Xcentric Ventures LLC v. Karsen Limited et al

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-5370252, filed by Xcentric Ventures LLC (submitted by David Gingras). (Attachments: # 1 Civil Cover Sheet)(REK)

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David S. Gingras, #021097
Gingras Law Office, PLLC
3941 E. Chandler Blvd., #106-243
Phoenix, AZ 85048
Tel.: [phone]
Fax: [phone]
[e-mail]

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Attorney for Plaintiff Xcentric Ventures, LLC

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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XCENTRIC VENTURES, LLC, an
Arizona limited liability company,
Plaintiff,

GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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COMPLAINT

vs.
KARSEN, LTD., a foreign entity of
unknown origin d/b/a Scaminformer.com;
DOES 1-10, inclusive,
Defendants.

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Case No: ___________________

For its Complaint Plaintiff Xcentric Ventures, LLC alleges as follows:
1.

This is a civil action seeking monetary damages and injunctive relief for

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various acts of copyright infringement under the copyright laws of the United States (17

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U.S.C. § 101 et seq.) and for various acts of trademark infringement in violation of the

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Lanham Act, 15 U.S.C. § 1051, et seq., and related state law claims.

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2.

This Court has jurisdiction under 15 U.S.C. § 1121 (trademark); 17 U.S.C.

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§ 101 et seq. (copyright); 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338(a)

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(copyright). This Court has supplemental jurisdiction over state and common law claims

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pursuant to 28 U.S.C. § 1367(a).

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3.

Venue in this District is proper under 28 U.S.C. §§ 1391(b) and (c), and/or

28 U.S.C. § 1400(a). A substantial part of the acts of infringement complained of
COMPLAINT

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occurred in this District, and certain corporate defendants are subject to personal

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jurisdiction in this District.

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4.

Personal jurisdiction in this District is proper because each defendant

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engaged in acts of copyright infringement within the District of Arizona, and/or

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intentionally directed tortious conduct at Plaintiff knowing such conduct would cause

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harm within this District.

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5.

Plaintiff XCENTRIC VENTURES, LLC (“Plaintiff”) is and at all relevant

times was an Arizona limited liability company located in Phoenix, Arizona.
6.

Plaintiff operates a consumer complaint and free speech forum known as

the Rip-off Report located at www.RipoffReport.com (the “Rip-off Report site”). The

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Rip-off Report is widely used by consumers, and works closely with government

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agencies, attorneys general, federal, state, and local law enforcement, and the news media

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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to help report, identify and prevent consumer fraud and similar conduct.

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7.

Defendant KARSEN, LTD. (“KARSEN”) is a foreign entity of unknown

origin which claims to be based in St. Petersburg, Russia.
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Upon information and belief, KARSEN also has engaged in continuous,

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systematic and substantial contacts with the State of Arizona sufficient to confer general

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and specific personal jurisdiction over it in this District.

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9.

Personal jurisdiction is further proper as to Defendant KARSEN because on

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or about May 24, 2011, KARSEN expressly consented in writing to jurisdiction in this

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District pursuant to 17 U.S.C. § 512(g)(3).

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GENERAL ALLEGATIONS
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Plaintiff is and at all relevant times has been the lawful owner of the mark

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“RIP-OFF REPORT” which has been registered with the United States Patent and

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Trademark Office and assigned registration #2958949.

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11.

Since February 1998 through the filing of this action, Plaintiff has

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continuously used the mark “RIP-OFF REPORT” in commerce to identify and

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distinguish Plaintiff’s business from other businesses in the same field.
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COMPLAINT

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12.

Plaintiff is and at all relevant times has been the lawful owner of the mark

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“DON’T LET THEM GET AWAY WITH IT” which has been registered with the United

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States Patent and Trademark Office and assigned registration #2824390.

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13.

Since February 1998 through the filing of this action, Plaintiff has

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continuously used the mark “DON’T LET THEM GET AWAY WITH IT” in commerce

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to identify and distinguish Plaintiff’s business from other businesses in the same field.

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14.

Plaintiff’s ownership of the “DON’T LET THEM GET AWAY WITH IT”

mark is incontestable as a matter of law pursuant to 15 U.S.C. § 1065.
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Plaintiff is the owner of various copyrights relating to content appearing on

the Rip-off Report website.
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Plaintiff is the owner of the federal copyright issued by the United States

Copyright Office Certificate of Registration No. TXu1-371-920 entitled “Group database

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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registration for automated database entitled ‘Rip-off report database’” (the “‘920

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Copyright”) dated May 20, 2008. The ‘920 copyright applies to a database/compilation

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of more than 600,000 user-generated reports posted on the Rip-off Report website.

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17.

Plaintiff does not publish everything submitted to the Rip-off Report

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website. Rather, when material is submitted to the website by a third party, it is held for

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review by one of Plaintiff’s employees known as “content monitors”.

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Plaintiff’s staff of content monitors review each and every submission to

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the site and select only certain submissions for publication based on their content. Any

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submissions selected for publication are further reviewed for compliance with a written

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set of policies and procedures which identify certain material which must be removed

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from each submission (such as social security numbers, pornography, threats of violence,

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etc.) and certain contents which may be removed based on the content monitor’s editorial

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discretion (such as profanity, racial slurs, or inappropriate commercial advertisements).

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Only after a submission has been fully reviewed will it appear on Plaintiff’s website.

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19.

The resulting collection of user-generated material appearing on the Rip-off

Report website has been formed by the selection, coordination, and arrangement of
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COMPLAINT

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material in such a way that the work as a whole is original and constitutes a copyrightable

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and protectable compilation within the meaning of 17 U.S.C. § 101.

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20.

Plaintiff is the owner of the federal copyright issued by the United States

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Copyright Office Certificate of Registration No. TXu1-574-438 entitled “Rip-off Report

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Content” dated March 25, 2008 (the “‘438 Copyright”). The ‘438 Copyright applies to

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all non-user generated original content located at www.RipoffReport.com including all

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sub-pages and including, but not limited to, the following specific URLs:

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• http://www.ripoffreport.com/

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• http://www.ripoffreport.com/ConsumersSayThankYou/WantToSueRipoffReport.aspx
• http://www.ripoffreport.com/PrivacyPolicy.aspx

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• http://www.ripoffreport.com/ConsumersSayThankYou/TermsOfService.aspx

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• http://www.ripoffreport.com/CorporateAdvocacy.aspx and

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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• http://www.ripoffreport.com/ConsumersSayThankYou/FalseReport.aspx

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21.

When a third party user of the Rip-off Report site submits material to the

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site, they are required to affirmatively review and accept Plaintiff’s Terms of Service.

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Among other things, Plaintiff’s Terms of Service provide, “By posting information or

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content to any public area of www.RipoffReport.com, you automatically grant, and you

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represent and warrant that you have the right to grant, to Xcentric an irrevocable,

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perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and

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distribute such information and content and to prepare derivative works of, or incorporate

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into other works, such information and content, and to grant and authorize sublicenses of

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the foregoing.” Every post made to the Rip-off Report site is subject to these Terms of

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Service which includes an electronic signature by the author which complies with 15

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U.S.C. § 7001(a).

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exclusive rights to each and every user-generated report posted to the Rip-off Report site.

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DEFENDANT’S ACTIVITIES

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22.

As such, pursuant to 17 U.S.C. § 201(d)(2), Plaintiff owns the

Defendant KARSEN purports to own and operate a website located at

www.ScamInformer.com (the “Scam Informer site”). The Scam Informer site allows the
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COMPLAINT

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publication of consumer complaints, comments, and reviews, and is a direct competitor

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of Plaintiff’s Rip-off Report site.

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The domain name www.ScamInformer.com was registered for the first time

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on January 31, 2011. The listed registrant is an Australian-based privacy protection

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service identified as www.PrivacyProtect.org.

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Defendant KARSEN is the true owner of the domain name www.ScamInformer.com and

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the operator of the Scam Informer site.

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However, upon information and belief,

Since creating the site in January 2011, Defendant KARSEN has engaged

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in a campaign to willfully infringe Plaintiff’s copyrights and to engage in deceptive and

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unlawful commercial use of Plaintiff’s registered marks including, but not limited to, the

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“RIP-OFF REPORT mark and the “DON’T LET THEM GET AWAY WITH IT” mark.

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Specifically, since the Scam Informer website was created, Defendant

GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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KARSEN has engaged in the wholesale copying of tens of thousands of pages from

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Plaintiff’s Rip-off Report site. The material copied by Defendant KARSEN includes

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original creative works owned exclusively by Plaintiff.

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26.

In addition to copying Plaintiff’s works, Defendant KARSEN has used and

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is currently using Scam Informer site to directly compete with Plaintiff’s Rip-off Report

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site using the “RIP-OFF REPORT mark and the “DON’T LET THEM GET AWAY

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WITH IT” mark.

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27.

Defendant KARSEN’s use of copyrighted works from the Rip-off Report

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site combined with the use of Plaintiff’s registered marks was, and is, likely to cause

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confusion as to source or sponsorship.
COUNT 1
INFRINGEMENT OF COPYRIGHT — 17 U.S.C. §§ 106, 501(a)

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Plaintiff incorporates herein by reference each and every allegation set forth

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Defendant KARSEN has violated Plaintiff’s exclusive rights under 17

above.

U.S.C. § 106(1) (direct copying) by copying Plaintiff’s works without permission.
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COMPLAINT

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30.

U.S.C. § 106(3) (distribution) by distributing Plaintiff’s works without permission

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Defendant KARSEN has violated Plaintiff’s exclusive rights under 17

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Defendant KARSEN has violated Plaintiff’s rights under 17 U.S.C. §

106(5) (display) by publicly displaying Plaintiff’s works without permission.

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32.

Plaintiff is informed and believes that the foregoing acts of infringement

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have been willful, intentional, and in disregard of and with indifference to the rights of

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Plaintiff.

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33.

and were performed without Plaintiff’s knowledge, consent, or permission.

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34.

GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

Defendant KARSEN’s infringing activities were and are done for

Defendant’s financial gain.

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Defendant KARSEN’s infringing activities were not authorized by Plaintiff

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Defendant KARSEN’s infringing activities have caused Plaintiff to incur

actual damages of not less than $150,000.

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36.

As the result of Defendant KARSEN’s willful infringement of Plaintiff’s

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exclusive rights, Plaintiff is entitled to recover from Defendant its actual damages

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pursuant to 17 U.S.C. § 504(b) or statutory damages pursuant to 17 U.S.C. § 504(c),

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whichever is greater.

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37.

As the result of Defendant’s infringement of Plaintiff’s registered works,

Plaintiff further is entitled to attorneys’ fees and costs pursuant to 17 U.S.C. § 505.
COUNT 2
UNLAWFUL REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION
17 U.S.C. § 1202(b)

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38.

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Plaintiff incorporates herein by reference each and every allegation set forth

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All 600,000+ unique report pages on the Rip-off Report website contain

above.

copyright management information within the meaning of 17 U.S.C. § 1202(c).
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The copyright management information found on each unique report page

includes a legend identifying the exact date/time the report was posted, and the exact web
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COMPLAINT

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address where the report is located, and information identifying Plaintiff as the owner of

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the exclusive license to the report. This legend generally employs the following format:

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This report was posted on Ripoff Report on [DATE] [TIME] and is a permanent
record located here: http://www.ripoffreport.com/[address].htm.
Ripoff Report has an exclusive license to this report. It may not be copied
without the written permission of Ripoff Report
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In addition to unlawfully copying tens of thousands of individual report

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pages from the Rip-Off Report site, Defendant KARSEN also modified and removed the

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copyright management information from each such page.

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42.

For instance, on December 19, 2010, a report was submitted to the Rip-off

Report website bearing the title: “Finance Solutions of America LLC George Bloom He

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Scammed $55,000 Cash from a Single Mother of Five Children! Internet”.

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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was subsequently assigned Report #673219 and was published at the following URL:

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http://www.ripoffreport.com/loans/finance-solutions-of/finance-solutions-of-america-l-

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ee8a6.htm (“Report #673219”).

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43.

The report

As is true of every report on the site, at the time the material was submitted

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to the Rip-off Report site, the author of Report #673219 made a valid assignment of an

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exclusive license in the report to Plaintiff. As a result of this assignment, Plaintiff owned

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the copyright in Report #673219.

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44.

As is true of every report on the site, Report #673219 contained a legend

listing copyright management information as follows:
This report was posted on Ripoff Report on 12/19/2010 6:45:26 AM and is a
permanent record located here: http://www.ripoffreport.com/loans/financesolutions-of/finance-solutions-of-america-l-ee8a6.htm

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Ripoff Report has an exclusive license to this report. It may not be copied
without the written permission of Ripoff Report

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45.

After Report #673219 was published on the Rip-off Report site, Defendant

KARSEN copied the report in its entirety, including the copyright management
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COMPLAINT

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information identified above.

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Report #673219 on the Scam Informer site here: http://www.scaminformer.com/scam-

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report/finance-solutions-of-america-llc-george-bloom-he-scammed-c6797.html

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46.

Shortly thereafter, Defendant KARSEN republished

Defendant KARSEN republished Report #673219 without permission from

Plaintiff and without any lawful right to do so.
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In addition to republishing the report without permission, Defendant

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KARSEN removed the copyright management information from Report #673219 as

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reflected below:

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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48.

Report #673219 was NOT posted on the Scam Informer site on 12/19/2010

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at 6:45:26 AM as reflected in the screenshot above because the Scam Informer site did

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not exist prior to January 31, 2011.

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49.

Defendant KARSEN used an automated script to remove Plaintiff’s name

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(“Ripoff Report”) from copyright management information found on each page taken

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from Plaintiff’s site which originally read “This report was posted on Ripoff Report on

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[DATE] …”. As a result of removing the words “Ripoff Report”, each infringing page
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COMPLAINT

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appearing on the Scam Informer site contains a typographical error in the remaining text

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which reads as follows: “This report was posted on on …”. The repetition of the word

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“on” in this sentence reflects that the text was part of the copyright management

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information originally copied from the Rip-off Report site and subsequently modified by

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Defendant KARSEN for reposting on the Scam Informer site.

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50.

In order to determine the extent of Defendant’s unlawful conduct, on May

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25,

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site:www.scaminformer.com “this report was posted on on”. This query requested that

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Google return search results only for the Scam Informer site, and only for pages

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2011,

Plaintiff

performed

a

Google

search

for

the

following

query:

containing the exact phrase “this report was posted on on”.
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As of May 25, 2011, this search returned in excess of 25,000 results

reflecting that Defendant KARSEN copied more than 25,000 pages from the Rip-Off

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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Report site, each of which contained unique copyright management information as

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identified above:

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52.

Pursuant to 17 U.S.C. § 1203(c)(B), Plaintiff is entitled to recover statutory

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damages of not less than $2,500 nor more than $25,000 for each of Defendant

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KARSEN’s 25,200+ violations of 17 U.S.C. § 1202. As such, Plaintiff is entitled to

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recover statutory damages from Defendant KARSEN of not less than $63,000,000.00 or

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such greater amount as may be proven at trial.
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COMPLAINT

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53.

Pursuant to 17 U.S.C. § 1203(b)(1), Plaintiff is further entitled to

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preliminary and permanent injunctive relief against Defendants’ infringing activities and

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attorney’s fees pursuant to 17 U.S.C. § 1203(b)(5).

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COUNT 3
TRADEMARK INFRINGEMENT — 15 U.S.C. § 1114

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54.

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contained herein.

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“RIP-OFF REPORT” is a valid, protectable trademark.

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56.

“DON’T LET THEM GET AWAY WITH IT” is a valid, protectable

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trademark.

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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Plaintiff incorporates herein by reference each and every allegation

Plaintiff owns “RIP-OFF REPORT” and “DON’T LET THEM GET

AWAY WITH IT” as its trademarks.
58.

Defendant KARSEN used Plaintiff’s marks, or marks confusingly similar

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thereto, without the consent of Plaintiff in a manner that is likely to cause confusion

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among ordinary consumers as to the source of the services offered by Plaintiff and by

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Defendant.

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COUNT 4
UNFAIR COMPETITION/INITIAL INTEREST CONFUSION
TRADEMARK INFRINGEMENT — 15 U.S.C. § 1114

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contained herein.

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60.

“RIP-OFF REPORT” is a valid, protectable trademark.

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61.

“DON’T LET THEM GET AWAY WITH IT” is a valid, protectable

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trademark.

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62.

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Plaintiff incorporates herein by reference each and every allegation

Plaintiff owns “RIP-OFF REPORT” and “DON’T LET THEM GET

AWAY WITH IT” as its trademarks.

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COMPLAINT

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63.

By using the “RIP-OFF REPORT” mark in both its content and in metatags

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associated with the Scam Informer site, Defendant KARSEN has infringed Plaintiff’s

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trademark without the consent of Plaintiff in a manner calculated to capture initial

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consumer attention and to direct such attention to the Scam Informer site at the expense

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of viewers looking for the Rip-off Report site.

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64.

Defendant’s conduct constitutes unfair competition and initial interest

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confusion in violation of Plaintiff’s rights under the Lanham Act and under the common

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law.

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COUNT 5
INJUNCTIVE RELIEF — 17 U.S.C. §§ 502(a), 1203(b)(1)

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65.

66.

The conduct of each Defendant has caused, is causing and, unless enjoined

above.

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GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

Plaintiff incorporates herein by reference each and every allegation set forth

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and restrained by this Court, will continue to cause Plaintiff great and irreparable injury

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that cannot fully be compensated or measured in money.

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67.

Plaintiff has no adequate remedy at law.

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68.

Pursuant to 17 U.S.C. §§ 502(a) and 503, Plaintiff is entitled to preliminary

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and permanent injunctive relief prohibiting each Defendant from further infringing

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Plaintiff’s copyrighted works.

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69.

Pursuant to 17 U.S.C. § 1203(b)(1) Plaintiff is entitled to preliminary and

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permanent injunctive relief prohibiting each Defendant from removing or falsifying any

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copyright management information contained within or associated with any of Plaintiff’s

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copyrighted works.

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///

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///

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///
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COMPLAINT

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WHEREFORE, Plaintiff prays for judgment against each Defendant as follows:
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For Plaintiff’s actual damages and Defendant’s profits, or statutory

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damages, as Plaintiff may elect, for infringement of each copyrighted work

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pursuant to 17 U.S.C. § 504;

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2.

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For statutory damages of not less than $63,000,000 pursuant to 17 U.S.C. §
1203(c)(3)(B);

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3.

For statutory and/or treble damages pursuant to 15 U.S.C. § 1117;

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4.

For injunctive relief pursuant to 17 U.S.C. §§ 502(a), 503, and 1203(b)(1);

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5.

For Plaintiff’s costs in this action pursuant to 17 U.S.C. §§ 504, 1203(b)(4)

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and/or 15 U.S.C. § 1117(a);
6.

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For Plaintiff’s reasonable attorneys’ fees incurred pursuant to 17 U.S.C. §§
504, 1203(b)(5) and/or 15 U.S.C. § 1117(a);

GINGRAS LAW OFFICE, PLLC
3941 E. CHANDLER BLVD., #106-243
PHOENIX, AZ 85048

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7.

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DATED May 26, 2011.

For such other and further relief as the Court may deem just and proper.

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GINGRAS LAW OFFICE, PLLC

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/S/ David S. Gingras
David S. Gingras
Attorneys for Plaintiff
XCENTRIC VENTURES, LLC

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COMPLAINT