Free Declaration - District Court of Delaware - Delaware

Case 1:05-cv-00346-SLR Document 9 Filed 07/05/2005 Paget 0f3
iN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOBIUS MANAGEMENT SYSTEMS, INC., :
aaamirr, Q
1 CA. No. 05-346 SLR.
· against- :
: Declaration of Jonathan M. Wagner
ACARTUS, INC., :
Defendant.
I, Jonathan M. Wagner, hereby declare:
1 . I am a member of the tirrn of Kramer Levin Naftaiis & Frankel LLP, co—
counsel witli The Bayard Firm to plaintiff Mobius Management Systems, inc. I submit this
declaration in support of Mobius? application for a preliminary injunction requiring defendant
Acartus, Inc. {"Acartus”) to cease using p1ainti[`f’s "M0bius" trademark and engaging in false
advertising.
2. On May 31, 2005, Mobius commenced an action against Acartus,
asserting claims for trademark infringement and false advertising, as well as for false
representation/designation of origin, deceptive trade practices and unfair competition.
.3. Soon thereafter, counsel for Acartus contacted me. I-Ie represented that
Acartus would like to resolve this matter promptly by making changes to the challenged Acartus
advertising.
4. I informed Acartus’ counsel that Mobius planned to move for a
preliminary injunction unless the matter was resolved and unless Acartus took down the false
KL] 2¤$2·t889l

Case 1:05-cv-00346-SLR Document 9 Filed 07/05/2005 Page 2 of 3
and challenged promotional sheet from its website. Acartus’ counsel represented that he would
instruct Arcartus to take the promotional piece down now while the parties discussed settlement.
Acartus’ counsel also represented that Acartus would provide a revised data sheet for Mo’oius’
consideration.
5. On June 6, 2005, Ac-artus submitted a revised data sheet for Mobius’
consideration. Upon receipt of this proposal, Mobius put Acartus on notice that it should
"refrain from re-posting" the data sheet until Mobius could evaluate the proposal. (Exh. A,
attached). I informed Acartus’ counsel in a subsequent e·~mail that Acartus’ proposed revised
promotional material still infringed Mobius’ rights. (Exh. B, attached).
6. As set forth more fully in the Declaration of Mitchell Gross, President of
Mobius, Acartus posted another promotional piece on the internet that Mobius believes infringes
Mobius` trademark rights and make False statements.
7. As further set forth in Mr. Gross’s declaration, Mobius requests expedited
discovery in order to ascertain whether Acartus had inappropriate access to Mobius’ software
and improperly copied portions of Mobius unique software code into its export utility by
improper means. A copy of l\/lobius‘ document request, which is nmrowly tailored to this issue,
is attached as Exhibit C.
Pursuant to 2,8 U ,S.C. §l746, I certify under penalty of perjury that the foregoing
is true and correct. Executed this Liliday of July, 2005.
i Jonathan M. Wagner U
-g-
KlJ*2·‘l2~iB8$•l

Case 1:05-cv-00346-SLR Document 9 Filed 07/05/2005 Page 3 of 3
CERTIFICATE OF SERVICE
Kurt M, Heyman, Esquire, hereby certifies that on July 5, 2005, copies of the foregoing
Declaration of Jonathan M. Wagner were served upon the following:
VIA HAND DELIVERY
Acartus, Inc.
c/0 The Corporation Trust Company
l209 Orange Street
Wilmington, DE 19801
VIA FEDERAL EXPRESS
Anton J, Hopen, Esquire
Smith & Hopen, PA
U.S. Registered Patent Attorneys
15950 Bay Vista Drive, Suite 220
Clearwater, FL 33760
; grail Heyman (# 3054)
593488vl