Vulcan Golf, LLC v. Google Inc. et al

Filing 104

RESPONSE by Vulcan Golf, LLC to MOTION by Defendants Internet Reit, Inc., Google Inc., Oversee.Net, Sedo LLC, Dotster, Inc. to dismiss Amended Class Action Complaint (Consolidated Motion) 98 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D (1 of 2)# 5 Exhibit D (2 of 2)# 6 Exhibit E# 7 Exhibit F# 8 Motion to Amend# 9 Motion for Leave)(Foote, Robert)

Vulcan Golf, LLC v. Google Inc. et al

Doc. 104 Att. 2

Case 1:07-cv-03371

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EXHIBIT B

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Dockets.Justia.com

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EXHIBIT "B" "FACTUAL OVERVIEW CHART" Bad Actors
Defendants (FAC¶¶67-79) have unlawfully conspired, contrived and effectuated an unlawful scheme, the "Deceptive Domain Scheme," (FAC¶3) to obtain financial benefits from the unlawful and unauthorized use of Class Plaintiffs' and the putative class members' property, rights and interests. (FAC¶¶10-11). Deceptive Domain Scheme, as defined in the FAC, includes but is not limited to the following actions: (1) Defendant(s)' deliberate registration, trafficking, license, use and monetization of deceptive domains; (2) deliberate hijacking, redirecting, dilution and infringement of distinctive and valuable marks; (3) deliberate creation and promotion of an illegal aftermarket for the resale of deceptive domains, (4) deliberate tasting and kiting of deceptive domains; (5) deliberate cybersquatting and typosquatting; (6) derive, use and generate illegally obtained money/revenue/profit from their illegal and deceptive actions (7) transact in the money and property obtained from their illegal actions, (8) illegal use and intentional dimunition of Class Plaintiffs' and the Class' property and (9) other related actions and omissions intended to generate revenue from the unauthorized, improper, and illegal use/infringements/dilution/misappropriation of Class Plaintiffs' and the putative class members' property. (FAC¶3). Class Plaintiffs (FAC¶¶20-64) and the putative class (FAC¶289) are the direct victims of Defendants' Deceptive Domain Scheme because it is their property/interests that Defendants unlawfully took/used in furtherance of the fraudulent scheme. (FAC¶¶11-12). Class Plaintiffs (FAC¶¶20-64) and the putative class (FAC¶289) are the direct victims of Defendants' Deceptive Domain Scheme because it is their property/interests that Defendants unlawfully took/used in furtherance of the fraudulent scheme. (FAC¶¶11-12).

Fraudulent Scheme

Victims of Fraudulent Scheme

The Class

Reason Defendants fraudulent scheme

engaged

in

the Defendants engage in the Deceptive Domain 2

Scheme in order to obtain control and use over Class Plaintiffs' and the putative class

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Knowledge and Intent

members' property (distinctive and valuable marks, domains, deceptive domains, internet traffic, goodwill, prospective business and customers) and to financially profit and transact in said money gained from the illegal misappropriation, taking, use and monetization of Class Plaintiffs' and the putative class members' property. (FAC¶¶1, 10, 218, 238, 261, 263, 270.) Defendants contrived, designed, implemented and otherwise engage in the Deceptive Domain Scheme intentionally and knowingly. (FAC¶¶9, 166). Inherent in the definition of "Deceptive Domain" is the knowing and unauthorized deceptive use of Class Plaintiffs' and the putative class members' distinctive and valuable marks. (FAC¶¶2-3, 166, 273). Further, Defendants took actions such as concealment, knowing registration of deceptive domains, masking, redirection, and other fraudulent actions in connection with the commission of the Deceptive Domain Scheme. (FAC¶249, 263). Distinctive and valuable marks, domains, Deceptive Domains, goodwill, customers, internet traffic, and prospective business belonging to Class Plaintiffs' and the putative class. (FAC¶¶241, 270). Sophisticated, highly organized, automated, systemic programs carried out through use of the Mails and Wire. (FAC¶¶245, 246, 248, 249, 323, 324 Defendants' actions constituting the fraudulent scheme are carried out 24 hours a day, 7 days a week on a second-by-second, minute-by minute, hourly, daily, ongoing and regular basis. (FAC¶¶4,249). An ongoing and structured association of individuals and entities joined in the common purpose of "engag[ing] in interstate advertising and marketing." (FAC¶¶225-227). An identifiable hierarchy and control structure, with each distinct Enterprise member engaging in certain functions and roles (FAC¶229), and roles assumed by each of the Defendants in the operation and management of the Enterprise. (FAC¶229). Defendants' use and control of the Enterprise to engage in conduct constituting racketeering activity (FAC¶237) and the legitimate conduct of the Enterprise existing separate and apart from the Racketeering

Property Defendants Intended to Derive

Manner in which Scheme was carried out

Frequency of Fraudulent Scheme

RICO ENTERPRISE

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Activity. (FAC¶¶232, 239).

RICO PREDICATE ACTS

18 U.S.C. §1341 (relating to mail fraud) and 18 U.S.C. §1343 (relating to wire fraud); 18 U.S.C. §1952 (relating to racketeering); 18 U.S.C. §1957 (related to engaging in monetary transactions in property derived from specified unlawful activity); and 18 U.S.C. §2320 (relating to trafficking in goods or services bearing counterfeit marks). (FAC¶¶243, 253). Damage to property, damage to value of domain, diversion of business, dilution of the distinctive and valuable marks, infringement of distinctive and valuable marks, lost profits/revenue, lost sales, lost customers, lost market share, lost reputation, confusion of goods/services, lost goodwill; and other such injury and damage directly and proximately caused by Defendants illegal actions alleged herein. (FAC¶11, 12, 270).

Injury/Damage to Victims

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