Case 3:12-cv-01651-DMS-WVG Document 39 Filed 09/20/13 Page 1 of 31
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`CALDARELLI HEJMANOWSKI & PAGE LLP
`William J. Caldarelli (SBN #149573)
`Ben West (SBN #251018)
`12340 El Camino Real, Suite 430
`San Diego, CA 92130
`Tel: (858) 720-8080
`Fax: (858) 720-6680
`wjc@chplawfirm.com
`dbw@chplawfirm.com
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`FABIANO LAW FIRM, P.C.
`Michael D. Fabiano (SBN #167058)
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`Telephone: (619) 742-9631
`mdfabiano@fabianolawfirm.com
`
`OSBORNE LAW LLC
`John W. Osborne (Admitted Pro Hac Vice)
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`Telephone: (914) 714-5936
`josborne@osborneipl.com
`
`WATTS LAW OFFICES
`Ethan M. Watts (SBN #234441)
`12340 El Camino Real, Suite 430
`San Diego, CA 92130
`Telephone: (858) 509-0808
`Facsimile: (619) 878-5784
`emw@ewattslaw.com
`
`Attorneys for Plaintiff Ameranth, Inc.
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`AMERANTH, INC.,
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`FANDANGO, INC.,
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`v.
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`Plaintiff,
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`Defendant.
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`Case No. 3:12-cv-1651-DMS-WVG
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`SECOND AMENDED
`COMPLAINT FOR PATENT
`INFRINGEMENT
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`DEMAND FOR JURY TRIAL
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Case 3:12-cv-01651-DMS-WVG Document 39 Filed 09/20/13 Page 2 of 31
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`SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff Ameranth, Inc., for its Second Amended Complaint against
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`Defendant Fandango, Inc., avers as follows:
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`PARTIES
`1. Plaintiff Ameranth, Inc. (“Ameranth”) is a Delaware corporation having a
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`principal place of business at 5820 Oberlin Drive, Suite 202, San Diego,
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`California 92121. Ameranth develops, manufactures and sells, inter alia,
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`hospitality industry, entertainment, restaurant and food service information
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`technology solutions under the trademarks 21st Century Communications™, and
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`21st Century Restaurant™, among others, comprising the synchronization and
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`integration of hospitality information and hospitality software applications
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`between fixed, wireless and/or internet applications, including but not limited to
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`computer servers, web servers, databases, affinity/social networking systems,
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`desktop computers, laptops, “smart” phones and other wireless handheld
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`computing devices.
`2. Defendant Fandango, Inc. (“Fandango” or “Defendant”) is, on
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`information and belief, a Delaware corporation having a principal place of
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`business and headquarters in Los Angeles, California. On information and belief,
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`Fandango makes, uses, offers for sale or license and/or sells or licenses
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`entertainment box office management and ticketing/ticket sales/ticket purchases
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`information-technology products, software, components and/or systems within
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`this Judicial District, including the Fandango System as defined herein.
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`JURISDICTION AND VENUE
`3. This is an action for patent infringement arising under the Patent Laws of
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`the United States, 35 U.S.C. §§ 271, 281-285.
`4. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
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`and 1338(a).
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`5. On information and belief, Fandango engages in (a) the offer for sale or
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`license and sale or license of hospitality industry, ticketing, reservations, and/or
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`ordering products and/or components in the United States, including this Judicial
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`District, including services, products, software, and components, comprising
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`wireless and internet POS and/or hospitality aspects; (b) the installation and
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`maintenance of said services, products, software, components and/or systems in
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`hospitality industry, ticketing, reservations, ordering, and/or entertainment
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`information technology systems in the United States, including this Judicial
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`District; and/or (c) the use of hospitality industry, ticketing, reservations, ordering,
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`and/or entertainment information technology systems comprising said services,
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`products, software, components and/or systems in the United States, including this
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`Judicial District.
`6. This Court has personal jurisdiction over Fandango because Fandango
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`commits acts of patent infringement in this Judicial District including, inter alia,
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`making, using, offering for sale or license, and/or selling or licensing infringing
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`services, products, software, components and/or systems in this Judicial District.
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`Additionally, Fandango has already appeared in this action and submitted to the
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`jurisdiction of the Court. Fandango has continued to engage in and perform such
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`acts of infringement since the filing and service of the original complaint in this
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`matter accusing Fandango of infringement of the Ameranth patents at issue herein.
`7. Venue is proper in this Judicial District pursuant to 28 U.S.C. §§ 1391(b)
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`and (c) and 1400(b).
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`BACKGROUND
`8. Ameranth was established in 1996 to develop and provide its 21st Century
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`Communications™ innovative information technology solutions for the
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`hospitality industry (inclusive of, e.g., restaurants, hotels, casinos, nightclubs,
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`cruise ships and other entertainment and sports venues). Ameranth has been
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`widely recognized as a technology leader in the provision of wireless and internet-
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`based systems and services to, inter alia, restaurants, hotels, casinos, cruise ships
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`and entertainment and sports venues. Ameranth’s award winning inventions
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`enable, in relevant part, generation and synchronization of menus, including but
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`not limited to restaurant menus, event tickets, and other products across fixed,
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`wireless and/or internet platforms as well as synchronization of hospitality
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`information and hospitality software applications across fixed, wireless and
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`internet platforms, including but not limited to, computer servers, web servers,
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`databases, affinity/social networking systems, desktop computers, laptops,
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`“smart” phones and other wireless handheld computing devices.
`9. Ameranth began development of the inventions leading to the patents in
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`this patent family, including the patents-in-suit, in the late Summer of 1998, at a
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`time when the then-available wireless and internet hospitality offerings were
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`extremely limited in functionality, were not synchronized and did not provide an
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`integrated system-wide solution to the pervasive ordering, reservations, affinity
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`program and information management needs of the hospitality industry. Ameranth
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`uniquely recognized the actual problems that needed to be resolved in order to
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`meet those needs, and thereafter conceived and developed its breakthrough
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`inventions and products to provide systemic and comprehensive solutions directed
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`to optimally meeting these industry needs. Ameranth has expended considerable
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`effort and resources in inventing, developing and marketing its inventions and
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`protecting its rights therein.
`10. Ameranth’s pioneering inventions have been widely adopted and are thus
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`now essential to the modern wireless hospitality enterprise of the 21st Century.
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`Ameranth’s solutions have been adopted, licensed and/or deployed by numerous
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`entities across the hospitality industry.
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`11. The adoption of Ameranth’s technology by industry leaders and the wide
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`acclaim received by Ameranth for its technological innovations are just some of
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`the many confirmations of the breakthrough aspects of Ameranth’s inventions.
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`Ameranth has received twelve different technology awards (three with “end
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`customer” partners) and has been widely recognized as a hospitality
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`wireless/internet technology leader by almost all major national and hospitality
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`print publications, e.g., The Wall Street Journal, New York Times, USA Today
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`and many others. Ameranth was personally nominated by Bill Gates, the Founder
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`of Microsoft, for the prestigious Computerworld Honors Award that Ameranth
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`received in 2001 for its breakthrough synchronized reservations/ticketing system
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`with the Improv Comedy Theatres. In his nomination, Mr. Gates described
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`Ameranth as “one of the leading pioneers of information technology for the
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`betterment of mankind.” This prestigious award was based on Ameranth’s
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`innovative synchronization of wireless/web/fixed hospitality software technology.
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`Subsequently, the United States Patent and Trademark Office granted Ameranth a
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`number of currently-issued patents, two of which are the basis for this lawsuit.
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`Ameranth has issued press releases announcing these patent grants on business
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`wires, on its web sites and at numerous trade shows since the first of the presently-
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`asserted patents issued in 2002. A number of companies have licensed patents
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`and technology from Ameranth, recognizing and confirming the value of
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`Ameranth’s innovations. At all relevant times, Ameranth marked its own
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`products with the numbers of the Ameranth patents then issued, thereby providing
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`companies, competitors and participants in the hospitality industry with notice of
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`Ameranth’s patents. Furthermore, companies that license Ameranth’s products
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`have marked their products with Ameranth’s patent numbers, thereby also
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`providing notice of Ameranth’s patents. As a result of Ameranth’s technological
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`breakthroughs and successes, business activities, awards, press releases and
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`coverages, participation in industry conferences, licensing and enforcement
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`activities, Ameranth, and its technology and patents, are well-known throughout
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`the hospitality industry, including to Fandango and other Defendants sued in this
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`Court by Ameranth.
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`RELATED CASES PREVIOUSLY FILED
`12. The Ameranth patents asserted herein, U.S. Patent No. 6,384,850 (the
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`“’850 patent”), U.S. Patent No. 6,871,325 (the “’325 patent”, a continuation of the
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`‘850 patent), U.S. Patent No. 6,982,733 (the “’733 patent”, a continuation-in-part
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`of the ‘850 patent) and U.S. Patent No. 8,146,077 (the “’077 patent”, a
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`continuation of the ‘733 patent), are all patents in Ameranth’s “Information
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`Management and Synchronous Communications” patent family.
`13. Ameranth is also asserting claims of these same patents in separate
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`lawsuits against other defendants that are already pending in this Court. These
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`lawsuits have now been consolidated for pre-trial purposes under Case No. 3:11-
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`cv-01810-DMS-WVG.
`14. The original complaint in this matter was filed in this Court on June 29,
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`2012, and subsequently served upon Fandango (“Fandango I”) asserting claims
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`for infringement of Ameranth’s ‘850, ‘325 and ‘077 Patents At least since that
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`time, Fandango has had direct knowledge of Ameranth’s patents and that
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`Fandango’s ticketing system infringes those patents as alleged therein.
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`Additionally, Fandango is a member of a joint defense group concerning
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`Ameranth’s patent-infringement actions and, on information and belief, as part of
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`that group, shares information with other defendants, including information and
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`content about the patents in this Ameranth patent family, including Ameranth’s
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`‘733 patent. On information and belief, through its participation in Fandango I
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`and involvement in the joint defense group, Fandango acquired knowledge of
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`Ameranth’s ‘733 patent, including but not limited to information regarding
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`Ameranth’s assertion of the ‘733 patent against Apple (including Fandango’s
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`integration with Apple’s iOS operating system and devices and other Apple
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`software including Siri) in a case that was filed in this Court in September 2012.
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`Fandango also had knowledge of the ‘733 patent as a result of discovery,
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`disclosure, briefing, and case management conferences in Fandango I, including,
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`inter alia, discussion of the assertion of the ‘733 patent against Fandango business
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`partner Apple at a case management conference, identification of the ‘733 patent
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`in Rule 26(a) initial disclosures, and production of the USPTO file wrapper for the
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`‘733 patent in discovery. Further, on information and belief, Fandango was also
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`aware of the Ameranth patents due to the widespread recognition Ameranth has
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`received for its pioneering inventions as detailed above.
`15. Thus, Fandango has long been aware of the ‘733 Patent and its
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`relationship to Apple and Fandango’s integration, in addition to Fandango’s long-
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`standing knowledge regarding the ‘850, ‘325, and ‘077 Patents. Nonetheless,
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`Fandango has continued, and is continuing, to make, use, offer for sale or license
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`and/or sell or license infringing systems, products, and/or services in the United
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`States without authority or license from Ameranth and to engage in acts of
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`infringement as set forth herein.
`16. Fandango I, filed in June 2012, asserted claims of the ‘850, ‘325, and
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`‘077 patents against Fandango. A separate complaint asserting claims of the ‘733
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`patent against Fandango was filed in June 2013 (“Fandango II”). Per Court order,
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`Ameranth is filing this amended complaint to consolidate its assertions against
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`Fandango with respect to all four of these patents in a single action. However, the
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`knowledge that Fandango acquired about the ‘733 patent through Fandango I still
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`qualifies as pre-suit knowledge for the purposes of the claims asserted here against
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`Fandango regarding the ‘733 patent.
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`COUNT I
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`Patent Infringement (U.S. Pat. No. 6,384,850)
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`(35 U.S.C. § 271)
`17. Plaintiff reiterates and incorporates the allegations set forth in paragraphs
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`1-16 above as if fully set forth herein.
`18. On May 7, 2002, United States Patent No. 6,384,850 entitled
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`“Information Management and Synchronous Communications System with Menu
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`Generation” (“the ‘850 patent”) (a true and copy of which is attached hereto as
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`Exhibit A) was duly and legally issued by the United States Patent & Trademark
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`Office.
`19. Plaintiff Ameranth is the lawful owner by assignment of all right, title
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`and interest in and to the ‘850 patent.
`20. On information and belief, Fandango directly infringes and continues to
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`directly infringe one or more valid and enforceable claims of the ‘850 patent, in
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`violation of 35 U.S.C. § 271(a), by making, using, offering for sale or license
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`and/or selling or licensing infringing systems, products, and/or services in the
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`United States without authority or license from Ameranth, including but not
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`limited to the current and all previous “versions” (from Jan. 1, 2007 to present,
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`and regardless of whether alleged by Fandango to be revisions, different versions,
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`or different systems) of the Fandango system/product/service, which includes,
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`inter alia, software that enables wireless and internet ticketing integration, online
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`and mobile ticketing/ticket sales/ticket purchases, integration with POS systems,
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`integration with e-mail and affinity program and social media applications such as
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`Facebook, Twitter, Groupon, and YouTube, and/or other third-party web-based
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`applications, and other hospitality aspects (the “Fandango System”). Ameranth
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`has previously served Fandango with infringement contentions in Fandango I
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`further describing the details of Fandango’s infringement of this patent. Those
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`infringement contentions are attached hereto as Exhibit E and incorporated herein
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`by reference.
`21. On information and belief, the Fandango System, as deployed and/or used
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`at or from one or more locations by Fandango, its agents, distributors, partners,
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`affiliates, licensees, and/or their customers, infringes one or more valid and
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`enforceable claims of the ‘850 patent, by, inter alia, doing at least one of the
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`following: (a) Generating and transmitting menus in a system including a central
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`processing unit, a data storage device, a computer operating system containing a
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`graphical user interface, one or more displayable main menus, modifier menus,
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`and sub-modifier menus, and application software for generating a second menu
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`and transmitting it to a wireless handheld computing device or a Web page; and/or
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`(b) Enabling ticketing/ticket sales/ticket purchases and other hospitality functions
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`via iPhone, Android, and other internet-enabled wireless handheld computing
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`devices as well as via Web pages, storing hospitality information and data on at
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`least one central database, on at least one wireless handheld computing device,
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`and on at least one Web server and Web page, and synchronizing applications and
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`data, including but not limited to applications and data relating to ordering,
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`between at least one central database, wireless handheld computing devices, and
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`at least one Web server and Web page; utilizing an interface that provides a single
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`point of entry that allows the synchronization of at least one wireless handheld
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`computing device and at least one Web page with at least one central database;
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`allowing information to be entered via Web pages, transmitted over the internet,
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`and automatically communicated to at least one central database and to wireless
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`handheld computing devices; allowing information to be entered via wireless
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`handheld computing devices, transmitted over the internet, and automatically
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`communicated to at least one central database and to Web pages.
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`22. On information and belief, Fandango has indirectly infringed and
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`continues to indirectly infringe one or more valid and enforceable claims of the
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`‘850 patent, in violation of 35 U.S.C. § 271(b), by actively, knowingly, and
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`intentionally inducing direct infringement by other persons.
`23. On information and belief, third parties and customers of Fandango,
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`including consumers, theatre operators, and others, use the Fandango System in a
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`manner that infringes upon one or more valid and enforceable claims of the ‘850
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`patent. Fandango provides encouragement, instruction and direction regarding the
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`use of the Fandango System, and advertises, promotes, and encourages the use of
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`the Fandango System in a manner understood and intended by Fandango to
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`infringe Ameranth’s patents. Fandango provides such instruction, direction and
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`encouragement regarding infringing use of the Fandango System on its webpages,
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`in user videos, in offering on the iTunes “app store,” in press releases and in
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`statements in industry news articles, as demonstrated in the infringement
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`contentions attached hereto as Exhibit E and in the references cited in the
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`appendix thereto.
`24. On information and belief, Fandango actively induces others to infringe
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`the ‘850 patent in violation of 35 U.S.C. §271(b) by knowingly encouraging,
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`aiding and abetting third parties and customers of Fandango, including consumers,
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`theatre owners/operators, and others, to use the infringing Fandango System in the
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`United States without authority or license from Ameranth in a manner understood
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`and intended by Fandango to infringe Ameranth’s patents.
`25. On information and belief, Fandango contributorily infringes and
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`continues to contributorily infringe one or more valid and enforceable claims of
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`the ‘850 patent, in violation of 35 U.S.C. § 271(c), by offering to sell and/or
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`selling components of systems on which claims of the ‘850 patent read,
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`constituting a material part of the invention, knowing that the components were
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`especially adapted for use in systems which infringe claims of the ‘850 patent.
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`These “components” consist of the same elements of the Fandango System
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`described above, as accessed, used, or benefitted by third parties, such as movie
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`theatre operators and consumers, via computers and wireless handheld computing
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`devices in the possession of such third parties. Ameranth alleges, as set forth
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`above, that Fandango directly infringes this patent, and Ameranth alternatively
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`alleges that Fandango indirectly infringes to the extent that such third parties are
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`determined to be “users” of the Fandango System and direct infringers of this
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`patent.
`26. By distributing, selling, offering, offering to sell or license and/or selling
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`or licensing the Fandango System, Fandango provides non-staple articles of
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`commerce to others for use in infringing systems, products, and/or services.
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`Because the Fandango System is a specialized software system custom developed
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`and designed to enable online and mobile movie ticketing transactions in a manner
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`that practices the claims of Ameranth’s patents, it is not a staple article of
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`commerce and has no substantial non-infringing uses. Thus, the Fandango
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`System is used by third parties in connection with online and mobile ticketing and
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`other hospitality functions in a way that infringes Ameranth’s patents-in-suit and
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`in no other substantial or meaningful way. Additionally, Fandango provides
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`instruction and direction regarding the use of the Fandango System and advertises,
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`promotes, and encourages the use of the Fandango System in manner understood
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`and intended by Fandango to infringe Ameranth’s patents, as described above.
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`Users of the Fandango System, including but not limited to consumers and theatre
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`owners/operators, directly infringe one or more valid and enforceable claims of
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`the ‘850 patent, for the reasons set forth hereinabove.
`27. As detailed above, Fandango has had knowledge of the ‘850 patent at
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`least since the filing and service of Fandango I in June 2012, including knowledge
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`that the Fandango System, which is a non-staple article of commerce, has been
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`used as a material part of the claimed invention of the ‘850 patent, and that there
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`are no substantial non-infringing uses for the Fandango System.
`28. The aforesaid infringing activity of defendant Fandango has directly and
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`proximately caused damage to plaintiff Ameranth, including loss of profits from
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`sales or licensing it would have made but for the infringements. Unless enjoined,
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`the aforesaid infringing activity will continue and cause irreparable injury to
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`Ameranth for which there is no adequate remedy at law.
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`COUNT II
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`Patent Infringement (U.S. Pat. No. 6,871,325)
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`(35 U.S.C. § 271)
`29. Plaintiff reiterates and reincorporates the allegations set forth in
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`paragraphs 1-28 above as if fully set forth herein.
`30. On March 22, 2005, United States Patent No. 6,871,325 entitled
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`“Information Management and Synchronous Communications System with Menu
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`Generation” (“the ‘325 patent”) (a true and correct copy of which is attached
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`hereto as Exhibit B) was duly and legally issued by the United States Patent &
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`Trademark Office.
`31. Plaintiff Ameranth is the lawful owner by assignment of all right, title
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`and interest in and to the ‘325 patent.
`32. On information and belief, Fandango directly infringes and continues to
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`directly infringe one or more valid and enforceable claims of the ‘325 patent, in
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`violation of 35 U.S.C. § 271(a), by making, using, offering for sale or license
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`and/or selling or licensing infringing systems, products, and/or services in the
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`United States without authority or license from Ameranth, including but not
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`limited to the Fandango System. Ameranth has previously served Fandango with
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`infringement contentions in Fandango I further describing the details of
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`Case 3:12-cv-01651-DMS-WVG Document 39 Filed 09/20/13 Page 13 of 31
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`Fandango’s infringement of this patent. Those infringement contentions are
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`attached hereto as Exhibit E and incorporated herein by reference.
`33. On information and belief, the Fandango System, as deployed and/or used
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`at or from one or more locations by Fandango, its agents, distributors, partners,
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`affiliates, licensees, and/or their customers, infringes one or more valid and
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`enforceable claims of the ‘325 patent, by, inter alia, doing at least one of the
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`following: (a) Generating and transmitting menus in a system including a central
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`processing unit, a data storage device, a computer operating system containing a
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`graphical user interface, one or more displayable main menus, modifier menus,
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`and sub-modifier menus, and application software for generating a second menu
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`and transmitting it to a wireless handheld computing device or a Web page; and/or
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`(b) Enabling ticketing/ticket sales/ticket purchases and other hospitality functions
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`via iPhone, Android, and other internet-enabled wireless handheld computing
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`devices as well as via Web pages, storing hospitality information and data on at
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`least one central database, on at least one wireless handheld computing device,
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`and on at least one Web server and Web page, and synchronizing applications and
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`data, including but not limited to applications and data relating to orders, between
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`at least one central database, wireless handheld computing devices, and at least
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`one Web server and Web page; and sending alerts, confirmations, and other
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`information regarding orders to various wireless mobile devices.
`34. On information and belief, Fandango has indirectly infringed and
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`continues to indirectly infringe one or more valid and enforceable claims of the
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`‘325 patent, in violation of 35 U.S.C. § 271(b), by actively, knowingly, and
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`intentionally inducing direct infringement by other persons.
`35. On information and belief, third parties and customers of Fandango,
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`including consumers, theatre operators, and others, use the Fandango System in a
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`manner that infringes upon one or more valid and enforceable claims of the ‘325
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`Case 3:12-cv-01651-DMS-WVG Document 39 Filed 09/20/13 Page 14 of 31
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`patent. Fandango provides encouragement, instruction and direction regarding the
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`use of the Fandango System, and advertises, promotes, and encourages the use of
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`the Fandango System in a manner understood and intended by Fandango to
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`infringe Ameranth’s patents. Fandango provides such instruction, direction and
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`encouragement regarding infringing use of the Fandango System on its webpages,
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`in user videos, in offering on the iTunes “app store,” in press releases and in
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`statements in industry news articles, as demonstrated in the infringement
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`contentions attached hereto as Exhibit E and in the references cited in the
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`appendix thereto.
`36. On information and belief, Fandango actively induces others to infringe
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`the ‘325 patent in violation of 35 U.S.C. §271(b) by knowingly encouraging,
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`aiding and abetting customers of Fandango, including consumers, theatre
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`owners/operators, and others, to use the infringing Fandango System in the United
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`States without authority or license from Ameranth in a manner understood and
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`intended by Fandango to infringe Ameranth’s patents.
`37. On information and belief, Fandango contributorily infringes and
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`continues to contributorily infringe one or more valid and enforceable claims of
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`the ‘325 patent, in violation of 35 U.S.C. § 271(c), by offering to sell and/or
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`selling components of systems on which claims of the ‘325 patent read,
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`constituting a material part of the invention, knowing that the components were
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`especially adapted for use in systems which infringe claims of the ‘325 patent.
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`These “components” consist of the same elements of the Fandango System
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`described above, as accessed, used, or benefitted by third parties, such as movie
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`theatre operators and consumers, via computers and wireless handheld computing
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`devices in the possession of such third parties. Ameranth alleges, as set forth
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`above, that Fandango directly infringes this patent, and Ameranth alternatively
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`alleges that Fandango indirectly infringes to the extent that such third parties are
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`Case 3:12-cv-01651-DMS-WVG Document 39 Filed 09/20/13 Page 15 of 31
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`determined to be “users” of the Fandango System and direct infringers of this
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`patent.
`38. By distributing, selling, offering, offering to sell or license and/or selling
`
`or licensing the Fandango System, Fandango provides non-staple articles of
`
`commerce to others for use in infringing systems, products, and/or services.
`
`Because the Fandango System is a specialized software system custom developed
`
`and designed to enable online and mobile movie ticketing transactions in a manner
`
`that practices the claims of Ameranth’s patents, it is not a staple article of
`
`commerce and has no substantial non-infringing uses. Thus, the Fandango
`
`System is used by third parties in connection with online and mobile ticketing and
`
`other hospitality functions in a way that infringes Ameranth’s patents-in-suit and
`
`in no other substantial or meaningful way. Additionally, Fandango provides
`
`instruction and direction regarding the use of the Fandango System and advertises,
`
`promotes, and encourages the use of the Fandango System in manner understood
`
`and intended by Fandango to infringe Ameranth’s patents, as described above.
`
`Users of the Fandango System, including but not limited to consumers and theatre
`
`owners/operators, directly infringe one or more valid and enforceable claims of
`
`the ‘325 patent, for the reasons set forth hereinabove.
`39. As detailed above, Fandango has had knowledge of the ‘325 patent at
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`least since the filing and service of Fandango I in June 2012, including knowledge
`
`that the Fandango System, which is a non-staple article of commerce, has been
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`used as a material part of the claimed invention of the ‘325 patent, and that there
`
`are no substantial non-infringing uses for the Fandango System.
`40. The aforesaid infringing activity of defendant Fandango has directly and
`
`proximately caused damage to plaintiff Ameranth, including loss of profits from
`
`sales or licensing it would have made but fo