Documentl Pagel Of 10 MARC E. MAYER (SBN 190969), mem@msk.com a a :3 EMILY F. EVITT (SBN 261491), efe@msk.com MITCHELL SILBERBERG KNUPP LLP 11377 West Olympic Boulevard Los Angeles, CA 90064-1683 Telephone: (3 10) 3 12?20 00 Facsimile: (310) 312-3100 Attorneys for Plaintiffs Nicholas Assef and Lincoln Crowne Company Pty 00 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 NICHOLAS ASSEF, an 1nd1v1dua1, and I LINCOLN CROWNE COMPANY PTY 12 LTD, an Australian corporation, COMPLAINT FOR: 13 Plaintiffs, (1) TRADEMARK INFRINGEMENT 14 [15 U.S.C. 1114] V. (2) DEFAMATION 15 DOES 1?10, DEMAND FOR JURY TRIAL l6 Defendants. Mitchell Silberberg Knupp LLP 67440612 CASE NO. COMPLAINT Mitchell Knupp LLP 6744061 .Documentl Page2 of 10 Plaintiffs Nicholas Assef and Lincoln Crowne Company aver as follows: PRELIMINARY STATEMENT 1. This action concerns Defendants? anonymous defamation and trademark infringement on a blog hosted by Google?s ?Blogger? service. Plaintiffs bring this action to seek redress for Defendants? unlawful conduct, and to bring an end to the continuing harm that Defendants are causing to Plaintiffs. JURISDICTION, VENUE, AND INTRADISTRICT ASSIGNMENT 2. This is an action arising under the Lanham Act, 15 U.S.C. 1114, et seq. and under California law. 3. This Court has subject matter jurisdiction over this matter pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338 in that it involves an action arising under the federal Lanham Act. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. 1367 over Plaintiffs? defamation claims, which arise under the law of the State of California. 4. Defendants are subject to personal jurisdiction in the State of California and in this judicial district because the acts and omissions giving rise to this Complaint took place in substantial part and caused impacts in the State of California, including in Santa Clara County, California. Namely, the infringing and defamatory speech at issue was posted on a blog hosted by Google?s ?Blogger? service, and the infringing and defamatory speech has injured Plaintiffs in the State of California and in this judicial district. Upon information and belief, Google made the decision to remove and then reinstate the offending blog from its headquarters in Santa Clara County, California. 5. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because a substantial part of the acts, omissions and events giving rise to the claims asserted in this Complaint occurred in this judicial district. THE PARTIES 6. Plaintiff Lincoln Crowne Company Pty (?Lincoln Crowne?) is a company duly incorporated under the laws of Australia, and having its principal place of business in New 2 CASE NO. COMPLAINT Mitchell Silberberg Knupp LLP 67440612 4;.Documentl FiledO4/30//J_5\ Page3 of 10 South Wales, Australia. Plaintiff Lincoln Crowne does business globally and has affiliates around the world, including in the United States. 7. Plaintiff Lincoln Crowne is a boutique investment bank that provides advice on corporate transactions and speci?c strategic engagements. Plaintiff Lincoln Crowne owns the following trademarks (collectively the ?Lincoln Crowne Trademarks?): 0 Lincoln Crowne Company (U SPTO Reg. No. 4107955) 0 I Lincoln Crowne Company (Australian Reg. No. 1423 961) 0 Lincoln Crowne (Australian Reg. No. 1423960) - lincolncrowne (Australian Reg. No. 142175) 8. Additionally, Plaintiff Lincoln Crowne owns and operates a website located at lincolncrownecom. 9. Plaintiff Nicholas Assef is the founder and executive director of Plaintiff Lincoln Crowne. Plaintiff Assef is a resident of New South Wales, Australia. 10. Plaintiffs are unaware of the true names or capacities of the Defendants, and therefore sue them under the ?ctitious names DOES 1 through 10. Plaintiffs are informed and believe, and on that basis aver, that DOES 1 through 10, and each of them, either directly performed the acts alleged herein or were acting as the agent, principal, alter ego, employee, representative, or otherwise participated in the acts alleged herein with other Defendants. Accordingly, Defendants DOES 1 through 10 are each liable for all of the acts alleged herein because they were the cause in fact and proximate cause of all injuries suffered by Plaintiffs as alleged herein. Plaintiffs will amend the Complaint to state the true names of Defendants DOES 1 through 10 when their identities are discovered. FACTS TO ALL CLAIMS FOR RELIEF 11. This case concerns an infringing and defamatory blog that Defendants posted anonymously using Google?s ?Blogger? service (hereinafter ?the Blog?). A copy of the Blog, which is located at the URL is attached hereto as Exhibit A, and incorporated by reference herein. 3 CASE NO. COMPLAINT Mitchell Silberberg Knupp LLP 67440612 Documentl Page4 of 10 1" 12. The Blog bears the heading, ?Beware Lincoln Crowne Company? and the subheading ?Warning Warning Warning Nick Assef.? The text of the blog includes unsubstantiated personal attacks on Plaintiff Assef, as well as on his company. Defendants used Plaintiffs Lincoln Crowne trademark as their Blogger username, and thus appears both in the Blog?s URL and on the Blog itself under the heading ?About Me.? Defendants had no authorization whatsoever to use the Lincoln Crowne Trademarks. 13. Defendants have no af?liation with Plaintiffs. Rather, upon information and belief, they are individuals who were upset about the performance of a private investment and posted false statements on the Blog in retaliation. 14. Defendants originally posted the Blog on or about May 25, 2007. Plaintiffs discovered the Blog in late 2007, and, since discovery, Plaintiffs have repeatedly complained to Google and sought removal of the Blog. 15. On or about January 7, 2014, Plaintiffs ?led a defamation lawsuit against Google in the Supreme Court of New South Wales, Australia. In response to the Australian lawsuit, on or about January 18, 2014, Google removed the Blog across all Blogger domains. 16. However, in or around September 2014, Plaintiffs discovered that Google had reinstated the Blog in the .com domain. In other words, although the Blog is no longer available at the Australia?speci?c URL it is viewable at the primary URL 17. Notwithstanding the Australian litigation, Google now refuses to take down the Bleg without a US. court order. 18. The Blog conveys the false and misleading impressions that Plaintiffs are dishonest and incompetent in their professional dealings; that Plaintiffs are disreputable; that Plaintiffs do not act in the best interests of their clients; and that Plaintiffs cannot be trusted by their clients. 19. The Blog has caused and is continuing to cause damage to Plaintiffs and their reputations. The Blog has caused Plaintiff Assef embarrassment, humiliation, and emotional distress. Furthermore, upon information and belief, the Blog has caused Plaintiffs to lose clients, and thus signi?cant revenue, and it has also hurt Plaintiffs? ability to recruit employees. 4 CASE NO. COMPLAINT Mitchell Silberberg Knupp LLP 6744061 .2 28 Documentl FiledO4/30/Q5, Page5 of 10 FIRST CLAIM FOR RELIEF (TRADEMARK INFRINGEMENT 15 U.S.C. 1114) 20. Plaintiffs reallege each and every allegation set forth in Paragraphs 1 through 19, inclusive, and incorporate them by reference herein. 21. Plaintiff Lincoln Crowne owns all right, title, and interest in and to the Lincoln Crowne Trademarks and has standing to maintain an action for trademark infringement under 15 U.S.C. 1114. Plaintiff Lincoln Crowne also owns the rights in the website located at 22. Without Plaintiffs? authorization, Defendants created and are operating the Blog, which has a username and URL that are identical or con?isingly similar to the Lincoln Crowne Trademarks. Indeed, the Blog?s username is simply and the URL incorporates Plaintiffs? ?lincolncrowne? trademark in its entirety. 23. Defendants? unauthorized use of the Lincoln Crowne Trademarks on the Blog is causing, and is likely to cause in the ?iture, confusion, mistake, or deception as to the af?liation, connection, or association of Defendants with Plaintiffs, in violation of 15 U.S.C. 1114. Additionally, Defendants? use of the Lincoln Crowne Trademarks is likely to cause confusion among users who conduct Internet searches for Plaintiffs, and are instead taken to Defendants? infringing Blog. 24. Defendants? intentional use of the Lincoln Crowne Trademarks for the purpose of creating a Blog that defames Plaintiffs renders this an exceptional case under 15 U.S.C. 1117(a). 25. As a result of Defendants? acts and conduct, Plainti?s have sustained, and will continue to sustain, substantial, immediate, and irreparable injury, for which there is no adequate remedy at law. Plaintiffs are informed and believe, and on that basis aver, that, unless enjoined and restrained by this Court, Defendants will continue to infringe the Lincoln Crowne Trademarks. Plaintiffs are thus entitled to temporary, preliminary, and permanent injunctive relief 5 CASE NO. CONIPLAINT Mitchell Si lberberg Knupp LLP 67440612 28 Documentl FiledO4/30/f;5\ Page6 of 10 SECOND CLAIM FOR (DEFAMATION) 26. Plaintiffs reallege each and every allegation set forth in Paragraphs 1 through 19, inclusive, and incorporate them by reference herein. 27. Each of the statements made by Defendants on the Blog (which is attached hereto as Exhibit A) is false. These statements have created false and defamatory impressions and, therefore, have damaged Plaintiffs? reputations and caused economic harm. 28. Defendants had knowledge of the statements? falsity or acted with malice and/or reckless disregard for their falsity when they were made. 29. The defamatory statements were published on the Blog, which is available worldwide, including in this judicial district. 30. By reason of the false and defamatory statements published by Defendants, Plaintiffs have been injured in their good names, reputations and business, have been portrayed in a false light, and have been brought into disgrace and disrepute. 31. As a direct and proximate result of Defendants? above-described defamatory publications, Plaintiffs have sustained damages in an amount to be determined at trial. 32. Defendants? above?described publications were done with fraud and malice and were intended to cause injury to Plaintiffs. Plaintiffs are, therefore, entitled to an award of punitive damages. 33. As a result of Defendants? acts and conduct, Plaintiffs have sustained, and will continue to sustain, substantial, immediate, and irreparable injury, for which there is no adequate remedy at law. Plaintiffs are thus entitled to temporary, preliminary, and. permanent injunctive relief. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment as follows: 1. Preliminarin and permanently enjoining Defendants, their agents, representatives, employees, assigns and suppliers, and all persons acting in concert or privity with them, from using the Lincoln Crowne Trademarks or any other name or mark or domain name that is likely to 6 CASE NO. COMPLAINT Mitchell Silberberg Knapp LLP 6744061 .Documentl FiledO4/30/A5x Page? of 10 cause confusion, to cause mistake, or to deceive with respect to Plaintiffs? trademarks or service marks; 2. Preliminarin and permanently enjoining Defendants, their agents, representatives, employees, assigns and suppliers, and all persons acting in concert or privity with them, from disseminating false, defamatory, or misleading statements concerning Plaintiffs, including but not limited to statements made on the Blog located at 3. Directing Google to remove the Blog located at or, alternatively, to transfer the Blog to Plaintiffs. 4. Awarding Plaintiffs ?ieir actual damages derived by reason of the unlawful acts complained of herein as provided by law. 5. Awarding Plaintiffs punitive damages; 6. Awarding Plaintiffs their reasonable attorneys? fees, prej udgment interest, and costs of suit as provided by law; 7. Such other relief as the Court may deem just and proper. DATED: April 28, 2015 RESPECTFULLY SUBMITTED, MARC E. MAYER EMILY F. EVITT MITCHELL SILBERBERG KNUPP LLP . Emily F. Evgt?lz Attorneys fo laintiffs Nicholas Assef and Lincoln Crowne Company Pty 7 CASE NO. COMPLAINT Mitchell Silberberg Knupp LLP 6744061 .Documentl FiledO4/30/g?g Page8 of 10 DEMAND FOR JURY TRIAL Plaintiffs demand a trial by jury. DATED: April 28, 2015 RESPECTFULLY SUBMITTED, MARC E. MAYER EMILY F. EVITT MITCHELL SILBERBERG KNUPP LLP mam mily F. Evitt Attorneys for aintiffs Nicholas Assef and Lincoln Crowne Company Pty 8 CASE NO. COMPLAINT 18551491 Documentl PageQ of 10 EXHIBIT A EXHIBIT A Documentl FiledO4/30/5Lg PagelO of 10 Beware Lincoln Crowne Co. pany Page 1 of 1 I More Next Blog? Create Blog Sign In BEWARE LINCOLN CROWNE 8: MAY 25, 2007 BLOG ARCHIVE Warning Warning Warning - Nick Assef 2007? (1) If you are considering to hire or do business with Nick Assef from May (1) Lincoln Crowne, please beware and conduct your own due diligence Warning warning Warning on his business and reputation in the Australian investment industry - you will be shocked as I was with ?nding out about his dealings with clients. A 0 In fact when I spoke with his past clients every single one advised me . to run a mlle from Lincoln Crowne. VIEW MY COMPLETE PROFILE My due diligence on Nick Assef and Lincoln Crowne, was very swift as I stopped a?er speaking to 5 previous clients and ex-employees the feedback was a shock to me as each and every person warned me to stay away from Nick Assef . POSTED BY LINCOLNCROWNE AT 6:41 AM 2 COMMENTS: Home Subscribe to: Posts (Atom) Exhibit A Pg. 1 4/22/2015