Zynga Inc. v. Playerauctions.com

Filing 7

FIRST AMENDED COMPLAINT 1 ; Deand for Jury Trial against Defendants Player Auctions, LLC filed by Plaintiff Zynga Game Network Inc. (lom) (Additional attachment(s) added on 9/10/2010: # 1 Summons Issued) (lom).

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Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: dcaplankmwlaw.com
Tara D. Rose (Bar No. 256079)
E-Mail: trose(a)kmwlaw.com
KEATS McFARLAND & WILSON LLP
9720 Wilshire Boulevard
Penthouse Suite
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ZYNGA GAME NETWORK INC., a
Delaware Corporation,

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Plaintiff,

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PLAYER AUCTIONS, LLC, a limited
liability company,
Defendant.

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT
FOR:
(1) COPYRIGHT INFRINGEMENT
(17 U.S.C. § 501);
(2) CONTRIBUTORY COPYRIGHT
INFRINGEMENT;
(3) VICARIOUS COPYRIGHT
INFRINGEMENT;
(4) FALSE DESIGNATION OF
ORIGIN (15 U.S.C. § 1125(a));
(5) UNFAIR COMPETITION (CAL.
BUS. & PROF. CODE § 17200);
(6) STATE COMMON LAW
TRADEMARK INFRINGEMENT;
(7) COMMON LAW PASSING OFF
AND UNFAIR COMPETITION;
(8) INTENTIONAL INTERFERENCE
WITH CONTRACTUAL
RELATIONS
DEMAND FOR JURY TRIAL

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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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Pursuant to Federal Rule of Civil Procedure 1 5(a)( 1 )(A), Plaintiff Zynga Game

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Network Inc. ("Zynga") files this First Amended Complaint against defendant

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PLAYER AUCTIONS, LLC ("Defendant") for injunctive relief and damages under

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the laws of the United States and the State of California.

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Nature of the Action

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1.

This is an action for direct, contributory, and vicarious copyright

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infringement in violation of the United States Copyright Act, 17 U.S.C. §

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violation of the federal Lanham Act, 15 U.S.C. § § 1125(a); violation of the California

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statutory law of unfair competition, Cal. Bus. & Prof. Code § 17200; California

501;

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common law trademark infringement, passing off and unfair competition; and for

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intentional interference with contractual relations.

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Th Prt

2.

Plaintiff Zynga is a corporation organized and existing under the laws of

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the State of Delaware and has its principal place of business in San Francisco,

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California.

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3.

On information and belief, Defendant PLAYER AUCTIONS, LLC is a

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limited liability company, having its principal place of business in Los Angeles,

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California. Zynga is unaware of the state of organization of Defendant.

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Jurisdiction and Venue
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This action arises under the copyright laws of the United States, 17

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U.S.C. § 101, et seq., the trademark laws of the United States, 15 U.S.C. § 1051, et

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seq., particularly under 15 U.S.C. § § 1125(a); state unfair competition law; the

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common law of trademark infringement, passing off and unfair competition; and the

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common law of intentional interference with contractual relations. This Court has

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jurisdiction of the federal claims under 28 U.S.C. §§ 1331 and 1338, and 15 U.S.C. §

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1116, 1121, and 1125. This Court has supplemental jurisdiction of the state unfair

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competition claims under 28 U.S.C. § 1338(b), those claims being joined with a

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substantial and related claim under the Trademark Laws of the United States, and
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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supplemental jurisdiction of all of the state law claims under 28 U.S.C. § 1367(a),

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those claims being so related to the federal claims that they form part of the same case

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or controversy and derive from a common nucleus of operative fact.

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Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2).

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Factual Allegations
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Zynga is the largest social gaming company, providing, inter alia, online

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poker games, word games, board games, role playing games and party games,

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including but not limited to Zynga Poker, Mafia Wars, YoVille, FarmVille, CafØ

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World, Vampires, Street Racing, Scramble and Word Twist.. Zynga’s games are

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available on Facebook, MySpace, Bebo, HiS, Friendster, Tagged, Yahoo!, the iPhone

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and iPod Touch, among others.

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7.

Zynga’s games have been a runaway success. In July, 2008, Zynga had

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over 1.3 million daily active users and 20 million registered users. As of January 1,,

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2009, Zynga had over 75 million registered users. As of May 2009, Zynga had more

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than 9.5 million daily users. Today, Zynga has over 100 million unique users playing

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its games each month.

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Some of Zynga’s most popular properties include Zynga Poker, Mafia

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Zynga Poker is a computerized version of the world famous Texas

Hold’Em Poker game for use on wireless devices and computers.
10. Zynga coined the trademark and service mark ZYNGA and has made use
of the mark ZYNGA in commerce since June 2007.
11. Zynga owns United States Federal Trademark Registration No. 3,685,749

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for the mark ZYNGA in International Class 009 for downloadable computer game

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software for use on wireless devices and computers, and International Class 041 for

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entertainment services, namely providing on-line computer games. A true and correct

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copy of federal Trademark Registration Certificate

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Exhibit 1.
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3,685,749 is attached hereto as

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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Zynga Poker is the subject of registration VA000 1649268 and

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TXuOO 1611885 in the United States Copyright Office. True and correct records

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reflecting these registrations are attached hereto as Exhibits 2 and 3.

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13. Mafia Wars is a computer game for use on wireless devices and

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computers that allows users to start a virtual Mafia family with their friends and

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compete to become the most powerful family.

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14. Zynga has made use of the trademark MAFIA WARS in commerce since

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at least September 2008.

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Zynga currently owns United States Federal Trademark Application

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Serial No. 77772110 for the mark MAFIA WARS in International Class 009 for

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downloadable computer game software for use on wireless devices and computers,

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and International Class 041 for entertainment services, namely, providing on-line

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I computer games.

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16. Mafia Wars is the subject of registration TX000691 1230 in the United

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States Copyright Office. A true and correct record reflecting this registration is

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attached hereto as Exhibit 4.

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17. FarmVille is a computer game for use on wireless devices and computers

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that allows users to virtually "farm" with their friends by planting crops and raising

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farm animals.

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18. Zynga coined the trademark and service mark FARMVILLE and has

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made use of the mark in commerce since June 19, 2009.

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19. Zynga currently owns United States Federal Trademark Application

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Serial No. 77804837 for the word mark FARMVILLE in International Class 009 for

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downloadable computer software for use on wireless devices and computers, and

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International Class 041 for entertainment services, namely, providing on-line
computer games.
20. Zynga also owns United States Federal Trademark Application Serial No.
77798840 for the FARMVILLE BY ZYNGA design mark in International Class 009
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

for downloadable computer software for use on wireless devices and computers, and
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International Class 041 for entertainment services, namely, providing on-line

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computer games.

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21. FarmVille is the subject of registrations TXu001610517 and

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TX0006960 171 in the United States Copyright Office. True and correct records

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reflecting these registrations are attached hereto as Exhibits 5 and 6.

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22. YoVille is a computer game for use on wireless devices and computers

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that allows users to hang out with their friends in a virtual world, playing games and

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chatting in the virtual world that users help to build.

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23. Zynga coined the trademark and service mark YOVILLE and has made
use of the mark in commerce since May 5, 2008.

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24. Zynga owns United States Federal Trademark Registration No. 3,773,188

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for the mark YOVILLE in International Class 009 for downloadable computer game

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software for use on wireless devices and computers, and International Class 041 for

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entertainment services, namely, providing on-line computer games. A true and correct

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copy of federal Trademark Registration Certificate 3,773,188 is attached hereto as

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Exhibit 7.

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The marks ZYNGA, MAFIA WARS, FARMVILLE, and YOVILLE (the

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"Marks) are distinctive, and by virtue of the extensive online sales and advertising

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under the Marks, the Marks have become well-known within social gaming circles as

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a source identifier for the Zynga Poker, Mafia Wars, FarmVille, and YoVille games

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(the "Games").

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26. Zynga makes the Games available through social networking websites

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and applications (collectively "Providers"), including but not limited to those

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identified in Paragraph 6 above.

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27. Zynga owns or leases the computer servers that players must access in

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order to play the Games. Zynga grants players who participate in the Games a

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revocable license to access its servers for the purpose of playing the Games.
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

28. Zynga’s Terms of Service govern users’ play of the Games, and players
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who use the Games must consent to the Terms of Service.

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29. Players who use the Games in a manner not expressly authorized by

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Zynga, including without limitation in violation of the Terms of Service, are not

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authorized to participate in the Games, or to access Zynga’s servers.

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30. When users sign up with Zynga to play the Games, they receive a certain

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amount of "Virtual Currency," including, but not limited to, chips, coins, cash and/or

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points that they use to compete in the Games with other players using the Providers’

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sites and/or applications. Players can increase their total amount of "Virtual

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Currency" through their play, and can also purchase "Virtual Currency" from Zynga.
31. Players can use "Virtual Currency" to purchase various virtual, in-game
digital items ("Virtual Goods") in the Games.

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32. Zynga grants players a limited, revocable license to use the "Virtual

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Currency" or "Virtual Goods" while playing the Games, but retains sole and exclusive

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ownership of the "Virtual Currency" or "Virtual Goods" and the source code that

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allows the "Virtual Currency" or "Virtual Goods" to be used in the Games.

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33. Zynga has not authorized any third party to sell the "Virtual Currency" or
"Virtual Goods" required to play the Games.
34. Among other things, the Terms of Service that govern users’ play of the

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Games prohibit users from selling "Virtual Currency" or "Virtual Goods" for real-

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world money or otherwise exchanging "Virtual Currency" or "Virtual Goods" for

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anything of value outside the Games.

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35.

Defendant operates a website at the Internet domain name

PLAYERAUCTIONS.COM (the "Website" or the "Domain Name")
36. Through the Website, without Zynga’s authorization or approval,

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Defendant allows sellers to post and "sell" "Virtual Currency" or "Virtual Goods" that

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users, playing the Games through the Providers’ websites and/or applications, can use

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to compete with other players who obtained their "Virtual Currency" or "Virtual
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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Goods" directly from Zynga.
37. Defendant advertises the offers for sale and sale of the "Virtual
Currency" and "Virtual Goods" using the Marks.
38. Defendant profits from sales of the "Virtual Currency" and "Virtual
Goods" using the Marks.
39. The Virtual Currency" and "Virtual Goods" for use in the Games "sold"

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using Defendant’s services are sold for real-world money, and at prices that are

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substantially lower than the prices paid by users who obtain their "Virtual Currency"

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or "Virtual Goods" from Zynga.

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40. With Defendant’s knowledge, Defendant’s sellers have used the Games

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themselves as part of Defendants’ scheme, transferring the "Virtual Currency" or

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"Virtual Goods" during game play in contravention of the Games’ Terms of Service

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and/or security measures, and in violation of the license they received from Zynga to

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participate in the Games.

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41. Zynga has never authorized Defendant to use the Marks, or to advertise

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or assist in the sale of "Virtual Currency" or "Virtual Goods" for use in the Games,

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nor has Zynga authorized Defendant or users of Defendant’s services to use the

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Games to transfer "Virtual Currency" or "Virtual Goods" that are "sold" through the

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Website.

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42. Defendant and users of its Website advertise and sell the "Virtual

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Currency" and "Virtual Goods" using copyrighted images from Zynga Poker, Mafia

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Wars and FarmVille via the Website.

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43. Zynga has never authorized Defendant or users of its Website to use
images from Zynga Poker, Mafia Wars and FarmVille computer files.
44. Zynga is informed and believes, and on this basis alleges, that Defendant

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has infringed Zynga’s copyrights in the Zynga Poker, Mafia Wars and FarmVille

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computer games by displaying and/or reproducing images and code from the Games

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without authorization from Zynga. Defendant has acted with willful disregard of
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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Plaintiff’s copyrights and Plaintiff has sustained substantial damage as a result thereof.

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FIRST CAUSE OF ACTION

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(Federal Copyright Infringement)

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(17 U.S.C. § 501)

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45.

Zynga repeats, realleges and incorporates each and every allegation of the

foregoing paragraphs, as though fully set forth in this cause of action.
46. At all relevant times, Zynga has owned all applicable rights, titles and
interest in and to the Zynga Poker, Mafia Wars and FarmVille games.

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47. Zynga has complied in all respects with Title 17 of the United States

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Code, secured the exclusive rights and privileges in and to the above referenced

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copyrights, and in compliance with the law has received from the Register of

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Copyrights the appropriate certificates of registration, which constitute prima facie

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evidence of the validity of the copyrights and of the facts stated in the certificates.

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48. Defendant has infringed and continues to infringe Plaintiff’s copyrights

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by copying, using, distributing and reproducing images from Zynga Poker, Mafia

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Wars and FarmVille without the consent of Plaintiff and in complete disregard of

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Plaintiff’s exclusive rights under copyright.

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49. Defendant has acted with full knowledge of Plaintiff’s rights under

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copyright without regard for the damage to Plaintiff created by Defendant’s activities.

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Defendant’s actions demonstrate an intentional, willful, and malicious intent to

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infringe upon Plaintiff’s copyrights to the great and irreparable injury to Plaintiff.

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Defendant has unlawfully and wrongfully derived, and will continue to

derive, income and profits from its infringing acts.
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Plaintiff has no adequate remedy at law. The said conduct of Defendant

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has caused and, if not enjoined, will continue to cause irreparable damage to the rights

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of Plaintiff. As a result of the Defendant’s wrongful conduct, Plaintiff is entitled to

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injunctive relief and damages in an amount to be proven at trial.

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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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SECOND CAUSE OF ACTION

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(Contributory Copyright Infringement)

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52.

Zynga repeats, realleges and incorporates each and every allegation of the

foregoing paragraphs, as though fully set forth in this cause of action.
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Numerous individuals and entities directly infringed Plaintiff’s

copyrighted works.
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Defendant induced, caused and materially contributed to the infringing

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acts of others by encouraging, inducing, allowing and assisting others to reproduce

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and distribute Plaintiff’s copyrighted works.

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55.

Defendant had actual and constructive knowledge of the infringing acts

relating to Plaintiff’s copyrighted works.
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Defendant’s acts of infringement have been intentional, willful, and

purposeful, in disregard of and indifferent to the rights of Plaintiff.
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Defendant has unlawfully and wrongfully derived, and will continue to

derive, income and profits from its infringing acts.
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Plaintiff has no adequate remedy at law. The said conduct of Defendant

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has caused and, if not enjoined, will continue to cause irreparable damage to the rights

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of Plaintiff. As a result of the Defendant’s wrongful conduct, Plaintiff is entitled to

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injunctive relief and damages in an amount to be proven at trial.

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The acts and conduct of Defendant, as alleged above in this Complaint

constitute contributory copyright infringement.

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THIRD CAUSE OF ACTION

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(Vicarious Copyright Infringement)

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Zynga repeats, realleges and incorporates each and every allegation of the

foregoing paragraphs, as though fully set forth in this cause of action.
61. Numerous individuals and entities directly infringed Plaintiff’s
copyrighted works.
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Defendant had the right and ability to control the infringing acts of the
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

individuals or entities who directly infringed Plaintiff’s works.
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63. Defendant obtained a direct financial benefit from the infringing
activities of the individuals or entities who directly infringed Plaintiff’s works.
64. Defendant’s acts of infringement have been intentional, willful, and
purposeful, in disregard of and indifferent to the rights of Plaintiff.
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Defendant has unlawfully and wrongfully derived, and will continue to

derive, income and profits from its infringing acts.
66. Plaintiff has no adequate remedy at law. The said conduct of Defendant
has caused and, if not enjoined, will continue to cause irreparable damage to the rights

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of Plaintiff. As a result of the Defendant’s wrongful conduct, Plaintiff is entitled to

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injunctive relief and damages in an amount to be proven at trial.

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67. The acts and conduct of Defendant, as alleged above in this Complaint
constitute vicarious copyright infringement

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FOURTH CAUSE OF ACTION

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(False Designation of Origin Regarding the Marks)

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(15 U.S.C. § 1125(a))

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68. Zynga repeats, realleges and incorporates each and every allegation of the
foregoing paragraphs, as though fully set forth in this cause of action.
69. Defendant’s use of the Marks constitutes use of a false designation of

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origin or false and misleading representation in interstate commerce that wrongfully

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and falsely designates, describes and represents that Defendant’s products and

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services are connected, affiliated or associated with, or authorized by Zynga, and is

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likely to cause confusion as to Defendant’s affiliation, connection or association with

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Zynga, or as to the origin, sponsorship, approval or authorization of Defendant’s

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products or services by Zynga in violation of 15 U.S.C. §1125(a).

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70. Defendant’s conduct as alleged herein has been undertaken willfully and

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maliciously, and with full knowledge and in conscious disregard of Zynga’s rights.

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Defendant’s conduct has caused and will continue to cause Zynga irreparable harm for
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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which there is no adequate remedy at law, and is also causing damage to Zynga in an

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amount which cannot be accurately computed at this time but will be proven at trial.

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FIFTH CAUSE OF ACTION

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(California Statutory Unfair Competition)

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(California Business and Professions Code § 17200, et seq.)

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71. Zynga repeats, realleges and incorporates each and every allegation of the
foregoing paragraphs, as though fully set forth in this cause of action.
72. This Court has jurisdiction over the subject matter of this claim pursuant
to the provisions of 28 U.S.C. § 1338(b), this being a claim of unfair competition

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joined with a substantial and related claim under the Trademark Laws of the United

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States, and under 28 U.S.C. § 1367.

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73. Defendant competes directly with Zynga by "selling" "Virtual Currency"
and "Virtual Goods" that are required to play the Games.
74. Defendant is making unauthorized commercial use of the Marks in a

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deliberate, willful, intentional and wrongful attempt to trade on Zynga’s goodwill,

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reputation and financial investments in the Marks.

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By reason of Defendant’s conduct as alleged herein, Defendant has

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engaged in unlawful, unfair and/or fraudulent ongoing business practices in violation

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of California Business & Professions Code § 17200.

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76. As a direct result of Defendant’s unfair competition with regard to the

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Marks, Defendant has unlawfully acquired, and continues to acquire on an ongoing

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basis, an unfair competitive advantage and has engaged, and continues to engage in,

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wrongful business conduct to Defendant’s monetary advantage and to the detriment of

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Zynga.

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77. Defendant’s illegal and unfair business practices are continuing, and

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injunctive relief pursuant to California Business and Professions Code § 17203 is

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necessary to prevent and restrain further violations by Defendant.

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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

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SIXTH CAUSE OF ACTION

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(Common Law, Trademark Infringement of the Marks)

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78. Zynga repeats, realleges and incorporates each and every allegation of the
foregoing paragraphs, as though fully set forth in this cause of action.
79. This Court has jurisdiction over the subject matter of this claim pursuant

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to the provisions of 28 U.S.C. § 1338(b), this being a claim of infringement joined

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with a substantial and related claim under the Trademark Laws of the United States,

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and under 28 U.S.C. § 1367.

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80. Defendant’s unauthorized use of the Marks constitutes trademark

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infringement and is likely to cause confusion, deception and mistake among the

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consuming public and trade as to the source of, and authorization for the products

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and/or services sold and/or advertised by Defendant in violation of the common law of

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the State of California.

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81. Defendant’s conduct as alleged herein has been undertaken willfully and
maliciously, and with full knowledge and in conscious disregard of Zynga’s rights.
82. As well as harming the public, Defendant’s conduct as alleged herein has

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caused and will continue to cause Zynga irreparable harm for which there is no

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adequate remedy at law, and is also causing damage to Zynga in an amount which

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cannot be accurately computed at this time but will be proven at trial.

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SEVENTH CAUSE OF ACTION

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(California Common Law Passing Off and Unfair Competition)

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83. Zynga repeats, realleges and incorporates each and every allegation of the
foregoing paragraphs, as though fully set forth in this cause of action.
84. This Court has jurisdiction over the subject matter of this claim pursuant

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to the provisions of 28 U.S.C. § 1338(b), this being a claim of unfair competition

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joined with a substantial and related claim under the Trademark Laws of the United

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States, and under 28 U.S.C. § 1367.

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85.

By virtue of its conduct as alleged herein, Defendant has engaged and is
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engaging in unfair competition and passing off under the common law of the State of

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California.

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86. As well as harming the public, Defendant’s conduct as alleged herein has

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caused and will continue to cause Zynga irreparable harm for which there is no

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adequate remedy at law, and is also causing damage to Zynga in an amount which

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cannot be accurately computed at this time but will be proven at trial.

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87. Defendant’s actions were undertaken intentionally to obtain an unfair

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advantage over Zynga and in conscious disregard of Zynga’s rights, and were

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malicious, oppressive and/or fraudulent. Zynga requests punitive or exemplary

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damages pursuant to California Civil Code § 3294(a) in an amount sufficient to punish

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and deter Defendant and to make an example of Defendant.

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EIGHTH CAUSE OF ACTION

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(Intentional Interference with Contractual Relations)

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88. Zynga repeats, realleges and incorporates each and every allegation of the
foregoing paragraphs, as though fully set forth in this cause of action.
89. This Court has jurisdiction over the subject matter of this claim pursuant
to the provisions of 28 U.S.C. § 1367.

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90. Zynga has existing valid contracts with users of the Games.

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91. Zynga is informed and believes, and on that basis alleges, that Defendant

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has knowledge of those contracts, and that Defendant has acted intentionally to induce

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a breach or disruption of those contractual relationships by "selling" "Virtual

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Currency" and "Virtual Goods" for the Games without authorization, at prices that are

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substantially lower than the prices paid by users who obtain their "Virtual Currency"

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and "Virtual Goods" from Zynga, and by distributing "Virtual Goods" and "Virtual

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Goods" to users in a manner prohibited by the Terms of Service.

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92. Defendant’s actions as alleged herein have caused actual disruption or
breach of Zynga’s contractual relationships with individual users.
93. Defendant’s conduct as alleged herein has caused and will continue to
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CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

cause Zynga irreparable harm for which there is no adequate remedy at law, and is
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also causing damage to Zynga in an amount which cannot be accurately computed at

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this time but will be proven at trial

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REQUEST FOR RELIEF
Zynga requests that this Court:
A.

Enter a permanent injunction enjoining Defendant and its officers,

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directors, agents, employees, representatives and all persons or entities acting in

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concert or participation with Defendant from accessing or using Zynga’s computer

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servers, including without limitation the Games or any other games or applications

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that Zynga makes available, for any purpose whatsoever;
B.

Enter a permanent injunction enjoining Defendant and its officers,

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directors, agents, employees, representatives and all persons or entities acting in

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concert or participation with Defendant from infringing any of Zynga’ s trademarks,

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including without limitation using the Marks ZYNGA, MAFIA WARS,

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FARMVILLE, and YOVILLE and/or confusingly similar misspellings or variations

16

thereof, alone or in combination with any other words or phrases, in a manner that is

17

likely to cause confusion with respect to the Marks or with respect to Zynga’s

18

approval or authorization of Defendant’s actions;

19

C.

Enter a permanent injunction enjoining Defendant and its officers,

20

directors, agents, employees, representatives and all persons or entities acting in

21

concert or participation with Defendant from accessing, playing, or otherwise

22

participating in the Games, or in any other game or application that Zynga makes

23

available;

24

D.

Enter a permanent injunction enjoining Defendant and its officers,

25

directors, agents, employees, representatives and all persons or entities acting in

26

concert or participation with Defendant from buying, selling, offering for sale,

27

advertising, exchanging, trading or otherwise dealing in "Virtual Currency" and

28

"Virtual Goods" for use in the Games, as well as any currency or items used in any
-13-

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

game or application that Zynga makes available;
2

E.

Enter a permanent injunction enjoining Defendant and its officers,

directors, agents, employees, representatives and all persons or entities acting in
ri

concert or participation with Defendant from aiding, abetting, contributing to, or
otherwise assisting with or benefiting from buying, selling, offering for sale,
advertising, exchanging, trading or otherwise dealing in "Virtual Currency" and

7

"Virtual Goods" for use in the Games, as well as any currency or items used in any

8

game or application that Zynga makes available;

9

F.

Enter a permanent injunction requiring Defendant and its officers,

10

directors, agents, employees, representatives and all persons or entities acting in

11

concert or participation with Defendant to immediately cease any conduct suggesting

12

or tending to suggest that any products or services they advertise or offer for sale are

13

directly or indirectly sponsored or approved by, or affiliated with Zynga;

14

G.

Enter a permanent injunction enjoining and restraining Defendant and its

officers, directors, agents, employees, representatives and all persons or entities acting
16

in concert or participation with Defendant, from aiding, abetting, contributing to, or

17

otherwise assisting with or benefiting from using, displaying, exhibiting, reproducing,

18

distributing, selling or offering for sale, any product or service featuring images and

19

code from the Zynga Poker, Mafia Wars and FarmVille computer files, without prior

20

authorization from Zynga;

21

H.

Enter a permanent injunction enjoining and restraining Defendant and its

22

officers, directors, agents, employees, representatives and all persons or entities acting

23

in concert or participation with Defendant, from using, displaying, exhibiting,

24

reproducing, distributing, selling or offering for sale, any product or service featuring

25

images and code from the Zynga Poker, Mafia Wars and FarmVille computer files,

26

without prior authorization from Zynga;

27
28

I.

Enter a permanent injunction enjoining and restraining Defendant and its

officers, directors, agents, employees, representatives and all persons or entities acting
-14-

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

1

in concert or participation with Defendant, from effecting assignments or transfers,

2

forming new entities or associations or utilizing any other device for the purpose of

3

circumventing or otherwise avoiding the prohibitions set forth in Requests for Relief

4

(A-H) above;

5

J.

6

I malicious;
K.

7
8

II

Enter a finding that Defendant’s actions were malicious, oppressive

I and/or fraudulent;
L.

9
10

Enter a finding that Defendant’s actions were willful, deliberate, and

Award Zynga damages in an amount to be proven at trial that will be

I trebled pursuant to the applicable statute, as well as pre-judgment and post-judgment
interest;
M.

12

As to Plaintiff’s claims for federal copyright infringement, that Plaintiff

13

be awarded damages for Defendant’s copyright infringement as: (i) Defendant’s

14

profits derived from its unlawful infringement of the Zynga Poker, Mafia Wars and

15

FarmVille computer files; or (ii) statutory damages for each act of infringement in an

16

amount provided by law, as set forth in 17 U.S.C. § 504, at Plaintiff’s election before

17

the entry of a final judgment, together with prejudgment and post-judgment interest;
N.

18

Enter an order, pursuant to 15 U.S.C. § 1118 and other applicable law,

19

directing Defendant to deliver for destruction all products in its possession or under its

20

control that infringe Zynga’s intellectual property rights;
Award Zynga punitive damages in an amount sufficient to punish and

21

0.

22

I deter Defendant;

23

P.

24

II

25

//

26

1/

27

//

28

Enter an award of attorneys’ fees and costs; and

//
-

15-

CASE NO, CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

1
2

Q.

Award any such other and further relief as this Court deems just and

proper.

3
4

PLAINTIFF ZYNGA HEREBY DEMANDS A TRIAL BY JURY.

5

Dated: September 7, 2010
6

7
8

By:
Dennis L. Wilson
Keats McFarland & Wilson LLP
Attorneys for Plaintiff
ZYNGA GAME NETWORK INC.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

25
26
27
28
-16-

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

I
2
3

DEMAND FOR JURY TRIAL
Plaintiff Zynga Game Network Inc. hereby demands a trial by jury on all issues
for which a jury trial may be had.

4
5

Dated: September 7, 2010

Respectfully submitted,

6

KEATS MCFARLAND & WILSON LLP
7
8
9

By:
Dennis L. Wilson
Attorney for Plaintiff
ZYNGA GAME NETWORK INC.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-17-

CASE NO. CV 10-2576 CBM (JCx)
FIRST AMENDED COMPLAINT

eb i§tatc.5of ZImer
iutteb Otatco patent aub Trabeinarb Offire

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t4c

ifzynga
Reg. No. 3,685,749

ZYNGA GAME NETWORK INC. (DELAWARE CORPORATION)
Registered Sep. 22, 2009 365 VERMONT STREET
SAN FRANCISCO, CA 94103

Int. CIS.: 9 and 41

FOR: DOWNLOADABLE COMPUTER GAME SOFTWARE FOR USE ON WIRELESS DEVICES
AND COMPUTERS, IN CLASS 9 (U.S. CLS. 21, 23, 26, 36 AND 38).

TRADEMARK FIRST USE 6-0-2007: IN COMMERCE 6-0-2007.
SERVICE MARK
PRINCIPAL REGISTER FOR: ENTERTAINMENT SERVICES, NAMELY, PROVIDING ON-LINE COMPUTER GAMES,
IN CLASS 41 (U.S. CLS. 100, 101 AND 107).
FIRST USE 6-0-2007; IN COMMERCE 6-0-2007.
THE MARK CONSISTS OF A DOG NEXT TO ZYNGA.
SER. NO. 77-684,104, FILED 3-5-2009.
KIM SAITO, EXAMINING ATTORNEY

5:
Director of the United Swin llawntwd tia,teun;,,k Utile

EXHIBIT _ I
PAGE_______

Type of Work:

Visual Material

Registration Number / Date:
VA0001649268 / 2008-10-01
Application Title: Zynga Texas Hold Em.
Title:

Zynga Texas Hold Em.

Description:

Electronic file (eService)

Copyright Claimant:
Zynga Networks, Inc.
Date of Creation: 2007
Date of Publication:
2007-09-01
Nation of First Publication:
United States
Authorship on Application:
Zynga Networks, Inc., employer for hire; Domicile: United
States; Citizenship: United States. Authorship: 2-D
artwork, text.
Pre-existing Material:
2-D artwork, text.
Basis of Claim:

2-D artwork, text.

Names:

Zynga Networks, Inc.

..........................................

The Library of Congress
United States Copyright Office
101 Independence Ave., S.E.
Washington, D.C. 20559-6000
202-707-3000

jBfl _
PAGE

Type of Work:

Computer File

Registration Number / Date:
TXu001611885 / 2009-08-20
Application Title: Texas Hold ’Em Software.
Title:

(No title on deposit.)

Description:

Computer Code.

Copyright Claimant:
Zynga Game Network Inc.
Date of Creation: 2009
Authorship on Application:
Zynga Game Network Inc., employer for hire; Domicile:
United States. Authorship: computer program.
Previous Registration:
2008, VA 1-649-268.
Pre-existing Material:
Two Dimensional Artwork in Reg. No. VA 1-649-268; No
claim
is made to approximately 10% of software licensed to
claimant by e-Channel Networks, Inc.
Basis of Claim:

computer software.

Names:

Zynga Game Network Inc.

The Library of Congress
United States Copyright Office
101 Independence Ave., S.E.
Washington, D.C. 20559-6000
202-707-3000

EX3TT_–.
PAGE

Type of Work:

Computer File

Registration Number / Date:
TX0006911230 / 2009-04-09
Application Title: Mafia Wars.
Title:

(No title on deposit]

Description:

Electronic file (eService)

Copyright Claimant:
Zynga Game Network Inc.
Date of Creation: 2009
Date of Publication:
2009-02-10
Nation of First Publication:
United States
Authorship on Application:
Zynga Game Network Inc., employer for hire; Domicile:
United States; Citizenship: United States. Authorship:
computer program.
Alternative Title on Application:
Dope Wars
Copyright Note:

C.O. correspondence.

Names:

Zynga Game Network Inc.

The Library of Congress
United States Copyright Office
101 Independence Ave., S.E.
Washington, D.C. 20559-6000
202-707-3000

PAGE

2i

Type of Work:

Computer File

Registration Number / Date:
TXuOO1610517 / 2009-09-06
Application Title: Farmville.
Title:

Farmville.

Description:

Electronic file (eService)

Copyright Claimant:
Zynga Game Network Inc., Transfer: By written agreement.
Date of Creation: 2009
Authorship on Application:
Zynga Game Network Inc., employer for hire; Domicile:
United States; Citizenship: United States. Authorship:
computer program.
MyMiniLife, Inc. (author of anonymous contribution),
employer for hire; Domicile: United States;
Citizenship:
United States. Authorship: computer program.
Names:

Zynga Game Network Inc.
MyMiniLife, Inc.

The Library of Congress
United States Copyright Office
101 Independence Ave., S.E.
Washington, D.C. 20559-6000
202-707-3000

PAGE

2

Type of Work:

Computer File

Registration Number / Date:
TX0006960171 / 2009-08-10
Application Title: FarmVille HTML Software.
Title;

FarmVille HTML Software.

Description:

Print Material.

Copyright Claimant:
Zynga Game Network Inc.
Date of Creation: 2009
Date of Publication:
2009-06-19
Nation of First Publication:
United States
Authorship on Application:
Zynga Game Network Inc., employer for hire; Domicile:
United States; Citizenship: United States. Authorship;
computer program.
Pre-existing Material:
computer program, "Original MyMiniLife HTML Software"
(rights transferred to claimant)
Basis of Claim:

computer program, Modification of existing software and
addition of new software.

Copyright Note:

C.O. correspondence.

Names:

Zynga Game Network Inc.

The Library of Congress
United States Copyright Office
101 Independence Ave., S.E.
Washington, D.C. 20559-6000
202-707-3000

PACE

wiltb

,tatc& of

utteb tate patent anb Trabemark .fftte

t4ra

YoVl*lle
Reg. No. 3,773,188

ZYNGA GAME NETWORK INC. (DELAWARE CORPORATION)
Registered Apr. 6,2010 365 VERMONT STREET
SAN FRANCISCO, CA 94103

hit. CIs.: 9 and 41

FOThDOWNLOADABLECOMPUTERGAMESOFTWAPEFORUSEONWllETESSDEVICES
AND COMPUTERS, IN CLASS .9 (U.S. CLS. 21,23,26, 36 AND 38).

TRADEMARK FIRST USE 5-5-2008 IN COMMERCE 5-5-2008.
SERVICE MARK
PRINCIPAL REGISTER FOR: ENTER1AJNMENT SERVICES,NAMELY, PROVIDING ON-LINE COMPUTER GAMES,
IN CLASS 41 (U.S. CLS. 100, 101D 107),
FIRST USE 5-5-2008; IN COMMERCE 5-5-2008,

THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT, STYLE, SIZE, OR COLOR.
SN 77.678,316, FILED 2-25-2009.
KIM SAITO, EXAMINING ATTORNEY

:

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Kvoe

Db,,.tor ufi),, UnHud Snn,n ’niuni u,d t’u,duou,k Office

EXHIBIT
PAGE
-