Zynga Game Network, Inc. v. Does 1-5

Filing 27

STIPULATED CONSENT JUDGMENT; Signed by Judge Marilyn Hall Patel on 7/20/2010. (awb, COURT STAFF) (Filed on 7/20/2010)

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Christopher T. Varas (Bar No. 257080)
E-Mail: [e-mail]
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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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

STIPULATION REGARDING ENTRY OF

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CASE NO. CV:09-5298 MHP

Plaintiff,
FINAL JUDGMENT UPON CONSENT
v.
GREGORY SZIMONISZ, an individual; and
JARET SZIMONISZ, an individual,
Defendants.

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CASE NO. CV:09-5298 MHP
STIPULATION REGARDING ENTRY OF
FINAL JUDGMENT UPON CONSENT

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PROOF OF SERVICE
Zynga Game Network Inc. v. Gregory Szimonisz, et al.
U.S. District Court, Northern District of California
San Francisco Division
Case No. CV 09-5298 MHP
I, the undersigned, say: I am and was at all times herein mentioned a
resident of the County of Los Angeles, over the age of eighteen (18) years and not a
party to the within action or proceeding. My business address is 9720 Wilshire
Boulevard, Penthouse Suite, Beverly Hills, California 90212, and I am employed in
the office of Keats McFarland & Wilson LLP, by a member of the Bar of this Court,
at whose direction the service mentioned herein below was made.

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I am readily familiar with the normal business practices of my employer
for the collection and processing of correspondence and other materials for mailing
with the United States Postal Service. In the ordinary course of business, any
materials designated for mailing with the United States Postal Service and placed by
me for collection in the office of my employer is deposited that same day with the
United States Postal Service, postage thereon fully prepaid.

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On July 19, 2010, I served a copy of the following document(s) entitled:

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STIPULATION REGARDING ENTRY OF
FINAL JUDGMENT UPON CONSENT

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upon counsel and/or interested parties named below by placing a true and correct copy
thereof in an envelope, addressed as follows, and by the method stated:

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SEE ATTACHED SERVICE LIST

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BY MAIL: I sealed said envelope and, following the ordinary business
practices of my employer, placed said sealed envelope in the office of my employer at
9720 Wilshire Boulevard, Penthouse Suite, Beverly Hills, California, for collection
and mailing with the United States Postal Service on the same date. I am aware that
on motion of the party served, service is presumed invalid if postal meter date is more
than one day after date of deposit for mailing in affidavit.

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I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

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Executed on July 19, 2010, at Beverly Hills, California.

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/s/
Darrell V. Orme Mann

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PROOF OF SERVICE
Zynga Game Network Inc. v. Gregory Szimonisz, et al.
U.S. District Court, Northern District of California
San Francisco Division
Case No. CV 09-5298 MHP

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SERVICE LIST

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BY FIRST CLASS MAIL:
Colbern C. Stuart, III
Lexevia LLP
4139 Via Marina, Suite 1303
Marina Del Rey, CA 90292
Telephone: [phone]
Facsimile: [phone]
E-Mail:
[e-mail]
Attorneys for Defendants Gregory Szimonisz and Jaret Szimonisz

Zynga Game Network, Inc. v. Gregory Szimonisz, et al.
U.S. District Court, Northern District of California
San Francisco Division
Case No. CV 09-5298 MHP

EXHIBIT 1

STIPULATION REGARDING ENTRY OF FINAL JUDGMENT
UPON CONSENT

EXHIBIT 1

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Christopher T. Varas (Bar No. 257080)
E-Mail: [e-mail]
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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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

FINAL JUDGMENT UPON CONSENT

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CASE NO. CV:09-5298 MHP

Plaintiff,
v.
GREGORY SZIMONISZ, an individual; and
JARET SZIMONISZ, an individual,
Defendants.

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Exhibit 1
Page 2
CASE NO. CV:09-5298 MHP
FINAL JUDGMENT UPON CONSENT

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Plaintiff Zynga Game Network Inc. (“Zynga”), having filed a Complaint in this action

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charging defendants Gregory Szimonisz and Jaret Szimonisz (collectively “Defendants”), with

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Federal Trademark Infringement pursuant to 15 U.S.C. § 1125(a) and 15 U.S.C. § 1114(1), Federal

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Computer Fraud and Abuse pursuant to 18 U.S.C. § 1030, California Unauthorized Computer

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Access pursuant to California Penal Code § 502, California Statutory Unfair Competition pursuant to

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California Business & Professions Code § 17200, California Common Law Trademark Infringement

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and Unfair Competition, Breach of Contract, Intentional Interference with Contractual Relations, and

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Trespass to Chattels, and Zynga and Defendants (Zynga and Defendants are hereinafter collectively

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referred to as the “Parties”) desiring to settle the controversy between the Parties, it is

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ORDERED, ADJUDGED AND DECREED as between the Parties hereto that:

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1.

This Court has jurisdiction over the Parties to this action and over the subject matter

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hereof pursuant to 15 U.S.C. §§ 1116, 1121 and 1125, and 28 U.S.C. §§ 1331, 1338(a) and (b), and

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1367(a). Service was properly made against Defendants.

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2.

Zynga owns the trademark and service mark ZYNGA (the “ZYNGA Mark”) and has

used the Zynga Mark in commerce since June 2007.
3.

The ZYNGA Mark is inherently distinctive and by virtue of Zynga’s extensive

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advertising and sales under the ZYNGA Mark, has become well-known within social gaming circles

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as a source identifier for Zynga’s online games.

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4.

Zynga currently owns United States Federal Trademark Registration No. 3685749 for

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the ZYNGA Mark in International Class 009 for downloadable software for games and

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entertainment on wireless devices and computers, and International Class 041 for entertainment

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services, namely providing on-line computer games.

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5.

Zynga is the publisher of Zynga Poker (the “Game”), a computerized version of the

world-famous poker game in which players compete with one another using virtual “chips.”
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Zynga’s Terms of Service, which govern users’ play of the Game, provide that the

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“chips” used in the Game are not redeemable for any sum of “real world” money or monetary value.

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The Terms of Service also prohibit sale of “chips” “for ‘real world’ money” and prohibit the use of

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the Game for unacceptable purposes, including activity in “conflict with the spirit or intent of” the
Exhibit 1
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CASE NO. CV:09-5298 MHP
FINAL JUDGMENT UPON CONSENT

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Game. Zynga has not authorized any third party to sell or distribute the “chips” used in the Game.
7.

Defendants affirmatively assented to and are bound by the Terms of Service

governing use of the Game, which are located at http://www.zynga.com/about/terms-of-service.php.
8.

Defendants have owned and operated websites through which they have unlawfully

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advertised, purchased, sold and offered to purchase and sell “chips” for use in the Game, and have

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wrongfully used the ZYNGA Mark to advertise and sell these unauthorized “chips”. Defendants

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have operated these websites from the following Internet domain names: FAST-CHIPS.COM;

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FAST-CHIPS.NET; FAST-CHIPS.ORG; BUYFACEBOOKTWITTERCHIPS.ORG;

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BUYFACEBOOK-TWITTERCHIPS.COM; BUYFACEBOOK-TWITTERCHIPS.INFO;

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BUYFACEBOOK-TWITTERCHIPS.NET.
9.

Defendants’ conduct violates Zynga’s intellectual property, contractual, and other

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rights, and Defendants are liable for all of the Causes of Action alleged in Zynga’s First Amended

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Complaint in this matter.

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10.

Defendants’ unlawful actions giving rise to Zynga’s claims were undertaken willfully

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and maliciously, and the damages awarded to Zynga in Paragraph 13 below are damages for willful

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and malicious injury for purposes of 11 U.S.C. § 523(a)(6).

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Defendants and their affiliates, agents, servants, employees, representatives,

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successors, assigns, and any person, corporation or other entity acting under Defendants’ direction or

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control, or in active concert or participation with Defendants, are immediately and permanently

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enjoined throughout the world from:

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a.

Directly or indirectly using the ZYNGA trademark and any other mark,

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symbol, or logo that is a reproduction, counterfeit, copy, or colorable imitation of or that is

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confusingly similar to, or that is identical with, or substantially indistinguishable from, the ZYNGA

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mark on or in connection with any goods or services;

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b.

Infringing any of Zynga’s intellectual property rights in any manner, including

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but not limited to the ZYNGA Mark, any copyrights owned by Zynga, or any other rights owned by

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Zynga related to the Game;

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c.

Engaging in any conduct that tends falsely to represent that, or is likely to
Exhibit 1
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CASE NO. CV:09-5298 MHP
FINAL JUDGMENT UPON CONSENT

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confuse, mislead or deceive purchasers, Defendants’ customers and/or members of the public to

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believe that, the actions of Defendants are connected with Zynga, are sponsored, approved, or

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licensed by Zynga, or are in any way connected or affiliated with Zynga;

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d.

Affixing, applying, annexing, or using in connection with the manufacture,

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distribution, advertising, sale, and/or offering for sale or other use of any goods or services, a false

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description or representation, including words or other symbols, tending to falsely describe or

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represent such goods as being those of, or authorized by, Zynga;

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e.

Registering any Internet domain name that includes the ZYNGA Mark, or any

variations or misspellings thereof, whether alone or in combination with any other term(s) or
character(s);

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f.

Accessing, directly or indirectly, any computer server or computer system

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owned, leased or operated by Zynga for any reason whatsoever, including without limitation any

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server or computer that provides access to the Game, or to any other game or application published

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by Zynga;

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g.

Advertising, purchasing, selling, trading, exchanging, profiting from,

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accepting or processing payments for, or facilitating or participating in any way in the advertisement,

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purchase, sale, trade, or exchange of “chips” for use in the Game or any virtual item used in any

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Zynga game or application;

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h.

Participating in any way in the display of online “sponsored links” or any

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other form of pay-per-click or pay-per-impression advertising related to “chips” for use in the Game

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or any other virtual item used in any Zynga game or application, including but not limited to causing

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hyperlinks and other advertising materials to be displayed in response to searches for “zynga”, or

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searches for any of Zynga’s games or applications;

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i.

Otherwise competing unfairly with Zynga in any manner; and

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j.

Effecting assignments or transfers, forming new entities or associations or

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utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set

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forth in subparagraphs (a)-(i) above.

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12.

To the extent the Internet domain names identified in Paragraph 8 above have not
Exhibit 1
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CASE NO. CV:09-5298 MHP
FINAL JUDGMENT UPON CONSENT

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already been transferred to Zynga, the registrars through which these domain names are registered

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are ORDERED to transfer the ownership of these domain names to Zynga.

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13.

Defendants’ unlawful acts have damaged Zynga in the amount of Fifteen Thousand

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Dollars ($15,000). Defendants are hereby ordered to pay to Zynga damages in the amount of

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$15,000. Defendants are jointly and severally liable for these damages.

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14.

Defendants are hereby ordered to pay Zynga’s reasonable attorneys’ fees and costs.

Defendants are jointly and severally liable for this award.

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15.

This Court retains jurisdiction, including without limitation personal jurisdiction over

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Defendants, for the purpose of making any further orders necessary or proper for the enforcement,

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construction or modification of the Settlement Agreement between Zynga and Defendants or this

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Judgment, and the punishment of any violations thereof.

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16.

This Judgment shall be deemed to have been served upon Defendants at the time of

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its execution by the Court.

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Exhibit 1
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CASE NO. CV:09-5298 MHP
FINAL JUDGMENT UPON CONSENT

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Exhibit 1
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