Jurin v. Google Inc.

Filing 20

ANSWER to COMPLAINT with Jury Demand by Google, Inc.. (Caruso, Margaret)

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Margret M. Caruso (Bar No. 243473) Cheryl Galvin (Bar No. 252262) 2 555 Twin Dolphin Drive, 5th Floor 3 Redwood Shores, California 94065-2139 Telephone: [phone] Facsimile: [phone] 4 5 Attorneys for Google Inc. 6 7 8 9 10 11 Daniel Jurin, an Individual, 12 13 vs. Plaintiff, CASE NO. 2:09-cv-03065-MCE-KJM DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES DEMAND FOR JURY TRIAL Defendant. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

14 Google Inc., 15 16 17 18

Defendant Google Inc. ("Google"), through its counsel, answers the Complaint of Daniel

19 Jurin (Jurin) as set forth below. Unless specifically admitted, Google denies each of the 20 allegations of Jurin's Complaint. 21 22 1. JURISDICTION AND VENUE Google admits that Jurin attempts to assert claims under the Lanham Act, 15 U.S.C.

23 §§ 1051, et seq., and California law. Google denies the substance of all alleged claims. 24 2. Google admits that this Court has federal question jurisdiction over Jurin's Lanham

25 Act claims and supplementary jurisdiction over Jurin's California statutory and common law 26 claims. 27 3. For purposes of this action, Google does not contest that venue in the Eastern

28 District of California is proper.
Case No. :09-cv-03065-MCE-KJM DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1 2 4.

PARTIES Google lacks knowledge or information sufficient to form a belief as to the truth or

3 falsity of the allegations of Paragraph 4, and therefore denies the same. 4 5. Google admits that it is a corporation organized under the laws of the State of

5 Delaware with its corporate offices located at 1600 Amphitheatre Parkway, Mountain View, 6 California. Google admits that it operates internationally and that it has been recognized as the 7 leading search engine on the Internet. Google lacks knowledge or information sufficient to form a 8 belief as to its share of the market for search traffic, and therefore denies the same. Google denies 9 the remaining allegations of Paragraph 5. 10 6. The allegations of Paragraph 6 are nonsensical on the grounds that Google Inc. is

11 the sole defendant in this action and on that ground, Google denies the allegations of Paragraph 6. 12 13 7. INTRODUCTION Google denies that it engaged in unauthorized use and exploitation of Plaintiff's

14 trademarks, and, to the extent Paragraph 7 can be read to allege that Google commercially exploits 15 registered trademarks not owned by or licensed to Google, denies the same. Google lacks 16 knowledge or information sufficient to form a belief as to the truth or falsity of the remaining 17 allegations of Paragraph 7, and therefore denies the same. 18 8. Google admits that it provides search results to individuals in response to search

19 queries. Google also admits that it offers a program called AdWords through which it offers 20 advertising space, in which advertisers can bid on the opportunity to have their advertisements 21 display. Google denies the remaining allegations of Paragraph 8. 22 9. Google admits that one way some Internet users find websites on the Internet is by

23 using search engines like Google, Yahoo, or Bing. Google denies the remaining allegations of 24 Paragraph 9. 25 10. Google admits that some websites allow potential customers to obtain information

26 regarding products, goods, or services offered for sale. Google denies the remaining allegations of 27 Paragraph 10. 28
Case No. :09-cv-03065-MCE-KJM -2DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1

11.

Google admits that it indexes some websites on the Internet to gather data for use in

2 determining relevant search results. Google admits that it ranks search results based on an 3 algorithm and displays those search results on results pages in response to queries input by users 4 of its search engine. Google denies the remaining allegations of Paragraph 11. 5 12. Google admits that organic search results and pay per click advertising are two

6 means by which traffic can be generated for a website. Google admits that its Keyword Tool 7 provides certain information about keywords. Google denies the allegations of the first sentence 8 of Paragraph 12. Google lacks knowledge or information sufficient to form a belief as to the truth 9 or falsity of the remaining allegations of Paragraph 12, and therefore denies the same. 10 13. Google admits that one way to create a website is to use HTML, JavaScript, and

11 CSS and that a website creator can choose to build the content of the site around a keyword. 12 Google admits that the rank of a website in Google's search results is based on an algorithm. 13 Google denies the remaining allegations of Paragraph 13. 14 14. Google denies the first two sentences of Paragraph 14 on the grounds that they are

15 unintelligible. Google admits that its AdWords Program offers pay per click advertising, but 16 denies that it functions as described in Paragraph 14 and denies the remaining allegations of 17 Paragraph 14. 18 15. Google admits that it offers an advertising program called AdWords. Google

19 denies the remaining allegations of Paragraph 15. 20 16. Google lacks knowledge or information sufficient to form a belief as to the truth or

21 falsity of the allegations of Paragraph 16, and therefore denies the same. 22 17. Google lacks knowledge or information sufficient to form a belief as to the truth or

23 falsity of the allegations of Paragraph 17, and therefore denies the same. 24 18. Google lacks knowledge or information sufficient to form a belief as to the truth or

25 falsity of the allegations of Paragraph 18, and therefore denies the same. 26 27 19. 20. Google denies the allegations of Paragraph 19. Google admits that it may have crawled Plaintiff's website for purposes of indexing

28 Plaintiff's website in organic search results, but denies the remaining allegations of Paragraph 20.
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21. 22. 23. 24. 25. 26.

Google denies the allegations of Paragraph 21. Google denies the allegations of Paragraph 22. Google denies the allegations of Paragraph 23. Google denies the allegations of Paragraph 24. Google denies the allegations of Paragraph 25. Google lacks knowledge or information sufficient to form a belief as to the reason

7 Plaintiff brought this lawsuit, and therefore denies the same. Google denies the remaining 8 allegations of Paragraph 26. 9 27. Google lacks knowledge or information sufficient to form a belief as to the truth or

10 falsity of the allegations of Paragraph 27, and therefore denies the same. 11 28. Google lacks knowledge or information sufficient to form a belief as to the truth or

12 falsity of the allegations of Paragraph 28, and therefore denies the same. 13 29. Google lacks knowledge or information sufficient to form a belief as to the truth or

14 falsity of the allegations of Paragraph 29, and therefore denies the same, but Google denies the 15 implication that a trademark owner has "exclusive control" over the use of a word. 16 30. Google admits the first two sentences of Paragraph 30. Google denies the

17 remaining allegations of Paragraph 30. 18 19 31. 32. Google denies the allegations of Paragraph 31. Google admits the first sentence of Paragraph 32. Google denies the remaining

20 allegations of Paragraph 32. 21 33. Google admits that the sites listed in the organic search results are ranked in order

22 of what Google deems to be most relevant based on its algorithm, but denies the remaining 23 allegations of Paragraph 33. 24 25 34. 35. Google denies the allegations of Paragraph 34. Google lacks knowledge or information sufficient to form a belief as to the truth or

26 falsity of the allegations of Paragraph 35, and therefore denies the same. 27 36. Google lacks knowledge or information sufficient to form a belief as to the truth or

28 falsity of the allegations in the first three sentences of Paragraph 36, and therefore denies the same.
Case No. :09-cv-03065-MCE-KJM -4DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1 Google admits that it has never licensed or otherwise received a grant of any rights in Plaintiff's 2 marks, but Google denies the implication that it needs Plaintiff's permission, authority, or license 3 in connection with the operation of the AdWords Program or Google's organic search listings. 4 Google denies the remaining allegations of Paragraph 36. 5 6 37. 38. Google denies the allegations of Paragraph 37. Google denies knowledge or information sufficient to form a belief as to the truth

7 of the allegations of the first sentence of Paragraph 38 and on that basis denies the same. Google 8 denies the remaining allegations of Paragraph 38. 9 39. Google lacks knowledge or information sufficient to form a belief as to the truth or

10 falsity of the allegations of Paragraph 39, and therefore denies the same. 11 40. Google admits that its AdWords program offers advertising that is advantageous to

12 the consumer. Google denies the remaining allegations of Paragraph 40. 13 14 15 16 17 18 19 20 41. 42. 43. 44. 45. 46. 47. 48. Google denies the allegations of Paragraph 41. Google denies the allegations of Paragraph 42. Google denies the allegations of Paragraph 43. Google denies the allegations of Paragraph 44. Google denies the allegations of Paragraph 45. Google denies the allegations of Paragraph 46. Google denies the allegations of Paragraph 47. Google admits that Sponsored Links are conspicuously labeled as such, but denies

21 the remaining allegations of Paragraph 48. 22 23 24 25 26 27 28
Case No. :09-cv-03065-MCE-KJM -5DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

49. 50.

Google denies the allegations of Paragraph 49. Google denies the allegations of Paragraph 50. FIRST CLAIM FOR RELIEF VIOLATION OF THE LANHAM ACT, 15 U.S.C. § 1114(1)

51.

Google incorporates its responses to each and every allegation contained above

with the same force and effect as if fully set forth herein.

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52.

Google lacks knowledge or information sufficient to form a belief as to the truth or

2 falsity of the allegations of Paragraph 52, and therefore denies the same. 3 4 53. 54. Google denies the allegations of Paragraph 53. Paragraph 54 is unintelligible as an allegation as it lacks a verb, and on that ground,

5 Google denies the same. 6 7 55. 56. Google denies the allegations of Paragraph 55. Google lacks knowledge or information sufficient to form a belief as to the truth or

8 falsity of the allegations of Paragraph 56, and therefore denies the same. 9 10 11 12 57. 58. 59. 60. Google denies the allegations of Paragraph 57. Google denies the allegations of Paragraph 58. Google denies the allegations of Paragraph 59. Google lacks knowledge or information sufficient to form a belief as to the truth or

13 falsity of the allegations of Paragraph 60, and therefore denies the same. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. Google denies the allegations of Paragraph 61. Google denies the allegations of Paragraph 62. Google denies the allegations of Paragraph 63. Google denies the allegations of Paragraph 64. Google denies the allegations of Paragraph 65. Google denies the allegations of Paragraph 66. Google denies the allegations of Paragraph 67. Google denies the allegations of Paragraph 68. Google denies the allegations of Paragraph 69. Google denies the allegations of Paragraph 70. SECOND CLAIM FOR RELIEF FALSE DESIGNATION OF ORIGIN ­ 15 U.S.C. § 1125(a) 71-76. Because this claim has been dismissed pursuant to the Court's order dated February 26, 2010, Google does not respond to the allegations of Paragraphs 71-76. To the extent a response is required, Google denies the allegations of these paragraphs.

Case No. :09-cv-03065-MCE-KJM -6DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 88. 77.

THIRD CLAIM FOR RELIEF DILUTION OF PLAINTIFF'S TRADEMARK ­ 15 U.S.C. § 1125(c) Google incorporates its responses to each and every allegation contained above

with the same force and effect as if fully set forth herein. 78. Google lacks knowledge or information sufficient to form a belief as to the truth or

falsity of the allegations of Paragraph 78, and therefore denies the same. 79. 80. 81. 82. 83. 84. 85. 86. 87. Google denies the allegations of Paragraph 79. Google denies the allegations of Paragraph 80. Google denies the allegations of Paragraph 81. Google denies the allegations of Paragraph 82. Google denies the allegations of Paragraph 83. Google denies the allegations of Paragraph 84. Google denies the allegations of Paragraph 85. Google denies the allegations of Paragraph 86. Google denies the allegations of Paragraph 87. FOURTH CLAIM FOR RELIEF COMMON LAW TRADEMARK VIOLATION Google incorporates its responses to each and every allegation contained above

18 with the same force and effect as if fully set forth herein. 19 20 21 22 23 24 25 26 89. 90. 91. 92. 93. Google denies the allegations of Paragraph 89. Google denies the allegations of Paragraph 90. Google denies the allegations of Paragraph 91. Google denies the allegations of Paragraph 92. Google denies the allegations of Paragraph 93.

FIFTH CLAIM FOR RELIEF NEGLIGENT INTERFERENCE WITH CONTRACTUAL RELATIONS AND PROSPECTIVE ECONOMIC ADVANTAGE 94-107. Because this claim has been dismissed pursuant to the Court's order dated

27 February 26, 2010, Google does not respond to the allegations of Paragraphs 94-107. To the 28 extent a response is required, Google denies the allegations of these paragraphs.
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SIXTH CLAIM FOR RELIEF INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS AND PROSPECTIVE ECONOMIC ADVANTAGE 108-116. Because this claim has been dismissed pursuant to the Court's order dated

4 February 26, 2010, Google does not respond to the allegations of Paragraphs 108-116. To the 5 extent a response is required, Google denies the allegations of these paragraphs. 6 7 8 9 10 11 12 117-121. SEVENTH CLAIM FOR RELIEF FRAUD AND DECEIT Because this claim has been dismissed pursuant to the Court's order dated

February 26, 2010, Google does not respond to the allegations of Paragraphs 117-121. To the extent a response is required, Google denies the allegations of these paragraphs. EIGHTH CLAIM FOR RELIEF CALIFORNIA UNFAIR COMPETITION AND BUSINESS PRACTICES 122. Google incorporates its responses to each and every allegation contained above

13 with the same force and effect as if fully set forth herein. 14 15 16 17 18 123. 124. 125. 126. 127. Google denies the allegations of Paragraph 123. Google denies the allegations of Paragraph 124. Google denies the allegations of Paragraph 125. Google denies the allegations of Paragraph 126. Google admits that it did not obtain authorization or consent from Plaintiff to use

19 Plaintiff's marks, but Google denies the implication that it needs Plaintiff's authorization or 20 consent. Google denies the remaining allegations of Paragraph 127. 21 22 23 24 25 26 27 28
Case No. :09-cv-03065-MCE-KJM -8DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

128. 129.

Google denies the allegations of Paragraph 128. Google denies the allegations of Paragraph 129. NINTH CLAIM FOR RELIEF UNJUST ENRICHMENT

130-132.

Because this claim has been dismissed pursuant to the Court's order dated

February 26, 2010, Google does not respond to the allegations of Paragraphs 130-132. To the extent a response is required, Google denies the allegations of these paragraphs.

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FURTHER ANSWER AND AFFIRMATIVE DEFENSES By way of further Answer and as affirmative defenses, Google denies that it is liable to

3 Plaintiff on any of the claims alleged and denies that Plaintiff is entitled to damages, treble or 4 punitive damages, equitable relief, attorneys' fees, costs, pre-judgment interest, or to any relief 5 whatsoever, and states as follows: 6 7 8 133. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) The Complaint, on one or more counts set forth therein, fails to state a claim upon

9 which relief can be granted. 10 11 12 134. SECOND AFFIRMATIVE DEFENSE (Fair Use) The claims made in the Complaint are barred, in whole or in part, by the doctrines

13 of fair use, nominative fair use, and/or descriptive use. 14 15 16 135. THIRD AFFIRMATIVE DEFENSE (First Sale Doctrine) The claims made in the Complaint are barred, in whole or in part, by the first sale

17 doctrine. 18 19 20 136. FOURTH AFFIRMATIVE DEFENSE (Functionality) The claims made in the Complaint are barred, in whole or in part, on the basis that

21 the mark and any use of the mark at issue are functional. 22 23 24 137. FIFTH AFFIRMATIVE DEFENSE (Innocent Infringement) The claims made in the Complaint are barred, in whole or in part, because any

25 infringement, if any, was innocent. 26 27 28
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1 2 3 138.

SIXTH AFFIRMATIVE DEFENSE (Statutes of Limitations) The claims made in the Complaint are barred, in whole or in part, by applicable

4 statutes of limitations. 5 6 7 139. SEVENTH AFFIRMATIVE DEFENSE (Laches) Plaintiff's claims are barred by laches, in that Plaintiff has unreasonably delayed

8 efforts to enforce its rights, if any, despite its full awareness of Google's actions. 9 10 11 140. EIGHTH AFFIRMATIVE DEFENSE (Generic Terms) The claims made in the Complaint are barred, in whole or in part, on the basis that

12 the mark at issue is generic. 13 14 15 141. NINTH AFFIRMATIVE DEFENSE (Lack of Secondary Meaning) The claims made in the Complaint are barred, in whole or in part, on the basis that

16 the mark at issue lacks secondary meaning. 17 18 19 142. TENTH AFFIRMATIVE DEFENSE (Waiver, Acquiescence, and Estoppel) Each of the purported claims set forth in this Complaint is barred by the doctrines

20 of waiver, acquiescence, and estoppel. 21 22 23 24 25 26 144. 143. ELEVENTH AFFIRMATIVE DEFENSE (Non-Infringement) Defendant has not infringed any applicable trademarks under federal or state law. TWELFTH AFFIRMATIVE DEFENSE (No Causation) Plaintiff's claims against Google are barred because Plaintiff's damages, if any,

27 were not caused by Google. 28
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1 2 3 145.

THIRTEENTH AFFIRMATIVE DEFENSE (No Damage) Without admitting that the Complaint states a claim, there has been no damage in

4 any amount, manner or at all by reason of any act alleged against Defendant in the Complaint, and 5 the relief prayed for in the Complaint therefore cannot be granted. 6 7 8 9 10 11 147. 146. FOURTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) Plaintiff's claims are barred by the doctrine of unclean hands. FIFTEENTH AFFIRMATIVE DEFENSE (Lack of Irreparable Harm) Plaintiff's claims for injunctive relief are barred because Plaintiff cannot show that

12 it will suffer any irreparable harm from Google's actions. 13 14 15 148. SIXTEENTH AFFIRMATIVE DEFENSE (Adequacy of Remedy at Law) The alleged injury or damage suffered by Plaintiff, if any, would be adequately

16 compensated by damages. Accordingly, Plaintiff has a complete and adequate remedy at law and 17 is not entitled to seek equitable relief. 18 19 20 149. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) The claims made in the Complaint are barred, in whole or in part, because of a

21 failure to mitigate damages, if such damages exist. 22 23 24 150. EIGHTEENTH AFFIRMATIVE DEFENSE (First Amendment) The claims made in the Complaint are barred, in whole or in part, by the First

25 Amendment to the Constitution of the United States. 26 27 28
Case No. :09-cv-03065-MCE-KJM -11DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1 2 3 151.

NINETEENTH AFFIRMATIVE DEFENSE (Duplicative Claims) Without admitting that the Complaint states a claim, any remedies are limited to the

4 extent that there is sought an overlapping or duplicative recovery pursuant to the various claims 5 against Google or others for any alleged single wrong. 6 7 8 152. TWENTIETH AFFIRMATIVE DEFENSE (Fraud) The claims made in the Complaint are barred, in whole or in part, by fraud on the

9 United States Patent & Trademark Office. 10 11 12 153. TWENTY-FIRST AFFIRMATIVE DEFENSE (Third-Party Use) The claims made in the Complaint are barred, in whole or in part, by reason of

13 other parties' use of any marks at issue. 14 15 16 154. TWENTY-SECOND AFFIRMATIVE DEFENSE (Actions of Others) The claims made in the Complaint are barred, in whole or in part, because Google

17 is not liable for the acts of others over whom it has no control. 18 19 20 155. TWENTY-THIRD AFFIRMATIVE DEFENSE (No Punitive Damages) Google alleges that no punitive or exemplary damages should be awarded arising

21 out of the claims made in the Complaint under the law of the United States and California 22 because: (i) an award of punitive or exemplary damages would be unconstitutional under the 23 United States and California Constitutions; specifically, the First Amendment to the United States 24 Constitution and Article I, Section 2 of the California Constitution; (ii) any recovery of punitive or 25 exemplary damages arising out of the claims made in the Complaint would constitute the 26 imposition of a criminal fine or penalty without the substantive or procedural safeguards 27 guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by 28 Article I, Section 7 of the California Constitution; (iii) the imposition of any punitive or exemplary
Case No. :09-cv-03065-MCE-KJM -12DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

1 damages in this lawsuit would constitute an excessive fine or penalty under Article I, Section 17 of 2 the California Constitution; (iv) any such award is precluded or limited pursuant to Section 3294 3 of the California Civil Code or the United States Constitution and the due process clause; and (v) 4 punitive damages would violate the United States and California Constitutions and common law 5 because such an award is based from procedures that are vague, open-ended, unbound in 6 discretion, arbitrary and without sufficient constraints or protection against arbitrary and excessive 7 awards. 8 9 156. ADDITIONAL DEFENSES Google reserves the right to assert additional defenses based on information learned

10 or obtained during discovery. 11 12 13 14 WHEREFORE, Google prays for judgment as follows: 1. That Jurin takes nothing by way of its Complaint; 2. That the Complaint, and each and every purported claim for relief therein, be dismissed with prejudice.

3. That Google be awarded its costs of suit incurred herein, including 15 attorneys' fees and expenses; and 16 17 18 19 DATED: March 15, 2010 20 21 22 23 24 25 26 27 28
Case No. :09-cv-03065-MCE-KJM -13DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

4. For such other and further relief as the Court deems just and proper.

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By: /s/ Margret M. Caruso Attorney for Google Inc.

1 2 3 4 DATED: March 15, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DEMAND FOR JURY TRIAL Google hereby demands a jury trial on all issues.

QUINN EMANUEL URQUHART & SULLIVAN, LLP

By: /s/ Margret M. Caruso Attorney for Google Inc.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 15, 2010, I will electronically file the foregoing with

3 the Clerk of Court using the CM/ECF system, which will then send a notification of such filing 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case No. :09-cv-03065-MCE-KJM -15DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND AFFIRMATIVE DEFENSES

(NEF) to the following: Paul R. Bartleson Law Offices of Paul R. Bartleson 1007 7th Street, Suite 214 Sacramento, CA 95814 Telephone: [phone] Facsimile: [phone] [e-mail] Counsel for Plaintiff Daniel Jurin. By /s/ Margret M. Caruso Attorney for Google Inc.