Free Complaint - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ING BANK, fsb (d/b/a ING DIRECT), and ING DIRECT BANCORP, Plaintiffs, v. THE PNC FINANCIAL SERVICES GROUP, INC., PNC BANK, NATIONAL ASSOCIATION and PNC BANK, DELAWARE Defendants. ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. ___________ JURY TRIAL DEMANDED

COMPLAINT Plaintiffs ING Bank, fsb (d/b/a ING DIRECT) and ING DIRECT Bancorp, by their attorneys, Connolly Bove Lodge & Hutz LLP, for their complaint against defendants THE PNC FINANCIAL SERVICES GROUP and PNC BANK, NATIONAL ASSOCIATION and PNC BANK DELAWARE allege as follows: NATURE OF THE ACTION 1. This is a civil action for: (i) trademark infringement arising under Section 32(1)

of the Lanham Act of 1946, as amended, 15 U.S.C. § 1051 et seq.; (ii) use of false designations of origin in commerce, arising under Section 43(a) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(a); (iii) false advertisement arising under Section 43(a) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(a); (iv) unfair competition under Section 43(a) of the Lanham Act, as amended, 15 U.S.C. § 1125(a); (v) trademark dilution arising under Section 43(c) of the Lanham Act of 1946, as amended, 15 U.S.C. § 1125(c); (vi) the likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name valid at common law under the Delaware Trademark Act, 6 Del. C. § 3313; (vii) statutory unfair

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competition under the Delaware Uniform Deceptive Trade Practices Act, 6 Del. C. § 2531 et seq.; (viii) common law unfair competition under the common law of the State of Delaware; and (ix) unjust enrichment under the common law of the State of Delaware. JURISDICTION AND VENUE 2. This Court has original jurisdiction over the claims arising under the Lanham Act

pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338. This Court has supplemental jurisdiction over the claims arising under the law of the State of Delaware pursuant to 28 U.S.C. § 1367. 3. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c). PARTIES 4. Plaintiff ING Bank, fsb is an FDIC-insured federally chartered savings bank

doing business as ING DIRECT, regulated by the Office of Thrift Supervision, and headquartered at 1 South Orange Street, Wilmington, Delaware 19801. ING Bank, fsb is the exclusive licensee in the United States of the famous "Orange Ball Design Mark" (defined below) for banking services, banking services offered over a computer network, savings account services, mortgage banking, home equity loans, and related products and services. 5. Plaintiff ING DIRECT Bancorp is a Delaware corporation with its principal place

of business at 1 South Orange Street, Wilmington, Delaware 19801. ING DIRECT Bancorp is the owner of the famous "Orange Ball Design Mark" for banking services, banking services offered over a computer network, savings account services, mortgage banking, home equity loans, and related products and services. For purposes of this Complaint, ING Bank, fsb and ING DIRECT Bancorp will be referred to collectively and individually as "ING DIRECT" or "Plaintiffs."

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6.

Defendant The PNC Financial Services Group, Inc. ("PNC Financial") is, upon

information and belief, a corporation of Pennsylvania headquartered at One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania, 15222-2707. Upon information and belief, PNC

Financial is a holding company and it provides investment and wealth management services, fiduciary services and FDIC-insured banking products and lending and borrowing of funds through its subsidiaries, PNC Bank, National Association and PNC Bank, Delaware. Through its subsidiaries, PNC Financial delivers many products and services nationally and other products and services are provided in its primary geographic markets, including Delaware. PNC Bank, National Association, is a national bank ing institution organized and existing under the laws of the United States. PNC Financial is registered to do business in Delaware. PNC Bank,

Delaware, a subsidiary of PNC Financial is also registered to do business in Delaware. PNC Financial boasts that it serves 2.9 million consumer and small business customers, and that it has had consolidated assets of $138.9 billion and deposits of $82.9 billion. PNC Financial, by itself and/or through its subsidiaries, hosts transactional (not merely informational) Internet websites such as www.pnc.com and www.pncvirtualwallet.com that enable the citizens of the 50 states, including Delaware, to open, transact, and use a variety of banking services and products. 7. Defendant PNC Bank, National Association, is, upon information and belief, a

subsidiary of PNC Financial having an address of 249 Fifth Avenue, Pittsburgh, Pennsylvania, 15222. 8. Defendant PNC Bank, Delaware, is, upon information and belief, a subsidiary of

PNC Financial having an address at 222 Delaware Avenue, Wilmington, Delaware, 19801. For purposes of this Complaint, PNC Financial, PNC Bank, National Association, and PNC Bank, Delaware, will be referred to collectively as "PNC" or "Defendants."

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9.

Upon information and belief, PNC does business in part as "PNC Bank," and is

the owner of and is responsible for the websites www.pnc.com, www.pncvirtualwallet.com and, www.virtualwallet.com, among others. Through these websites, and others, PNC, and each of them, deliver products and provide services directly to consumers and through business partners in all 50 states, and consumers make deposits to and withdrawals from their PNC accounts from all 50 states, including Delaware. In connection with its business, upon information and belief, PNC transacts business, and enters into contracts to supply services and/or products in Delaware, with Delaware companies and citizens. FACTS ING DIRECT and the Famous Orange Ball Design Mark 10. ING DIRECT's ultimate parent, ING Groep N.V. ("ING Groep"), a global

financial services company of Dutch origin and located in the Netherlands, was founded in 1991 by a merger between Nationale-Nederlanden and NMB Postbank Group. The ING family of companies has more than 150 years of experience in the financial services industry. During the past 16 years, ING Groep and the affiliated ING companies, including ING DIRECT, (collectively, the "ING Companies") have become a significant multinational financial group with very diverse international activities. The ING companies provide a wide array of banking, insurance, and asset management services in over 50 countries. The ING companies' 120,000plus employees work daily to satisfy a broad customer base: individuals, families, small businesses, large corporations, institutions, and governments. Based on market capitalization, the ING Companies comprise one of the 20 largest financial institutions worldwide. 11. ING DIRECT, along with the other Internet banking arms of the ING companies,

is one of the world's largest online bank ing operations, boasting more than 21 million customers

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in nine countries. ING DIRECT is the second largest savings bank in the United States, and the largest Internet bank, with more than $80 billion in assets, delivering superior savings and mortgage services to over 4 million custome rs. ING DIRECT has been providing direct online banking services in the United States for many years and has become the market leader and most recognized provider of direct banking services. 12. ING DIRECT has devoted significant advertising resources and creative energies

towards the ING name and other trademarks associated with ING DIRECT. The ING name is known worldwide and is widely recognized by the consuming public as a designation of source and has been ranked in Business Week's "Top 100 Global Brands Scoreboard" for the past several years. 13. ING DIRECT began use in the United States of the orange ball design trademark

illustrated in Exhibit A hereto (the "Orange Ball Design Mark") in or about 2000. ING DIRECT concurrently began use of the color orange in other ways to signify the services and products of ING DIRECT. By way of example, as part of its use of the color orange to signify its goods and services, ING DIRECT used the color orange as the predominant color of its website, used the color orange as the predominant color of its physical banking locations, used the color orange in connection with the advertising of its ubiquitous Orange Ball Design Mark, and used the color orange as the name of its most successful account type, the Orange Savings Account T M. ING DIRECT has devoted significant marketing, advertising, and financial resources in developing and establishing in the minds of consumers that the Orange Ball Design Mark signifies ING DIRECT and its products and services. As a result of these efforts (detailed in part below), the Orange Ball Design Mark has become known worldwide and is widely recognized by the

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consuming public as a famous designation of source for ING DIRECT and its banking and financial related products and services. 14. ING DIRECT's attention to customer care, and its easy-to- use, high- value

products and services, are evident in the Orange Savings AccountT M and other banking products offered by ING DIRECT to consumers. The use of the Orange Ball Design Mark identifies programs and marketing and promotional materials as coming from ING DIRECT. ING

DIRECT prides itself on its high-quality products that it provides to consumers, enabling customers to save more and pay fewer bank fees compared to "traditional" banks, and through this philosophy, the promotion of its products, and its unique approach to banking, it has developed customer loyalty and a strong brand identity. 15. ING DIRECT spends tens of millions of dollars each year in advertising and

promoting its products and services using the Orange Ball Design Mark through various media, including television, radio, magazines, Internet, and product displays. As a part of this extensive advertising, ING DIRECT promotes its products and services prominently using the color orange and the Orange Ball Design Mark in virtually all of its advertising campaigns and marketing materials. Such advertisements and materials typically feature the color orange in a myriad of ways, including non-traditional, eye-catching uses of the color orange which reinforce the association of the Orange Ball Design Mark with ING DIRECT. As a specific example of the prominent use of the color orange and the Orange Ball Design Mark, ING DIRECT provides café locations where customers can purchase coffee, surf the Internet (free of charge) and obtain product information, all in a unique setting that features a noticeably orange décor, and prominently showcases the Orange Ball Design Mark and other orange elements.

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16.

ING DIRECT maintains its Internet website at www.ingdirect.com, through

which the color orange is prominently depicted and the Orange Ball Design Mark is further promoted to consumers, as well as the banking and finance industries. A copy of the home page of this website, depicting the Orange Ball Design Mark, is attached hereto as Exhibit A. Through the ING DIRECT website, consumers can also purchase a variety of clothing items, bags, and other products, virtually all of which have the color orange appearing on the product. 17. Because of its prominence in the Internet banking industry, ING DIRECT is the

subject of regular attention and comment by the concerned press and media. The company has been featured in leading national and international financial publications, such as Business Week, Forbes, The American Banker, and U.S. News & World Report. 18. The extensive advertising and promotion of ING DIRECT's Orange Ball Design

Mark, combined with the high value products and services offered by ING DIRECT and the company's great commercial success, have resulted in the Orange Ball Design Mark acquiring tremendous goodwill and secondary meaning among the consuming public. The Orange Ball Design Mark is one of the most well-known financial industry marks in the world, and is also well known to the general consuming public, and the Orange Ball Design Mark is thus famous and highly distinctive. 19. In addition to common law rights in the Orange Ball Design Mark, Plaintiffs are

the owners and/or authorized users of the following United States federal trademark registrations: U.S. Registration No. 3,068,848 for the Orange Ball Design Design Mark, for: credit card services; banking services; banking services offered over a global computer network; mutual fund services; mortgage lending and brokerage services; mortgage banking; mortgage loans, home equity loans; savings account services; securities brokerage services. A copy of the registration is attached at Exhibit B. The application that matured into U.S. Registration No. 3,068,848 was

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filed November 8, 2000, claims use of the Orange Ball Design Design Mark since at least as early as September 2000, and the registration issued on March 14, 2006. U.S. Registration No. 3,356,853 for the Orange Ball Design Design Mark, for: financial services, namely, financial planning, financial information provided by electronic means, electronic processing and transmission of bill payment data, debit and stored value card and electronic transaction services, loan financing services. A copy of the registration is attached at Exhibit C. The application that matured into U.S. Registration No. 3,356,853 was filed November 8, 2000, claims use of the Orange Ball Design Design Mark since at least as early as December 2006, and the registration issued on December 18, 2007. U.S. Registration No. 3,362,892 for the Orange Ball Design Design Mark, for: backpacks, umbrellas; and headwear and clothing, namely, t-shirts, dress shirts, button down shirts, polo shirts, rugby shirts, sweatshirts, sweatpants, cotton pants, fleece jackets, vests, jackets, ski jackets, ball caps, visors, bucket hats, ski caps, scarves, earmuffs, pajamas. A copy of the registration is attached at Exhibit D. The application that matured into U.S. Registration No. 3,362,892 was filed March 20, 2002, claims use of the Orange Ball Design Design Mark since at least as early as 2005, and the registration issued on January 1, 2008. Defendants' Activities Resulting In, Inter Alia, Trademark Infringement, Trademark Dilution, and Unfair Competition 20. 21. PNC operates nationally and provides banking, lending and financial services. Upon information and belief, PNC has recently decided to expand its services to

offer direct online banking, and has and intends to offer its services under one or more orange ball designs. PNC will compete, or is competing, directly with ING DIRECT, the market leader in direct online banking. 22. In order to compete with ING DIRECT, PNC embarked on an advertising and

promotional campaign that prominently uses the color orange, including several designs that feature an orange ball, thereby improperly using and trading, and intending to use and trade, upon the Orange Ball Design Mark and the color orange utilized by ING DIRECT. 23. On the website www.pncvirtualwallet.com, which, upon information and belief, is

available worldwide through the Internet, PNC uses the Orange Ball Design Mark, or

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confusingly similar variations thereof, in connection with online banking and financial services without authorization from Plaintiffs or any other authorized entity. Printouts of pages from the website are attached hereto as Exhibit E. A significant segment of the website pages

prominently utilize the color orange and orange ball designs that are confusingly similar to ING DIRECT's Orange Ball Design Mark, and suggest an association with ING DIRECT. The Orange Ball Design Mark is federally registered and famous, and the express and implied reference to and invocation of the Orange Ball Design Mark, and prominent use of the color orange was done with knowledge of ING DIRECT's rights in the Orange Ball Design Mark. 24. PNC's expansion into online banking is expected to attract younger customers,

among others, as described in an article from Netbanker discussing the July 14, 2008, launch of a new online account from PNC called "Virtual Wallet." A copy of this article is attached at Exhibit F. The Virtual Wallet program is described at www.pncvirtualwallet.com. This

expansion is also expected to appeal to other retail banking customers and those looking for online banking services. The PNC expansion targets the same customers that comprise ING DIRECT's potential customer base. 25. The www.pncvirtualwallet.com website prominently features ten (10) orange ball

designs that are placed in motion and can be clicked by the consumer to learn information about features of the Virtual Wallet program. After a consumer clicks on the orange balls on the www.pncvirtualwallet.com website page, the orange balls move, with the appearance of the orange ball designs being altered in some uses. 26. The advertisement for PNC's Virtual Wallet program depicted in Exhibit F

prominently shows orange ball designs that are confusingly similar to the famous Orange Ball Design Mark. The orange ball design has been advertised by PNC as a stand-alone display in

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bank branches, as depicted in Exhibit G. Prospective customers viewing the advertisements depicted at Exhibits F and G, upon information and belief, would be deceived by the advertisement and are likely to believe they are viewing an ING DIRECT advertisement, or that the advertisement is related to or associated with products or services from ING DIRECT. The Orange Ball Design Mark, or a confusingly similar variation thereof, is used by Defendants in a manner calculated to capture initial consumer attention, thus the advertisement creates or has the capacity to create initial interest confusion. . 27. PNC Financial has filed trademark applications for nine (9) of the ten (10)

individual orange ball designs displayed on the www.pncvirtualwallet.com website and depicted in Exhibit F. Each of the ten (10) orange ball designs depicted on the website (collectively, "PNC ball designs"), including the nine (9) depicted in each trademark application is confusingly similar to the Orange Ball Design Mark, and suggests the products offered under any of the PNC ball designs are affiliated with or associated with ING DIRECT. Each individual PNC ball design is a similar shade of orange to that of ING DIRECT's Orange Ball Design Mark and the color orange prominently utilized by ING DIRECT, and consists of an orange ball that is highlighted and shaded similarly to ING DIRECT's Orange Ball Design Mark and the color orange prominently utilized by ING DIRECT. The trademark applications for the PNC ball designs were filed on June 19, 2008 and June 20, 2008 based on PNC Financial's intent to use the PNC ball designs in the future. Copies of the nine (9) trademark applications are attached at Exhibit H. The trademark applications for the PNC ball designs identify the services as

"financial and banking services; on-line banking services, on- line investment services, and online financial services; mobile banking, telephone banking and electronic banking; tools for managing financial, banking and investment accounts," in class 36, the same class in which the

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Orange Ball Design Mark of U.S. Registration No. 3,068,848 is registered. ING DIRECT's use of the Orange Ball Design Mark precedes the use of any of the PNC ball designs or the filing dates of any of the applications for the PNC ball designs. 28. Upon information and belief, PNC, on its website, on signage, in advertisements,

and in other media, recently modified its circular house mark design (i.e., the stylized triangle inside a circular shape, as defined below) from appearing in blue, to appearing in orange. In or about 2008, upon information and belief, PNC, on its website, on signage, advertisements, and in other media, yet again modified its circular house mark design ­ this time, the design changed from an orange circle to an orange ball. PNC's new house mark design (i.e., the stylized triange inside an orange circle or an orange ball) ("the PNC new house mark design") is in current, active and extensive use by PNC, including on virtually every page of its website, its brochures, its advertisements, on the face of its credit cards, and its banks. PNC's new house mark design is depicted in Exhibits I and J. The PNC new house mark design is being used by PNC in

connection with PNC's banking and financial servies, which directly compete with those services offered by ING, and represents an encroachment on ING DIRECT's famous Orange Ball Design Mark and its rights therein. The PNC new house mark design resembles, and is confusingly similar to, the Orange Ball Design Mark, and suggests an affiliation or association with ING DIRECT. Plaintiffs' use and registration of the Orange Ball Design Mark precedes PNC's use of the PNC new house mark design and the PNC ball design, as well as its prominent use of the color orange, and its use of an orange ball. 29. Defendants' use and intended use of the PNC ball design and the PNC new house

mark design are confusingly similar to ING DIRECT's famous Orange Ball Design Mark. Defendants' uses are nearly identical and convey the same commercial impression as the Orange

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Ball Design Mark, especially because they are used by defendants in advertising and promotional materials in the banking industry, the same industry in which Plaintiffs operate. 30. Defendants' use and intended use of the PNC ball design and the PNC new house

mark design mars the Orange Ball Design Mark by adding an interior design element. This use by Defendants is likely to cause confusion or to suggest an association with connection with Plaintiffs and the famous Orange Ball Design Mark. This use also mars the presentation of the Orange Ball Design mark and harms the image associated therewith. 31. Defendants' confusingly similar and deceptive use of the PNC ball design, the

PNC new house mark design and/or the color orange enable PNC to compete directly and unfairly with the products and services offered by Plaintiffs under the Orange Ball Design Mark. Defendants are using and intend to use the color orange and the Orange Ball Design Mark, and variations thereof, for the same type of financial and banking services offered to the same classes of consumers as the products and target customers for Plaintiffs' products. 32. Defendants' use of the color orange and/or one or more designations which

closely resemble and are confusingly similar to the Orange Ball Design Mark in connection with financial and banking products and services are likely to cause confusion as to the source and origin of PNC's products and services and are likely to cause confusion, or to cause mistake, or to deceive the public and the trade as to the s ource or sponsorship of PNC's products and services and to falsely suggest a connection with Plaintiffs, and mislead the public into believing that PNC's products and services ema nate from, are approved or sponsored by, or are in some way associated or connected with Plaintiffs. 33. Defendants' use of the color orange and/or one or more designations which

closely resemble and are confusingly similar to the Orange Ball Design Mark in connection with

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financial and banking products in advertisements falsely conveys that Plaintiffs are affiliated with PNC or otherwise misrepresents the nature, characteristics, and qualities of PNC's products, services, and commercial activities. The website pages, and other uses by PNC of the PNC new house mark design, upon information and belief, actually and materially deceived or have the capacity to materially deceive a substantial segment of the audience. 34. Prospective customers looking for Plaintiffs and encountering a PNC Ball Design,

the PNC new house mark design, and/or PNC's prominent use of the color orange, are likely to be confused or deceived as to the source of the goods/services and sales of Plaintiffs' products could thus be diverted to PNC. 35. Defendants' infringing activity as described above weakens the unique

association which has heretofore existed between the Orange Ball Design Mark and ING DIRECT products, thereby lessening the capacity of the Plaintiffs' trademarks to identify and distinguish their goods and services. Defendants' unauthorized activity is likely to dilute the distinctive quality of the famous Orange Ball Design Mark and is likely to injure the goodwill Plaintiffs have in the Orange Ball Design Mark, and weaken the fame and uniqueness of the Orange Ball Design Mark. 36. Upon information and belief, Defendants' adoption and use of the infringing PNC

ball designs or use of marks that closely resemble and are confusingly similar to the Orange Ball Design Mark represents a deliberate attempt to trade unlawfully upon the goodwill associated with the Orange Ball Design Mark. 37. Defendants' activities as described herein have and will cause Plaintiffs

irreparable harm and significant injury.

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COUNT I -- INFRINGEMENT OF REGISTERED TRADEMARKS 38. Plaintiffs repeat and reallege each and every allegation set forth in paragraphs 1

through 37 above as if fully set forth herein. 39. Defendants' activities as described above constitute infringement of ING

DIRECT's Orange Ball Design Mark in violation of Section 32(1) of the Lanham Act of 1946, as amended (15 U.S.C. § 1114(1)). COUNT II -- FALSE DESIGNATION OF ORIGIN 40. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 39 above as if fully set forth herein. 41. Defendants' activities as described above constitute the use of false designations

of origin in commerce, in violation of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(a)). COUNT III -- FALSE ADVERTISING 42. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 41 above as if fully set forth herein. 43. Defendants' activities as described above constitute false advertising in violation

of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(a)). COUNT IV -- UNFAIR COMPETITION 44. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 43 above as if fully set forth herein. 45. Defendants' activities as described above constitute unfair competition in

violation of Section 43(a) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(a)).

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COUNT V -- FEDERAL TRADEMARK DILUTION 46. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 45 above as if fully set forth herein. 47. The Orange Ball Design Mark is distinctive and famous, and has come to be

widely recognized among the consuming public as a designation of source, and has enjoyed such distinction and fame since long before the time Defendants commenced use of the PNC ball design or the PNC new house mark design. 48. Defendants' activities as described above constitute dilution of the distinctive

quality of the famous Orange Ball Design Mark, in violation of Section 43(c) of the Lanham Act of 1946, as amended (15 U.S.C. § 1125(c)). COUNT VI -- TRADEMARK DILUTION AND INJURY TO BUSINESS REPUTATION UNDER THE DELAWARE TRADEMARK ACT, 6 DEL. C. § 3313 49. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 48 above as if fully set forth herein. 50. The Orange Ball Design Mark is distinctive and famous, and has enjoyed such

distinction and fame since long before the time Defendants commenced use of the PNC ball design or the PNC new house mark design. 51. Defendants' activities as described above constitute injury to Plaintiffs' business

reputation and dilution of the distinctive quality of the famous Orange Ball Design Mark, in violation of the Delaware Trademark Act, 6 Del. C. § 3313. COUNT VII -- UNFAIR COMPETITION UNDER THE DELAWARE UNIFORM DECEPTIVE TRADE PRACTICES ACT, 6 DEL. C. § 2531 ET SEQ. 52. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 51 above as if fully set forth herein.

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53.

Defendants' activities as described above constitute unfair competition and

deceptive trade practices under the Delaware Uniform Deceptive Trade Practices Act, 6 Del. C. § 2531 et seq. COUNT VIII -- COMMON LAW UNFAIR COMPETITION 54. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 53 above as if fully set forth herein. 55. Defendants' activities as described above constitute unfair competition under the

common law of the State of Delaware. COUNT IX -- COMMON LAW UNJUST ENRICHMENT 56. Plaintiffs repeat and reallege each of the allegations set forth in paragraphs 1

through 55 above as if fully set forth herein. 57. Benefits have been conferred upon Defendants by Defendants' unauthorized use

of Plaintiffs' Orange Ball Design Marks, and variations thereof, as well as prominent use of the color orange. 58. 59. Defendants have appreciated, accepted, and retained these benefits. It is inequitable for Defendants to retain these benefits without the payment of

value to Plaintiffs. 60. 61. Defendants have been unjustly enriched at the expense of Plaintiffs. Defendants' activities as described above constitute unjust enrichment under the

common law of the State of Delaware.

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WHEREFORE, Plaintiffs demand judgment against Defendants as follows: 1. That Defendants, their agents, servants, representatives, successors and assigns,

and all those persons or entities in active concert or participation with any of them who receive actual notice of the injunctive order, be enjoined, preliminarily and permanently from: (a) Using the Orange Ball Design Mark or any other mark, symbol or device

that is confusingly similar to the Orange Ball Design Mark in connection with marketing, sale, offering for sale, advertisement, or promotion of banking or financial products or services; (b) Committing any other act calculated or likely to cause the public to

believe that defendant PNC is in any manner connected, affiliated or associated with Plaintiffs or from otherwise competing unfairly with Plaintiffs; and (c) Prominently using the color orange in any manner that is confusingly

similar to the Orange Ball Design Mark, or is likely to dilute the distinctive quality of the famous Orange Ball Design Mark, including ordering the abandonment or cancellation of any of Defendants' trademark applications or registrations that are confusingly similar to the Orange Ball Design Mark, as appropriate, including the applications at Exhibit G. 2. Pursuant to 15 U.S.C. § 1118, that Defendants deliver to Plaintiffs for destruction

all material (including, without limitation, all advertisements, promotional materials, and brochures), within its possession, custody or control, either directly or indirectly, that bears the Orange Ball Design Mark or any other designation, symbol or device that is confusingly similar to the Orange Ball Design Mark. 3. Pursuant to 15 U.S.C. § 1116(a), that Defendants be directed to file with the Court

and serve upon Plaintiffs, within thirty (30) days after entry of the injunctive order, a report in

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writing and under oath setting forth in detail the manner and form by which it has complied with the provisions set forth in paragraphs 1, and 2 above. 4. Pursuant to 15 U.S.C. § 1117(a) and the common law, that Defendants be directed

to account to Plaintiffs for all gains, profits, and advantages derived from Defendants' wrongful acts. 5. Pursuant to 15 U.S.C. § 1117(a) and 6 Del. C. § 2533(c), that Plaintiffs recover

from Defendants the greater of three times the amount of Defendants' profits or any damages sustained by Plaintiffs, together with interest on such amount and the costs of this action. 6. Pursuant to 15 U.S.C. § 1117(a) and 6 Del. C. § 2533(b), that the Court determine

that the case is exceptional and that Plaintiffs recover from Defendants their attorneys' fees and the costs of this civil action. 7. That Plaintiffs be awarded such other and further relief as the Court deems

equitable, just, and proper. DEMAND FOR JURY Plaintiffs request that all issues triable by a jury be so tried in this case.

/s/ Francis DiGiovanni Francis DiGiovanni (#3189) Chad S.C. Stover (#4919) CONNOLLY BOVE LODGE & HUTZ LLP 1007 North Orange Street P.O. Box 2207 Wilmington, Delaware 19899-2207 (302) 658-9141 [email protected] [email protected]

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Of Counsel: Scott R. Miller CONNOLLY BOVE LODGE & HUTZ LLP 333 South Grand Avenue, Ste. 2300 Los Angeles, CA 90071 (213) 787-2510 [email protected] Jennifer Fraser CONNOLLY BOVE LODGE & HUTZ LLP 1875 Eye Street, NW, Ste. 1100 Washington, DC 20006 (202) 331-7111 [email protected]

Attorneys for Plaintiffs Dated: August 13, 2008

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JS 44 (Rev. 12/96)

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CIVIL COVER SHEET
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 docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

ING BANK, fsb (d/b/a ING DIRECT), and ING DIRECT BANCORP
(b)
COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF (EXCEPT IN U.S. PLAINTIFF CASES)

THE PNC FINANCIAL SERVICES GROUP, INC., PNC BANK, NATIONAL ASSOCIATION, and PNC BANK, DELAWARE
COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT (IN U.S. PLAINTIFF CASES ONLY) ATTORNEYS (IF KNOWN)

NEW CASTLE COUNTY, DELAWARE

(c)

ATTORNEYS (FIRM NAME, ADDRESS AND TELEPHONE NUMBER)

Francis DiGiovanni Chad S.C. Stover Connolly Bove Lodge & Hutz LLP P.O. Box 2207, 1007 North Orange Street Wilmington, Delaware 19899-2207 (302) 658-9141
II. BASIS OF JURISDICTION
1 U.S. Government Plaintiff (PLACE AN "X" IN ONE BOX ONLY) 3 Federal Question (U.S. Government Not a Party) Citizen of This State 2 U.S. Government Defendant 4 Diversity (Indicate Citizenship of Parties in Item III) Citizen of Another State 2 2

III. CITIZENSHIP OF PRINCIPAL PARTIES
(For Diversity Cases Only) PTF 1 DEF 1

(PLACE AN "X" IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)

Incorporated or Principal Place of Business in This State Incorporated and Principal Place of Business in Another State Foreign Nation

PTF 4

DEF 4

5

5

Citizen or Subject of a Foreign Country

3

3

6

6

IV. ORIGIN
1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court

(PLACE AN "X" IN ONE BOX ONLY) Transferred from 5 another district (specify) Appeal to District Judge from 7 Magistrate Judgment

4 Reinstated or Reopened

6 Multidistrict Litigation

V. NATURE OF SUIT
CONTRACT 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 REAL PROPERTY

(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 PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS 510 Motions to Vacate Sentence HABEAS CORPUS: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition FORFEITURE/PENALTY 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 OTHER STATUTES 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce/CC Rates/etc. 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 810 Selective Service 850 Securities/ Commodities/ Exchange 875 Customer Challenge 12 USC 3410 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900 Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes 890 Other Statutory Actions

PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark 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

LABOR 710 Fair Labor Standards Act 720 Labor Mgmt Relations 730 Labor Mgmt Reporting & Disclosure Act 740 Labor Railway Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 440 Other Civil Rights

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

870 Taxes (U.S. Plaintiff or Defendant) 871 IRS - Third Party 26 USC 7609

VI. CAUSE OF ACTION

(CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSE. DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY.)

Action for trademark infringement, false designation of origin, unfair competition, trademark dilution, injury to business reputation, and unjust enrichment under federal, state, and common law.
VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY:
DATE CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 (See instructions): DEMAND:

Amount of damages to be determined; preliminary and permanent injunctions sought.
CHECK YES only if demanded in complaint: JURY DEMAND: YES NO

SIGNATURE OF ATTORNEY OF RECORD

August 13, 2008
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ Francis DiGiovanni
APPLYING IFP JUDGE MAG. JUDGE

628951_1

JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading 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. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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