Specht et al v. Google Inc et al

Filing 216

THIRD AMENDED complaint by Android Data Corporation, Erich Specht, The Android's Dungeon Incorporated against Google Inc, Sprint Nextel Corporation, AT&T Mobility LLC, T-Mobile USA, Inc., Cellco Partnership d/b/a Verizon Wireless (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Shonkwiler, John)

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S p e c h t e t a l v . G o o g l e I n c e t a l D o c IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ERICH SPECHT, an individual and doing business as ANDROID DATA CORPORATION, and THE ANDROID'S DUNGEON INCORPORATED, Plaintiffs, v. GOOGLE INC., T-MOBILE USA, INC., SPRINT NEXTEL CORPORATION, CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, and AT&T MOBILITY LLC, Defendants. GOOGLE, INC., Defendant/Counterplaintiff, v. ERICH SPECHT, an individual and doing business as ANDROID DATA CORPORATION, and THE ANDROID'S DUNGEON INCORPORATED, Plaintiffs/Counterdefendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 09-cv-2572 Judge Harry D. Leinenweber Magistrate Judge Jeffrey Cole THIRD AMENDED COMPLAINT Plaintiffs Erich Specht ("Specht"), an individual and doing business as Android Data Corporation ("ADC") and The Android's Dungeon Incorporated ("ADI") (collectively referred to herein as "Plaintiffs"), by and through their attorneys, as and for their Third Amended Complaint against Defendants Google, Inc. ("Google"), T-Mobile USA, Inc. ("T-Mobile"), Sprint Nextel Corporation ("Sprint"), Cellco Partnership d/b/a Verizon Wireless ("Verizon") and AT&T Mobility LLC ("AT&T") allege as follows. D o c k e t THE PARTIES 1. Plaintiff Specht is a resident of the Village of Palatine, Illinois. ADC and ADI are Illinois domestic corporations organized and existing under the laws of the State of Illinois and having a principal place of business in the Village of Palatine, Illinois. 2. Defendant Google is a Delaware corporation registered to do business as a foreign corporation, and doing business, in Illinois. 3. Defendant T-Mobile is a Delaware corporation registered to do business as a foreign corporation, and doing business, in Illinois. 4. 5. 6. Illinois. 7. Defendants T-Mobile, Sprint, Verizon and AT&T will be collectively referred to Defendant Sprint is a Kansas corporation doing business in Illinois. Defendant Verizon is a Delaware general partnership doing business in Illinois. Defendant AT&T is a Delaware limited liability company doing business in herein as the "Carrier Defendants." JURISDICTION AND VENUE 8. This is a civil action alleging trademark infringement and unfair competition arising under §§32 and 43 of the Lanham Act, 15 U.S.C. §§1114(1) (trademark infringement), 1125(a) (unfair competition), as well as a violation of the Illinois Deceptive Trade Practices Act, 815 ILCS 510/2, common law trademark infringement and contributory infringement. 9. This Court has original subject matter jurisdiction over this action pursuant to 28 U.S.C. §1338(a), 28 U.S.C. §1338(b) and supplemental jurisdiction over the state law claims alleged herein under 28 U.S.C. §1367(a). The court also has subject matter jurisdiction pursuant to 2 28 U.S.C.A. § 1332, because this action is between citizens of different States and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 10. This Court has personal jurisdiction over Google because it maintains an office in Chicago, Illinois, has transacted business in this State, and it is registered to do business in Illinois. The Court also has jurisdiction over Google pursuant to the Illinois long arm statute, 735 ILCS 5/2-209(a)(2). 11. This Court has personal jurisdiction over T-Mobile because it has transacted business in this State, and it is registered to do business in Illinois. The Court also has jurisdiction over T-Mobile pursuant to the Illinois long arm statute, 735 ILCS 5/2-209(a)(2). 12. This Court has personal jurisdiction over Sprint because it has transacted business in Illinois. The Court also has jurisdiction over Sprint pursuant to the Illinois long arm statute, 735 ILCS 5/2-209(a)(2). 13. This Court has personal jurisdiction over Verizon because it has transacted business in Illinois. The Court also has jurisdiction over Verizon pursuant to the Illinois long arm statute, 735 ILCS 5/2-209(a)(2). 14. This Court has personal jurisdiction over AT&T because it has transacted business in Illinois. The Court also has jurisdiction over AT&T pursuant to the Illinois long arm statute, 735 ILCS 5/2-209(a)(2). 15. Venue is proper in this district under 28 U.S.C. §1391(b) and (c). FACTS COMMON TO ALL COUNTS 16. Plaintiff ADC is an Illinois corporation in good standing. It was incorporated on December 30, 1998, by Specht, its sole officer, director and shareholder. At all relevant times, Specht has been an officer of ADC. 3 17. Plaintiff ADI is an Illinois corporation in good standing. It was incorporated on March 5, 2001, by Specht, its sole shareholder. At all relevant times, Specht has been an officer of ADI. 18. 19. Plaintiff Specht is a software developer and internet application service provider. Since at least 1999, Specht has developed and offered for sale computer software and hardware related products and services under the trademarks "Android Data," "Android Server," "Android Data Web Editor" and "Android's Dungeon" (collectively, the "Android Marks"). Plaintiffs hold copyrights filed with the United States Copyright Office on Android Server software and Android Data Web Editor software, which are versions of Specht's Android Data software suite, as well as Android Data - Version 5, the current version of the Android Data software product line. Specht's Android Data software suite (the "Android Software") enables the remote administration of websites including secure data transfer, management and categorization of products, image processing, online surveys, email campaigns, document transformation, and the like. Computer hardware and software services offered by Plaintiffs include web page design, custom software application development, and consulting on software and hardware issues. 20. Plaintiff Specht, through his wholly owned corporation ADI, continues to use, develop and offer for sale the Android Software and related services under the Android Marks. 21. The Android Software implements advanced caching algorithms that allow for greater efficiency of web and database servers, and integrates on-line and off-line database servers. 22. Beginning in 1999, the Android Software was intended to and has been used in commerce by customers who transact hundreds of millions of dollars in worldwide transactions, including tens of millions in e-commerce over the world wide web using the Android Software. 4 23. Specht chose the word "Android" for the Android Marks to communicate the seamless, almost robotic-like, bi-directional communication of data between a client and a data center in a remote location. 24. "Android Data" and the other Android Marks are inherently distinctive and/or have acquired distinctiveness through use. 25. Specht is and has been further developing the Android Software as well as preparing to release additional software products in the near future under one or more of the Android Marks. 26. On June 4, 2000, Specht, on behalf of ADC, filed an application with the United States Patent and Trademark Office (the "PTO") for the mark "Android Data" (Serial No. 78011167). A copy of the application is attached hereto as Exhibit A. 27. On October 22, 2002, the PTO granted ADC's registration of the mark "Android Data" on the Principal Register, Registration No. 2,639,556. Registration No. 2,639,556 is prima facie evidence of the validity and ownership of, and is constructive notice of ownership of, the Android Data mark as provided by 15 U.S.C. §§1057(b) and 1072. As a condition of approval, the PTO required that the following language be inserted into the application: "No claim is made to the exclusive right to use `Data,' apart from the mark as shown." This language indicates that the dominant word in the mark is "Android" with "Data" being a descriptive or non-dominant word. As stated in Registration No. 2,639,556, the Android Data mark identifies "computer e-commerce software to allow users to perform electronic business transactions via global computer network," in International Class 9 (U.S. Classes 21, 23, 26, 36, and 38). A copy of Registration No. 2,639,556 is attached hereto as Exhibit B. 5 28. Effective on or about December 26, 2002, ADC transferred ownership of the Android Software and Android Marks to ADI. 29. On December 1, 2003, thirteen months after the PTO granted Registration No. 2,639,556 for the Android Data mark, Andy Rubin ("Rubin") founded a company called Fotofarm, Inc., for the purpose of creating a digital camera. On February 12, 2004, Fotofarm, Inc. registered to do business in the State of California. Unable to secure venture capital funding, Rubin tabled the digital camera idea and went to work on an open source platform for mobile phone devices which he called Android (the "Android Platform"). 30. In 2004, Rubin assembled a group of engineers including Andrew McFadden ("McFadden") and Chris White ("White"), whom Rubin had worked with at Web TV, and product planners including Nick Sears ("Sears") and Rich Miner ("Miner"), whom Rubin had worked with while he was at Danger, Inc. (the foregoing individuals are collectively referred to herein as the "Android cofounders"). On or about June 18, 2004, Fotofarm, Inc. changed its name to Android Research, Inc. On or about April 6, 2005, Android Research, Inc. changed its name to Android, Inc. At all times, Rubin was the Chief Executive Officer of Android, Inc. and its predecessor companies (hereinafter, "Android, Inc."). 31. Beginning in 2004, Android Research, Inc. began using the Android name in commerce when it solicited funding in the form of venture capital for Android, including $100,000 invested by Steve Perlman, whom Rubin, White and McFadden had previously worked with at Web TV; negotiated a partnership deal with Clearwire, a wireless broadband internet service provider, and its CEO, Craig McCaw; and negotiated a sale of the Android Platform to Google. 32. Prior to using the mark "Android" in commerce, Rubin, Sears, Miner and White did not conduct a thorough trademark search. 6 33. In or about July, 2005, Google acquired Android, Inc. and, thereafter, the Android cofounders went to work for Google. 34. In addition to their share of the sale price and the employment given to them at Google, the Android cofounders were able to continue their work on the Android Platform. 35. As part of its purchase of Android Inc., Google acquired assets and liabilities from Android, Inc. including, without limitation, its software source code, goodwill, internet domain names, intellectual property rights and liabilities and key employees, including engineers and product planners. 36. 37. Platform. Google has since used these same assets in violation of Plaintiffs' rights. At Google, Rubin is responsible for managing the development of the Android Rubin has overseen and has personal knowledge regarding all aspects of the development of the Android Platform by Google, including the acquisition of Android, Inc. and the creation of the Android Platform. 38. Platform. 39. Platform. 40. 41. McFadden is a senior software architect for the Android Platform. White left the employ of Google in October 2006. While at Google, his duties were Miner is a group manager for Google, with duties concerning the Android Sears is responsible for Google's business development concerning the Android primarily those of a software engineer in the development of the Android Platform. 42. In or about October 2007, and before it filed its trademark application for the mark "Android," Google hired a private contractor to perform a trademark search. The search result disclosed Plaintiffs' ownership of the Android Data mark and Plaintiffs' contact information. 7 43. On October 31, 2007, Google filed an application with the PTO for the mark "Android," Serial No. 77318565 (the "Google Application"). A copy of the Google Application is attached hereto as Exhibit C. The goods and services identified under the Google Application were International Class 9, computer hardware and software. The Google Application asserted an "intent to use" the mark "Android" as follows: "The applicant has a bona fide intention to use through the applicant's related company or licensee the mark in commerce or in connection with the identified goods and/or services." Thus, Google was seeking the exclusive right to use and license the mark "Android" in commerce or in connection with any software or hardware use or product. 44. Prior to filing the Google Application, Google did not conduct a thorough trademark search. 45. On November 5, 2007, Google announced the formation of the Open Handset Alliance (the "OHA"), a partnership or business alliance consisting of dozens of firms. As of the date of this Third Amended Complaint, the OHA had approximately 76 members, including, among others, Acer, Dell, eBay, Inc., Garmin International, Inc., Google, Inc., HTC Corporation ("HTC"), Intel Corporation, LG Electronics, Inc. ("LG"), Motorola, Inc. ("Motorola"), NEC Corporation, Samsung Electronics ("Samsung"), Sharp Corporation, Sony Ericsson, Sprint Nextel, Texas Instruments Incorporated, T-Mobile, Toshiba Corporation and Vodafone (a minority partner in Verizon). 46. Since 2005, the OHA members have been working together on products relating to the Android Platform and on November 12, 2007, the OHA released the Android Software Development Kit ("SDK") as an early look to enable developers to create innovative and compelling applications for the platform. The early look also provided developers with the 8 opportunity to participate in the evolution of the Android Platform by providing feedback throughout the development. 47. Beginning at some point in 2008 and continuing to the present, without permission from Plaintiffs, Google, the Carrier Defendants and other OHA members have been releasing software and selling products and services in association with the mark "Android." 48. Wikipedia, the free online encyclopedia, reports that "Android is the brain child of Google and the flagship software of the OHA, is based on an open source license and will compete against other mobile platforms from Apple Inc., Microsoft, Nokia, Palm, Research In Motion and Symbia." 49. On February 14, 2008, the PTO issued an Office Action letter refusing the Google Application for registration of the trademark "Android," citing likelihood of confusion with Plaintiffs' "Android Data" mark (the "February 14 Office Action"). A copy of the February 14 Office Action is attached hereto as Exhibit D. 50. On August 14, 2008, Google filed a response to the February 14 Office Action. A copy of the response is attached hereto as Exhibit E. 51. On August 20, 2008, the PTO issued a second Office Action making the refusal of the Google Application final (the "Final Office Action"). A copy of the Final Office Action is attached hereto as Exhibit F. 52. In the Final Office Action, the PTO explained, among other things, that Google's use of Android encompasses a broad range of goods and/or services, including "providing e-commerce software" that can be used on mobile devices, computers, computer networks, and global communication networks. The PTO cited likelihood of confusion with Plaintiffs' mark "Android Data," determining that the marks are similar in "sound, appearance, and commercial 9 impression" and share the dominant term, Android, and "the applicant's [Google] goods are closely related to the registrant's [Plaintiffs] goods and commonly emanate from the same source as the registrant's goods." 53. On September 23, 2008, one month after the PTO issued its Final Office Action refusing the Google Application, Google issued a press release announcing the release of the "Android 1.0 SDK" product. 54. The following month, on October 21, 2008, Google released portions of the source code for the Android software to developers and encouraged and gave developers the ability to use the infringing Android operating system to create infringing Android applications for use with Google's infringing products. 55. On November 20, 2008, Google filed with the PTO a Request For Reconsideration After Final Action which requested reconsideration of the Final Office Action or, in the alternative, suspension of all further action on the Google Application. A copy of the request is attached hereto as Exhibit G. 56. On November 20, 2008, Google also filed a Notice of Appeal to the PTO Trademark Trial and Appeal Board. A copy of the Notice of Appeal is attached hereto as Exhibit H. 57. On November 21, 2008, the PTO's Trademark Trial and Appeal Board issued an order suspending Google's appeal pending its request for reconsideration. A copy of the order is attached hereto as Exhibit I. 58. On November 24, 2008, per Google's request, the PTO issued its Notice of Suspension. A copy of the Notice of Suspension is attached hereto as Exhibit J. 10 59. Despite the fact that the Google Application was refused, and despite the fact that Google requested that all action on the Application be suspended, Google has not taken any action to curtail its infringing activities. 60. There are millions of products on the market that specifically say "Powered by Android" or otherwise mention Google's Android products and/or services. 61. In certain promotional materials, Google, the Carrier Defendants and/or other OHA members have identified "Android" as a trademark and/or registered trademark of Google. 62. 63. To date, Google has collected millions of dollars in developer registration fees. Google, the Carrier Defendants and other OHA members have sold over one billion dollars worth of equipment bearing the mark "Android," containing Android applications, or running on the Android operating system. 64. Google and the OHA have released over one million copies of their SDKs and several versions of the Android Platform to over one million software developers, and have participated in the creation of "Android Market," which provides Android phone users with access to tens of thousands of applications to download and install on their phones, often for a fee. 65. 66. On December 5, 2008, Google and the OHA released "Android 2.0 SDK." In October 2008, T-Mobile launched its first Google-branded phone, known as the G1, after spending more than $10 million and almost three years in development. The mobile device is manufactured by HTC, features Qualcomm's dual-core MSM7201A semiconductor with integrated processing, multimedia, graphics capabilities and multi-mode 3G mobile broadband connectivity and operates on the Android Platform. 67. In July 2009, T-Mobile launched the myTouch 3G, its second Android mobile device, manufactured by HTC. In November 2009, T-Mobile launched its third Android handset, 11 the Motorola CLIQ. Since then, several other Android mobile devices have been released for sale for which T-Mobile is the wireless voice and data service provider, including the Samsung Behold, Motorola CLIQ XT and HTC myTouch 3G Slide. 68. The HTC-manufactured "Hero" phone was released for sale to the general public in or around October 2009, and it has been sold ever since. The Hero is a mobile device that operates on the Android Platform and has wireless service provided by Sprint. 69. The Samsung-manufactured "Moment" phone was released for sale to the general public in or around November 2009, and it has been sold ever since. The Moment is a mobile device that operates on the Android Platform and has wireless service provided by Sprint. 70. The HTC-manufactured "Evo" phone was released for sale to the general public in or around June 2010, and it has been sold ever since. The Evo is a mobile device that operates on the Android Platform and has wireless service provided by Sprint. 71. The HTC-manufactured "DROID Eris" phone was released for sale to the general public in or around November 2009, and it has been sold ever since. The DROID Eris is a mobile device that operates on the Android Platform and has wireless service provided by Verizon. 72. The Motorola-manufactured "DROID" phone was released for sale to the general public in or around November 2009, and it has been sold ever since. The DROID is a mobile device that operates on the Android Platform and has wireless service provided by Verizon. 73. The Motorola-manufactured "Devour" phone was released for sale to the general public in or around February 2010, and it has been sold ever since. The Devour is a mobile device that operates on the Android Platform and has wireless service provided by Verizon. 74. The Motorola-manufactured "DROID Incredible" phone was released for sale to the general public in or around April 2010, and it has been sold ever since. The DROID Incredible 12 is a mobile device that operates on the Android Platform and has wireless service provided by Verizon. 75. The LG-manufactured "Ally" phone was released for sale to the general public in or around May 2010, and it has been sold ever since. The Ally is a mobile device that operates on the Android Platform and has wireless service provided by Verizon. 76. The Motorola-manufactured "Backflip" phone was released for sale to the general public in or around March 2010, and it has been sold ever since. The Backflip is a mobile device that operates on the Android Platform and has wireless service provided by AT&T. 77. The HTC-manufactured "Aria" phone was released for sale to the general public in or around June 2010, and it has been sold ever since. The Aria is a mobile device that operates on the Android Platform and has wireless service provided by AT&T. 78. The HTC and Google-manufactured "Nexus One" phone was released for sale to the general public in or around January 2010, and it has been sold ever since. The Nexus One is a mobile device that operates on the Android Platform and has wireless service provided by various carriers. 79. T-Mobile has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use Google's Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. For example, T-Mobile's webpage uses the mark "Android" in connection with each and every Android mobile device offered by T-Mobile for use with its wireless services. Google has induced T-Mobile to engage in such infringing conduct and, despite knowing that T-Mobile was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by T-Mobile. 13 80. Sprint has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. For example, Sprint's webpage uses the mark "Android" in connection with each and every Android mobile device offered by Sprint for use with its wireless services. Google has induced Sprint to engage in such infringing conduct and, despite knowing that Sprint was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by Sprint. 81. Verizon has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. For example, Verizon's webpage uses the mark "Android" in connection with each and every Android mobile device offered by Verizon for use with its wireless services. Google has induced Verizon to engage in such infringing conduct and, despite knowing that Verizon was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by Verizon. 82. AT&T has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. For example, AT&T's webpage uses the mark "Android" in connection with each and every Android mobile device offered by AT&T for use with its wireless services. Google has induced AT&T to engage in such infringing conduct and, despite knowing that AT&T was 14 engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by AT&T. 83. Motorola has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. Google has induced Motorola to engage in such infringing conduct and, despite knowing that Motorola was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by Motorola. 84. HTC has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. Google has induced HTC to engage in such infringing conduct and, despite knowing that HTC was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by HTC. 85. LG has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing materials. Google has induced LG to engage in such infringing conduct and, despite knowing that LG was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by LG. 86. Samsung has infringed Plaintiffs' marks by, among other things, marketing and selling mobile phones and related services that use the Google Android software platform, and by using the mark "Android" on or in connection with such products, services and marketing 15 materials. Google has induced Samsung to engage in such infringing conduct and, despite knowing that Samsung was engaging in such infringing conduct, Google has continued to supply the goods, services and/or resources necessary to support such infringing conduct by Samsung. 87. On April 29, 2009, Plaintiffs received a Notice Of Acceptance Of § 8 Declaration informing them that Registration No. 2,639,556 remains in force. A copy of the notice is attached hereto as Exhibit K. 88. At no time prior to Plaintiffs' filing this infringement action did any of the Defendants seek to have Plaintiffs' Registration No. 2,639,556 canceled. 89. None of the Defendants has ever asked Plaintiffs whether they intended to continue using the Android Data mark or any other Android Marks. 90. None of the Defendants has ever requested or received Plaintiffs' permission to use the mark "Android." 91. Fully aware of Plaintiffs' rights to the Android Marks, Defendants Google, T-Mobile, Sprint, Verizon and AT&T have intentionally, openly, notoriously, and without Plaintiffs' authority used the infringing mark "Android" in commerce, including in connection with the sale and marketing of the mobile devices, as described herein. 92. Google, and all other Defendants with Google's encouragement and assistance, are continuing to use the mark "Android" on products and in advertising, promotional materials and press releases without disclosing ADI's ownership of the Android Marks and without Plaintiffs' permission. 93. Defendants' use of the mark "Android" on their products, and in their product promotion and advertising in print and on the internet, as described herein, constitutes the use in 16 commerce of a colorable imitation, copy and reproduction of one or more of Plaintiffs' Android Marks. 94. For the reasons set forth above, Defendants' uses of the mark "Android" were and are deceptive, confusingly similar to the Android Marks and likely to cause confusion, mistake, or deception in the minds of the public as to the source of Plaintiffs' and/or Defendants' goods and services. 95. Despite that ADI had Android Data registered on the PTO Principal Register, and without authorization from ADI or any other Plaintiff, each of the Defendants has in the past and is continuing to advertise, manufacture, distribute, sell, offer to sell an ever increasing line of products and services bearing the infringing mark "Android." 96. This is a reverse confusion case where Defendants are saturating the market with infringing products and services which will undoubtedly lead to deception, confusion and mistake among the consuming public and trade creating the erroneous impression that the goods and/or services offered by Plaintiffs come from the same origin, or are some type of knockoff of goods and/or services offered or sold by Defendants and other members of the OHA. 97. These actions and deception by Defendants have and will continue to deprive ADI and the other Plaintiffs of the ability to control the nature and quality of the products and services they offer, the ability to license any of the Android Marks; and the ability to enter into new and emerging markets under the Android Data mark or other Android Marks, causing irreparable harm to ADI and the other Plaintiffs for which there is no adequate remedy at law. 98. Defendants' infringement constitutes a willful and malicious violation of Plaintiffs' trademark rights. 17 99. Upon learning of the infringing conduct alleged herein, Plaintiffs have moved as expeditiously as possible to protect the Android Marks. COUNT I Trademark Infringement Under Lanham Act § 3231 (By ADI Against Google) 100. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 100 of this Count I. 101. As determined by the PTO, Google's proposed mark "Android" is identical to the dominant portion of the Plaintiffs' registered mark "Android Data" in sound, appearance, and commercial impression. 102. 103. Android Data and the other Android Marks are distinctive, protectable marks. The contemporaneous use by Plaintiffs and Google of the mark "Android" in commerce is likely to cause confusion among the consuming public concerning the source of any goods or services identified therewith. 104. The PTO refused Google's application to register the mark "Android" for computer hardware and software "because of a likelihood of confusion with the mark in U.S. Registration No. 2639556." 105. Both Google's mark "Android" and Plaintiffs' Android Marks may be used to identify computer hardware, software and related products and services. The hardware and software products and services may be used in e-commerce and marketed by all parties in commercial settings and over the internet. 106. To enable use of Google's Android Platform and applications that run on the platform subscribers will need to have a "data plan" with their carrier. 18 107. It has been estimated that Google's search engine accounts for approximately 75% of all computer internet searches; Google controls how information is ranked and disseminated through its search engine. 108. Plaintiffs have expended considerable resources marketing, advertising and promoting goods and services under the Android Data mark and other Android Marks. 109. Google, as successor in interest to Android, Inc.'s intellectual property assets, rights and liabilities, is liable for Android, Inc.'s infringing conduct that occurred as a result of Android, Inc.'s use in commerce of the mark "Android" relating to the Android software platform. 110. By reason of the foregoing acts, Google is liable to ADI for trademark infringement under 15 U.S.C. § 1114. COUNT II Unfair Competition Under Lanham Act § 4334 (By Plaintiffs Against Google) 111. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 111 of this Count II. 112. The use of the mark "Android" by Google as alleged herein to promote, market, or sell products or services constitutes unfair competition in violation of 15 U.S.C. § 1125(a). Google's use of the mark "Android" is likely to cause confusion, mistake, and deception among consumers. Google's unfair competition has caused, and will continue to cause, damage to Plaintiffs and is causing irreparable harm to Plaintiffs for which there is no adequate remedy at law. 19 COUNT III Violation of Illinois Deceptive Trade Practices Act, 815 ILCS 510/2 (By Plaintiffs Against Google) 113. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 113 of this Count III. 114. The use of the mark "Android" by Google as alleged herein to promote, market, or sell products or services constitutes deceptive practices in violation of 815 ILCS 510/2. Google's use of the mark "Android" in the course of its business or occupation is likely to cause confusion or misunderstanding as to affiliation, connection, or association with Plaintiffs' Android Data mark or other Android Marks. Google's deceptive practices have caused, and will continue to cause, damage to the Plaintiffs and are causing Plaintiffs irreparable harm for which there is no adequate remedy at law. COUNT IV Common Law Trademark Infringement (By Plaintiffs Against Google) 115. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 115 of this Count IV. 116. 117. The Android Marks are distinctive, protectable marks. Plaintiffs are entitled to protect the Android Marks against Google's infringing activities alleged herein because Plaintiffs' use in commerce of the Android Marks preceded Google's use in commerce of the mark "Android." 118. Google's use of the mark "Android" as alleged herein to promote, market and sell products or services infringes Plaintiffs' rights under common law because Google's use of the mark "Android" caused, and is likely to cause, confusion among consumers as to affiliation, 20 connection or association with the Android Marks. Google's infringing conduct has caused, and will continue to cause, damage to Plaintiffs and is causing Plaintiffs irreparable harm for which there is no adequate remedy at law. COUNT V Contributory Infringement (By Plaintiffs Against Google) 119. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 119 of this Count V. 120. Google has provided T-Mobile, Sprint, Verizon, AT&T, Motorola, HTC, LG, Samsung and other OHA members with goods or services necessary to the commission of the violations described herein, with the intent that the recipient of the goods or services would put the goods or services to use in committing the violations. Among other things, Google intentionally induced T-Mobile, Sprint, Verizon, AT&T, Motorola, HTC, LG, Samsung and other OHA members to infringe Plaintiffs' Android Data mark and/or the other Android marks by: encouraging and supporting their sales and marketing efforts relating to "Android" based products; and continuing to supply them with Android products and resources despite knowing that they were engaging in infringing activities. 121. By reason thereof, Google is contributorily responsible for the harm that has resulted to Plaintiffs from the infringing activities of T-Mobile, Sprint, Verizon, AT&T, Motorola, HTC, LG, Samsung and other OHA members. 21 COUNT VI Trademark Infringement Under Lanham Act § 3231 (By ADI Against The Carrier Defendants) 122. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 122 of this Count VI. 123. As determined by the PTO, Google's proposed mark "Android" is identical to the dominant portion of the Plaintiffs' registered mark "Android Data" in sound, appearance, and commercial impression. 124. 125. Android Data and the other Android Marks are distinctive, protectable marks. The contemporaneous use by Plaintiffs and each of the Carrier Defendants of the mark "Android" in commerce is likely to cause confusion among the consuming public concerning the source of any goods or services identified therewith. 126. The PTO refused Google's application to register the mark "Android" for computer hardware and software "because of a likelihood of confusion with the mark in U.S. Registration No. 2639556." 127. Both Google's mark "Android" as used by the Carrier Defendants and Plaintiffs' Android Marks may be used to identify computer hardware, software and related products and services. The hardware and software products and services may be used in e-commerce and marketed by all parties in commercial settings and over the internet. 128. Plaintiffs have expended considerable resources marketing, advertising and promoting goods and services under the Android Data mark and other Android Marks. 129. By reason of the foregoing acts, each and every one of the Carrier Defendants is liable to ADI for trademark infringement under 15 U.S.C. § 1114. 22 COUNT VII Unfair Competition Under Lanham Act § 4334 (By Plaintiffs Against The Carrier Defendants) 130. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 130 of this Count VII. 131. The use of the mark "Android" by each and every one of the Carrier Defendants as alleged herein to promote, market, or sell products or services constitutes unfair competition in violation of 15 U.S.C. § 1125(a). The Carrier Defendants' use of the mark "Android" is likely to cause confusion, mistake, and deception among consumers. The Carrier Defendants' unfair competition has caused, and will continue to cause, damage to Plaintiffs and is causing irreparable harm to Plaintiffs for which there is no adequate remedy at law. COUNT VIII Violation of Illinois Deceptive Trade Practices Act, 815 ILCS 510/2 (By Plaintiffs Against The Carrier Defendants) 132. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 132 of this Count VIII. 133. The use of the mark "Android" by each and every one of the Carrier Defendants as alleged herein to promote, market, or sell products or services constitutes deceptive practices in violation of 815 ILCS 510/2. The Carrier Defendants' use of the mark "Android" in the course of their business or occupation is likely to cause confusion or misunderstanding as to affiliation, connection, or association with Plaintiffs' Android Data mark or other Android Marks. The Carrier Defendants' deceptive practices have caused, and will continue to cause, damage to the Plaintiffs and are causing Plaintiffs irreparable harm for which there is no adequate remedy at law. 23 COUNT IX Common Law Trademark Infringement (By Plaintiffs Against The Carrier Defendants) 134. The allegations of paragraphs 1 through 99 above are incorporated herein by reference as and for paragraph 134 of this Count IX. 135. 136. The Android Marks are distinctive, protectable marks. Plaintiffs are entitled to protect the Android Marks against the Carrier Defendants' infringing activities alleged herein because Plaintiffs' use in commerce of the Android Marks preceded each of the Carrier Defendants' uses in commerce of the mark "Android." 137. The Carrier Defendants' use of the mark "Android" as alleged herein to promote, market and sell products or services infringes Plaintiffs' rights under common law because the Carrier Defendants' use of the mark "Android" caused, and is likely to cause, confusion among consumers as to affiliation, connection or association with the Android Marks. The Carrier Defendants' infringing conduct has caused, and will continue to cause, damage to Plaintiffs and is causing Plaintiffs irreparable harm for which there is adequate remedy at law. * * * WHEREFORE, Plaintiffs respectfully request that judgment be entered in their favor and against Defendants as follows: A. Ordering that each and every one of the Defendants be permanently enjoined from: (i) using the mark "Android" or any trademark that imitates or is confusingly similar to Plaintiffs' Android Data mark or other Android Marks; and (ii) supplying OHA members or others with products, services or other resources sufficient to enable infringing activities, or otherwise inducing such infringing activities; 24 B. Ordering each and every one of the Defendants to file with the Court and serve on Plaintiffs within thirty (30) days after entry of any injunction herein, a report in writing under oath setting forth in detail the manner and form in which it has complied with the Court's injunction order; C. Ordering each and every one of the Defendants to account to Plaintiffs for any and all revenues and profits derived from its infringing conduct complained of herein; D. Ordering each and every one of the Defendants to deliver to Plaintiffs, or destroy, all articles bearing the infringing "Android" mark; E. Awarding Plaintiffs compensatory damages, including reasonable license fees, in an amount to be determined at trial; F. G. H. conduct; I. J. Awarding Plaintiffs their costs of suit and attorneys' fees; and Granting such further relief as the Court deems just. PLAINTIFFS DEMAND TRIAL BY JURY ON ALL ISSUES TRIABLE TO A JURY Awarding Plaintiffs treble damages; Awarding Plaintiffs punitive damages; Ordering disgorgement of Defendants' profits earned as a result of the infringing 25 Respectfully submitted, ERICH SPECHT, individually and doing business as ANDROID DATA CORPORATION, and THE ANDROID'S DUNGEON INCORPORATED By: P. Andrew Fleming John F. Shonkwiler John B. Haarlow, Jr. NOVACK AND MACEY LLP 100 North Riverside Plaza Chicago, IL 60606 (312) 419-6900 Doc. #370687 /s/ John F. Shonkwiler One of Their Attorneys Martin Murphy 2811 RFD Long Grove, IL 60047 (312) 933-3200 26 CERTIFICATE OF SERVICE John F. Shonkwiler, an attorney, certifies that he caused copies of the foregoing Third Amended Complaint to be served by electronically filing the document with the Clerk of Court using the ECF system this 13th day of July, 2010. /s/ John F. Shonkwiler

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