J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 89

DECLARATION of Partha P. Chattoraj in Support re: 87 MOTION for Partial Summary Judgment.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90)(Chattoraj, Partha)

EXHIBIT21

TRADEMARK AND DOMAIN NAME ASSIGNMENT AGREEMENT
This Trademark and Domain Name Assignment Agreement (the "Agreemenf') is made
and is effective this 26th day of January, 2010 (the "Effective Date"), by and among
APPLE INC., a California corporation with offices at 1 Infinite Loop, Cupertino, California
95014 ("Apple"), FAMILY SYSTEMS LIMITED, a corporation formed under the laws of
the Isle of Man whose address is 8 St. George's Street, Douglas, IM1 AH, Isle of Man
("Family"), and BRIAN REYNOLDS, a British citizen whose address is Kimmage
Cottage, Round Hill Hotel, Montego Bay, Jamaica ("Reynolds").
BACKGROUND
A.
Family owns registrations of the mark !BOOK in the United States, Japan and
Jamaica as shown in Exhibit A (collectively, the "Registrations"), and owns registrations
of the domain names IBOOK.COM, IBOOK.NET, IBOOK.ORG, I-BOOK. COM, 1BOOK.NET, and 1-BOOK.ORG (collectively, the "Domains"). Reynolds is a Director of
Family and its Chief Executive Officer.

B.
Apple owns registrations of the mark IBOOK in the United States and in other
jurisdictions.
C.
Family and Apple entered into a Consent Agreement dated May 7, 1999 (the
"Consent Agreement"), in which each party agreed to limit its use and registration of the
IBOOK mark. Family and Apple have now agreed to terminate the Consent Agreement
and all of their respective covenants and obligations under the Consent Agreement, and
Family has agreed to transfer to Apple all right, title, and interest in the Registrations
and the Domains, and any other rights that Family rnay have or claim in the mark and
trade name IBOOK in any jurisdiction, as set forth in this Agreement.
NOW, THEREFORE, intending to be legally bound, and in consideration of the mutual
covenants contained herein, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
TERMS OF AGREEMENT
1.
Assignment of Rights. Family hereby irrevocably transfers and assigns to Apple
all right, title and interest in and to the Registrations and the Domains, and any other
rights or registrations that Family may have or may claim in the mark and trade name
IBOOK in all jurisdictions throughout the world, including without limitation any common
law rights, and all goodwill associated therewith (collectively, the "Trademark Rights").
Simultaneous with the execution of this Agreement, Family will execute the assignments
of the Registrations attached as Exhibits B, C, and D (the "Assignments"). After
initiating the wire transfer described in Section 2 below, Apple or its counsel shall notify
Family's counsel that such wire transfer has been initiated, via an email to Brewster
Taylor at [e-mail]. Promptly after such email is transmitted, and in no event
longer than one (1) business day after such email is transmitted, Family shall (a)
transmit electronic copies of the executed Assignments to Apple and its counsel, (b)
send the original executed Assignments to Apple via overnight courier, and (c) consent
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to the transfer of the Domains from Family's registration account with GoDaddy.com Inc.
to Apple's designated registration account with GoDaddy.com Inc. or such other
registration account as Apple may designate. Promptly thereafter, Family will execute
such other documents, make such electronic transfers, take such other action, and
provide Apple with such other information and documentation, as Apple may reasonably
request to evidence and fully consummate the irrevocable transfer and assignment to
Apple of the Registrations, the Domains, and the Trademark Rights (collectively, the
"Transferred Rights"), will provide Apple with copies of its files related to the prosecution
or maintenance of the Registrations, and will provide Apple with such documentation as
is necessary to satisfy Apple that Family is the sole and exclusive owner of all rights in
the Domains. Apple shall not assume, and shall have no obligation with respect to, any
liabilities of Family.
'
2.
Purchase Price. In consideration of the assignment of the Transferred Rights
and the other agreements, covenants, representations and warranties in this
payment of
Agreement, Apple will pay Family
which will be made to Family within ten (10) business days after counsel for Family has
provided counsel for Apple with a copy of this Agreement executed by Family. Payment
shall be made to Family by wire transfer from Apple to:
Bank Name:
ABA Transit #:
A/C#:
Beneficiary:

Reference:
SWIFT CODE:

Citibank N.A.
111 Wall Street, New York, N.Y
First Global Bank Ltd.
28-48 Barbados Avenue
Kingston 5
Jamaica
For further credit to ale#
Limited.
CITIUS33

i.n.o. Family Systems

The wire transfer advice shall indicate payment by Apple Inc. to Family Systems Limited
of
and the wire transfer information provided above. Apple shall
notify Family when the wire transfer has been initiated and provide adequate support
and information so that the wire transfer can be confirmed by Family. The wire transfer
will be considered to have been completed when the full value of
Apple shall not be responsible for the errors or omissions
posts in account
of other parties, acts of God, or other circumstances beyond Apple's control which result
in the delay of receipt of the full wire transfer payment. However, in the event that Apple
fails to send the wire transfer instructions within twenty (20) business days after counsel
for Family has provided counsel for Apple with a copy of this Agreement executed by
Family, Apple will upon notice from Family reassign the Transferred Rights to Family,
and Apple will have no further liability for payment.
3.
Representations and Warranties. Family and Reynolds each represents and
warrants as follows:

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(a) Family is a corporation duly organized, validly existing, and in good
standing under the laws of the Isle of Man, has full power and authority to enter into this
Agreement, to consummate the transfer of the Transferred Rights, and to make its
covenants, warranties, and representations and perform its obligations under this
Agreement, and has taken all corporate actions and approvals necessary to authorize
Family's execution, delivery and performance of this Agreement.
(b) Family's entry into this Agreement, the consummation of the
transactions contemplated by this Agreement, and the fulfillment of its obligations under
this Agreement will not violate or conflict with any provision of Family's corporate
governance documents, and will not result in a violation or breach of any existing
agreement to which Family is a party or any obligation by which it or its assets are
bound. No consent, waiver, or approval from any third party is required in connection
with Family's execution, delivery and performance of this Agreement, the consummation
of the transactions contemplated by this Agreement, or the fulfillment of its obligations
under this Agreement.
(c) Family is the sole and exclusive owner of the Registrations and the
Domains, free and clear of any liens, mortgages, pledges, security interests, restrictions
on transfer, and other claims and encumbrances, and Family has not made any transfer
of any interest in any of the Registrations, the Domains, or the Trademark Rights.
Family has paid all registration and maintenance fees necessary to maintain the
registration of the Domains in good standing in Family's name, and the registration
records associated with the Domains do not contain any false, misleading, or
incomplete information regarding the registrant or administrative and technical contacts.
Following the consummation of the transactions and the execution of the instruments of
transfer contemplated by this Agreement, all right, title and interest to the Domains and
Registrations will irrevocably vest in Apple.
(d) Family does not own any registrations of any marks or domain names
containing the term IBOOK except for the Registrations and the Domains.
(e) Family has not received, and is not otherwise aware of, any claim or
allegation, either pending or threatened, relating to Family's use or ownership of any
form of the IBOOK mark or trade name or any Domain, or seeking to cancel any
Registration. No Registration or Domain is subject to any ongoing proceeding or
outstanding decree, order, judgment agreement, or stipulation that restricts its use or
transfer.
Reynolds represents and warrants that he is a British citizen and is Chief Executive
Officer and a Director of Family, and in his capacity as Director is authorized to execute
and deliver this Agreement on behalf of Family.
4.
Termination of Consent Agreement. The parties hereby terminate the Consent
Agreement, and fully and forever release and discharge each other, and each other's
respective affiliates, successors, assigns, directors, officers, and employees, from all

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covenants and obligations under the Consent Agreement and from any and all claims
and causes of action (including without limitation claims for injunctive relief, costs,
damages, and other remedies, including those damages not yet known or
ascertainable) that a party has or might have or assert arising out of or in connection
with the Consent Agreement, or the use, application for registration, or registration of
the mark IBOOK through the Effective Date (including without limitation claims for
breach of the Consent Agreement, or claims for infringement, dilution, passing off, unfair
competition, or other tortious acts involving any form or variation of the mark I BOOK).
5.
Obligations. Family and Reynolds each covenants and agrees that after the
Effective Date it will not directly or indirectly (a) challenge or claim adversely to the title
or rights of Apple or any of its affiliates or licensees in any mark or trade name that (i)
consists of the term IBOOK or (ii) incorporates any form of the term I BOOK together
with other words, characters, designs, or devices (such marks or trade names to be
collectively referred to as "!BOOK Marks" or an "!BOOK Mark"), (b) challenge, oppose,
or seek to cancel or enjoin the use or registration of any IBOOK Mark by Apple or any of
its affiliates or licensees, (c) challenge or claim adversely to the title or rights in any
Domain or Registration of Apple or any of its affiliates or licensees, (d) use any IBOOK
Mark (other than as provided in Section 6 below), or (e) register or apply for registration
of any mark or domain name consisting of or incorporating any !BOOK Mark. Without
limiting the foregoing, neither Family nor Reynolds after the Effective Date will use any
I BOOK Mark as the name of any software or other product or service, as a corporate
name or business name, or otherwise in connection with the marketing, advertising,
offering for sale, or selling any products or services.
6.
Transition. Notwithstanding Section 5(d) above, Family shall have ten (10) days
after the Effective Date of this Agreement to phase out its use of IBOOK and its web
. sites under the registered domain name ibook.com and host names containing
ibook.com.
7.
Authority. The undersigned representative of each of the parties represents and
warrants that he is authorized to enter into the terms and conditions of this Agreement,
and to execute for and bind the party which he represents.
8.
Successors and Assigns. Each party's rights and obligations under this
Agreement will bind and inure to the benefit of the parties' successors, assigns,
licensees, and affiliates.
9.
Entire Agreement. This Agreement represents the entire understanding between
the parties and supersedes any prior discussions or understandings with respect to its
subject matter. Any amendment to this Agreement must be in writing referring to this
Agreement and signed by both parties.
10.
Confidentiality. With the exception of the Assignments to be recorded with the
trademark offices in the United States, Japan, and Jamaica, this Agreement and its
terms shall be considered confidential, and neither party shall disclose any such
confidential information without express prior written consent from the other party.
Notwithstanding the foregoing, if a party receives a court order or other legal notice

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requiring disclosure of this Agreement and its terms, it will provide the other party with
prompt written notice of the order or notice and, before making any such disclosure, will
provide the other party with reasonable assistance in opposing the disclosure or limiting
the disclosure to information that is strictly required by such order or notice. If a party
files a legal proceeding against the other alleging breach of this Agreement, it will file
such claim under seal or take other steps to avoid public disclosure of the terms of the
Agreement. No statement shall be provided by either party to the press regarding this
Agreement. However, nothing in this paragraph shall preclude either party from stating
that Family has transferred all of its rights in IBOOK pursuant to an Agreement with
Apple, provided that such statement is not made to the press, on the Internet, or in any
other public forum, medium, or manner.
11.
Partial Invalidity. No Waiver. If any provision of this Agreement is found invalid or
unenforceable, the remainder of this Agreement will remain unaffected, and the invalid
or unenforceable provision shall be replaced with a valid and enforceable provision that
most nearly reflects the original intent of the parties. The failure of either party to
enforce any provision of this Agreement, or any delay by any party in the enforcement of
any right hereunder, shall not be deemed a waiver of that provision.
12.
Notice. Any notice or other communication required to be given pursuant to this
Agreement shall be in writing and delivered for next day delivery by a recognized,
overnight courier or express delivery service, accompanied by contemporaneous
facsimile transmission, to the following addresses:
If to Family and Reynolds: Brian Reynolds
Kimmage Cottage
Round Hill Hotel
Montego Bay
Jamaica
with a copy to:

Brewster Taylor
Stites & Harbison PLLC
1199 N. Fairfax Street, Suite 900
Alexandria, VA 22314
Telephone: [phone]
Facsimile: 703-518-2936
[e-mail]

If to Apple:

Apple Inc.
1 Infinite Loop, MS: 3TM
Cupertino, California 95014
Attn: Thomas La Perle
Telephone: [phone]
Facsimile: 408-253-0186
[e-mail]

with a copy to:

Anthony Lupo
Arent Fox LLP

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1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Telephone: [phone]
Facsimile: 202-857-6395
[e-mail]
Either party may change the address(es) or person(s) to which such notices or other
communications are to be sent by written notice to the other party pursuant to the
provisions of this section.
13.
Applicable Law and Jurisdiction. This Agreement is governed exclusively by the
laws of the State of California, without regard to its conflict of law provisions. All
disputes arising out of or in connection with this Agreement shall be solely and
exclusively resolved by a court of competent jurisdiction sitting within the County of
Santa Clara, State of California. The parties hereby consent to the jurisdiction of the
Courts of the State of California and the United States District Court of the Northern
District of California and waive any objections or rights as to forum non conveniens, lack
of personal jurisdiction or similar grounds with respect to any dispute relating to this
Agreement. In the event of any litigation before any court or arbitrator or other
governmental body (whether initiated by any party or any third party), the parties agree
that they shall cooperate in seeking appropriate protective orders and otherwise use
their reasonable best efforts to prevent public disclosure of the terms and conditions,
existence and parties to this Agreement and the transactions contemplated hereby.
Assignor certifies that it has read the provisions of California Civil Code § 1542, and
waives, to the extent applicable, any and all rights under California Civil Code § 1542,
which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
14.
Term and ScoJ?e. This Agreement shall begin on the date set forth above and
shall be perpetual, and shall be effective worldwide.

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lN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives and made effective as of the date set forth above.

APPLE INC.
By:

Title:

I?==::---..

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A

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L

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FAMl~f SYST~~S LI~ED
l /
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.
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. ., .-- ' •'- i !l./\

By •

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Name: Brian Reynolds C Title: Director and Chief Executive Officer

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Exhibit A
Trademark Registrations

Country

Mark

us

I BOOK

Japan

Registratio
Goods & Services
n No.
2,446,634 International Class 9: Computer
software used to support and create
interactive, user-modifiable electronic
books.

IBOOK

4510995

National Class 11 C01: Electronic
machines, instruments and parts.

Registration
Date
April 24, 2001

October 5, 2001

International Class 9: Computer
programs to be downloaded via
computer networks; computers
(including central processing units,
and electronic circuits, magnetic
discs and magnetic tapes in which
computer programs are recorded and
other peripherals); and other
!electronic machines and instruments
and parts thereof
Jamaica

IBOOK

33,723

International Class 9: Computer
software used to support and create
interactive, user-modifiable electronic
books.

July 23, 1998
(Renewed
July 23,
2005)

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Exhibit B
TRADEMARK ASSIGNMENT

Whereas FAMILY SYSTEMS LIMITED, a corporation formed under the laws of
the Isle of Man with offices at 8 St. George's Street, Douglas, IM1 AH, Isle of Man
("Assignor"), owns U.S. trademark registration No. 2,446,634; and
Whereas APPLE INC., a California corporation with offices at 1 Infinite Loop,
Cupertino, California 95014 ("Assignee"), wishes to acquire the Registration, any other
rights or registrations that Assignor may have or may claim in the mark and trade name
IBOOK, including without limitation any common law rights, and the goodwill of the
business pertaining thereto.
Now, therefore, for good and valuable consideration, receipt of which is hereby
acknowledged, Assignor hereby irrevocably transfers and assigns to Assignee all right,
title and interest in and to the Registration, any other rights or registrations that Assignor
may have or may claim in the mark and trade name !BOOK, including without limitation
any common law rights, and the goodwill of the business pertaining thereto.
FAMILY SYSTEMS LIMITED
By:
Name: Brian Reynolds
Title: Chief Executive Officer
Dated January_, 2010

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Exhibit C

ASSIGNMENT AND CONSENT
We, Family Systems Limited, a corporation duly organized and existing under the
laws of the Isle of Man, having its principal place of business at 8 St. George's Street,
Douglas, IM1 AH, Isle of Man, United Kingdom, do hereby assign and convey the entire
title and interest in and to the Japanese Trademark Registration No. 4510995 to Apple
Inc., a corporation duly organized and existing under the laws of the State of California,
U.S.A., having its principal place of business at 1 Infinite Loop, Cupertino, California
95014, U.S.A.
We do further hereby give consent to the said assignee to take solely in its name
all necessary procedures for recording this assignment at the Japanese Patent Office
on the basis of the assignment herein made.

Dated: _ _ _ _~ 2010
Family Systems Limited
BY:

-----------------------

Brian Reynolds, Director and Chief Executive Officer

(NO LEGALIZATION NECESSARY)

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Exhibit D

TRADEMARK ASSIGNMENT
Whereas FAMILY SYSTEMS LIMITED, a corporation formed under the laws of
Isle of Man with offices at 8 St. George's Street, Douglas, IM1 AH, Isle of Man
("Assignor"), owns Jamaica trademark registration No. 33,723 (the "Registration"); and
Whereas APPLE INC., a California corporation with offices at 1 Infinite Loop,
Cupe1iino, California 95014 ("Assignee"), wishes to acquire the Registration, and any
other rights or registrations that Assignor may have or may claim in the mark and trade
name IBOOK.
Now, therefore, for good and valuable consideration, receipt of which is hereby
acknowledged, Assignor hereby irrevocably transfers and assigns to Assignee all right,
title and interest in and to the Registration, and any other rights or registrations that
Assignor may have or may claim in the mark and trade name IBOOK.
FAMILY SYSTEMS LIMITED
By:
Name:
Title: Brian Reynolds
Director and Chief Executive Officer
Dated January_, 2010
Subscribed and sworn to
before me on

, 2010.

Notary Public

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ijlfc!l•lp'a•r··j'l••'?tl!tJ'IuJ•:tj'ff''W£"!!}'f•lf)·
Form Title*

Family Systems limited

Creation Date

1/29/10

Requestor Name

CAROL BOMMARITO

Route Number

474332

Route Type

STANDARD~

Division/Co Code *

0056~

Workflow description

Payment Request

Vendor#*
Vendor Name
Address

i®:1ii~ ~
. FAMILY SYSTEMS
UMITED

Invoice#"

431594

Status

Posted

Invoice Date *

1{29/10

Payment Terms

Z100~

1,000,000.00

Document Header
Text

iBook settlement pmt

Vendor Line Text

Approved by Tom
LaPerle

8 ST. GEORGE'S STREET Invoice Amount

City

DOUGLAS

Tax amount

0.00

Vendor
State/Region

IM

Invoice Currency •

USD~

Vendor Postal Code

1AH

Vendor Country

GB

OTA Payee Name

OTABank Key

OTA Payee Address

OTA Bank country

OTA Payee City

OTA Bank Account#

OTA

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