Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00560-UNA

Document 1

Filed 09/04/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 326 ASSOCIATES, L.P., a Delaware limited partnership, Plaintiff, v. RETURNSIDE, LLC, a Delaware limited liability company, Defendant. ) ) ) ) ) ) ) ) ) ) )

C.A. No.

COMPLAINT PARTIES 1. Plaintiff 326 Associates, L.P. ("326 Associates") is a limited partnership company

duly organized and existing under the laws of the State of Delaware. 2. Defendant ReturnSide, LLC ("ReturnSide") is a limited liability company duly

organized and existing under the laws of the State of Delaware. SUBJECT MATTER JURISDICTION AND VENUE 3. This action is brought pursuant to the Anticybersquatting Consumer Protection

Act ("ACPA"), 15 U.S.C. §1125(d). As such, subject matter jurisdiction is conferred upon this Court pursuant to 28 U.S.C. §1331. 4. ReturnSide is a Delaware limited liability company subject to service of process

in Delaware pursuant to 6 Del. C. §18-105. As such, venue is proper in this Court pursuant to 29 U.S.C. §1391. FACTUAL BACKGROUND 5. Since 1983, 326 Associates has consistently owned and operated the New Castle

Farmers Market located in New Castle, DE. Over the years, the New Castle Farmers Market has

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become an institution in Delaware, and the name has generated goodwill throughout the state and beyond. 5. On June 7, 1993, 326 Associates registered the Service Mark "New Castle

Farmers Market" with the Delaware Secretary of State. In 2007, 326 Associates renewed that mark. 6. On or about May 17, 2003, ReturnSide registered the domain name On information and belief, ReturnSide has in the past

www.newcastlefarmersmarket.com.

placed advertising on a site under that domain. 7. In 2007, 326 Associates planned to set up an Internet website, to promote the New

Castle Farmers Market and to offer vendors who lease space at the New Castle Farmers Market an opportunity to advertise their wares. 8. Upon learning that ReturnSide had registered the domain name

www.newcastlefarmersmarket.com, representatives from 326 Associates contacted Glenn Petrucci, the owner of ReturnSide, to discuss his registration of the domain name. Mr. Petrucci informed 326 Associates that his intention was to market use of a website under that domain name to vendors who sell their wares at the New Castle Farmers Market. FIRST CAUSE OF ACTION (Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §1125(d)) 9. 326 Associates re-alleges and incorporates herein the allegations contained in

numbered paragraphs 1-8 above. 10. 326 Associates is the developer and owner of the distinctive service mark "New

Castle Farmers Market."

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11.

At

the

time

that

ReturnSide

registered

the

domain

name

www.newcastlefarmersmarket.com, the phrase "New Castle Farmers Market" had become famous. 12. The domain name www.newcastlefarmersmarket.com is identical to the service

mark "New Castle Farmers Market." 13. By establishing the domain name, ReturnSide operated in commerce, as it

precluded 326 Associates from offering services under that domain name. 14. ReturnSide registered the domain name www.newcastlefarmersmarket.com in bad

faith, as it intended to market space on the website to vendors associated with the New Castle Farmers Market, thereby trading on the good will built up in the mark by 326 Associates. 15. ReturnSide and its owner Glenn Petrucci have registered or acquired multiple

domain names which are identical or confusingly similar to the distinctive names of other existing businesses. 16. ReturnSide's conduct was and remains wilful.

WHEREFORE, for the foregoing reasons, plaintiff 326 Associates, L.P. requests that judgment be entered in its favor, and against defendant ReturnSide, LLC, and that the Court enter an Order: 1. Requiring ReturnSide, LLC to transfer title to domain name

www.newcastlefarmersmarket.com to 326 Associates, L.P.; 2. Awarding statutory damages, pursuant to 15 U.S.C. §1117(d), of no less than

$1,000 and no more than $100,000, as the Court deems just; 3. Awarding plaintiff its costs, including reasonable attorney's fees pursuant to 15

U.S.C. §1117(a); and

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4.

Granting such other and further relies as the Court deems just.

Dated: September 4, 2008 /s/ David L. Finger___________________ David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for plaintiff 326 Associates, L.P.

2JS 44 (Rev. 12/07)

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Document 1-2 Filed CIVIL COVER SHEET 09/04/2008

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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS 326 Associates, L.P. (b) County of Residence of First Listed Plaintiff

DEFENDANTS

ReturnSide, LLC New Castle
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorney's (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

David L. Finger, Finger & Slanina, LLC, One Commerce Center, 1201 Orange Street, Suite 725, Wilmington, DE 19801-1155 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
u 1
U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity
(Indicate Citizenship of Parties in Item III)

(For Diversity Cases Only) PTF u 1 Citizen of This State Citizen of Another State

DEF u 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

u 2

U.S. Government Defendant

u 2 u 3

u u

2

u 5 u 6

u 5 u 6

Citizen or Subject of a Foreign Country

3

IV. NATURE OF SUIT
CONTRACT

(Place an "X" in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY u 362 Personal Injury Med. Malpractice u 365 Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u u u u u u u u u u u u u u u u u u

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u u u u u u u u u u

u 610 Agriculture u 620 Other Food & Drug u 625 Drug Related Seizure of Property 21 USC 881 u 630 Liquor Laws u 640 R.R. & Truck u 650 Airline Regs. u 660 Occupational Safety/Health u 690 Other LABOR u 710 Fair Labor Standards Act u 720 Labor/Mgmt. Relations u 730 Labor/Mgmt.Reporting & Disclosure Act u 740 Railway Labor Act u 790 Other Labor Litigation u 791 Empl. Ret. Inc. Security Act
IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee u 465 Other Immigration Actions

u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

u u u u u u u u u u u u u u u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRS--Third Party 26 USC 7609

u u u u u

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN

u 1 Original Proceeding

u 2 Removed from
State Court

(Place an "X" in One Box Only)

Appeal to District Appellate Court

u 3 Remanded from

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict another district Reopened Litigation (specify)

u 7 Judge from Magistrate
Judgment

15 U.S.C. Section 1125(d) VI. CAUSE OF ACTION Brief description of cause: Anti-cybersquatting case u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

DEMAND $

CHECK YES only if demanded in complaint: No u Yes u JURY DEMAND: DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

09/04/2008
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ David L. Finger

APPLYING IFP

JUDGE

MAG. JUDGE