Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA456734
`ESTTA Tracking number:
`02/15/2012
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91199132
`Plaintiff
`Mylovebook.com Inc.
`REGINA LEE
`MYLOVEBOOK.COM INC
`504 DINGE BAY
`ROUNDROCK, TX 78664
`UNITED STATES
`rlee@mylovebook.com
`Response to Board Order/Inquiry
`Regina Lee
`rlee@mylovebook.com
`/Regina Lee/
`02/15/2012
`Complaint.pdf ( 20 pages )(58037 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA456734
`ESTTA Tracking number:
`02/15/2012
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91199132
`Plaintiff
`Mylovebook.com Inc.
`REGINA LEE
`MYLOVEBOOK.COM INC
`504 DINGE BAY
`ROUNDROCK, TX 78664
`UNITED STATES
`rlee@mylovebook.com
`Response to Board Order/Inquiry
`Regina Lee
`rlee@mylovebook.com
`/Regina Lee/
`02/15/2012
`Complaint.pdf ( 20 pages )(58037 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`Lawsuit Details
`
`RFC Case Number:
`
`
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`T-L11-15711M
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`Court Case Number:
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`2:11-cv-15711-AC-RSW
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`File Date:
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`Plaintiff:
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`Friday, December 30, 2011
`
`LoveBook, LLC
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`Plaintiff Counsel:
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`Russell D. Brown of Brown Assoc.
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`Defendant:
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`Mylovebook, Incorporated
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`15:44 Trademark Infringement
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`Michigan Eastern District Court
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`District Judge Avern Cohn
`Referred To: Magistrate Judge R. Steven Whalen
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`Cause:
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`Court:
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`Judge:
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`Notes:
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`Docket Text
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`Date
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`# Docket Text
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`12/30/2011 2 Trademark Report Sent To Washington (Brown, Russell) (Entered:
`12/30/2011)
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`12/30/2011 1 COMPLAINT filed by LoveBook, LLC against Mylovebook,
`Incorporated with Jury Demand. Plaintiff requests summons issued.
`Receipt No: 0645-3319572 - Fee: $ 350. County of 1st Plaintiff:
`Oakland County - County Where Action Arose: Out of State - County
`of 1st Defendant: Out of State. [Previously dismissed case: No]
`[Possible companion case(s): None] (Attachments: # 1 Index of
`Exhibits Index of Exhibits, # 2 Exhibit A - USPTO Applications (2), #
`3 Exhibit B - Cease and Desist Letter, # 4 Exhibit C - Notice of
`Opposition, # 5 Exhibit D - CNNMoney.com article, # 6 Exhibit E -
`Opposition Withdrawal Order) (Brown, Russell) (Entered: 12/30/2011)
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Case No. 2:11-cv-15711
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`District Judge Hon.
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`Referral Judge Hon.
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`COMPLAINT AND
`DEMAND FOR JURY TRIAL
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`
`
`LOVEBOOK, LLC,
`a Michigan limited liability company,
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`Plaintiff,
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`v.
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`MYLOVEBOOK, INC.,
`a Texas corporation,
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`Defendant.
`_______________________________________________________________________/
`
`Russell D. Brown (P60583)
`R.D. BROWN, PLC
`
`543 Marlpool Drive
`
`Saline, Michigan 48176
`(734) 604-1522 office
`(734) 944-3169 facsimile
`rdbrown@rdbrownlaw.com
`
`
`- and -
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`
`
`
`
`
`Steven N. Rich (P67025)
`Of Counsel, DAWID & GATTI PLLC
`214 South Main Street, Suite 204
`Ann Arbor, Michigan 48104
`(734) 904-5732 office
`(734) 761-1114 facsimile
`steve@steverichlaw.com
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`Attorneys for Plaintiff
`_______________________________________________________________________/
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`
`COMPLAINT
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`
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`Plaintiff LoveBook, LLC, a Michigan Limited Liability Company (hereinafter,
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`“LoveBook”), by and through its attorneys, for its Complaint against Defendant
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`
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`
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`MyLovebook, Inc. (hereinafter, “MyLovebook”), states as follows:
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`Nature of Action
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`1.
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`LoveBook, LLC is an internet-based business that owns and operates a
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`website at http://www.lovebookonline.com (the “LoveBook Website”), where customers
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`use LoveBook’s proprietary authoring system to create and purchase gift books featuring
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`customized declarations of love and appreciation with accompanying graphics.
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`LoveBook has been marketing said books in interstate commerce on a national basis
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`since approximately February 28, 2008.
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`2.
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`LoveBook filed two applications with the United States Patent and
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`Trademark Office (“USPTO”) to protect their marks on or about September 17, 2010.
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`See Exhibit A.
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`3.
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`MyLovebook began offering substantially similar products using
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`substantially similar marks and offering them in interstate commerce on a national basis
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`in early 2010. Upon becoming aware that MyLovebook was infringing on its marks,
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`LoveBook’s attorney, Steven N. Rich, issued a cease and desist letter on February 5,
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`2011. See Exhibit B.
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`4.
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`MyLovebook did not cease its wrongful activities and, on March 24, 2011,
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`filed with the Trademark Trial and Appeal Board (TTAB) a Notice of Opposition to
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`LoveBook’s trademark applications. See Exhibit C.
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`
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`The Parties
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`5.
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`LoveBook is a Michigan Limited Liability Company with its principal
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`place of business currently in Rochester, Michigan.
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`Lovebook/MyLovebook SNR-RB
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`Page | 2
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`
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`6.
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`MyLovebook is a Texas Corporation with its principal place of business in
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`Round Rock, Texas.
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`7.
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`MyLovebook is currently not in good standing with the Texas Secretary of
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`State.
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`
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`Jurisdiction and Venue
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`8.
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`This is a civil action arising under the laws of the United States, more
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`particularly 15 U.S.C. § 1051 et seq., the Lanham Trademark Act, and the statutory and
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`common laws of the State of Michigan.
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`9.
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`This Court has subject matter jurisdiction over this action pursuant to 28
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`U.S.C. §§ 1331 and 1338(a), to the extent that it arises under the laws of the United
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`States, and pursuant to the doctrine of supplemental jurisdiction, 28 U.S.C. § 1367, to the
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`extent the Court has jurisdiction over ancillary state claims. Jurisdiction is also proper
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`based on 28 U.S.C. § 1332 as the parties are domiciliaries of different states and the
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`amount in controversy, exclusive of costs and interest, exceeds $75,000.
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`10. MyLovebook is a foreign corporation that, upon information and belief,
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`has transacted and continues to transact business within the State of Michigan. They
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`have purposely availed themselves of the privilege of doing business in the State of
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`Michigan and have done so on a continuous and systematic basis. Additionally,
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`MyLovebook has committed tortious acts that have caused injury to LoveBook within the
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`Eastern District of Michigan. This Court has both general and limited personal
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`jurisdiction over Defendant pursuant to the Michigan Long-Arm Statute, MCL 600.711
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`and 600.715, and under the Due Process principles of the United States Constitution.
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`Lovebook/MyLovebook SNR-RB
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`Page | 3
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`11.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 (b)
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`and/or (c), in that Defendants are subject to personal jurisdiction in this District and
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`conduct business within this Judicial District, and because a substantial part of the events
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`or omissions giving rise to the claims occurred and continue within this Judicial District.
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`
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`Factual Allegations Common to All Counts
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`
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`12.
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`LoveBook and LoveBookonline.com is in the business of facilitating
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`intimate and personal expressions of love and affection by guiding the customer through
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`a proprietary system that allows her or him to express terms of endearment in a
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`customized gift book, or memento, that lasts a lifetime.
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`
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`13.
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`LoveBook has been using the marks “LoveBook” and “LoveBook Online”
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`(the “LoveBook Marks”) in interstate commerce since its first use in February 2008 and
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`is the owner of common law trademark rights in both.
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`
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`14.
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`LoveBook filed applications with the United States Patent and Trademark
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`Office (“USPTO”) on September 17, 2010 (see Exhibit A) to register and protect the
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`LoveBook Marks. They are as follows:
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`(a)
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`Serial number 85/131970. Mark: LoveBook Online (Standard
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`Characters, mark.jpg). The literal element of the mark consists of LoveBook
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`Online. The mark consists of standard characters, without claim to any particular
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`font, style, size, or color.
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`(b)
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`Serial number 85/131952. Mark: LoveBook ONLINE.COM
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`You’ve Just Been Loved (stylized and/or with design, mark_993527196-
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`102248582.Love-Book-online-Logob.jpg). The literal element of the mark
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`Lovebook/MyLovebook SNR-RB
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`Page | 4
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`
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`consists of LoveBook ONLINE.COM You’ve Just Been Loved. The color(s) red,
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`black, and white is/are claimed as a feature of the mark. The mark consists of the
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`words LoveBook, with no space between the words, and the words
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`ONLINE.COM which are confined to the area directly below and abutting the
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`underside of the letters ‘Book.’ Additionally, further below the sentence are the
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`words “You’ve Just Been Loved.” Positioned to the right of that verbiage are the
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`stylized stick figure drawings of a man and a woman, consisting of a female
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`character holding a book with a heart on its cover, kissing a male character who is
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`holding an oversized pencil and assuming a stance of pride and happiness.
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`15.
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`LoveBook has maintained a successful business venture by producing a
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`quality product that fills a unique niche. It currently is earning over a million dollars
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`annually and has developed the brand recognition and good will associated with a
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`positive Internet venture. See Exhibit D.
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`16.
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`Since the inception of its business to date, LoveBook has spent over
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`$175,000.00 to develop its name, its market presence, and its goodwill.
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`17.
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`Upon information and belief, Mylovebook was formed sometime in 2009
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`and purchased it’s URL in April 2009.
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`18.
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`Like the LoveBook website, Mylovebook offers customers the opportunity
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`to create and purchase gift books featuring customized declarations of love and
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`appreciation with accompanying graphics.
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`19. While the books sold by Mylovebook are conceptually similar to the
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`LoveBook product and appear to be designed with LoveBook’s style in mind,
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`MyLovebook does not give the consumer as many choices in creating the books. Also,
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`Lovebook/MyLovebook SNR-RB
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`Page | 5
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`the books and book content produced by MyLovebook, while comparably priced, are
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`significantly inferior in quality to the LoveBook products.
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`20.
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`Once LoveBook became aware of the existence of Mylovebook, they
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`immediately took steps to protect the pending marks. A cease and desist letter was sent
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`to the company as well as its registered agent on February 5, 2011. See Exhibit B.
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`21.
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`Instead of replying to LoveBook’s letter, Mylovebook soon filed a Notice
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`of Opposition in the TTAB, instituting opposing proceeding number 91199132 (the
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`“Opposition Action”), challenging LoveBook’s attempt to protect its marks. This was
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`filed on March 24, 2011. See Exhibit C.
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`22. While the Opposition Action has proceeded to the Discovery period, that
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`proceeding is currently suspended due to the withdrawal of Mylovebook’s attorney of
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`record, Mr. John Wilson, Esq., currently of Wilson Law Group, P.C. in Dallas Texas. The
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`USPTO’s Trial and Appeal Board has issued an Order allowing MyLovebook until
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`January 7, 2012 to either retain new counsel or choose to represent itself, or it may issue
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`an order to show cause why a default judgment should not be entered against
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`Mylovebook based on Mylovebook’s apparent loss of interest in the case. See Exhibit E.
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`23.
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`On information and belief, Mylovebook has deliberately modeled itself
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`after LoveBook so as to be able to take advantage of LoveBook’s prime placement on the
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`Internet, to capitalize on its market recognition, take advantage of its advertising dollars,
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`steal its good will, and to confuse customers who are seeking out LoveBook’s superior
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`product. This is all threatened and/or accomplished because of its similar name, its
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`similar mark, and through providing a similar, yet inferior, product.
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`Lovebook/MyLovebook SNR-RB
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`Page | 6
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`24.
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`It is already clear that the public does not and will not readily distinguish
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`between Mylovebook’s mark and LoveBook’s marks. LoveBook has already received
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`complaints from customers who purchased products from Mylovebook and were
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`dissatisfied and wanted refunds, yet did not realize that they were dealing with a
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`completely different company.
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`25. Mylovebook’s domain name and mark will appear frequently in search
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`results using keyword combinations such as “books of love” or other similar terms, thus
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`taking advantage of the carefully crafted placement on the internet in which LoveBook
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`has invested its resources and creative energies, thereby increasing the likelihood of
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`confusion.
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`26.
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`The LoveBookOnline.com and MyLovebook.com domain names are so
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`similar, as is the style and content of their respective websites, that despite conscious
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`efforts made to distinguish between them, they cause confusion and dilute LoveBook’s
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`mark, which was in place long before Mylovebook was in existence.
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`27. For the reasons shown above, Mylovebook has continued use and
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`placement of its substantially similar mark and domain name, as well as the content, style
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`and services it provides, will cause substantial consumer confusion, and in turn, will
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`cause LoveBook irreparable economic harm.
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`
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`COUNT I – TRADEMARK INFRINGEMENT
`15 U.S.C. § 1114 – (Section 32 of the Lanham Trademark Act)
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`28.
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`Plaintiff LoveBook repeats and re-alleges all allegations of the Complaint
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`as if fully restated herein.
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`Lovebook/MyLovebook SNR-RB
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`Page | 7
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`29.
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`At all times relevant hereto, Plaintiff LoveBook has been the exclusive
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`owner of rights in the trademarks “LoveBook Online” and “LoveBook ONLINE.COM
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`You’ve Just Been Loved,” both of which are valid and subsisting. Plaintiff has also filed
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`applications to register these marks with the USPTO; specifically, the following United
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`States trademark applications: Serial number 85/131970 and Serial number 85/131952.
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`See Exhibit A.
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`30.
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`Through continued, extensive use and advertising, the LoveBook mark has
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`become exclusively identified with LoveBook, LLC.
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`31. Mylovebook.com has infringed on LoveBook’s mark in interstate
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`commerce by various acts, including the promotion and marketing of its own imitation
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`‘love book’ where customers use an authoring system to create and purchase gift books
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`featuring customized declarations of love and appreciation with accompanying graphics.
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`Mylovebook.com wrongfully used and continues to use a mark substantially similar to
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`the LoveBook Marks and/or other words, terms, names, symbols, or devices, in
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`commerce, in connection with its goods and services.
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`32.
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`Such use is without permission or authority of LoveBook and is likely to
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`cause and has already caused confusion, to cause mistake, and to deceive as to the
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`affiliation, connection, or association of Mylovebook.com with LoveBook
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`ONLINE.COM, or as to the origin, sponsorship, or approval of Mylovebook’s goods,
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`services, or commercial activities, by LoveBook, LLC.
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`33. Mylovebook’s violation of LoveBook’s rights in the trademarks
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`“LoveBook Online” and “LoveBook ONLINE.COM” is knowing, willful, deliberate,
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`Lovebook/MyLovebook SNR-RB
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`Page | 8
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`fraudulent, and intentional, and was made with the knowledge that such violation would
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`damage LoveBook and its trademarks.
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`34.
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`As a direct result of Mylovebook’s violations, as aforesaid, LoveBook has
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`suffered substantial harm including, but not limited to, irreparable harm which cannot be
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`remedied unless Mylovebook is enjoined from use of the trademarks.
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`WHEREFORE, Plaintiff prays that this Honorable Court issue judgment in favor
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`of LoveBook, providing as follows:
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`(a)
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`That Mylovebook, Inc., their partners, directors and officers, agents,
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`servants, employees, and all other persons in active concert or privity or in participation
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`with Mylovebook, Inc. be preliminarily and permanently enjoined from directly or
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`indirectly using the LoveBook Marks or any other trademark of Plaintiff or any colorable
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`imitation or variant thereof, as part of any trademark, service mark or trade name, or in
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`such a way as to be likely to cause confusion, mistake, or to deceive as to the affiliation,
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`connection, or association of Mylovebook, Inc. with LoveBook, LLC or as to the origin,
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`sponsorship, or approval of Mylovebook’s goods, services, or commercial activities, by
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`Mylovebook, Inc. enjoining specifically, but not limited to, Mylovebook’s use of “Love
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`book” or variants thereof.
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`(b)
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`That Defendants be preliminarily and permanently required to cease the
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`use of the domain name Mylovebook.com, and to immediately shut down and disable the
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`website accessed via said domain name, and to transfer said domain name to LoveBook,
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`LLC;
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`Lovebook/MyLovebook SNR-RB
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`Page | 9
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`(c)
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`That Defendants be required to account to Plaintiff for all income and
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`benefits received by Defendants from the use of Plaintiff’s trademark, or colorable
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`imitation thereof, and that Defendants be required to disgorge all such income;
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`(d)
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`That Defendants be required to deliver to Plaintiff, at Defendants’ sole
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`expense, any and all goods or products that use or bear any trademark of Plaintiff’s, or
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`any colorable imitation thereof;
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`(e)
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`That Defendants be required to withdraw with prejudice their federal
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`Opposition Action, No. 91199132.
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`(f)
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`That Defendants pay Plaintiff all damages available under the Lanham
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`Trademark Act, including treble damages suffered by Plaintiff as a result of Defendants’
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`violations of Plaintiff’s rights under 15 U.S.C. § 1114, as aforesaid;
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`(g)
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`That Defendants pay Plaintiff attorney fees, and all other damages
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`available for violation of the Lanham Act, 15 U.S.C. §§ 1051, et seq.; and
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`(h) Granting Plaintiff such other relief as this Honorable Court deems just.
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`
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`COUNT II – FALSE DESIGNATION OF ORIGIN
`15 U.S.C. § 1125 – (Section 43 of the Lanham Trademark Act)
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`35.
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`Plaintiff LoveBook repeats and re-alleges all allegations of the Complaint
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`as if fully set forth herein.
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`36.
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` Through continued and extensive use and advertising, the LoveBook
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`Marks have become exclusively identified with Plaintiff LoveBook, LLC.
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`37.
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`Defendants have wrongfully used and continue to use the LoveBook
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`Marks and/or other confusingly similar words, terms, names, symbols, or devices, in
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`commerce, in connection with their goods and services.
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`Lovebook/MyLovebook SNR-RB
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`Page | 10
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`38.
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`Such use is likely to cause and has already caused confusion, or to cause
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`mistake, or to deceive as to the affiliation, connection, or association of Defendants with
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`Plaintiff LoveBook, LLC, or as to the origin, sponsorship, or approval of Defendants’
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`goods, services, or commercial activities, by Plaintiff LoveBook, LLC.
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`39.
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`Defendants’ violation of Plaintiff’s rights in the LoveBook Marks is
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`knowing, willful, deliberate, fraudulent, and intentional, and was made with the
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`knowledge that such violation would damage Plaintiff and the trademark.
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`40.
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`As a direct result of Defendants’ violations, as aforesaid, Plaintiff has
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`suffered substantial harm including, but not limited to, irreparable harm that cannot be
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`remedied unless Defendants are enjoined from use of the trademarks.
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`WHEREFORE, Plaintiff prays that this Honorable Court issue judgment in favor
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`of LoveBook, providing as follows:
`
`(a)
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`That Mylovebook, Inc., their partners, directors and officers, agents,
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`servants, employees, and all other persons in active concert or privity or in participation
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`with Mylovebook, Inc. be preliminarily and permanently enjoined from directly or
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`indirectly using the LoveBook Marks or any other trademark of Plaintiff or any colorable
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`imitation or variant thereof, as part of any trademark, service mark or trade name, or in
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`such a way as to be likely to cause confusion, mistake, or to deceive as to the affiliation,
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`connection, or association of Mylovebook, Inc. with LoveBook, LLC or as to the origin,
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`sponsorship, or approval of Mylovebook’s goods, services, or commercial activities, by
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`Mylovebook, Inc. enjoining specifically, but not limited to, Mylovebook’s use of “Love
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`book” or variants thereof.
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`Lovebook/MyLovebook SNR-RB
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`Page | 11
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`(b)
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`That Defendants be preliminarily and permanently required to cease the
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`use of the domain name Mylovebook.com, and to immediately shut down and disable the
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`website accessed via said domain name, and to transfer said domain name to LoveBook,
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`LLC;
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`(c)
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`That Defendants be required to account to Plaintiff for all income and
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`benefits received by Defendants from the use of the LoveBook Marks, or any colorable
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`imitation thereof, and that Defendants be required to disgorge all such income;
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`(d)
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`That Defendants be required to deliver to Plaintiff, at Defendants’ sole
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`expense, any and all goods or products that use or bear any trademark of Plaintiff’s, or
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`any colorable imitation thereof;
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`(e)
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`That Defendants be required to withdraw with prejudice their federal
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`Opposition Action, No. 91199132.
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`(f)
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`That Defendants pay Plaintiff all damages available under the Lanham
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`Trademark Act, including treble damages, suffered by Plaintiff as a result of Defendants’
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`violations of Plaintiff’s rights under 15 U.S.C. § 1125, as aforesaid;
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`(g)
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`That Defendants pay Plaintiff attorney fees, and all other damages
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`available for violation of the Lanham Act, 15 U.S.C. §§ 1051, et seq.; and
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`(h) Granting Plaintiff such other relief as this Honorable Court deems just.
`
`
`COUNT III – UNFAIR TRADE PRACTICES
`M.C.L. § 445.903 (Michigan Consumer Protection Act)
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`Plaintiff LoveBook repeats and re-alleges all allegations of the Complaint
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`41.
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`as though fully set forth herein.
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`Lovebook/MyLovebook SNR-RB
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`Page | 12
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`42.
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`Defendants’ conduct aforesaid has caused a probability of confusion or
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`misunderstanding as to the source, sponsorship, approval, or certification of its goods or
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`services.
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`43.
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`Through its conduct aforesaid, Defendants have represented that its goods
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`or services have sponsorship, approval, or characteristics that they do not have.
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`44.
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`As a direct result of Defendants’ violations, as aforesaid, Plaintiff
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`LoveBook, LLC has suffered substantial harm including, but not limited to, irreparable
`
`harm which cannot be remedied unless Defendants are enjoined from use of the
`
`trademark.
`
`WHEREFORE, Plaintiff prays that this Honorable Court issue judgment in favor
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`of Plaintiff, providing as follows:
`
`(a)
`
`That Defendants, their partners, directors and officers, agents, servants,
`
`employees, and all other persons in active concert or privity or in participation with
`
`Defendants, be enjoined from directly or indirectly using the LoveBook Marks or any
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`trademark of Plaintiff LoveBook, LLC, or any colorable imitation thereof, as a part of
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`any trademark, service mark, or trade name, or in any way likely to cause confusion,
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`mistake, or to deceive as to the affiliation, connection, or association of Defendants with
`
`Plaintiff LoveBook, LLC, or as to the origin, sponsorship, or approval of Defendants’
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`goods, services, or commercial activities, by Plaintiff, enjoining specifically, but not
`
`limited to, Defendants’ use of “LoveBook” in a domain name;
`
`(b)
`
`That Defendants be required to account to Plaintiff for all income and
`
`benefits received by Defendants from the use of the LoveBook Marks, and that
`
`Defendants be required to disgorge all such income;
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 13
`
`
`
`(c)
`
`That Defendants be required to deliver to Plaintiff, at Defendants’ sole
`
`expense, any and all goods or products that use or bear any trademark of Plaintiff’s, or
`
`any colorable imitation thereof;
`
`(d)
`
`That Defendants be required to withdraw with prejudice their Federal
`
`Opposition Action, No. 91199132.
`
` (e)
`
`That Defendants pay Plaintiff all damages suffered by Plaintiff as a result
`
`of Defendants’ violations of Plaintiff’s rights under M.C.L. § 445.903, as aforesaid;
`
`(f)
`
`That Defendants pay Plaintiff attorney fees and all other damages, costs,
`
`and expenses of Plaintiff recoverable for violation of the Michigan Consumer Protection
`
`Act; and
`
`(g) Granting Plaintiff such other relief as this Honorable Court deems just.
`
`
`
`COUNT IV – COMMON LAW UNFAIR COMPETITION
`
`45.
`
`Plaintiff repeats and re-alleges all allegations in the Complaint as though
`
`fully set forth herein.
`
`46.
`
`At all times relevant hereto, Plaintiff has been the exclusive owner of the
`
`LoveBook Marks.
`
`47.
`
`Through continued and extensive use and advertising, the trademark
`
`LoveBook Marks have become exclusively identified with Plaintiff LoveBook, LLC.
`
`48.
`
`Defendants have wrongfully used and continue to wrongfully use the
`
`trademark and/or colorable imitations thereof, in commerce, in connection with the sale,
`
`offering for sale, distribution, or advertising of its goods and services, in violation of
`
`Plaintiff rights under the Michigan common law of unfair competition.
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 14
`
`
`
`49.
`
`Defendants’ conduct aforesaid is likely to cause confusion, or to cause
`
`mistake, or to deceive consumers and the public.
`
`50.
`
`Defendants’ violation of Plaintiff’s rights in the LoveBook Marks is
`
`willful, deliberate, fraudulent, and intentional, and was made with the knowledge that
`
`such violation would damage Plaintiff and the Marks.
`
`51.
`
`As a direct result of Defendants’ violations, as aforesaid, Plaintiff
`
`LoveBook has suffered substantial harm including, but not limited to, irreparable harm
`
`that cannot be remedied unless Defendants are enjoined from use of the service mark.
`
`WHEREFORE, Plaintiff prays that this Honorable Court issue judgment in favor
`
`of Plaintiff, providing as follows:
`
`(a)
`
`That Defendants, their partners, directors and officers, agents, servants,
`
`employees, and all other persons in active concert or privity or in participation with
`
`Defendants, be enjoined from directly or indirectly using the LoveBook Marks or any
`
`trademark of Plaintiff LoveBook, LLC, or any colorable imitation thereof, as a part of
`
`any trademark, service mark, or trade name, or in any way likely to cause confusion,
`
`mistake, or to deceive as to the affiliation, connection, or association of Defendants with
`
`Plaintiff LoveBook, LLC, or as to the origin, sponsorship, or approval of Defendants’
`
`goods, services, or commercial activities, by Plaintiff, enjoining specifically, but not
`
`limited to, Defendants’ use of “LoveBook” in a domain name;
`
`(b)
`
`That Defendants be required to account to Plaintiff for all income and
`
`benefits received by Defendants from the use of Plaintiff’s trademark, and that
`
`Defendants be required to disgorge all such income;
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 15
`
`
`
` (c)
`
`That Defendants be required to withdraw with prejudice their Federal
`
`Opposition Action, No. 91199132.
`
`(d)
`
`That Defendants pay Plaintiff all damages suffered by Plaintiff as a result
`
`of Defendants’ violations of Plaintiff’s rights under the Michigan common law of unfair
`
`competition;
`
`(e)
`
`That Defendants pay Plaintiff attorney fees, and all other damages
`
`available for violation of the Michigan common law of unfair competition; and
`
`(f)
`
`Granting Plaintiff such other relief as this Honorable Court deems just.
`
`
`
`COUNT V – INFRINGEMENT OF COMMON LAW TRADEMARKS
`
`52.
`
`Plaintiff repeats and re-alleges all allegations in the Complaint as though
`
`fully set forth herein.
`
`
`
`53.
`
`Since late February 2008, LoveBook, LLC has been the owner of common
`
`law trademark rights in the LoveBook Marks.
`
`54.
`
`LoveBookonline.com allows customers use LoveBook’s proprietary
`
`authoring system to create and purchase gift books featuring customized declarations of
`
`love and appreciation with accompanying graphics. LoveBook has been marketing said
`
`books in interstate commerce on a national basis since approximately February 28, 2008.
`
`55.
`
`Plaintiff’s “LoveBooks” have been sold continuously, and continue to be
`
`sold, throughout the United States and internationally in numerous foreign countries.
`
`
`
`56.
`
`Through its continuous use of the LoveBook Marks Plaintiff has
`
`established common law rights in the Marks for gift books featuring customized
`
`declarations of love and appreciation with accompanying graphics.
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 16
`
`
`
`57.
`
`Defendants have infringed Plaintiff’s mark in interstate commerce by
`
`various acts, including the promotion and marketing Love Books. Defendant wrongfully
`
`used and continues to use a mark substantially similar to the LoveBook Marks and/or
`
`other words, terms, names, symbols, or devices, in commerce, in connection with its
`
`goods and services.
`
`58.
`
`Such use is without permission or authority of Plaintiff and is likely to
`
`cause and has already caused confusion, to cause mistake, and to deceive as to the
`
`affiliation, connection, or association of Defendants with Plaintiff LoveBook, LLC, or as
`
`to the origin, sponsorship, or approval of Defendants’ goods, services, or commercial
`
`activities, by Plaintiff LoveBook, LLC.
`
`59.
`
`Defendants’ violation of Plaintiff’s rights in the LoveBook Marks is
`
`knowing, willful, deliberate, fraudulent, and intentional, and was made with the
`
`knowledge that such violation would damage Plaintiff and the Marks.
`
`60.
`
`As a direct result of Defendants’ violations, as aforesaid, Plaintiff
`
`LoveBook, LLC has suffered substantial harm including, but not limited to, irreparable
`
`harm that cannot be remedied unless Defendants are enjoined from use of the LoveBook
`
`Marks.
`
`WHEREFORE, Plaintiff prays that this Honorable Court issue judgment in favor
`
`of Plaintiff, providing as follows:
`
`(a)
`
` That Defendants, their partners, directors and officers, agents, servants,
`
`employees, and all other persons in active concert or privity or in participation with
`
`Defendants, be enjoined from directly or indirectly using the LoveBook Marks or any
`
`trademark of Plaintiff LoveBook, LLC, or any colorable imitation thereof, as a part of
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 17
`
`
`
`any trademark, service mark, or trade name, or in any way likely to cause confusion,
`
`mistake, or to deceive as to the affiliation, connection, or association of Defendants with
`
`Plaintiff LoveBook, LLC, or as to the origin, sponsorship, or approval of Defendants’
`
`goods, services, or commercial activities, by Plaintiff, enjoining specifically, but not
`
`limited to, Defendants’ use of “LoveBook” in a domain name;
`
`(b)
`
`That Defendants be preliminarily and permanently required to cease the
`
`use of the domain name Mylovebook.com, and to immediately shut down the website
`
`accessed via said domain name, and to transfer said domain name to LoveBook, LLC.
`
`(c)
`
`That Defendants be required to account to Plaintiff for all income and
`
`benefits received by Defendants from the use of the LoveBook Marks, and that
`
`Defendants be required to disgorge all such income;
`
` (c)
`
`That Defendants be required to withdraw with prejudice their federal
`
`notice of opposition, Serial No. 91199132.
`
`(d)
`
`That Defendants pay Plaintiff all damages suffered by Plaintiff as a result
`
`of Defendants’ violations of Plaintiff’s rights under the Michigan common law for
`
`infringement on common law trademark;
`
`(e)
`
`That Defendants pay Plaintiff attorney fees, and all other damages
`
`available for violation of the Michigan common law of unfair competition; and
`
`(f)
`
`Granting Plaintiff such other relief as this Honorable Court deems just.
`
`
`
`
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 18
`
`
`
`DEMAND FOR TRIAL BY JURY
`
`Plaintiff LoveBook, LLC demands a trial by jury of all issues triable to a jury.
`
`Respectfully Submitted,
`
`By: /s/ Russell D. Brown
`Russell D. Brown (P60583)
`R.D. BROWN, PLC
`543 Marlpool Drive
`Saline, Michigan 48176
`(734) 604-1522 office
`(734) 944-3169 facsimile
`rdbrown@rdbrownlaw.com
`
`and
`
`
`
`
`
`By: /s/ Steven N. Rich
`Steven N. Rich (P67025)
`Of Counsel, DAWID & GATTI PLLC
`214 South Main Street, Suite 204
`Ann Arbor, Michigan 48104
`(734) 904-5732 office
`(734) 761-1114 facsimile
` steve@steverichlaw.com
`
`Attorneys for Plaintiff
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Date: December 30, 2011
`
`Lovebook/MyLovebook SNR-RB
`
`Page | 19
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