Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA625631
`ESTTA Tracking number:
`09/05/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91203541
`Plaintiff
`Andre D. Rossouw
`ANDRE ROSSOUW
`7535 WHITSETT AVE APT 2
`NORTH HOLLYWOOD, CA 91605 3054
`UNITED STATES
`admin@googabox.com
`Other Motions/Papers
`Andre Rossouw
`admin@googabox.com, andreross2000@yahoo.com
`/9047/
`09/05/2014
`Motion to suspend proceedings TTAB-signed.pdf(598040 bytes )
`Complaint.pdf(1014156 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEALS BOARD
`
`In the matter of OPPOSITION No: 91203541
`
`Andre Rossouw (Pro Se)
`
` v.
`
`Google Incorporated
`
`
`
` MOTION W/O CONSENT TO SUSPEND PROCEEDINGS
` DUE TO CIVIL PROCEEDING PENDING
`
`1. Opposer Andre Rossouw (individual) holder of Registered mark “Googabox” that holds Registration
`no. 3541298, hereby in accordance with rule § 2.117 requesting the BOARD to SUSPEND
`proceedings due to Civil Action pending in Federal Court.
`
`2. That the proceedings pending with the BOARD is much the same as pending now before the District
`Court with an addition of charges and demands not applicable in Board proceedings.
`
`3. This suspension requested due to pending Civil action, CASE NO. 14-3995 IN THE NORTHERN
`DISTRICT OF CALIFORNIA AT SAN JOSE.
`
`4. That this action became necessary after exhaustive attempts with defendant to reach a solution that
`would benefit the interest of both parties failed.
`
`5. That a Civil proceeding became necessary in an effort to protect ALL of plaintiff's interests in this
`matter INCLUDING ongoing monetarily loss heightened by defendant's ongoing engagement in
`UNFAIR BUSINESS PRACTICES. (1)
`
`

`
`6. That the complaint pending in Civil Court is attached hereto.
`
`7. That opposer will notify the Board within 20 days of the outcome of the Civil proceeding.
`
`Accordingly, plaintiff prays the Board to grant this Motion until further notice.
`
`So entered this 5th day of 2014
`
`_______________________
`Andre Rossouw (Opposer) (Pro Se)
`
`(2)
`
`

`
`PROOF OF SERVICE
`
` The following to be proof that defendant was notified of this Motion in full.
`
`1. That a copy of this Motion has been forwarded to defendant via counsel for defendant Eric J
` Ball at Fenwick & West.
`
`2. That a copy of this Motion has been served to defendant's counsel via ELECTRONIC means
` as mutually agreed upon by both parties as the means of service.
`
`3. That I am the opposer and plaintiff in this proceeding.
`
`4. That I am over the age of eighteen and that a copy of this Motion was served upon the
` defendant by me personally via electronic means at address:
`
` Eball@fenwick.com
`
`So delivered this 5th day of 2014
`
`___________________
` Andre Rossouw
` 1813 Cloverleaf Dr.
` Nashville,TN
` 37216
`
`
`
`Plaintiff (Pro Se)
`
`
`
` (3)
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page1 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Pagel of 18
`
`
`
`615-710-5834 (andreross2000@yahoo.com)
`
`Andre Rossouw (Pro Se) (PLAINTIFF)
`
`1813 Cloverleaf Dr.
`Nashville, TN 37216
`Google Inc. (DEFENDANT)
`1600 Amphitheater Pkwy,
`Mountain View, CA 94043
`(trademarks@google.com)
`Eric J. Ball esq. (DEFENDANT)
`c/o Fenwick & West
`801 California Street
`
`E~fiIi!7g
`
`55p \ 3
`4/ ,
`9/0
`"’
`"0/?rCf,§,’§'/r./fife W
`4'0/3;”/ésrrg/Z’/;sC;‘r//VG
`00 .
`C44/4;‘;
`4”‘?
`
`OF
`
`Mountain View, CA 94041
`
`650-335-7635 (eball@fenwick.cgm)
`
`DISTRICT COURT OF THE STATE OF CALIFORNIA
`IN THE COUNTY OF SANTA CLARA
`
`Andre Rossouw
`
`Plaintiff,
`
`VS
`
`Google Inc.
`Eric J. Ball
`
`Fenwick & West)
`
`Defendants
`
`\/~g\as—\’./\/\/C/~.4\4\4‘—~.,~¢
`
`Plaintiff alleges that:
`
`9 9 5
`
`_
`
`__
`
`__ __
`TRADEMARK INFRINGEMENT;
`TRADEMARK HIJACKING;INTENTIONAL
`INTERFERENCE FOR ECONMIC ADVANTAGE;
`NEGLIGENT INTERFERENCE OF ECONOMIC
`ADVANTAGE; CALIFORNIA STATUTORY UNFAIR
`CMPETITION; COMDN LAW UNFAIR
`COMPETITION; CALIFORNIA STATUTORY FALSE
`ADVERTISING; EXTORTION; CRIMINAL
`THREATS TO ASSIST IN A CIVIL
`
`PROCEEDING; SECURITY LAWS VIOLATIONS;
`DEVIOUS ACTS
`FOR A FAVORABLE
`OUTCOM.
`
`[JURY TRIAL DEMANDED]
`
`1. Pursuant to 28 U.S.C. § 1332 Jurisdiction in this case is based
`
`on diversity of citizenship of the parties.
`
`(a) Plaintiff is a citizen of the state of TENNESSEE.
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page2 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page2 of 18
`
`b) Defendant one is a corporation incorporated under the laws of the
`
`State of California having its principal place of business at 1600
`
`Amphitheater Pkwy, Mountain View, CA. 94041 (Northern District)
`
`Defendant
`
`two has it's place of business at 801 California Street
`
`Mountain View, CA 94041 (Northern District)
`
`2. The amount of controversy exceeds the amount
`
`of seventy five
`
`thousand dollars ($75,000) exclusive of interest and cost.
`
`3.
`
`INTRA DISTRICT ASSIGNMENT: Division to be set at San Jose.
`
`This complaint comes about pursuant to:
`
`4. California Business & Professional Code §§l72OO et seq. and l7500 et
`seq.
`
`5. Trademark Act of 1946, 15 U.S.C. §§l051-1127
`
`6. Trademarks and unfair competition, §§1338(a) and 1338(b) 28
`U.S.C.
`
`7. Federal question) §1331 , 15 U.S.C. §1l21 (Lanham Act),and 15
`U.S.C.
`
`8. Securities Act of 1933.
`
`9. Extortion laws governing threats(all defendant's), 18 U.S. Code,
`chapter 14.
`
`10. Supplemental jurisdiction)§1367
`
`11. This Court has jurisdiction over such claims pursuant to 28
`U.S.C.
`
`EXHIBITS ATTACHED:
`
`. Plaintiff proof of first use.
`. Plaintiff Trademark Registered
`. Defendant Trademark application (Google+)
`. TTAB DENIAL ruling on defendant Summary Judgment.
`. Defendant Trademark application (Google+ hangouts)
`. Defendant Marketing Director for opposed mark comments.
`Plaintiff's mark decline since defendant's conduct described
`
`sl0ilfluhWNH
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page3 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page3 of 18
`
`(keep in mind damage is also calculated for FUTURE
`
`herein.
`losses)
`. \ Exce>s)\;(,?mizz(.wo/;K FOLIH/TI/aLC0V"l’(/v“”‘7
`'
`8.
`'
`
`9. Defendant integrating it's ocial Network pronounced “Googleplus"
`with their existing “Youtube” video service.
`10.Eublic petitions against the "Googlep1us/ You Tube" integration.
`11.Defendant integrating it's Social Network pronounced “Googleplus”
`with it's existing service “GMAIL”, email service.
`12. The opposed mark “Google+" other appearances (1)
`13. Defendant's devious past
`(1)
`(2)
`(3)
`(4)
`(5)
`
`(2)
`
`(3)
`
`(4)
`
`(5)
`
`LwAn
`
`r
`
`em
`
`'
`
`l'n
`
`Witco Chemical, § 2(d) ofthe Lanham Act
`Estee Lauder; Inc. v. The Gap, Inc., 932 F Supp. 595(S.D.N.K 1996).
`Franklin Mint v. Master Mfg. CO., 667 F.2d 1005, 1007 (C. C.P.A.1981)
`3 J. THOMAS MCCARTHX MCCARTHY ON TRADEAMRKS AND UNFAIR COMPETITION, Section 25:21 (4”'
`ed. 1999).
`SealedAir Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
`Century 21 Real Estate Corp. v. Century Life ofAmerica, 970 F2d 874, 877, 23 USPQ2d 1698,
`1701 (Fed. Cir. 1992),
`Division ofE-Systems, Inc. v. Environmental Communications Inc., 207 USPQ 443 (TTAB 1980).
`Lloyd is Food Products Inc. v. Eli is Inc., 987 F.'2d 766, 25 USPQ2d 2027 (Fed. Cir. 1993).
`TM.E.P. § 1207.01 Likelihood ofConfusion at 1207.0] (b) (iii)
`Google, Inc. v. Richard Wolfe Claim Number: FA04050002754I9)
`United States Court ofAppeals 961 F.'2d 200: Olde Ijzme Foods, Inc., Appellant, v. Roundy’s,
`Inc., Appellee)
`E.I. duPont de Nemours & Co, 476 F,2Q 1357, 177 USPQ 563 (CCPA 1973)
`Fits Corporation KKSerial# 76501790
`Wyeth vs Graham, Opposition # 91124967
`Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990).
`Lamson Oil Co., 6 USPQ2d 1041, 1043 (TTAB 1987).
`
`Tr
`
`m rk
`
`IofExaminin Pr
`
`r
`
`1
`
`7 1Lik lih
`
`f
`
`nf
`
`in
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page4 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page4 of 18
`
`
`
` INDEX
`
`Complaint ................................................................................................... ..
`
`Trade Mark Infiingement ............................................................................. ..
`
`Trade Mark Hijacking ............................................ .. ................................... ..
`
`Intentional Interference For Economic Advantage ..................................... ..
`
`Negligent Interference For Economic Advantage ....................................... ..
`
`Pg.
`
`5
`
`7
`
`8
`
`9
`
`9
`
`Unfair Competition ..................................................................................... ..
`
`10
`
`California Statutory False Advertising, Extortion, Fraud,
`Unfair Business Practices, Securities Law Violations) ................................ ..
`
`Criminal Threats To Assist In a Civil Proceeding ....................................... ..
`
`Devious Acts For a Favorable Outcome . . ......................................................... ..
`
`Allegation Of Damage ................................................................................. ..
`
`Prayer For Relief .......................................................................................... ..
`
`Plaintiff Declaration . .................................................................................... ..
`
`11
`
`12
`
`14
`
`16
`
`16
`
`18
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page5 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page5 of 18
`
`
`
`COMPLAINT :
`
`11. Plaintiff adopted the trade names “GOOGABOX” and “GOOGABOX.COM"
`
`inspired by two famous POP BANDS,
`
`(Goo-goo dolls and Matchbox 20) and
`
`has used it continuously in commerce since around March 2007 for the
`
`service of a Social Network.
`
`(Exh. 1)
`
`12. Plaintiff Federally Trademarked the Trade name “GOOGABOX” for
`
`the service of a Social Network in (class 045) with appropriate
`
`amendments U.S. 100 and U.S. 101 classes on the U.S Trademark roster
`nd
`
`and earned Registration December 2
`
`2008.
`
`(Exh. 2)
`
`13. Plaintiff's mark “GOOGABOX” has been in use since March 2007
`
`for the service of a Social Network without pause.
`
`14. Defendant infringed upon plaintiff's mark by creating a mark
`
`“GOOGLE+”, pronounced and written as “GOOGLEPLUS” and “GOOGLE PLUS”
`
`respectively all over the internet, and for the exact same service
`
`namely a Social Network.
`
`(Exh. 3)
`
`15. Pronounced “Googleplus/ Googabox”,
`
`the two marks are claimed by
`
`plaintiff to be confusingly too similar to both representing the ggagt
`
`same service. Plaintiff claims it's because of the letter string
`
`“GOOG”, as well as the marks having THE EXACT SAME SYLLABLES, as well
`
`as the “a” sound in the middle of both marks as well as the “s” SOUND
`
`on the end of both marks, creating a too much alike SAME
`
`pronunciation, appearance and Commercial
`
`impression for the exact same
`
`service . Where the goods are identical, "the degree ofsimilarity [between the marks]
`necessary to support a conclusion oflikely confusion declines. ” Century 21 Real Estate Corp. v.
`Century Life ofAmerica, 970 E2d 874, 877, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992), cert.
`denied 506 US. 1034 (1992); EC] Division ofE-Systems, Inc. v. Environmental Communications
`Inc., 207 USPQ 443 (TTAB 1980).
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page6 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page6 of 18
`
`
`
`[It MUST be noted here that defendant has another Social Network trading by the name of
`
`“ORKUT” they PURCHASED from “ORKUT LLC” in 2006 and still in use today that does
`
`NOT contain the “GOOG” letter string.
`
`16. Defendant created the opposed mark four years after the
`
`Registration of plaintiff's mark, promoting it aggressively with huge
`
`amounts of resources and funds, creating an “adverse effect” to
`
`plaintiff's mark by “HIJACKING and REVERSING plaintiff's mark (that
`
`was intended as original for a Social Network),
`
`to cause plaintiff's
`
`mark to appear as part of defendant's mark or as an intentional copy
`
`of the defendant's mark.
`
`17. When defendant's application with the Trademark Office was
`
`published for opposition, plaintiff immediately requested defendant to
`
`Cease and Desist from it's act of infringement, and has given
`
`defendant actual notice of plaintiff's Trade name and rights in his
`
`Trade name and defendant has refused to cease such act.
`
`18. Plaintiff filed an opposition with the TRADEMARK TRIAL AND
`
`APPEALS BOARD against said mark January 25“ 2012. The TTAB then denied
`
`a Motion to dismiss by defendant as well as denied a Summary Judgment
`
`filed by defendant around two years after proceedings commenced
`(Exh 4).
`
`18. Defendant claimed alleged “affirmative defenses" however The
`
`TTAB ruled that the [re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
`
`177 USPQ 563 (CCPA 1973).
`
`is favorable to plaintiff. Defendant in lieu
`
`of this ruling is still refusing to admit to the viability of
`
`plaintiff's complaints and refuses to compensate plaintiff for
`
`damages, past, present and future. According to defendant's counsel
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page7 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page? of 18
`
`statement, Attorneys employed at the Trademark Office are more
`
`qualified than three panel Judges of the TTAB. This statement was made
`
`by defendant's counsel as he argued the Trademark Office allowed the
`
`
`
`opposed mark to move to publication in the Gazette for opposition.
`
`This argument is nonsensical, as Trademark attorneys for the Trademark
`
`Office do NOT conduct intricate investigation. This is why they
`
`PUBLISH marks for opposition. Defendant's counsel is grabbing at
`
`straws to overcome the opposition by attempting to DISSUADE plaintiff.
`
`19. The TTAB proceeding is ongoing, however Federal Court
`
`supersedes the TTAB as to the extend of charges in this instance as
`
`well as the TTAB does not award damages should they ultimately rule in
`
`favor of plaintiff. Therefore plaintiff is proceeding to this Court
`
`rather sooner than later to claim damages and pray for preliminary
`
`injunction.
`
` L
`
`20. Plaintiff hereby re—alleges, as if fully set forth,
`
`the
`
`allegations of paragraphs eleven through nineteen.
`
`"The degree of
`
`similarity between two marks is generally determined by compa ring the overall
`impression created by the marks, their pronunciation, and the meanings oftheir words and
`pictorial representations (i.e., the “sound, sight and meaning” trilogy). The mark[s] should be
`compared with respect to similarity ofappearance, pronunciation, verbal translation ofdesigns
`(drawings andpictures), and suggestion (ofthe marks). 3 J. Thomas McCarthy, McCarthy on
`Trademarks and Unfair QQ_mpg[1'ti_o__r1, Section 25:21 (4th ed. 1999).
`
`21. Trademark rules specify, Trademarks do not have to be exactly
`
`alike for trademark law to apply.
`
`(see paragraph 15)
`
`22. When both marks represent the exact same service the DEGREE OF
`similarity of the marks necessary to constitute confusion, DECLINES.
`
`(In Fits Corporation KKSerial No. 76501790) The TTAB fOUI'ld
`(see paragraph 15)
`LOVE PASSPORT and PASSPORT confusingly similarfor perfume, (same product/ service)
`thus the TTAB rejected defendant's argument regarding the _¢1'_fi,f_e,g'g_g_
`ggggggagiggs of the marks. Note:
`(In this case defendant is ignoring
`
`

`
`Case4:14—cv—O3995—CW Dociumentl Fi|edO9/O3/14 Page8 of 18
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page8 of 18
`
`the letter string “GOOG” as well as the overall appearance and
`
`pronunciation “Googlep1us/ Googabox” for the EXACT same service and
`
`rather “dissect” the marks and focuses on the differing connotations
`
`“plus" and “box" Also see (Wyeth vs Graham, opposition # 91124967) (0ctober24,
`2(X)5) [not citing] In finding g@ the TTAB provided an analysis ofthe similarities
`between the marks AD VILfor analgesics and ADVALIFEfor vitamins, minerals, and
`nutritional supplements. (notice the different spellings. "ADV|L/ ADVALlFE" Plaintiff
`notes: It seems the 'lTAB clearly went by pronunciation as well as overall appearance,
`disregarding the connotation of "LIFE". Here we are dealing with pronounced and
`presented "Googleplus/ Googabox”
`
`COUNT TWO (Trademark Hijacking by devious acts)
`
`23. Defendant successfully hijacked plaintiff's mark and confused
`
`it's origin, by making it appear as though plaintiff's mark is now
`
`either part of defendant OR a copy of defendant's mark.
`
`In other
`
`words, changing plaintiff's unique idea to that of the appearance of
`
`copying defendant. Defendant accomplished this by knowingly and
`
`willfully disregarded plaintiff's mark by aggressively promoting
`
`their newly created mark using exorbitant amounts of monies and
`
`resources, causing their new mark to achieve virtual “overnight”
`
`fame, regardless of their mark being opposed. Defendant knew well
`
`that “overnight
`
`fame” of their opposed mark would have a severe
`
`adverse effect to plaintiff's mark, KNOWING their mark is opposed.
`
`Defendant's marketing strategies also included false advertising,
`
`threats to their members of their other services further discussed
`
`in COUNT SIX. Plaintiff was at a slower pace developing success for
`his mark AND made'defendant aware of this.
`
`Plaintiff was on the verge of initiating a new phase following
`
`viable growth of membership sign ups of 300 per day. Although many
`
`of these were bloggers and automated bloggers, it was a sure sign
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page9 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page9 of 18
`
`that keeping the site in operation has paid off. It so happened that
`
`defendant is worth an estimated $350 Billion with vast internet
`
`resources and thus exercising devious monopolizing tactics halting
`
`plaintiff's mark and site in it's tracks, preventing it from further
`
`success and erasing all past efforts of plaintiff's invested strive.
`
`This as well constitutes unfair competition.
`
`COUNT THREE (Intentional Interference
`Egr Eggggmic Advantage)
`
`24. Plaintiff re-alleges paragraphs twenty three. These actions by
`
`defendant were intentional, knowingly and recklessly without regard
`
`of the effect on plaintiff's economic strive. Defendant itself,is
`
`opposing or has opposed marks on the Trademark roster with less
`
`similar elements than plaintiff's mark, which should demonstrate
`
`that defendant itself should agree with plaintiff's complaint herein
`
`of confusingly similar marks.
`
`(see defendant numerous Trademark
`
`oppositions on the Registrar which is too numerous to include
`
`herein)However in this instance,
`
`they choose to disagree for a
`
`favorable outcome.
`
`COUNT FOUR (Negligent Interference
`For Economic Advantage)
`
`25. Defendant claimed during Discovery in the TTAB proceeding they
`
`did not search for similar marks for the service of a Social Network
`
`prior to using and applying their new mark. Although not “required”
`
`to do so by law,
`
`the TTAB advocates that ALL entities should search
`
`for similar marks BEFORE using a newly created mark. This would be a
`
`responsible action. However, even AFTER defendant was made aware by
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page10 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Pagelo of 18
`
`Cease and Desist defendant STILL decided to continue promoting their
`
`new mark vehemently and aggressively, creating overnight
`
`fame for
`
`the mark. This should be deemed NEGLIGENT,intentional and reckless.
`
`CO
`
`FIVE Unfair Com etition
`
`26. Defendant created a too similar mark to that of plaintiff by
`
`arguing they are entitled to use their “house mark” in this
`
`instance. Plaintiff disagrees. Trademark rules advocates the
`following: See T.M.E.P. § 1207.01 Likelihood of Confusion at
`1207.0l(b)(iii) Comparing Marks That Contain Additional Matter, It
`is a general rule that likelihood of confusion is not avoided
`
`between otherwise confusingly similar marks merely by adding or
`deleting a “house” mark.
`
`Furthermore, defendant does not have any right to the letter string
`
`“GOOG” to prevent plaintiff from the rights of his mark “GOOGABOX”
`
`especially since plaintiff has used this letter string in his mark
`
`since 2007 and defendant had NO Social Networks with the letter
`
`string “GOOG” BEFORE plaintiff's mark was REGISTERED.
`
`27. Furthermore,
`
`there are no “automatic” rights for a “housemark”
`
`famous or not without investigation. Exh 4). It is a known fact that
`
`attorneys for the Trademark Office do not apply intricate
`
`investigation, exactly why new applications are PUBLISHED in the
`
`official Gazette to make available for opposers. Defendant
`
`implies
`
`that a Trademark attorney is more intricate on it's investigation
`
`than the TTAB. This is nonsensical. There is also not “automatic”
`
`rights to defendant for a “part” or “portion” of their “housemark,
`
`in this case the letter string “GOOG”. Defendant specifically of
`
`this fact filed for Registration protection for their newly created
`
`mark. To allow defendant's “housemark” for this class of goods
`
`10
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page11 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Pagell of 18
`
`to supersede that of plaintiff's mark, would certainly constitute
`
`“UNFAIR COMPETITION” especially keeping in mind defendant's extreme
`
`financial advantage. Plaintiff should have first right of use of
`
`the letter string “GOOG” for this service as plaintiff was FIRST as
`
`a Social Network specifically with the letter string “GOOG”.
`
`28. Furthermore, It will be shown,
`
`that Defendant engaged in false
`
`advertizing (see paragraph 29 below)
`
`COUNT SIX (California Statutogg False Advertising, Extortion,
`F
`f i
`'
`Pr
`'
`'
`'
`L w
`Vi
`‘on:
`
`29.Plaintiff charges that defendant engaged in false advertizing
`
`inflating false figures on the success of their new service
`
`represented by the opposed mark by fraudulent action, using
`\\
`
`“trickery”, and
`
`smoke and mirrors” to create a false image of their
`
`success with the new service represented by the opposed mark. This
`
`directly affected plaintiff's mark as well as the PUBLIC. Defendant
`
`created profiles for unsuspecting members of their “other” services
`
`and advertised those as members of their new service presented by
`
`the opposed mark. Plaintiff also counts daily “internet traffic" of
`
`their “other” services, advertising that “traffic” as
`
`“traffic” for their new service presented by the opposed mark.
`
`(Exh. 6,9,10,11) The “new” service referred to here is in fact a
`
`Social Network that has nothing to do with defendant's “other”
`
`services. However, defendant is integrating their Social Network
`
`into their “other” services specifically to serve the purpose of
`
`creating false readings of membership and traffic for their Social
`
`11
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page12 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page12 of 18
`
`
`
`Network. Defendant then is broadcasting these false figures in an
`
`effort to overcome competition such as Facebook and Googabox.
`
`These figures defendant publicly “brags about” when in fact
`
`defendant obtains the figures fraudulently. The mark representing
`
`their Social Network service is the mark being opposed by
`
`plaintiff. These fraudulent figures also assists defendant
`
`in
`
`monetary gain such as, when a Company introduces a new service and
`
`then “brags” about it's success, certainly causes first,
`
`the
`
`public to want to be part of the new “success”, and second, causes
`
`defendant's shares to be more attractive and gain price.
`
`This in itself constitutes a violation of the Securities Act of the
`
`United States which specifically states that the goal of the
`
`Securities law is to require issuers to fully disclose all material
`
`information that a reasonable shareholder would require,
`
`in order to
`
`make up his or her mind about the potential investment. Even though
`
`defendant admitted their fraudulant conduct, it does NOT take away
`
`from the act. The defendant's FRAUDULANT actions has been and still
`
`is, causing UNFAIR BUSINESS PRACTICE.
`
`[The above topic is thoroughly presented in plaintiffs MOTION FOR
`A RESTRAINING ORDER AND PRELIMINARY INJUNCTION attached hereto].
`
`ggggg §EVEN(dgfendant Brig g, B;11)(Criminal Threats
`To Assist In a Civil Proceeding)
`
`30.
`
`That this defendant is very much a part of this complaint and
`
`should amalgamate in this complaint. First and foremost because
`
`plaintiff would want the same jury to review evidence on both
`
`defendants simultaneous as this injury to plaintiff occurred also
`
`12
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page13 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page13 of 18
`
`as a result of defendant Google Inc.
`
`infringement on plaintiff's
`
`mark. Second it is counsel's duty to inform their clients about the
`
`course of the case,
`
`including what arguments counsel presented
`
`plaintiff with during the course of Discovery. Plaintiff assumes
`
`that defendant Google Inc. was indeed informed by Counsel and
`
`decisively KEPT their counsel
`
`in spite of this incident. Also,
`
`plaintiff informed Google Inc. of this incident. Plaintiff forwarded
`
`all correspondence between himself and counsel to defendant.
`
`Plaintiff will testify that: Defendant's counsel, Eric J.
`
`Ball, on numerous occasions during the TTAB proceeding, attempted to
`
`dissuade plaintiff from proceeding with the opposition by denying
`
`the evidence presented to him without conferring with his client
`
`first. Defendant also threatened that plaintiff faces criminal
`
`charges as well as charging that plaintiff has “ulterior motives”
`
`opposing his client Google Inc.. Defendant's counsel stated that
`
`plaintiff's site was not adhering to privacy laws of California and
`
`that plaintiff faces criminal charges from the state. Counsel went
`
`further stating plaintiff's opposition is unlawful because of this
`
`“alleged violation”. He further attempted to explain the
`
`consequences plaintiff may face if plaintiff continues the
`
`opposition because of this “alleged violation”. Plaintiff disagreed
`
`on the “privacy law” issue charge from defendant's counsel. This
`
`conduct by counsel is unlawful. /{lawyer shall not present,
`
`participate in presenting or threaten to present criminal
`
`13
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page14 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page14 of 18
`
`
`
`charges solely to obtain an advantage in a civil matter.
`
`ffhe
`
`Rules ofProfessional Conduct] Plaintiff was a “pro se” litigant during
`
`TTAB proceedings. Counsel, knowing this, clearly conducted an
`
`unlawful action in an attempt to dissuade plaintiff from proceeding
`
`with the opposition against his client.
`
`COUNT EIGHT (Devious Acts For a Favorable Outcome)
`
`31. Apart from defendant denying the pronunciation of the opposed
`
`mark being “Googleplus” as well as denying it's a “continuous
`
`pronunciation” as well as denying they monitor new applications with
`
`the Trademark Office, as well as claiming in one breath the opposed
`
`mark is “arbitrary” then in another breath claim the opposed mark as
`
`“descriptive”, depending on the circumstance faced with, defendant
`
`is also attempting to overcome this opposition against the opposed
`
`mark pronounced “Googleplus” by attempting to Register another mark
`
`for the same classes as the opposed mark namely “Google+ Hangouts”
`
`(Exh.5) pronounced “Googleplus hangouts”. Plaintiff asserts this
`
`mark in essence is the SAME mark being opposed by plaintiff
`
`currently with the addition of a “descriptive” connotation. This
`
`mark was filed for Registration application August 15“ 2012, eight
`
`months after the opposition on the first mark commenced. Counsel for
`
`defendant stated,
`
`that plaintiff should have opposed this mark as
`
`well because a jury will certainly ask why plaintiff opposed the
`
`first mark and not the latter and thus plaintiff will loose his
`
`case. Plaintiff indeed DID sent a letter of protest on the latter
`
`mark as well as informing defendant's counsel of this as well as
`
`14
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page15 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page15 of 18
`
`asking the Registrar Office for an extension to oppose. However
`
`after consideration, plaintiff felt the letter of protest should
`
`suffice as both marks should be placed under the SAME proceeding.
`
`Defendant filed this essentially SAME mark KNOWING they were already
`
`being opposed for the first mark. The descriptive connotation to the
`
`second mark does NOT suffice in altering the opposed mark
`
`sufficiently to allow for non confusion.
`
`32. Plaintiff asserts this was intentional conduct by defendant to
`
`overcome the first opposition, firstly by attempting to dissuade
`
`plaintiff from opposing altogether by placing the burden of another
`
`opposition to be filed on defendant, and secondly relying on the
`
`Trademark Office attorney to allow the mark for Registration and
`
`being it essentially the same mark, would call into question
`
`plaintiff's opposition on the first mark. This is exactly how
`
`defense counsel
`
`then stated to plaintiff that he would “lose” his
`
`case because of the 2“ mark not being opposed as well. This is
`
`devious and unscrupulous
`
`on the part of the defendant to say the
`
`least.
`
`33. Evidence shows that this defendant has faced numerous
`
`charges of unlawful conduct in the past and was fined by the
`
`Government as well.(Exh. 13)It seems this defendant,
`
`judging by
`
`their past conduct, believes they are “above the law” and because of
`
`their status “owns” the law and can do as they please. This is yet
`
`another case of such conduct of disregard and thought.
`
`15
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page16 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page16 of 18
`
`ALLEGATION OF DAMAGE
`
`34. By reason of defendant's acts alleged herein, plaintiff has and
`
`will suffer ongoing damage to its business, reputation and good will
`
`and the loss of sales and profits plaintiff would have made but for
`
`defendant's acts. Plaintiff's member sign ups dramatically declined
`
`since the unfair and disregard actions of defendant.
`
`(Exh. 7) Future
`
`losses is calculated in the millions of dollars due to defendants
`
`unscrupulous and disregard actions towards plaintiff and the stall
`
`of his business for the last two and a half years.
`
`35. Defendant threatens to continue doing the acts complained of
`
`herein, and unless restrained and enjoined, will continue to do so,
`
`mounting to plaintiff's irreparable damage and continuing to commit
`
`unlawful acts as described herein against the people of California
`
`as well as all the people of the United States. It would be
`
`difficult to ascertain the amount of compensation which could afford
`
`plaintiff adequate relief for such continuing acts, and a
`
`multiplicity of judicial proceedings would be required.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, plaintiff prays:
`
`36. That this Court FIRST AND FOREMOST grant a MOTION for
`
`temporary RESTRAINING ORDER and preliminary Injunction attached
`
`hereto as part of this complaint
`
`to force defendant to Cease.
`
`38. That defendant be required to account to plaintiff for any and
`
`all profits derived by defendant
`
`from the use of the opposed marks
`
`herein for calculation of damages sustained by plaintiff by reason
`
`of said acts CHARGED and COMPLAINED of herein.
`
`16
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03/14 Page17 of 18
`Case4:14—cv—O3995—CW Documentl Fi|edO9/O3/14 Page17 of 18
`
`39. That this Court award punitive damages against defendant and in
`
`favor of plaintiff in the sum of three times the profits of
`
`defendant of the opposed mark to date and/ or calculated damages
`
`past, present and future sustained by plaintiff by reason of
`
`defendant's malicious and willful conduct rendering plaintiff in an
`
`extreme oppressed reefed condition.
`
`40. That costs of this action be awarded plaintiff.
`
`41. That defendant's knowingly, willfull and reckless be seized by
`
`this Court
`
`immediately because even though defendant was made aware
`
`by Cease and Desist and even after the TTAB denied their Summary
`
`Judgment, defendant still continued with the conduct complained of
`
`herein.
`
`42. That this is an exceptional case and that plaintiff be awarded
`
`reasonable attorney and/ or assistance fees from an attorney.
`
`43. That this Court grant such other and further relief as it shall
`
`deem just under the laws stated herein as well as any other
`
`applicable law deemed appropriate by this Court.
`
`44. Plaintiff nevertheless demands a Jury Trial.
`
`So presented this
`
`Zzé
`
`day of August 2014.
`
` 'ff
`
`17
`
`

`
`Case4:14-cv-03995-CW Document1 Filed09/03