** Complaint - Part 2 of 2
1 43. As a direct and proximate result of defendants' wrongful actions,
2 including their dilution of the BUSINESS WIRE Marks and trading upon the reputation of
3 Business Wire and its products and services, Business Wire has incurred damages in an amount
4 to be proved at trial consisting of, among other things, lost revenues, injury to its business
5 relationships, and diminution in the value of and goodwill associated with the BUSINESS
6 WIRE Marks.
7 44. Defendants' wrongful actions, including the above-described dilution of
8 the BUSINESS WIRE Marks, have caused and continue to cause irreparable injury to the value
9 and goodwill associated with the BUSINESS WIRE Marks, as well as to Business Wire's
10 business, goodwill and reputation. Defendants' actions, if not enjoined, will continue,
11 including using the BUSINESS WIRE Marks and confusingly similar marks to promote
12 fraudulent investment solicitation schemes. Business Wire has no adequate remedy at law in
13 that defendants' conduct is irreparably harming Business Wire, and the amount of its damages
14 is difficult to ascertain.
15 45. Defendants deliberately, willfully, and fraudulently, intended to trade on
16 the reputation of Business Wire and dilute the BUSINESS WIRE Marks. Business Wire is
17 therefore entitled to recover its actual damages as well as its attorneys' fees incurred in this
18 action.
19 THIRD CAUSE OF ACTION
(Violation of 15 U.S.C. 1114 - Trademark Infringement)
20 46. Business Wire realleges and incorporates herein by this reference
21 Paragraphs 1 through 45, above, as if set forth here in full.
22 47. Defendants have used the BUSINESS WIRE Marks and confusingly
23 similar marks in connection with their fraudulent solicitation of investments from the public
24 without Business Wire's consent, thereby inducing members of the public to believe, contrary
25 to fact, that defendants' scheme was sponsored or otherwise approved by or connected with
26 Business Wire, which acts of defendants have damaged, impaired and diluted that part of
27 Business Wire's goodwill symbolized by the well-known name and mark BUSINESS WIRE to
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COMPLAINT
1 Business Wire's irreparable damage.
2 48. Defendants' use of the BUSINESS WIRE Marks and confusingly similar
3 marks in the manner alleged above constitutes trademark infringement within the meaning of
4 15 U.S.C. 1114(1).
5 49. Defendants had actual knowledge of Business Wire's rights in the
6 trademark BUSINESS WIRE when began and continued using it in conjunction with their
7 fraudulent press release and investment solicitation scheme. Thus, defendants have willfully
8 and deliberately infringed Business Wire's marks.
9 50. Defendants acts of infringement have caused Business Wire irreparable
10 injury, loss of reputation and pecuniary damages in an amount to be proved at trial. Unless
11 enjoined by this court, defendants will continue to commit these and similar acts of
12 infringement to Business Wire's irreparable damage.
13
FOURTH CAUSE OF ACTION
14 (California Business And Professions Code Section 14330 -- Dilution)
15 51. Business Wire realleges and incorporates herein by this reference
16 Paragraphs 1 through 50, above, as if set forth here in full.
17 52. Business Wire is informed and believes, and on that basis alleges that
18 defendants' use of the BUSINESS WIRE Marks and confusingly similar marks in connection
19 with their fraudulent investment solicitation scheme has injured and is likely to injure Business
20 Wire's business reputation and dilute the distinctive quality of the BUSINESS WIRE Marks.
21 53. Through their wrongful actions, including their use of the BUSINESS
22 WIRE Marks and confusingly similar marks described herein, defendants have caused and
23 continue to cause irreparable injury to the business reputation of Business Wire and dilute the
24 distinctive quality of the BUSINESS WIRE Marks in violation of Cal. Bus. & Prof. Code
25 14330 and Business Wire's rights at common law. Defendants' actions, if not enjoined, will
26 continue, including using the BUSINESS WIRE Marks in connection with fraudulent
27 investment solicitation schemes. Business Wire has no adequate remedy at law in that
28 defendants' conduct is irreparably harming Business Wire, and its damages are difficult to
10
COMPLAINT
1 ascertain.
2 FIFTH CAUSE OF ACTION
(Breach of Contract)
3 54. Business Wire realleges and incorporates herein by this reference
4 Paragraphs 1 through 53, above, as if set forth here in full.
5 55. Defendants entered into an agreement with Business Wire concerning the
6 distribution of their press release in which defendants promised that the factual content of the
7 press release was true and accurate.
8 56. Defendant breached their agreement with Business Wire by submitting
9 for distribution a press release that contained false information and a fraudulent solicitation for
10 investments from the public.
11 57. As a result of defendants' wrongful actions, including defendants' breach
12 of their agreement with Business Wire, Business Wire has incurred damages in an amount to
13 be proved at trial consisting of, among other things, lost revenues, injury to its business
14 relationships, and diminution in the value of and goodwill associated with Business Wire and
15 the BUSINESS WIRE Marks.
16 SIXTH CAUSE OF ACTION
17 (Fraud)
18 58. Business Wire realleges and incorporates herein by this reference
19 Paragraphs 1 through 57, above, as if set forth here in full.
20 59. On or about March 29, 1999, defendants, by and through defendant
21 Mitchell, submitted a press release to Business Wire and represented, both in writing and by
22 their acts in submitting the press release to an entity they knew or had reason to know does not
23 willingly distribute false information to the public, that the information contained in the press
24 release was true and accurate.
25 60. Defendants' representations regarding the press release were false, as the
26 press release contained false information about a fake company and a non-existent government
27 contract, as well as a fraudulent solicitation for investment.
28 61. Defendants knew that their representations in and about the press release
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COMPLAINT
1 submitted to Business Wire were false.
2 62. Defendants made the representations described above with the intent to
3 defraud Business Wire and the public and to induce Business Wire to distribute defendants'
4 fraudulent press release.
5 63.. In justifiable reliance on defendants' representations in and about the
6 press release, Business Wire was induced to distribute the press release. As a consequence of
7 this fraudulently induced distribution, other news and information entities also disseminated the
8 fraudulent press release and the information therein in conjunction with the BUSINESS WIRE
9 name and mark.
10 64. As a result of its reasonable reliance on defendants' representations,
11 Business Wire has been damaged in an amount to be proved at trial, consisting of, among other
12 things, lost revenues, and injury to its business relationships and goodwill.
13 65. Defendants committed the acts described above intentionally,
14 maliciously, in an oppressive manner and in conscious disregard of Business Wire's rights.
15 Accordingly, Business Wire is entitled to punitive damages in an amount sufficient to punish
16 defendants and deter defendants and others from engaging in similar conduct in the future.
17 SEVENTH CAUSE OF ACTION
(Defamation)
18 66. Business Wire realleges and incorporates herein by this reference
19 Paragraphs 1 through 65, above, as if set forth here in full.
20 67. Defendants have made statements in messages and postings disseminated
21 on the Internet, and, on information and belief, elsewhere, asserting that Business Wire
22 condones and/or knowingly participates in fraudulent activities.
23 68. Such statements are false in that Business Wire does not and never has
24 condoned and/or knowingly participated in fraudulent activities.
25 69. Such statements were and are libelous per se, in that they falsely accuse
26 BUsiness Wire of condoning and/~r knowingly participating in dishonest and/or illegal
27 activities.
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COMPLAINT
1 70. Such statements were made negligently, and/or with actual malice in that
2 defendants either knew that the statements were false or recklessly disregarded the falsity of
3 their statements.
4 71. Business Wire is informed and believes, and on that basis alleges that
5 defendants' statement described above have injured and are likely to injure Business Wire's
6 reputation and business relationships.
7 72. As a direct and proximate cause of the wrongful acts of defendants,
8 plaintiff has incurred special damages and general damages in an amount to be proved at trial.
9 73. Defendants committed the acts described above intentionally,
10 maliciously, in an oppressive manner and in conscious disregard of Business Wire's rights.
11 Accordingly, Business Wire is entitled to punitive damages in an amount sufficient to punish
12 defendants and deter defendants and others from engaging in similar conduct in the future.
13 EIGHTH CAUSE OF ACTION
(Unfair Competition - California Business And Professions Code Section 17200 et. seq.)
14 74. Business Wire realleges and incorporates herein by this reference
15 Paragraphs 1 through 73, above, as if set forth here in full.
16 75. Business Wire is informed and believes, and on that basis alleges, that
17 defendants have employed and used the BUSINESS WIRE Marks and confusingly similar
18 marks for their fraudulent investment solicitation scheme, breached their agreement with
19 Business Wire, and engaged in fraudulent misrepresentation for the purpose of exploiting the
20 public's association and identification of the BUSINESS WIRE Marks with Business Wire and
21 its products and services. Defendants' actions described above constitute unfair competition in
22 violation of Cal. Bus. & Prof. Code 17200 et seq.
23 76. Defendants' acts of unfair competition have caused and continue to cause
24 irreparable injury to the value and goodwill of the BUSINESS WIRE Marks, as well as to
25 Business Wire's business, goodwill and reputation. Defendants' actions, if not enjoined, will
26 continue. Business Wire has no adequate remedy at law in that defendants' conduct is
27 irreparably harming Business Wire, and its damages are difficult to ascertain.
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COMPLAINT
1 77. As a result of defendants' acts of unfair competition, defendants have
2 been benefitted to the detriment of Business Wire. Defendants should be required to provide
3 restitution of such amounts to Business Wire.
4 NINTH CAUSE OF ACTION
(Conspiracy)
5 78. Business Wire realleges and incorporates herein by this reference
6 Paragraphs 1 through 77, above, as if set forth here in full.
7 79. Business Wire is informed and believes, and on that basis alleges, that
8 defendants have conspired and combined with one another and with third parties to engage in
9 the acts described above, in violation of state and federal law.
10 80. The effectuation of defendants' conspiracy has damaged Business Wire's
11 business relations, reputation and goodwill in an amount to be proved at trial.
12 81. Defendants and those acting in concert with them committed the acts
13 described above intentionally, maliciously, in an oppressive manner and in conscious disregard
14 of Business Wire's rights. Accordingly, Business Wire is entitled to punitive damages in an
15 amount sufficient to punish defendants and deter defendants and others from engaging in
16 similar conduct in the future.
17 PRAYER FOR RELIEF
18 WHEREFORE, Business Wire prays for judgment against defendants as
19 follows:
20 a. That this Court grant preliminary and permanent injunctive relief against
21 defendants and their agents or representatives and any and all persons acting for, with, by,
22 through or under them:
23 i. enjoining them from using the BUSINESS WIRE Marks, or any
24 confusingly similar marks, in connection with the promotion, display or advertising of any of
25 their products or services, including without limitation any solicitation for investments in any
26 entity or enterprise;
27 ii. requiring them to remove all messages, postings, reports or other
14
COMPLAINT
1 communications on the Internet in which the BUSINESS WIRE Marks, or any confusingly
2 similar marks, appear in conjunction with any press release or purported press release
3 containing false or misleading information;
4 iii. enjoining them from engaging in any activity that would, or
5 would likely, cause any confusion with or dilute the distinctive quality of any of the
6 BUSINESS WIRE Marks, and from exploiting the goodwill or business reputation of Business
7 Wire or wrongfully interfering with the business relationships of Business Wire in any manner,
8 including without limitation by misrepresenting, suggesting, or doing any act that would have
9 any tendency to lead consumers to believe that any of defendants' or any third party's
10 products, services or conduct are authorized by, sponsored by, affiliated with, endorsed by,
11 connected to, or associated with Business Wire or any of its products or services;
12 iv. enjoining defendants from submitting to Business Wire for
13 distribution any press release or other communication which they know or should know
14 contains false information;
15 v. requiring defendants to account to Business Wire for any and all
16 revenues, profits or other unjust enrichment that defendants have derived from their wrongful
17 actions and to pay to Business Wire such amounts, and restore such amounts to Business Wire;
18 b. That this Court require defendants to pay all compensatory damages that
19 Business Wire has sustained by reason of acts complained of herein in an amount to be proved
20 at trial, and that such damages be trebled or otherwise multiplied according to law;
21 c. That this Court require defendants to pay punitive damages, including
22 but not limited to any statutory multiplying of compensatory damages, in an amount to be
23 proven;
24 d. That this Court require defendants to pay all of Business Wire's litigation
25 expenses, including but not limited to reasonable attorneys' fees and expenses and costs of this
26 action; and
27 //
28
15
COMPLAINT
1 e. That this Court grant such other and further relief as it deems just.
2
3 DATED: April 26, 1999 STEINHART & FALCONER LLP
ROGER R. MYERS
4 LISA M. SITKIN
5
6 By: Roger R. Myers
Attorneys for Plaintiff
7 BUSINESS WlRE
8
9
10
11
12
COMPLAINT
9675.1
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