Case 1:16-cv-00368-PB Document 10 Filed 09/20/16 Page 1 of 25

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

US Uncut, LLC,
Plaintiff and Counterclaim Defendant,
v.
Ryan Clayton and John Does Nos. 1 through 10,
Defendants and Counterclaim Plaintiff,
v.
Carl Gibson, Mark Provost and US Uncut, LLC
Third Party Defendants.

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) Civil Action No. 1:16-CV-368-PB
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) JURY TRIAL DEMANDED
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ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES,
COUNTERCLAIMS, AND THIRD PARTY COMPLAINT
Defendant Ryan Clayton (“Clayton”) answers the Complaint for Injunctive Relief and
Damages filed by Plaintiff US Uncut LLC (“Plaintiff” or the “LLC”) as follows:
The statements in “Introduction” are purely introductory and general legal conclusions to
which no response is required. To the extent any response is necessary, Clayton denies them.
PARTIES
1.

Clayton lacks knowledge or information sufficient to form a belief about the truth

of the allegations in Paragraph 1 and therefore denies them.
2.

Clayton admits the allegations in Paragraph 2.

3.

Clayton lacks knowledge or information sufficient to form a belief about the truth

of the allegations in Paragraph 3 and therefore denies them.

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JURISDICTION AND VENUE
4.

Clayton admits the allegations in Paragraph 4.

5.

Clayton admits he is resident of New Hampshire. Otherwise, Clayton denies the

allegations in Paragraph 5.
ALLEGATIONS COMMON TO ALL COUNTS
6.

Clayton admits the allegations in the first sentence of Paragraph 6. Clayton

admits that he first started US Uncut, including creating the first US Uncut Facebook site on or
about February 3, 2011. Clayton admits that Gibson also created a Facebook site that he had
named “US Uncut,” but that Gibson created his site after Clayton. Clayton admits that one
purpose of US Uncut and his Facebook site was to promote and distribute information about the
US Uncut actions as well as news articles containing a progressive perspective. Clayton admits
the first national day of public action for the US Uncut initiative was on February 26, 2011.
Otherwise, Clayton either lacks knowledge or information sufficient to form a belief about the
truth of the allegations in Paragraph 6 and therefore denies them, or denies those allegations.
7.

Clayton admits that he invited Gibson to join his US Uncut initiative, and that

Clayton later permitted Gibson to be the third administrator of his US Uncut Facebook site.
Otherwise, Clayton denies the allegations in Paragraph 7.
8.

Clayton admits that, with his authorization, Joanne Gifford (“Gifford”) became

the second administrator of his US Uncut Facebook site, that Gibson and certain others were
later administrators of his US Uncut Facebook site, that administrators could add and remove
content from the news feed, and that Gifford and others helped Clayton manage US Uncut.
Otherwise, Clayton denies the allegations in Paragraph 8.

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9.

Clayton admits that, in 2013, he became the Executive Director of Wolf PAC and

that, from early 2011 until mid-June 2014, he was integrally involved in all of the operations of
US Uncut. Otherwise, Clayton denies the allegations in Paragraph 9.
10.

Clayton admits that, in 2013, Provost became involved in US Uncut. Otherwise,

Clayton denies the allegations in Paragraph 10.
11.

Clayton admits that, from early 2011 to June 2014, a small group of individuals

called the Uncut Braintrust, which included Clayton, Gifford, Gibson and a number of others,
discussed and established criteria for the posting and removal of content from Clayton’s US
Uncut Facebook site. Otherwise, Clayton denies the allegations in Paragraph 11.
12.

Clayton admits that, in mid-June 2014, Gibson wrongfully removed him as an

administrator of Clayton’s US Uncut Facebook site, thereby preventing him from inter alia
posting content to his site. Otherwise, Clayton denies the allegations in Paragraph 12.
13.

Clayton admits that, from sometime in or around mid-2015 to early August 2016,

information posted on www.usuncut.com was wrongfully distributed by Provost, Gibson and the
LLC using Clayton’s US Uncut Facebook site. Otherwise, Clayton either lacks knowledge or
information sufficient to form a belief as to the truth of the allegations in Paragraph 13 and
therefore denies them, or denies those allegations.
14.

Clayton admits that his US Uncut Facebook site is now, and always has been, a

preeminent, non-mainstream online source of news and information. Clayton admits that, as of
September 20, 2016, his US Uncut Facebook site has about 1.5 million followers. Otherwise,
Clayton either lacks knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 14 and therefore denies them, or denies those allegations.
15.

Clayton admits that www.usuncut.com contains advertisements and that

advertisements can generate significant profits for such a website. Clayton admits that, from
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sometime in or around mid-2015 to early August 2016, information posted on that website was
wrongfully distributed by Provost, Gibson and the LLC using Clayton’s Facebook site.
Otherwise, Clayton either lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 15 and therefore denies them, or denies those allegations.
16.

Clayton admits that, in mid-June 2014, Gibson removed him as an administrator

of his US Uncut Facebook site, and that, after Facebook restored him as an administrator of his
Facebook site in early August 2016, he removed Gibson as an administrator. Otherwise, Clayton
either lacks knowledge or information sufficient to form a belief as to the truth of the allegations
in Paragraph 16 and therefore denies them, or denies those allegations.
17.

See Answer to 16. Clayton admits that his US Uncut Facebook site is now being

used to distribute information posted on www.usuncut.news and that he is involved in that.
Otherwise, Clayton either lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 17 and therefore denies them, or denies those allegations.
18.

Clayton either lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 18 and therefore denies them, or denies those allegations.
19.

Clayton admits that the trademark application referenced in Paragraph 19 was

filed on his behalf and that he is involved in the www.usuncut.news site. Otherwise, Clayton
denies the allegations in Paragraph 19.
20.

Clayton either lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 20 and therefore denies them, or denies those allegations.
21.

Clayton admits the allegations in the third and fourth sentences of paragraph 21.

Otherwise, Clayton either lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 21 and therefore denies them, or denies those allegations.

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22.

Clayton either lacks knowledge or information sufficient to form a belief as to the

truth of the allegations in Paragraph 22 and therefore denies them, or denies those allegations.
23.

Clayton lacks knowledge or information sufficient to form a belief as to the truth

of the allegations in Paragraph 23 and therefore denies them.
24.

Clayton admits that he is the current administrator of his US Uncut Facebook site,

and therefore he has the ability to post to it. Clayton further admits that, in early August 2016,
Facebook restored Clayton as an administrator of his US Uncut Facebook site, and granted him
explicit permission to “assign Page roles to the members of your team.” Otherwise, Clayton
denies the allegations in Paragraph 24.
25.

Clayton admits that, since early August 2016, news and information from

www.usuncut.news has been posted on his US Uncut Facebook site. Clayton further admits that,
since February 2011, his US Uncut Facebook site has been, and continues to be, a nonmainstream online source of news and information used to post political articles containing a
progressive perspective. Otherwise, Clayton denies the allegations in Paragraph 25.
CAUSES OF ACTION
COUNT I
(Trademark Infringement 15 U.S.C. § 1125(a))
26.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
27.

Clayton denies the allegations in Paragraph 27.

28.

Clayton denies the allegations in Paragraph 28.

29.

Clayton denies the allegations in Paragraph 29.

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COUNT II
(Famous Trademark Dilution 15 U.S.C. § 1125(c))
30.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
31.

Clayton admits that, through his efforts to develop US Uncut, including on his US

Uncut Facebook site, his US Uncut service mark has achieved significant national notoriety.
Otherwise, Clayton either lacks knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 31 and therefore denies them, or denies those allegations.
32.

Clayton denies the allegations in Paragraph 32.

33.

Clayton denies the allegations in Paragraph 33.
COUNT III
(Cyberpiracy 15 U.S.C. § 1125(d))

34.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
35.

Clayton denies the allegations in Paragraph 35.

36.

Clayton denies the allegations in Paragraph 36.

37.

Clayton denies the allegations in Paragraph 37.

38.

Clayton denies the allegations in Paragraph 38.

39.

Clayton denies the allegations in Paragraph 39.

COUNT IV
(Unfair Competition and False Designation of Origin 15 U.S.C. § 1125(a))
40.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
41.

Clayton denies the allegations in Paragraph 41.

42.

Clayton denies the allegations in Paragraph 42.

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43.

Clayton denies the allegations in Paragraph 43.
COUNT V
(Unfair and Deceptive Acts and Practices in Violation of RSA 358-A:2)

44.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
45.

Paragraph 45 states a legal conclusion to which no response is required. To the

extent any response is necessary, Clayton denies the allegations in Paragraph 45.
46.

Clayton denies the allegations in Paragraph 46.

47.

Clayton denies the allegations in Paragraph 47.

48.

Clayton denies the allegations in Paragraph 48.

49.

Clayton denies the allegations in Paragraph 49.
COUNT VI
(Common Law Conversion and Trespass to Chattels)

50.

Clayton restates and realleges all of his answers to the allegations in the preceding

paragraphs as fully set forth herein.
51.

Clayton denies the allegations in Paragraph 51.

52.

Clayton denies the allegations in Paragraph 52.

53.

Clayton denies the allegations in Paragraph 53.

54.

Clayton denies the allegations in Paragraph 54.

55.

Clayton denies the allegations in Paragraph 55.
AFFIRMATIVE DEFENSES

In further answering, and by way of Affirmative Defenses, Clayton states as follows:
1.

Plaintiff’s complaint fails to state a claim upon which relief may be granted.

2.

Plaintiff’s claims are barred by the doctrine of unclean hands.

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3.

Plaintiff’s claims are barred, in whole or in part, by the doctrines of waiver,

laches, and/or estoppel.
4.

Plaintiff has suffered no damages and/or has failed to mitigate its damages, if any.

5.

Plaintiff’s economic damages, if any, were caused by the actions, inactions or

omissions of non-parties.
6.

Plaintiff’s economic damages, if any, are speculative and cannot be established

with reasonable certainty.
7.

Plaintiff’s claims are barred by the doctrine of acquiescence.

8.

Plaintiff has suffered no harm and/or irreparable harm.

9.

At all times, Clayton acted in a commercially reasonable, authorized, and lawful

manner.
10.

Plaintiff does not own the service mark US Uncut.

11.

Plaintiff does not own the US Uncut Facebook site.

12.

Plaintiff’s claims are barred by the doctrines of fraud and illegality.

Clayton reserves the right to supplement or amend his affirmative defenses and to raise
additional defenses during the remainder of this action.
COUNTERCLAIMS AND THIRD PARTY COMPLAINT
Defendant, Counterclaim Plaintiff, and Third Party Plaintiff Ryan Clayton (“Clayton”)
asserts the following Counterclaims against Plaintiff and Counterclaim Defendant US Uncut
LLC (the “LLC”) and the following Third Party Complaint against Third Party Defendants Carl
Gibson (“Gibson”) and Mark Provost (“Provost”):

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PARTIES
1.

Clayton is an individual who resides in New Hampshire.

2.

Upon information and belief, the LLC is a New Hampshire limited liability

company with a principal office at 816 Elm Street, Unit 262, Manchester, NH 03101.
3.

Upon information and belief, Gibson is an individual who resides at 816 Elm

Street, Unit 262, Manchester, NH 03101.
4.

Upon information and belief, Provost is an individual who resides at 217

Cameron Street, Manchester, New Hampshire 03103.
JURISDICTION
5.

This Court possesses subject matter jurisdiction under 28 U.S.C. § 1338 because

the Counterclaims and Third Party Complaint arises under federal trademark law, 15 U.S.C. §
1051 et. seq. This Court may also exercise supplemental jurisdiction over the state law claims
under 28 U.S.C. § 1367.
6.

This Court has jurisdiction over Gibson, Provost and the LLC because they do

business or reside in the New Hampshire, and, as to the LLC, because it transacts business and is
incorporated and registered to do business in New Hampshire.
FACTS COMMON TO ALL
COUNTERCLAIMS AND THIRD PARTY CLAIMS
7.

Clayton has extensive experience in the areas of progressive political action and

the distribution of news and information related to such activities. Prior to 2003, he worked for
the progressive non-profit organization, Citizens Action Coalition, as well as the Indiana House
of Representatives. After receiving a Bachelor’s Degree from Indiana University in 2003,
Clayton gained extensive experience as a progressive political operative, including in the areas of
advertising, fundraising, management, media relations, and distribution of news and information

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in both online and traditional forms of media. For example, from 2003 to 2009, Clayton worked
in a number of state and federal Democratic political campaigns. He then worked for a
Washington, D.C. political action committee from 2009 to 2010, as media analyst for a political
advertising agency from 2010 to 2013, and as the Executive Director of a progressive political
action committee, Wolf PAC, from 2013 to 2016. Clayton has received training as a political
and media operative from several progressive organizations, including Emily’s List, the New
Organizing Institute, and the Progressive Talent Initiative. As a result of his extensive
experience and training, Clayton has served as a spokesman for democratic and progressive
causes numerous times on national and cable television, including on MSNBC, Fox News,
Russia Today TV, CNN, and Headline News. Thus, by the time Clayton started US Uncut in
2011, he had significant experience with progressive political action and media relations.
8.

In early 2011, Clayton read an article in “The Nation” news magazine titled “How

to Build a Progressive Tea Party.” The article featured a grassroots effort that was occurring in
Great Britain to distribute news and information and organize protests against British companies
engaged in egregious tax avoidance.
9.

Clayton immediately decided to start a similar initiative in the United States,

which he called “US Uncut.” Thus, on or about February 3, 2011, he started a Facebook site,
titled US Uncut, which was linked to his personal Facebook account and personal email account.
10.

Using that Facebook site to launch US Uncut, Clayton immediately began

distributing news and information about American companies that engage in egregious tax
avoidance, and organizing protests against such companies and activities. Clayton’s US Uncut
Facebook site immediately garnered a meaningful number of individuals who were “following”
US Uncut, as well as commenting on the posts and dialogue on the site’s news feed.

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11.

Soon after launching US Uncut, Clayton noticed that one person was particularly

active on his Facebook site, Joanne Gifford (“Gifford”). Clayton reached out to Gifford to
secure her involvement in US Uncut at the national level. Gifford immediately became involved,
and Clayton therefore added her as the second person (after himself) who had “administrator”
credentials with respect to his US Uncut Facebook site.
12.

Gifford soon thereafter discovered that, after Clayton had started the US Uncut

initiative and his Facebook site, another person, Third Party Defendant Gibson, had begun using
the name “US Uncut” to engage in similar on-line political dialogue and attempts to organize
protests against American corporate tax avoiders.
13.

Unlike Clayton, Gibson had, by his own admission, “zero experience” with

political operations, national media relations, or nonviolent direct action protests, though he did
seem to have a passion for this cause. As a result, later in February 2011, Clayton and Gifford
asked Gibson if he wanted to join the US Uncut effort that Clayton had started. Gibson agreed.
14.

By that time, Clayton’s US Uncut Facebook site had already developed a

relatively large group of “followers,” particularly compared to the much smaller following of a
Facebook site that Gibson had started. Gibson also had started a Twitter account. The three
individuals therefore agreed to use Clayton’s US Uncut Facebook site and Gibson’s Twitter
account. Clayton later added Gibson as the an administrator of his US Uncut Facebook site, and
Gibson gave Clayton and Gifford the password and access to his Twitter account.
15.

The initial purpose of US Uncut was to distribute news and information about

American companies that engage in tax avoidance, while organizing and drawing attention to
non-violent direct action protests of US Uncut participants and volunteers. To successfully
pursue that cause, Clayton engaged two progressive media relations companies, Agit-Pop
Communications and Fitzgibbon Media, to assist in developing and pushing US Uncut’s media
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narrative to both online and progressive news outlets and mainstream media. As a result, US
Uncut acquired and began using www.usuncut.org (“.org domain”) as its Internet website.
16.

US Uncut was an immediate success. It gained significant notoriety very quickly,

resulting in an exploding group of followers of Clayton’s US Uncut Facebook site, a large email
list-serve on the .org domain, and thousands of individuals committed to working for the cause.
17.

US Uncut’s first major public action occurred on February 26, 2011, namely,

simultaneous protests in more than 50 cities throughout the United States. Clayton was the
leader of this action nationally, as well as leading local activities in Washington, D.C. Gifford
helped Clayton organize the national effort and led the protests in California. Gibson led the
effort in Mississippi, and a number of other individuals led activities in other sites around the
country. In fact, throughout the initial development of US Uncut, Clayton was seen as its
national leader by the public, media and others involved in the initiative, including making a
public appearance on the national cable news network MSNBC on behalf of US Uncut. By
contrast, Gibson commonly referred to himself as an “organizer” for US Uncut and/or the leader
of US Uncut Mississippi at this time.
18.

Due to the action on February 26, 2011 and a number of additional later protests,

combined with coordinated news reporting both on Clayton’s US Uncut Facebook site, US
Uncut’s .org domain, and in the mainstream press and media, US Uncut started to develop a
national reputation. As the initial founder of US Uncut, Clayton provided interviews to a
number of national cable news networks, including MSNBC and Russia Today TV, as well as
numerous online and print news media, and he appeared in mainstream news segments reporting
about US Uncut and its cause. Such broad publicity and media exposure expanded US Uncut’s
notoriety, as well as the ever increasing number of followers of Clayton’s US Uncut Facebook
site and the email list-serve on the US Uncut’s .org domain.
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19.

In addition, Clayton’s media exposure and the growing notoriety of US Uncut

attracted the attention of documentary film producers in 2011. That culminated in the production
of a film called “We’re Not Broke,” which can be viewed on Netflix or at the following
link: www.snagfilms.com/films/title/were_not_broke. The film prominently featured Clayton,
Gifford and Gibson as “co-founders” of US Uncut, as well as the efforts of them and others to
shine a light on American corporate tax avoidance. We’re Not Broke received national and
international acclaim, including earning an “official selection” at the Sundance Film Festival in
2012, all of which further increased US Uncut’s national profile and expanded the number of
followers of Clayton’s US Uncut Facebook site and the .org domain.
20.

Significantly, neither Third Party Defendant Provost nor Counterclaim Defendant

US Uncut LLC were even mentioned in We’re Not Broke. They were absent from the film
because they played no role in the formation or activities of US Uncut at that time. Indeed, the
LLC did not even exist until several years later.
21.

In keeping with US Uncut’s foundation as a grassroots initiative, Clayton formed

a group of the most active individuals to participate in its management and operations, called the
“Uncut Braintrust” (“Braintrust”). Members of the Braintrust included veteran political
organizers, media relations experts, and online organizers recruited by Clayton, as well as
experienced political activists like Gifford, and political novices like Gibson who were
committed to the cause. The Braintrust was collectively responsible for continuing to organize
the protests and other activities of US Uncut. Clayton continued to be involved in those
activities, as well as routinely appearing in both mainstream and online interviews and news
reporting as the founder of and spokesperson for US Uncut.
22.

Members of the Braintrust also were responsible for either finding or creating

content to post to Clayton’s US Uncut Facebook site. Although US Uncut created certain of its
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own content, it has always (from its start to the present) distributed news articles and other
information about progressive causes created by third parties, consistent with the US Uncut
mission and message. Much of the original content created by US Uncut consisted primarily of
Internet “memes.” A meme is a photo or video combined with a short narrative. Internet memes
are posted online (usually on social media) and typically designed to convey a social or political
message, with the intent that the meme is readily and frequently shared among users. A highly
successful meme “goes viral” when it is shared and spread to millions of users, thereby attracting
significant attention to the social media site that posted the meme.
23.

Clayton was integrally involved in both finding and creating content and memes

to be posted on his US Uncut Facebook site. In fact, the memes created by Clayton were some
of the most successful news and information ever posted by US Uncut, including memes that
“went viral” with multi-millions of social media viewers nationally and worldwide. For
example, one meme created by Clayton and posted on June 6, 2014 (which was just 10 days
before Gibson summarily ejected Clayton from his own Facebook site) was shared over 50,000
times, garnering more than 8,300 “likes,” and reaching over 2.2 million people.
24.

Finally, the members of the Braintrust were responsible for creating formalized

criteria for content and memes to be posted to and/or removed from Clayton’s US Uncut
Facebook site. Consequently, Clayton granted certain members of Braintrust credentials to post
content and memes on his Facebook site, and the members of the Braintrust had an established
protocol for posting content to the site, as well as deleting content from the site. In this way,
Clayton always remained integrally involved in the management of US Uncut, including
controlling the operation of his US Uncut Facebook site.
25.

In late 2011 and early 2012, events occurred that changed and greatly expanded

US Uncut’s mission and message. Occupy Wall Street and similar “occupy” movements became
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the focus of progressive grassroots movements. As a result, US Uncut expanded its mission and
message from opposing American corporate tax avoidance to distributing news and information
about a wider variety of progressive domestic and international political and social issues. The
huge publicity of Occupy Wall Street and the other “occupy” movements, as well as US Uncut’s
existing notoriety and broader mission and message, bolstered US Uncut’s national reputation
and further expanded the already significant number of followers of Clayton’s US Uncut
Facebook site and the email list-serve on US Uncut’s .org domain. In fact, by mid-2014,
Clayton’s US Uncut Facebook site had nearly a half a million followers.
26.

As US Uncut developed from 2012 to 2014, Clayton always devoted a significant

amount of his time to US Uncut and was integrally involved in all of the various operations of
US Uncut. In addition to committing significant time to US Uncut, Clayton used a significant
amount of his own personal resources to fund US Uncut. From at least 2011 to mid-2014,
Gibson contributed little, if any, of his own personal funds to support US Uncut. Clayton also
helped secure critical financing for US Uncut through significant grants, including a grant from
the ARCA Foundation to the Institute for Policy Studies specifically for the activities of US
Uncut, which funds were integral to support and sustain its operations.
27.

Provost became involved in US Uncut sometime in 2013. He eventually became

a member of the Braintrust and was allowed to post content to Clayton’s US Uncut Facebook
site, though Clayton believes that Provost was never an administrator of his site.
28.

Upon information and belief, in the first half of 2014, Provost and Gibson hatched

a plan to wrongfully take control of US Uncut for their personal benefit, including taking control
of Clayton’s US Uncut Facebook site. As early as May 2014, Provost discussed writing articles
and posting links to Facebook in order to generate revenue through advertising. Subsequently,
Provost – either alone at that time and/or or together with Gibson at that time or later – created a
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plan to start a new Internet website other than US Uncut’s .org domain, post content to that new
website, capitalize on the extensive group of followers of Clayton’s US Uncut Facebook site and
the .org domain to sell advertising on that new website, and exclude Clayton and all of others
individuals involved in US Uncut in order retain all of the profits for themselves.1
29.

In June 2014, Provost and Gibson concocted a false dispute with Clayton

concerning a meme that Clayton had posted to his US Uncut Facebook site. They used that faux
dispute, first, to remove Clayton’s right to post content to his Facebook site and, next, to remove
him as an administrator of his Facebook site. Though there were established protocols on
removing impermissible posts from the Facebook site, which administrators of the site were
allowed to do, the removal of posting privileges and administrator access was impermissible.
Accordingly, in essence, Provost and Gibson kicked Clayton out of the organization that he had
started, and wrongfully took control of Clayton’s Facebook site to do so.
30.

Shortly thereafter, Provost and Gibson did the same thing with respect to all of the

other members of the Braintrust, including US Uncut’s other co-founder, Joanne Gifford. By
doing so, Provost and Gibson secured US Uncut for themselves personally, including taking
control of Clayton’s US Uncut Facebook site.
31.

Clayton attempted at that time to regain access to his US Uncut Facebook site.

According to Facebook’s terms of use, the only way to do so was to secure agreement from the
current administrators of the site. In August 2014, at Clayton’s request, a member of the Uncut
Braintrust, John Sellers, proposed a conference call of Braintrust members to try to resolve the
dispute. While a number of Braintrust members agreed to do so, Gibson and Provost refused,
and did not restore Clayton as an administrator of his own Facebook site. Similarly, while many

1

Clayton was unaware at the time of the Provost/Gibson scheme, learning of it for the first time
years later from a third party that Provost had approached about participating in it.
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other Braintrust members wanted to help Clayton and would have restored his Facebook site to
him, they were unable to do so because Provost and Gibson had kicked them out too by
removing any administrator and posting rights they had on Clayton’s Facebook site.
32.

From mid-2014 to mid-2016, Provost and Gibson ran US Uncut by capitalizing

primarily on the goodwill and reputation associated with the mark US Uncut as well as the
significant following of Clayton’s Facebook site. While the mission and message of US Uncut
remained largely unchanged, upon information and belief, Provost and Gibson formed the LLC
in September 2014, transferred the .org domain’s email list-serve, and started creating content
and selling advertisements on the LLC’s new domain, www.usuncut.com (“.com domain”). By
doing so on the LLC’s .com domain instead of on the US Uncut .org domain, and then by
distributing that content broadly to the extensive list of followers of Clayton’s US Uncut
Facebook site and the email list-serve from US Uncut’s .org domain, Provost and Gibson
wrongfully secured significant profits for themselves.
33.

In the summer of 2016, Clayton learned for the first time of a process through

Facebook to regain administrator status for a Facebook site from which he had been wrongfully
excluded by current administrators. As a result, Clayton initiated efforts at that time to regain
control of his US Uncut Facebook site. Specifically, in July 2016, Clayton filed an official
request with Facebook to return his US Uncut site to him. At about the same time, Clayton filed
an application with the United States Patent and Trademark Office for federal registration in the
United States of the service mark “US Uncut.”2

2

The application is pending and has been assigned Serial No. 87099007. Clayton is seeking a
federal registration in International Class 41, for “News reporting services, namely, providing
news in the nature of current event reporting; providing news, information, and commentary
through a website, electronic newsletter, and social media in the nature of current events relating
to politics, the economy, and human rights; providing an interactive, online web journal in the
nature of current events relating to politics, the economy, and human rights.”
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34.

As part of his request to Facebook, Clayton provided evidence that he created the

US Uncut Facebook site, that the site was an extension of his own personal Facebook account
and personal email account, and that he was the initial and primary administrator. Facebook
agreed with Clayton. Thus, in early August 2016, Facebook restored Clayton as an administrator
of his US Uncut Facebook site, and granted him explicit permission to “assign Page roles to the
members of your team.” Clayton immediately removed Gibson as an administrator of his site,
revoked the credentials of Provost to post content to his site, and removed additional Facebook
accounts that Gibson had assigned page roles to since June 2014.
35.

In addition to regaining control of his US Uncut Facebook site, Clayton also

obtained a copy of the email list-serve from US Uncut’s .org domain. He was able to do so,
upon information and belief, because the operator of the .org domain acknowledges Clayton’s
ownership rights with respect to the list-serve as the initial founder of US Uncut.
36.

Since August 2016, Clayton has been engaged in the operations of US Uncut,

retaining the mission, message and activities of it. Although a new website was started for this
purpose, www.usuncut.news (the “.news domain”), Clayton continues to distribute content for
US Uncut to the followers of his Facebook site and members of the US Uncut list-serve.
37.

The Counterclaim Defendant and Third Party Defendants are simultaneously

continuing to operate the LLC and infringing on Clayton’s US Uncut mark. Specifically, they
are creating and posting content to their infringing .com domain. Upon information and belief,
they are distributing that content using the subscriber list from US Uncut’s .org domain and
Gibson’s Twitter account. They are also distributing content through the Facebook sites of two
organizations, The Other 98% and Occupy Democrats. As a result, upon information and belief,
the number of visitors to the LLC’s .com domain has maintained its historical average, and the
Provost, Gibson and the LLC continue to profit from their misuse of Clayton’s mark.
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COUNTERCLAIM AND THIRD PARTY CLAIM I
Trademark Infringement and False Designation of Origin, 15 U.S.C. §1125
38.

Clayton incorporates by reference the allegations in Paragraphs 1-37 of the

Counterclaims and Third Party Complaint, and makes them a part of this count as if set forth
fully at length herein.
39.

Clayton owns the US Uncut mark.

40.

The US Uncut mark in the field of news reporting services is suggestive in nature,

and therefore is an inherently distinctive mark entitled to protection. In the alternative, the US
Uncut mark is descriptive in nature, but has acquired secondary meaning in the marketplace, and
therefore is entitled to protection.
41.

Counterclaim Defendant’s and Third Party Defendants’ use of the US Uncut mark

through the .com domain, the Facebook sites of The Other 98% and Occupy Democrats,
Gibson’s Twitter account, and other outlets is identical or nearly identical to Clayton’s use of the
US Uncut mark in sight, sound, and commercial meaning.
42.

Counterclaim Defendant’s and Third Party Defendants’ use of the US Uncut mark

is likely to cause confusion or mistake or to deceive consumers and the public as to the source,
origin, sponsorship or affiliation of Clayton’s services with the services of the Counterclaim
Defendant and Third Party Defendants. Such conduct causes consumers, advertisers, and the
public to believe that Counterclaim Defendant and Third Party Defendants are in some way
connected to Clayton, and is designed to take advantage of the reputation and goodwill that
Clayton has built up in the United States through his use of the US Uncut mark.
43.

Counterclaim Defendant’s and Third Party Defendants’ use of the US Uncut mark

constitutes deliberate and willful unauthorized use and copying of Clayton’s mark. Counterclaim
Defendant’s and Third Party Defendants’ intention in using the US Uncut mark is to deceive,

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mislead and confuse consumers to enable them to trade-off of the reputation and goodwill that
Clayton has built up in the US Uncut mark.
44.

Counterclaim Defendant’s and Third Party Defendants’ unauthorized use of the

US Uncut mark in connection with news reporting services constitutes willful trademark
infringement, false designation of origin and unfair competition to the substantial and irreparable
injury of Clayton and his business reputation and goodwill, and violates Section 43(a) of the
Lanham Act, 15 U.S.C. § 1125(a).
45.

Counterclaim Defendant and Third Party Defendants intend to continue their

infringing acts, unless restrained from doing so by this Court.
46.

As a direct and proximate result of Counterclaim Defendant’s and Third Party

Defendants’ unlawful acts, Clayton has suffered, is suffering, and will continue to suffer harm,
injury and damages in the form of lost revenue and damage to his goodwill and business
reputation, and attorneys’ fees, costs, and expenses, for which Clayton is entitled to relief.
47.

As a direct and proximate result of Counterclaim Defendant’s and Third Party

Defendants’ acts described above, Clayton has suffered and is suffering immediate and
irreparable harm, and has no adequate remedy at law to address all injuries that Counterclaim
Defendant and Third Party Defendants have caused and continue to cause. Clayton is therefore
entitled to preliminary and permanent injunctive relief, enjoining Counterclaim Defendant’s and
Third Party Defendants’ continued and future use of the US Uncut mark.
COUNTERCLAIM AND THIRD PARTY CLAIM II
Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d)
48.

Clayton incorporates by reference the allegations in Paragraphs 1-47 of the

Counterclaims and Third Party Complaint, and makes them a part of this count as if set forth
fully at length herein.

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49.

Counterclaim Defendant and Third Party Defendants have used and trafficked in a

domain name – www.usuncut.com – that is identical or confusingly similar to Clayton’s US
Uncut mark.
50.

Counterclaim Defendant and Third Party Defendants have used and trafficked in

their domain name with a bad faith intent to profit from the US Uncut mark.
51.

Counterclaim Defendant’s and Third Party Defendants’ acts constitute a violation

of the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d).
52.

As a direct and proximate result of Counterclaim Defendant’s and Third Party

Defendants’ unlawful acts, Clayton has suffered, is suffering, and will continue to suffer harm,
injury and damages in the form of lost revenue and damage to his goodwill and business
reputation, for which Clayton is entitled to relief under 15 U.S.C. § 1117(a) and (d).
53.

As a direct and proximate result of Counterclaim Defendant’s and Third Party

Defendants’ unlawful actions and violation of 15 U.S.C. § 1125(d), Clayton is also entitled to an
order requiring Counterclaim Defendant and Third Party Defendants to relinquish all rights in the
.com domain, cancel that domain, or transfer the domain name to Clayton, pursuant to 15
U.S.C. § 1125(d)(1)(C).
COUNTERCLAIM AND THIRD PARTY CLAIM III
Conversion and Trespass to Chattels
54.

Clayton incorporates by reference the allegations in Paragraphs 1-53 of the

Counterclaims and Third Party Complaint, and makes them a part of this count as if set forth
fully at length herein.
55.

Clayton owns the US Uncut Facebook site and it is his property.

56.

Using improper means and without authority, the Third Party Defendants

wrongfully took control of Clayton’s US Uncut LLC Facebook site by removing Clayton as an

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administrator and denying Clayton access to it. From mid-June 2014 through early August 2016,
Counterclaim Defendant and Third Party Defendants used Clayton’s US Uncut Facebook site for
their own personal interests without Clayton’s authorization or consent.
57.

Counterclaim Defendant’s and Third Party Defendants’ conduct constitutes

conversion and trespass to chattels.
58.

Through this lawsuit, Counterclaim Defendant and Third Party Defendants seek

to wrongfully regain possession and control of Clayton’s US Uncut Facebook site.
59.

Clayton is entitled to injunctive relief to compel Counterclaim Defendant and

Third Party Defendants to relinquish any alleged ownership right or right to control or use
Clayton’s US Uncut Facebook site, and to prevent Counterclaim Defendant and Third Party
Defendants from regaining administrator rights to Clayton’s US Uncut Facebook site. Also, as a
direct and proximate result of Counterclaim Defendant’s and Third Party Defendants’ wrongful
conduct, Clayton is also entitled to an award of damages.
COUNTERCLAIM AND THIRD PARTY CLAIM IV
Violation of RSA 358-A
60.

Clayton incorporates by reference the allegations in Paragraphs 1-59 of the

Counterclaims and Third Party Complaint, and makes them a part of this count as if set forth
fully at length herein.
61.

Counterclaim Defendant and Third Party Defendants have engaged in unfair

methods of competition and used unfair and deceptive acts and practices in trade and commerce
in New Hampshire. Such conduct includes, but is not limited to: (i) passing off their US Uncut
organization as that of Clayton’s US Uncut organization by using Clayton’s US Uncut mark and
the .com domain name; (ii) causing likelihood of consumer confusion or misunderstanding as to
the source, sponsorship, approval, or certification of services by using Clayton’s US Uncut mark

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and the .com domain name; and (iii) causing a likelihood of confusion or of misunderstanding as
to their affiliation, connection or association with, or approval or certification by Clayton by
using his US Uncut mark without his consent.
62.

Counterclaim Defendant and Third Party Defendants have engaged and continue

to engage in this conduct in a willful and knowing manner, and such unfair and deceptive acts in
the conduct of trade constitute a violation of RSA 358-A.
63.

Clayton has been damaged irreparably by Counterclaim Defendant’s and Third

Party Defendants’ unlawful and unfair conduct and violation of RSA 358-A, and such irreparable
damage will continue to occur unless and until they are enjoined from doing so by this Court.
64.

As a direct and proximate result of Counterclaim Defendant’s and Third Party

Defendants’ unlawful and unfair conduct and violation of RSA 358-A, Clayton is entitled to
recover damages, treble damages, costs, attorneys’ fees and injunctive relief, all within the
jurisdictional limits of this Court.
DEMAND FOR A JURY TRIAL
Pursuant to Rules 38 and 39 of the Federal Rules of Civil Procedure, Clayton demands a
trial by jury on all issues triable as of right by a jury.
REQUESTS FOR RELIEF
WHEREFORE, Clayton respectfully requests that this Court enter judgment as follows:
A.

Preliminarily and permanently enjoin Counterclaim Defendant and Third Party

Defendants from (i) directly or indirectly using Clayton’s US Uncut mark or any confusingly
similar name or mark; (ii) creating any impression that Counterclaim Defendant’s or Third Party
Defendants’ products or services have any association, connection or affiliation with Clayton or
Clayton’s US Uncut mark; (iii) competing unfairly with Clayton or continuing to hold
themselves out as US Uncut; (iv) claiming any ownership, possessory, or administrative rights to
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or over Clayton’s US Uncut Facebook site; and (v) engaging in any other conduct that is likely to
cause confusion or cause mistake or to deceive as to the source, affiliation, connection or
association with Clayton’s services;
B.

Order Counterclaim Defendant and Third Party Defendants to relinquish all rights

in the .com domain, cancel the .com domain, or transfer the .com domain to Clayton;
C.

Order Counterclaim Defendant and Third Party Defendants to cease using the US

Uncut mark in conjunction with any distribution of new or information, including, but not
limited to, on the .com domain, Gibson’s Twitter account, and the Facebook sites of The Other
98% and Occupy Democrats;
D.

Order Counterclaim Defendant and Third Party Defendants to deliver upon oath,

to be impounded during the pendency of this action, and for destruction pursuant to judgment
herein, all advertisements, promotional materials, and marketing materials in their possession,
custody or control which contain Counterclaim Defendant’s or Third Party Defendants’
infringing use of Clayton’s US Uncut mark;
E.

Require Counterclaim Defendant and Third Party Defendants to file with this

Court and serve on Clayton, within thirty days after entry of the injunction, a report in writing
under oath setting forth in detail the manner and form in which Counterclaim Defendant and
Third Party Defendants have complied with the requirements of the foregoing injunction;
F.

Award Clayton his actual damages and any additional profits attributable to

Counterclaim Defendant’s and Third Party Defendants’ infringement of the US Uncut mark;
G.

Award Clayton statutory damages of $100,000 for Counterclaim Defendant’s and

Third Party Defendants’ bad faith use of and trafficking in the infringing .com domain pursuant
to 15 U.S.C. § 1117(d);

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H.

Award Clayton compensatory and punitive damages, exemplary damages, and

attorneys’ fees, costs and expenses under each count of the Counterclaims and Third Party
Complaint, in an amount to be determined at time of trial, together with pre-judgment and postjudgment interest thereon;
I.

Dismiss Plaintiff’s Complaint;

J.

Enter judgment for Clayton on the claims in Plaintiff’s Complaint;

K.

Award Clayton his costs, including interest and attorneys’ fees incurred in

connection with this matter; and
L.

Grant such further relief as may be just, equitable and appropriate.

Respectfully submitted,
Ryan Clayton
By his Attorneys,
McLane Middleton, Professional Association

Dated: September 20, 2016

By: /s/ Cameron G. Shilling
Cameron G. Shilling, N.H. Bar No. 11363
Nicholas F. Casolaro, N.H. Bar No. 20612
900 Elm Street, P.O. Box 326
Manchester, NH 03105-0326
Telephone: (603) 625-6464
Facsimile: (603) 625-5650
cameron.shilling@mclane.com
nicholas.casolaro@mclane.com

CERTIFICATE OF SERVICE
I hereby certify that this document was filed by the ECF system and served on all counsel
of record electronically as a result thereof on the 20th day of September, 2016.
/s/ Cameron G. Shilling
Cameron G. Shilling

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