Case 2:08-cv-02299-HRH Document 1 Filed 12/17/08 Page 1 of 9

1 Maria Crimi Speth (012574)

Laura A. Rogal (025159)
2 JABURG & WILK, P.C.
3200 N. Central Avenue, Suite 2000
3 Phoenix, Arizona 85012
mcs@jaburgwilk.com
4 lar@jaburgwilk.com
(602) 248-1000
5
Attorneys for Plaintiff
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF ARIZONA
10
XCENTRIC VENTURES, L.L.C., an
11 Arizona Limited Liability Corporation, Case No.
12 Plaintiff, COMPLAINT
13 v.
14 ELIZABETH ARDEN d/b/a
3200 N. Central Avenue, Suite 2000

COMPLAINTSBOARD.COM;
15 MELBOURNE IT DBS, INC., a Delaware
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

corporation; INTERNET NAMES

(602) 248-1000

16 WORLDWIDE, INC., a Delaware

corporation; DOES 1-10, inclusive,
17
Defendants.
18
19
20 Plaintiff Xcentric Ventures, L.L.C. alleges:
21 1. This is a civil action seeking monetary damages and injunctive relief for
22 various acts of copyright infringement under the copyright laws of the United States (17
23 U.S.C. § 101 et seq.) and for various acts of trademark infringement in violation of the
24 Lanham Act, 15 U.S.C. § 1051, et seq., and related state law claims.
25 2. This Court has jurisdiction under 15 U.S.C. § 1121 (trademark); 17 U.S.C. §

26 101 et seq. (copyright); 28 U.S.C. § 1331 (federal question); and 28 U.S.C. § 1338(a)

27 (copyright). This Court has supplemental jurisdiction over state and common law claims

28 pursuant to 28 U.S.C. § 1367(a).

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1 3. Venue in this District is proper under 28 U.S.C. §§ 1391(b) and (c), and/or
2 28 U.S.C. § 1400(a). A substantial part of the acts of infringement complained of
3 occurred in this District, and certain corporate defendants are subject to personal
4 jurisdiction in this District.

5 4. Personal jurisdiction in this District is proper because each defendant,

6 engaged in acts of copyright infringement within the District of Arizona, and/or

7 intentionally directed tortious conduct at Plaintiff knowing such conduct would cause

8 harm within this District.

5. Plaintiff XCENTRIC VENTURES, L.L.C. (“Plaintiff”) is and at all relevant
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times was an Arizona limited liability company located in Phoenix, Arizona.
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6. Plaintiff is the operator of a consumer complaint and free speech forum
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known as the Rip-off Report located at www.RipoffReport.com (the “Rip-off Report
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site”). The Rip-off Report is widely used by consumers, and works closely with
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government agencies, attorneys general, federal, state, and local law enforcement, and the
14
3200 N. Central Avenue, Suite 2000

news media to help report, identify and prevent consumer fraud and similar conduct.
15
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

7. Defendant ELIZABETH ARDEN d/b/a COMPLAINTSBOARD.COM

(602) 248-1000

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(“Complaints Board”) is, and at all relevant times has been, a corporation of unknown
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origin doing business as Complaints Board on the website www.complaintsboard.com
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which caused the events herein described to occur with knowledge that they would cause
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harm within the State of Arizona. Upon information and belief, Complaints Board also
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has engaged in continuous, systematic and substantial contacts with the State of Arizona
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sufficient to confer general and specific personal jurisdiction over it in this District.
22 8. Defendant MELBOURNE IT DBS, INC (“Melbourne”) is, and at all
23 relevant times has been, a Delaware corporation doing business as “My Private
24 Registration” and www.melbourneit.com.au which caused the events herein described to
25 occur with knowledge that they would cause harm within the State of Arizona. Upon
26 information and belief, Melbourne also has engaged in continuous, systematic and
27 substantial contacts with the State of Arizona sufficient to confer general and specific
28 personal jurisdiction over it in this District.
2
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1 9. Defendant INTERNET NAMES WORLDWIDE, INC (“Internet Names”)

2 is, and at all relevant times has been, a Delaware corporation doing business as “My
3 Private Registration” and www.melbourneit.com.au which caused the events herein
4 described to occur with knowledge that they would cause harm within the State of

5 Arizona. Upon information and belief, Internet Names also has engaged in continuous,

6 systematic and substantial contacts with the State of Arizona sufficient to confer general

7 and specific personal jurisdiction over it in this District.

8
GENERAL ALLEGATIONS
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10. Plaintiff is and at all relevant times has been the lawful owner of the mark
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“RIP-OFF REPORT” which has been registered with the United States Patent and
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Trademark Office and assigned registration #2958949.
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11. Since February 1998 through the filing of this action, Plaintiff has
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continuously used the mark “RIP-OFF REPORT” in commerce to identify and distinguish
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3200 N. Central Avenue, Suite 2000

Plaintiff’s business from other businesses in the same field.

15
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

12. Plaintiff’s ownership of the “RIP-OFF REPORT” mark is incontestable as a

(602) 248-1000

16
matter of law pursuant to 15 U.S.C. § 1065.
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13. Plaintiff is the owner of various copyrights relating to content appearing on
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the Rip-off Report website.
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14. Plaintiff is the owner of the federal copyright issued by the United States
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Copyright Office Certificate of Registration No. TXu1-574-438 entitled “Rip-off Report
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Content” dated March 25, 2008.
22 15. Plaintiff is the owner of a federal copyright issued by the United States
23 Copyright Office Certificate of Registration No. TXu1-371-920 entitled “Group Database
24 Registration for Automated Database Entitled ‘Rip-off Report Database.’ Unpublished
25 updates from March 5, 2008 – May 5, 2008” dated May 20, 2008.
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27
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1 DEFENDANTS’ ACTIVITIES
2 16. Since at least June 2006 through the present, MELBOURNE and/or
3 INTERNET NAMES have provided internet hosting services to Elizabeth Arden and the
4 website www.complaintsboard.com.

5 17. Since at least June 2006 through the present, MELBOURNE and/or

6 INTERNET NAMES has provided private registration services to Elizabeth Arden and

7 the Complaints Board site under the name “My Private Registration.”

8 18. According to the MELBOURNE and INTERNET NAMES website, “My

Private Registration” is a service offered to “shield [ ] contact information from abuse.”
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The My Private Registration service replaces the actual contact information displayed in
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the public WHOIS database for the website with the details of MELBOURNE.
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19. The Complaints Board site generally purports to be a forum for consumers
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to post and review complaints about businesses and bad business practices, among other
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things.
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3200 N. Central Avenue, Suite 2000

20. Elizabeth Arden and the Complaints Board site are direct competitors of
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Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

Plaintiff and the Rip-off Report site.

(602) 248-1000

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21. Since at least November, 2008, Elizabeth Arden has copied and continues to
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copy large quantities of copyrighted works from the Rip-off Report site without Plaintiff’s
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permission or consent.
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22. The Complaint Board site’s use of copyrighted works from the Rip-off
20
Report site is likely to cause confusion as to source or sponsorship.
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23. Without Plaintiff’s permission and without any lawful right to do so,
22 Elizabeth Arden has created metatags which incorporate Plaintiff’s registered trademark
23 in the mark “RIP-OFF REPORT” for the purposes of misleading consumers who are
24 attempting to locate Plaintiff’s website by causing them to be directed to the Complaints
25 Board site.
26 24. Without Plaintiff’s permission and without any lawful right to do so,
27 Elizabeth Arden has copied verbatim the Terms of Service from the Rip-off Report Site,
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1 and failed to change at least one reference to Plaintiff from the Terms of Service. See
2 printout from Complaints Board Privacy Policy, attached hereto as Exhibit “A.”
3 25. Elizabeth Arden’s unlawful use of Plaintiff’s trademarks and copyrighted
4 works has caused substantial actual confusion among consumers who have been misled

5 into believing that Plaintiff is the owner and/or operator of the Complaints Board site

6 when, in fact, this is not true. See, e.g., takedown demand letter from Michael K. Grace,

7 mistakenly believing Plaintiff owned and operated the Complaints Board, attached hereto

8 as Exhibit “B.”

9
COUNT 1
10 INFRINGEMENT OF COPYRIGHT — 17 U.S.C. §§ 106, 501(a)
(Against Defendant Elizabeth Arden)
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26. Plaintiff incorporates herein by reference each and every allegation
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contained herein.
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27. Defendant Elizabeth Arden has violated Plaintiff’s exclusive rights under 17
14
U.S.C. § 106(1) (direct copying) by copying Plaintiff’s works without permission.
3200 N. Central Avenue, Suite 2000

15
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.

28. Defendant Elizabeth Arden has violated Plaintiff’s exclusive rights under 17
Attorneys At Law

(602) 248-1000

16
U.S.C. § 106(3) (distribution) by distributing Plaintiff’s works without permission
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29. Defendant Elizabeth Arden has violated Plaintiff’s rights under 17 U.S.C. §
18 106(5) (display) by publicly displaying Plaintiff’s works without permission.
19 30. Plaintiff is informed and believes that the foregoing acts of infringement
20 have been willful, intentional, and in disregard of and with indifference to the rights of
21 Plaintiff.
22 31. Defendant Elizabeth Arden’s infringing activities were not authorized by
23 Plaintiff and were performed without Plaintiff’s knowledge, consent, or permission.
24 32. Defendant Elizabeth Arden’s infringing activities was and is done for
25 Defendant’s financial gain.
26 33. Defendant Elizabeth Arden’s infringing activities have caused Plaintiff to
27 incur actual damages of not less than $150,000.
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1 34. As the result of Defendant Elizabeth Arden’s infringement of Plaintiff’s

2 exclusive rights, Plaintiff is entitled to recover from Defendant Elizabeth Arden its actual
3 damages pursuant to 17 U.S.C. § 504(b) or statutory damages pursuant to 17 U.S.C. §
4 504(c), whichever is greater.

5 35. As the result of Defendant Elizabeth Arden’s infringement of Plaintiff’s

6 exclusive rights, Plaintiff further is entitled to attorneys' fees and costs pursuant to 17

7 U.S.C. § 505.

8 COUNT 2
9 VICARIOUS INFRINGEMENT OF COPYRIGHT — 17 U.S.C. §§ 106, 501(a)
(Against MELBOURNE and INTERNET NAMES)
10 36. Plaintiff incorporates herein by reference each and every allegation
11 contained herein.
12 37. Defendant Elizabeth Arden has engaged in multiple acts of direct
13 infringement of Plaintiff’s exclusive rights granted under the Copyright Act.
14 38. Defendants MELBOURNE and INTERNET NAMES have profited directly
3200 N. Central Avenue, Suite 2000

15 from the infringing activity of Elizabeth Arden.

Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

(602) 248-1000

16 39. Defendants MELBOURNE and INTERNET NAMES had the right and
17 ability to control the infringing activity of Elizabeth Arden.
18 40. Defendants MELBOURNE and INTERNET NAMES actively hides the true
19 identity of Elizabeth Arden to ensure that Elizabeth Arden may continue its infringing
20 activity unabated.
21 41. Despite having actual and/or constructive knowledge of Elizabeth Arden’s

22 unlawful actions, Defendants MELBOURNE and INTERNET NAMES failed to exercise

23 their right and ability to control Elizabeth Arden’s conduct. As a result, MELBOURNE

24 and INTERNET NAMES are liable to Plaintiff for vicarious infringement of Plaintiff’s

25 copyrights.

26 42. Defendants MELBOURNE and INTERNET NAMES are not entitled to

immunity pursuant to 17 U.S.C. § 512(c)(1) because MELBOURNE and INTERNET
27
NAMES had actual and/or constructive knowledge of the infringement, was aware of
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1 facts and circumstances from which Elizabeth Arden’s infringing activity was apparent,
2 and because MELBOURNE and INTERNET NAMES have failed to adopt and
3 reasonably implement a policy as required by 17 U.S.C. § 512(i)(1)(A) that provides for
4 the termination in appropriate circumstances of services to subscribers and account

5 holders who are repeat infringers such as Elizabeth Arden. See Perfect 10, Inc. v. CC Bill,

6 L.L.C., 488 F.3d 1102, 1109 (9th Cir. 2007).

7 43. As the result of Defendants MELBOURNE’S and INTERNET NAMES’

8 vicarious infringement of Plaintiff’s exclusive rights, Plaintiff is entitled to recover actual

damages pursuant to 17 U.S.C. § 504(b) or statutory damages pursuant to 17 U.S.C. §
9
504(c), whichever is greater, for each worked infringed. Plaintiff is further is entitled to
10
attorneys' fees and costs pursuant to 17 U.S.C. § 505.
11
12 COUNT 3
TRADEMARK INFRINGEMENT — 15 U.S.C. § 1114
13 (Against Elizabeth Arden)
14 44. Plaintiff incorporates herein by reference each and every allegation
3200 N. Central Avenue, Suite 2000

15 contained herein.
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

(602) 248-1000

16 45. “RIP-OFF REPORT” is a valid, protectable trademark.

17 46. Plaintiff owns “RIP-OFF REPORT” as its trademark.
18 47. Defendant Elizabeth Arden used the RIP-OFF REPORT mark, or a mark
19 confusingly similar thereto, without the consent of Plaintiff in a manner that is likely to
20 cause confusion among ordinary consumers as to the source of the services offered by
21 Plaintiff and by Elizabeth Arden.

22
COUNT 4
23 UNFAIR COMPETITION/INITIAL INTEREST CONFUSION
TRADEMARK INFRINGEMENT — 15 U.S.C. § 1114
24
(Against Elizabeth Arden)
25
48. Plaintiff incorporates herein by reference each and every allegation
26
contained herein.
27
49. “RIP-OFF REPORT” is a valid, protectable trademark.
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1 50. Plaintiff owns “RIP-OFF REPORT” as its trademark.

2 51. By using the “RIP-OFF REPORT” mark in both its content and in metatags
3 associated with the Complaints Board site, Defendant Elizabeth Arden has infringed
4 Plaintiff’s trademark without the consent of Plaintiff in a manner calculated to capture

5 initial consumer attention and to direct such attention to the Complaints Board site at the

6 expense of viewers looking for the Rip-off Report site.

7 52. Elizabeth Arden’s conduct constitutes unfair competition and initial interest

8 confusion in violation of Plaintiff’s rights under the Lanham Act and under the common
law.
9
10 COUNT 5
INJUNCTIVE RELIEF — 17 U.S.C. § 502(a)
11
(Against All Defendants)
12 53. Plaintiff incorporates herein by reference each and every allegation
13 contained herein.
14 54. The conduct of each Defendant is causing and, unless enjoined and
3200 N. Central Avenue, Suite 2000

15 restrained by this Court, will continue to cause Plaintiff great and irreparable injury that
Phoenix, Arizona 85012
Jaburg & Wilk, P.C.
Attorneys At Law

(602) 248-1000

16 cannot fully be compensated or measured in money.

17 55. Plaintiff has no adequate remedy at law.
18 56. Pursuant to 17 U.S.C. §§ 502(a) and 503, Plaintiff is entitled to preliminary
19 and permanent injunctive relief prohibiting each Defendant from further infringing
20 Plaintiff’s copyrighted works.
21
22 JURY TRIAL DEMAND

23 Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury on all issues so

24 triable.

25
26 . . . .
. . . .
27
. . . .
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1 WHEREFORE, Plaintiff prays for judgment against each Defendant as follows:

2 1. For Plaintiff’s actual damages and Defendants’ profits, or statutory
3 damages, as Plaintiff may elect, for infringement of each copyrighted work pursuant to 17
4 U.S.C. § 504;
5 2. For statutory and/or treble damages pursuant to 15 U.S.C. § 1117;

6 3. For injunctive relief pursuant to 17 U.S.C. §§ 502(a) and 503;

7 4. For Plaintiff’s costs in this action pursuant to 17 U.S.C. § 504 and/or 15

8 U.S.C. § 1117(a);

9 5. For Plaintiff’s reasonable attorneys’ fees incurred pursuant to 17 U.S.C. §

504 and/or 15 U.S.C. § 1117(a);
10
6. For such other and further relief as the Court may deem just and proper.
11
12 DATED this 17th day of December, 2008.
13
14 JABURG & WILK, P.C.
3200 N. Central Avenue, Suite 2000

15
Phoenix, Arizona 85012

s/Maria Crimi Speth

Jaburg & Wilk, P.C.
Attorneys At Law

(602) 248-1000

16 Maria Crimi Speth, Esq.

Laura A. Rogal
17 Attorneys for Plaintiff

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