Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1084270
`09/24/2020
`
`ESTTA Tracking number:
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`Filing date:
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding No.
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`91255873
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`Filing Party
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`Other Party
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`Defendant
`Kid Car NY, LLC
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`Plaintiff
`Kidmoto Technologies, LLC
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`Pending Motion
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`There is no motion currently pending and no other motion is being filed concur-
`rent with this consent motion.
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`Attachments
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`Kid Car v. Kidmoto - Complaint.pdf(140123 bytes )
`Kid Car v. Kidmoto - Counterclaim.pdf(383447 bytes )
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`Consent Motion for Suspension in View of Civil Proceeding
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`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Kid Car
`NY, LLC hereby requests suspension of this proceeding pending a final determination of the civil action.
`Trademark Rule 2.117.
`Kid Car NY, LLC has secured the express consent of all other parties to this proceeding for the suspension
`requested herein.
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`Certificate of Service
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`The undersigned hereby certifies that a copy of this filing has been served upon all parties, at their address of
`record by Email on this date.
`Respectfully submitted,
`/Cameron C. Murphy/
`Cameron C. Murphy
`cameronmurphy@eversheds-sutherland.us, todocketing@eversheds-sutherland.us
`09/24/2020
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`

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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Index No. 1:19-cv-07929______ _
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`THIRD AMENDED COMPLAINT
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`Plaintiff,
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`- against -
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`KIDMOTO TECHNOLOGIES LLC and
`NELSON NIGEL,
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`Defendants.
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`Plaintiff Kid Car NY, LLC (“Kid Car” or “Plaintiff”) brings this action against
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`Defendants Kidmoto Technologies LLC (“Kidmoto”) and Nelson Nigel individually (“Nigel”)
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`(collectively “Defendants”), and for its Second Amended Complaint asserts as follows:
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`INTRODUCTION
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`1.
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`This is an action for unfair competition, copyright infringement and related
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`claims. Kid Car has operated a transportation service for customers with children under the
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`“KID CAR” trademark since 2006. Defendant Nigel, a former driver for Kid Car, has
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`established a competing LLC operated under the name “Kidmoto.” Among other unfair acts,
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`Defendants have misappropriated and copied Kid Car’s intellectual property by infringing on the
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`“KID CAR” mark in a manner intended to deceive customers, and by copying the “app” that Kid
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`Car uses to operate its service. Defendants have also misused Kid Car’s confidential information
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`and have even gone so far as to make inquiries to third parties about the possibility of hacking
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`into Kid Car’s systems. Kid Car is entitled to injunctive relief, surrender of Defendants’ illegal
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`profits, and all of Kid Car’s damages stemming from Defendants’ conduct, among other relief.
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`1
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`THE PARTIES
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`2.
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`Plaintiff Kid Car is a limited liability company organized under the laws of the
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`State of Delaware and also duly authorized to transact business within the State of New York.
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`Its principal place of business is located at 3333 Broadway, Unit D24K, New York, NY 10031.
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`3.
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`Defendant Kidmoto is a limited liability company organized under the laws of the
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`State of New York. Upon information and belief, Kidmoto’s principal place of business is 31-10
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`Thomson Avenue, Long Island City, NY 11101.
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`4.
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`Defendant Nelson Nigel is an individual who, upon information and belief,
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`resides at 119-35 8th Avenue, College Point, NY 11356.
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`JURISDICTION AND VENUE
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`5.
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`This Court has original subject matter jurisdiction over Kid Car’s claims pursuant
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`to 18 U.S.C. § 1331 because Kid Car’s unfair competition claim is being brought under the
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`Lanham Act, 15 U.S.C. §§ 1051, et seq. and its copyright infringement claim is being brought
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`under the copyright laws of the United States, specifically 17 U.S.C. §§ 101, et seq, and further
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`has original jurisdiction pursuant to 28 U.S.C. §§ 1338(a) and (b).
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`6.
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`This Court has supplemental jurisdiction over the state law claims pursuant to 28
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`U.S.C. § 1367 because these claims are so related to the claims arising under the laws of the
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`United States that they form part of the same case or controversy under Article III of the United
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`States Constitution.
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`7.
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`Defendant Nelson is subject to the personal jurisdiction of this Court pursuant to
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`N.Y. C.P.L.R. (“CPLR”) § 301 because Defendant Nelson resides in New York. Defendant
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`Kidmoto is similarly subject to the personal jurisdiction of this Court pursuant to CPLR § 301
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`because it is headquartered in New York, organized under the laws of New York and, upon
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`information and belief, transacts all or almost all of its business in New York.
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`2
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 3 of 19
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`8.
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`Upon information and belief, Nigel is the founder and sole or principal owner of
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`Kidmoto and its CEO. All of the violations of law alleged here were undertaken personally and
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`intentionally by Nigel or at his sole choice and direction, including but not limited to
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`Defendants’ copyright infringement, unfair competition and deceptive acts and practices. Nigel
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`is individually liable to Plaintiff based on such actions, whether or not he allegedly took them on
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`behalf of Kidmoto, and Defendants are jointly and severally liable with respect to such actions.
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`9.
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`Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of
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`the events giving rise to the claims occurred in this judicial district.
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`FACTUAL ALLEGATIONS
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`Background of Kid Car
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`10.
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`Kid Car was launched in 2006 to provide families with a safe way to transport
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`their children in urban environments. Car crashes are the number one cause of death and
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`acquired disability in children over the age of one in the United States, and many such injuries
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`arise from the failure by caregivers to utilize and properly install car seats. In New York City,
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`and other cities where individuals may not use their own vehicles, the problem is particularly
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`acute. Caregivers often have no choice but to rely on taxis or car services that are not equipped
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`with car seats, thereby putting children at risk.
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`11.
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`The mission of Kid Car, as stated in its logo, is to provide “Safe Transport for
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`Children.” Kid Car provides fully vetted and trained drivers and age-and-weight-appropriate,
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`properly installed car seats.
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`12.
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`Kid Car initially began its service by providing parents with a safe way to bring
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`their newborn home from the hospital (“Kid Car Newborn”). Over the years, it added other
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`services, including “Kid Car Airport” (airport transfers) in 2007, “Kid CarPool” (shared rides,
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`3
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`including school and after school rides) in 2008, and “Kid Car by the Hour” (service as directed
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`by the customer) in 2009.
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`The KID CAR Trademark.
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`13. Kid Car has operated its transportation business under the “KID CAR”
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`mark continuously since it was formed in 2006. To Plaintiff’s knowledge, no other
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`entities apart from Kidmoto have used “Kid Car” in association with transportation
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`services.
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`14.
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`Plaintiff’s “KID CAR” trademark is a suggestive term and is inherently
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`distinctive. The term “Kid Car” has been used in the past with respect to various kinds of toys,
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`video games, and bicycle trailers, but, to Plaintiff’s knowledge, it has never been used before for
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`purposes of offering transportation services for children. Based on the common usages of “kid
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`car” in connection with toys, video games, etc. consumers must exercise their imagination to
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`connect KID CAR with Plaintiff’s transportation services that include car seats. Thus, KID CAR
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`is suggestive of the transportation services Plaintiff offers thereunder. It is well-established that
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`even seemingly generic words, when used in a distinctive manner in connection with a particular
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`business, can and do often constitute trademarks.
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`15.
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`The fact that KID CAR, as applied to child transportation providers, is
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`suggestive, rather than descriptive or generic, is shown by the fact that other providers of
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`transportation services targeting children do not use kid and car consecutively in their
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`websites. For example, none of the four largest companies targeting transportation services for
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`children, as measured by venture capital funding – HopSkipDrive, Kango, Zum, and the now
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`defunct Shuddle – use kid and car consecutively on their web sites. Nor is this term used by
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`Uber, in describing its “Uber Family” service, which offers car seats. Indeed, so far as Kid Car
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`has been able to determine, no provider of transportation services of any kind have the phrase
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`“kid car” in their web site, other than Kid Car and Kidmoto’s infringing use. That none of the
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`largest players in this space use “kid car” to describe their services bolster’s the suggestive
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`nature of Plaintiff’s KID CAR mark and negates any argument that the mark is descriptive or
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`generic or that there is a competitive necessity to use this term. Until relatively recently, Kid
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`Car chose not to engage in significant web advertising, in part because it received prominent
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`listings in natural search for the relevant services without such advertising. Rather, Kid Car
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`spent substantial time and expense between 2006 and the present date in direct promotional
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`efforts to promote the KID CAR trademark and the services Kid Car offered, including the
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`following:
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`a. Repeated calls and site visits and distribution of marketing collateral to the
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`maternity wards of Manhattan hospital, including Mt. Sinai East and West, Lenox
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`Hill Columbia/ Cornell Presbyterian, NYU- Tisch, Beth Israel, NYU Downtown,
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`and Bellevue Hospital. Initially, Erik Cliette, who was at the time the Director of
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`Injury prevention at Harlem Hospital and Kid Car’s Director of Safety, gave
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`presentations at most of these hospitals on the importance of car seat
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`safety. While all New York City hospitals require parents to produce a car seat
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`for their newborn to be discharged, Kid Car customers are exempted and allowed
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`to leave the hospital with their baby in their arms.
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`b. Visits to 95 doctor’s offices (including both OBGYN and Pediatric specialists) in
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`Manhattan and Brooklyn, where business cards were left in the lobby to be shared
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`with patients and periodically restocked.
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`c. Calls and emails to 75 nursery and day schools including the 92nd Street Y and
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`Hunter Elementary.
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`d. Visits to 35 Activity centers including Chelsea Piers and Kidville.
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`e. Visits to 34 Hotels including the Four Seasons and The Tribeca Grand Hotel.
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`f. Person to person distribution of business cards to parents at family-friendly events
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`and even to parents with strollers in public parks.
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`16.
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`Kid Car has been favorably profiled in The New York Times, The Washington
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`Post, The Daily News, The New York Post, Columbia College Today, AM New York, Mommy
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`Poppins, and on CBS 2 and Fox 5 News, which all highlighted that Plaintiff offers specialized
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`equipment, like car seats, to ensure the safety of all passengers that use its transportation
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`services. It has appeared in multiple national ad campaigns on behalf of American Express and
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`Safeguard, an industry leading provider of child safety restraints, requested a product
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`endorsement for one of its car seats. None of these favorable profiles was solicited by Kid Car.
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`17.
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`KID CAR’s extensive direct marketing efforts, favorable media coverage
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`from three of the nation’s largest newspapers and local TV, and approaches for brand
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`partnerships all demonstrates that KID CAR has independently acquired secondary meaning and
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`the mark serves as a source identifier for Plaintiff’s transportation services. Thus, even if
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`Plaintiff’s mark was categorized as descriptive, KID CAR is a protectable mark due to its
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`acquisition of secondary meaning.
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`18.
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`Over time, Kid Car has developed a well-earned reputation for safe and quality
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`service related to the “KID CAR” trademark. Kid Car has received numerous recommendations
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`from print and online publications, including 4.8/5 Stars (100+ reviews) in Google, 4.5/5 Stars
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`(100+ Reviews; Top 10 Car Services with Car Seats) in Yelp, and 4.6/ 5 Stars (14 Reviews) in
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`6
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 7 of 19
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`Trip Advisor. Kid Car has been recommended by Time Out New York Kids (“Best Car Service
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`for Kids”), New York Magazine (“A Winner”, Urban Baby (“Best of the Year”), NY Family,
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`Red Tricycle, Chic Mommy Finds, Child of Leisure, NY MetroParents (“Top 10 things every
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`parent should know”), Executive Moms, Soho Parenting and Little Hearts CPR. Again, Kid Car
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`did not solicit such reviews or recommendations from any of these sources and these reviews and
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`recommendations evidence the goodwill Plaintiff has generated with consumers in connection
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`with its KID CAR mark and Plaintiff’s transportation services.
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`19.
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`An estimated 92% of all Internet searches are conducted on Google. While the
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`exact methodology used by Google for natural search are proprietary, all are designed to
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`determine what the searcher is looking for based on the web sites clicked by previous users that
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`made these searches. Thus, the results of natural search for the words of a mark is an informal
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`survey of the association that consumers draw between the given mark and the company using
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`that mark.
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`20.
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`Attached hereto as Exhibit A are the first 5 pages of a recent search on Google
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`in New York City for the search phrase “kid car” (without quotes), comprising the first 51 search
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`results. As indicated the first two listings and three of the top five (excluding inserted images)
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`relate to the plaintiff Kid Car and the services it performs. Most of the other lead results refer to
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`toy electric cars and none of these 51 search results was for the web site of another
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`transportation provider. This strongly suggests that the KID CAR mark has become associated
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`with Kid Car in the minds of consumers.
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`21.
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`Plaintiff has acquired valuable property rights in that mark, and it is the owner
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`of the “KID CAR” common law trademark for providing transportation services for children
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`7
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 8 of 19
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`Change in Business Model and Development of the Kid Car App
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`Kid Car originally owned its vehicles, its drivers were employees, and
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`22.
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`reservations were handled through a web-based and telephonic reservation system. This model
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`had some drawbacks, however, including inability to provide on-demand services, excessive
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`reservation costs, inadequate capacity to meet peak demand, and idle employees and vehicles in
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`non-peak periods
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`23.
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`In early 2015, Kid Car restructured its business to an independent contractor
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`model. This transition helped Kid Car increase its access to vehicles from 10 to more than 50.
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`At the same time, Kid Car replaced its web-based reservation system and largely eliminated
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`telephonic reservations through the development of a mobile phone “app” that permitted a
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`streamlined reservation process.
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`24.
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`Initially, Kid Car worked with an overseas developer firm to create a new app that
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`would meet the special needs of its business, including pricing that varied with both the type of
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`vehicle and the number of car seats requested, and the capability for both on-demand and
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`advance reservations. After working with this developer for almost a year, and incurring
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`substantial expense as well as lost revenue, Kid Car recognized that the new app simply did not
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`work. It declared the effort a failure and sought other alternatives.
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`25.
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`Commencing in January 2016, Kid Car spent several months working with an
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`existing provider of generic apps for car transportation services to develop and customize the
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`provider’s generic app to Kid Car’s unique specifications. Kid Car launched the new app (the
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`“Kid Car App”) in April of 2016.
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`26.
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`The app provider recognized Kid Car’s unique customization embodied in the Kid
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`Car App and authorized Kid Car to copyright the screens associated with the Kid Car App. Kid
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 9 of 19
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`Car applied to register this copyright in February of 2018, and the Certificate of Registration for
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`the text of such screens was granted on February 26, 2019. A true and correct copy of this
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`registration is attached as Exhibit B.
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`Defendants’ Infringements and Unfair Competition
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`27.
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`In late July of 2015, Defendant Nigel applied to Kid Car to become a driver as an
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`independent contractor. After Kid Car provided him with free training in the installation of car
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`seats as well as four (4) free car seats to be used for Kid Car requests, Nigel started driving for
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`Kid Car in September of 2015.
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`28.
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`Unbeknownst to Kid Car, Nigel soon began making plans to copy and otherwise
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`misappropriate Kid Car’s intellectual property, while continuing to drive for Kid Car.
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`29.
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`In May of 2016, only one month after the successful launch of the Kid Car App,
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`Nigel changed the name of an existing LLC called “One Life Entertainment, LLC” to “Kidmoto,
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`LLC.” In October of that year, Nigel again changed the name to Kidmoto’s now-existing name
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`of “Kidmoto Technologies, LLC.” Kidmoto does business under a variety of doing business
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`names, including Kidmoto Taxi, all of which utilize the word “Kidmoto.”
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`30.
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`The use of the name “Kidmoto” was apparently intended at the outset to create
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`consumer confusion between the “KID CAR” trademark and the Kidmoto name, to trade off the
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`hard-earned positive reputation of the “KID CAR” mark, and to trade off the valuable reputation
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`associated with the “KID CAR” mark.
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`31.
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`Upon information and belief, Kidmoto launched its website in November of 2016.
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`The website substantially copied the Kid Car website in many important respects, including most
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`of the terms and conditions on which services were provided.
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`32.
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`Crucially, Kidmoto also copied the Kid Car App at or about the time it launched
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`its service. As further described below, the Kidmoto app is nearly a word for word copy of the
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`Kid Car App, in direct infringement of Kid Car’s copyright. See Exhibit C.
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`33.
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`There were many other web platforms available for Kidmoto to use and no need
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`to use the generic app platform that Kid Car used. Further, Kidmoto could have used the same
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`app platform without copying the text and format of the Kid Car App.
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`34.
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`Nigel continued to drive for Kid Car at the same time that he was selling Kidmoto
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`services. Kid Car did not become aware of Kidmoto’s operations until May of 2017. Kid Car
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`promptly terminated Nigel’s driver relationship with Kid Car and Nigel finally returned Kid
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`Car’s car seats on or about May 10, 2017.
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`35.
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`In February of 2018, Kid Car sent a formal cease and desist letter to Defendants
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`relating to the use of the Kidmoto name and the copying of the Kid Car App as well as their
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`misleading use of the Kidmoto name. Defendants denied infringement and continued as before.
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`Kid Car then proceeded to register its copyright in the Kid Car App, as described above, which is
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`a precondition to the filing of a copyright infringement claim.
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`36.
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`On June 20, 2018, Kid Car received an unsolicited email from a consultant that
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`had dealings with Defendants. The consultant warned Kid Car that Defendants had requested
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`recommendations for hackers that would be able to penetrate Kid Car’s systems in order to “give
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`problems” to the website of Defendants’ “competitor,” whom the consultant understood to be
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`Kid Car. When confronted, Kidmoto denied the allegation, not knowing that the consultant had
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`provided documentary evidence of the request.
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`37.
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`In addition, in July 2019, Kid Car learned that Kidmoto had willfully and in bad
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`faith engaged in unfair competition by using the “KID CAR” mark in its Google “AdWords” and
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`10
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 11 of 19
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`Google advertising and other advertising and web postings in an effort to deceive and divert Kid
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`Car customers and prospective customers to Kidmoto.
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`38.
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`Advertisers purchase advertising from Google, and these advertisements are
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`placed before the results of natural searches by prospective customers. The headlines of such
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`advertising (as well as natural searches) are displayed in large bold blue lettering and constitute a
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`link to the advertiser’s site.
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`39.
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`Kidmoto placed multiple unique Google advertisements that expressly use the
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`“KID CAR” trademark in their headlines, in a deceptive manner, to cause consumers to open
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`Kidmoto’s web site while thinking that they are accessing the Kid Car website.
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`40.
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`For example, Defendants ran the following advertisement on Google, with a
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`headline that commenced with not only the KID CAR trademark, but a variant of Plaintiffs full
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`name of Kid Car NY LLC:
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`This and other examples of the use of the “KID CAR” mark in Google advertising are set forth in
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`Exhibit D attached hereto.
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`41.
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`Kid Car twice demanded, in email, that Defendants cease and desist from using
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`the “KID CAR” mark in Google advertising. Defendants’ only response was to state that Kid
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`Car was “harassing” them by asserting its rights, and then Defendants proceeded to threaten
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`unspecified actions unless Kid Car ceased such alleged “harassment.” Though Defendants
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`apparently stopped misusing the mark in Google advertising, as set forth above, a week or two
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`after they were confronted, they have not acknowledged the misuse or stated their intent not to
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`recommence this infringement.
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`42.
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`In addition to the aforesaid Google advertising, Plaintiff has subsequently
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`discovered the Defendants are using or has used the trademark “KID CAR” in Facebook,
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`YouTube, Pinterest, Twitter, Reddit, and Plurk postings and/or advertising in an effort to confuse
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`consumers and divert presumptive Kid Car customers to Kidmoto. Indeed, in at least two of
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`these listings, Kidmoto used variants of Plaintiff’s corporate name, “Kid Car NY, LLC”: Plurk,
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`“Kid car new york”(on Plurk)) and “Kid Car Service New York” (on Redditt).
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`43.
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`The consistent and prevalent uses of the KID CAR mark in advertising and
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`postings have been willful and intentional and undertaken in bad faith. They can have no other
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`purpose but to seek to take advantage of the favorable reputation associated with the KID CAR
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`trademark by confusing customers. There are myriad ways in which a taxi or car service for
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`children can be advertised and described without use of the “KID CAR” trademark.
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`COUNT I
`Unfair Competition Under
`Section 43(A) of the Lanham Act, 15 U.S.C. § 1125(a)
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`44.
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`Kid Car restates and incorporates herein by reference the averments set forth in
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`the preceding paragraphs of this Amended Complaint.
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`45.
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`Kidmoto has systematically and willfully sought to trade on Kid Car’s
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`intellectual property, including its common law trademark “KID CAR” and its registered
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`copyrighted Kid Car App.
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`12
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`46.
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`As set forth above, Defendants have unfairly competed by adopting and using
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`the “Kidmoto” name without Kid Car’s consent, in an effort to imitate the “KID CAR”
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`trademark and confuse customers.
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`47.
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`Defendants have further competed unfairly by its willful use of the entire “KID
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`CAR” mark in its Google advertisements, Facebook, Twitter, Pinterest, Reddit, Plurk, and
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`YouTube postings, in an effort to deceive customers looking for Kid Car’s services and divert
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`them to the Kidmoto website. Exhibit D sets forth examples of the infringing advertisements and
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`postings. Note not only the infringing use of the “KID CAR” trademark, but also the use of
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`“NY” in some of these items, which assures further confusion with the full name of “Kid Car
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`NY, LLC.”
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`48.
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`Defendants’ use of the Kidmoto name for their business and their use of the “KID
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`CAR” trademark in advertisements and Internet postings was willful and undertaken in bad faith.
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`It was intended to cause, and is likely to cause confusion or mistake, and/or to deceive the
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`purchasing public as to the affiliation, connection, or association of Defendants with Kid Car and
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`as to the identity of the service provider of Kidmoto services.
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`49.
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`Defendants’ acts have been willfully undertaken with the purpose of exploiting
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`and trading on the substantial goodwill and reputation of Kid Car and the “KID CAR”
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`trademark.
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`50.
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`Defendants’ acts are false and deceptive and likely to cause confusion on the part
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`of customers as to the website they are accessing, the services they are purchasing, and/or the
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`origin, sponsorship, or approval of Kidmoto services. They constitute unfair competition in
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`violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 14 of 19
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`51.
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`Defendants have also competed unfairly by copying the Kid Car App without
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`permission and in infringement of Kid Car’s rights in a manner likely to cause confusion as to
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`which app is being used and by willfully continuing such use after notice of such infringement.
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`52.
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`Defendants will continue willfully to infringe upon and misuse the “KID CAR”
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`trademark and continue the other acts of unfair competition described above unless enjoined by
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`this Court, and its actions threaten irreparable harm to Kid Car, for which there may be no
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`adequate remedy at law.
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`53.
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`Kid Car is entitled to preliminary and permanent injunctive relief against such
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`continuing willful violations of the Lanham Act pursuant to 15 U.S.C. § 1116.
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`54.
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`In addition, as a result of the Defendants’ willful and bad faith violation of
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`Section 43(a) of the Lanham Act, Plaintiff is entitled under 15 U.S.C. § 1117 to recover
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`Defendants’ profits earned as a result of its violation of Section 43(a) of the Lanham Act and to
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`recover damages, the precise amount to be determined at trial, along with the costs of this action.
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`COUNT II
`Copyright Infringement Under 17 U.S.C. § 501, et seq.
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`55.
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`Kid Car restates and incorporates herein by reference the averments set forth in
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`the preceding paragraphs of this Amended Complaint.
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`56.
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`The Kid Car App is copyrightable subject matter under 17 U.S.C. § 102. Kid Car
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`has been granted permission to copyright this matter by the owner of the software program, upon
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`which the Kid Car App is built.
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`57.
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`The United States Copyright Office has duly registered Kid Car’s copyright in the
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`text of the Kid Car App – Registration TX 8-703-157 on February 26, 2018, which is attached
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`and incorporated herein as Exhibit B to this Amended Complaint.
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`58.
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`Defendants have copied the text on the screens of the Kid Car App into
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`Kidmoto’s app that it uses to solicit and schedule rides for its customers. See the comparisons
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`attached and incorporated herein as Exhibit C to this Amended Complaint. Upon information
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`and belief, the Kidmoto app has been downloaded and utilized by a large number of Kidmoto
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`customers and some previous Kid Car customers.
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`59.
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`Defendants’ conduct violates Kid Car’s exclusive right to control reproduction,
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`distribution, creation of derivative works, and public display of copyrighted works, in violation
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`of 17 U.S.C. §§ 106-122.
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`60.
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`Defendants have been provided with actual notice of their infringement, and
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`hence have known that they were willfully continuing to infringe Kid Car’s copyright since no
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`later than February of 2018.
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`61.
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`Pursuant to 17 U.S.C. § 504, Kid Car is entitled to recover the actual damages
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`suffered as a result of Defendants’ willful infringement in an amount to be determined, together
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`with any profits of the infringer that are attributable to the willful infringement and are not taken
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`into account in computing the actual damages. Kid Car is also entitled to attorneys’ fees in the
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`discretion of the Court and costs of this action.
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`62.
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`Defendants will continue to misuse Kid Car’s copyrighted material unless
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`enjoined by this Court, and Kid Car will suffer irreparable harm for which there is no adequate
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`remedy at law.
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`63.
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`Kid Car is entitled to preliminary and permanent injunctive relief pursuant to 17
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`U.S.C. § 502.
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`COUNT III
`Unfair Competition Under New York Common Law
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`64.
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`Kid Car restates and incorporates herein by reference the averments set forth in
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`the preceding paragraphs of this Amended Complaint.
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`65.
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`Defendants’ acts as set forth above, including but not limited to its trademark
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`infringement, deceptive advertising, and efforts to hack Kid Car’s website, constitute bad faith
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`misappropriation of the labors and expenditures of Kid Car and constitute unfair competition
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`under New York common law.
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`66.
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`Accordingly, Kid Car should be awarded actual damages suffered, costs and
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`preliminary and permanent injunctive relief pursuant to New York law.
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`67.
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`As the result of Defendants’ willful actions, Kid Car should be awarded punitive
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`damages in an amount to be determined.
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`COUNT IV
`Trademark Infringement Under New York Common Law
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`Kid Car restates and incorporates herein by reference the averments set forth in
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`68.
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`the preceding paragraphs of this Amended Complaint.
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`69.
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`70.
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` Kid Car holds valid and protectable rights in the “KID CAR” trademark.
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`Defendants’ use of the “KID CAR” mark in advertisings and social media
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`postings as described above, constitute misuse and infringement of the “KID CAR” mark.
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`71.
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`Defendants’ use of such terms is likely to result in consumer confusion and
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`deception.
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`72.
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`73.
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`Kid Car has suffered damages as a result.
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`Accordingly, Kid Car should be awarded actual damages suffered, costs and
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`preliminary and permanent injunctive relief pursuant to New York law.
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`Case 1:19-cv-07929-PKC Document 55 Filed 04/02/20 Page 17 of 19
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`COUNT V
`Unjust Enrichment
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`Kid Car restates and incorporates herein by reference the averments set forth in
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`74.
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`the preceding paragraphs of this Amended Complaint.
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`75.
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`By misappropriating Kid Car’s intellectual property, including its rights to the
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`“KID CAR” trademark and its copyright in the Kid Car App Defendants have earned substantial
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`profits.
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`76.
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`The misappropriation of such intellectual property has caused diversion of
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`business from Kid Car to Kidmoto, causing damage to Kid Car.
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`77.
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`It would be against equity and good conscience to allow a defendant to retain the
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`profits from these wrongful acts.
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`78.
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`Kid Car is entitled to restitution and/or disgorgement of profits wrongfully earned
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`by Defendants through misuse of Kid Car’s intellectual and personal property, or such other
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`equitable remedy as the Court deems just.
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`PRAYER FOR RELIEF
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`
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`WHEREFORE, Kid Car demands a judgment in its favor and demands the following
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`relief:
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`A.
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`An Order prohibiting and permanently enjoining Defendants from using “KID
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`CAR” or any of Kid Car’s other trademarks;
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`B.
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`An Order prohibiting and permanently enjoining Defendants from using or
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`copying of the text of the Kid Car App;
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`C.
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`A decree ordering an accounting by Defendants to establish all profits realized as
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`a result of the wr