Isys Technologies v. Google et al

Filing 10

MEMORANDUM in Support re 9 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Plaintiff Isys Technologies. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8A, # 9 Exhibit 8B, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Zenger, Todd)

Exhibit 14

Todd E. Zenger (5238)
Dax D. Anderson (10168)
Joshua S. Rupp (12647)
KIRTON & McCONKIE
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
Phone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
ISYS TECHNOLOGIES, INC., a Nevada
Corporation,

Civil Action No. 2:11-CV-507 CW

Plaintiff,

Judge Clark Waddoups

vs.
GOOGLE, INC., a Delaware Corporation;
SAMSUNG ELECTRONICS USA, INC., a Delaware
Corporation; ACER AMERICA CORP., a
California Corporation; AMAZON.COM, INC., a
Delaware Corporation; and BEST BUY CO.,
INC., a Minnesota Corporation;

DECLARATION OF AARON ROWSELL
IN SUPPORT OF ISYS’ MOTION FOR
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Defendant.

I, Aaron Rowsell, am the Chief Operating Officer of ISYS Technologies, Inc. and its
subsidiary Xi3 Corporation, and I declare under penalty of perjury that the statements made
herein are true and correct and are based on my own personal knowledge:
1.

In or about late 1999, Jason Sullivan, President of ISYS, invented a new

computing system and methods for manufacturing the computer systems which have been named
Xi3® Technology (“Xi3 Technology”).

2.

Some of the features of the Xi3 Technology include closely-integrated circuitry in

a smaller dimensional space, a computing design that can be used in many computing
applications, fewer raw materials and manufacturing processes, cost savings due to the
uniformity and its modular functionality permitting components to be readily added or changed
as desired.
3.

Due to its modular design, the Xi3 computers can be readily configured to run a

number of operating systems, including Microsoft- or Linux-based operating systems.
4.

While including the functionality of standard computers and being able to be used

for all types of computing environments, some of the uniqueness of the Xi3 Technology is its
compact size of a 3½-inch cube, its durability, its light weight, its vertical applications and its
ability to cluster and scale for larger processing applications.
5.

In the Fall of 2009, ISYS began promoting its Modular Computer as an Xi3

product including the brand name CHROMIUMPC.
6.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand at trade shows.
7.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand in discussions with customers in different parts of the United States.
8.

Since 2009, ISYS has continuously promoted its new computers under the

CHROMIUMPC brand in electronic communications about its business including marketing and
sales emails to potential customers, Internet blogs, Twitter, Facebook, and its own
www.chromiumpc.com website, beginning in November 2009.
9.

ISYS is senior user and the owner of the mark CHROMIUMPC for use in

connection with computer hardware.
10.

On June 21, 2010, ISYS filed United States Trademark Application Serial No.

85/067977 for CHROMIUMPC for use in connection with computer hardware including
computer carrying cases, computer chassis, computer expansion boards, computer interface
boards, computer peripherals and computers (“CHROMIUMPC Application”).

2

11.

In November 2010, the Consumer Electronics Association, owner of the

International Consumer Electronics Show, announced that ISYS’ Xi3 Modular Computer was to
be recognized as a 2011 International CES Innovations Design and Engineering Award winner in
the computer hardware category.
12.

Images of the approximately 4” x 3½” Xi3 Modular Computer include:

13.

The Xi3 Modular Computer and other Xi3 Technology products thereafter

received rave reviews at the January 6-9, 2011 International Consumer Electronics Show in Las
Vegas, Nevada (“CES 2011”).
14.

A Business Wire New Release covering the CES 2011 show characterized the

impact of the Xi3 Technology as “Xi3 Corporation Rocks CES 2011.”
15.

A version of the Xi3 Modular computer is being branded and promoted as the

CHROMIUMPC computer.
16.

One example of the Xi3 CHROMIUMPC computer is depicted as follows:

3

17.

In December 2010, ISYS’ CHROMIUMPC application was published for

opposition.
18.

In 2008, Google initiated an open-source software development project named

Chromium.
19.

oogle invited independent third parties to participate.

20.

This Chromium software initiative was for software development by third parties

for an internet operating system.
21.

In November 2009, ISYS began using CHROMIUMPC in connection with its

modular computers.
22.

Representatives of Google and ISYS began communicating in the hopes of

resolving the matters.
23.

During the second extension period, on May 11, 2011 Google announced a new

hardware product bearing the brand CHROMEBOOK.
24.

A term “PC” is a commonly used term for hardware products.

25.

The term “book” is a commonly used term for hardware products.

26.

The term “box” is a commonly used term for hardware products.

4

27.

The terms “pc,” “book” and “box” equally connote hardware products for

personal computers in the computer industry.
28.

On May 11, 2011, Google announced the public launch of upcoming sales of its

CHROMEBOOK PC product and hinted at also using CHROMEBOX for a desktop PC.
29.

Since its May 11, 2011 announcement, a google search for the term

“CHROMEBOOK” has more than five million search results as opposed to the five-hundred
thousand search results on the chromiumpc name over the last two years.

This disparity

demonstrates Google’s ability to immediately saturate a market with marketing buzz and
overwhelm recognition of existing brands and trademarks.
30.

Google’s conduct has caused and is causing immediate and irreparable harm to

Plaintiff and unless enjoined will continue to cause Plaintiff immediate and irreparable harm.

DATED this 6th day of June, 2011.

By:

4847-9409-6649.1

5

s/Aaron Rowsell
Aaron Rowsell
Chief Operating Officer ISYS Technology
and Xi3 Corporation