Case 5':20-cv-01326 Document 1-1 Filed 02/21/20 Page 1 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 1 of 21
`
`EX IBIT A
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 2 of 21
`Case 5_:20-cv-01326 Document 1-1 Filed 02/21/20 Page 2 of 21
`
`SUMMONS
`(CJTA CION JUDICIAL)
`NOTICE To DEFENDANT:
`i
`(A vrso AL DEMANDA Bo :1
`WAG LABS, INC, 3. Dglawarc Corporation, and DOES 1-20, inclusive,
`
`SU till-100
`
`
`{mt3%r%2”§lé’giffs‘éma
`
`
`
`
`E-Fi LED
`
`
`1326/2019 “‘34 AM
`
`
`
`.
`
`Superior Court of CA,
`County of Santa Clara
`you ARE BEING SUED BY' PLAINTIFF:
`
`1QCV360764
`(L0 ESTA DEMANDANDo EL DEMANDANTE):
`
`Reviewed By: J_ Duong
`WAG HOTELS, INC, 21 Delaware Corporation
`
`Envelope: 3812465
`
`Clerk of Court
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`NOTICE! You have been sued The coirtmay decide againstyoi withoutyour being heard unless you respond within 30 days. Read the information
`below.
`'
`You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
`served on the plaintifi A letter or phone cell will not protect you. Your written response mustbe in proper legal form lfyOJ want the court tohear your
`case There may be a court form thetyou can use for your response. You can find these court forms and more information at the California Courts
`Celine Self-Help Center inwwcouriintocagov/seifhelp). your county law library. or the courthouse nearest'you. If you cannot pay the-filing fee, ask
`the court clerk for a fee waiver form. ttyou do not file your response on time. you may lese the case'by default and your wages. money. and property
`may be taken without further warning from the court
`There are other legal requirements You may want to call an attorney right away. lfyou do notknow an attorney. you may want to call an attorney
`referral service. if you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You untocate
`these nonprofit groups at the California Legal Services Web site (wwiawnelpcaiii'orniaorg). the California Courts Oniine Selfii elp Center
`(chouriinfo.cagov/seifnelp), or. by contacting your local court or county bar association. NOTE: The courthas a statutory lien for waived fees and
`costs on any setliement or arbitration award of$10,000 or more in a civil case. The courts lien must be paid before the court will dismiss the case.
`jAl/iSO! to iron demandado. Si no responds dentro de 30 dies, ta corte pusde decidiren su contra sin escucnar su version. Lea la intormacion a
`merit/inaction.
`Tiene 36 DIAS DE CALENDARIO despues do one is entreguen esta citacion y papeies legaies para presentaruna respuesta por-escn'to en este
`carts ynacerqus so entregue one contact demandente. Una carta 0 one llamada telefonica no to protegen. Sn rospuesta por escn'to tiens qua ester
`er? forrnato legalcorrecto at doses due procesen su case-en ta sorts. Es posrble one naya un formuiano que Listed pueda user para su respuesta.
`Puede sncontrarestos fonnulan'os'de ta cone y mas r'nfonnecion- an at Centre de Ayuda do ias Cortes de California (MW. sucorteca. gov). en la
`biblioisca do (eyes de su condado 0 en la cone que to goods mas oerca. Si no puede pagaria cuota-de presentacion. pida at secretario de la certs
`one is do an formutan'o do extension de pago do cuotss. Si no presents su respuesta a tiempo. puede perder at ease perineumpiimiento yia cone is
`more gutter su suerdo, dinero y bones sin mas aWenencia.
`Hay otros reqursitos iogates. Es recomendeble qua Home a tin abogado inmediatamente. Sr no conoce a un abcgado, puede trainer 8 un servrcro do
`remrsion a abogados. Si no pueda pagara un abogado, es posrbie one cumpia con ios reddisrtos para obtener semios iegales gratuiios de un
`o‘cgrarna de serveros legales sin fines de iucro. Puede encontrarestos gmpOs sin fines de More en of site web de California Legal Seniicss.
`i'wwwtawhelpcaiiforniaorg}, en el Centro de Ayuda do (as Cortes de California, (www. sucoriecagor) o poniendose en contacto con la cote 9 st
`cotegio do abogados locales. AWSO: Portey, is code liens demand a reciamarias cuotas y ios costos sxentos porimponsr un gravamsn score
`customer recuperacion de $10,000:? mas de valor reo'bida medrante un asuerdo o una concesidn de arbitrate an on case do derecno civii. Titans one
`pagers! gravamen de la cone antes de gun is sorts puede desecnar ei case.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The name and address of the (:er is:
`E! sombre
`direccion de is code as):
`UPERI R COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
`191 North First Street, San Jose, California 95113
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CASE NUMBER:
`(neware dermat-
`
`
`1 QCVBGO 764
`
`
`The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is:
`SE! nombre, la direccidn y at ndnirem de reierono dei abogado del demandanie, 0 del demandanre one no tiene ab adé) gala:
`cffrcy A. Batch, Es . (SEN: 87842) Matdaew Y.M1nac(SBN: 312686)
`Fax Nonffvilo %
`1—0250
`Adlcson, Hess & Kct y, a Profossron Cor oration
`Phone No: 408 341—0234
`Bl'fiasaimar Avenue, 2nd Floor, Campbell1: CA 95008
`Clerk by
`J
`{)3pr
`
`
`curt{Faerie} 12/26i2019 1 1 .34 AM Clerk 0 (Adamo) {Seer-8mm) . Duong
`
`
`(For proof or service or this summons, use Proof oFService ofSummons {form PCS—010).)
`{Para prueba do entro'ga do esra citation use net formulario Proof of Service of Summons, {FOB—010)).
`NOTICE TO THE PERSON SERVED: You are served
`
`
`
`1. [:3 as an individual defendant.
`2. [:3 as the person sued under the fictitious name of (specify):
`
`_3_ :1 on behalf of {speedy}:
`
`[:1 GOP 416.60 (minor)
`under: l::l CCP 416.10 (corporation)
`1:] GOP 416.20 (defunct corporation) E CCP 416.?0 (conservatee)
`]:| CCP 416.40 (association or permership) {:1 COP 416.90 (authorized person)
`
`{:1 other (specify):
`4. 1:] by personal delivery on (date):
` P e 1 an
`
`Farm Master! for Mandala}? Use
`Code of Civil Prue du
`12.20 485
`Judicial Carnot! or Carranza
`liwfiniirimrmagav
`SUM-100 [Res July 1.2009]
`LsxtsNexr‘SQ Automated Caiifornia Judiciai Cannot? Forms
`
`SUMMONS
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 3 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 3 Of 21
`
`E-FI LED
`
`12/26/2019 11:34 AM
`Clerk 9100”“
`SUpenor Court of CA,
`County of Santa Clara
`19CV360764
`
`ADLESON, HESS & KELLY, APC
`Jeffrey A. Baruh (SBN 87842)
`Matthew Y. Minae (SBN 312686)
`5?? Salmar Avenue, Second Floor
`
`(408) 341 -0234
`Telephone:
`(408) 341 -0250
`Facsimile:
`Email: ibaruh@ahklaw.com
`m minge@ahklaw.com
`
`for Plaintiff,
`Attorne
`WAG OTELS, INC.
`
`IN AND FOR THE SUPERIOR COURT OF CALIFORNIA
`
`COUNTY OF SANTA CLARA
`
`(Unlimited Jurisdiction Case)
`
`WAG HOTELS, NC. a Delaware
`Corporation.
`
`CASE No:
`
`19CV360764
`
`Plaintiff,
`
`PLAINTIFF WAG HOTELS, INC.’S
`COMPLAINT FOR:
`
`V.
`
`WAG LABS, INC., a Delaware
`Corporation, and DOES 1—20 inclusive,
`
`Defendants.
`
`
`
`
`
`(omummhooM—L
`MNNMMMM-y-x-L-L-x-L-L-LAAmm-fi-WN—‘ODOONOIU'ILWNAO
`
`2T
`
`1. BREACH OF CONTRACT;
`
`2. BREACH OF IMPLIED COVENANT
`OF GOOD FAITH AND FAIR
`DEALING;
`
`3- CANCELLATION 0F TRADEMARK
`
`4. TRADEMARK INFRINGEMENT;
`
`5. CALIFORNIA STATUTORY
`
`UNFAIR COMPETITION; and
`
`6. DECLARATORY RELIEF
`
`[JURY TRIAL DEMANDED]
`
`Wag Hotels.
`
`Inc. (“WAG“), as and for its claims against Defendant Wag Labs,
`
`Inc.
`
`(“Wag Labs") alleges as follows:
`
`THE PARTIES
`
`()0
`ADLESON. HESS 8
`KELLY. APB
`517 Salli-lame" 2nd Fir
`Gmmdl. CA aliens
`(-1033 3414234
`Fax (-103) 3414250
`mdflslmxflu
`
`Case NO
`
`1.
`
`WAG is. and at all times herein relevant has been, a limited liability corporation
`
`1
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 4 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 4 of 21
`
`established under the laws of the State of Delaware, authorized to do business in this State of
`
`California and doing business in this County of Santa Clara, including at its WAG Hotel facility
`
`in Santa Clara.
`
`2.
`
`:WAG is informed and believes and thereon alleges that Wag Labs is, and at all
`
`times herein relevant has been, a Delaware corporation, authorized to do business and doing
`
`business in the State of California, and in this County of Santa Clara at its Mountain View
`
`office, in addition to its principal place of business in West Hollywood, California.
`3.
`i'i'he identity, capacity and basis of liability of the defendants sued herein as Does
`1-20 is presently unknown to WAG, who join such defendants by these fictitious names. WAG
`
`will amend this complaint to substitute the true names and/or basis of liability of such fictitiously
`
`named defendants when the same becomes known or discovered.
`
`4.
`
`WAG is informed and believes and thereon alleges that Wag Labs and the
`
`other defendants, including those fictitiousiy named, are, and at all times herein relevant were,
`
`the agents,
`
`i-representatives, members, managers, partners,
`
`joint venturers, alter egos,
`
`shareholders officers, directors, employers, employees, parents, subsidiaries and affiliated
`entities of each of the other defendants, and that in breaching the Settlement Agreement with
`WAG effective June 15, 2016 (hereafter the ‘Settlement’ or ‘Agreement’) and committing the
`
`other violations of WAGS legal and statutory rights hereinafter alleged, all such defendants,
`
`including those fictitiously named, were acting within the scope of their authority. andfor with
`the consent, gexpress and/or implied, of the other defendants, andfor that all such other
`
`defendants Subsequently ratified those breaches of the Settlement Agreement and other
`
`violations of legal and statutory duties hereinafter alleged.
`
`JURlSDICTION AND VENUE
`
`5.
`
`Personal jurisdiction and venue are proper in this County insofar as WAG’s
`
`claims arise out of Wag Labs’ breach of a contract [the ‘Agreement’] which was to be
`performed ingthis County, among others in California, and which breach of that Settlement
`
`Agreement occurred in this County among others in California.
`
`6.
`
`'WAG is further informed and believes and thereon alleges that jurisdiction and
`
`2
`
`Case N o
`
`
`(.903“HiIO")(IIJ:-WMA
`
`M[\JM'[\3[\3[\3[\j_\._\._L.4.._..L_L....'.L.4."A..—.LO}014'3-0)M—‘-C)(OCO“HI0}U1ub-03P0--‘~0
`
`
`
`27
`
`GO
`ADLESON. HESS &
`KELLY. We
`57? Salmarfiva, 2nd Fir
`cmphafi. GA owns
`(408} 3&1va
`Fat: (403; 341-13250
`Wu chla- has cm:
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 5 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 5 of 21
`
`venue are also proper in this County insofar as WAG’s business in this County is directly
`
`related to the, allegations of contractual breaches and statutory violations hereinafter set forth,
`
`including, but not limited to: "Wag Labs' infringement of WAG‘s trademark and Wag Labs’
`
`other acts of unfair competition hereinafter alleged, including its marketing, distribution, display
`
`and/or sale of infringing services bearing confusingly similar imitations of WAG's trademark,
`
`occurred in this County .
`
`ALLEGATIONS COMMON TO ALL COURTS
`
`fWAG is, and at all times herein reievant, has been in the business of operating
`T.
`pet resort facilities in muitipie locations in California,
`including in this County of Santa Clara,
`providing services including boarding, pet-sitting, grooming, training and exercise services.
`
`8.
`
`:WAG began using the terms WAG and WAG HOTELS as trademarks for its
`
`services in orgaround October 2005.
`
`9.
`
`ion or about July 15‘“, 2008, WAG received a registration in the US. Trademark
`
`Office for the i-‘service mark’ WAG. US. Trademark Registration No. 3465083, covering kennel
`
`services (“the Mark”).
`
`10.
`
`At all times herein relevant the services that WAG has and continues to offer in
`
`connection with its karma! and pet care services include boarding, training, grooming, bathing,
`
`dog-walking and other exercise. WAG provides these services to clients who kenneliboard
`
`their pets at 13WAG‘s facilities overnight, and also to clients who kenneilboard their pets at
`WAG's facilities temporarily during the day.
`
`11. At all times herein reievant, WAG has used and promoted, and continues to use
`
`and promote, the Mark extensiveiy, such that it has acquired valuable goodwill and the Mark
`
`has come to be recognized as identifying the quality and range of services and exquisite care
`
`offered by ”WAG.
`12.
`SWAG is informed and believes and thereon alleges that Wag Labs is.
`
`in the
`
`business of providing temporary use of on-line non-downloadable software for coordinating pet
`
`1
`
`2 3 4 5 6 '
`
`3'
`
`8 9
`
`10.
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`2?
`HO
`ADLESON. HESS.‘
`KELLY. AFC
`5'? Salmarm. 2nd Fir
`Canvases. memos
`(408} 34th
`Fax (4081 341-0350
`mam bum
`
`care services, in the form of dog-walking and pet sitting through its mobile app.
`
`13.
`
`:WAG is informed and believes and thereon alleges that commencing in or
`
`3
`
`Case No
`
`

`

`Case 5':20-cv-01326 Document 1-1 Filed 02/21/20 Page 6 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 6 of 21
`
`around January 2014, Wag Labs began offering dog-walking services in this and other
`
`California counties using the brand name ‘WAG'.
`
`14.
`
`:WAG is informed and believes and thereon alleges that, at times relevant to the
`
`WAGS claims in this Actibn, Wag Labs has advertised, promoted and provided many of the
`
`same services as WAG aside from just temporary use of on—Iine non-downloadable software
`
`for coordinating pet care services in the form of dog-walking and pet sitting through its mobile
`
`app, and has registered, in its name, trademarks which are deceptively and confusingly similar
`imitations to, WAG’s Mark, which similar services and deceptively, confusingly similar
`trademarks are likely to and have caused confusion in the minds of the public as to the origin,
`sponsorship and/or approval of Wag Labs’ services, leading consumers to believe WAG has
`
`approved. sponsored and/or associated itself with Wag Labs, and otherwise to unfairly
`compete with; WAG‘S services.
`
`15. On or about May 26, 2015, WAG informed Wag Labs that its use of the WAG
`
`trademark and name, and related words, symbols and images, violated WAC-3’s trademark and
`
`common iawrights in WAG’s Mark, and demanded it cease and desist from such use. When
`
`Wag Labs refused to cease its infringing conduct in continued violation of WAG’s Mark, WAG
`filed suit.
`I
`
`18.
`
`3Wag Labs' advertising, promotion, use, offer for sale and sale of confusingly
`
`similar services to those provided by WAG, with use of the same or deceptively similar
`
`imitations onWAG's Mark, has been and continues to be likely to deceive, confuse, and
`
`mislead consumers, past and prospective purchasers into believing that Wag Labs’ services
`
`were and are developed by, designed by, authorized by, and/or in some manner associated
`
`with WAG,
`'which they are not. The likelihood of confusion, mistake, and deception
`engendered by Wag Labs’ use, apprOpriation and infringement of WAGS Mark has caused
`and is continuing to cause irreparable harm to the goodwill symbolized by the Mark, as well as
`WAG's reputation for quality that they embody,
`in California and in this County. WAG is
`
`informed and believes and thereon alleges that, at all times relevant to this Action, Wag Labs
`
`has continued and continues to advertise, promote, market, use, offer for sale, and sell
`
`
`Case No
`
`4
`
`{DCDHO'JO'I-b-UJM
`
`10
`
`11
`
`‘12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`GO
`ADLESON. HESS a
`KELLY. RFC
`577 Salmarmra. 2nd Flr
`Gum pbdl. CA 95003
`(403: 341-8234
`FM {4031 3“va
`www.3hmw.m
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 7 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 7 of 21
`
`confusingly similar services that compete with the services provided by WAG.
`
`(ooowmcnrsoam
`
`1?. On June 10th, 2015, WAG filed its complaint in the US District Court [Central
`
`District of California (Western Division); Case No: 2:15-cv—04408; the ‘Prior Action’], for: (i)
`Federal Trademark infringement (15 U.S.C. §1114); and (ii) Caiifomia Statutory Unfair
`
`Competition in violation of Business 8: Professions Code §iT200.
`
`in that Prior Action,
`
`WAG sought relief consisting of: (a) an injunction against Wag Labs, prohibiting it from
`
`using ‘WAG' as a trademark or commercial identifier, or in any manner relating to Wag Labs’
`
`services; and (b) an award of damages suffered by WAG, as proven at triai,
`
`including
`
`disgorgement of Wag Lab’s profits earned from using the infringing mark; and (c) attorney's
`
`10
`
`fees.
`
`11
`
`12
`
`13
`
`14
`
`15
`
`15
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`HO
`ABLE son. HESS a
`KELLY. APO
`577 Salmarhva. 2ndF'lr
`ompbei. on 95063
`(«cm 341-:234
`Fax [403; sen-tom
`mum-191w can
`
`WAG’; com plaint in that Prior Action alleged that:
`
`WAG had been in the business of operating pet resort facilities in
`
`multiple locations in California, including boarding, pet-sitting, grooming,
`training and exercise services since 2005; and had been using the
`terms WAG and W210 HOTELS as trademarks for its services since
`
`October 2005;
`
`the services that WAG had offered and continued to offer in connection
`
`with its kennel services included boarding,
`
`training, grooming and
`
`exercise, specifically including, but not limited to, dog-walking services;
`
`commencing in January 2014, Wag Labs began offering dog-walking
`services using the brand name ‘WAG’, which services and trademark
`(WAG alleged) “(were)
`identical or confusingly similar
`to, and
`compete(d) with WAG Hotels’ services.“
`on or about May 26th, 2015, WAG informed Wag Labs that its use of
`the trademark WAG violated WAG’s trademark rights in the Mark; and
`
`that Wag Labs had refused to cease its infringing conduct in continued
`violation of WAG’s Mark and associated rights and interests.
`
`18.
`
`3'WAG and Wag Labs (the ‘Parties’) settled that Prior Action and entered into
`
`a Settlement Agreement (‘Agreement') effective June 15th, 2016.
`
`in that Agreement,
`
`Wag Labs acknowledged the sufficiency of the consideration for the 'Setttement‘ of WAG’s
`
`claims of trademark infringement and unfair competition, and expressly confirmed,
`
`in section
`
`
`0359 NO
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 8 of 21
`Case 5_:20-cv-01326 Document 1-1 Filed 02/21/20 Page 8 of 21
`
`20 of the Agreement, its intention to be bound by each provision of (the) Agreement. The
`
`fundamental consideration for WAG in that Settlement was and is section 4 [‘§4’] of the
`
`Agreement, which requires Wag Labs to use "branding’ materially consistent with the
`
`‘lmage’ depicted in ’§4’, which 'lmage’ Wag Labs subsequently applied to register as a
`
`‘servlce' mark on August 18‘“, 2016 [serial no. 87142649], and which trademark was registered
`
`by Wag Labs on the principal trademark registry on May 2nd, 2017 [registration no. 5194829].
`
`’§4’ provides:-
`
`"On or; before October 31, 2016, Wag Labs will implement branding materially
`consistent with the following image in all channels it controls including its
`website, mobile application (including splash page, and home page), social
`mediaihome pages. outbound emails, billboards, bandanas, and other “swag”.
`[The required “image" to be used by Wag Labs was depicted in the middle of
`paragraph 4; see Agreement,].8ection 4 of the Agreement required that] [i]n
`the event that Wag Lab seeks to materially change its branding, Wag Labs will
`provide WAG Hotels with written notice of the proposed branding changes 28
`days prior to the implementation of any changes [providing that] WAG Hotels
`shall have 14 days from the date the notice is sent to provide any written
`comments or objections to Wag Labs.
`[and that] WAG Hotels shall not
`unreasonably object to any proposed branding changes. [Section 4 of the
`Agreement concludes with the express authorization that] in the event that Wag
`Labs acts in breach of this Section 4 of the Agreement, WAG Hotels shall be
`entitled to a remedy of specific performance in addition to any other applicable
`remedy in equity or law.”
`
`:‘§4'of the Agreement contains and depicts the ‘lmage‘, Wag Labs agreed to
`19.
`and was required to use — a graphic drawing of a cellphone [‘smartphone'] on the left with a
`
`paw-print design on the smartphone's screen with the word ‘WAG!’
`
`to the right of the
`
`smartphone and the words “a dog‘s best friend” in smaller font below. The smartphone
`
`graphic to the left of and immediately adjacent to ‘WAG!’ was and is the defining and most
`
`significant feature of the agreed upon “image” in ‘§4'of the Agreement, distinguishing WAG
`
`from Wag Labs, and underscoring that Wag Labs' business is providing temporary use of
`
`‘on-line’ non—downloadable software for coordinating pet care services in the form of dog-
`walking and pet sitting with consumers through its mobile app. The tagline required under
`
`CQOONO‘JU‘l-b-QJN-é-
`
`_‘L D
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`GO
`ADLE SON. HESS &
`KELLY. APO
`577 Salmv Ava. 2nd Fl r
`C! am pbéll, CA WEB
`[408] 341-8234
`F9»: (403] 34:43250
`WW. silk-lain- 0cm
`
`WAG! [“a dog’s best friend] by 1]4 of the Agreement was also integral to the Settlement
`
`
`Case No
`
`6
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 9 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 9 of 21
`
`20.
`
`:‘_§5' of the Agreement prohibits Wag Labs from operating or investing in any
`
`kenneling pet-boarding or pet-hotel facilities using any trademark or brand name that
`
`incorporates the term “Wag”.
`
`21.
`
`Sections 8 and 9 of the Agreement direct that, for a 4 year (48 month) period,
`
`starting August 'ist, 2016, Wag Labs will distribute 2 emails (subsequently increased to 3)
`
`per year promoting WAGS services to all of its (Wag Labs”) customers last known e—mail
`
`address, whether active or inactive,
`
`located within the geographical market areas where
`
`\X/AG was operating as of the date of this Agreement, specifically, San Francisco,
`Oakland, Sacramento, Redwood City and surrounding vicinities. Section 9 of
`the
`Agreement directs that, over that same 48 month period, WAG may (i.e., has the option to)
`
`notify Wag Labs of up to 3 additionai cities where it (WAG) plans to begin operation,
`
`in
`
`which case it requires Wag Labs to distribute 2 emails (subsequently increased to 3) per
`
`year promoting WAG'S services to at! of Wag Labs customers iocated within these
`
`expanded areas ofWAGS service.
`
`22.
`
`Sections 11 and 12 of the Agreement provide reciprocal releases by the
`
`Parties [WAG and Wag Labs] “except for the obligations herein” (is,
`obligations in; section 4 of the Settlement Agreement).
`
`the executory
`
`23.
`
`Section 15 of the Agreement provides: “in any action to enforce the terms of
`
`this Agreement, attorneys’ fees, costs, and expenses incurred in prosecuting such litigation
`shall be awarded to the prevailing party.”
`
`24.
`
`Section 4 of the Agreement requires that. . .“ln the event that Wag Lab seeks
`
`to materially change its branding, Wag Labs wiii provide WAG Hotels with written notice of
`
`the proposed branding changes 28 days prior to the implementation of any changes.” In or
`
`around late 2018 or early January 2019, \X/AG discovered that Wag Labs had “materially
`changed its branding" without prior written notice to WAG whatsoever, depriving WAG of
`notice of andgany right or opportunity to object to Wag Labs’ proposed branding changes, all
`
`in violation of Wag Labs' obligations under section 4 of the Agreement.
`
`Case No
`
`7
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`no
`AD‘LESON. HESS &
`KELLY. APO
`5?? Salma‘ Aired 2nd Flr
`5 am phell, CA seam
`[-108] Bin-0234
`Fm i403] sat-{mu
`ww.ahk-lm.ocrn
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 10 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 10 of 21
`
`25. Underscoring its import, the Parties to the Agreement stipulated,
`
`in the final
`
`provision of f§4' that: “in the event that Wag Labs acts in breach of this Section 4 of the
`
`Agreement, WAG Hotels shall be entitled to a remedy of specific performance in addition to
`
`any other applicable remedy in equity orlaw.”
`
`EIRST CAUQE QF A1; [19E
`Breach of Contract— Settlement Agreement
`(Against Defendants Wag Labs, Inc, and DOES 1-5)
`
`iWAG incorporates, by this reference, paragraphs 1
`26.
`Complaint and re-aileges the same as though fully set forth herein.
`
`through 25 of
`
`this
`
`2?.
`
`.’§4'of the Agreement requires that...“ln the event that Wag Lab seeks to
`
`materially change its branding, Wag Labs will provide WAG Hotels with written notice of the
`
`proposed branding changes 28 days prior to the implementation of any changes."
`
`28.
`
`-In or around late 2018 or early January 2019, WAG discovered that Wag
`
`Labs had “materially changed its branding" without prior written notice of the proposed
`
`branding changes, or any notice whatsoever, to WAG,
`in breach of its Wag Labs' specific
`covenants, obligations and duties under the Agreement, depriving WAG of any right or
`opportunity to object to Wag Labs” proposed branding changes.
`
`29.
`
`. The Agreement requires the ‘image’ depicted in ‘§4‘to be used exclusively
`
`and indefinitely on Wag Labs‘ website and mobile application (including splash page and
`
`home page), social media home pages, outbound emails, billboards, bandanas and other
`
`‘swag’. WAG is informed and believes and thereon alleges that,
`
`in breach of the
`
`Agreement;- Wag Labs has not used the image's tagline and smartphone graphic on its
`
`website over various periods of time andl'or has not used it on certain parts of its website
`and/or its app. The Agreement does not allow Wag Labs to include or incorporate the
`tagiine and smartphone graphic of the required image on its website just occasionaiiy or
`
`when and where it chooses.
`
`30.
`
`- WAG is further informed and believes and thereon alleges that,
`
`in the last
`
`three years; in breach of '§4’ of the Agreement, Wag Labs has used and currently uses
`
`Case No
`8
`
`(.DOOMOCfl-Ih-WM-ni
`
`_L O
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`1‘10
`ADLE$0N_ HE 53 a
`KELLY. APO
`57? SahnurAvm 2ndFlr
`Campbell. GA More
`{4094i 341-6234
`Fair {400a 341-0250
`m.ahk—W.m
`
`

`

`Case 5:2o-cv-o1326 Document 1-1 Filed 02/21/20 Page 11 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 11 of 21
`
`logos and other displays that materially vary and deviate from andfor do not
`‘lmages’,
`replicate the llmege' or branding Wag Labs agreed to use (as depicted in and required by
`
`.§4,
`
`31. WAG is further informed and believes and thereon alleges that shortly after
`
`the Agreement was signed in June 2016, Wag Labs applied for and registered as its
`
`trademark [no 5194828], a form of the ‘WAGE‘ (literal element written in stylized font),
`
`logo or mark Without the smartphone graphic and tagline required by ‘§4’. WAG is informed
`
`and believes and thereon alleges that
`the Agreement prohibits Wag Labs from registering
`WAG's ‘Mark’ or the mark [no 5194828} it registered under its name in 2016 and from
`
`registering andior using other deceptively confusing and similar trademarks to the Mark
`
`thereafter.
`
`32. WAG is further informed and believes and thereon alleges that,
`
`in breach of
`
`§§8 andior 9 Of the Agreement, Wag Labs failed to distribute WAG’s promotional emails to
`
`gfl of its active customers in the areas (zip codes) specified by WAG.
`
`33. WAG has performed all of the covenants, conditions and other obligations
`
`under the Agreement to be performed by it on its part, aside from any such covenants,
`conditions and other obligations the performance of which has been excused by Wag Labs’
`
`breach, abandonment and/or anticipatory repudiation of its executory obligations under the
`
`Agreement. '
`
`34.
`
`:As a direct and proximate result of Wag Labs’ breaches and violations of the
`
`Agreement, as hereinabove specified, WAG has incurred damages in an amount presently
`unknown, but in excess of the jurisdictional minimum of this court WAG is informed and
`
`believes and thereon alleges that such damages are continuing. WAG will seek leave to
`
`to specify the amount of such damages when the same is
`amend this Complaint
`ascertained, becomes known or ascertained, or seek to have such damages established
`
`according to proof at trial.
`
`i
`
`2 3 4 5 6 7 8 9
`
`1o
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`1s
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`HO
`ADLEBON. HESS E
`KELLY, AFC
`5r! SBImIIrAve., 2ndFlr
`Campbell. SA 05053
`(408: 343-4234
`FM (403] 3414350
`Wmahk-law com
`
`35.
`
`:_The final provision of section 4 of the Agreement provides: “in the event that
`
`Wag Labs acts in breach of this Section 4 of the Agreement, WAG Hotels shaii be entitled to
`
`Case No
`9
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 12 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 12 of 21
`
`a remedy of: specific perfonnance in addition to any other applicable remedy in equity or
`
`law.” By reason of Wag Labs' breach of section 4 of the Agreement, WAG also seeks
`
`temporary and/or preliminary injunctive relief specifically enforcing paragraph 4 of the
`
`Agreement ,and prohibiting Wag Labs' continued use and display of ‘images’,
`
`logos and
`
`other displays Wag Labs currently uses and has been using (e.g., as depicted in trademark
`
`registration no. 5194828) that materially vary and deviate from the ‘image’, is, branding
`
`Wag Labs agreed to use (as depicted in and required by ‘§4’) and for an order that Wag
`Labs immediately revert back to the required use ‘image‘ and branding depicted in
`
`paragraph 4 of the Agreement, and ‘cease and desist’ from continued use of ‘images’,
`
`logos and/or branding which deviate from and are inconsistent with that agreed upon (as
`
`depicted in ’§4'of the Agreement) untii and subject to the contractually specified procedure
`
`for WAG’s approvai of any such changes.
`
`36.
`
`3 Section 15 of the Agreement provides: “in any action to enforce the terms of
`
`this Agreement, attorneys’ fees, costs, and expenses incurred in prosecuting such iitigation
`
`shall. be awarded to the prevailing party.” By reason of Wag Labs' breach and violation of
`the Agreement, WAG had been forced to retain counsei [Jeffrey A. Baruh of Adleson Hess
`
`& Kelly] to enforce its rights and recourse, and has and necessarily wiii incur attorney fees,
`
`costs and expenses, all of which it is entitled to and wiii seek to recover,
`
`in addition to its
`
`compensatory damages
`
`WHEREFORE, WAG prays for the damages and equitable relief hereafter set forth.
`
`S COND C
`
`F
`
`N
`
`-
`,
`
`Breach of the Implied Covenant ofGood Faith and Dealing
`[Against Defendants Wag Labs, Inc, and Bees 1- 10, inclusive]
`
`3?.
`
`.WAG incorporates by this
`
`reference paragraphs
`
`1
`
`through 36 of this
`
`Complaint, and re-aileges the same as though fuiiy set forth herein.
`
`38.
`
`: implied in the Settlement and Agreement was a covenant of good faith and
`
`fair dealing pursuant to which WAG and Wag Labs promised not to do anything which
`
`would injure the rights of the other party to receive the benefits of the Agreement
`
`Case No
`
`I
`
`10
`
`1
`
`coco-simmecom
`
`...s. O
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`no
`ADLESON. HE 55 a
`KELLY. APE:
`577 SIJMN'AVE. anFl!
`Gumball. GA 95013
`(403) 341-0284
`Fat {W Edi-CHO
`mfivm,m
`
`

`

`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 13 of 21
`Case 5:20-cv-01326 Document 1-1 Filed 02/21/20 Page 13 of 21
`
`39.
`Section 4 of the Agreement contains and depicts the ‘image’, and branding
`“Wag Labs agreed to and was required to use — the WAG! — logo accompanied by (adjacent
`
`to) a smartphone graphic and print tagiine. The smartphone graphic adjacent to the
`
`smartphone graphic was and is the defining feature of the “image” in § 4 of the Agreement,
`
`identifying Wag Labs’ business as providing temporary use of on line non-downioada-ble
`
`software for coordinating pet care services in the form of dog-walking and pet sitting through its
`
`mobiie app. from the business of and services provided by WAG. The tagiine required under
`WAG! [“a dog’s best friend'] by 1i4 of the Agreement was also integral to the Settlement.
`
`40. WAG is informed and believes and thereon alleges that within months after
`
`the Agreement was signed in June 2016, Wag Labs applied for and registered, as its
`
`trademark [registration no. 5194828], a form of the WAG!
`
`logo or mark without
`
`the
`
`smartphone graphic and tagiine required by section 4 of the Agreement. WAG is further
`
`informed and believes and thereon alleges that since WAG notified Wag Labs of its
`
`continued breach in eariy November, 2019, Wag Labs has applied for a trademark [e.g.,
`
`serial no. 88703192), a variation of the WAG! logo or mark without the smartphone graphic
`and tagiine required by Ԥ4' of the Agreement, and deceptively and confusingly similar to
`WAGS Mark
`
`41.
`
`.WAG is informed and beiieves and thereon alleges that in applying for and
`
`registering, as its trademarks, forms of the WAC! logo or mark without the smartphone
`
`graphic and tagiine required