Williams-Sonoma, Inc. v. Friendfinder, Inc. et al

Filing 1

COMPLAINT against Virtual World Holdings AVV, Moniker Privacy Services, Inc., Ales Lexico, John Salmond, Ford Jeske, Andrej Korchev, Vladimir Techl, Dorothy Simpson, Friendfinder, Inc., Online Marketing Services, Ltd., Unimaster, Ltd., Yetiscash, Domain Name Systems, Inc. ( Filing fee $ 350, receipt number 3391508.). Filed byWilliams-Sonoma, Inc.. (hdj, COURT STAFF) (Filed on 10/20/2006) Additional attachment(s) added on 10/25/2006 (hdj, COURT STAFF).

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1 . TOWNSEND AN TOWNSEND AN CREW LLP

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GREGORY S. GILCHRST (State Bar No. 111536)

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2 TIMOTHY R. CAR (State Bar No. 162136)

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5 Attorneys for Plaintiff
WILLIAS-SONOMA, INC.
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7
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California

WILLIAS-SONOMA, INC., a

COMPLAINT FOR FEDERA

((i2
15

TRAEMAR INFRINGEMENT,
TRAEMAR DILUTION, UNFAIR

Plaintiff,

h ~13

~14

Case No.

corporation,

COMPETITION AND
ACCOUNTING/CONSTRUCTIVE
TRUST; AND CALIFORNA
UNFAIR COMPETITION.

v.

FRIENDFINER, INC., a corporation,

ONLIN MARTING SERVICES, LTD., a

corporation, UNIMASTER, LTD., a
16 corporation, YETIS
CASH, a corporation,
DOMAIN NAME SYSTEMS, INC., a
17 corporation, VIRTUAL WORLD HOLDINGS
A VV, a corporation, MONIKR PRI ACY
18 SERVICES, INC., a corporation, ALES
LEXICO, JOHN SALMOND, FORD JESKE,
19 ANREJ KORCHEV, VLADIMIR TECHL,
DOROTHY SIMSON, and DOES 1
20 THROUGH 20,

DEMAND FOR JURY TRIAL

Defendants.

21

22
23

PlaIntiffWILLIAS-SONOMA, INC. (nwsin), a Californa corporation, alleges as follows:

24

INTRODUCTION

25
1. The purose of

ths lawsuit is to seek damages and injunctive relief

to stop Defendants

26
from their practice of

using and infrnging WSI's famous POTTERY BARtI family of

trademarks to

27

identify their explicit and graphic pornographic adult web sites. Defendants have used WSI's marks or
28
- 1 -

COMPLAIT

Williams-Sonoma. Inc. v. FriehdFinder. Inc.. et at
Case No.

1 derivatives ofthem to divert internet traffic to their web sites, promote the sites, and add to their
2 credibility at WSI's expense. Defendants' unauthorized use ofWSI's trademarks to attract consumers

3 to Defendants' pruent web sites that feature nude women and men engaged in sexual acts causes
4 incalculable har to WSI and its marks. Unless defendants are prevented from any further

5 misappropriation of WSI's reputation and goodwil, WSI wil suffer ongoing and irreparable har.

6 THE PARTIES
7

2.

WSI is a premier.

home furnishings, including furnture, appliances

specialty retailer of

8 and accessories for kitchens, bedrooms and bathrooms, teenage, children's and baby's rooms,

home furnishings, bedding, linens and accessories; under WSI's POTTERY

9 including a full range of

10 BARtI, potterybam kidstI and PBteentI marks. WSI sells nationwide through retail stores,
11 catalogs and the internet, including POTTERY BARtI and pottery barn kidstI stores, and catalog
12 and internet sites under the POTTERY BARtI, pottery barn kidstI and PBteentI trademarks. The

13 POTTERY BARtI, pottery barn kidstI and PBteentI trademarks are among the most well known
14 and respected brands in the home furnshings business. These trademarks enjoy enormous goodwil

15 and fame among consumers. WSI is headquarered in San Francisco, California.
16

3.

17

The Defendants include as follows:
a.

WSI is informed and believes that defendant Online Marketing Services Ltd. is

18 a corporation and maintains a business location in the United Kingdom. Online Marketing Services
19 owns, operates and hosts graphic sex-oriented, pornographic web sites, including
20 -Oww.onlinemarketingservices.bivandavaretyofwebsiteswiththeextension-ofithserver.com:? .

21 (such as -oplatinumporn.filthserver.com:?). Online Marketing Servces regularly conducts business in

22 this judicial distrct, including the infrnging activities at issue in this Complaint. Online Marketing
23 Services is directly and indirectly responsible for the wrongful conduct alleged herein and, on

24 information and belief, has conspired with the other defendants to engage in such wrongful conduct.
25

b.

WSI is informed and believes that defendant Unimaster Ltd. is a corporation

26 and maintains a business location in Kharkov, Ukaine. Unimaster Ltd. owns and operates graphic

web sites with the extension -:ust-a-

27 sex-oriented, pornographic web sites, including a varety of

28 porn.com:? (such as -Opornsites.just-a-porn.com:? and -Obestsex.just-a-porn.com:?), and -Oww.porn-2COMPLAINT

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1 host.org:? Unimaster Ltd. regularly conducts business in this judicial distrct, including the infrnging
2 activities

at issue in this Complaint. Unimaster Ltd. is directly and indirectly responsible for the

3 wrongful conduct alleged herein and, on information and belief, has conspired with the other
4 defendants to engage in such wrongful conduct.

5

c.

Defendant Andrej Korchev is an individual who, on information and belief,

6 resides in Kharkov, Ukaine. Korchev is the owner, operator, and/or managing agent ofUnimaster

7 Ltd. and regularly conducts business in this judicial distrct, including the infrnging activities at issue
8 in this Complaint. Korchev is directly and indirectly responsible for the wrongful conduct alleged .
9 herein and, on information and belief, has conspired with the other defendants to engage in such

10 wrongful conduct.
d.

11

WSI is informed and believes that defendant YetisCash is a corporation with a

12 business address located in the Czech Republic. YetisCash owns and operates graphic sex-oriented,
13 pornographic web sites, including a variety of

web sites with the extension -Osexcountry.net:?

14 Y etisCash regularly conducts business in this judicial distrct, including the infrging activities at
15 issue in this Complaint. YetisCash is directly and indirectly responsible for the wrongful conduct
16 alleged herein and, on information and belief, has conspired with the other defendants to engage in
17 such wrongful conduct.

18

e.

Defendant Ales Lexico is an individual who, on information and belief, resides

19 in the Czech Republic. Lexico is the owner, operator, and/or managig agent of

Yetis

Cash and

20 regularly conducts business in this judicial distrct, including the infrnging aCtivities at issue in this

conduct alleged herein and,

21 Complait. Lexico is directly and indirectly responsible for the wrongful

22 on information and belief, has conspired with the other defendants to engage in such wrongful
23 conduct.

24

f.

Defendant Vladimir Techl is an individual who, on information and belief,

25 resides in the Czech Republic. Techl is the owner, operator, and/or managing agent of

Yetis

Cash and,

26 through_ that company, regularly conducts business in this judicial distrct, including the infringing

27 activities at issue in ths Complaint. Techl is directly and indirectly responsible for the wrongful
28 conduct alleged herein and, on inormation and belief, has conspired with the other defendants to
-3-

COMPLAIN

Wiliam-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

.,;';..

1 engage in such wrongful conduct.

2

g.

WSI is informed and believes that defendant Domain Name Systems, Inc. is a

3 corporation with a business address at 1811 Englewood Road, Englewood, Florida. Domain Name
web

4 Systems owns and operates graphic sex-oriented, pornographic web sites, including a varety of

5 sites with the extension -odirtyteen.com:? Domain Name Systems regularly conducts business in this

6 judicial district, including the infrnging activities at issue in this Complaint. Domain Name Systems
7 is directly and indirectly responsible for the wrongful conduct alleged herein and, on information and

8 belief, has conspired with the other defendants to engage in such wrongful conduct.

h.

9

WSI is informed and believes that defendant Ford Jeske is an individual who

10 resides in or near Englewood, Florida, and owns and/or operates defendant Domain Name Systems,
web

11 Inc. Jeske owns and operates graphic sex-oriented, pornographic web sites, including a variety of

12 sites with the extension -odirtyteen.com:? Jeske regularly conducts business in this judicial district,

13 including the infrnging activities at issue in this Complaint. Jeske is directly and indirectly
conspired with

14 responsible for the wrongful conduct alleged herein and, on information and belief, has

15 the other defendants to engage in such wrongful conduct.
16

1.

WSI is informed and believes that defendant John Salmond

is an individual

17 who resides in Arlington, Kansas. Salmond owns and operates graphic sex-oriented, pornographic
18 web sites, including -Oww.wacas.org:? Salmond regularly conducts business in this judicial district,

19 including the infrnging activities at issue in this Complaint. Salmond is directly and indiectly
20 responsible for the wrongful conduct alleged herein and, on information and belief, has conspired with

21 the other defendants to engage in such wrongful conduct.

22

J.

23 corporation with a business

WSI is informed and believes that defendant Virtal World Holdings A VV is a
address in Willemstad, Curacao. Virtal Wodd Holdings A VV owns and

web sites with the

24 operates graphic sex-oriented,pornographic web sites, including a variety of

25 extension -orealitypassplus.com:? Virtal World Holdings A VV regularly conducts business in this

26 judicial distrct, including the infrnging activities at issue in ths Complaint. Virtual World Holdings
and

27 is directly and indirectly responsible for the wrongfulconduct alleged herein and, on information

28 belief, has conspired with the other defendants to engage in such wrongful conduct.

- 4COMPLAIT

Willam-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

k.

1

Defendant FriendFinder, Inc. (ItFFI"), is a corporation in this judicial district

2 with a business located at 445 Sherman Avenue, Palo Alto, California. FFI owns and operates web
3 sites offering sexually-explicit adult personal advertisements including the site

4 -Oww.adultfrendfinder.com:? FFI regularly conducts business in this judicial district, including the
5 wrongful activities at issue in this Complaint. FFI is directly and indirectly responsible for the
6 wrongful conduct alleged herein and, on information and belief, has conspired with the other
7 defendants to engage in such wrongful conduct.

8

1.

FFI describes its web site as the "Wodd's largest sex personals and swingers

9 site,"and the site contains many milions of sexually-explicit personal ads. It is one ofthe more

10 highly-trafficked web sites on the worldwide web. According to one published report, FFI has more
11 than 89 millon users.
m.

12

FFI engineers such a high volume of consumer traffc in par through an

13 "affliate parer" program with other adult-oriented web sites, including, on information and belief,

14 the sites operated by the other defendants. FFI pays out over $500,000 each month to its affiiate
15 partner sites to place baner ads on the affliate sites and to direct consumer traffic to FriendFinder,
16 Inc.'s web sites. FriendFinder, Inc. pays some of

its affliate parers more than $30,000 each per

17 month. In addition to click-through consumer traffc from FFI advertising links on the other
18 defendants' sites, FFI also directly and indirectly uses Plaintiffs trademarks via web links that use
19 WSI's trademarks to generate high placement in internet search results and divert customers directly to

20 FFI's sites.
21

n.

WSI is informed and believes that defendant Moniker Privacy Services, Inc. is a

22 corporation with a business address located in Pompano Beach, Florida. Moniker Privacy Services,
23 Inc., owns

and operates graphic sex-oriented, pornographic web sites, including a varety of

web sites

24 with the extension -osapphicerotica.com:? Moniker Privacy Servces, Inc., regularly conducts
25 business in this judicial distrct, including the infrnging activities at issue in ths Complaint. It is
26 directly and indirectly responsible for the wrongful

conduct alleged herein and, on information and

27 belief, has conspired with the other defendants to engage in such wrongful conduct.
28

o.

COMPLAI

WSI is informed and believes that defendant Dorothy Simpson is an individual
-5Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1 residing in either Marland or Virgina. She owns and operates graphic sex-oriented, pornographic

web sites with the extension .:lesblife..nfo:? Simpson regularly

2 web sites, including a varety of

3 conducts business in this judicial district, including the infging activities at issue in this Complaint.
4 She is directly and indirectly responsible for the wrongful conduct alleged herein and, on information
5 and belief, has conspired with the other Defendants to engage in such wrongful conduct.

6

- p.

WSI is informed and believes that defendant John Salmond is an individual

7 who resides in Arlington, Kansas. Salmond owns and operates graphic sex-oriented, pornographic

8 web sites, including ':ww.wacas.org:? Salmond regularly conducts business in this judicial district,
9 including the infrnging activities at issue in this Complait. Salmond is directly and indirectly
10 responsible for the wrongful conduct alleged herein and, on information and belief, has conspired with
11 the other defendants to engage in such wrongful conduct.
12

q.

that Defendants Does 1 through 20 have

WSI alleges on information and belief

13 engaged in the wrongful conduct described herein in concert with the other Defendants and are jointly

14 and severally liable for Defendants' conduct. WSI is uninformed concerning the tre identities of
15 Does 1 through 20 and, once they become known, wil seek to substitute them as defendants.
16
17 porn.

r.

The web sites with addresses containing extensions .:filthserver.com:?, .gust-a-

com:?, ':sexcountr.net:?, .:dirtyteen.com:?, .:realitypassplus.com:?, ':wacas.org:?, ':porn-

18 host.org:?, .:onlinemarketingservices.biz:?, ':adultfrendfinder .com:?, .:lesblife..nfo:?,
i 9 ':sapphicerotica.com:?, as well as other web sites that may be identified in the course of further

20 investigation and discovery, are referred to collectively in this Complaint as "Infrnging Portals"

21 and/or "Infrnging Sites."

22 JURISDICTION AND VENUE
23

4.

Plaintiffs first, second and third claims arse under the Lanam Act, for which

24 jursdiction is conferred under 28 U.S.C. § 1338(a) and (b), 28 U.S.C. § 1331 and 15 U.S.C. § 1121.

25 The Cour has supplemental jurisdiction over all other claims under U.S.C. § 1367.
26

5.

Venue is proper in this Court under 28 U.S.c. §§ 1391(a) and (b) because the

27 defendants transact business in ths Judicial District or are headquarered here, they solicit
using WSI's marks and

28 subscriptions to their adult services in ths Judicial Distrct in the course of

- 6COMPLAIT

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aI.
Case No.

1 because a substantial par of the events giving rise to WSI's claims arose here.
2

6.

Intradistrct assignent to any division is proper under Local Rule 3-5(b) and 3-2(c)

3 because a substantial part of the alleged events, occurred in one or more of the counties listed in Local
4 Rule 3-2(d).

WSI'S TRAEMARS

5

6

7.

The

Pottery Bar business began in 1949 with a single retail store in Manattan. The

7 business grew steadily, additional stores were opened and the business and the related trademarks
8 were acquired by WSI in 1986. After that time, the business experienced signficant growth and it

9 now includes nearly 200 retail stores nationwide, plus a vibrant catalog and internet business under the

10 POTTERY BARtI brand. Many additional stores as well as catalogs and a large on-line business
11 are operated under the pottery bar kidstI (since 1999) and PBteentI (since 2002) brands. WSI (or its

interest) has used the POTTERY BARtI, pottery bar kidstI, PBteentI trademarks in

12 predecessor-in

13 commerce continuously since each brands' inception.
14

8.

WSI owns federal trademark registrations pertaining to each of these brands. Examples

15 include as follows:
16

a.

THE POTTERY BAR, registration number 655819 (filed 8/02/1956,

17 registered 12/17/1957);
18

19

b.
registered 1/08/1974);

20
21

c.

d.

e.

POTTERY BAR, registration number 2021077 (filed 2/12/1996, registered

f.

POTTERY BAR KIS, registration number 2383910 (filed 7/16/1998,

12/03/1996);

26
27

THE POTTERY BAR, registration number 959383 (filed 5/12/1972,

registered 5/22/1973);

24
25

THE POTTERY BAR, registration number 976344 (filed 1/05/1973,

registered 1/08/1974);

22
23

THE POTTERY BAR, registration number 976194 (filed 1/05/1973,

registered 9/0512000);

28

g.

PBteen, registration number 2972766 (filed 8/1212002, registered 7/1912005);
-7-

COMPLAIT

Wilia-Sonoma. Inc. v. FriendFinder. Inc.. et aI.
Case No.

1

and

2
3

4

(filed 7/16/1998, registered

h. P.B.KIS, registration number 3076971

5/13/2003).
9.

The sales volume, catalog recipients and web site visits under WSI's "Pottery Bar"

5 divisions are proprietary figues. It is permissible to state publicly, however, that over the last several
6 years, billions of dollars of

products have been sold by WSI's "Pottery Bar" divisions.

7 DEFENDANTS' MISAPPROPRIATION OF WSI'S TRAEMARS.
8

10.

Begiing at a time unown, Defendants -- separately and in concert -- began using

9 WSI's trademarks to promote, identify, and divert customer traffic to the Infrnging Portals and

10 Infrnging Sites. In general, one or more of the Defendants will host a web page that consists entirely
11 of

portals

baner advertisements for varous web sites. Through a variety oftechniques, these web

12 ("Infrnging Portals") are identified in response to consumer searches on well known search engines

13 such as google.com and yahoo.com. Among the search terms that will generate links to the Infrnging

14 Portals and Sites are "potterybarnteens," "potterybarteen," "pottery-bar-teens" and "pottery-bar15 teen." WSI is informed and believes

that other as-yet-undentified derivations of

its marks also wil

16 produce links to the Infrnging Portals and Infrnging Sites.
17

11.

Defendants generate the links in response to consumer searches in a varety of

ways,

18 including as follows:
19

a.

Using the WSI trademark on the Infrnging Portals and/or Infrnging Sites. For

20 example, one Infrngig Portal and Infrnging Site is captioned "POTTERYBAREENS;

21 potterybarteens offcial website!"
22

b.

Embedding the term, e.g. "potteryarnteen" in source code or metadata that is

23 used to generate search priority.
24

c.

Using the term, e.g. "potterybarteens," as a domain extension.

25

d.

Repeatedly using the term, e.g. "potterybarteen," as an element of a graphic,

26 sexually explicit narative that is interspersed with links to Infrnging Portals Sites such as ". . . who

27 then removed her top revealing her braless breasts to her potierybarnteen."
28

e.

Conspiring, on information and belief, with operators of the Infrnging Portal
- 8 -

COMPLAIT

Willams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1 Sites to use WSI's in varous ways to drive customer traffc to Infrnging Sites.

2

f.

Using other, as yet undentified means to generate search priority using WSI's

3 marks.

4

12.

As used in this Complaint, Infrnging Portals and Infrnging Sites are not mutually

5 exclusive as many Infrging Sites appear to offer little more than links to other adult web sites and,
6 therefore, primarly serve as Infrnging Portals.

7

13.

Each Defendant's Infrnging Portal or Infrnging Site may be reached directly by

8 clicking on search results from google.com or yahoo.com that were identified in response to search
9 terms that incorporate the term "pottery bar teen."

10

14.

All of

the Infrnging Portals and Infrnging Sites contain egregiously graphic, sex-

11 oriented images and language that are extremely offensive to many. Indeed, the images and language
these sites not be identified in a

12 are so debased that discretion compels that the specific content of

13 public complaint. Reviewing the content Qf the offending sites themselves -- such as the content of
14 -(pornsites.just -a-porn.com/potterbarnteens.html:?, -(ww.sexcountry.net:? ,

15 -(platinumporn.ffthserver.com:?, -(dirtyteen.com:?, -(ww.realitypassplus.com:? and
by using WSI's

16 -(adultfrendfinder.com:? -- shows their extremely debased content. Defendants,

17 trademarks in connection with these web sites, are seeking to debase ard pervert the wholesome image
18 of the "Pottery Barn" family of marks for Defendants' salacious puroses.
19

15.

WSI is informed and believes that Defendants are using WSI's trademarks deliberately
sites and baner advertisements and to

20 and intentionally in order to drve consumers to their web

21 capture and trade upon the goodwil and reputation ofWSI and its famous "Pottery Bar" brands.
22 WSI is informed and believes that each Defendant knows that Infrnging Portals displaying baner ads
23 for and links to their Innging Sites are misappropriating WSI's trademarks (and other well known

24 trademarks) to attact consumer traffc.
25

16.

26 websites using

Not surprisingly, consumers have complained to WSI that, when searching for WSI's
common search terms incorporating WSI's marks, they have been directed to

27 - Defendants' offensive porn sites.

28

- 9COMPLAINT

Wiliams-Sonoma. Inc. v. FriendFinder. me.. et al.
Case No.

FIRST CLAIM

1

(Trademark Infringement - Lanham Act)

2

paragraphs 1 - 16 as if each were fully set forth

17.

WSI incorporates the allegations of

18.

WSI's trademarks are strong, inherently distinctive and arbitrar.

3

here.
4
5

trademarks has become

19. Though extensive use, WSI's Pottery BamtI family of

6

secondarly associated by consumers with WSI and its brands.

7

them are likely to create

20. Defendants' illicit use ofWSI's trademarks and derivatives of

8

consumer confusion and constitutes trademark infrngement under theF ederal Lanham Act, 15 U.S.C.

9

§§ 1114 and 1125(a).

10
11

12

21. Defendants adopted WSI's trademarks wilfully and in bad faith in order to appropriate

WSI's goodwilL. WSI is entitled to compensatory damages in the form of actual damages, Defendants'

profits resulting from the infrnging acts, treble damages, and an award of attorneys' fees under 15

13

U.S.C. §§ 1117(a) and (b).
14
15

16
17

22. The specific acts of trademark infrngement identified above, as well as Defendants'

entire course of conduct, have caused and are causing WSI great and incalculable damage.

Defendants threaten to continue infrnging WSI's trademarks and, unless this Court restrains them,

WSI will suffer irreparable injur for which it has no adequate remedy of law.

18

SECOND CLAIM
FEDERA UNFAIR COMPETITION
(False Designation of Origin and False Description)

19

20

(15 U.S.C. § 1125; Lanham Act § 43(a))
21

22
23

24
25

23.

WSI realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 22 of ths Complaint.
24.

Defendants' use of "potterybarteens" or similar varants

tends falsely to describe its

infrnging services, within the meanng of 15 U.S.c. § 1125(a)(I). Defendants' conduct is likely to

26

cause confusion, mistake, or deception by or in the public as to the affiliation, connection, association,

27

origin, sponsorship or approval ofthe infrnging services to the detrment ofWSI and in violation of

28

15 U.S.C. § 1125(a)(I).

- 10COMPLAINT

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

25.

1

2

Defendants' infrnging activities, WSI has suffered

As a direct and proximate result of

substantial damage.

THIRD CLAIM

3

FEDERA DILUTION OF FAMOUS MA

4

(Federal Trademark Dilution Act of 1995)
(15 U.S.C. § 1125(c); Lanham Act § 43(c))

5

WSI realleges and incorporates by reference each of the allegations contained in

26.

6

this Complaint.

7 paragraphs 1 through 25 of

27.

8

trademarks is distinctive and famous within the

WSI's "Pottery Bar" family of

the Federal Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c), as amended by the

9 meaning of

10 "Trademark Dilution Revision Act of 2006 (H.R. 683), and has been famous since before Defendants'
11 use began.

12

28.

the distinctive quality of

Defendants' activities as alleged herein constitute dilution of

13 WSI's trademarks and tarishment of the reputation of WSI's "Pottery Bar" marks, in violation of the

14 Federal Trademark Dilution Act of 1995, 15 U.S.c. § 1125(c), as amended.
15

29.

WSI is entitled to injunctive relief

16

30.

Because Defendants willfully intended to trade on WSI's reputation and goodwil or to

pursuant to 15 U.S.c. § 1125(c).

17 cause dilution ofWSI's famous trademarks, WSI is entitled to damages, extraordinary damages, fees

18 and costs pursuant to 15 U.S.c. § 1125(c)(2).
19

FOURTH CLAIM

20

CONTRIBUTORY TRAEMA INFRNGEMENT
21

22

31.

The allegations in this Complaint contained in paragraphs 1 through 30 are

23 incorporated here by reference as if fully set forth.

24

32.

In addition to directly infrnging Plaintiffs trademarks, Defendants also, though their

25 actions in concert, formal affiliation with, substantial support, and inducement of

the Infrnging

26 Portals and Innging Sites, are liable for contrbutory infrngement ofWSI's trademarks under 15
27 U.S.c. §§ 1114 and 1125.

28

33.

the Infrnging Portals' and Sites'

WSI is informed and believes that Defendants know of

- 11 -

COMPLAIT

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1 unauthorized and ilicit use ofPlaintifts marks. Defendants knowingly induce the infrngement of

2 WSI's trademarks by offering advertising and other revenue in order to drive high volumes of

3 customer traffic to the Infrnging Sites.
4

34.

Defend~ts directly benefit from the Infrnging Portals' infrngement ofPlaintifts

5 trademarks because such infrngement directly increases the volume of customer traffic to the
6 Infrnging Sites and results in Defendants' increased business from such customers.

35.

7

Some Defendants, WSI is informed and believes, enter formal wrtten contracts with

8 the Infrnging Sites, establishing them as formal affiliates. These contracts grant Defendants the right
9 to monitor and control unlawful content on the Infrngig Portals and Infrnging Sites, including the

10 right to monitor and control their trademark violations.
36.

11

By providing the Infringing Portals and Sites with money, advertising links, and

12 connections to an extensive network of advertisers on the worldwide web, Defendants substantially

13 support and contrbute to the infrngement ofPlaintifts trademarks.
14

FIFTH CLAIM
EQUITABLE ACCOUNTING/CONSTRUCTIVE TRUST
(15 U.S.C.1117, Common Law)

15

16

37.

17

The allegations of paragraphs 1 through 36 are incorporated by reference as if each

18 were fully set forth here.
19

38.

Defendants wrongfully and intentionally have used WSI's trademarks to create

in the domain names of the Infrnging Portals and Infrnging Sites. One way to

20 economic value

21 measure such economic value is through the high volume of computer user traffic that visits the

22 Infrnging Portals and Infrging Sites.
23

39.

In addition, Defendants' intentional, wrongful conduct has generated substantial sums

24 of money through advertising revenues, customer payments, subscription fees, and other forms of
25 payment, and such payments are directly attrbutable to Defendants' illicit use ofWSI's trademarks
26 and their having traded on the reputation ofWSI's brands. Such assets -- the domain names of

the

27 Infrnging Portals and Sites and the revenues generated for Defendants -- constitute assets which could

28 be used to satisfy an equitable award.

- 12COMPLAINT

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1

40.

Accordingly, under the authority of 15 U.S.c. §1117 and common law, WSI is entitled

2

to an accounting of

3

constrctive trust upon such assets, including imposition of a constructive trust upon the domain

4

names for the Infrnging Portals and Infrnging Sites, including without limitation all do~ain names

5

with the following extensions: .:filthserver.com:?, -:ust-a.,porn.com:?, ':sexcountr.net:?,

6

.:dirtyteen.com:?, .:realitypassplus.com:?, ':wacas.org:?, ':porn-host.org:?,

7

.:onlinemarketingservices.biz:?, .:adultfrendfinder.com:?, .:lesblife.info:?, and .:sapphicerotica.com:?

Defendants' assets attbutable to the infrngement and to imposition of a

8

SIXTH

CLAIM

CALIFORNIA LAW OF UNFAIR COMPETITION

9

(CaL. Bus. & Prof. Code § 17200 et seq.)

10

41. The allegations of paragraphs 1 through 40 are incorporated by reference as if each
11

were fully set forth here.
12
42. Defendants' willful and intentional acts designed to appropriate WSI's prestige and

13

goodwill, including without limitation their misappropriation, tarishment and dilution ofWSI's trade
14

dress, are unlawful, unfair and deceptive in violation of Californa Business & Professions Code
15
§ 17200.

16

unfair competition, they will cause

43. Unless Defendants are restrained from their acts of

17

adequate remedy at law.

WSI great and irreparable injury for which WSI has no

18

RELIEF REQUESTED
19

20

WHEREFORE, WSI prays that this Court grant it relief as follows:
(1) Order that Defendants, their agents, servants, employees, and all persons acting under

21

their permission and authority, preliminarily and permanently be enjoined and restrained from
22

infrnging or diluting, in any maner, WSI's trademarks and from further unfairly competing with or
23

infrnging WSI's rights or otherwse damaging or tarnshig WSI's goodwill or business reputation,
24

and from continuing to perform in any maner whatsoever any of the other acts complained of in this
25

Complaint, including a specific prohibition against any use of terms that incorporate "pottery bar,"
26
pb," or any derivative or. similar term;

27
(2) Order an accoUÌting of

Defendants' profits from their wrongful activity described in

28

- 13COMPLAI

Wiliams-Sonoma. Inc. v. FriendFinder. Inc.. et aL.
Case No.

1 this Complaint;

2

(3)

Order that, during the pendency of this Action, all the domain names associated with

3 the Infrnging Portals and/or Infrnging Sites be seized, sequestered, or frozen and that any sale or
4 transfer of the domain names be prohibited;

5

(4)

Order that WSI recover from Defendants for their trademark infrngement and dilution

6 WSI's actual damages and lost profits in an amount to be proven at trial, that Defendants be required

7 to account for any profits that are attributable to their illegal acts, and that WSI be awarded the greater
8 of either three times Defendants' profits or three times any damages it has sustained, under 15 U.S.c.

9 § 1117, plus prejudgment interest;

10

(5)

Order that Defendants cease all use of any domain name or web site that contains the

11 term "pottery barn" or any derivative or similar term pending full compliance with this injunction and,
12 if

necessary, Order that the third paries with control over the registration of such domain names

13 deposit documents with the Cour to establish the Court's control over the domain names, cancel any

14 domain names whose owners are not in compliance with such injunction, and prohibit reacquisition by

15 such Defendants, or the agents, of any such domain names;
16

(6)

Order that Defendants pay all of WSI's costs of suit, including its reasonable attorneys'

17 fees; and
18

(7)

Award WSI such other and further preliminar and permanent relief as is just and

19 equitable.
20
21

DATED: October 20, 2006

22
23

By:

24

G S. GILCHRST
- TIMOTHY R. CAH
TOWNSEND AN TOWNSEND AN CREW LLP

25

Two Embarcadero Center, Eighth Floor
San Francisco, Californa 94111
Telephone: [phone]
Facsimile: [phone]

26
27

Attorneys for Plaintiff

28

WILLIAS-SONOMA, INC.
- 14COMPLAIT

Williams-Sonoma. Inc. v. FriendFinder. Inc.. et al.
Case No.

1 DEMAND FOR JURY TRIAL
2 Plaintiff

WILLIAS-SONOMA, INC. hereby demands that this action be tred to ajur.

3

4

DATED: October 20,2006

Respe

5

6

By:

G RY. GILCHRST

7

TIMOTHY R. CAH
TOWNSEND AN TOWNSEND AN CREW LLP

8

Two Embarcadero Center, Eighth Floor
San Francisco, Californa 94111
Telephone: [phone]
Facsimile: [phone]

9
10

Attorneys for Plaintiff

WILLIAS-SONOMA, INC.

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- 15 -

COMPLAIN

Wiliam-Sonoma. Inc. v. FriendFinder. Inc.. et al.
Case No.

-

1 CERTIFICATION OF INTERESTED ENTITIES OR PERSONS
2 Pursuant to Civil LR. 3-16, the undersigned certifies that as ofthis date there is no such

3

interest to report.

4
5

DATED: October 20,2006

itted,

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7

By:

ORY S. GILCHRIST

o HY R. CAH

8

TOWNSEND AN TOWNSEND AN CREW LLP ,
9

Two Embarcadero Center, Eighth Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

10
11

Attorneys for Plaintiff

WILLIAS-SONOMA, INC.

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60890694 vI

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- 16COMPLAIT

William-Sonoma. Inc_ v. FriendFinder. Inc.. et aL.
Case No.