Case 2:11-cv-00254-DBH Document 1-1

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STATE OF MAINE YORK, ss.

SUPERIOR COURT CIVIL ACTION DOCKET NO.

SMARTHOME SOLUTIONS, INC.

Plaintiff v.

) )
) ) )

COMPLAINT

TIME WARNER CABLE LLC

Defendant

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) )

Now comes the Plaintiff, SmartHome Solutions, Inc., by and throug,h undersigned counsel, and complains against the Defendant, Time Wamer Cable LLC (hereinafter "Time Wamer") as follows:

Introduction 1.
For the past 7 years, SmartHome Solutions, Inc. ("SmartHome") has been

devising and installing home entertainment, communication and automation systems in new construction and existing homes. Installation services include connecting homeowners to the intemet and cable television. In or about 2007, SmartHome became a vendor/partner for Time Warner, offering cable boxes and post-installation service for intemet and cable customers. In June of 2011, SmartHome discovered that Time Warner pirated the name "Smart Homes Solutions" and used it to develop its own low-end installation plan for integrated home systems. Time Wamer created electronic and hard copy marketing materials, which it distributed to SmartHome's existing and prospective customers, calling itself "Smart Homes Solutions." Time Wamer cut off SmartHome's access to its email server thereby preventing SmartHome from sending email to anyone in the "maine.rr.com " or "roadrunner.com" domains. Time Warner traded on the brand recognition and good will established by SmartHome, and has unfairly

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competed and engaged in deceptive trade practices by using SmartHome's exact name and by taking action to prevent SmartHome from engaging in its business. SmartHome has suffered irreparable harm and other damages. Injunctive relief should issue to prevent Time Warner from marketing its services as Smart Homes Solutions. The Parties 2. SmartHome Solutions, Inc. is a corporation organized under the laws of the State

of Maine with a principle place of business in Kennebunk, York County, Maine. 3. Time Warner, Inc. is a Delaware Corporation with a principal place of business in

New York, New York, doing business in the State of Maine under the name Time Warner Cable, with offices located at 118 Johnson Road in Portland, Maine. Facts 4. SmartHome is an electronic architect and system integrator, specializing in home

entertainment, communication and automation systems, with expertise in high-end technology integration design. 5. A. 6. Since its inception in 2003, SmartHome has invested hundreds of thousands of A copy of one of SmartHome's marketing brochures is attached hereto as Exhibit

dollars in branding and marketing including website and electronic marketing, customized trucks, magazine advertisements, direct mailing, and attendance at tradeshows. 7. SmartHome developed a significant client and refeffal base including high end

contractors and consumers throughout Maine from York to Penobscot County. 8. installation. As part of its integrated installations, SmartHome offers cable and internet

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9.

In or about 2007, SmartHome contracted with Time Wamer as an "after seller"

authorized to sell and service Time Wamer Cable boxes necessary for intemet access. 10. As part of its relationship with SmartHome, Time Wamer's marketing personnel

frequently inquired about SmartHome's product lines, services and marketing strategies in what it claimed was an effort to better understand SmartHome's business plan. 11. On June 22, 2011, SmartHome discovered that any emails it sent to

"maine.rr.com" or "roadrunner.com" customers were being bounced back by Time Wamer's server. 12. On June 22, 2011, SmartHome received an email from Time Wamer's marketing

manager, Shanna Alexander, advising that Time Wamer planned to launch a marketing and direct mailing campaign advertising a service Time Warner called "Smart Home Solutions." 13. Ms. Alexander's email acknowledged the identical name of the services, stating

as follows: "Hi guys, I know this might impact you because of its name. Please let me know." 14. SmartHome discovered that Time Warner's advertising and marketing campaign

under the name "Smart Home Solutions" offered the exact same service as SmartHome Solutions, Inc. 15. On June 23, 2011, Time Warner sent a mass email, including to its customer Jeff

Binette, one of the principles of SmartHome, with the subject line "Smart Home Solutions. Just $33/month." It advertises "Time Wamer Cable Smart Home Solutions." A true copy of the email is attached hereto as Exhibit B. 16. Time Wamer's website advertises Smart Home Solutions, including a statement

that says, "What You Get with Smart Home Solutions." At true copy of the web page is attached hereto as Exhibit C.

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17.

On June 23, 2011, one of SmartHome's customers who received the email from

Time Warner advertising (Exhibit B hereto) contacted SmartHome Vice President Jason Robie, asking SmartHome, "Is this you guys or are they using your name?" Count I Violation of 10 M.R.S. 1212 (Maine Uniform Deceptive Trade Practices Act) 18. 19. Plaintiff repeats and realleges paragraphs 1-17 as if set forth fully herein. Time Warner is engaging in a deceptive trade practice by using the name "Smart

Homes Solutions" to pass off the name of its services as those of another, specifically SmartHome. 20. SmartHome's business focuses on providing exceptional, thorough customer

service as well as superior technical expertise, whereas Time Warner is a high-volume, low-cost business that cannot and does not provide the same level of service. 21. By using SmartHome's exact name, Time Warner is causing confusion in

SmartHome's existing and prospective customer and referral base and deprive SmartHome of its good will and identity in the marketplace. 22. By using SmartHome's exact name, Time Warner is causing confusion in the

marketplace and lead SmartHome's current and prospective customer and referral base to believe that SmartHome was bought out by Time Warner and no longer exists. 23. By using SmartHome's exact name, Time Warner is causing confusion in the

marketplace and lead SmartHome's current and prospective customer and referral base to believe that SmartHome's services or of a lesser standard, quality or grade. 24. By using SmartHome's exact name, Time Wamer is causing confusion in the

marketplace and leading SmartHome's current and prospective customer and referral base to be confused over pricing and quality differences in the services offered by the two companies.

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25.

By using SmartHome's exact name, Time Warner is creating a likelihood of

confusion or misunderstanding in the marketplace, including with SmartHome's existing and potential customer and referral base. WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant and order that Time Warner be prohibited from using the name Smart Home Solution for any purpose and in any marketing or advertising material and that Time Warner be enjoined from engaging in any activities that violate 10 M.R.S. 1212, and for costs, interest, attorneys fees and such other relief as the Court deems appropriate and just.
Count 11 Injunctive Relief

26. 27.

Plaintiff repeats and realleges paragraphs 1-25 as if set forth fully herein. Time Warner is using the name "Smart Homes Solutions" to pass off the name of

its services as those of another, specifically SmartHome, a high end, well established provider of exactly the same services that Time Warner now seeks to provide. 28. By using SmartHome's exact name, Time Warner is creating a likelihood of

confusion or misunderstanding in the marketplace, including with SmartHome's existing and potential customer and referral base. 29. On information and belief, Time Warner has shut down SmartHome's access to

its email server, depriving SmartHome of the ability to email clients at the "maine.rr.com " or "roadrunner.com " addresses in order to prevent another entity from using the name "Smart Home Solutions." 30 Time Warner's actions are causing irreparable harrn to SmartHome in the form of, without limitation, lost business, lost business opportunities and lost good will.

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31.

Injury to SmartHome outweighs whatever injury there may be to Time Wamer as

a result of enjoining it from using the name Smart Home Solutions in connection with any products, services, marketing and advertising materials. 32. There is a substantial likelihood that SmartHome will succeed on the merits of

showing that Time Wamer has violated 10 M.R.S. 1212. WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant and order that Time Wamer be prohibited from using the name Smart Home Solution for any purpose and in any marketing or advertising material and that Time Wamer be enjoined from engaging in any activities that violate 10 M.R.S. 1212 and for costs, interest, attomeys fees and such other relief as the Court deems appropriate and just. Count Common Law Trademark Infringement 33. 34. Plaintiff repeats and realleges paragraphs 1-32 as if set forth fully herein. SmartHome has a protectable interest in a trademark or service mark called

"SmartHome Solutions." 35. By using SmartHome's exact name, Time Wamer is creating a likelihood of

confusion or misunderstanding in the marketplace, including with SmartHome's existing and potential customer and referral base, which will lead the public to believe the two businesses are connected, associated, or identical. 36. Time Wamer's actions are causing irreparable harm to SmartHome in the form of,

without limitation, lost business, lost business opportunities and lost good will. WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant and award Plaintiff monetary damages, including without limitation lost profits, damage to good will, attomey's fees, costs, interest and such other and further relief as this Court deems appropriate.

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Count IV Trademark Infringement (15 U.S.C. 1125) 37. 38. Plaintiff repeats and realleges paragraphs 1-36 as if set forth fully herein. SmartHome uses and thereby owns a mark related to its service-oriented business,

SmartHome Solutions. 39. Time Wamer is using the same mark by calling its new product or service "Smart

Home Solutions," and marketing this service to Plaintiff s existing customer base. 40. By using SmartHome's exact name, Time Wamer is creating a likelihood of

confusion or misunderstanding in the marketplace, including with SmartHome's existing and potential customer base, which will lead the public to believe the two businesses are connected, associated, or identical. 41. Time Warner's actions are causing harm to SmartHome in the form of, without

limitation, lost business, lost business opportunities and lost good will. WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant, enjoin Defendant from engaging in further trademark infringement, and award Plaintiff monetary damages, including without limitation lost profits, damage to good will, Defendant's profits, attomeys' fees and costs, and such other and further relief as this Court deems appropriate. Dated at Kennebunk, Maine this day of June 2011.

Susan B. Driscoll, Bar # 7689 Laura H. White, Bar # 4025 Attomeys for Plaintiff, SmartHome Solutions, Inc. BERGEN & PARKINSON LLC 62 Portland Road, Suite 25 Kennebunk, ME 04043 (207) 985-7000

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our time at home is precious. You can enjoy it even more by integrating music, movies, climate control, lighting, IP y cameras, security, and the ability to control it all from wherever you are in the world. Home technology can be quite sophisticated, and require careful planning, designing, engineering and documentation. It's not simply a matter of plugging in a rack of equipment and turning on the power. SmartHome Solutions, Inc. is an electronic architect and system integrator, specializing in the execution of fully realized home entertainment, communication and automation systems. We have over 10 years of experience performing electronic magic for the finest residences in New Eng and. Our impeccable record of exceeding the needs and desires of our clients ensure.s you the fullest enjoyment of your home.

System Solutions
Automation & Energy Management
From anywhere in your home you can easily turn on music, lights, heating/air conditioning, security, and more all from an intuitive wall-mounted touch screen panel, a home computer or even a mobile device like your Blackberry or IPhone.

Heme Onema
SmartHome Solutions can take any room and turn it into your personal screening roorn. You may choose to oonstruct a room for the sole purpose of cinematic enjoyment. Or you may prefer to add a home theater to a living space, whether indoors or out.

Distributed Audio and Video

Music sets a wonderful mood whether for your enjoyment, to relax or for entertaining. With a system from SmartHome Solutions, you walk into any room, touch a button on a discrete keypad and your choice of music begins to play.

Lighting
Having the ability to control lighting levels and create scenes throughout your house lets you create just the right atmosphere for dining, entertaining, reading, or watching a movie.

To 1 . :eartl

how SrnartHorne Solutions can heir, yo0 a t with your next aUdio (207) 985-9770 to set up an dppointme,nt fo our desio,n showroorn.

Wiring and Networks

SmartHome Solutions can install an advanced home wiring network that connects all the rooms in your home to the central location, called a Structured Media Center.
Five Star Dealer
CUSTC40 ELECTRONiC DEVCA

iNsuursioN ASsociAioN

HAI.

Merriber

2008 *****

Smarttiome Solutions Inc.

86 York Street, Suite 1, Kennebunk, Maine 04043

Telephone: (207) 985-9770 Web: www.SmartHomeSolutionsInc.com

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EXHIBIT

From: "Time Warner Cable" <rimewarnercab1e6port1and-mai1.timewarnercab1e.co Date: June 23, 2011 8:00:21 PM EDT To: jcbinette@roadrunner.corn Subject: Smart Home Solutions. Just $33/month. Reply-To: timewarnercable.NrpAAnosBABTPQEA@portland-mail.timewarnercable.com
Learn more about Smart Home Solutions View Web Version

Share: r5

In

Security is just the start.

Introducing an easy -to-use smart home manaaement system that puts you in control of your comfort and security. You can personalize the settings to your preferences: Receive a text message when the kids get home Check on family pets via live video Coming soon - remote access to your thermostat and lighting When you're at home, it's touchscreen simple. When you're away, it's always accessible.
It's home management you control no matter where you are.

Your mobile device Your touchscreen Any computer with online access With Smart Home Solutions you can connect your home from just about anywhere, whenever you want.

Three ways contral your syslem

startedNow

*Subscription to Time Warner Cable high-speed-Internet standard and other qualifying service is required for $33/mo price point. Must subscribe by..1uly 31st, 2011. Free basic install includes 1 touchscreen, 2 door contacts and.amotion sensor. Time - Warner Cable Smart Home Sautions may not be available in all areas. Commercial services may be subject to different installation.and service fees. Some restrictions may apply. iPhone is a trademark of Apple Inc., registered in the U.S. and other countries. Please do not reply tothis email as this email . address is not monitored. Please use the above information to contact us. (i* 2011 Tirne Warner Cable, Inc. All Rights Reserved. Time Warner Cable and the Time Warner Cable logo are trademarks of Time Warner Inc..Used unde.r license. All oth.er trademark.s remain the property of . their.respective companies. This message was sent to icbinettearoadrunner:com. Parts of this messagemay contain promotional information about Time Warner Cable . and ts services. To change : your personal settings pleaSe click . here. If you do not wish to rec.eive any further emails from Time . .Warner Cable, safelyunsubscribe, or write to 1 . 18 3ohnson Road, Portland, MaIne 04102.

Case 2:11-cv-00254-DBH Document 1-1

Home Management Time Wamer Cable I Northeast e Time Warner Cable

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Smart Home Solutions

Time Warner Cable Smart Home SoIuIionsM is a home management system that puts you in control of your home's security and comfort. Using intelligent technology, you can manage everything from climate and lighting to door chimes and secunty cameras all from your in-home touchscreen, mobile device or computer.

Make Your Home a Smart Home

What You Get with Smart Home Solutions

All-in-one centralized system manages your home security, comfort and environment Keep an eye on your home when you are away through a secure website or mobile App Easy-to-use technology gives you fingenip control Always-on security with battery and cellular back-up and.24/7 emergency responder access
Watch the video

Create Your Custom Solution Today

Our dedicated consultants are standing by to help you create your own customized solution.

Call a representative at 1-855-892-4444

Want us to call you?Get started by filling out the contact form

Rest Easy
Cellular back-up, a built-in battery and our award-winning 24/7 central monitoring station means your home will be secure even if you lose power.

Run Your Home Your Way

Through the secure website-you can personalize settings for your home to fit the way you live: lf you want to.see when your kids get home from schoot simply ceate a daily rule to have a picture taken and a text message sent to you when the front door sensor is open between 3 and 4 pm. Or design a vacation mode setting that can be turned on and off throughthe.website to ensure your fights .and thermostat maintain the'away from home' environment you desire (where-available).

http://www.timewamercable.com/northeast/learn/homemanagement/default.html

6/24/201

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Home Management I Time Warner Cable I Northeast

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Access on the Go
Our mobile application allows you to receive and control critical information ne matter where youare. With justa few clicks on your mobile device, you can arni.or disarm.. your system, check your cameras, or cha . nge lighting or thermostat settings (where available). So if you ;vant to show : your frtencit what Fido is up to, or you need to unlockthe doorforthe cleaning crew,ft can all be done on-the-go from your iPhopeOr iPad.

Get Cozy
Smart Home Solutions,gnie you back time in your day by letting you take care of:things at home, before you even get there. So you cah come home to a cozy environment because the system automatically shifted from energy sa yerrhode to welcome home mode at 6 pm..At the end of the night. check the status of your home and make any adjustments from the comfort of your bed uOng your touch screen, mobile device or laptop:computer.

Call a representative at 1-855-892-4444

Want us to call you? Get started by fillingout the contact form.

SubscncOon to TIme Warner Cable htoh . soeed Internet standard iS reoutred Tone Warner Cable Smart Hcme Solunons' may not be avai:able areas Not att featu r es ar e a,adable n all areas ReS,denval use onty Some restocoons may abnly IPhone .s a traoemart, cf Acple tnc regstered lo the U S and other iCOOntrieS f-,; 208 1 Time Warner Caole Inc. Att nghts rese rved. Ime Warner Cable and the eyelear logc a,e . trademarks of Time Warner inc .: .uSed 000er hcense AtI Tractemarks are the property of thea respecbve owners Licensed by New .Yorl!State Debartment of State NYS UNCue ID 012000229856 North Carot!na NCAS1.6 t :cense 583 . CSA

http://www.timewamercable.c,om/northeast/leartilhomemanagement/default.html

6/24/20 I