Examining Attorney: Lamothe Lesley
`
`App SN: 76-428,592
`Law Office 103
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Law Office 103
`
`Attorney: Lamothe Lesley
`
`FIRST REQUEST FOR
`EXTENSION OF TIME TO FILE
`NOTICE OF OPPOSITION
`15 U.S.C. §l063; 37 C.F.R. 2.102
`
`CORRESPONDENT’S
`DOCKET NO: 03-575
`
`CORRESPONDENT’S EMAIL:
`bruce@legalmatter.com
`
`um
`
`o9_25_2oo3
`Uls_ pm, ,, -(Mop;/TM mu ficp1Dt 022
`
`) ) ) ) )
`
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`
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`
`) ’
`
`In re Application of
`
`RUSSIAN RESEARCH CENTER KURCHATOV
`INSTITUTE AND INTERDCM CORPORATION
`
`Serial No:
`
`76-428,592
`
`Filed:
`
`Mark:
`
`JULY 3, 2002
`
`A
`
`SIMPORT
`
`
`
`999
`
`Published:
`
`September 2, 2003
`
`Page:
`
`TM 259
`
`Box TTAB NO FEE
`Office of the Commissioner for Trademarks
`2900 Crystal Drive
`Arlington, VA 22202-3514
`
`Commissioner for Trademarks:
`
`Western Services Corporation, a Maryland corporation with offices located at 7340 Executive Way,
`
`Suite A, Frederick, Maryland 21704 (“WSC”) believes that it will be damaged by the registration of the
`above referenced mark. WSC hereby respectfully requests that the Board grant an automatic thirty-day
`
`extension of time to oppose the registration of the SIMPORT mark by applicant in the above-identified
`application. This is WSC’s first request for an extension of time to file a notice of opposition in this case.
`The current opposition period is set to expire October 2, 2003, and the automatic extension of time would
`
`re-set WSC’s opposition deadline to November 3, 2003.
`Concurrently with filing this request for an extension of time, WSC is filing a Letter of Protest in the
`Office of the Commissioner for Trademarks asking the Commissioner to suspend all action on the above-
`
`identified application pending the outcome of current litigation between WSC and the Russian Research
`Center Kurchatov Institute, one of the above-identified applicants, which, among other things, includes a
`dispute over ownership of the SIMPORT mark. A copy of WSC’s Letter of Protest, including the current
`
`relevant pleadings, is enclosed.
`
`Page 1 of 2
`
`

`

`
`
`App SN: 76-428,592
`Law Ofiice 103
`
`Examining Attorney: Lamothe Lesley
`
`%f
`
`In addition to the automatic extension of time re-setting WSC’s opposition deadline to November 3,
`2003, to avoid the need to file repeated requests for further extensions of time, WSC also requests that its
`
`opposition period be extended indefinitely beyond November 3, 2003 pending the decision of the
`
`Administrator for Trademark Identifications, Classifications and Practice on whether WSC’s Letter of
`
`Protest should be granted.
`
`Enclosed with this original request are two copies in compliance with 37 C.F.R. § 2.102(d).
`
`Respectfully submitted,
`
`LAW OFFICES OF BRUCE E. MATTER
`
`By:
`
`“G?
`
`Bruce E. Matter
`
`Date: 03
`
`UNITED STATES EXPRESS MAIL CERTIFICATE
`
`Certificate of U.S. Express Mail No.:
`
`EU136845545US
`
`I hereby certify that this correspondence, including (i) First Request For Extension of Time to File
`
`Notice of Opposition and (ii) retum-receipt postcard,
`
`is being deposited with the United States Postal
`
`Service as Express Mail-Post Oflice to Addressee, postage pre-paid,
`
`in an envelope addressed to: Box
`
`TTAB No Fee, Office of the Commissioner for Trademarks, 2900 Crystal Drive, Arlington, VA 22202-
`
`3514.
`
`
`
`grygiotj
`Date:
`@£ 52¢/7%-Z
`
`Bruce E. Matter
`
`Page 2 of 2
`
`

`

` 0
`
`<2)
`
`‘*‘*."f7.“‘.7‘.-_
`
`Bruce E. Matter, E .
`sq
`Tel: 301-656-2936
`FEW 3015552937
`Cell: 301-332-4850
`bmce@legaImatter.com
`www.legalmatter.com
`
`Law Offices of Bruce E’. Matter
`Attorneys at Law
`'
`_
`_
`7315 Wisconsin Avenue, Suite 450 North
`Bethesda, Maryland 20814
`
`Intellectual Property: Copyrights & Trademarks
`Publishing, E-Commerce & Rights Licensing
`General Business Transactions
`
`.
`-
`-
`Mmmd t° P'a°"°°'
`Mawtand
`District of Columbia
`Virginia
`Florida
`California
`
`VIA EXPRESS MAIL - EU136845537
`
`September 25, 2003
`
`Commissioner for Trademarks
`
`2900 Crystal Drive’
`Arlington, VA 22202-3514
`
`RE:
`
`LETTER OF PROTEST
`
`Dear Commissioner for Trademarks:
`
`Enclosed please find a Letter ofProtest in connection with the following application:
`
`Applicant:
`
`RUSSIAN RESEARCH CENTER KURCHATOV INSTITUTE
`AND DITERDCM CORPORATION
`
`Mark:
`
`SIMPORT
`
`Serial No:
`
`76-428,592
`
`Filed:
`
`July 3, 2002
`
`Published:
`
`September 2, 2003
`
`received the enclosed postage-paid postcard acknowledging receipt of this
`Please stamp as
`correspondence, and return it for our file.
`‘.
`I
`Should there be any questions concerning the enclosed materials, please call me directly at 301.656.2936.
`
`Sincerely,
`
`fie52%
`
`Bruce E. Matter
`
`Enclosures
`
`EU136845537US
`Certificate ofU.S. Express Mail No.:
`I hereby certify that this correspondence, including (i) better of Protest
`and (ii) return-receipt postcard, is being deposited with the United States
`Postal Service :3 Express Mail-Post Office to Addressee, postage pre-
`paid,
`in an envelope addressed to: Office of the Commissioner for
`Trademarks, 2900 Crystal Drive, Arlington, VA 22202-3514.
`
`cc:
`
`Mr. Sergei Lalayants, Vice President
`Western Services Corporation
`h
`‘
`
`Dam‘
`Name:
`
`9 ~25’-J3
`( X
`
`E
`@
`
`

`

`Examining Attorney: Lamothe Lesley
`
`App SN: 76-428,592
`. Law Ofiice 103
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Law,Office 103
`.
`Attorney: Lamothe Lesley
`'
`LETTER OF PROTEST
`37 C.F.R. 2.146; TMEP 1715.01(a)(3)
`
`CORRESPONDENT’S
`‘DOCKET NO: 03-575
`
`CORRESPONDENT’S EMAIL:
`bruce@legalmatter.com
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`) )
`
`In re Application of
`
`RUSSIAN RESEARCH CENTER KURCHATOV
`INSTITUTE AND INTERDCM CORPORATION
`
`Serial No:
`
`76-428,592
`
`Filed:
`
`.
`
`JULY 3, 2002
`
`International Class:
`
`009
`
`)
`SIMPORT
`Mark:
`)
`
`Office of the Commissioner for Trademarks
`
`2900 Crystal Drive
`Arlington, VA 22202-3 5 14
`
`Commissioner for Trademarks:
`
`Western Services Corporation, a Maryland corporation with offices located at 7340 Executive
`Way, Suite
`Frederick, Maryland 21704 (“WSC”), hereby protests the prosecution of the above-
`identified application on the grounds that registration ofthe mark will damage WSC.
`WSC is the applicant in application Serial Number 78-304,889 filed September 24, 2003 seeking
`
`registration of the mark SIMPORT for the following goods/services:
`
`International Class 009: Computer software development tools for use in developing
`software simulating nuclear power plant control systems. First Use: At least as early as
`March 1997. First Use In Commerce: At least as early as March 1997.
`
`International Class 035: Licensing of nuclear power plant control system simulation
`sofiware. First Use: At least as early as March 1997. First Use In Commerce: At least
`as early as March 1997.
`
`International Class 042: Computer software consultation services including design,
`selection, development, authoring,
`installation,
`implementation, use, maintenance,
`technical support, updating of computer software, updating computer sofiware for
`others, and customization of computer hardware and software for use in simulating
`nuclear power plant control systems. First Use: At least as early as March 1997. First
`Use In Commerce: At least as early as March 1997.
`
`Page 1 of 2
`
`

`

`(3
`
`V)
`
`App SN: 76—428,592
`. Law Oflice 103
`
`Examining Attorney: Lamothe Lesley
`
`A copy of the United States Patent and Trademark Office email dated September 24, 2003
`
`acknowledging receipt of WSC’s application is enclosed.
`WSC is also currently engaged in litigation with the Russian Research Center Kurchatov
`
`Institute, one of the applicants in the above-identified application. Ownership of the SIMPORT mark is
`an issue in the litigation. The case is pending in the United States District Court for the District of
`Maryland. The Case Number is AMD 02-3878. Copies of the current relevant pleadings are enclosed.
`For the forgoing reasons, WSC respectfully requests that this Letter of Protest be granted and
`that all action on this application be suspended pending the outcome of the referenced litigation.
`
`Respectfully submitted,
`
`LAW OFFICES OF BRUCE E. MATTER
`
`Bruce E. Matter
`
`Date:
`
`9’4?~Sr: 03
`
`UNITED STATES EXPRESS MAIL CERTIFICATE
`
`Certificate of U.S. Express Mail No.1
`
`EUl36845537US
`
`I hereby certify that this correspondence, including (i) Letter of Protest and (ii) return-receipt
`postcard,
`is being deposited with the United States Postal Service as Express Mail-Post Ofice to
`Addressee, postage pre-paid, in an envelope addressed to: Office of the Commissioner for Trademarks,
`
`2900 Crystal Drive, Arlington, VA 22202-3514.
`
`Date:
`
`
`
`razsrj 0 3
`
`Bruce E. Matter
`
`Page 2 of 2
`
`

`

`In Re Application Serial Number: 76-428,592
`Mark:
`SIMPORT
`Attachment to Letter ofProtest dated September 25, 2003
`Protester: Western Services Corporation
`
`Pn'nTEAS@uspto.gov
`From:
`bruce@Iega|matter.oom
`To:
`teas@uspto.gov ,
`cc:
`9/24/2003
`5:40PM
`Sent:
`Subject: Trademark Application Serial No. 78304889 Received
`
`<MARK> SIMPORT
`
`9/24/2003
`
`We have received your application and assigned serial number '78304889' to your submission. The summary ofthe
`application data below serves as your official filing receipt. For electronically-submitted applications, the USPTO will no
`longer mail a paper filing receipt. Ifthe USPTO later determines that no filing date wasjustified, your submission will be
`returned, and your filing fee will be refunded. You could then, ifpossible, cure the deficiency, and re-file the application.
`Ifyou determine that you made an error in the information you entered, you may file a preliminary amendment electronically,
`‘
`stating your proposed correction, at http://eteas.uspto.govN2.0/pa200/WIZARD.htm.
`NOTE: You cannot file a Preliminary Amendment until at least 15 days afier initial filing ofthe application. Prior to that time, 1
`serial number will not appear in the USPTO database (even though the number was assigned at the time offiling), preventing
`the uploading of new data.
`The examining attorney will determine whether the change proposed in the amendment is permissible, within the normal
`course ofhis or her review ofthe application. Please note that not all errors may be corrected; for example, ifyou submitted
`the wrong mark or the incorrect goods and/or services, ifthe proposed correction would be considered a material alteration
`to your original filing, this will NOT be accepted. Unforttmately, your only recourse in that event is to re-file - your fee would
`NOT be refunded. Once you submit an application, either electronically or through the mail, we will not cancel the filing or
`refund your fee, unless the application fails to satisfy minimum filing requirements. The fee is a processing fee, which we do
`not refund even ifwe cannot issue a registration after our substantive review.
`In approximately 6 months, you will hear fi'om the assigned examining attorney.
`NOTE: Ifyou have a question, comment or technical concern about your specific application or TEAS in general, please
`send that question to PrinTEAS@uspto.gov. NOTE: To check status information, please use either http://tarr.uspto.gov, or
`call 703-305-8747 (M-F, 6:30 am. to 12 midnight, EST). However, do NOT attempt to check status until at least 45 days after
`submission, to allow sufficient time for our databases to be updated.
`
`‘The applicant, Western Services Corporation, a corporation ofMaryland, residing at Suite A, 7340 Executive Way,
`Frederick, MD USA 21704, requests registration ofthe trademark/service mark shown on the drawing page in the United
`States Patent and Trademark Office on the Principal Register established by the Act ofJuly 5, 1946 (15 U.S.C. Section 1051
`et seq.), as amended.
`
`* Classification and Listing of Goods/Services:
`
`The applicant, or the applicants related company or licensee, is using the mark in commerce, and lists below the dates of
`use by the applicant, or the applicant's related company, licensee, or predecessor in interest, ofthe mark on or in connection
`with the identified goods and/or services. 15 U.S.C. Section l051(a), as amended.
`International Class 009: Computer sofiware development tools for use in developing software simulating nuclear
`
`____________________________________________
`Page 1
`
`

`

`
`
`9/24/2003
`
`power plant control systems.
`
`International Class 035: Licensing of nuclear power plant control system simulation software.
`
`International Class 042: Computer software consultation services including design, selection, development,
`authoring, installation, implementation, use, maintenance, technical support, updating ofcomputer sofiware, updating
`computer sofiware for others, and customization ofcomputer hardware and software for use in simulating nuclear power plant
`control systems.
`
`In International Class 009: the mark was first used at least as early as 03/00/1997, and first used in commerce at least as
`early as 03/00/1997, and is now in use in such commerce. The applicant is submitting or will submit one specimen for each
`class showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services.
`
`In International Class 035: the mark was first used at least as early as 03/00/1997, and first used in commerce at least as
`early as 03/00/1997, and is now m use in such commerce. The applicant is submitting or will submit one specimen for each
`class showing the mark as used in commerce on or in connection with any item in the class oflisted goods and/or services.
`
`In International Class 042: the mark was first used at least as early as 03/00/1997, and first used in commerce at least as
`early as 03/00/1997, and is now in use in such commerce. The applicant is submitting or will submit one specimen for each
`class showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services.
`
`*Correspondence Information
`The applicant, hereby appoints Bruce E. Matter, Esq. ofLaw Offices ofBruce E. Matter, Suite 450 North, 7315 Wisconsin
`Avenue, Bethesda, MD USA 20814 to submit this application on behalf ofihe applicant.
`
`* Fees
`
`A fee payment in the amount of$1005 will be submitted with the application, representing payment for 3 class(es).
`
`*Declaration Signature
`
`Sigiaturez/Sergei Lalayantsl Date: 09/24/2003
`- Signatory's Name: Sergei Lalayants
`Signatory's Position: VP
`
`
`
`
`
`
`
`TEAS XML APPLICATION
`<?xml version = '1 .0‘ encoding = 'ISO-8859-I'?>
`<uspto-trn-document document-type="app" description="Base Application Form" system-creator="eteas" version="2.l"
`version-date="2003—02—27" copyright="Copyright 1999-2003 United States Patent and Trademark Office">
`<t1ademark-case-files>
`<trademark-case-file>
`<case—file-header>
`<serial-number>7 83 04889</serial-number>
`<mark action-code="create" version="new">
`<
`-mark>
`'
`»
`
`<mark-text>SIMPORT</mark—text>
`__________________________________________________
`Page 2
`
`

`

`
`
`In Re Application Serial Number: 76-428,592
`Mark:
`SIMPORT
`Attachment to Letter of Protest dated September 25, 2003
`Protester: Western Services Corporation
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`
`°
`
`CASE NO: AND) 02 CV3878
`
`)
`)
`)
`)
`)
`
`) ) ) ) §
`
`)
`
`) ) ) ) ) )
`
`)
`
`) ) ) ) ) )
`
`)
`
`) ) ) 3
`
`RUSSIAN RESEARCH CENTER
`THE KURCHATOV INSTITUTE
`1, Kurchatov Square
`Moscow 123182
`Russian Federation
`
`Plaintiff
`
`VS.
`
`WESTERN SERVICES CORPORATION
`.
`5705 Industry Lane
`Frederick, Maryland 21704
`
`and
`
`8714 Birkenhead Court
`Laurel, Maryland 20723-5981
`
`-.\
`SERVE‘:
`
`Alexander L. Adamovich
`
`Registered Agent
`8941 Tamar Drive, #101
`Columbia, Maryland 21045
`_
`AND
`
`GUIA OUTMELIDZE (alk/a George Utmel)
`5705 Industry Lane
`Frederick Maryland 21704
`SERVE: Guia Outmelidze (a/k/a George Utmel) )
`
`) )
`
`Defendants.
`
`SECOND ANIENDED COMPLAINT
`
`Plaintiff Russian Research Center Kurchatov Instit1Ite (“KI”), by undersigned counsel,
`
`files this Second Amended Complaint against defendants Western Services Corporation
`
`4839242
`
`

`

`(“WSC”) and Guia Outrnelidze (a/k/a George Utmel) (hereinafter “Outmelidze”) and as grounds
`
`therefore, states as follows:
`
`1.
`
`The purpose of this Second Amended Complaint is to reflect that KI has obtained
`
`Copyright protection for additional components of the Sin1Port program (the “Copyrightable
`
`Components”), and to add corresponding claims for copyright infringement.
`
`INTRODUCTION AND PARTIES
`
`2.
`
`Plaintiff KI has its principal place of business in Moscow, Russia. It has no place
`
`of business in the United States.
`
`3.
`
`Defendant WSC is a Marylanl corporation that has its principal place of business
`
`at 5705 Industry Lane, Frederick, Maryland.
`
`4.
`
`Defendant Outmelidze, upon information and belief, is a citizen and resident of
`
`Virginia.
`
`5.
`
`Jurisdiction is based on 28 U.S.C. § 1332 in that the parties are citizens and
`
`residents of different states and the amount in controversy is greater than $75,000.
`
`6.
`
`Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391.
`
`KI’s SimPort
`
`7.
`
`K1 is the first state national research center of Russia. Historically, it was
`
`Russia’s resource for research and development in the field of atomic energy. Later Kl turned its
`
`attention to new problems beyond those relating to atomic energy. Today K1 is involved in
`
`many areas of science, beginning at the birth and substantiation of a scientific idea and
`
`terminating with the creation of experimental technologies and developments. Its employees are
`generally known throughoutthe world as extremely accomplished scientists. The KI name
`
`carries with it a reputation of scientific integrity, advanced skill and excellence.
`
`4839242
`
`I
`
`'
`
`2
`
`

`

`8.
`
`Beginning in approximately the late l980’s and early 1990’s, KI software
`
`specialists and project engineers began developing simulation sofiware that would embrace a full
`
`range of tasks on mimic and training systems. KI’s idea was to develop instrumentation for
`
`modeling simulation and technology to simulate processes in both nuclear and fossil fuel
`
`power plant facilities.
`
`9.
`
`By 1995, K1 had developed a series of sophisticated sofiware simulation tools
`
`called AIS-95 that could be used to create a customized simulation software package for
`
`nuclear and fossil fuel power plants. By its nature, the tools were and are highly interactive
`
`with the power plants and if installed would need to be customized to fit the plants. Among
`
`other tools making up the software, AIS-95 (and thereafter SimPo1t) contains: a Hydraulic
`
`Steam-Water Properties Calculation Tool, a Thermal Hydraulic Network Application Tool,
`an Engineering Station Simulation Diagrams Editor, and an Engineering Station Soft Panels
`
`Editor. Some or all of these tools have been part of the software from the earliest AIS-95
`
`version through and including the current 2002 version of SimP0rt.
`
`10.
`
`By 1996, K1 had begun to prepare AIS-95 for promotion and presentation for
`
`the worldwide market, including the United States. Toward that end, KI had prepared an
`
`operating version of AIS-95.
`
`11.
`In late 1996, K1 was approached by Science Applications International
`Corporation (“SAIC”), a research and engineering firm based in the United States, which was
`
`interested in KI’s AIS-95 software technology and in partnering with KI to bring the
`
`software to western markets. The parties envisioned a joint effort that would require
`
`intensive efforts by KI’s engineers to create the interface between the simulation program
`
`tools and the various power plants where the software would be installed. Toward that end,
`
`483924.2
`
`3
`
`

`

`WSC was to be the vehicle by which KI’s software experts were to come to the United States
`
`and elsewhere to work at customer sites after SAIC obtained contracts for the software.
`
`12.
`
`Beginning in approximately early 1997, K1 began working cooperatively with
`
`WSC and SAIC to develop the interfaces for the U.S. market, and to install KI’s AIS-95
`
`simulation software. At that time, upon information and belief, WSC consisted of little more
`
`than one individual, Defendant Outmelidze, who was retained by SAIC or its successor in
`
`interest with regard to simulation software business, Data Systems & Solutions (“DS&S”), a
`
`joint venture between SAIC and Rolls- Royce. Since WSC had little or no expertise in
`
`\
`
`simulation software and had no employees who were able to perform the work required, KI’s
`
`employees, visiting from Russia, were to do the work on site to support SAIC’s customers.
`
`13.
`
`On or about March 1; 1997, K1 and WSC entered into an agreement to
`
`facilitate KI software engineers coming to the United States to work on the simulation
`
`software, and to enable KI’s software experts to obtain visas to travel to the U.S. to work
`
`cooperatively with WSC and others to continue the development and positioning of the
`
`software program.
`
`14.
`
`On or about April 1, 1997, KI, after consultation with SAIC and WSC,
`
`renamed its AIS-95 simulation software program “SimPort” to enhance its commercial
`
`attractiveness in western markets. Since 1997, K1 has modified and updated the SimPort
`
`software, creating at least one other version, SimPort 2002. Unless the context indicates
`
`otherwise, all versions of SimPort and all components thereof will be collectively referred to
`
`as “SimPort.” ‘
`
`4839242
`
`4
`
`

`

`15.
`
`Pursuant to the March 1, 1997 Agreement, KI engineers did visit the United
`
`States and elsewhere to work with WSC and others on SimPort installations for contracts
`
`awarded to SAIC/DS&S.
`
`16.
`
`K1 permitted WSC, SAIC and DS&S to utilize its SimPort name in connection
`
`with proposals to potential licensees of the SimPort program.
`
`17.
`
`K1 also provided project engineers and software specialists to WSC to assist
`
`WSC and others in providing the simulation software for a variety of projects.
`
`18.
`Initially, WSC had no capability to write the source code, improve the tools of
`‘the software package that comprised SimPort, or even install the SimPort software into a
`
`particular power plant. Upon information and belief, however, WSC and Outmelidze tried to
`
`acquire the source code of KI’s SimPort program from visiting KI engineers by surreptitiously
`
`trying to strike personal deals with them for the SimPort source code.
`
`19.
`
`Gradually, WSC began to hire away KI employees who had worked on the
`
`development of KI’s SimPort in order to obtain KI’s confidential information and to work on
`
`competing simulation sofiware for WSC. Upon information and belief, WSC and Outmelidze
`
`were well aware that KI’s current and former employees were obligated pursuant to their
`
`employment relationships not to reveal confidential infonnation to non-KI personnel. In particular,
`
`Outmelidze and WSC knew and understood that KI employees were not permitted to provide
`SimPort source code or related confidential information to Outmelidze or WSU.
`
`20.
`
`Among the most serious of WSC’s wrong-doing, however, was its false and
`
`misleading representations concerning its rights to KI’s SimPort program and related technology.
`K1 is now aware, but was not-aware at the time, that on or about December 9, 1997, WSC
`
`purported to grant SAIC a license to use KI’s SimPort program in return for royalties and other
`
`4839242
`
`5
`
`

`

`consideration. In this license, WSC represented and warranted to SAIC that WSC owned or
`
`controlled all world-wide “patent” rights and “know- how” related to KI’s software and associated
`
`technology. This representation is false and was false when made, and was made by WSC for the
`
`purpose of obtaining for itself financial and other benefits which rightly belonged to KI.
`
`21.
`
`Notwithstanding the purported license granted to SAIC from WSC, SAIC was well
`
`aware of, and communicated the fact that the SimPort software was developed and owned by K1.
`
`22.
`
`From 1997 through 2001, K1 continued to cooperate with WSC and SAIC/DS&S
`
`with the understanding that Kl’s role in connection with the creation of SimPort would be
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`recognized and that it would be compensated for its efforts and for the use of its SimPort software.
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`KI repeatedly raised with WSC, Outmelidze and others the issue of memorializing the complete
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`arrangement between the parties, including the financial arrangement and the acknowledgement of
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`KI’s creation of the Sin1Port program. Outmelidze and others repeatedly responded to these
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`requests by acknowledging Kl’s important role in the creation, modification and further
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`development of SimPort and affirmjng that K1 was entitled to its share of the profits from SimPort,
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`or some other equitable compensation. Outrnelidze and others also repeatedly promised that
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`further written documentation of the arrangement between the parties would be forthcoming.
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`23.
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`Notwithstanding these promises, WSC and Outmelidze failed and refused to make
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`any payments to KI or to provide KI with adequate information about the project proposals in
`which the SimPort program was used. WSC and Outmelidze also failed to provide any
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`documentation to further memorialize the parties’ duties to each other, or to execute such
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`documentation when it was presented by K1.
`24.
`Upon information and belief, KI’s SimPort, or derivatives thereof, were
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`utilized by WSC, SAIC and/or DS&S in at least the following power plants: Sherco 2
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`(Northern State Power Co. in Minnesota), Armstrong (Allegheny Power Service Co. in
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`Pennsylvania), Amot (ESKOM in South Africa), Hatch (Georgia Power Co. in Georgia),
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`Seabrook (New Hampshire), Vermont Yankee (Vermont Yankee Co. in Vermont),
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`Bradwell (BNFL in Great Britain), Dungeness (BNFL in Great Britain), Hinkley Point
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`(BNFL in Great Britain), Oldbury (BNFL in Great Britain), and Sizewell (BNFL in Great
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`Britain). Upon information and belief, WSC, SAIC and/or DS&S have licensed and/or sold
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`software substantially similar or identical to KI’s SimPort to additional power plants and
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`others.
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`25.
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`Upon information and belief, WSC, Outmelidze and others were paid
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`substantial sums for the SimPort programs installed at or otherwise licensed or sold to the
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`power plants listed in paragraph 24*, above. WSC, Outmelidze and others were able to
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`obtain these financial and other benefits solely because of KI’s own efforts and WSC’s and
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`other’s misrepresentations concerning their rights to use and license KI’s software and
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`associated technology. KI has never received any payment for the use of the SimPort
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`programs in those installations (or any other) for projects awarded to WSC, SAIC and/or
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`DS&S.
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`26.
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`Upon information and belief, in approximately 1999, WSC and Outmelidze
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`decided that WSC would create its own software, and use KI’s SimPort name, so that it
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`would not be dependent upon Kl to provide WSC with KI’s technology and personnel.
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`Upon information and belief, WSC and Outmelidze also wanted to avoid having to pay KI
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`and/or having to acknowledge KI’s creation of the SimPort program.
`27.
`Upon information and belief, thereafter, to further the scheme to completely
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`usurp and control the SimPort program and to deprive KI of its share of the profits or other
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`equitable compensation, WSC and Outmelidze hired a number ofK1. engineers and
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`software specialists who had developed KI’s SimPort to move to the United States, to
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`become employees of WSC and to work on a simulation software program derived from
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`KI’s SimPort. Upon information and belief, at that time WSC and Outmelidze knew that
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`hiring such KI employees to work on a SimPort derivative being credited by WSC would
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`require the K1 employees to provide confidential information in breach of their non-disclosure
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`obligations regarding the SimPort program.
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`28.
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`A Upon information and belief, after 1999, WSC, Outmelidze and others made certain
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`'\
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`modifications to KI’s Sirr1Port program. As a result, WSC and Outmelidze now maintain and
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`represent that they have their own SimPort software program. Upon information and belief, WSC
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`and Outmelidze have licensed such a SimPort program to DS&S, again falsely representing that
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`WSC has the necessary rights to the SimPort program to provide such a license. WSC’s Sirr1Port
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`program, its tools, and its functions have remained substantially the same as KI’s SimPort.
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`Moreover, WSC and Outmelidze have been marketing, licensing and selling a program called
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`SimPort, without acknowledging that (i) the program is derived from one created by K1, (ii) KI
`owns the intellectual property rights to SimPort, and (iii) KI has not authorized WSC’s and
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`Out1nelidze’s use of KI’s SimPort program.
`
`29.
`On or about May 28, 2002, K1 sent a cease and desist letter to WSC, a copy of
`which was set forth as Exhibit A to KI’s First Amended Complaint. Nonetheless, WSC has
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`continued to use the SimPort program in violation of KI’s rights and to its detriment. Upon
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`information and belief, WSC has also permitted others, such as SAIC/DS&S, to utilize the SimPort
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`program in violation of KI’s rights and to its detriment.
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`Q)
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`30.
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`Prior to filing the original Complaint in this action, KI applied for copyright
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`protection for the 1997 and 2002 versions of the SimPort program as well as the four
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`Copyrightable Components. The Certificate of Copyright for the 2002 version of SimPort was
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`attached to Plaintiffs First Amended Complaint at Exhibit B. After examination, the Register of
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`Copyrights determined that the 1997 and 2002 versions of the SimPort program, and each
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`Copyrightable Component, is copyrightable subject matter and that the other legal and formal
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`requirements necessary for issuance of Certificates of Registration had been met. As such, the
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`United StatesiCopyright Office issued Certificates of Registration granting copyright protection to
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`KI for the 1997 and 2002 versions of the SimPort program, as well as each Copyrightable
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`Component. The effective date of the Certificate of Registration for the 2002 version is July 10,
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`2002. The effective dates of the 1997 version, and each Copyrightable Component is as follows:
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`a.
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`effective date for the 1997 version of SimPort is February'4, 2003 (attached
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`as Exhibit C);
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`b. effective date for Sirr1Port Thermal Hydraulic Steam-Water Properties
`Calculation Tool is January 17, 2003 (attached as Exhibit D);
`effective date for SimPort Thermal Hydraulic Network Application Tool
`Version 1.0 PITON is January 17, 2003 (attached as Exhibit E);
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`c.
`
`d.
`
`e.
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`effective date for SimPort Engineering Station Simulation Diagrams Editor
`is January 17, 2003 (attached as Exhibit F);
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`effective date for SimPort Engineering Station Sofi Panels Editor is January
`17, 2003 (attached as Exhibit G).
`
`COUNT I
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`(Common Law Unfair Competition)
`Defendants Outmelidze and WSC
`
`31.
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`Paragraphs 1 through 30 of this Complaint are realleged and incorporated herein by
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`reference.
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`\
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`"Z
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`:
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`32.
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`Outmelidze and WSC have engaged and continue to engage in a course of
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`conduct which was and is designed to and which has had the effect of, and unless stopped will
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`continue to have the effect of, passing off KI’s SimPoit program, or derivatives thereof, as their
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`own.
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`33.
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`On information and belief, the acts done by Outmelidze. and WSC are intended to
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`divert and secure to Outmelidze and WSC the benefits and credibility arising from KI’s labors,
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`reputation and goodwill embodied in KI’s SirnPort program and other resources.
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`34.
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`On infonnation and belief, Outme1idze’s and WSC’s use of KI’s SimPort
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`\ program, or derivatives thereof, has deceived, and will continue to deceive the public regarding
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`the source of KI’s SimPort program and has resulted, and will continue to result, in actual
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`confusion regarding the source of KI°——s SimPo1t program.
`35.
`The foregoing acts constitute unfair competition under the common law of the
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`State of Maryland as well as other states.
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`36.
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`K1 has suffered and will continue to suffer monetary damages in an amount to be
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`determined, but greater than $75,000, as well as non- monetary damages as a result of the
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`activities of Outmelidze and WSC. The aforesaid acts by Outmelidze and WSC will greatly and
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`irreparably damage KI and will continue to damage KI unless enjoined by the Court and KI has
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`no adequate remedy at law for Outmelidze’s and WSC’s continuing activities.
`
`COUNT II
`
`(Tortious Interference With Business Relations)
`Defendants Outmelidze and WSC
`
`37.
`
`Paragraphs 1 through 36 of this Complaint are realleged and incorporated herein
`
`by reference.
`
`\
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`O!
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`38.
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`K1 engineers and software specialists who had assisted inldeveloping KI’s
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`SimPort program were obligated pursuant to the terms of tleir employment not to reveal
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`confidential information to non-KI personnel, including Outmelidze and WSC. Included in such
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`confidential information was the source code for KI’s SimPort program.
`
`39.
`
`Upon information and belief, during the course of their employment, KI’s
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`engineers and software specialists were approached by WSC and Outmelidze in an attempt to
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`have the engineers and software specialists reveal KI SimPo1t’s source code to WSC and
`
`Outmeli