Variant Holdings LLC etal vs Z Resorts LLC

Filing 1

COMPLAINT against ESA P PORTFOLIO L.L.C. D/B/A EXTENDED STAY HOTELS, EXTENDED STAY AMERICA, INC. D/B/A EXTENDED STAY HOTELS, GIVENS-RECORDS DEVELOPMENT, LTD D/B/A HOTEL ZAZA DALLAS, HVM, LLC D/B/A EXTENDED STAY HOTELS, NEXTAG, INC., PRICE WATCH CORP., ROSEWOOD HOTEL INVESTMENTS, INC., ROSEWOOD HOTELS AND RESORTS, L.L.C., ROSEWOOD PROPERTY COMPANY D/B/A ROSWOOD MANSION ON TURTLE CREEK, RRCC, L.P. D/B/A ROSEWOOD CRESCENT HOTEL, STREETPRICES.COM, INC. D/B/A STREETPRICES.COM CORP. D/B/A STREETPRICES.COM, TANGLEWOOD RESORT PROPERTIES, INC. D/B/A TANGLEWOOD RESORT, THE CARLYLE, LLC D/B/A THE CARLYLE, A ROSEWOOD HOTEL, TRANSFORMATION 5701, L.P. DBA HOTEL ZAZA HOUSTON, TRAVELNET SOLUTIONS, INC., YELP! INC., Z RESORTS LLC D/B/A HOTEL ZAZA, Z RESORTS MANAGEMENT, L.L.C. D/B/A HOTEL ZAZA, Z RESORTS, INC. D/B/A HOTEL ZAZA ( Filing fee $ 350 receipt number 0540-3083048.), filed by VARIANT, INC., VARIANT HOLDINGS, LLC. (Attachments: # 1 Civil Cover Sheet)(Edmonds, John)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VARIANT HOLDINGS, LLC
AND VARIANT, INC.
PLAINTIFF,
NO. ________________

v.
Z RESORTS LLC D/B/A HOTEL ZAZA; Z RESORTS
MANAGEMENT, L.L.C. D/B/A HOTEL ZAZA;
Z RESORTS, INC. D/B/A HOTEL ZAZA;
TRANSFORMATION 5701, L.P. DBA HOTEL ZAZA
HOUSTON; GIVENS-RECORDS DEVELOPMENT,
LTD D/B/A HOTEL ZAZA DALLAS; ESA P
PORTFOLIO L.L.C. D/B/A EXTENDED STAY
HOTELS; HVM, LLC D/B/A EXTENDED STAY
HOTELS; EXTENDED STAY AMERICA, INC. D/B/A
EXTENDED STAY HOTELS; NEXTAG, INC.;
PRICE WATCH CORP.; ROSEWOOD HOTEL
INVESTMENTS, INC.; ROSEWOOD HOTELS AND
RESORTS, L.L.C.; RRCC, L.P. D/B/A ROSEWOOD
CRESCENT HOTEL; ROSEWOOD PROPERTY
COMPANY D/B/A ROSWOOD MANSION ON TURTLE
CREEK; THE CARLYLE, LLC D/B/A THE CARLYLE,
A ROSEWOOD HOTEL; STREETPRICES.COM, INC.
D/B/A STREETPRICES.COM CORP. D/B/A
STREETPRICES.COM; TANGLEWOOD RESORT
PROPERTIES, INC. D/B/A TANGLEWOOD RESORT;
TRAVELNET SOLUTIONS, INC. AND YELP! INC.

JURY TRIAL DEMANDED

DEFENDANTS.
COMPLAINT FOR PATENT INFRINGEMENT
Plaintiffs VARIANT HOLDINGS, LLC and VARIANT, INC. file this Complaint against
the Defendants named herein, namely Z RESORTS LLC D/B/A HOTEL ZAZA; Z RESORTS
MANAGEMENT, L.L.C. D/B/A HOTEL ZAZA; Z RESORTS, INC. D/B/A HOTEL ZAZA;
TRANSFORMATION 5701, L.P. D/B/A HOTEL ZAZA HOUSTON; GIVENS-RECORDS
DEVELOPMENT, LTD D/B/A HOTEL ZAZA DALLAS; ESA P PORTFOLIO L.L.C. D/B/A

EXTENDED STAY HOTELS; HVM, LLC D/B/A EXTENDED STAY HOTELS; EXTENDED
STAY AMERICA, INC. D/B/A EXTENDED STAY HOTELS; NEXTAG, INC.; PRICE
WATCH CORP.; ROSEWOOD HOTEL INVESTMENTS, INC.; ROSEWOOD HOTELS AND
RESORTS, L.L.C.; RRCC, L.P. D/B/A ROSEWOOD CRESCENT HOTEL; ROSEWOOD
PROPERTY COMPANY D/B/A ROSWOOD MANSION ON TURTLE CREEK; THE
CARLYLE, LLC D/B/A THE CARLYLE, A ROSEWOOD HOTEL; STREETPRICES.COM,
INC. D/B/A STREETPRICES.COM CORP. D/B/A STREETPRICES.COM; TANGLEWOOD
RESORT

PROPERTIES,

INC.

D/B/A

TANGLEWOOD

RESORT;

TRAVELNET

SOLUTIONS, INC. AND YELP! INC. (collectively “Defendants”), as follows:
PARTIES
1.

Plaintiff VARIANT HOLDINGS, LLC has a place of business in Charlestown,

2.

Plaintiff VARIANT, INC. has a place of business in McFarland, Wisconsin.

Nevis.

Hereinafter, VARIANT HOLDINGS, L.L.C. and VARIANT, INC. are collectively referred to as
“VARIANT.”
3.

On information and belief, Defendant Z RESORTS LLC D/B/A HOTEL ZAZA

has a place of business in Dallas, Texas.
4.

On information and belief, Defendant Z RESORTS MANAGEMENT, L.L.C.

D/B/A HOTEL ZAZA has a place of business in Dallas, Texas.
5.

On information and belief, Defendant TRANSFORMATION 5701, L.P. D/B/A

HOTEL ZAZA HOUSTON has a place of business in Houston, Texas.
6.

On information and belief, Defendant GIVENS-RECORDS DEVELOPMENT,

LTD D/B/A HOTEL ZAZA DALLAS has a place of business in Dallas, Texas.

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7.

On information and belief, Defendant Z RESORTS, INC. D/B/A HOTEL ZAZA

has a place of business in Dallas, Texas. Hereinafter, Z RESORTS LLC D/B/A HOTEL ZAZA,
Z RESORTS MANAGEMENT, L.L.C. D/B/A HOTEL ZAZA; Z RESORTS, INC. D/B/A
HOTEL ZAZA; TRANSFORMATION 5701, L.P. D/B/A HOTEL ZAZA HOUSTON and
GIVENS-RECORDS DEVELOPMENT, LTD D/B/A HOTEL ZAZA DALLAS are collectively
referred to as “ZAZA.”
8.

On information and belief, Defendant ESA P PORTFOLIO L.L.C. D/B/A

EXTENDED STAY HOTELS has a place of business in Spartanburg, South Carolina.
9.

On information and belief, Defendant HVM, LLC D/B/A EXTENDED STAY

HOTELS has a place of business in Spartanburg, South Carolina.
10.

On information and belief, Defendant EXTENDED STAY AMERICA, INC.

D/B/A EXTENDED STAY HOTELS has a place of business in Spartanburg, South Carolina.
Hereinafter, ESA P PORTFOLIO L.L.C. D/B/A EXTENDED STAY HOTELS, HVM, LLC
D/B/A EXTENDED STAY HOTELS, and EXTENDED STAY AMERICA, INC. D/B/A
EXTENDED STAY HOTELS are collectively referred to as “EXTENDED STAY.”
11.

On information and belief, Defendant NEXTAG, INC. (“NEXTAG”) has a place

of business in San Mateo, California.
12.

On information and belief, Defendant PRICE WATCH CORP. (“PRICE

WATCH”) has a place of business in San Antonio, Texas.
13.

On information and belief, Defendant ROSEWOOD HOTEL INVESTMENTS,

INC. has a place of business in Dallas, Texas.
14.

On information and belief, Defendant ROSEWOOD HOTELS AND RESORTS,

L.L.C. has a place of business in Dallas, Texas.

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15.

On information and belief, Defendant RRCC, L.P. D/B/A ROSEWOOD

CRESCENT HOTEL has a place of business in Dallas, Texas.
16.

On information and belief, Defendant ROSEWOOD PROPERTY COMPANY

D/B/A ROSWOOD MANSION ON TURTLE CREEK has a place of business in Dallas, Texas.
17.

On information and belief, Defendant THE CARLYLE, LLC D/B/A THE

CARLYLE, A ROSEWOOD HOTEL has a place of business in New York, New York.
Hereinafter, ROSEWOOD HOTEL INVESTMENTS, INC.; ROSEWOOD HOTELS AND
RESORTS, L.L.C.; RRCC, L.P. D/B/A ROSEWOOD CRESCENT HOTEL; ROSEWOOD
PROPERTY COMPANY D/B/A ROSWOOD MANSION ON TURTLE CREEK and THE
CARLYLE, LLC D/B/A THE CARLYLE, A ROSEWOOD HOTEL are collectively referred to
as “ROSEWOOD.”
18.

On information and belief, Defendant STREETPRICES.COM, INC. D/B/A

STREETPRICES.COM CORP. D/B/A STREETPRICES.COM (“STREETPRICES”) has a place
of business in San Clara, California.
19.

On information and belief, Defendant TANGLEWOOD RESORT PROPERTIES,

INC. D/B/A TANGLEWOOD RESORT (“TANGELEWOOD”) has a place of business in
Pottsboro, Texas
20.

On information and belief, Defendant TRAVELNET SOLUTIONS, INC.

(“TRAVELNET”) has a place of business in Cottage Grove, Minnesota.
21.

On information and belief, Defendant YELP! INC. (“YELP”) has a place of

business in San Francisco, California.

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JURISDICTION AND VENUE
22.

This action arises under the patent laws of the United States, Title 35 of the

United States Code. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1338(a). On information and belief, the Defendants are subject to this Court’s specific and
general personal jurisdiction, pursuant to due process and/or the Texas Long Arm Statute, due at
least to their substantial business in this forum, including related to the infringements alleged
herein. Further, on information and belief, Defendants have interactive websites comprising
infringing methods and apparatuses which are at least used in and/or accessible in this forum.
Further, on information and belief, Defendants are subject to the Court’s general jurisdiction,
including from regularly doing or soliciting business, engaging in other persistent courses of
conduct, and/or deriving substantial revenue from goods and services provided to persons or
entities in Texas.
23.

Venue is proper in this district under 28 U.S.C. §§ 1391(b), 1391(c) and 1400(b).

Without limitation, on information and belief, Defendants are subject to personal jurisdiction in
this district. On information and belief, the Defendants are subject to this Court’s specific and
general personal jurisdiction in this district, pursuant to due process and/or the Texas Long Arm
Statute, due at least to their substantial business in this district, including related to the
infringements alleged herein. Further, on information and belief, Defendants have interactive
websites comprising infringing methods and apparatuses which are at least used in and/or
accessible in this district. Further, on information and belief, Defendants are subject to the
Court’s general jurisdiction in this district, including from regularly doing or soliciting business,
engaging in other persistent courses of conduct, and/or deriving substantial revenue from goods
and services provided to persons or entities in this district. This Court has subject matter

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jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a). On information and belief, the
Defendants are subject to this Court’s specific and general personal jurisdiction, pursuant to due
process and/or the Texas Long Arm Statute, due at least to their substantial business in this
forum, including related to the infringements alleged herein. Further, on information and belief,
Defendants have interactive websites comprising infringing methods and apparatuses which are
at least used in and/or accessible in this forum. Further, on information and belief, Defendants
are subject to the Court’s general jurisdiction, including from regularly doing or soliciting
business, engaging in other persistent courses of conduct, and/or deriving substantial revenue
from goods and services provided to persons or entities in Texas.
COUNT I
INFRINGEMENT OF U.S. PATENT NO. 7,624,044
24.

United States Patent No. 7,624,044 (the “‘044 patent”), entitled “System for

marketing goods and services utilizing computerized central and remote facilities,” duly and
legally issued on November 24, 2009.
25.

VARIANT HOLDINGS, LLC is the assignee of the ‘044 Patent. VARIANT,

INC. is the exclusive licensee of the ‘044 patent. Plaintiffs have standing to bring this lawsuit
for infringement of the ‘044 Patent.
26.

The claims of the ‘044 Patent cover, inter alia, apparatuses to market and/or sell

goods or services over an electronic network comprising: a first computerized central
communications facility adapted to be linked to a computerized remote facility and to a plurality
of other computerized central communications facilities wherein at least one of said
computerized central communications facilities is adapted to provide customer information
regarding rentals.

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27.

The claims of the ‘044 Patent cover, inter alia, apparatuses to market and/or sell

goods or services over an electronic network comprising a first computerized central
communications facility adapted to be linked to a computerized remote facility and to a plurality
of other computerized central communications facilities, wherein at least one of the
computerized central communications facilities is adapted to provide customers a list of
computerized central communications facilities permitting such customers to select and contact
the other computerized central communications facilities to request additional information
relating to goods or services.
28.

On information and belief, all Defendants named herein have infringed the ‘044

patent pursuant to 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities.
29.

On information and belief, ZAZA has infringed the ‘044 patent in violation of 35

U.S.C. § 271 through actions comprising the making, using, selling and/or offering for sale in the
United States of apparatuses to market and/or sell goods or services over an electronic network
comprising a first computerized central communications facility adapted to be linked to a
computerized remote facility and to a plurality of other computerized central communications
facilities, wherein at least one of said computerized central communications facilities is adapted
to provide customer information regarding rentals, and which are covered by one or more claims
of the ‘044 patent. On information and belief, such apparatuses comprise www.hotelzaza.com.

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30.

On information and belief, EXTENDED STAY has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities, wherein at least one of said computerized central communications
facilities is adapted to provide customer information regarding rentals, and which are covered by
one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.exstay.com,

www.homesteadhotels.com,

www.extendedstayamerica.com,

www.extendedstaydeluxe.com, www.studioplus.com and/or www.crosslandstudios.com.
31.

On information and belief, NEXTAG has infringed the ‘044 patent in violation of

35 U.S.C. § 271 through actions comprising the making, using, selling and/or offering for sale in
the United States of apparatuses to market and/or sell goods or services over an electronic
network comprising a first computerized central communications facility adapted to be linked to
a computerized remote facility and to a plurality of other computerized central communications
facilities, wherein at least one of the computerized central communications facilities is adapted to
provide customers a list of computerized central communications facilities permitting such
customers to select and contact the other computerized central communications facilities to
request additional information relating to goods or services, and which are covered by one or
more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.nextag.com.
32.

On information and belief, PRICE WATCH has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or

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offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities, wherein at least one of the computerized central communications
facilities is adapted to provide customers a list of computerized central communications facilities
permitting such customers to select and contact the other computerized central communications
facilities to request additional information relating to goods or services, and which are covered
by one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.pricewatch.com.
33.

On information and belief, ROSEWOOD has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities, wherein at least one of said computerized central communications
facilities is adapted to provide customer information regarding rentals, and which are covered by
one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.crescentcourt.com.
34.

On information and belief, STREETPRICES has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central

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communications facilities, wherein at least one of the computerized central communications
facilities is adapted to provide customers a list of computerized central communications facilities
permitting such customers to select and contact the other computerized central communications
facilities to request additional information relating to goods or services, and which are covered
by one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.streetprices.com.
35.

On information and belief, TANGELEWOOD has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities, wherein at least one of said computerized central communications
facilities is adapted to provide customer information regarding rentals, and which are covered by
one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.tanglewood.com.
36.

On information and belief, TRAVELNET has infringed the ‘044 patent in

violation of 35 U.S.C. § 271 through actions comprising the making, using, selling and/or
offering for sale in the United States of apparatuses to market and/or sell goods or services over
an electronic network comprising a first computerized central communications facility adapted to
be linked to a computerized remote facility and to a plurality of other computerized central
communications facilities, wherein at least one of said computerized central communications
facilities is adapted to provide customer information regarding rentals, and which are covered by

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one or more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.resortsandlodges.com.
37.

On information and belief, YELP has infringed the ‘044 patent in violation of 35

U.S.C. § 271 through actions comprising the making, using, selling and/or offering for sale in the
United States of apparatuses to market and/or sell goods or services over an electronic network
comprising a first computerized central communications facility adapted to be linked to a
computerized remote facility and to a plurality of other computerized central communications
facilities, wherein at least one of the computerized central communications facilities is adapted to
provide customers a list of computerized central communications facilities permitting such
customers to select and contact the other computerized central communications facilities to
request additional information relating to goods or services, and which are covered by one or
more claims of the ‘044 patent. On information and belief, such apparatuses comprise
www.yelp.com.
38.

To the extent that facts learned during the pendency of this case show that

Defendants' infringement includes indirect infringement, VARIANT reserves the right to amend
this complaint accordingly, and to request such a finding at time of trial.
39.

To the extent that facts learned during the pendency of this case show that this is

an “exceptional case,” VARIANT reserves the right to amend this complaint accordingly, and to
request such a finding at time of trial.
40.

To the extent that facts learned during the pendency of this case show that

Defendants' infringement is or has been willful, VARIANT reserves the right to amend this
complaint accordingly, and to request such a finding at time of trial.

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41.

As a result of Defendants’ infringing conduct, Defendants have damaged

VARIANT. Defendants are liable to VARIANT in an amount that adequately compensates
VARIANT for their infringement, which, by law, can be no less than a reasonable royalty.
PRAYER FOR RELIEF
WHEREFORE, VARIANT respectfully requests that this Court enter:
1.

A judgment in favor of VARIANT that Defendants have infringed the ‘044

2.

A permanent injunction enjoining Defendants, and their officers, directors, agents,

patent;

servants, affiliates, employees, divisions, branches, subsidiaries, parents, and all others acting in
active concert therewith from infringing the ‘044 patent;
3.

A judgment and order requiring Defendants to pay VARIANT its damages, costs,

expenses, fees and prejudgment and post-judgment interest for Defendants’ infringement of the
‘044 patent as provided under 35 U.S.C. §§ 284 and/or 285; and
4.

Any and all other relief to which VARIANT may show itself to be entitled.
DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, VARIANT requests a trial
by jury of any issues so triable by right.

June 16, 2011

Respectfully submitted,
COLLINS, EDMONDS & POGORZELSKI, PLLC

By: /s/ John J. Edmonds
John J. Edmonds – Lead Counsel
Texas Bar No. 789758
Stephen F. Schlather
Texas Bar No. 24007993
COLLINS, EDMONDS & POGORZELSKI, PLLC

1616 S. Voss Road, Suite 125
12

Houston, Texas 77057
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Andrew W. Spangler
Texas Bar No. 24041960
Spangler Law P.C.
208 N. Green Street, Suite 300
Longview, Texas 75601
[phone]
[phone] (fax)
[e-mail]
ATTORNEYS FOR PLAINTIFFS
VARIANT HOLDINGS, LLC AND
VARIANT, INC.

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