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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 1 of 17
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Paul D. Ticen (AZ Bar #024788)
McFADDEN TICEN & BEAM PLC
3100 West Ray Road, Suite 201
Chandler, Arizona 85226
Tel: 480-646-9382
Fax: (480) 999-5626
[email protected]
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Attorney for Plaintiff
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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LYTLE RACING GROUP, L.L.C., an
Arizona limited liability company,
Case No.: ____________________
Plaintiff,
COMPLAINT
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v.
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C.V. SNB-REACT ua d/b/a REACT, a
Dutch limited partnership and cooperative
association; JOHN AND JANE DOES I-x; ;
ABC PARTNERSHIPS I-X; DEF BLACK
& WHITE LIMITED LIABILITY
COMPANIES I-X; AND XYZ
CORPORATIONS I-X,
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Defendants.
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Plaintiff Lytle Racing Group, L.L.C. ("LRG" or Plaintiff), through undersigned
counsel, alleges as follows:
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NATURE OF THE ACTION
1.
This action seeks claims for relief against Defendant C.V. SNB-React ua
("SNB-React" or Defendant) for asserting false statements through four separate Notice
of Claimed Infringement forms submitted to eBay, Inc. that approximately two-dozen of
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LRG's listings were counterfeit goods, and by implication, that LRG is a counterfeiter.
The claims for relief include (1) declaratory judgment that LRG's listings are not
counterfeit goods nor otherwise constitute trademark infringement, (2) tortious
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 2 of 17
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interference with contractual relations and/or expectancy, (3) defamation and (4)
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injurious falsehood.
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THE PARTIES
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2.
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State of Arizona.
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3.
LRG is a limited liability company organized and operating out of the
On information and belief, Defendant SNB-React is a Dutch limited
partnership and cooperative association headquartered in Amsterdam, the Netherlands,
operating from different locations throughout several countries.
4.
LRG has not ascertained the true names and capacities of defendants
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JOHN AND JANE DOES I-x; ; ABC PARTNERSHIPS I-X; DEF BLACK & WHITE
LIMITED LIABILITY COMPANIES I-X; AND XYZ CORPORATIONS I-X,
will amend this complaint and allege the true names of these fictitious defendants if and
when they are ascertained.
JURISDICTION
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LRG
5.
This Court has jurisdiction over this action under 28 U.S.C §§ 1331, 1338
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and 2201because it is an action arising under the laws of the United States, namely,
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whether LRG's sale of particular goods on eBay are counterfeit and/or otherwise
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constitute trademark infringement, and therefore violate 15 USC §§ 1114 and/or 1125.
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6.
Further, this Court has jurisdiction over this action under 28 U.S.C. § 1332
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because diversity of citizenship exists and the matter in controversy exceeds the sum of
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$75,000. LRG is both organized in and operates out of the State of Arizona. Defendant
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is foreign business entity formed in the Netherlands, and does not have a principal place
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of business in the State of Arizona.
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7.
This Court has supplemental jurisdiction over Plaintiff's state and common
law claims under 28 U.S.C. § 1367 because these claims share a common nucleus of
operative facts giving rise to LRG's federal claims.
8.
This Court has specific personal jurisdiction over Defendant who
purposely directed its commercial activities toward the state of Arizona by making false
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and injurious statements to eBay through the Notice of Claim Form that an Arizona
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business was engaging in selling counterfeit goods and/or otherwise trademark
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infringement on eBay's e-commerce platform, which resulted in eBay deactivating and
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removing approximately two dozen listings, temporarily restricting LRG's seller account
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for seven days and putting LRG at risk of having its selling privileges suspended and/or
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terminated by eBay. This action is based upon activities that arise out of or relate to
these contacts.
9.
This Court has general personal jurisdiction over Defendant, whose
contacts with the United States of America and Arizona are substantial, continuous, and
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systematic based on its representation of numerous iconic American brands, including,
Apple, Inc., Harley-Davidson, Inc. and Jack Daniel's Properties, Inc. that have a
significant Arizona presence, and engaging in enforcement activities on United States
based e-commerce platforms that have a significant Arizona presence, including eBay,
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Amazon and Etsy, with said enforcement activities purposely directed at other similarly
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situated United States and Arizona based sellers.
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10.
Venue is proper in this judicial district pursuant to 28 U.S.C §1391(b)
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since a substantial part of the events or omissions giving rise to the claim occurred in
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Arizona and/or a substantial part of property that is the subject of the action is situated in
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Arizona, namely, that LRG's listings on eBay occurred from and/or the purported
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counterfeit and/or infringing goods sold by LRG were located in Arizona. Alternatively,
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if there is no district in which this action may otherwise be brought , this judicial district
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is a proper venue on the basis that Defendant is subject to personal jurisdiction in
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Arizona as set forth in ¶¶ 8 and 9.
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GENERAL ALLEGATIONS
LRG Background
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LRG is an online retail seller of aftermarket parts, accessories, and riding
gear for motorcycles, all-terrain vehicles, utility terrain vehicles and snowmobiles.
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LRG
operates
an
online
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retail
store
from
its
website
Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 4 of 17
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(http://www.lytleracinggroup.com) and through store fronts on e-commerce platforms
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through eBay1 and Amazon 2.
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eBay is a California corporation that operates an enormous e-commerce
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platform in the United States, on information and belief, one or more servers located in
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the United States.
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LRG has sold items on eBay since October 2002, and from this date
through the present, has built an enormous presence through resource expenditure, hard
work and exemplar customer service.
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LRG lists in excess of 130,000 items for sale through its eBay store front.
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The vast majority of these items are located at and shipped to customers from LRG's
warehouse located in Tempe, Arizona. (See Exhibit A attached hereto).
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to its website and its Amazon store front.
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The majority of LRG's sales occurs through its eBay store-front compared
LRG has received in excess of 150,000 reviews on eBay with a 99.7%
positive feedback rating over the past 12 months based on 30,000 plus reviews.
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LRG, as an online retailer, seeks and obtains licenses and/or other
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agreements for permission to sell third party manufactured items that contain the
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manufacturer's brand and/or third party brands in the motorcycle, all-terrain vehicles,
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utility terrain vehicles and snowmobile industries.
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19.
In January 2007, LRG became an authorized dealer/distributor of goods
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manufactured by Factory Effex, Inc.
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thereto, attached as Exhibit B hereto).
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(See Affidavit of Chuck Kober and exhibits
Factory Effex is a California corporation that manufactures, advertises and
sells motorcross graphics, apparel and accessories pursuant to different licensing
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(http://stores.ebay.com/Lytle-Racing-Group)
http://www.amazon.com/gp/node/index.html?ie=UTF8&marketplaceID=ATVPDKIKX0DER&me=
A13A8IYIE73YJE&merchant=A13A8IYIE73YJE&redirect=true
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 5 of 17
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agreements with several iconic brands in the motorcross industry, such as Honda,
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Yamaha, Suzuki and Kawasaki. (Id.).
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SNB-React Background
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React, is actively involved in fighting the "global trade in counterfeit goods," and claims
to have experience in dealing with "almost all areas of infringing goods."
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On information and belief, SNB-React, operating under the trade name
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from
SNB-React's members are well known brands spanning industries ranging
fashion,
electronics,
pharmaceuticals,
automotive
and
sports,
totaling
approximately 190 different brands according to its website.
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SNB-React's members include well-known American brands such as
Apple, Inc., Harley-Davidson, Inc., Jack Daniel's Properties, Inc., and the European
subsidiaries of Japanese automotive giants Kawasaki, Honda and Yamaha.
24.
On behalf of these member brand owners, SNB-React engages in
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"worldwide Internet monitoring" in its fight to eradicate counterfeit goods being
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trafficked on the Internet.
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25.
In 2013, SNB-React claims on its website that it undertook 34,144 cases,
seized 13,726,987 goods, closed 588,057 online auctions and took down 8,524 websites.
26.
As part of SNB-React's anti-counterfeiting efforts, SNB-React is part of
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eBay's VeRO (Verified Rights Owner) Program, which is designed to protect brand
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owners and consumers from the sale and purchase of counterfeit goods and/or goods that
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otherwise infringe upon the intellectual property rights of brand owners.
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eBay and the VeRo Program
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eBay’s VeRO program enables brand owners, or those acting on their
behalf like SNB-React, to proactively identify counterfeit and/or infringing listings and
for eBay to expeditiously remove same.
28.
In reporting a listing to eBay, brand owners or their agents, submit a
Notice of Claimed Infringement form under a good faith belief that contains:
a.
a physical or electronic signature of the person authorized to act on
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 6 of 17
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behalf of the brand owner;
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b.
claimed to have been infringed;
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c.
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eBay is located;
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identification or description of where the infringing material on
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the complaining party’s address, telephone number and e-mail
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A statement that there is a good faith belief that the use of the
address;
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identification or description of the intellectual property that is
material complained of is not authorized by the intellectual property owner, its agent or
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the law
f.
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A statement, made under the penalty of perjury, that the
information in the notice is accurate and the complaint party is authorized to act on the
intellectual property owner’s behalf.
(See Exhibit C hereto)
29.
eBay provides brand owners and/or their agents with the Notice of
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Claimed Infringement form, that among other things, has a section and reason code to
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identify why the listing infringes upon intellectual property. (Id.).
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30.
These reason codes include: 1.1 when a listing involves a counterfeit
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product infringing upon a trademark and 1.2 when a listing contains an unlawful use of
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trademark. (Id.).
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31.
On information and belief, eBay defers to brand owner or their agent to
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proactively identify and seek removal of infringing listings because eBay is not in the
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business of adjudicating intellectual property disputes and the VeRo program is
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undoubtedly a mechanism by which eBay successfully avoids liability for claims of
secondary infringement brought by aggressive brand owners.
32.
On information and belief, eBay disables and removes identified listing(s)
upon receipt of a Notice of Claimed Infringement and any and all listings remain
disabled and removed from sale indefinitely unless the complaining party withdraws the
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complaint and permits the seller to maintain the listing and/or a judicial determination
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that one or more of the listings are not counterfeit and/or do not otherwise violate the
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brand owner's trademark rights.
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33.
Unlike 17 U.S.C. § 512(g) of the Digital Millennium Copyright Act, the
Lanham Act does not contain a parallel mechanism for a seller to submit a counternotification to eBay that enables eBay to restore the listing while avoiding potential
liability through a statutory safe harbor.
34.
Because of eBay's deference, desire to avoid liability and no safe harbor
under the Lanham Act, a retail seller like LRG is at a significant disadvantage when
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facing any claim, including unmeritorious claims, brought by a brand owner and/or their
agent that one or more listings are counterfeit or otherwise infringes upon the brand
owner's trademark.
35.
In addition to a seller's listings being deactivated and removed by eBay, a
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seller's account may be temporarily restricted or suspended, and is at risk of having his,
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her or its selling privileges on eBay terminated if deemed a repeat infringer and/or
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offender.
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36.
On information and belief, while eBay takes all instances of infringement
seriously, claims of counterfeit goods are taken as the most serious.
37.
eBay has a dedicated web page explaining the dangers of counterfeit goods
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to its e-commerce platform and what eBay does to prevent counterfeit listings from
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appearing on same. (See Exhibit D attached hereto).
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SNB-React's Notices of Claimed Infringement Against LRG
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38.
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On or about August 29, 2014, LRG received notification from eBay that
two listings:
231317490367 - D'COR Kawasaki Sticker Sheet
390918993048 - D'COR Team Monster Energy Kawasaki Decal Sticker
Sheet
had been identified by SNB-React as counterfeit and that eBay removed these listings.
(See Exhibit E attached hereto)
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 8 of 17
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39.
eBay's August 29th notification reflected that SNB-React was acting on
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behalf of Kawasaki Motors Europe N.V. and that it could be contacted at
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[email protected].
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40.
Notably, SNB-React sent the notification to eBay on the Friday before
Labor Day Weekend, a busy shopping weekend.
41.
On information and belief the Kawasaki mark is owned by Kawasaki
Heavy Industries, Ltd., an entity incorporated in Japan, and the parent company to
subsidiaries operating world-wide.
42.
These subsidiaries include Kawasaki Motor Europe, N.V. and Kawasaki
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Motors Corp., U.S.A.
43.
On information and belief, Kawasaki Heavy Industries, Ltd., licenses to its
subsidiaries the right to use the Kawasaki mark in connection with goods and services,
as well as sublicense the rights to third parties.
44.
D'Cor is a manufacturer and distributor of premium motorcross graphics,
and on information and belief, an official sponsor of Team Monster Energy Kawasaki.
45.
On information and belief, D'Cor is a sub-licensee of Kawasaki Motors
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Corp, U.S.A. to manufacture and sell graphics bearing the Kawasaki mark, including
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those that co-brand with Monster Energy, as well as the right to further sublicense the
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rights to sell D'Cor manufactured graphics to retail sellers like LRG.
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46.
Prior to August 29, 2014, LRG entered into an agreement with D'Cor to
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become an authorized retailer of D'Cor manufactured graphics, including those stickers
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identified in ¶ 39.
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47.
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On August 29th, LRG e-mailed SNB-React at [email protected]
inquiring about the problem with the listings and that D'Cor is an officially licensed
Kawasaki manufacturer. (See Exhibit F attached hereto).
48.
On September 12, 2014, SNB-React replied to LRG with a canned
response that the listings were an "unlawful replica" of a product made by Kawasaki,
and it was "confirmed by a Kawasaki expert that your item(s) [were] counterfeit." (Id.).
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49.
LRG responded that SNB-Reacts statement was incorrect and reiterated
that D'Cor was an authorized Kawasaki graphics manufacturer. (Id.).
50.
Between October 2002 and August 29, 2014, LRG had never been the
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target of an eBay Notice of Claimed Infringement form claiming that LRG was selling
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counterfeit goods.
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51.
On or about November 6, 2014, LRG received notification from eBay that
three listings:
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23133166372 - Factory Effex 3' Die-Cut Sticker;
231331663353 - Factory Effex Dealer 5 Pack Sticker;
351169745123 - Factory Effex 1' Die-Cut Sticker;
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had been identified by SNB-React as counterfeit and that eBay removed these listings.
(See Exhibit G attached hereto).
52.
that eight listings:
231342115767 -Factory Effex Licensed Kawasaki Ninja Wrap T-Shirt
Black;
231390323531 -Factory Effex Licensed Kawasaki Ninja Long Sleeve TShirt Black;
231390323554 -Factory Effex Licensed Kawasaki Racing T-Shirt Black;
231390323681 -Factory Effex Licensed Kawasaki Racing Baseball TShirt Gray/Black;
351224496513 -Factory Effex Licensed Kawasaki KX Vintage Baseball
T-Shirt White/Black MD;
390974382733 - Factory Effex Licensed Kawasaki Racing T-Shirt White;
390974382794 - Factory Effex Licensed Kawasaki KXF T-Shirt
White/Black MD-2XL;
390974382829 - Factory Effex Licensed Kawasaki Performance Dri-Core
T-Shirt Black MD-2XL;
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On or about November 28, 2014, LRG received notification from eBay
had been identified by SNB-React as counterfeit and that eBay removed these listings
(See Exhibit H attached hereto)
53.
eBay's November 6th and November 28th notifications reflected that
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SNB-React was acting on behalf of Kawasaki Motors Europe N.V. and that it could be
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contacted at [email protected].
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54.
Notably, SNB-React sent the notification to eBay on or around the day
after Thanksgiving, one of the busiest shopping days of the year and three days before
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Cyber Monday (December 1st).
55.
On November 28, LRG emailed SNB-React at [email protected]
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demanding that SNB-React immediately advise why these listings are a problem and
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that LRG has an agreement with Factory Effex to sell these items. SNB-React failed to
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respond. (See Exhibit I attached hereto).
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56.
On December 4, 2014, LRG (through undersigned counsel) e-mailed a
letter with the Chuck Kober Affidavit (Exhibit B hereto) to SNB-React demanding that
SNB-React immediately withdraw the August 28, November 6 and November 28th
Notices of Claimed Infringement, but under no circumstances later than December 10,
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2014. (See Exhibit J attached hereto).
57.
The December 4th letter advised (again) SNB-React that these items were
not counterfeit and were sold lawfully pursuant to an agreement with Factory Effex.
(See Exhibits B and J).
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58.
SNB-React ignored the letter and did not withdraw the three notices.
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59.
On or about December 24, 2014, LRG received another notification from
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eBay that thirteen listings:
231044418510 -Factory Effex Universal Fork/Swing Arm Stickers Fits
KYB/Black;
231044565562 -Factory Effex Universal Fork/Swing Arm Stickers Fits
Kawasaki/Black;
231044698024 -Factory Effex Universal Fork/Swing Arm Stickers Fits
Honda / White;
231070944301- Factory Effex Universal 13"X19" Sticker Sheet Fits
Yamaha YZ YZF;
231106278820 - Factory Effex Swingarm Sticker Fits YZ/WR 250F/450F
09-14;
231148341507 - Factory Effex Universal Fork/Swing Arm Stickers Fits
WP Suspension;
350865971186 - Factory Effex Universal Fork/Swing Arm Stickers Fits
Dunlop/Yellow;
350866160660 - Factory Effex Universal Fork/Swing Arm Stickers Fits
Yamaha/Black;
350866312114 - Factory Effex Universal Fork/Swing Arm Stickers Fits
Kawasaki/White;
350866425667 - Factory Effex Universal Fork/Swing Arm Stickers Fits
Honda/Red;
350866544817 - Factory Effex Universal Fork/Swing Arm Stickers Fits
Dunlop/White;
390652503872 - Factory Effex Universal Fork/Swing Arm Stickers Fits
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Showa/Flo Red;
390930369082 - Factory Effex 5' Die-Cut Sticker;
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had been identified by SNB-React as counterfeit and that eBay removed these listings
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(See Exhibit K attached hereto)
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60.
eBay's December 24th notification reflected that SNB-React was acting on
behalf of Yamaha Motors Europe, N.V. and that it could be contacted at
[email protected].
61.
Notably, SNB-React sent the notification to eBay the day before
Christmas, and two days before another busy shopping period.
62.
On information and belief the Yamaha mark is owned by the Yamaha
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Corporation, an entity incorporated in Japan, and the parent company to subsidiaries
operating world-wide.
63.
These subsidiaries include Yamaha Motors Europe, N.V. and Yamaha
Motor Corp., U.S.A.
64.
On information and belief, Yamaha Corporation licenses to its subsidiaries
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the right to use the Yamaha mark in connection with goods and services, as well as sub-
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license the rights to third parties.
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65.
After the December 6th notification, eBay temporarily restricted LRG's
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account, which included prohibiting the listing of new items for 7 days and updating
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inventory amounts, and a warning that additional violations could result in LRG's
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account being suspended. (See Exhibit L attached hereto).
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66.
On a daily basis, LRG averages between 200 and 500 new listings on its
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eBay store front, some of which are time sensitive and involve a short window to begin
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selling (e.g. commemorative memoribilia).
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67.
Further, if LRG runs out of inventory for a particular product, it is
prevented from updating any new inventory that it receives from manufacturers, and is
therefore precluded from selling these items during the restricted time period.
68.
LRG has two full-time salaried professionals dedicated to listing new
items on eBay.
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69.
By being restricted from listing new items, LRG's search rankings for
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newly listed items, especially those that are time sensitive and involve short windows to
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begin selling, are likely to be negatively impacted.
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70.
LRG's listings identified in ¶¶ 38, 51, 52 and 59 currently remain
deactivated.
FIRST CLAIM FOR RELIEF
(Declaration of Non-Infringement under 15 USC §§ 1114 and 1125
re LRG's Listings on eBay)
71.
All of the allegations contained within the paragraphs above and below are
hereby incorporated by reference as if fully set out herein.
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72.
SNB-React submitted four separate Notice of Claimed Infringement forms
to eBay through eBay's VeRO program stating that LRG's listings identified in ¶¶ 38,
51, 52 and 59 infringe upon SNB-React's clients trademark because these listings are
counterfeit.
73.
eBay deactivated and removed these listings from LRG's store front as a
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result of SNB-React's actions and assertions, and has penalized LRG's account by
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temporarily restricting same and placing LRG at risk of suspension and/or termination
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due to being deemed a counterfeiter and/or repeat offender.
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74.
Therefore a real and actual controversy between LRG and SNB-React
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exists whether LRG's listings are counterfeit goods and/or otherwise infringe upon SNB-
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React's clients' trademarks.
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75.
LRG asserts that it sells these listings, goods manufactured by third-parties
Factory Effex and D'Cor, pursuant to valid agreements with these third parties.
76.
Further, Factory Effex and D'Cor manufacture graphics and other goods
bearing one or more of the Honda, Yamaha, Suzuki and Kawasaki marks through valid
license agreements with their American subsidiaries and/or the American subsidiaries'
respective licensing agencies, and lawfully sub-licensed the right to sell these licensed
goods to retail sellers like LRG.
77.
Pursuant to 28 U.S.C. § 2201, LRG requests that this Court enter a
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Declaratory Judgment that LRG's listings as set forth in ¶¶ 38, 51, 52 and 59 are not
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counterfeit and/or do not otherwise constitute trademark infringement under 15 USC §§
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1114 and/or 1125, to permit eBay to reactivate the listings and allow LRG to sell these
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items through LRG's store front to eBay customers without further interference by SNB-
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React moving forward.
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78.
LRG seeks a permanent injunction to prevent SNB-React from sending
unjustified Notice of Claim Forms in the future labeling LRG as a counterfeiter and that
its retail items are counterfeit goods, to avoid future irreparable injury and tarnishment
to LRG's business reputation and goodwill with eBay.
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79.
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Pursuant to 15 U.S.C. § 1117(a)(3), LRG seeks an award of its attorneys'
fees on the basis this is an exceptional case because SNB-React knew and/or
deliberately ignored the fact that LRG's listed items were not counterfeit but rather sold
pursuant to valid agreements with third party manufactures who are licensees of the
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Honda, Yamaha, Suzuki and Kawasaki marks, before SNB-React submitted one or more
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of the four separate Notice of Claimed Infringement forms to eBay that falsely claim
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that LRG's listings are counterfeit products, and by implication, that LRG is a
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counterfeiter.
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SECOND CLAIM FOR RELIEF
(Intentional Interference with Contractual Relations and/or Expectancy)
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hereby incorporated by reference as if fully set out herein.
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All of the allegations contained within the paragraphs above and below are
81.
LRG has had an ongoing business relationship with eBay since October
82.
LRG also has a reasonable expectation of future business relationships
2002.
with eBay and eBay's customers looking to purchase LRG's listed products
manufactured by Factory Effex and D'Cor, who are reasonably likely to be influenced to
purchase from LRG's strong front based on LRG's long-standing presence on eBay,
exceptional customer service and/or high page rankings and visibility for many of the
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listed products.
83.
At all materials times, SNB-React was aware of LRG's existing
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contractual relationship and continued contractual expectancy with eBay giving LRG the
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privilege to list and sell items through LRG's store front on eBay's enormous e-
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commerce platform, and that SNB-React was aware that LRG had a long-standing and
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well established presence in selling listed items to eBay customers.
84.
SNB-React engaged in a course of conduct by repeatedly submitting
Notice of Claim forms to eBay that falsely assert that LRG's listings of Factory Effex
and D'Cor items were counterfeit while coupled with the knowledge that eBay's VeRO
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program defers to brand owners (or their agents) in claims of infringement, eBay's
policy re counterfeit goods and that eBay will not reactive listings unless the brand
owner (or their agent) withdraws the complaint and permits a seller like LRG to sell the
deactivated listing.
85.
SNB-React's course of conduct that targeted LRG was undertaken for the
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purpose of preventing LRG from listing and selling the Factory Effex and D'Cor items
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through its eBay store front to eBay customers, restricting LRG's privilege to sell on
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eBay and subjecting LRG to risk of being suspended and/or terminated by eBay.
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86.
As described herein, SNB-React intentionally and/or purposefully
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interfered with LRG's existing and prospective relationships by undertaking this course
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of conduct as described in this Complaint.
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87.
As a direct and proximate result of SNB-React's intentional acts, LRG has
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sustained and will continue sustaining immediate and irreparable harm and injury
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including damage to reputation, loss of good will, loss profits and loss of competitive
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business advantage, opportunity and/or expectancy.
88.
LRG has suffered general and special damages in an amount to be proven
at trial.
89.
LRG seeks a permanent injunction to prevent SNB-React from sending
unjustified Notice of Claim Forms in the future labeling LRG as a counterfeiter and that
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 15 of 17
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its retail items are counterfeit goods, to avoid future irreparable injury and tarnishment
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to LRG's business reputation and good will with eBay.
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90.
SNB-React's conduct was and continues to be intentional, deliberate,
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willful, malicious, fraudulent, oppressive and done in a reckless disregard of LRG's
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rights with the intent to substantially injure LRG, and other similarly situated seller.
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91.
For such intentional, deliberate, willful, malicious, fraudulent, oppressive
acts, LRG hereby seeks exemplary damages in addition to its actual damages.
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THIRD CLAIM FOR RELIEF
(Defamation and Defamation Per Se)
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92.
All of the allegations contained within the paragraphs above and below are
hereby incorporated by reference as if fully set out herein.
93.
SNB-React made and published four or more separate false statements to
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eBay through the Notice of Claimed Infringement form, and in any and all
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communication with eBay related thereto, that LRG is a counterfeiter selling counterfeit
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items on eBay's e-commerce platform.
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94.
SNB-React acted negligently, and/or with knowledge and/or with a
reckless disregard as to the falsity of the aforementioned statements, especially after
having been provided with information and evidence that these listings were not
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counterfeit, but rather being lawfully sold pursuant to agreements with Factory Effex
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and D'Cor.
95.
SNB-React's false statements constitute defamation per se, and general
damages are presumed as a matter of law
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96.
SNB-React's false statements were made to eBay with actual malice
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97.
LRG has sustained special and general damages to its good will and/or
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otherwise its business reputation in an amount to be proven at trial.
98.
LRG seeks a permanent injunction to prevent SNB-React from sending
unjustified Notice of Claim Forms in the future labeling LRG as a counterfeiter and that
its retail items are counterfeit goods, to avoid future irreparable injury and tarnishment
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 16 of 17
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to LRG's business reputation and good will with eBay.
99.
SNB-React's conduct was and continues to be intentional, deliberate,
3
willful, malicious, fraudulent, oppressive and done in a reckless disregard of LRG's
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rights with the intent to substantially injure LRG, and other similarly situated seller.
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100.
For such intentional, deliberate, willful, malicious, fraudulent, oppressive
acts, LRG hereby seeks exemplary damages in addition to its actual damages.
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FOURTH CLAIM FOR RELIEF
(Injurious Falsehood)
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101.
All of the allegations contained within the paragraphs above and below are
hereby incorporated by reference as if fully set out herein.
102.
SNB-React made and published four or more separate false statements to
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eBay through the Notice of Claimed Infringement form, and in any and all
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communication with eBay related thereto, that LRG is a counterfeiter and that products
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listed for sale by LRG's on its eBay store-front were counterfeit goods.
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103.
SNB-React knew, including reckless disregard and/or deliberate
ignorance, that one or more of these separate statements were false when made based on
information that LRG provided to SNB-React, including clear assertions that these listed
products were not counterfeit, were sold pursuant to valid agreements with Factory
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Effex and D'Cor, these products were properly licensed and an Affidavit and supporting
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documents from Factory Effex personnel corroborating LRG's assertions.
104.
SNB-React made these statements through eBay's highly deferential
VeRO program to persuade eBay to remove these listings, restrict LRG's seller account
and to otherwise suspend and/or terminate LRG's selling privileges.
105.
As a direct and proximate result of Defendants' course of conduct
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described herein, Plaintiff has sustained, and will continue sustaining immediate and
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irreparable harm and injury including, but not limited to, damage to reputation, lost
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revenue, lost goodwill.
106.
LRG seeks a permanent injunction to prevent SNB-React from sending
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Case 2:14-cv-02788-DKD Document 1 Filed 12/29/14 Page 17 of 17
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unjustified Notice of Claim Forms in the future labeling LRG as a counterfeiter and that
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its retail items are counterfeit goods, to avoid future irreparable injury and tarnishment
3
to LRG's business reputation and good will with eBay.
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5
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107.
SNB-React's conduct was and continues to be intentional, deliberate,
willful, malicious, fraudulent, oppressive and done in a reckless disregard of LRG's
rights with the intent to substantially injure LRG, and other similarly situated seller.
108.
For such intentional, deliberate, willful, malicious, fraudulent, oppressive
acts, LRG hereby seeks exemplary damages in addition to its actual damages.
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DEMAND FOR JURY TRIAL
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109.
Plaintiff hereby demands a trial by jury.
WHEREFORE, Plaintiff demands judgment against Defendants as follows:
A.
For a declaratory judgment under 28 U.S.C § 2201 that LRG's listings as
identified in ¶¶ 38, 51, 52 and 59 do not constitute counterfeit goods and/or otherwise
trademark infringement under 15 USC §§ 1114 and/or 1125;
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B.
For compensatory and punitive damages;
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C.
For a permanent injunction;
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D.
For LRG's reasonable attorneys' fees pursuant to 15 U.S.C. § 1117(a)(3)
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and any other applicable statutes;
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E.
For post-judgment interest at the highest legal rate available;
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F.
For costs incurred herein; and
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G.
For such other and further relief as the Court deems just and proper.
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RESPECTFULLY submitted this 29th day of December, 2014.
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MCFADDEN TICEN & BEAM PLC
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By
/s/ Paul D. Ticen
Paul D. Ticen
3100 West Ray Road, Suite 201
Chandler, Arizona 85226
Attorney for Plaintiff Lytle Racing Group,
LLC
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