Zynga Game Network Inc., v. Just Add Chips LLC et al

Filing 1

COMPLAINT (summons issued) against George Haritos, Just Add Chips LLC (Filing fee $ 350.) receipt number 34611040879. Filed by Zynga Game Network Inc.,. (Attachments: # 1 Civil Cover Sheet)(cv, COURT STAFF) (Filed on 1/8/2010) Modified on 2/19/2010 (cv, COURT STAFF).

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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,

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COMPLAINT FOR:
Plaintiff,

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CASE NO.

v.
JUST ADD CHIPS LLC, a Pennsylvania
Limited Liability Company, and GEORGE
HARITOS, an individual,
Defendants.

(1) VIOLATION OF 15 U.S.C. § 1114(1);
(2) VIOLATION OF 15 U.S.C. § 1125(a);
(3) VIOLATION OF 15 U.S.C. § 1125(d);
(4) VIOLATION OF CAL. BUS. & PROF.
CODE § 17200;
(5) STATE COMMON LAW TRADEMARK
INFRINGEMENT; AND
(6) COMMON LAW PASSING OFF AND
UNFAIR COMPETITION

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DEMAND FOR JURY TRIAL
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CASE NO. ____________
COMPLAINT

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Plaintiff Zynga Game Network, Inc. (“Zynga”) brings this Complaint against defendants Just

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Add Chips LLC and George Haritos (collectively “Defendants”) for injunctive relief and damages

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

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Nature of the Action
1.

This is an action for violation of the federal Lanham Act, 15 U.S.C. §§ 1114(1),

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1125(a) and 1125(d); violation of the California statutory law of unfair competition, Cal. Bus. &

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Prof. Code § 17200; and California common law trademark infringement, passing off and unfair

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competition.

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

Delaware and has its principal place of business in San Francisco, California.
3.

Zynga is informed and believes and on this basis alleges that defendant Just Add

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Chips LLC is a limited liability company organized and existing under the laws of the State of

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Pennsylvania and has its principal place of business in Pittsburgh, Pennsylvania.

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4.

Zynga is informed and believes and on this basis alleges that defendant George

Haritos is an individual currently residing in Pittsburgh, Pennsylvania.
5.

Zynga is informed and believes and on this basis alleges that the actions alleged

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herein to have been undertaken by Defendants were undertaken by each Defendant individually,

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were actions that each Defendant caused to occur, were actions that each Defendant authorized,

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controlled, directed, or had the ability to authorize, control or direct, and/or were actions in which

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each Defendant assisted, participated or otherwise encouraged, and are actions for which each

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Defendant is liable. Each Defendant aided and abetted the actions of the Defendants set forth below,

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in that each Defendant had knowledge of those actions, provided assistance and benefitted from

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those actions, in whole or in part. Each of the Defendants was the agent of each of the other

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Defendant, and in doing the things hereinafter alleged, was acting within the course and scope of

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such agency and with the permission and consent of the other Defendant.

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Jurisdiction and Venue
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This action arises under the trademark laws of the United States, 15 U.S.C. § 1051, et
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CASE NO. ____________
COMPLAINT

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seq., particularly under 15 U.S.C. §§ 1114(1), 1125(a) and 1125(d), as well as state unfair

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

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This Court has 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 competition

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claims under 28 U.S.C. § 1338(b), those claims being joined with a substantial and related claim

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under the Trademark Laws of the United States, and supplemental jurisdiction of all of the state law

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claims under 28 U.S.C. § 1367(a), those claims being so related to the federal claims that they form

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part of the same case or controversy and derive from a common nucleus of operative fact.

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7.

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Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b)(2).
Intradistrict Assignment

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8.

This being an Intellectual Property Action, the Court’s Assignment Plan provides for

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assignment of this Action on a district-wide basis. To the extent this Action may be deemed to have

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arisen in a particular county within this District, that county is San Francisco County on the grounds

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that a substantial part of the events or omissions which give rise to Zynga’s claims occurred in San

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Francisco County, where Zynga is located.

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Factual Allegations

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9.

Zynga is the largest social gaming company, providing, inter alia, online card games,

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word games, board games, role playing games and party games including Zynga Poker, Mafia Wars,

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YoVille, Vampires, Street Racing, Scramble and Word Twist. Zynga’s games are available on

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Facebook, MySpace, Bebo, Hi5, Friendster, Tagged, Yahoo!, the iPhone and iPod Touch, among

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others.

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10.

Zynga coined the trademark and service mark (collectively “mark”) ZYNGA and has

made use of the mark ZYNGA in commerce since June 2007.
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Zynga’s games have been a runaway success. In July, 2008, Zynga had over 1.3

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million daily active users and 20 million registered users. As of January 1, 2009, Zynga had over 75

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million registered users. As of May, 2009, Zynga had more than 9.5 million daily users.

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12.

Zynga’s success and the success of the ZYNGA mark have been widely reported in

the press, on the Internet and in blogs.
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CASE NO. ____________
COMPLAINT

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The mark ZYNGA is inherently distinctive, and furthermore, by virtue of the

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extensive online sales and advertising under the mark ZYNGA, the ZYNGA mark has become well-

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known within social gaming circles as a source identifier for Zynga’s games.

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Zynga owns United States Federal Trademark Registration No. 3,685,749 for the

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mark ZYNGA in International Class 009 for downloadable computer game software for use on

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wireless devices and computers, and International Class 041 for entertainment services, namely

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providing on-line computer games. A true and correct copy of federal Trademark Registration

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

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One of Zynga’s most popular games is Zynga Poker, a computerized version of the

world-famous Texas Hold’Em poker game.
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Without Zynga’s authorization or approval, Defendants have registered the Internet

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domain name <zyngapoker.com> (the “Infringing Domain Name”). Users who type

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“zyngapoker.com” into their Internet web browsers expecting to find Zynga’s popular Zynga Poker

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game, are instead taken to a website that Defendants have created and maintain (the “Website”).

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The Website contains paid advertising for Full Tilt Poker

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(<http://www.fulltiltpoker.com>), a site not operated by Zynga. Every time an Internet user on

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Defendants’ Website clicks on one of these advertisements, Defendants make a profit.

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Other content on the Website also encourages users to visit, sign up with, and play

Full Tilt Poker.
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Zynga is informed and believes, and on this basis alleges, that Internet users have

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been confused into believing that Zynga has authorized, approved, sponsored, or is otherwise

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affiliated with Defendants’ Website and the Full Tilt Poker service they advertise.

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Zynga is informed and believes, and on this basis alleges, that Internet users

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searching for Zynga’s poker application have been diverted to Full Tilt Poker as a result of

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Defendants’ registration and use of the Infringing Domain Name.

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On October 30, 2009, Zynga filed an administrative complaint against Defendants in

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the World Intellectual Property Organization Arbitration and Mediation Center, pursuant to the

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Uniform Domain Name Dispute Resolution Process (the “UDRP Complaint”). The UDRP
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CASE NO. ____________
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Complaint asserted that Defendants have registered and used the Infringing Domain Name in a bad

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faith effort to profit from the ZYNGA mark.

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Based on the arguments of both parties, the administrative panel adjudicating the

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UDRP Complaint found that Defendants registered the Infringing Domain Name in bad faith, and

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that they have no legitimate rights to the Infringing Domain Name. Accordingly, the panel ordered

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the Infringing Domain Name transferred to Zynga.

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FIRST CAUSE OF ACTION

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(Trademark Infringement)

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(15 U.S.C. § 1114(1))

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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.
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Defendants have used and continue to use in commerce a reproduction, copy, or

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colorable imitation of the registered ZYNGA mark in connection with the sale, offering for sale,

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distribution, or advertising of goods or services on or in connection with which such use is likely to

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cause confusion, or to cause mistake, or to deceive.

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Defendants have and continue to reproduce, copy, or colorably imitate the registered

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ZYNGA mark and apply such reproduction, copy, or colorable imitation to labels, signs, prints,

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packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in

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connection with the sale, offering for sale, distribution, or advertising of goods or services on or in

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connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.

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Defendants’ conduct as alleged herein has been undertaken willfully and maliciously,

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and with full knowledge and in conscious disregard of Zynga’s rights. Defendants’ conduct has

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

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law, and is also causing damage to Zynga in an amount which cannot be accurately computed at this

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time but will be proven at trial.

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CASE NO. ____________
COMPLAINT

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SECOND CAUSE OF ACTION

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(False Designation of Origin Regarding the Mark ZYNGA)

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(15 U.S.C. § 1125(a))

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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.
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Defendants’ use of the mark ZYNGA constitutes use of a false designation of origin

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or false and misleading representation in interstate commerce that wrongfully and falsely designates,

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describes and represents that Defendants’ products and services are connected, affiliated or

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associated with, or authorized by Zynga, and is likely to cause confusion as to Defendants’

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affiliation, connection or association with Zynga, or as to the origin, sponsorship, approval or

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

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Defendants’ conduct as alleged herein has been undertaken willfully and maliciously,

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and with full knowledge and in conscious disregard of Zynga’s rights. Defendants’ conduct has

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

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law, and is also causing damage to Zynga in an amount which cannot be accurately computed at this

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time but will be proven at trial.

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THIRD CAUSE OF ACTION

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(Federal Cybersquatting Regarding the Mark ZYNGA)

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(15 U.S.C. § 1125(d))

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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.
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Defendants have registered and used the Internet domain name <zyngapoker.com>

with a bad faith intent to profit from the mark ZYNGA.
32.

The mark ZYNGA was distinctive at the time of registration the <zyngapoker.com>

domain name and remains distinctive today.
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The <zyngapoker.com> domain name was confusingly similar to the mark ZYNGA

at the time Defendants registered it, and it remains so today.
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Defendants’ conduct as alleged herein has been undertaken willfully and maliciously
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CASE NO. ____________
COMPLAINT

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and with full knowledge and in conscious disregard of Zynga’s rights. Defendants’ bad faith

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registration of the <zyngapoker.com> domain name has caused Zynga irreparable harm for which

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

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cannot be accurately computed at this time but will be proven at trial, or at Zynga’s election, entitles

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Zynga to an award of statutory damages in an amount to be determined by the Court.

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FOURTH 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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35.

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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Defendants compete directly with Zynga by deliberately attracting Internet users

searching for Zynga’s Zynga Poker application.
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Defendants are making unauthorized commercial use of the mark ZYNGA in a

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

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financial investments in the mark ZYNGA.

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38.

By reason of Defendants’ conduct as alleged herein, Defendants have engaged in

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unlawful, unfair and/or fraudulent ongoing business practices in violation of California Business &

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Professions Code § 17200.

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39.

As a direct result of Defendants’ unfair competition with regard to the mark ZYNGA,

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Defendants have unlawfully acquired, and continue to acquire on an ongoing basis, an unfair

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competitive advantage and have engaged in, and continue to engage in, wrongful business conduct to

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Defendants’ monetary advantage and to the detriment of Zynga.

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Defendants’ conduct as alleged herein has been undertaken willfully and maliciously,

and with full knowledge and in conscious disregard of Zynga’s rights.
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Defendants’ illegal and unfair business practices are continuing, and injunctive relief

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pursuant to California Business and Professions Code § 17203 is necessary to prevent and restrain

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further violations by Defendants.

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CASE NO. ____________
COMPLAINT

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42.

This Court has jurisdiction over the subject matter of this claim pursuant to the

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provisions of 28 U.S.C. § 1338(b), this being a claim of unfair competition joined with a substantial

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and related claim under the Trademark Laws of the United States, and under 28 U.S.C. § 1367.

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FIFTH CAUSE OF ACTION

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(Common Law Trademark Infringement of the Mark ZYNGA)

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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.
44.

Defendants’ unauthorized use of the mark ZYNGA constitutes trademark

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

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and trade as to the source of, and authorization for the products and/or services sold and/or

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advertised by Defendants in violation of the common law of the State of California.

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45.

Defendants’ conduct as alleged herein has been undertaken willfully and maliciously,

and with full knowledge and in conscious disregard of Zynga’s rights.
46.

As well as harming the public, Defendants’ conduct as alleged herein has caused and

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will continue to 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 this time but

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will be proven at trial.

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47.

This Court has jurisdiction over the subject matter of this claim pursuant to the

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provisions of 28 U.S.C. § 1338(b), this being a claim of infringement joined with a substantial and

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related claim under the Trademark Laws of the United States, and under 28 U.S.C. § 1367.

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SIXTH CAUSE OF ACTION

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(California Common Law Passing Off and Unfair Competition)

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48.

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

paragraphs, as though fully set forth in this cause of action.
49.

By virtue of their conduct as alleged herein, Defendants have engaged and are

engaging in unfair competition and passing off under the common law of the State of California.
50.

As well as harming the public, Defendants’ conduct as alleged herein has caused and

will continue to cause Zynga irreparable harm for which there is no adequate remedy at law, and is
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CASE NO. ____________
COMPLAINT

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also causing damage to Zynga in an amount which cannot be accurately computed at this time but

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will be proven at trial.

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Defendants’ actions were undertaken intentionally to obtain an unfair advantage over

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Zynga and in conscious disregard of Zynga’s rights, and were malicious, oppressive and/or

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fraudulent. Zynga requests punitive or exemplary damages pursuant to California Civil Code §

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3294(a) in an amount sufficient to punish and deter Defendants and to make an example of them.

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52.

This Court has jurisdiction over the subject matter of this claim pursuant to the

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provisions of 28 U.S.C. § 1338(b), this being a claim of unfair competition joined with a substantial

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and related claim under the Trademark Laws of the United States, and under 28 U.S.C. § 1367.

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REQUEST FOR RELIEF
Zynga requests that this Court:

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A.

Enter a permanent injunction enjoining Defendants and their owners, directors,

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agents, employees, representatives and all persons or entities acting in concert or participation with

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Defendants from infringing any of Zynga’s trademarks, including without limitation using the mark

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ZYNGA and/or confusingly similar misspellings or variations thereof, alone or in combination with

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any other words or phrases, in a manner that is likely to cause confusion with respect to the mark

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ZYNGA or with respect to Zynga’s approval or authorization of Defendants’ actions, including but

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not limited to enjoining Defendants from registering any Internet domain names containing the term

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ZYNGA and/or of confusingly similar misspellings or variations thereof, alone or in combination

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with any other terms;

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B.

Enter a permanent injunction requiring Defendants and their owners, directors,

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agents, employees, representatives and all persons or entities acting in concert or participation with

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Defendants to immediately cease any conduct suggesting or tending to suggest that any products or

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services they advertise or offer for sale are directly or indirectly sponsored or approved by, or

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affiliated with Zynga;

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C.

Order the transfer to Zynga of the Infringing Domain Name and any other Internet

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domain names Defendants have registered that are identical or confusingly similar to the ZYNGA

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mark;
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CASE NO. ____________
COMPLAINT