| Washington Post Co. v. Total News, Inc. No. 97 Civ. 1190 (PKL) UNITED STATES DISTRICT COURT COMPLAINT -against- TOTAL NEWS, INC., DATAPIX INC., GROUPER TECHNOLOGIES INC., ROMAN GODZICH, LARRY PAGNI AND NORMAN BASHKINGY, Defendants. Plaintiffs The Washington Post Company and its wholly owned subsidiary Digital Ink Co., Time Inc. and its wholly owned subsidiary Entertainment Weekly, Inc., Cable News Network, Inc., Times Mirror Company d/b/a Los Angeles Times, Dow Jones & Company, Inc., and Reuters America, Inc., by their attorneys, Debevoise & Plimpton, for their Complaint, allege as follows: Preliminary Statement 1. This action arises out of blatant acts of misappropriation, trademark dilution and infringement, willful copyright violations, and other related tortious acts all committed by Defendants in connection with their operation of a parasitic site known as "totalnews.com" on that portion of the Internet known as the World Wide Web. * * * * * 5. Because of its graphic, interactive and user-friendly nature, the World Wide Web offers unique opportunities for businesses, especially those like Plaintiffs', whose main purpose is to provide news and information in distinctive, creative formats. The World Wide Web also is a significant advertising medium; it is estimated that, for the first three quarters of 1996, businesses spent over $150 million advertising on websites. 6. As a result, many commercial websites are entirely advertiser-supported and can be visited for free by the public. If the content of a free website is attractive to potential users, advertisers will pay for the privilege of inserting their advertisements into that content, just as they have done for years with respect to television programming, print magazines, and newspapers. 7. Plaintiffs each day attract thousands of users directly to their websites by providing their own substantive content. Plaintiffs and their affiliates also sell substantial amounts of advertising based on the expectation that users will be attracted by that content. This advertising is posted on Plaintiffs' respective websites and is viewed along with Plaintiffs' substantive content. 8. Although Defendants, too, derive revenue by selling advertisements placed within the totalnews.com website, Defendants provide little or no content of their own. Instead Defendants have designed a parasitic website that republishes the news and editorial content of others' websites in order to attract both advertisers and users. Specifically, Defendants' website is designed to feature the content of Plaintiffs' and others' websites, inserted within a "frame" on the computer screen that includes Defendants' totalnews.com logo and URL as well as advertising that Defendants have sold. 9. As described in detail below, Defendants' conduct violates a long list of rights enjoyed by Plaintiffs. At the core of Defendants' unlawful conduct, however, is that Defendants literally misappropriate (i) each of the Plaintiffs' own trademarks, which symbolize the strength of their respective reputations for high quality news reporting, along with (ii) copyrighted material in which each Plaintiff has invested heavily to create and display. Defendants commit these acts for the purpose of selling advertising space, for their own profit, in direct competition with Plaintiffs. 10. Simply put, Defendants are engaged in the Internet equivalent of pirating copyrighted material from a variety of famous newspapers, magazines, or television news programs; packaging those stories to advertisers as part of a competitive publication or program produced by Defendants; and pocketing the advertising revenue generated by their unauthorized use of that material. As explained below, just as that conduct would not be tolerated in the world of print and broadcasting, it is equally unlawful in the world of "cyberspace." Jurisdiction and Venue 11. This Court has jurisdiction over the subject matter of this action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338, 28 U.S.C. § 2201, and 28 U.S.C. § 1367. 12. This Court has personal jurisdiction over all Defendants by virtue of their transacting, doing, and soliciting business in this district and pursuant to N.Y. Civ. Prac. L. & R. 302(a). Defendants have made, and continue to make, their infringing website available to countless users within this district; have republished Plaintiffs' content and information originating on computer servers located in this district; have promoted, and continue to promote their website to countless users within this district, and, as a result, have gained substantial revenue from interstate advertisers wishing to reach these users to the detriment of Plaintiffs. 13. Venue is proper in this district under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claims occurred in this district. The Parties [ 14-27 set forth information on the parties, including the name, principal place of business, and publications of the plaintiffs. Plaintiffs include the publishers of the Washington Post, Entertainment Weekly, the L.A. Times, Time, Sports Illustrated, Money, Fortune, Life, and the Wall Street Journal as well as CNN and Reuters.] * * * * * Facts Common to All Claims 28. Each of the Plaintiffs is a well-respected source of copyrighted news stories and other information. Each Plaintiff spends substantial amounts of time, money and effort collecting, preparing and distributing copyrighted accounts of "hot news" and other stories of interest in a variety of media, including, but not limited to, their respective websites. As a result, each Plaintiff is well-known to the public and owns one or more registered and famous trademarks used to indicate the origin of its reliable reports. For example:
(a) Plaintiff Time owns, inter alia: ii. the registered trademarks Sports Illustrated for Kids (Reg. No. 1,578,963) and SI For Kids (Reg. No. 1,863,715), used in connection with the magazine published under those marks both in print form and on the Internet, and the trademark sifk.com, used in connection with the Internet form of the magazine; iii. the registered service mark and trademark Sports Illustrated (Service Mark Reg. No. 1,969,741; Trademark Reg. No. 754,203), used in connection with the magazine published under that mark both in print form and on the Internet, and the trademarks SI Online and sportsillustrated.com, used in connection with the Internet form of the magazine; iv. the registered trademark Life (Reg. No. 2,003,191), used in connection with the magazine published under that mark both in print form and on the Internet; v. the registered trademark Fortune (Reg. No. 1,711,702), used in connection with the magazine published under that mark both in print form and on the Internet, and the trademark fortune.com, used in connection with the Internet form of the magazine; vi. the registered trademark Money (Reg. No. 1,901,711), used in connection with the magazine published under that mark both in print form and on the Internet, and the trademark money.com, used in connection with the Internet form of the magazine; and vii. the registered service mark Pathfinder (Service Mark Reg. No. 1,979,239) and the trademark pathfinder.com, used in connection with the Pathfinder website where Time provides links to the websites of all the magazines herein mentioned as well as Entertainment Weekly magazine and other Time properties.
(c) Plaintiff Washington Post owns the registered trademark The Washington Post (Reg. Nos. 1,665,831 and 1,665,832) as well as the trademark washingtonpost.com, used in connection with, respectively, the print version of The Washington Post newspaper and the Internet version published at Washington Post's website via its wholly owned subsidiary, Digital Ink. (d) Plaintiff CNN owns the registered service mark CNN (Reg. No. 1,597,839), used in connection with news stories distributed via satellite to television viewers throughout the world and to computer users throughout the world via its website which uses the trademark "cnn.com." (e) Plaintiff Los Angeles Times owns the registered trademark Los Angeles Times (Reg. Nos. 987,427 and 989,634) as well as the trademark latimes.com, used in connection with, respectively, the print version of Los Angeles Times and the Internet version published at its website. (f) Plaintiff Dow Jones owns the registered trademark The Wall Street Journal (Reg. Nos. 408,379; 1,368,347; 1,498,049; and 1,960,159) used in connection with the print version of The Wall Street Journal, the Internet version of The Wall Street Journal published at the wsj.com website, and television broadcasting services and the trademark wsj.com (Ser. No. 75/132/607), used in connection with the Internet version of The Wall Street Journal. (g) Plaintiff Reuters, through its parent corporation Reuters
Limited, owns rights in the registered trademark Reuters (Reg. No. 1,008,206)
used in connection with the nationally and internationally famous Reuters
News Service, providing copyrighted news stories to various publishers,
including Internet website publishers such as Yahoo! 30. At the heart of Defendants' wrongful conduct is a practice known as "framing" that causes Plaintiffs' websites to appear not in the form that Plaintiffs intended, but in an altered form designed by Defendants for their own economic advantage. The totalnews.com website consists of lists of numerous "name-brand" news sources, including the famous trademarks exclusively associated with Plaintiffs in the public mind. When a user of totalnews.com "clicks" on one of those famous trademarks with the computer mouse, the user accesses a Plaintiff's corresponding website. (In Internet parlance, the trademarks here function as "hyperlinks": areas on the screen that, when clicked on, take the user directly to another website.) Plaintiff's site, however, does not then fill the screen as it would had the user accessed Plaintiff's site either directly or by means of a hyperlink from a website that does not "frame" linked sites. Nor does Plaintiff's URL appear at the top of the screen as it normally would. Instead, part of Plaintiff's site is inserted in a window designed by Defendants to occupy only a portion of the screen. Masking part of Plaintiff's site is the totalnews.com "frame," including, inter alia, the "Total News" logo, totalnews.com URL, and advertisements that others have purchased from Defendants. 31. Attached to the Complaint as Exhibit A is a printout from the Internet showing the totalnews.com home page as it actually appears to an average user. (See Figure 1 of Exhibit A.) Defendants' "frame" consists of the totalnews.com URL at the top; rectangular icons with the trademarked names of certain Plaintiffs and others running down the left margin; and advertising sold by Defendants at the bottom. At the right-center portion of the screen is the news window. When the user first logs on to the totalnews.com website, this window is occupied by a "compass"-style array of hyperlinks that lead to still more websites, run by Plaintiffs and other providers of original content, that Defendants republish inside their frame. 32. Trademarks of Plaintiffs CNN, Time (Time Daily) and Reuters appear in the large icons at the left side of the totalnews.com frame. The trademarks of Plaintiffs Dow Jones, Los Angeles Times and Washington Post become visible when a user clicks on the "National" link on the totalnews.com compass. Additional trademarks of Plaintiff Time are visible when a user clicks elsewhere on the compass: Entertainment Weekly (owned by Time's subsidiary, Plaintiff Entertainment Weekly, Inc.) and Life are under the "Entertainment" link, Sports Illustrated and SI For Kids are under the "Sports" link, and Fortune and Money are under the "Business" link. 33. For example, if a user clicks on the "Washington Post" link under "National," the right-center portion of the screen fills with Plaintiff Washington Post's website, which is an electronic version of The Washington Post newspaper. The totalnews.com URL remains in place at top, the "TotalNEWS" logo and advertising sold by Defendants remain in place at bottom, and the large icons created by totalnews.com remain in place at left. (See Figure 2 of Exhibit A.) Plaintiff Washington Post's own content, which is designed to occupy the entire screen, is partially obscured in order to fit inside Defendants' frame. 34. This process can be repeated over and over. For example, after viewing Plaintiff Washington Post's website through the totalnews.com frame, the user can click on the link provided by totalnews.com for the Time Magazine website maintained by Plaintiff Time. The Time Magazine website then replaces The Washington Post's website in the news window, while the totalnews.com frame and URL remain unchanged. (See Figure 3 of Exhibit A.) 35. Defendants' site not only relies entirely on the substantive
content of Plaintiffs' sites to attract users, but also keeps those users
exposed to advertising that Defendants have sold and to Defendants' logo
and URL. Absent the "framing" by Defendants described above,
someone wishing to view the content of Plaintiffs' sites would, upon accessing
those sites, see only Plaintiffs' material as Plaintiffs intend for it
to be seen. Use of Defendants' website thus results in continuous, prolonged
exposure to the logo, URL and advertising of totalnews.com. Defendants
have promoted totalnews.com to advertisers and the public based entirely
on Defendants' ability to republish the content of Plaintiffs' sites within
the totalnews frames, including frames containing advertising. As Defendants
themselves state in an appeal to potential advertisers that is included
in the totalnews.com website (emphasis added): 36. Defendants also distort, and divert from, the content on Plaintiffs' sites that otherwise would be the only substantive material appearing on a user's screen. Among other things, by juxtaposing advertising sold by Defendants against advertising sold by Plaintiffs on their own sites, and by obscuring the advertising on Plaintiffs' sites, Defendants directly compete against Plaintiffs and interfere with Plaintiffs' contractual relationships with their advertisers. For example, advertisers may buy space on a website (much as they do on a television program or in a newspaper or magazine) based on the expectation that their advertisement will appear in a certain location or slot, be of a certain size or duration, or be free from the "clutter" of competing advertisements -- particularly advertisements for competing products. Yet an advertisement on one of Plaintiffs' sites, when seen through the totalnews.com window, is reduced in size, may even be totally obscured by the totalnews frame, and is forced to compete for the user's attention with the visual clutter of the totalnews.com frame, including other advertising -- possibly including advertising for directly competitive products. 37. Although the exact scope of Defendants' taking and misuse of Plaintiffs' content varies from website to website, to some degree the problems described above exist with respect to each of Plaintiffs' websites. For example: (a) Plaintiff CNN has devised a technology that, at least for now, causes the totalnews.com frame to dissolve at some point after a user links to cnn.com from totalnews.com. Despite the use of this technology, however, the totalnews.com frame can remain visible for a minute or more after a user links from totalnews.com to cnn.com. Moreover, in at least some situations, after the frame dissolves a "pop-up window" then appears, superimposed on the CNN website, that contains a hyperlink inviting users to return to totalnews.com with one click of the mouse. (b) Plaintiff Dow Jones requires a paid subscription in order to access the majority of the website that it maintains at wsj.com, popularly known as The Wall Street Journal Interactive Edition. Nonetheless, the wsj.com home page -- including news bulletins from The Wall Street Journal, the logos of The Wall Street Journal Interactive Edition and wsj.com, and advertising sold by Dow Jones -- is readily accessible to nonsubscribers and subscribers alike, and is "framed" by defendants so that Dow Jones's own content is altered and partially obscured. (c) At certain other websites, such as that of Plaintiff
Los Angeles Times, the totalnews.com frame can disappear if the user goes
beyond Plaintiff's home page and clicks on certain additional hyperlinks
within Plaintiff's site. This effect, however, does not occur (if at all)
until a user already has viewed substantial amounts of Plaintiff's site
within the totalnews.com frame. COUNT I: Misappropriation 38. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 37 above as if fully set forth herein. 39. Plaintiffs expend substantial resources to gather and display the news and information found on their websites. Much of that news and information is time-sensitive, and is frequently updated to reflect the very latest world and national developments. The website washingtonpost.com, for example, generally is updated more than 30 times a day. Defendants' advertiser-supported, "hot news" website openly free-rides on Plaintiffs' efforts by simply lifting Plaintiffs' content wholesale and selling advertising based on proximity to that content. Defendants' service not only is competitive with, but in fact consists of, Plaintiffs' advertiser-supported hot news websites; Defendants even expressly hold out totalnews.com as a source of "breaking news." Defendants' free-riding substantially reduces Plaintiffs' economic incentive to expend the resources necessary to gather and display material on their own websites. 40. By usurping the content of Plaintiffs' websites and causing each of Plaintiffs' websites to appear within a window on Defendants' site, Defendants unfairly have misappropriated valuable commercial property belonging to the Plaintiffs. 41. Defendants directly compete for advertising revenue with Plaintiffs, and Defendants' business -- the sale of advertising space -- depends entirely on the commercial value of the news and other material appearing on Plaintiffs' websites. Defendants expressly promote their website to advertisers on the basis of their ability to feature Plaintiffs' content next to commercial messages an advertiser might place in space purchased from Defendants. 42. Defendants' conduct constitutes misappropriation and unfair competition under the common law of the State of New York because it takes the entire commercial value of the news reported at each of Plaintiffs' respective sites and literally sells it to others for Defendants' own profit. 43. Defendants' acts of misappropriation and unfair competition have caused and are causing irreparable injury and damage to Plaintiffs in an amount not capable of determination and, unless restrained, will cause further irreparable injury, leaving Plaintiffs with no adequate remedy at law. COUNT II: Federal Trademark Dilution 44. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 43 above as if fully set forth herein. 45. Plaintiffs' trademarks (including their service marks) are among the most famous trademarks used in interstate commerce in the United States. Among other things, (a) the trademarks are inherently highly distinctive and have a high degree of acquired distinctiveness; (b) Plaintiffs each have used their respective trademarks for many years throughout the United States and worldwide in connection with copyrighted news stories and other related products and services; (c) Plaintiffs have advertised and publicized their trademarks for a considerable amount of time throughout the United States and worldwide; (d) Plaintiffs have used the trademarks in a trading area of broad geographical scope encompassing all of the states and territories of the United States and more than 210 other nations and territories worldwide; (e) the trademarks are the predominant trademarks for the news reports and services and are important or predominant trademarks in other related channels of trade; (f) the trademarks have an extremely high degree of recognition among consumers, including users of the Internet in the United States; (g) there are no similar trademarks in use to any extent or in any nature by third parties in connection with such a broad range of products and services and (h) certain of the trademarks identified in paragraph 28 currently are registered under the Lanham Act on the Principal Register. 46. The acts of Defendants as described above dilute and detract from the distinctiveness of Plaintiffs' famous trademarks, with consequent damage to Plaintiffs and the business and goodwill symbolized by those trademarks, in violation of the Federal Trademark Dilution Act of 1995, codified at 15 U.S.C. § 1125(c). 47. In particular, Defendants have diluted the following trademarks of Plaintiffs: The Washington Post, washingtonpost.com, Time, time.com, Entertainment Weekly, Sports Illustrated for Kids, SI For Kids, sifk.com, Life, Fortune, fortune.com, Money, money.com, Sports Illustrated, SI Online, sportsillustrated.com, CNN, cnn.com., Los Angeles Times, latimes.com, The Wall Street Journal, wsj.com, and Reuters. Plaintiffs have spent considerable resources to identify these trademarks to the public as the source of the Internet versions of the print publications with which the public already is familiar. 48. In the case of Plaintiff Reuters, rather than exclusively displaying its creative news and information content on its own website, it licenses its news and content to numerous publishers with their own sites on the World Wide Web, such as the popular yahoo.com site. The Reuters name appears prominently, and its content appears extensively, on the sites of such publisher-licensees, each of which compensates Reuters for the right to display the Reuters mark and content. Defendants' unauthorized conduct diminishes the value of the Reuters name and content to such legitimate licensees and the selling power of the mark and content to Reuters. 49. Defendants' willful acts of trademark dilution have caused and are causing great and irreparable injury to Plaintiffs and their trademarks and to the business and goodwill represented thereby, in an amount that cannot be ascertained at this time and, unless restrained, will cause further irreparable injury, leaving Plaintiffs with no adequate remedy at law. 50. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against Defendants restraining further acts of trademark dilution and, after trial, to recover any damages proven to have been caused by reason of Defendants' aforesaid acts of registered trademark dilution. COUNT III: Trademark Infringement 51. Plaintiffs repeat and reallege the allegations in paragraphs 1 through 50 above as if fully set forth herein. 52. Defendants' unauthorized use of Plaintiffs' marks in connection with advertisements that have not been approved by Plaintiffs for use on their respective sites -- and indeed compete with the advertisers with whom Plaintiffs have contractual arrangements -- is likely to cause confusion and mistake and to deceive consumers as to the source or origin of the content and advertising depicted at Defendants' website. In addition, the manner in which Defendants cause Plaintiffs' websites to appear within a window on Defendants' site, together with those new and competing advertisements, and under the totalnews.com URL, is likely to cause confusion and mistake as to the source or origin of the content and advertising depicted at Defendants' website. 53. The acts of Defendants described above infringe Plaintiffs' famous trademarks, with consequent damages to Plaintiffs and the business and goodwill symbolized by those federally-registered trademarks in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114. 54. Defendants' acts of trademark infringement have caused and are causing great and irreparable injury to Plaintiffs and to their respective trademarks and to the business and goodwill represented thereby, in an amount that cannot be ascertained at this time and, unless restrained, will cause further irreparable injury, leaving Plaintiffs with no adequate remedy at law. 55. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against Defendants restraining further acts of trademark infringement and, after trial, to recover any damages proven to have been caused by reason of Defendants' aforesaid acts of registered trademark infringement. COUNT IV: False Designations of Origin, False Representations and False Advertising 56. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 55 above as if fully set forth herein. 57. Defendants' use of Plaintiffs' marks is likely to cause and has caused consumers mistakenly to believe that some or all of the Defendants have an affiliation with Plaintiffs, or that the totalnews.com website is sponsored or approved of by the Plaintiffs, or that Defendants are otherwise associated with or have obtained permission from Plaintiffs. 58. By engaging in the activities described above, Defendants have made and are making false, deceptive and misleading statements constituting false representations and false advertising made in connection with services distributed in interstate commerce in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 59. Defendants' acts of unfair competition and false advertising have caused irreparable injury to Plaintiffs' goodwill and reputation in an amount that cannot be ascertained at this time and, unless restrained, will cause further irreparable injury, leaving Plaintiffs with no adequate remedy at law. 60. By reason of the foregoing, Plaintiffs are entitled to injunctive relief against Defendants, restraining further acts of unfair competition and false advertising, and, after trial, to recover any damages proven to have been caused by reason of Defendants' aforesaid acts of false designations of origin, false representations and false advertising. COUNT V: Trademark Infringement and Unfair Competition Under State Law 61. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 60 above as if fully set forth herein. 62. The acts of Defendants as described above constitute trademark infringement and unfair competition in violation of Plaintiffs' rights under the common law of the State of New York and N.Y. Gen. Bus. Law § 368-e. COUNT VI: Dilution Under State Law 63. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 62 above as if fully set forth herein. 64. The acts of Defendants as described above are likely to dilute and detract from the distinctiveness of Plaintiffs' trademarks, with consequent damage to Plaintiffs and the business and goodwill symbolized by said trademarks, in violation of the New York AntiDilution Statute, N.Y. Gen. Bus. Law § 368d. COUNT VII: Deceptive Acts and Practices 65. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 64 above as if fully set forth herein. 66. The acts of Defendants as described above constitute deceptive acts and practices in violation of N.Y. Gen. Bus. Law §§ 349350. COUNT VIII: Copyright Infringement 67. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 66 above as if fully set forth herein. 68. Plaintiffs each own copyrighted material found at or
through, inter alia, the following URLs: 69. In order to provide their totalnews.com service, Defendants have caused Plaintiffs' sites to appear within a window displayed as part of totalnews.com, surrounded and partially obscured by advertising and other material unrelated to the original content of Plaintiffs' sites. 70. In particular, Plaintiffs have registered with the United States Copyright Office the following content from their websites: a. The Los Angeles Times website's home page as of approximately 12 noon EST on February 14, 1997; b. The Washington Post website's home page as of approximately 12 noon EST on February 14, 1997; c. The Wall Street Journal Interactive Edition website's home page as of approximately 12 noon EST on February 14, 1997; d. The CNN Interactive website's home page as of approximately 12 noon EST on February 14, 1997; e. The Reuters news summary home page, from within the Yahoo! website, as of approximately 12 noon EST on February 17, 1997; f. The Time Daily and Time.Com websites' home pages as of approximately 12 noon EST on February 14, 1997; g. The Life website's home page as of approximately 12 noon EST on February 14, 1997; h. The Fortune website's home page as of approximately 12 noon EST on February 14, 1997; i. The Money website's home page as of approximately 12 noon EST on February 14, 1997; j. The Entertainment Weekly website's home page as of approximately 12 noon EST on February 14, 1997; k. The Sports Illustrated website's home page as of approximately 12 noon EST on February 14, 1997; l. The SI For Kids website's home page as of approximately 12 noon EST on February 14, 1997;
71. Defendants' conduct has been in willful violation of Plaintiffs' repeated warnings to Defendants that Plaintiffs do not want their sites and/or content depicted in that way and that Defendants' conduct is unauthorized. The specific acts of infringement on February 14 and/or 17 simply are representative of a broader pattern of infringement in which Defendants make unauthorized use of the content of Plaintiffs' websites 24 hours a day, every day. 72. Defendants' conduct violates several of the exclusive rights under 17 U.S.C. § 106 belonging to the Plaintiffs as owners of the copyrights in their respective content and websites, which are the subject of copyright registrations that Plaintiffs have filed or now are in the process of filing with the Register of Copyrights. Based on prior experience, certificates of registration are expected to be issued within three months of the filing of registration forms. 73. Defendants' infringing conduct has caused and is causing irreparable injury and damage to Plaintiffs in an amount not capable of determination and, unless restrained, will cause further irreparable injury, leaving the Plaintiffs with no adequate remedy at law. COUNT IX: Tortious Interference 74. Plaintiffs repeat and reallege the allegations set forth in paragraphs 1 through 73 above as if fully set forth herein. 75. Defendants have intentionally designed totalnews.com to display third-party advertising material simultaneously, and in competition, with material placed by Plaintiffs on their own sites, including material featuring Plaintiffs' advertisers. By running other advertising material in the totalnews.com frame adjacent to the content of Plaintiffs' sites, and by partially obscuring Plaintiffs' sites with their frames, Defendants have made Plaintiffs' performance of their advertising contracts more burdensome and have interfered with the benefits that Plaintiffs' advertisers bargained for when they purchased space on Plaintiffs' sites. 76. Defendants' conduct constitutes intentional and improper interference with Plaintiffs' performance of their advertising contracts. Prayer for Relief WHEREFORE, Plaintiffs respectfully request that the Court: A. Declare that Defendants' unauthorized conduct violates Plaintiffs' rights under common law, the Copyright Act, the Lanham Act, the New York General Business Law and the New York Anti-Dilution Statute; B. Immediately and permanently enjoin Defendants, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them from: (1) Diluting in any way Plaintiffs' trademarks or representing by any means whatsoever, directly or indirectly, that any products or services offered or provided by Defendants are offered or provided by the Plaintiffs, or from otherwise taking any action likely to cause confusion, mistake or deception on the part of consumers as to the origin or sponsorship of such services; and (2) From doing any other acts or things calculated or likely to cause confusion or mistake in the mind of the public or to lead consumers into the belief that products or services sold, offered for sale, distributed or transmitted by Defendants are authorized, sponsored, licensed, endorsed, promoted or condoned by Plaintiffs, or are otherwise affiliated with or connected to Plaintiffs, and from otherwise unfairly competing with Plaintiffs, infringing copyrights of the Plaintiffs or misappropriating that which rightfully belongs to Plaintiffs. (3) Interfering in any way with Plaintiffs' performance of their commitments to their advertisers, whether by running advertising messages simultaneously with those run by Plaintiffs or otherwise. C. Order that Defendants account to Plaintiffs for Defendants' profits and any damages sustained by Plaintiffs arising from the foregoing acts of misappropriation, copyright infringement and unfair competition. D. Award Plaintiffs actual and/or statutory damages for Defendants' copyright infringement in an amount to be determined at trial; E. Award Plaintiffs their costs, including reasonable attorneys' fees and disbursements in this action, pursuant to 15 U.S.C. § 1117 and 17 U.S.C. § 505. F. Award Plaintiffs such other and further relief as the Court deems just and proper. Dated: New York, New York February 20, 1997 DEBEVOISE & PLIMPTON By:__________________________ Bruce P. Keller (BK 9300) 875 Third Avenue |
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