Rosetta Stone LTD v. Google Inc.

Filing 86

FIRST AMENDED COMPLAINT with Jury Demand against Google Inc., filed by Rosetta Stone LTD.(Allen, Warren) Modified text on 3/8/2010 (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. -vGOOGLE INC. 1600 Amphit heatre Parkway Mountain View, California 94043, Defendant. 1:09CV736 (GBL/TCB)

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 famo us trademarks and service marks that ident ify Rosetta Stone, the foremost language-education company in the United States, to Internet users (the "Rosetta Stone Marks"). The fundamental purpose of trademark law, in the bricks-andmortar world and o n t he Int ernet, is to prot ect consu mers fro m be ing co nfused as to t he so urce or affiliat io n o f t he pro duct s or services that t hey 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

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acco mplished by legally limit ing a brand's co mmerc ial use to the brand's owner. This legal 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 market ing their products or services using the brands of others. In effect, they seek to free ride o n t he reput at io n and goo dwill o f a not her'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 particular and growing problem in connection with consumer purchases of goods and services on the Internet. This lawsuit invo lves exact ly such a s ituat io n -- efforts by certain co mpanies to free ride on Rosetta Stone's brand with the active participation and assistance of Google in such unauthorized and intent io nal use of 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 co ntaining part icular co nt ent. Google's search engine is availa ble not only o n its own website (www.google.com), but also through other popular websites that use its search engine. On informat ion and belief, approximately 80% of all searches conducted worldwide use Google's search engine. 4. To use Goo gle's search eng ine, a World 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 information and belief, many consumers believe, that the search results Google provides are the product of an object ive formula or algorithm that

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produces "natural" or "organic" results, i.e., web listings 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." Wit hout authorizat ion or approval fro m 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 o f 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 education not only for Rosetta Stone, but also for a variet y of co mpet 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 advert isements and by using them wit hin the text or title o f paid advertisements. This lawsuit seeks to stop only this aspect of Google's search engine funct ion and not its abilit y to provide "organic search results."

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Indeed, Google has the abilit y to structure and configure its programming to stop this misuse of the Rosetta Stone Marks because it has already implemented procedures with respect to many non-U.S. Internet users that prevent the misuse of 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 of 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 Co mmo 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;

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because Google regularly conducts or solicits business, rents or leases office space within this 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 ial 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 co mputer program called a "browser," such as Microsoft Internet Explorer. "Websites" are locat ions on the World Wide Web containing a collect ion of web pages. A web page is ident ified by its own unique Uniform Resource Locator ("URL") or "web address" (e.g., <http://www.rosettastone.com>),

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which ordinarily incorporates the website's "do main name" (e.g., "rosettastone.com"). Because URLs and domain 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; ROSETTA STONE LANGUAGE & LEARNING SUCCESS which was first used in co mmerce in 2001 and which has a registration date of November 11, 2003; ROSETTASTONE.COM which was first used in commerce in 1999 and which has a registration date of June 24, 2008; and

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

17.

Rosetta Stone has registered the mark ROSETTA STONE in the Co mmo 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. 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 of the Rosetta Stone Marks. Rosetta Stone advert ises 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 o f 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

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Stone's extensive advert ising and promotional effo rts, the mark "Rosetta Stone" has, on informat ion and belief, attained so me of the highest levels of brand recognit io n among 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 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 t yping phrases and even URLs into search engines rather than type 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 wit h 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 objective relevance to the search terms input into the search engine, with the most relevant websites

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appearing near the top of the web page. According to Google, the order in which "organic search results" are listed is automatically 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 they wish to buy. This allows Google to obtain a significant percentage of its profits from "contextual" or "search" advert ising, which allows companies to place their advertising in front of consumers who have already identified themselves as interested in particular products or services. 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 results," 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 of 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 fro m 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

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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 compet itors, 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 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 of 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 itat ion of the value and name recognit ion 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.co m, AT&T Worldnet, and Ask.co m.1 In addition, 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
1

See https://adwords.google.com/support/bin/answer.py?answer =6119&h1=en_US (visited June 19, 2009).

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they are not currently vis it ing www.google.com 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 advertisements to users

of Google's search engine in the form of "Sponsored Links." Under its AdWords Program, Google offers advert isers the abilit y to select certain "keywords" that will trigger a "Sponsored Link" to the advert iser'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 designation of these keyword-triggered "result s" as "Sponsored Links" is confusing to many consumers, because Google does not inform consumers who has done the "sponsoring." 39. On informat ion 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,
2 3 4

See http:/ /t ool bar.googl e. com/T 4/index_pa ck.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. (vi si t ed Jun e 19, 2009).

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Google uses the keyword to trigger the "Sponsored Link" advertisement. Second, Google sometimes 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 advert isement itself. Google's Unwillingness to Refrain from Trademark Infringement 40. On informat ion and belief, Google has the abilit y to refrain fro m 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. 42. Google has stated in its SEC filings that it formerly did not allow advert isers 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:

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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). 46. In contrast to its practices with respect to the use of trademarks in the United

States, Google represents that it currently prevents advert isers 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 advertisements 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

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http:// www. googl e. com/tm _com plaint_adwords.html (emphasis added) (vi sit ed June 19, 2009).

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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 hyphenation, co mbination 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 permissio n,

authority, 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 of Google's search engine-based advertising program. As a result, Google's programming utilizes the expressed interest of web users in the Rosetta Stone Marks to trigger advert isements to websites that are not Rosetta Stone websites, some of which even compete with Rosetta Stone. In fact, many of 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 official Rosetta Stone websites.

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"Googl e Permi ssi on s," http: // www. googl e. com/permi ssi ons/gui delin es.html (visit ed June 19, 2009). S ee id

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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 informat ion and belief, a significant portion of the "Sponsored Links" for

which Google uses the Rosetta Stone Marks or terms confusingly similar thereto as keyword triggers link Internet users to: (i) websites of co mpanies that compete with Rosetta Stone; (ii) websites that sell Rosetta Stone products, but also sell a variety o f 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 otherwise authorized Google to sell the right to use the Rosetta Stone Marks in commerce 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 of 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

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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 of 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 informat ion and belief, a significant portion of the "Sponsored Links" for

which Google uses the Rosetta Stone Marks or terms confusingly similar thereto as keyword triggers do not even provide consumers with the opportunit y to purchase products or services offered by Rosetta Stone. 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 informat ion and belief, Google allows the use of Rosetta Stone Marks and

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

customers, including the informat ion provided within such "Sponsored Links." Google actively solicit s and encourages advertisers to use trademarks, service marks, and terms confusingly
8

Roset ta St on e's main websit e a ddr ess i s www.r osetta st on e.com . Man y oth er addr esses, however, such as www. r osett ast on ecla ssr oom. com, ar e al so own ed and used by Roset ta St on e t o direct web user s t o the ma in page of th e r osetta st on e. com websi t e.

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similar thereto as keyword triggers. For example, when a would-be advert iser selects a keyword trigger for its advertising program, it may take advantage of a "keyword tool" which will find "related keywords" to whatever word or term the advert iser 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 of the "Sponsored Links." Moreover, the very use of the confusing term "Sponsored Link" instead of "Paid Advert isement" 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 advert ising program allows Google and its advert isers to benefit financially from 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 dilut ion of the Rosetta Stone Marks, falsely represents or confusingly suggests to consumers a connect ion to Rosetta Stone that does not exist, and unfairly competes 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.

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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 of 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 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 thirdparty 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.

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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 particularly likely because the "Sponsored Links" often 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 of the products and services offered on the third-party advertiser's website with 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 effect ively forces Rosetta Stone to purchase the "rights" to have o fficial 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 po licies has cost and, unless enjo ined, will cont inue to cost Rosetta Stone

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millio ns of dollars. Even when Rosetta Stone purchases fro m Google these "rights," Google is still able to misappropriate Rosetta Stone's rights by selling these same "rights" to third parties at the same t ime. 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 co mmerce o f the Rosetta Stone Marks is likely to cause consumer confusion: 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. 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 market ing channels as Rosetta Stone -

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- 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 fro m consumer's association of the Rosetta Stone Marks with Rosetta Stone. 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 co mmerce in a number of ways as

part of its search engine-based, keyword-triggered advert ising programs, including (but not 21

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limited 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 o f "Sponsored Link" advertisements that link to third-party advert isers' websites, which are displayed above or alongside purportedly "organic search results;" (ii) by causing such "Sponsored Link" advert isements 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" advert isements 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 tit le of advertisements which Google calls "Sponsored Links." In short, Google has used the Rosetta Stone Marks in co mmerce in connection wit h the sale, offering for sale, distribut ion, or advertising of goods and services. 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 amo ng consumers as to the source of the products and services offered by Google and its advert isers. 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

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above or alongside purportedly object ive "organic search results" fro m 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. 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.

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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 advert isers the "rights" to use the Rosetta Stone Marks or terms confusingly similar thereto as a part of Google's search engine-based advertising 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 const itutes 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 among 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 advert isers' 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 sponsoring or affiliated with) the products and services offered on the third-party advertisers' websites.

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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 continue 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. 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.

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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 continue to be,

irreparably harmed by Google's act ions. 99. Rosetta Stone has no adequate remedy at law for the foregoing wrongful conduct.

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IV. FOURTH CLAIM FOR RELIEF TRADEMARK/SERVICE MARK DILUTION 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. 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 conclusion 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 from third parties and products sold under the Rosetta Stone Marks have won numerous awards fro m third parties; 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. 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 cont inue to lessen the capacit y of Rosetta Stone's famous and dist inct ive Rosetta Stone Marks to 27

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dist inguish Rosetta Stone's products and services from those of others, and has diluted the dist inct ive qualit y o f the famous and nat ionally recognized Rosetta Stone Marks. 103. Google's use o f the Rosetta Stone Marks or terms confusingly similar thereto in

the tit le of text of "Sponsored Link" advertisements 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. 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 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 co mmercial use of the Rosetta Stone Marks is substant ially exclusive to Rosetta Stone and its agents and licensees;

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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.

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 of 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. 106. On informat ion and belief, Google has derived and continues to derive substant ial

revenue and profits fro m the past and ongoing dilution of the Rosetta Stone Marks as a result of its unauthorized uses of the Rosetta Stone Marks and terms confusingly similar thereto. 107. Google's use o f the Rosetta Stone Marks constitutes dilut ion in vio lation of

Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 108. Google's dilution of the Rosetta Stone Marks has caused Rosetta Stone damage 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. 109. Rosetta Stone has been, and absent injunct ive relief will continue to be,

irreparably harmed by Google's act ions.

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110. Stone Marks.

Rosetta Stone has no adequate remedy at law for Google's dilut ion of the Rosetta

V. FIFTH CLAIM FOR RELIEF FOR TRADEMARK INFRINGEMENT UNDER VIRGINIA LAW 111. Plaint iff repeats and realleges each and every allegation in the foregoing

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

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

ROSETTA STONE trademark under Virginia law, resulting 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. 114. 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. 115. Google's infringement has caused and, unless restrained by this Court, will

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

commo n law trademark rights.

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VI. SIXTH CLAIM FOR RELIEF UNFAIR COMPETITION UNDER VIRGINIA LAW 117. Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein. 118. 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 caut ion in their purchasing decis io ns. Thus, Google's acts as described above vio late Virginia's unfair compet it ion law. 119. 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 wit hout limit ation, Google has been unjust ly enriched through its unlawful and unauthorized sales of the Rosetta Stone Marks. 120. Rosetta Stone has been, and absent injunct ive relief will continue to be,

irreparably harmed by Google's act ions. B. Rosetta Stone has no adequate remedy at law for Google's unfair co mpet ition. VII. SEVENTH CLAIM FOR RELIEF UNJUST ENRICHMENT UNDER VIRGINIA LAW 121. Plaint iff repeats and realleges each and every allegation in the foregoing

paragraphs as if fully set forth herein. 31

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122.

Google uses and sells Rosetta Stone's trademarks as keywords that trigger third-

party, paid advertisements on Google search-result s webpages without authorizat ion from Rosetta Stone. Through its AdWords program, Google so ld, and cont inues to sell, Rosetta Stone's trademarks to, among others, Rosetta Stone's co mpet itors, 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 dollars 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 fro m third parties and other economic benefit s to which Google has no right or entit lement. Google knows that it is deriving monetary benefit s from the sale of Rosetta Stone's trademarks through its AdWords program and it would be inequitable for Google to retain those benefit s. 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. 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,

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subsidiaries, parents, and related companies or entities, 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; 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 provisio ns and principles of federal and Virginia law;

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F.

Awarding Rosetta Stone an amount sufficient to conduct a corrective advertising

campaign to dispel the effects of Google's wrongful conduct and confusing and misleading advert ising; G. Direct ing Google to post on its website corrective advert ising in a manner and

form to be established by the Court; H. Direct ing Google to file with this Court and serve on Rosetta Stone within thirt y

(30) days after the service of the injunct ion, a report in writ ing, under oath, that describes in detail the manner and form in which Google has complied with the orders of this Court; I. Awarding Rosetta Stone punit ive and/or exemplary damages in an amount

sufficient to deter future similar conduct by Google and others; and J. Grant ing Rosetta Stone such other and further relief as the Court may deem just. DEMAND FOR JURY TRIAL Plaint iff demands a trial by jury on all causes of action triable by jury. Respect fully submitted, March 5, 2010 Of Counsel: Mitchell S. Ettinger (Pro hac vice) Cliff Sloan (Pro hac vice) Jennifer L. Spaziano (Pro hac vice) Skadden, Arps, Slate, Meagher & Flo m, LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 [phone] /s/ Warren T. Allen II Virginia Bar Number 72691 Attorney for Plaintiff Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m, LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 [phone] [phone] [e-mail] m

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CERTIFICATE OF SERVICE I hereby certify that on March 5, 2010 I will electronically file the foregoing with the Clerk of the Court using the CM/ECF system which will then send a notificat ion of such filing (NEF) to the fo llowing: Jonathan D. Frieden ODIN, FELDMAN & PETTLEMAN, P.C. 9302 Lee Highway, Suite 1100 Fairfax, VA 22031 jo nathan. frieden@o fplaw.co m Counsel for Defendant, Google Inc. March 5, 2010 Of Counsel: Mitchell S. Ettinger (Pro hac vice) Cliff Sloan (Pro hac vice) Jennifer L. Spaziano (Pro hac vice) Skadden, Arps, Slate, Meagher & Flo m, LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 [phone] /s/ Warren T. Allen II Virginia Bar Number 72691 Attorney for Plaintiff Rosetta Stone Ltd. Skadden, Arps, Slate, Meagher & Flo m, LLP 1440 New York Avenue, N.W. Washington, D.C. 20005-2111 [phone] [phone] [e-mail] m