Rosetta Stone LTD v. Google Inc.

Filing 81

Unopposed MOTION for Leave to File A FIRST AMENDED COMPLAINT by Rosetta Stone LTD. (Attachments: # 1 Exhibit 1 - First Amended Complaint, # 2 Exhibit 2 - Redline First Amended Complaint, # 3 Proposed Order)(Allen, Warren) Modified text on 3/4/2010 (klau, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division ROSETTA STONE LTD. 1919 North Lynn Street Arlington, Virg inia 22209, Plaint iff, Civil Action No. -v6BL/JFA(GBL/TCB) GOOGLE INC. 1600 Amphit heatre Parkway Mountain View, California 94043, Defendant. 1:09CV736

FIRST AMENDED COMPLAINT Plaint iff Rosetta Stone Ltd. ("Rosetta Stone"), through its counsel, for its Complaint against Google Inc. ("Google"), alleges as fo llows. NATURE OF THE ACTION 1. This lawsuit relates to the use of trademarks on the Internet, particularly Defendant

Google's unauthorized use of the famous trademarks and service marks that ident ify Rosetta Stone, the foremost language-educat ion co mpany in the United States, to Internet users (the "Rosetta Stone Marks"). The fundamental purpose of trademark law, in the bricks-and-mortar world and o n t he Int ernet, is to prot ect co nsumers fro m be in g co nfused as to t he so urce or affiliat io n o f t he pro duct s or services t hat t he y seek to buy. In order to assist co nsu mers in making informed purchasing decisio ns, trademark law encourages companies to develop brand names to different iate their products and services wit hin the marketplace. This is acco mplished by legally

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limit ing a brand's co mmercial use to the brand's owner. This lega l protect io n fu lly applies in the context of the Internet. 2. Unfortunately, so me individua ls and ent it ies attempt to take advant age o f

consumers by marketing their products or services using the brands of others. In effect, they seek to free r ide o n t he reputat io n and goo dwill o f a nother's brand. Because o f t he ease and lo w co st o f sett ing up a webs it e and t he speed wit h whic h Int ernet transact io ns o ccur, t his has beco me a part icu lar and gro wing pro ble m in co nnect io n wit h consumer purchases o f goods and services on the Internet. This lawsuit invo lves exact ly such a situat io n -- efforts by certain co mpanies to free ride on Rosetta Stone's brand wit h the act ive part icipat io n and assistance o f Google in such unauthorized and intent ional use o f Rosetta Stone's Marks through Google's techno logy. 3. Google owns and operates one o f the world's most-utilized Internet "search

engines." A search engine is a computer program that allows co mputer users to search the World Wide Web for websites containing particular content. Google's search engine is available not only o n it s own webs ite (www.google. co m), but also through other popular webs it es that use it s search engine. On information and belief, approximately 80% of all searches conducted worldwide use Google's search engine. 4. To use Google 's search eng ine, a Wo rld Wide Web user ("web user") need o nly

t ype in a few words and hit the "enter" key (or click on the "Google Search" button) to receive a list of hyperlinks ("links") to web pages that Google ident ifies as relevant to the search requested. Web users may then visit these web pages by clicking on the links that Google provides. Google maintains and, on informat ion and belief, many consumers believe, that the search results Google provides are the product of an object ive formula or algorithm that produces "natural" or "organic"

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result s, i.e., web list ings the display and placement of which are not influenced by payments to Google fro m the website owners. 5. Google, however, does not only provide Internet users with such "organic search

results." Without authorizat ion or approval from Rosetta Stone, Google has so ld to third parties the "right" to use the Rosetta Stone Marks or words, phrases, or terms confusingly similar to those marks, as "keyword" triggers that cause paid advertisements, which Google calls "Sponsored Links," to be displayed above or alongside the "organic search results." In many cases, the text and tit les of these "Sponsored Links" include Rosetta Stone Marks or terms confusingly similar to those marks. Thus, when consumers enter one of the Rosetta Stone Marks into Google's search engine to search or navigate the World Wide Web, instead of being directed to Rosetta Stone's website, Google's "Sponsored Links" may instead misdirect them to: (i) websites of co mpanies that compete with Rosetta Stone; (ii) websites that sell language educat ion not only for Rosetta Stone, but also for a variet y of compet itors of Rosetta Stone; (iii) websites that sell counterfeit Rosetta Stone products; or (iv) websites that are entirely unrelated to language educat ion. 6. Rosetta Stone does not bring this lawsuit light ly. Rosetta Stone has lo ng been and

remains a strong supporter of the Internet and the promise that it holds for consumers and societ y as a who le. Indeed, Rosetta Stone does not question that Google's search engine provides consumers with a powerful and highly-useful means to search the Internet for informat ion. That said, Google's search engine is helping third parties to mislead consumers and misappropriate the Rosetta Stone Marks by using them as "keyword" triggers for paid advertisements and by using them within the text or title of paid advert isements. This lawsuit seeks to stop only this aspect of Google's search engine function and not its abilit y to provide "organic search results." Indeed, Google has the abilit y to structure and configure its programming to stop this misuse of the Rosetta

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Stone Marks because it has already implemented procedures with respect to many non-U.S. Internet users that prevent the misuse o f trademarks. Google, however, has chosen not to implement these procedures for Internet users in the United States to the detriment of U.S. consumers and Rosetta Stone. THE PARTIES 7. Plaint iff Rosetta Stone is a corporation organized under the laws of the State of

Delaware with its principal place of business at 1919 North Lynn Street, Arlington, Virginia, which is within the Alexandria Divisio n of this District. 8. Upon informat ion and belief, Defendant Google is a corporation organized under

the laws o f the State of Delaware with a principal place o f business in Mountain View, California. In addit ion, on informat ion and belief, Google advertises, solicits clients, leases office space, and conducts substant ial amounts of business in the Commo nwealt h of Virginia and within the Alexandria Divis io n of this District. JURISDICTION AND VENUE 9. This act ion arises in part under the Lanham Act, 15 U.S.C. §§ 1051, et seq. This

Court has federal quest ion jurisdiction over these claims pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a), and 1338(b). This Court has supplemental jurisdict ion over the Virginia state law claims pursuant to 28 U.S.C. § 1367(a) because those claims are so closely related to the federal claims brought herein as to form part of the same case or controversy. 10. Google is subject to personal jurisdict ion in the Commo nwealt h of Virginia

because Google practices the unlawful conduct complained of herein, in part, within this District; because the unlawful conduct complained o f herein causes injury, in part, within this District; because Google regularly conducts or solicits business, rents or leases office space within this

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District, engages in other persistent courses of conduct and/or derives substantial revenue fro m goods and/or services used or consumed within this District; and because Google regularly and systemat ically directs electronic act ivit y into the Commo nwealt h of Virginia wit h the manifested intent of engaging in business within this District, including the creation, hosting, and o ffering of fully interact ive websites, advertising, e-mail, and other Internet-related services to web users within this District, as well as entry into contracts with residents of this District. 11. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because a substant ia l

part of the events or omissio ns giving rise to the claims herein occurred in this District. 12. Venue is also proper in this District under 28 U.S.C. §§ 1391(b)(1) and (c) because

Google is a corporation whose contacts, as alleged in this Co mplaint, would be sufficient to subject it to personal jurisdict ion if this District were a separate state. FACTUAL BACKGROUND The Internet and the World Wide Web 13. The Internet is a global network of millio ns o f interconnected computers. The

World Wide Web is a portion of the Internet especially well-suited to displaying images and sound as well as text. Much of the informat ion on the World Wide Web is stored in the form of web pages, which can be accessed through a computer connected to the Internet (available through commercial Internet service providers or "ISPs"), and viewed using a computer program called a "browser," such as Microsoft Internet Explorer. "Websites" are locat ions on the World Wide We b containing a collection of web pages. A web page is ident ified by it s own unique Uniform Resource Locator ("URL") or "web address" (e.g., <http://www.rosettastone.com>), which ordinarily incorporates the website's "do main name" (e.g., "rosettastone.com"). Because URLs

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and do main names are not case-sensit ive, URLs and domain names that contain capital letters are funct ionally the same as those that do not. Rosetta Stone and the Rosetta Stone Marks 14. Rosetta Stone was founded in 1992. Since that time, Rosetta Stone has become a

leader in providing techno logy-based language-learning products and services. Rosetta Stone's language-learning so lutions are available in more than thirt y languages and are used by schools, corporations, government entit ies and millio ns of individuals in more than 150 countries throughout the world. Rosetta Stone's website provides consumers with easy access to its language-education so ftware and services. 15. To preserve and enhance its trademark rights, Rosetta Stone has obtained federal

trademark registration for many of its Rosetta Stone Marks, some of which have been in continuous use for more than five years and are therefore considered "incontestable" pursuant to 15 U.S.C. §§ 1065 and 1115(b). 16. Amo ng Rosetta Stone's federally registered marks are: ROSETTA STONE which was first used in co mmerce in 1993 and which has a registration date of September 9, 2003; GLOBAL TRAVELER which was first used in commerce in 2002 and which has a registration date of August 12, 2003; ROSETTA STONE LANGUAGE & LEARNING SUCCESS which was first used in co mmerce in 2001 and which has a registration date of November 11, 2003; LANGUAGE LIBRARY which was first used in commerce in 1993 and which has a registration date of July 27, 2004;

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DYNAMIC IMMERSION which was first used in commerce in 2001 and which has a registration date of November 20, 2007;

THE FASTEST WAY TO LEARN A LANGUAGE. GUARANTEED which was first used in co mmerce in 2002 and which has a registration date of March 18, 2008;

ROSETTASTONE.COM which was first used in commerce in 1999 and which has a registration date of June 24, 2008; and

ROSETTA WORLD which was first used in commerce in 2006 and which has a registration date of October 7, 2008;2008.

ADAPTIVE RECALL which was first used in commerce in 2007 and which has a registration date of December 30, 2008;

CONTEXTURAL FORMATION which was first used in commerce in 2007 and which has a registration date of January 13, 2009;

SHAREDTALK which was first used in commerce in 2006 and which has a registration date of February 3, 2009; and

AUDIO COMPANION which was first used in commerce in 2008 and which has a registration date of February 3, 2009.

17.

Rosetta Stone has registered the mark ROSETTA STONE in the Commo nwealt h of

Virginia which has a registration date of April 13, 2009. Rosetta Stone also has co mmon law rights to the Rosetta Stone Marks in the Co mmonwealth of Virginia by virtue of the marks' eligibilit y for protection and Rosetta Stone's status as the senior user of the marks.

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18.

The Rosetta Stone Marks are unique and famous dist inct ive designat ions of the

source of Rosetta Stone's products and services. 19. Rosetta Stone has invested substant ial amounts in worldwide advertising and

market ing in order to build the fame, reputation, and goodwill o f the Rosetta Stone Marks. Rosetta Stone advertises through a variet y of media, including televisio n, radio, newspapers, magazines, direct mail, and in telephone directories across the country. 20. Rosetta Stone also promotes its products and services on the Internet, via its own

websites and through advertising on the websites of third parties. 21. Through Rosetta Stone's act ions, and because of widespread and favorable public

acceptance and recognit ion, the Rosetta Stone Marks have beco me dist inct ive designat ions o f the source of origin o f Rosetta Stone's products and services. The Rosetta Stone Marks have beco me uniquely associated with, and hence ident ify, Rosetta Stone. These marks are assets of incalculable value as symbo ls of Rosetta Stone, its qualit y products and services, and its goodwill. 22. 23. Accordingly, the Rosetta Stone Marks have develo ped secondary meaning. The Rosetta Stone Marks have become "famous" within the meaning of the

dilut ion provisio ns of the Lanham Act, 15 U.S.C. § 1125(c). For example, as a result of Rosetta Stone's extensive advert ising and promotional effo rts, the mark "Rosetta Stone" has, on informat ion and belief, attained so me o f the highest levels o f brand recognit io n amo ng consumers. 24. Rosetta Stone conducts a substantial amount of its business over the Internet and

has made a sizeable investment in the development of its online business. It is generally more beneficial for Rosetta Stone when consumers purchase direct ly through Rosetta Stone. Among other reasons, this is because when consumers buy through www.rosettastone.com, it assists Rosetta Stone in conveying important informat ion to its customers, in developing a direct

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relat ionship and future business wit h its customers, and in minimizing costs associated with various transact ions. Google's Search Engine 25. Web users who are searching for a specific co mpany product, service or

informat ion, but who do not know the exact domain name or website address at which it may be found, may use an internet "search engine" to locate it. In fact, many web users prefer to navigate the Internet by typing phrases and even URLs into search engines rather than t ype a URL into an Internet browser's address bar. A search engine, such as Google's, purportedly checks the terms entered into it against its databases and applies a formula or algorithm to produce a search results page that lists the websites that may relate to the customer's search terms and their corresponding links. 26. Google claims, and, upon informat ion and belief, most web users who perform

searches with Google's Internet search engine believe, that the results given by that search engine are determined by a "natural" or "organic" system that lists results in order of object ive relevance to the search terms input into the search engine, with the most relevant websites appearing near the top of the web page. According to Google, the order in which "organic search results" are listed is automat ically determined by a number of factors, including Google's patented PageRank algorithm. 27. By using Google's Internet search engine, web users are ident ifying to Google the

subjects in which they are interested, the companies that they seek, or the products or services the y wish to buy. This allows Google to obtain a significant percentage of its profits from "contextual" or "search" advertising, which allo ws co mpanies to place their advertising in front of consumers who have already ident ified themselves as interested in particular products or services.

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28.

When a web user carries out an Internet search using Google's search engine,

Google not only provides the web user with the above-described "organic search result s," but also displays a list of similarly formatted advertisements -- which Google refers to as "Sponsored Links" -- above and alo ngside the purportedly objective "organic search results." 29. On informat ion and belief, the relevance o f these "Sponsored Links" is determined

not by an object ive measure, but rather is substant ially influenced by the amount of mo ney Google stands to obtain from the "sponsors" of these links. 30. Google's use o f the Rosetta Stone Marks and terms confusingly similar thereto in

order to display "Sponsored Links" falsely communicates to consumers that Google's advertisers are official Rosetta Stone affiliates, or that Rosetta Stone sponsors or endorses Google's advert isers. In many cases, Google exacerbates this confusio n by publishing text in its "Sponsored Links" that makes further confusing use of the Rosetta Stone Marks. 31. Further, when so me web users click on the links that Google's advertisers pay to

place above or alongside purportedly object ive "organic search results" in order to seek informat ion about Rosetta Stone's products or services, they are deceived into believing that they will be provided with official information about Rosetta Stone's products and other services direct ly fro m Rosetta Stone. On information and belief, however, some o f these links and the websites to which they lead provide no such informat ion. In fact, in so me instances, these links lead to websites that offer the products and services of Rosetta Stone's competitors, whether or not they also offer Rosetta Stone's own products and services. In other instances, these links lead to websites that offer pirated Rosetta Stone products. 32. On informat ion and belief, Google also emplo ys other advertising programs that

utilize similar t ypes of keywords, including but not limited to the Rosetta Stone Marks or terms

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confusingly similar thereto, to cause advertisements to appear on websites across the Internet that themselves display the Rosetta Stone Marks or terms confusingly similar thereto. On informat ion and belief, many o f these advert isements lead Internet users to websites that are not Rosetta Stone websites, some of which even co mpete with Rosetta Stone. 33. Google's unauthorized use in co mmerce of the Rosetta Stone Marks generates

profits for Google and its advert isers that are directly attributable to their unauthorized explo itatio n of the value and name recognit io n associated with the Rosetta Stone Marks. Google's Search Engine-Based Keyword Advertising Program 34. Google's search engine is available, among other places, through its website

located at www.google.co m. Google also licenses its search engine to other popular websites, such as America Online, Netscape, Earthlink, CompuServe, Shopping.com, AT&T Worldnet, and Ask.com.1 In addit ion, Google invites consumers to affix a "Google Toolbar" at the top of Internet users' Internet browsers that allows these users to conduct Google searches even when they are not currently visit ing www.google.co m or a website that features Google's search engine.2 35. Google reports that its "content network reaches 80% of global internet users

--making it the world's #1 ad network."3 And, it is estimated that more than 70% of U.S. Internet searches use Google's search engine.4 36. Google offers a program called "AdWords" that displays advert isements to users of

Google's search engine in the form of "Sponsored Links." Under its AdWords Program, Google
1 2 3 4

See https://adwords.google.com/support/bin/answer.py?answer =6119&h1=en_US (visited June 19, 2009). See http: //toolbar.google.com/T4/indexpackindex_pack.html (vi sit ed Jun e 19, 2009). See http:/ / www. googl e. com/adwords/ cont entnet work (visited June 19, 2009). See http:/ /googl esyst em. bl ogspot. com /2009/03/googl es-market -share-in-your -countr y.html. (visit ed June 19, 2009).

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offers advert isers the abilit y to select certain "keywords" that will trigger a "Sponsored Link" to the advertiser's chosen website, which "Sponsored Link" Google will display above or alongside the purportedly "organic search results." 37. On informat ion and belief, advertisers pay Google each time a web user clicks on

keyword-targeted "Sponsored Links" that appear on Google's "results" page. 38. These targeted "Sponsored Link" results are not meaningfully or conspicuously

ident ified to consumers as paid third-party advert isements. Google posts its "Sponsored Link" advert isements in a color, typeface, and font size that are not appreciably different than the "organic search results" that Google generates. On informat ion and belief, even the designat ion o f these keyword-triggered "results" as "Sponsored Links" is confusing to many consumers, because Google does not inform consumers who has done the "sponsoring." 39. On information and belief, in a substantial portion of searches, Google's AdWords

program makes two dist inct uses of a given keyword on behalf on an advertiser. First, Google uses the keyword to trigger the "Sponsored Link" advertisement. Second, Google so met imes publishes the keyword as part of the advert isement itself. Accordingly, when the keyword in quest ion is a trademark or service mark, Google can make confusing use of that mark in two different ways: (1) as a keyword trigger and (2) as a part of the advertisement itself. Google's Unwillingness to Refrain from Trademark Infringement 40. On informat ion and belief, Google has the abilit y to refrain from making infringing

use of proprietary marks as part of its keyword-triggered advertising program, such as AdWords. 41. Specifically, on informat ion and belief, Google could reasonably prevent

trademarks, service marks, and terms confusingly similar thereto from being used as keyword triggers or in the tit le or text of Sponsored Link advert isements.

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42.

Google has stated in its SEC filings that it formerly did not allow advertisers to use

the trademarks of others as keyword triggers. (See Form S-1 Registration Statement, Google, Inc., April 29, 2004 ("Google S-1"), p. 10). 43. Consistent with that statement, in a Declaration filed in American Blind and

Wallpaper Factory, Inc. v. Google, Inc., et al., a trademark case filed in the United States District Court for the Southern District of New York, Google's Senior Trademark Counsel asserted on April 7, 2004, that Google had the capabilit y to block its advertisers fro m using non-descript ive trademarks as keyword triggers. (Declaration of Rose A. Hagan in Support of Google Inc., Ask Jeeves, Inc., and Earthlink, Inc.'s Motion to Dismiss or, in the Alternat ive, to Transfer Venue, filed April 9, 2004, ¶ 4). 44. Google, however, now allows advert isers to purchase specific trademarks as

keyword triggers for Sponsored Link advert isements. In its 2004 S-1, Google stated as fo llows: In order to provide users wit h more useful ads, we have recent ly revised our trademark policy in the U.S. and in Canada. Under our new po licy, we no longer disable ads due to select ion by our advert isers of trademarks as keyword triggers for the ads. (Google S-1, p. 10). 45. Google has further stated that it anticipates addit ional trademark infringement

lawsuits because of its decisio n to allow its advert ising customers to use trademarks to trigger the delivery o f "Sponsored Links": As a result of this change in polic y, we may be subject to more trademark infringement lawsuit s . . . . Adverse results in these lawsuits may result in, or even compel, a change in this practice which could result in a loss of revenue for us, which could harm our business. (Google S-1, p. 10).

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46.

In contrast to its practices with respect to the use of trademarks in the United States,

Google represents that it currently prevents advertisers from using trademarks as keywords in many countries outside the United States and Canada. According to Google's trademark policy for trademark rights in many countries outside the United States and Canada, Google will "ensur[e] that the advert isements at issue are not using a term corresponding to the trademarked term in the ad text or as a keyword."5 47. Addit io nally, Google maintains an extensive trademark policy regarding confusing

uses of its own marks. A would-be user of a Google mark must, inter alia, "use the trademark only as an adject ive, never as a noun or verb, and never in the plural or possessive form," and must put "a minimum spacing of 25 pixels between each side of the logo and other graphic or textual elements on [the user's] web page."6 Google, in its own words, instructs the world not to "mess around with our marks. Only we get to do that. Don't remove, distort or alter any element of a Google Brand Feature ... for example, through hyphenat ion, combinat ion or abbreviat ion."7 Google, however, does not treat the marks of other companies wit h such respect. Google's Unauthorized Use of the Rosetta Stone Marks 48. Rosetta Stone has not direct ly or indirect ly given Google any permission, authorit y,

or license to use or sell the right to use the Rosetta Stone Marks for the promotion of the goods and services of any third parties. 49. Nevertheless, on informat ion and belief, Google has in fact sold to third-party

advert isers the "right" to use the Rosetta Stone Marks or terms confusingly similar thereto as part
5 6 7

http:// www. googl e. com/tm _com plaint_adwords.html (emphasis added) (vi sit ed June 19, 2009). "Google Permissions," http://www.google.com/permissions/guidelines.html (visited June 19, 2009). S ee id

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of Google's search engine-based advert ising program. As a result, Google's programming ut ilizes the expressed interest of web users in the Rosetta Stone Marks to trigger advert isements to websites that are not Rosetta Stone websites, so me of which even co mpete with Rosetta Stone. In fact, many o f Google's "Sponsored Links" are expressly designed to draw consumers away fro m Rosetta Stone websites. 50. Moreover, Google's use of Rosetta Stone Marks wit hin the t itles and text that

Google posts as a part of some "Sponsored Links" further mis leadingly co mmunicates to consumers that such links are endorsed or sponsored by Rosetta Stone or its affiliates, or that such websites are officia l Rosetta Stone websites. 51. As a part of the process of triggering "Sponsored Links," Google offers its

advert isers the abilit y to purchase as keyword triggers the trademarks and service marks of others, as well as words, phrases, and terms confusingly similar to those trademarks and service marks. Thus, a consumer searching for the Rosetta Stone website using Google's search engine might be shown a "Sponsored Link" unrelated to Rosetta Stone that was displayed because a third-party advert iser purchased a Rosetta Stone Mark or a term confusingly similar thereto as a keyword trigger. A significant number of consumers are likely to believe falsely that it was Rosetta Stone who "sponsored" the links that appears above or alongside the "organic search results." 52. On information and belief, a significant portion of the "Sponsored Links" for whic h

Google uses the Rosetta Stone Marks or terms confusingly similar thereto as keyword triggers link Internet users to: (i) websites o f co mpanies that compete with Rosetta Stone; (ii) websites that sell Rosetta Stone products, but also sell a variet y of products that compete with Rosetta Stone; (iii) websites that sell counterfeit Rosetta Stone products; and/or (iv) websites that are entirely unrelated to language educat ion. Rosetta Stone has not sponsored these "Sponsored Links" or

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otherwise authorized Google to sell the right to use the Rosetta Stone Marks in co mmerce to draw web users to these websites. Nevertheless, these unauthorized "Sponsored Links" appear in close and confusing proximit y to both the list ings generated by Google's purportedly "organic search results" system and the "Sponsored Links" that Google forces Rosetta Stone itself to purchase to reduce the likelihood that web users will be diverted to other websites. Many o f these unauthorized "Sponsored Links" use Rosetta Stone Marks in who le or in part within the tit le and text of the "Sponsored Links" themselves. 53. On informat ion and belief, the use of the mark "Rosetta Stone," such as shown

above, is also confusing to consumers because, in many instances, consumers will enter the exact web address of Rosetta Stone's website, "www.rosettastone.com," or some variant of Rosetta Stone's web address into Google's search engine expect ing to receive the link for Rosetta Stone's website.8 Due to Google's sale o f the Rosetta Stone Marks to third parties as keywords, such consumers could be redirected to competitors of Rosetta Stone even though they originally intended to go to www.rosettastone.com. Accordingly, Google aids third parties in "hijacking" consumers who use their search engines to navigate the World Wide Web. This interferes wit h Rosetta Stone's sales and business. 54. On information and belief, a significant portion of the "Sponsored Links" for whic h

Google uses the Rosetta Stone Marks or terms confusingly similar thereto as keyword triggers do not even provide consumers wit h the opportunit y to purchase products or services o ffered by Rosetta Stone.

8

Roset ta St on e's main website address is www.rosettastone.com. Many other addresses, however, such as www.rosettastoneclassroom.com, are also owned and used by Rosetta Stone to direct web users to the main page of the rosettastone.com website.

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55.

On informat ion and belief, Google also posts "Sponsored Links" to websites that

similarly do not offer consumers the opportunit y to purchase products or services fro m Rosetta Stone but nevertheless use Rosetta Stone Marks or phrases confusingly similar thereto in the text or tit le of the "Sponsored Links." 56. On information and belief, Google allows the use of Rosetta Stone Marks and terms

confusingly similar thereto as keywords in its search engine-based advert ising program, although that program is flexible enough to prevent many, if not all, such uses. 57. Google actively participates in the creation of "Sponsored Links" for its customers,

including the informat ion provided wit hin such "Sponsored Links." Google act ively so licits and encourages advertisers to use trademarks, service marks, and terms confusingly similar thereto as keyword triggers. For example, when a would-be advert iser selects a keyword trigger for its advert ising program, it may take advantage of a "keyword tool" which will find "related keywords" to whatever word or term the advertiser enters. Among the terms listed in the "keyword tool" directory are Rosetta Stone Marks. Thus, Google suggests to would-be users to select Rosetta Stone Marks as keywords. Google also creates the intent ionally confusing tit les and headings for "Sponsored Links," as well as the intent ionally confusing visual appearance and posit ioning on the results page o f the "Sponsored Links." Moreover, the very use of the confusing term "Sponsored Link" instead of "Paid Advertisement" is a Google contribut ion. 58. On informat ion and belief, Google's specific use of the Rosetta Stone Marks as

keyword triggers in its advertising program allows Google and its advert isers to benefit financially fro m and trade off the goodwill and reputation of Rosetta Stone without incurring the substant ial expense that Rosetta Stone has incurred in building up its popularit y, name recognit ion, and brand lo yalt y. Through these practices, Google intent ionally traffics in the infringement and dilution o f

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the Rosetta Stone Marks, falsely represents or confusingly suggests to consumers a connection to Rosetta Stone that does not exist, and unfairly co mpetes with Rosetta Stone. These practices cause consumer confusio n, erode the dist inct iveness o f the Rosetta Stone Marks, and cause Rosetta Stone to lose, in part, control over the commercial use of the Rosetta Stone Marks by placing such control in the hands of Google and its advertisers. 59. On informat ion and belief, Google's advertising programs also allow confusing

uses of Rosetta Stone Marks in the text of the "Sponsored Link" advert isements that Google publishes on its search results page and in other Google advertising on the Internet, although Google has the technical capabilit y to prevent many, if not all, such uses if Google wanted to do so. 60. On informat ion and belief, Google's advertisers have used loopho les in Google's

programming to create "Sponsored Links" and other advertisements that either use terms that are confusingly similar to the Rosetta Stone Marks or are formatted in ways that are likely to cause confusio n wit h Rosetta Stone and/or with the Rosetta Stone Marks. 61. On informat ion and belief, Google may also have other advertising programs,

including but not limited to Google's "AdWords" program, which similarly make commercial use of Rosetta Stone Marks or terms confusingly similar thereto in order to trigger advert isements on third parties' websites throughout the Internet. On informat ion and belief, in at least some o f these instances, the title and/or text of these advert isements also make use of Rosetta Stone Marks or terms confusingly similar thereto. 62. In sum, Google uses in co mmerce the registered and common law trademarks of

other companies, including Rosetta Stone, with full knowledge that consumers are likely to be confused and lured away fro m the websites that they intended to visit, and with the goal of

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financially benefit ing Google to the detriment of Rosetta Stone and other trademark and service mark owners. Consumer Confusion and Harm to Rosetta Stone 63. On informat ion and belief, Google charges advertisers a fee every t ime a web user

clicks on a keyword-triggered "Sponsored Link." 64. On informat ion and belief, many web users who enter one of the Rosetta Stone

Marks into Google's search engine and who then view a "Sponsored Link" containing a third-party advertisement will fo llow the "Sponsored Link" to a third-party website in the belief that the website is owned by or affiliated with Rosetta Stone. 65. Upon informat ion and belief, many web users who are presented with such

"Sponsored Links" to third-party advert iser websit es are not aware that the third-party advertiser may have no affiliat ion with Rosetta Stone and/or may not be an authorized provider of Rosetta Stone products and services. Google's misappropriat ion of the Rosetta Stone Marks as keyword triggers and its use of terms confusingly similar to Rosetta Stone Marks in the "Sponsored Link" text are therefore likely to cause confusio n in the marketplace for language-educat ion products and related services. This confusio n is part icularly likely because the "Sponsored Links" o ften appear in the same context as, and often above or immediately below, "Sponsored Links" to genuine Rosetta Stone websites. 66. Even if web users realize that a given website is not affiliated with Rosetta Stone,

once they reach it, the damage to Rosetta Stone has already been done. Many such consumers are likely eit her to stay at the third-party advert iser's website or to discont inue their search for Rosetta Stone's website. Web users may also associate the qualit y o f the products and services o ffered on

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the third-party advert iser's website wit h those offered by Rosetta Stone, and if dissat isfied with such goods and services, may decide to avoid Rosetta Stone's products and services in the future. 67. Moreover, because of the dominant role of Google's search engine in consumers'

Internet usage and habits, Google effectively forces Rosetta Stone to purchase the "rights" to have official Rosetta Stone advertisements appear when Internet users search the web for the Rosetta Stone Marks. In other words, Google has set up a system wherein Rosetta Stone and others are, de facto, forced to pay Google to reduce the likelihood that consumers will be confused by Google's own practices. This need to reduce the extent of consumer confusio n caused by Google's policies has cost and, unless enjo ined, will cont inue to cost Rosetta Stone millio ns of dollars. Even when Rosetta Stone purchases from Google these "rights," Google is still able to misappropriate Rosetta Stone's rights by selling these same "rights" to third parties at the same time. 68. Alt hough the above examples are illustrative o f the problems created by Google,

they by no means describe all the ways in which Google's uses of the Rosetta Stone Marks are likely to confuse consumers. Because of the fluid nature of the way Google's programming uses the Rosetta Stone Marks and displays advertising based on those marks, Google eit her is misleading or will mislead consumers in innumerable different ways. Accordingly, it is impossible for Rosetta Stone to cure this problem merely by pursuing remedies against Google's advert isers alone. 69. Amo ng other things, the fo llowing facts and circumstances support the conclusion

that Google's use in commerce of the Rosetta Stone Marks is likely to cause consumer confusio n: A. B. The Rosetta Stone Marks are except ionally strong. Google uses the actual Rosetta Stone Marks or terms confusingly similar thereto as keyword triggers and in advert isement text.

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C.

Third-party advert isers on whose behalf Google uses the Rosetta Stone Marks or terms confusingly similar thereto generally sell counterfeit Rosetta Stone products and/or products and services similar to the language-education products and services provided by Rosetta Stone, and in many cases are in direct compet it ion with Rosetta Stone.

D.

Google and its third-party advertisers use similar facilit ies and the exact same market ing channels or parallel marketing channels as Rosetta Stone -namely, the World Wide Web, and in part icular, the context of Internet searching.

E.

On informat ion and belief, purchasers are likely to exercise a minima l degree of care in the context of Internet searching generally and in purchasing goods and services online in particular.

F.

On informat ion and belief, consumers have actually been confused as a result of Google's conduct.

G.

Google began using the Rosetta Stone Marks or terms very similar to the marks after they were registered and after they became famous and dist inct ive. On information and belief, Google did so with full knowledge of Rosetta Stone's rights in the Rosetta Stone Marks. In fact, on informat ion and belief, it is Google's specific intent to use the Rosetta Stone Marks to profit from consumer's associat ion of the Rosetta Stone Marks with Rosetta Stone.

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I. FIRST CLAIM FOR RELIEF TRADEMARK/SERVICE MARK INFRINGEMENT UNDER THE LANHAM ACT 70. Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein. 71. Rosetta Stone possesses valid, federally registered trademarks and service marks

ent it led to protection under the Lanham Act. 72. Google has used the Rosetta Stone Marks in commerce in a number of ways as part

of its search engine-based, keyword-triggered advertising programs, including (but not limit ed to) the fo llowing: (i) by allowing and/or encouraging third-party advertisers to bid on the Rosetta Stone Marks, or terms confusingly similar thereto, and paying Google to use such marks or terms to trigger the display of "Sponsored Link" advertisements that link to third-party advertisers' websites, which are displayed above or alongside purportedly "organic search results;" (ii) by causing such "Sponsored Link" advertisements to appear when web users have specifically attempted to find or access Rosetta Stone's website, with the express purpose of causing web users to visit websites other than those affiliated with Rosetta Stone; (iii) by including Rosetta Stone Marks in Google's proprietary directories of terms that trigger "Sponsored Link" advert isements; (iv) by causing "Sponsored Link" advertisements to appear in close proximit y to Rosetta Stone Marks and links to legit imate Rosetta Stone-related websites; and (v) by causing Rosetta Stone Marks or terms confusingly similar to Rosetta Stone Marks to appear in the text or title of advert isements which Google calls "Sponsored Links." In short, Google has used the Rosetta Stone Marks in co mmerce in connect ion with the sale, offering for sale, distribution, or advertising of goods and services.

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73.

Google's unauthorized and intent ional use of the Rosetta Stone Marks or terms

confusingly similar thereto in connect ion with its search engine-based advert ising programs infringes on Rosetta Stone's exclusive rights in its federally registered marks and is likely to cause confusio n, mistake or deception among consumers as to the source of the products and services offered by Google and its advertisers. Such use is also likely to cause confusio n amo ng consumers as to whether Rosetta Stone is sponsoring, has authorized or is so mehow affiliated with Google's sale of the Rosetta Stone Marks or terms confusingly similar thereto, or with the products or services offered through the "Sponsored Links" that Google intent ionally posts above or alongside purportedly object ive "organic search results" from Internet searches for Rosetta Stone Marks. 74. Even after accessing the websites associated with "Sponsored Links," consumers

are likely to be confused into believing that those websites and the informat ion they contain are associated with, sponsored by, operated by, or otherwise formally affiliated with or supported by Rosetta Stone when that is not the case. 75. Google's unauthorized and intent ional use of the registered Rosetta Stone Marks

and terms confusingly similar thereto in connect ion with its search engine-based advert ising programs const itutes trademark infringement in violat ion of Section 32(1) of the Lanham Act, 15 U.S.C. §§ 1114(1). 76. Google's infringement of the Rosetta Stone Marks is willful and reflects Google's

intent to explo it the goodwill and strong brand recognit ion associated with the Rosetta Stone Marks. 77. Google's infringement has damaged Rosetta Stone in an amount to be determined

at trial. For example and without limitat ion, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks.

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78.

Google's infringement has caused and, unless restrained by this Court, will

continue to cause Rosetta Stone irreparable injury. 79. Rosetta Stone has no adequate remedy at law for Google's infringement. II. SECOND CLAIM FOR RELIEF CONTRIBUTORY TRADEMARK/SERVICE MARK INFRINGEMENT UNDER THE LANHAM ACT 80. Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein. 81. Wit h full knowledge of Rosetta Stone's rights in the Rosetta Stone Marks, Google

has knowingly so ld to third-party advertisers the "rights" to use the Rosetta Stone Marks or terms confusingly similar thereto as a part of Google's search engine-based advert ising programs. In this context, the third-party advert isers' use of the Rosetta Stone Marks or terms confusingly similar thereto is likely to cause confusio n among consumers, and constitutes infringement of Rosetta Stone's rights in the Rosetta Stone Marks. 82. In particular, the use of the Rosetta Stone Marks or terms confusingly similar

thereto in Google's search engine in order to trigger the display of "Sponsored Links" that link to the websites of third-party advertisers above or alongside purportedly "organic search results" is likely to deceive or cause confusio n amo ng web users as to whether Rosetta Stone is the source of (or is sponsoring or affiliated with) the products and services offered on the third-party advertisers' websites. 83. Alternat ively, the use of Rosetta Stone Marks or terms confusingly similar thereto

within the t itle and text of "Sponsored Link" advertisements by third-part y advert isers is likely to deceive or cause confusio n amo ng web users as to whether Rosetta Stone is the source of (or is

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sponsoring or affiliated with) the products and services offered on the third-party advertisers' websites. 84. Through its sale of the Rosetta Stone Marks and terms confusingly similar thereto

to third-party advertisers, Google provides such third-party advertisers with aid and material contribution to the third-party advert isers' vio lat ions o f the Lanham Act. 85. Google is therefore contributorily liable for the infringing use of the Rosetta Stone

Marks by the third-party advertisers who use the Rosetta Stone Marks to trigger the display o f "Sponsored Links." 86. Google's contributory infringement is willful and reflects Google's intent to explo it

the good will and strong brand recognit ion associated with the Rosetta Stone Marks. 87. Rosetta Stone has been damaged by Google's contributory infringement in an

amount to be determined at trial. For example and without limitat ion, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 88. Rosetta Stone has been, and absent injunct ive relief will cont inue to be, irreparably

harmed by Google's act ions. 89. Rosetta Stone has no adequate remedy at law for the foregoing wrongful conduct. III. THIRD CLAIM FOR RELIEF VICARIOUS TRADEMARK/SERVICE MARK INFRINGEMENT UNDER THE LANHAM ACT 90. Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein.

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91.

Google has the right and abilit y to control the use of the Rosetta Stone Marks or

terms confusingly similar to the Rosetta Stone Marks in its search engine-based advertising programs. 92. Third-party advert isers' use of the Rosetta Stone Marks or terms confusingly

similar thereto as keyword triggers in Google's search engine-based advertising program is likely to cause confusio n amo ng consumers, and const itutes infringement of Rosetta Stone's rights in the Rosetta Stone Marks. 93. Third-party advert isers' use of the Rosetta Stone Marks or terms confusingly

similar thereto in the tit le or text of "Sponsored Link" advertisements is likely to cause confusio n among consumers, and constitutes infringement of Rosetta Stone's rights in the Rosetta Stone Marks. 94. Google receives a direct financial benefit fro m the third-party advertisers'

unauthorized use of the Rosetta Stone Marks or terms confusingly similar thereto. 95. Google is therefore vicariously liable for the infringing use of the Rosetta Stone

Marks by third-part y advert isers who use the Rosetta Stone Marks to trigger the display of "Sponsored Links." 96. Google's vicarious infringement is willful and reflects Google's intent to explo it

the goodwill and strong brand recognit ion associated with the Rosetta Stone Marks. 97. Rosetta Stone has been damaged by Google's vicarious infringement in an amount

to be determined at trial. For example and without limitat ion, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 98. Rosetta Stone has been, and absent injunct ive relief will cont inue to be, irreparably

harmed by Google's act ions.

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99.

Rosetta Stone has no adequate remedy at law for the foregoing wrongful conduct. IV. FOURTH CLAIM FOR RELIEF FALSE REPRESENTATION UNDER THE LANHAM ACT

100.

Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein. 101. Google's use o f the Rosetta Stone Marks or terms confusingly similar thereto as

keyword triggers in its search engine-based advertising programs conveys the false or misleading commercial impressio n to the public that the third-party advertisers listed as "Sponsored Links" above or alongside purportedly "organic search results," or their products or services, are approved, endorsed or sponsored by Rosetta Stone, or are otherwise affiliated with or supported by Rosetta Stone. 102. Google's use of the Rosetta Stone Marks or terms confusingly similar thereto in the

tit le or text of "Sponsored Link" advert isements conveys the false or misleading co mmercial impression to the public that the third-party advertisers listed as "Sponsored Links" are approved, endorsed or sponsored by Rosetta Stone, or are otherwise affiliated with or supported by Rosetta Stone. 103. These mis leading uses of the Rosetta Stone Marks constitute a false designation o f

origin and/or a false or mis leading description of fact and/or a false or misleading representation of fact, in vio lat ion of Sect ion 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 104. Google's false representations are willful and reflect Google's intent to explo it the

goodwill and strong brand recognit ion associated with the Rosetta Stone Marks.

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105.

Google's false representations have damaged Rosetta Stone in an amount to be

determined at trial. For example and without limit ation, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 106. Rosetta Stone has been, and absent injunct ive relief will cont inue to be, irreparably

harmed by Google's act ions. 107. Rosetta Stone has no adequate remedy at law for Google's false representations. IV.V. FIFTH FOURTH CLAIM FOR RELIEF TRADEMARK/SERVICE MARK DILUTION UNDER THE LANHAM ACT 100. 108. Plaint iff repeats and realleges each and every allegat ion in the foregoing

paragraphs as if fully set forth herein. 101. 109. The Rosetta Stone Marks are famous within the meaning of the Trademark

Dilut ion Revisio n Act of 2006. In particular, the following factors support the conclusio n that the Rosetta Stone Marks are famous: A. Rosetta Stone has expended substant ial amounts in advertising the Rosetta Stone Marks on a nationwide basis in a broad cross-sect ion of prominent media for many years; B. The Rosetta Stone Marks have received massive publicit y fro m third parties and products sold under the Rosetta Stone Marks have won numerous awards from third parties;

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C.

Rosetta Stone has earned hundreds of millio ns o f dollars in revenue on a nat ionwide basis in connect ion with the products and services that it has offered under the Rosetta Stone Marks;

D.

The Rosetta Stone Marks have achieved a high level of actual recognit ion among the consuming public; and

E.

Rosetta Stone has obtained federal trademark registration for its Rosetta Stone Marks.

102.

110. Google's use o f the Rosetta Stone Marks or terms confusingly similar thereto

as keyword triggers in its search engine-based advertising programs has lessened and will continue to lessen the capacit y of Rosetta Stone's famous and dist inct ive Rosetta Stone Marks to dist inguish Rosetta Stone's products and services fro m those of others, and has diluted the dist inct ive qualit y of the famous and nat ionally recognized Rosetta Stone Marks. 103. 111. Google's use o f the Rosetta Stone Marks or terms confusingly similar thereto

in the t itle of text of "Sponsored Link" advert isements has lessened and will cont inue to lessen the capacit y o f Rosetta Stone's famous and dist inct ive Rosetta Stone Marks to dist inguish Rosetta Stone's products and services fro m those of others, and has diluted the distinctive qualit y o f Rosetta Stone's famous and nat ionally recognized Rosetta Stone Marks. 104. 112. Google's conduct as alleged above is likely to cause blurring of the Rosetta

Stone Marks and impair the dist inct iveness of the Rosetta Stone Marks. Consumers are likely to associate Google's uses of the Rosetta Stone Marks or terms confusingly similar thereto with the Rosetta Stone Marks themselves because of the similarit y between Google's uses of the Rosetta

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Stone Marks or terms confusingly similar thereto and the Rosetta Stone Marks themselves. In particular, on informat ion and belief, the fo llowing factors make dilution by blurring likely: A. Google is making use of the Rosetta Stone Marks themselves or words or phrases confusingly similar to the Rosetta Stone Marks; B. The Rosetta Stone Marks have acquired tremendous dist inct iveness through Rosetta Stone's promotion and use of the Rosetta Stone Marks in commerce since 1993; C. The Rosetta Stone Marks have achieved high levels of recognit ion among the consuming public; D. Rosetta Stone's commercial use of the Rosetta Stone Marks is substant ially exclusive to Rosetta Stone and its agents and licensees; E. On informat ion and belief, Google's advertisers intend to create an associat ion between Google's uses of the Rosetta Stone Marks or terms confusingly similar thereto and the Rosetta Stone Marks themselves; and F. On informat ion and belief, many consumers actually associate Google's uses of the Rosetta Stone Marks or terms confusingly similar thereto with the Rosetta Stone Marks. 105. 113. Google's conduct as alleged above is also likely to cause tarnishment among

the Rosetta Stone Marks that harms the reputation of the Rosetta Stone Marks because of the similarit y between Google's uses of the Rosetta Stone Marks or terms confusingly similar thereto and the Rosetta Stone Marks themselves. In particular, many o f the "Sponsored Links" lead consumers to websites that offer lower qualit y services than Rosetta Stone offers or post materials that are misleading or distasteful or offer counterfeit Rosetta Stone products.

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106.

114. On informat ion and belief, Google has derived and continues to derive

substant ial revenue and profits fro m the past and ongo ing dilut ion of the Rosetta Stone Marks as a result of its unauthorized uses of the Rosetta Stone Marks and terms confusingly similar thereto. 107. 115. Google's use o f the Rosetta Stone Marks constitutes dilut ion in vio lat ion of

Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 108. 116. Google's dilution of the Rosetta Stone Marks has caused Rosetta Stone

damage in an amount to be determined at trial. For example and wit hout limit ation, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 109. 117. Rosetta Stone has been, and absent injunct ive relief will cont inue to be,

irreparably harmed by Google's act ions. 110. 118. Rosetta Stone has no adequate remedy at law for Google's dilut ion of the

Rosetta Stone Marks. V.VI. SIXTHFIFTH CLAIM FOR RELIEF FOR TRADEMARK INFRINGEMENT UNDER VIRGINIA LAW 111. 119. Plaint iff repeats and realleges each and every allegat ion in the foregoing

paragraphs as if fully set forth herein. 112. 120. Rosetta Stone has registered the trademark ROSETTA STONE in the

Commo nwealth o f Virginia. 113. 121. Google's acts, as described above, constitute trademark infringement of the

ROSETTA STONE trademark under Virginia law, result ing in irreparable injury to Rosetta Stone. Google is also liable for contributory trademark infringement and vicarious trademark infringement of the ROSETTA STONE trademark under Virginia law.

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114.

122. Google's infringement has damaged Rosetta Stone in an amount to be

determined at trial. For example and without limit ation, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 115. 123. Google's infringement has caused and, unless restrained by this Court, will

continue to cause Rosetta Stone irreparable injury. 116. 124. Rosetta Stone has no adequate remedy at law for Google's infringement of its

commo n law trademark rights. VI. VII. SEVENTHSIXTH CLAIM FOR RELIEF UNFAIR COMPETITION UNDER VIRGINIA LAW 117. 125. Plaint iff repeats and realleges each and every allegat ion in the foregoing

paragraphs as if fully set forth herein. 118. 126. As discussed above, the Rosetta Stone Marks have acquired a secondary

meaning associated with Rosetta Stone. And, Google has used the Rosetta Stone Marks unfairly to the detriment of Rosetta Stone. Indeed, Google's use of the Rosetta Stone Marks is likely to confuse prospective buyers of Rosetta Stone goods and services even if they exercise ordinary caution in their purchasing decis io ns. Thus, Google's acts as described above vio late Virginia's unfair co mpet it ion law. 119. 127. As a result of Google's conduct, Rosetta Stone has suffered and will cont inue

to suffer damage, including damage to its reputation because of consumer confusio n as to the origin or sponsorship of the products and services advert ised through Google's websites. For example, and without limitat ion, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 32

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120.

128. Rosetta Stone has been, and absent injunct ive relief will cont inue to be,

irreparably harmed by Google's act ions. B. 129. Rosetta Stone has no adequate remedy at law for Google's unfair compet it ion. VII.VIII. EIGHTHSEVENTH CLAIM FOR RELIEF VIOLATION OF VA CODE § 18.2-499UNJUST ENRICHMENT UNDER VIRGINIA LAW 121. 130. Plaint iff repeats and realleges each and every allegat ion in the foregoing

paragraphs as if fully set forth herein. 131. Google's acts as described above vio late VA. Code § 18.2-499. Google has entered

into agreements with and mutually undertaken with third parties for the purpose of willfully and maliciously injuring Rosetta Stone in its trade and/or business. Google and/or such third parties entered into such conspiracies intentionally, purposefully, and wit hout lawful justificat ion. 132. Specifically, and by way of example and not limitation, Google entered into

agreements with Rocket Languages Ltd., a direct compet itor of Rosetta Stone, and "affiliates" of Rocket Languages Ltd. (collectively "Rocket Languages") pursuant to which Google would display "Sponsored Links" for Rocket Languages in response to searches for the Rosetta Stone Marks and/or words, phrases, or terms confusingly similar to those marks. They did so knowing that the Rosetta Stone Marks were registered trademarks and that the use of these marks as keywords to trigger "Sponsored Links" would divert consumers fro m Rosetta Stone's website to Rocket Languages' websites with the intent to harm Rosetta Stone in its business. And, many consumers have been diverted in this manner. Google and Rocket Languages entered into these agreements knowing that their acts were unlawful and wit h the intent to injure maliciously Rosetta Stone.

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133.

Google's vio lat ion of Va. Code §18.2-499 has caused Rosetta Stone damage in an

amount to be determined at trial. 134. Rosetta Stone has been, and absent injunct ive relief will cont inue to be, irreparably

harmed by Google's vio lations of Va. Code § 18.2-499. 135. 18.2-499. 122. Google uses and sells Rosetta Stone's trademarks as keywords that trigger Rosetta Stone has no adequate remedy at law for Google's vio lat ion of Va. Code §

third-party, paid advertisements on Google search-results webpages wit hout authorizat ion from Rosetta Stone. Through its AdWords program, Google so ld, and continues to sell, Rosetta Stone's trademarks to, among others, Rosetta Stone's competitors, resellers and affiliates, and companies illegally selling pirated and counterfeit Rosetta Stone products. Through such unauthorized sales of Rosetta Stone's trademarks, Google has received and continues to receive millio ns of do llars in revenue annually. 123. Through the auction o f Rosetta Stone's trademarks Google unjust ly derived a

benefit from Rosetta Stone in the form of higher payments from Rosetta Stone, increased advert ising revenue from third parties and other econo mic benefit s to which Google has no right or ent it lement. Google knows that it is deriving mo netary benefit s from the sale of Rosetta Stone's trademarks through its AdWords program and it would be inequitable for Google to retain those benefits. 124. Rosetta Stone requested that Google not auction its trademarks to third parties,

including resellers and affiliates, but Google has refused to alter its trademark policy or practices. Rosetta Stone thus has conferred invo luntarily a benefit on Google, which is knowingly using the goodwill established in the Rosetta Stone trademarks to derive addit io nal advertising revenues.

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Google should reasonably have expected to compensate Rosetta Stone for the use and sale of its trademarks and goodwill, but has retained the benefit without compensat ing Rosetta Stone. WHEREFORE, Rosetta Stone prays for judgment in it s favor and against Google as fo llo ws: A. Preliminarily and permanent ly enjo ining Google and its officers, directors, partners,

agents, subcontractors, servants, emplo yees, representatives, franchisees, licensees, subsidiaries, parents, and related companies or entit ies, and all others acting in concert or participat ion with it fro m: direct ly or indirect ly selling or offering for sale the Rosetta Stone Marks or other terms confusingly similar to the Rosetta Stone Marks for use in its search engine-based advertising programs to anyo ne other than Rosetta Stone or its authorized licensees; continuing to post advertisements for anyone other than Rosetta Stone and its authorized licensees because Internet users have run a search on Google's search engine using search terms that are ident ical or confusingly similar to the Rosetta Stone Marks; continuing to post titles or text of paid or keyword-triggered search engine results that falsely co mmunicate to consumers that such links are endorsed, sponsored, or supported by Rosetta Stone or formally affiliated with Rosetta Stone; infringing, or causing any other entit y to infringe the Rosetta Stone Marks; unfairly co mpet ing with Rosetta Stone in any manner whatsoever; and making any use of the Rosetta Stone Marks and/or terms confusingly similar thereto unless specifically authorized by Rosetta Stone.

B.

Direct ing an accounting to determine all gains, profits, savings and advantages

obtained by Google as a result of its wrongful act ions;

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C.

Awarding restitution to Rosetta Stone of all gains, profits, savings and advantages

obtained by Google as a result of its wrongful act ions; D. E. Awarding Rosetta Stone all damages caused by Google's wrongful act ions; Awarding Rosetta Stone treble the amount of its damages, together with the costs

of this suit, including reasonable attorneys' fees and expenses and prejudgment interest, pursuant to 15 U.S.C. § 1117 and all other applicable provisions and principles o f federal and Virginia law ; F. Awarding Rosetta Stone an amount sufficient to conduct a correcti