Isys Technologies v. Google et al

Filing 9

MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order filed by Plaintiff Isys Technologies. (Attachments: # 1 Text of Proposed Order)(Zenger, Todd)

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
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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;

PLAINTIFF ISYS TECHNOLOGY INC.’S
COMBINED MOTION FOR
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

Defendant.

Plaintiff ISYS Technology, Inc. ("ISYS") through its counsel of record, respectfully
moves for entry of a preliminary injunction against Defendants Google Inc. ("Google"),
Samsung Electronics USA, Inc., (“Samsung”); Acer America Corp., (“Acer”); Amazon.com,
Inc., (“Amazon”); and Best Buy Co., Inc. (Best Buy).

ISYS files this motion, and seeks a preliminary injunction, for the following reasons:

1.

ISYS has continuous and extensive use of its trademark CHROMIUMPC in

interstate commerce since November 2009 as used in connection with computer hardware
products. Isys does not sell computer software.
2.

On June 21, 2010 ISYS filed an application for Federal Trademark Registration

No. 85/067977 (“977”) for the trademark CHROMIUMPC.

The United States Patent and

Trademark Office published the mark for opposition.
3.

ISYS is the senior user of the CHROMIUMPC mark in connection with computer

hardware.
4.

The software giant Google has never filed a trademark application for the

CHROMIUM mark in connection with computer hardware.
5.

Google filed an opposition to Isys’ CHROMIUMPC trademark application based

on its own CHROMIUM trademark application for software.
6.

Google abandoned its rights to the Chromium marks when it issued a naked

license for its software to the open-source community as part of the CHROMIUM project.
Google’s continued maintenance of the Opposition proceeding is done in bad faith.
7.

Google’s Opposition petition is improper because it has abandoned any rights it

may have had to the CHROMIUM mark it is asserting in the proceeding.
8.

Recently numerous reports, news stories and advertising by Google and others

states that Google has announced and intends to introduce a new computer system to be sold
under the name CHROMEBOOK, available for ordering on June 15, 2011.
9.

The websites for Samsung, Amazon and Best Buy also indicate that the Google’s

new product will be offered for sale in connection with CHROMEBOOK trademark.

10.

Google's use of the CHROMEBOOK mark is likely to cause reverse confusion

and false association between ISYS and Google.
11.

Google's use of the CHROMEBOOK mark, combined with its ability to

completely saturate a market with a trademark similar to Isys’ mark will irreparably damage
ISYS’s rights and goodwill in its CHROMIUMPC mark.
12.

ISYS moves the Court to preserve the status quo and prevent irreparable damage

to ISYS’ valuable trademark rights by preventing Defendants Google, Acer, Samsung, Amazon
and Best Buy from advertising, promoting and using the CHROMEBOOK mark.
A memorandum in support of ISYS’ Motions for Preliminary Injunction and Temporary
Restraining Order is submitted herewith.

DATED this 6th day of June, 2011.
KIRTON & McCONKIE
By:

s/Todd E. Zenger
Todd E. Zenger
Dax D. Anderson
Joshua S. Rupp

Attorney for Plaintiff
ISYS TECHNOLOGIES, INC.