER or FREE KICK
MASTER marks.
125. Plaintiffs assert that Defendant Samsung, through its strict control
and vetting processes had every reason to know, every opportunity to discover, and should have
27
known that its Development Website (a service) was directly promoting and facilitating the
sale and download of Free Kick Master products from third party developers and websites.
126. Plaintiffs attempts to communicate with Defendant Samsung (Exhibits
XIX and XX) have been ignored.
127.. For all of the reasons stated above, Defendant Samsung is liable
to Plaintiffs for Contributory Infringement of the the FREE KICK MASTER mark as defined
and explained in Inwood Labs, Inc., v. Inves Labs, Inc., 456 U.S. 844 (1982), Lockheed Martin
Corp. v. Network Solutions, 194 F. 3d 980 (9th Cir. 1999), and other related cases.
Count X Violation of Cal Bus. and Prof. Code Sec. 17200 (Defendant SAMSUNG)
128. Per Cal. Bus. and Prof. Code Sec. 17200, unfair competition shall
mean and include any unlawful, [or] unfairbusiness act or practice.
129. The previous paragraphs dealing with Defendant Samsung have already
pled Contributory Infringement on the part of Samsung with respect to the FREE KICK
MASTER mark, That constitutes an unlawful business practice.
130. Specifically, Defendant Samsung, as stated above, has made available
to various third party developers and third party developer websites the use of its Developer
Website.. It has also provided its own certification process to those third party developers
so that the third party developers could develop Free Kick Master apps to be compatible with
Samsung devices (e.g., the Galaxy devices).
131. Samsung requires a 30% cut revenue share of any downloads of apps
28
(including Free Kick Master apps) into its devices. It has not shared any of this revenue with
Plaintiff Free Kick Master, LLC or with Plaintiff Free Kick Master Junior, LLC. That is an
unfair business practice.
132. Notwithstanding its substantial control over apps compatible with its
devices, Samsung has not refused to certify those apps developed by third party developers
which use the FREE KICK MASTER name or mark in an infringing fashion.
133. Plaintiffs maintain that these actions on the part of Defendant Samsung
constitute unfair and unlawful business practices per Cal. Bus. and Prof. Code Sec.
17200 et seq.
Count XI State Common Law Trademark Infringement_(Defendant SAMSUNG)

134 . Plaintiffs incorporate as if fully rewritten herein the statements and
allegations contained in the preceding paragraphs insofar as they apply to Samsung..
135. In In re Marriage of Shelton, 173 Cal. Rptr. 629, 118 Cal. App. 3d 811,
814- 815 (1981), in the context of a trade name, the Court stated that (citing Visser v. Macres
(1963) 214 Cal App. 2d 249, 29 Cal. Rptr. 367), The test is whether the similarity between the
two names will deceive or confuse the publicProof of actual deception or confusion is not
required; probability or likelihood is sufficient.
136. Confusion in the instant matter arises because the Free Kick Master mark
owned by Plaintiff Free Kick Master LLC
is
identical or very nearly identical to the
names of the Free Kick Master games certified or authorized by Defendant Samsung The
29
illustrations provided in conjunction with these games show soccer balls and other football
themes, as contemplated by the FREE KICK MASTER and FREE KICK MASTER Junior
marks..
137. The format, player positions, and rules of play of the Free Kick Master
apps authorized and certified by through, or with the cooperation of Defendant Samsung are
very similar to the format, player positions, and rules of the original FREE KICK MASTER
event held on July 5, 2008 at Reliant Stadium in Houston Texas. This similarity is a source of
confusion to the public as to the origin of the applications and downloads.
138. Defendant Samsungs acts complained of above constitute trademark
infringement under the Common Law of the State of California.
139. Defendant Samsungs conduct as alleged above has damaged and will
continue to damage Plaintiff Free Kick Master LLCs and Plaintiff Free Kick Master Junior
LLCs goodwill and reputation, and has resulted in a loss of revenue and business opportunities
for past and future production of sporting events and products stemming therefrom, in an
amount to be determined.
140. Defendants Samsungs acts complained of herein constitute malice,
oppression, and/or fraud, thus entitling Plaintiffs to recover punitive damages.
30
WHEREFORE, Plaintiffs Free Kick Master LLC and Free Kick Master Junior LLC pray:
a.
That Defendant Apple be found by the Court to have infringed both Directly
(violation of the Lanham Act) and Contributorily on the Plaintiffs rights in the FREE KICK
MASTER and FREE KICK MASTER Junior marks.
b.
That Defendant Apple is found by the Court to be liable to Plaintiffs under California
Common Law, as well as the Cal. Bus. and Prof. Code Sections 17200 et seq., and 17500 et seq.
(dealing with unfair and unlawful business practices and false and misleading advertising).
c..
That Defendants Amazon, Google, and Samsung, be found by the Court to have
Contributorily Infringed on Plaintiffs Trademarks and to be found liable on Counts VII, VIII
and IX, as those Counts apply to each of them respectively..
d. That Defendant Samsung be found by the Court to have violated California Common
Law, insofar as it has infringed upon Plaintiffs Trademarks and created confusion in the minds
of the public as to the origin of the so-called Free Kick Master apps it has promoted,
authorized, and certified..
e.. That Defendant Samsung be found by the Court to have violated Cal. Bus. and Prof.
Code Section 17200 et seq., insofar as its practices vis a vis Plaintiffs trademarks have
been unlawful and unfair
f. That Defendants and their agents, officers, employees, representatives, successors,
assigns, attorneys, and all other persons acting for, with, by, through, or under authority from
31
Defendants be preliminarily and permanently enjoined from either directly or contributorily

infringing on the FREE KICK MASTER and FREE KICK MASTER JUNIOR mark, and
unfairly competing with the Plaintiffs in any other manner, as applicable;
g. That Defendants be required to cease development, promotion, marketing, and
certification of any products, games, or applications bearing the FREE KICK MASTER
mark or name or any other very similar mark, whether the product originates with the Defendants
or a third party. Developer.
h. That Defendants be required to cease development, promotion, marketing and
certification of any product, app, or game that bears the FREE KICK MASTER mark or
trade name alone or in combination with any other words or symbols which so resemble the
marks and name of FREE KICK MASTER or FREE KICK MASTER Junior as to be likely to
cause confusion, deception, or mistake to the public;
i. That Defendants be required to cease development, promotion, marketing, and
distribution of products, games, or apps which bear the FREE KICK MASTER mark or
name, but which have not been developed, licenses, or authorized by Plaintiff FREE KICK
MASTER LLC or Plaintiff FREE KICK MASTER Junior LLC.
j.. That Defendants be prohibited from engaging in any activity constituting either
a direct, indirect, or contributory infringement of Plaintiffs marks or of Plaintiffs rights in or
rights to use or exploit the FREE KICK MASTER mark or trade names, as applicable.
32
k. That Defendants Apple and Samsung cease to do any further acts in violation of
California Business and Professions Code Sections 17200 et seq. and 17500 et seq. as
applicable to them in this Complaint;
l. That Defendants be required to deliver up and/or destroy all insignias bearing the
FREE KICK MASTER mark or any other similar or confusingly similar thereto in Defendants
possession, as well as on all labels, literature, signage, advertisements, computer applications,
and games, together with any means of producing the same;
m. That Defendants be compelled to account to Plaintiffs for any and all profits derived
by them for their illegal acts complained of herein;
n. That the Court order Defendants to pay Plaintiffs general, special, and actual and
statutory damages pursuant to 15 USC 1117 et seq. and California Business and Professions
Code Sections 17200 et seq. and 17500 et seq. (as applicable to each Defendant), to be
determined at trial;
o. That the Court order Defendants to pay punitive damages in an amount to be determined
by the Court, for Defendants willful, and intentional, deliberate, and tortious conduct;
p. That the Court order Defendants to pay Interest, including prejudgment interest on the
foregoing sums; .
q. That the Court declare this to be an exceptional case and award the Plaintiffs their
33
full costs and attorney fees pursuant to 15 U.S.C. 1117(a);

r. For such other relief that the Court deem proper and just.
Jury Demand
Plaintiffs hereby demand and request trial by jury of all issues that are triable by jury.
Dated November 16, 2015.
Respectfully Submitted,
/S/ Eugene Alkana
_____________________________
Eugene Alkana SBN 60411
131 North El Molino Avenue, Suite 310
626-796-8170
FAX: 626-795-6138
eugenealkana@yahoo.com
Counsel for Plaintiff Free Kick Master, LLC,
and Plaintiff Free Kick Master Junior, LLC.
Stanley Josselson 0025685
1276 West 3rd St. #411
Cleveland, Ohio 44113
216-696-8070
Counsel for Plaintiff Free Kick Master, LLC,
and Plaintiff Free Kick Master Junior, LLC.
34
CERTIFICATE OF SERVICE
A copy of this Third Amended Complaint for Injunctive Relief and Money Damages
has been electronically filed on CMECF and thereby served on all Defendants (Google,
Amazon, Samsung Electronics America, and Apple (I-tunes)) on November 16, 2015.
/S/ Eugene Alkana

_____________________________
Eugene Alkana 60411
131 North El Molino Avenue Suite 310
626-796-8170
Email: eugenealkana@yahoo.com
Email: eugenealkana@mindspring.com
Counsel for Plaintiff Free Kick Master LLC
and Plaintiff Free Kick Master Junior LLC
Stanley Josselson 0025685
1276 West 3rd St. #411
Cleveland, Ohio 44113
216-696-8070
josso@att.net
Counsel for Plaintiff Free Kick Master LLC
and Plaintiff Free Kick Master Junior LLC
35

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Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 1 of 35

EUGENE ALKANA State Bar No. 60411

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 2 of 35

THIRD AMENDED COMPLAINT FOR INJUNCTIVE RELIEF

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 3 of 35

Upon information and belief, Defendant Amazon is a corporation formed and

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Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 5 of 35

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identical or very nearly identical to the names of the Free

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 7 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 8 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 9 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 10 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 11 of 35

If it sounds like [Apple is a]..control freak, well maybe its because

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 12 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 13 of 35

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57. As explained above, Defendant Apple provides Apple Software to third

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 15 of 35

contained in the preceding paragraphs.

is identical or very nearly identical to the

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 16 of 35

infringement under the Common Law of the State of California.

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 17 of 35

Cal. Bus. and Prof. Code Section 17500 provides that

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 18 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 19 of 35

will continue to be injured by reason of Defendant Apples misleading advertising.

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 20 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 21 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 22 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 23 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 24 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 25 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 26 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 27 of 35

121. Samsung retains a non-exclusive license to use any contribution submitted

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 28 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 29 of 35

Count XI State Common Law Trademark Infringement_(Defendant SAMSUNG)

identical or very nearly identical to the

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Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 31 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 32 of 35

Defendants be preliminarily and permanently enjoined from either directly or contributorily

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 33 of 35

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 34 of 35

full costs and attorney fees pursuant to 15 U.S.C. 1117(a);

Case 4:15-cv-03403-PJH Document 89 Filed 11/16/15 Page 35 of 35

/S/ Eugene Alkana

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