Othello Trademark Lawsuit

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Benjamin A. Katzenellenbogen (SBN 208,527)
ben.katzenellenbogen@knobbe.com
Lynda J . Zadra-Symes (SBN 156,511)
lynda.zadrasymes@knobbe.com
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
Phone: (949) 760-0404
Facsimile: (949) 760-9502

Attorneys for Plaintiff
KABUSHIKI KAISHA MEGAHOUSE
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

Kabushiki Kaisha MegaHouse, a
J apanese corporation,
Plaintiff,
v.
Anjar Co. LLC, a Delaware Limited
Liability company, Becker Associates,
LLC, a Delaware limited liability
company, J onathan Becker, Patti
Becker, J .A.R. Games, Co., and Anjar
Co., a New York sole proprietorship
Defendants.

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Case No. 2:14-CV-00598-CAS-CW
FIRST AMENDED COMPLAINT
FOR TRADEMARK
INFRINGEMENT, TRADE DRESS
INFRINGEMENT, FALSE
DESIGNATION OF ORIGIN,
FALSE ADVERTISING, UNFAIR
COMPETITION, IMPOSITION
OF CONSTRUCTIVE TRUST,
BREACH OF CONTRACT,
BREACH OF FIDUCIARY DUTY
AND DECLARATORY
JUDGMENT

Case 2:14-cv-00598-CAS-CW Document 21 Filed 08/07/14 Page 1 of 23 Page ID #:243

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Plaintiff Kabushiki Kaisha MegaHouse hereby complains of Defendants
Anjar Co. LLC, Becker Associates LLC, J onathan Becker, Patti Becker, J .A.R.
Games Co., and Anjar Co., and alleges as follows:
I. JURISDICTION AND VENUE
1. This is an action for: (1) false designation of origin, and false
advertising under 15 U.S.C. 1125(a); (2) trademark infringement and unfair
competition under California common-law; (3) California statutory unfair
competition; (4) specific performance; (5) imposition of a constructive trust;
(6) breach of contract; (7) breach of fiduciary duty; and (8) declaratory
judgment.
2. The Court has original subject matter jurisdiction over at least the
claims that relate to trademark infringement, false designation of origin, unfair
competition, and false advertising, pursuant to sections 34(a) and 39(a) of the
Lanham Act and 28 U.S.C. 1331 and 1338, 15 U.S.C. 1116 and 1121(a)
as these claims arise under the laws of the United States.
3. The Court has at least supplemental jurisdiction pursuant to
28 U.S.C. 1367(a) over the claims that arise under California state statutory
and common law because they are so related to the federal claims that they form
part of the same case or controversy and derive from a common nucleus of
operative facts.
4. This Court has personal jurisdiction over Defendants at least
because each Defendant has a continuous, systematic, and substantial presence
within this judicial district and within California, including by committing acts
of trademark infringement, false advertising, and/or unfair competition in this
judicial district, by licensing, selling or offering to license or sell infringing
products to consumers and/or retailers in this district, or otherwise making
statements knowing such statements would be accessible in California and in
this district, and because Defendants have not disputed personal jurisdiction in

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their Answer to the original Complaint, and because Defendants have filed
counterclaims in this case.
5. Venue is proper in this judicial district pursuant to at least
28 U.S.C. 1391, and because Defendants have not disputed venue in their
Answer to the original Complaint, and because Defendants have filed
counterclaims in this case.
II. THE PARTIES
6. Plaintiff Kabushiki Kaisha MegaHouse (MegaHouse) is
organized and existing under the laws of J apan, having a principal place of
business at Bandai 2
nd
Building, 5-4 Komagata 2 Chome, Taito-Ku, Tokyo 111-
0043, J apan.
7. Upon information and belief, Anjar Co. LLC (Anjar) is a limited
liability company organized and existing under the laws of the State of
Delaware, having a principal place of business at 42 Russet Road Stamford,
Connecticut 6903, United States.
8. Upon information and belief, Becker Associates LLC (Becker
Associates) is a limited liability company organized and existing under the
laws of the State of Delaware, having a principal place of business at 42 Russet
Road Stamford, Connecticut 6903, United States.
9. Upon information and belief, J onathan Becker is a citizen of the
United States and is the Principal of Anjar and directs all the business and
commercial activities of Anjar.
10. Upon information and belief, Patti Becker is a citizen of the United
States and is President of Becker Associates and directs all the business and
commercial activities of Becker Associates.
11. Upon information and belief, J .A.R. Games Co. is a company of
unknown organizational structure, having a principal place of business at
42 Russet Road Stamford, Connecticut 6903, United States.

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12. Upon information and belief, Anjar Co. is a sole proprietorship
organized and existing under the laws of the State of New York, having a
principal place of business at 42 Russet Road Stamford, Connecticut 6903,
United States.
III. COMMON ALLEGATIONS FOR ALL CLAIMS OF RELIEF
A. The OTHELLO Game, Trademarks, and Trade Dress
13. Plaintiff MegaHouse is the owner by assignment of all worldwide
trademark rights (outside of J apan) in the famous mark OTHELLO for use in
connection with games and related goods and services.
14. In the early 1970s, Goro Hasegawa created the game OTHELLO.
The name and trade dress were inspired by Shakespeares play Othello. The
games disks are black on one side (general Othello the Moor) and white on the
other side (Desdemona his wife). The green color of the playing surface alludes
to a battlefield as well as to the emotional jealousy that led Othello to kill
Desdemona and himself.
15. In connection with the creation of the OTHELLO game, Mr.
Hasagawa, or another individual whose actions inured to the benefit of
MegaHouses predecessors-in-interest, conceived of a J apanese phrase that was
later translated into English as A MINUTE TO LEARN A LIFETIME TO
MASTER (hereinafter referred to as the MINUTE TO LEARN mark).
16. The OTHELLO game was launched in J apan in 1973, and in the
U.S. shortly thereafter. The game OTHELLO has been wildly popular and has
won recognition and numerous awards from the toy and game industry. In 2004,
The New York Times Magazine estimated that over 40 million OTHELLO
games had been sold since its introduction.
17. MegaHouses predecessors-in-interest obtained the exclusive right
to license the OTHELLO game and to register the trademark OTHELLO outside
J apan. Starting in 1974, MegaHouses predecessors-in-interest began registering

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the trademark OTHELLO worldwide.
18. The MINUTE TO LEARN mark was originally registered in the
United States by a licensee of one of MegaHouses predecessors-in-interest
regarding the OTHELLO game, and its registration and use inured to the benefit
of MegaHouse and its predecessors-in-interest.
19. In March 2005, MegaHouse acquired the trademark rights and
registrations for OTHELLO from one of its predecessors-in-interest.
20. MegaHouse owns numerous trademark registrations for
OTHELLO for board games throughout the world. A list of OTHELLO
registrations is attached as Exhibit A to this Amended Complaint.
21. MegaHouse is the legal and/or equitable owner of U.S. Registration
No. 1055196 for the mark OTHELLO for EQUIPMENT SOLD AS A UNIT
FOR PLAYING A PARLOR GAME USING A GAME BOARD AND
MOVABLE PIECES, which was originally registered on December 25, 1976
by one of MegaHouses predecessors-in-interest.
22. MegaHouse owns numerous trademark applications for the
MINUTE TO LEARN mark for board games throughout the world.
23. MegaHouse is the legal and/or equitable owner of U.S. Registration
No. 1366802 for the mark A MINUTE TO LEARNA LIFETIME TO
MASTER for EQUIPMENT SOLD AS A UNIT FOR PLAYING A PARLOR-
TYPE BOARD GAME, which originally registered on October 22, 1985 by a
licensee of one of MegaHouses predecessors-in-interest.
24. Since 1973, MegaHouse and/or its predecessors-in-interest, directly
and/or indirectly through authorized distributors, have continuously used the
OTHELLO mark, the MINUTE TO LEARN mark, and the OTHELLO trade
dress for board games and other goods.
25. As a result of substantial and continuous use and licensing of the

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dress (including its distinctive black/white disks and the green game board) by
MegaHouse and its predecessors-in-interest, the OTHELLO mark, the MINUTE
TO LEARN mark, and the OTHELLO trade dress have acquired secondary
meaning and are well-known to consumers and potential consumers in the U.S.
and around the world.
26. All of the licensed use of the OTHELLO mark, the MINUTE TO
LEARN, and the OTHELLO trade dress by others inured to the benefit of
MegaHouse and its predecessors-in-interest.
27. MegaHouse has common law and statutory trademark rights to the
dress in the U.S.
B. Defendants Licensing of OTHELLO and Failure to Pay Royalties
28. In J anuary 1975, one of MegaHouses predecessors-in-interest
authorized Defendant Anjar to manufacture and sell the OTHELLO game in
the U.S. and Canada.
29. From 1975 to J anuary 2013, Anjar used the OTHELLO mark, the
MINUTE TO LEARN mark, and the OTHELLO trade dress under the
authorization of MegaHouse and/or one of its predecessors-in-interest. Anjars
licensed use inured to the benefit of MegaHouse and/or its predecessors-in-
interest.
30. From 1975 through 1999, Anjar paid royalties to one or more of
MegaHouses predecessors-in-interest.
31. In 2003, Anjar submitted a royalty report to one of MegaHouses
predecessors-in-interest for sales for 2000-2003, but failed to make any royalty
payments.
32. From 2003-2012, Anjar and MegaHouse (and MegaHouses
predecessors-in-interest) attempted to resolve various disputes regarding
royalties and other issues. Anjar made various statements indicating that it

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agreed with MegaHouse (and MegaHouses predecessors-in-interest) regarding
future conduct of the OTHELLO business, but did not formally document that
agreement or resume paying royalties.
33. For example, on February 25, 1993, J onathan Becker wrote a letter
on behalf of Anjar to Arthur Sarfati at Dujardin International S.A.R.L in which
Mr. Becker states that, [a]s you know, Anjar represents the rights of [one of
MegaHouses predecessors-in-interest] for Othello throughout the world. This
confirms that Anjar did not believe itself to be the owner of the OTHELLO
mark, the MINUTE TO LEARN mark, or the OTHELLO trade dress. It also
confirms that Anjar was representing the rights that were owned by
MegaHouses predecessor-in-interest.
34. Despite being a licensee and sub-licensor of the OTHELLO mark,
the MINUTE TO LEARN mark, and the OTHELLO trade dress, on September
12, 2012, Anjar filed a revocation action against MegaHouses Community
Trade Mark Registration No. 3228053 in the European Union for the
OTHELLO mark (the CTM Proceeding). On September 28, 2012, Anjar filed
a revocation action against MegaHouses U.K. Registration Nos. 1108434 and
1054295 for the OTHELLO mark (the UK Proceedings).
35. On information and belief, Anjar instituted the UK Proceedings
and the CTM Proceeding in bad faith. MegaHouse was forced to spend time,
money and resources opposing Defendants revocation actions.
C. Termination of Defendants License
36. On J anuary 11, 2013, MegaHouse sent a letter to J onathan Becker
at Anjar terminating Anjars license to use the OTHELLO mark and advising
that the termination would become effective on J anuary 21, 2013 unless Anjar
provided written confirmation that the UK Proceedings and the CTM
Proceeding had been withdrawn.
/ / /

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37. On J anuary 18, 2013, Goro Hasegawa, the creator of the
OTHELLO game, sent a warning letter to J onathan Becker at Anjar
confirming that Mr. Hasegawas company had licensed the Othello game
exclusively to MegaHouse and its predecessor-in-interest; MegaHouse
appointed your company [Anjar] as licensee and licensing agent of the game
and trademark Othello; Anjar acted as licensor with respect to various sub-
licensees; and Anjars actions, including claiming ownership of the game and
of trademark Othello were not in good faith and infringe our rights on the
Othello game, in addition to those of MegaHouse.
38. On February 5, 2013, MegaHouse sent a letter to J onathan Becker
at Anjar to confirm that the contractual relationships of any kind with your
company with respect to our Othello business in any country are terminated as
of J anuary 21, 2013 and we warn you that your use of the Othello trademark
from the termination date [J anuary 21, 2013] will constitute infringement of our
rights.
39. On October 21, 2013, an order favorable to MegaHouse was
entered in the CTM Proceedings that expressly referred to Anjars awareness
that it is a licensee as far as the sign OTHELLO is concerned and confirming
that, with respect to board games, computer game software and downloadable
computer game software, the European use of the OTHELLO mark and sales of
the OTHELLO game had inured to the benefit of MegaHouse.
40. On information and belief, in December, 2013, Anjar withdrew its
request for revocation in the UK Proceedings.
D. Defendants Infringement of the OTHELLO Mark, MINUTE TO
LEARN mark, and OTHELLO trade dress and Breach of Their
Obligations
41. On information and belief, Defendants are engaged in the
unauthorized business of licensing, selling, offering to license or offering to sell

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goods, including board games and other goods in connection with the
dress.
42. Any and all authorization for Anjar to use the OTHELLO mark, the
MINUTE TO LEARN mark, and/or the OTHELLO trade dress was terminated
by J anuary 21, 2013. On information and belief, none of the other Defendants
were ever authorized to use the OTHELLO mark, the MINUTE TO LEARN
mark, or the OTHELLO trade dress.
43. Defendants used and continued to use the OTHELLO mark, the
MINUTE TO LEARN mark, and the OTHELLO trade dress after notice of the
termination of the license, including on Anjars website, www.anjar.com, and
Becker Associates website, www.beckerassoc.com, in an attempt to falsely
associate with MegaHouse or to otherwise trade upon MegaHouses valuable
reputation and customer goodwill in its OTHELLO mark, the MINUTE TO
LEARN mark, and the OTHELLO trade dress.
44. Upon information and belief, Defendants use of MegaHouses
OTHELLO mark, MINUTE TO LEARN mark, and OTHELLO trade dress is
designed and intended to cause confusion, mistake, or deception as to the source
of the OTHELLO game.
45. Upon information and belief, Defendants willful and deliberate
use of the OTHELLO mark, the MINUTE TO LEARN mark, and the
OTHELLO trade dress is intended to cause consumers and potential customers
to believe that Defendants goods and services are associated with MegaHouse
or MegaHouses OTHELLO mark, MINUTE TO LEARN mark, and
OTHELLO trade dress, when they are not.
46. By virtue of the acts complained of herein, Defendants have:
created a likelihood of injury to MegaHouses business reputation and goodwill;
caused a likelihood of consumer confusion, mistake and deception as to the

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source of origin or relationship of MegaHouses and Defendants goods and
services; and otherwise competed unfairly with MegaHouse by unlawfully
trading on and using MegaHouses OTHELLO mark, MINUTE TO LEARN
mark, and OTHELLO trade dress without MegaHouses permission or consent.
47. Defendants acts complained of herein are willful and deliberate
and are in total disregard of MegaHouses rights in the OTHELLO mark, the
MINUTE TO LEARN mark, and the OTHELLO trade dress.
48. Defendants acts complained of herein have caused and will
continue to cause MegaHouse to suffer irreparable injury to its business.
MegaHouse will continue to suffer substantial loss of goodwill and reputation
unless and until Defendants are preliminarily and permanently enjoined from its
wrongful acts complained of herein.
49. MegaHouse has no adequate remedy at law.
E. The OTHELLO U.S. Trademark Registration
50. On December 19, 1997 an agreement was signed between
MegaHouses predecessor-in-interest and Anjar (signed by J ames Becker)
stating that MegaHouses predecessors-in-interest is the true owner of U.S.
Trademark Registration No. 1055196.
51. MegaHouses predecessor-in-interest retroactively assigned legal
title to U.S. Trademark Registration No. 1055196 to Anjars predecessor-in-
interest (and indirectly to Anjar) as the U.S. licensee of OTHELLO in order to
maintain the registration from being cancelled.
52. MegaHouse and/or its predecessor-in-interest remained at all times
the true and equitable owner of U.S. Trademark Registration No. 1055196 as
the licensor of OTHELLO.
53. The agreement prohibited Anjar from conveying the registration to
any unrelated third party. The agreement further required Anjar to return formal
legal title in the registration upon termination by mutual consent or if the

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agreement could no longer be maintained.
54. Even after termination of the license, and despite its legal
obligation to assign the registration to MegaHouse, Anjar has not yet assigned
the registration to MegaHouse.
F. The Wakui Agreement
55. On April 1, 2000, Anjar entered an agreement (hereinafter the
Wakui Agreement) with one of MegaHouses predecessors-in-interest, the
Wakui Corporation. The Wakui Agreement purported to grant the right to
manufacture and sell an ITEM defined in Exhibit A of the Wakui Agreement,
as follows:
The Item, sometimes referred to as Games on the Go, Shirt
Pocket Games or Pocketable, comprises various versions of
games, such as Chess, Backgammon, Shogi, Go and all other
games and puzzles, having a vinyl folding case containing a full
set of game pieces which adhere to the vinyl surface of the
playing board.
56. Paragraph 13 of the Wakui Agreement further states that, [t]his
Agreement shall continue as long as the ITEM covered by this Agreement shall
continue to be manufactured or sold, whichever is longer, unless sooner
terminated under the provisions of this Agreement.
57. On or before August 31, 2014, MegaHouse will cease all
manufacture and sale of the ITEM covered by the Wakui Agreement. Thus,
the Wakui Agreement will terminate on or before August 31, 2014.
58. MegaHouse is taking active steps to market a travel version of the
OTHELLO game as substantially set forth in Exhibit B to this Amended
Complaint. MegaHouse is not obligated to pay royalties on this new version of
the OTHELLO game, as the product set forth in Exhibit B is not an ITEM as
defined by the Wakui Agreement.

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IV. FIRST CLAIM FOR RELIEF
(False Designation of Origin and False Advertising)
59. MegaHouse hereby repeats, realleges, and incorporates by
reference paragraphs 1-58 of this Amended Complaint as though fully set forth
herein.
60. This is an action for false designation of origin and false
advertising arising under 15 U.S.C. 1125(a).
61. MegaHouse owns the trademark OTHELLO, the trademark A
MINUTE TO LEARNA LIFETIME TO MASTER and the OTHELLO trade
dress in the U.S., and is the legal and/or equitable owner of the OTHELLO
mark shown in U.S. Registration No. 1055196 and the MINUTE TO LEARN
mark shown in U.S. Registration No. 1366802.
62. As a result of the lengthy and widespread use and promotion of the
dress in the U.S. and the world, including use in U.S. commerce in connection
with board games and other goods, the OTHELLO mark, the MINUTE TO
LEARN mark, and the OTHELLO trade dress have acquired substantial
secondary meaning to consumers and potential customers in the U.S.
marketplace. United States consumers and potential customers have come to
associate board games and other related products bearing the OTHELLO mark,
the MINUTE TO LEARN mark, and the OTHELLO trade dress with
MegaHouse.
63. Defendants infringed, and have willfully infringed, MegaHouses
OTHELLO trademark, MINUTE TO LEARN mark, and OTHELLO trade
dress, and created a false designation of origin, and engaged in false advertising
by using in U.S. commerce, without MegaHouses permission, a trademark and
trade dress confusingly similar to MegaHouses OTHELLO mark, MINUTE TO
LEARN mark, and OTHELLO trade dress, in connection with the distribution,

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licensing, offering for license, sale and/or offering for sale of Defendants goods
and/or services, including Defendants infringing OTHELLO games.
64. Defendants actions are causing a likelihood of confusion, mistake,
or deception as to the affiliation, connection, or association between
MegaHouse and Defendants, and/or to suggest MegaHouse as the origin of
Defendants goods and/or services, or that MegaHouse sponsors or approves of
Defendants commercial activities.
65. Defendants statements that they have the authority to license the
dress in the U.S., and other countries, are false and misleading and are intended
to confuse, mislead or deceive consumers and potential consumers.
66. Defendants false statements have been made in interstate
commerce, including over the Internet and through Defendants websites.
67. Upon information and belief, consumers rely upon Defendants
false statements, including by licensing and/or purchasing Defendants goods.
68. Defendants false statements have been willful and deliberate.
69. MegaHouse is informed and believes, and on that basis alleges, that
Defendants acted with the intent to unfairly compete against MegaHouse, to
trade upon MegaHouses reputation and goodwill by causing confusion and
mistake among customers and the public, and to deceive the public into
believing that Defendants goods were authentic products, and/or were
associated with, sponsored by or approved by MegaHouse, when they are not.
70. On information and belief, Defendants had actual knowledge of
MegaHouses ownership and prior use of the OTHELLO mark, the MINUTE
TO LEARN mark, and the OTHELLO trade dress, and without the consent of
MegaHouse, Defendants have willfully violated 15 U.S.C. 1125(a).
71. Defendants aforementioned acts have damaged MegaHouse in an
amount to be determined at trial.

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72. Defendants have irreparably injured MegaHouse. Such irreparable
injury will continue unless Defendants are preliminarily and permanently
enjoined by this Court from further violation of MegaHouses rights, for which
MegaHouse has no adequate remedy at law.
73. Defendants willful and intentional acts of trademark and trade
dress infringement, false designation of origin and false advertising entitle
MegaHouse to enhanced damages.
V. SECOND CLAIM FOR RELIEF
(California Common-Law Unfair Competition and
Trademark and Trade Dress Infringement)
herein.
75. This is a claim for unfair competition, including trademark and
trade dress infringement, arising under California common law.
76. Defendants have no right to the OTHELLO mark, the MINUTE
TO LEARN mark, and/or the OTHELLO trade dress and have attempted to
misappropriate these common-law rights from MegaHouse.
77. Defendants acts and statements complained of herein constitute
trademark and trade dress infringement and unfair competition under California
common law.
78. Defendants acts complained of herein have been intentional, are
willful and deliberate, and have been committed with knowledge that the
unlawful use of MegaHouses OTHELLO mark, MINUTE TO LEARN mark,
and OTHELLO trade dress causes a likelihood of confusion.
/ / /

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81. Defendants willful and intentional acts of trademark and trade
dress infringement and unfair competition under California common law
constitute fraud, oppression, and malice, and entitle MegaHouse to exemplary
damages.
THIRD CLAIM FOR RELIEF
(California Statutory Unfair Competition)
herein.
83. This is a claim for unfair competition, arising under California
Business and Professions Code 17200, et seq.
84. Defendants acts of unlawful, unfair and/or fraudulent business acts
or practices, and unfair, deceptive, untrue and/or misleading advertising,
including the acts of trademark and trade dress infringement, false designation
of origin, and false advertising, complained of herein, constitute unfair
competition with MegaHouse under the statutory laws of the State of California,
particularly California Business and Professions Code 17200, et seq.
85. MegaHouse has suffered injury in fact and has lost money or
property as a result of Defendants aforementioned intentional and willful acts.
86. MegaHouse is entitled to equitable relief, including an injunction
for the aforesaid unfair acts and the disgorgement of any money or other
property that Defendants acquired through the aforesaid unlawful acts and
restitution of all money or other property that MegaHouse lost through the
aforesaid unlawful acts.

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VI. FOURTH CLAIM FOR RELIEF
(Specific Performance)
herein
88. The terms of the December 19, 1997 agreement were clear and
certain that none of Defendants were the true owner of U.S. Trademark
Registration No. 1055196, and that Anjar was required to return formal legal
title in the registration upon termination of the underlying license to the
OTHELLO mark.
89. Anjar received adequate consideration for this reasonable
obligation, including the ongoing license to the OTHELLO marks.
90. MegaHouse and its predecessors-in-interest performed any and all
of their obligations under the agreement, except to the extent they were
prevented from doing so by Defendants non-performance.
91. The agreement required Anjar to convey formal legal title in the
registration to MegaHouse upon MegaHouses termination for cause of any and
all license Anjar may have had to the OTHELLO trademark. Anjar was also
obligated to convey formal legal title in the registration to MegaHouse when the
1997 agreement could no longer be maintained, including as a result of Anjars
breaches and Defendants failure to pay royalties.
92. Anjar breached its obligations by failing to convey the registration
to MegaHouse.
93. MegaHouse has no adequate remedy at law. MegaHouses
irreparable injury will continue unless Defendants are preliminarily and
permanently enjoined by this Court and ordered to specifically perform under
the 1997 agreement, at least by causing Anjar to convey to MegaHouse formal
legal title to U.S. Trademark Registration No. 1055196.

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VII. FIFTH CLAIM FOR RELIEF
(Imposition of a Constructive Trust)
herein.
95. This is a claim for imposition of a constructive trust under
California Civil Code 2224 with respect to U.S. Trademark Registrations
No. 1055196 and 1366802.
96. MegaHouse is the rightful owner of U.S. Trademark Registrations
No. 1055196 and 1366802.
97. Defendants are not entitled to control U.S. Trademark Registrations
No. 1055196 and 1366802 and currently have control of them as a result of acts
and/or statements that were fraudulent, due to undue influence, in violation of
an agreement or trust, and/or were otherwise wrongful.
98. To the extent Defendants have legal title to U.S. Trademark
Registrations No. 1055196 and 1366802, Defendants are the constructive trustee
of U.S. Trademark Registrations No. 1055196 and 1366802, and hold them and
all property or income derived from them, on behalf of MegaHouse.
VIII. SIXTH CLAIM FOR RELIEF
(Breach of Contract)

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herein.
102. This is a claim for breach of contract pursuant to the license
agreement entered into between Anjar and MegaHouses predecessor-in-
interest.
103. MegaHouse and its predecessor-in-interest did all, or substantially
all, that was required under the contract. To the extent MegaHouse or its
predecessor-in-interest failed to perform any obligation required under the
contract, such performance was excused or rendered impossible by Anjars
breach.
104. Defendants failed to comply with what was required under the
contract.
105. Defendants failure to pay the royalties due under the contract
constitutes a material breach of the agreement between the parties.
106. Defendants filing of the trademark cancellation proceedings was
prohibited by the express terms of the contract, and/or the implied covenant of
good faith and fair dealing, and constitutes a material breach of the agreement
between the parties.
107. Defendants acts of trademark and trade dress infringement, false
designation of origin, and false advertising, complained of herein, were
prohibited by the express terms of the contract, and/or the implied covenant of
good faith and fair dealing, and constitute a material breach of the agreement
between the parties.
108. Defendants failure to convey to MegaHouse formal legal title to
U.S. Trademark Registrations No. 1055196 and/or 1366802 constitutes a
material breach of the agreement between the parties.
109. Defendants material breach of the agreement, and the other
aforesaid acts, have damaged MegaHouse in an amount to be determined at
trial.

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IX. SEVENTH CLAIM FOR RELIEF
(Breach of Fiduciary Duty)
herein.
112. Defendants owed a fiduciary duty to MegaHouse and its
predecessors-in-interest, including collecting and timely paying royalties, and to
refrain from taking any actions adverse to the OTHELLO marks, the MINUTE
TO LEARN mark, or the OTHELLO trade dress.
113. Defendants failure to account for and pay royalties pursuant to the
license agreement constitutes a breach of fiduciary duty.
114. Defendants filing of cancellation proceedings against the
OTHELLO marks constitutes a breach of fiduciary duty.
X. EIGHTH CLAIM FOR RELIEF
(Declaratory Judgment Regarding Contractual Obligations)
herein.

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118. An actual controversy exists between MegaHouse and Defendants
by virtue of the allegations of the Amended Complaint. Additionally, an actual
controversy exists because, upon information and belief, Defendants dispute
whether the Wakui Agreement will terminate on or before August 31, 2014.
Additionally, an actual controversy exists because, upon information and belief,
Defendants dispute whether MegaHouse will owe royalties for the distribution
of the travel version of the OTHELLO game as set forth substantially in
Exhibit B to this Amended Complaint. MegaHouse has been, and continues to
be, damaged in that Defendants continue to demand payment under the terms of
the Wakui Agreement.
119. The Wakui Agreement will terminate on or before August 31, 2014
because MegaHouse will cease to manufacture or sell the item specified by its
terms.
120. MegaHouse will not owe royalties for products substantially in the
form of the product set forth in Exhibit B to this Amended Complaint because
the product is not an ITEM under the terms of Exhibit A of the Wakui
Agreement.
XI. PRAYER FOR RELIEF
WHEREFORE, MegaHouse prays that the Court render a final judgment
in favor of MegaHouse and against Defendants as follows:
A. Final judgment in favor of MegaHouse and against Defendants on
all claims for relief alleged herein, and that Defendants actions were willful;
B. Final judgment that MegaHouse is the sole and exclusive legal and
equitable owner of the OTHELLO mark, the MINUTE TO LEARN mark, and
the OTHELLO trade dress.
C. Final judgment that Defendants have held U.S. Trademark
Registrations No. 1055196 and 1366802 in a constructive trust for MegaHouse;
ordering Defendants to immediately assign this registrations to MegaHouse; and

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declaring that MegaHouse is legal and equitable owner of U.S. Trademark
Registrations No. 1055196 and 1366802.
D. Final judgment that Defendants willfully violated the provisions of
15 U.S.C. 1125(a) by using a false designation of origin, false description or
false representation in connection with their goods and services, including by
infringing MegaHouses OTHELLO mark, MINUTE TO LEARN mark, and
OTHELLO trade dress through the unauthorized marketing and promotion of
Defendants goods and services;
E. Final judgment that Defendants engaged in acts of unfair
competition under California statutory and common law, including by willfully
infringing MegaHouses OTHELLO mark, MINUTE TO LEARN mark, and
OTHELLO trade dress;
F. Final judgment that Defendants breached a contract with
MegaHouse and that such contract is terminated.
G. Final judgment that Defendants breached their fiduciary duty with
respect to MegaHouse.
H. Declaratory judgment that the Wakui Agreement will terminate on
or before August 31, 2014, and MegaHouse will not owe royalties under the
terms of the Wakui Agreement for the distribution of products substantially in
the form of Exhibit B to this Amended Complaint.
I. Final judgment that Defendants, their agents, servants, employees,
attorneys, successors, and assigns, and all other persons in active concert or
participation with any of them who receive actual notice of the injunction by
personal service or otherwise, be forthwith preliminarily and permanently
enjoined from:
i. using MegaHouses OTHELLO marks, MINUTE TO
LEARN mark and/or trade dress, in connection with any goods or
services, using the OTHELLO mark, the MINUTE TO LEARN mark

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and/or the OTHELLO trade dress in advertising or promoting any goods
or services, and/or using confusingly similar variations of the OTHELLO
mark, the MINUTE TO LEARN mark and/or the OTHELLO trade dress
in any manner that is likely to create the impression that any goods or
services originate from MegaHouse, are endorsed by MegaHouse, or are
connected in any way with MegaHouse;
ii. falsely advertising or promoting that Defendants are
licensors or licensing agents in connection with the OTHELLO mark, the
MINUTE TO LEARN mark and/or the OTHELLO trade dress;
iii. otherwise infringing the OTHELLO marks, the MINUTE
TO LEARN mark and/or the OTHELLO trade dress;
iv. falsely designating the origin of Defendants goods;
v. unfairly competing with MegaHouse in any manner
whatsoever; and
vi. causing a likelihood of confusion or injury to MegaHouses
business reputation;
J . Final judgment ordering Defendants to file with this Court and
serve on MegaHouse within thirty (30) days after the service of the injunction, a
report, in writing, under oath, setting forth in detail the manner and form in
which Defendants have complied with the injunction pursuant to 15 U.S.C.
1116 and 17 U.S.C. 502;
K. Final judgment that Defendants account for and pay to MegaHouse
any and all profits or other benefits derived by Defendants and all damages
sustained by MegaHouse by virtue of Defendants wrongful acts;
L. Final judgment awarding MegaHouse damages for Defendants
trademark and trade dress infringement pursuant to 15 U.S.C. 1117 in the
form of Defendants profits, damages sustained by MegaHouse and the costs of
the action, together with prejudgment and post-judgment interest;

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M. Final judgment awarding MegaHouse treble damages pursuant to
15 U.S.C. 1117;
N. Final judgment awarding MegaHouse exemplary damages from
Defendants;
O. Final judgment awarding MegaHouse restitution and disgorgement;
P. Final judgment awarding MegaHouse pre-judgment interest;
Q. Final judgment awarding MegaHouse its reasonable costs,
expenses and attorneys fees, including pursuant to 15 U.S.C. 1117;
R. Final judgment that Defendants actions were willful;
S. That Defendants be required to deliver and destroy any and all
product, literature, advertising, and other materials bearing the infringing the
OTHELLO mark, the MINUTE TO LEARN mark and/or the OTHELLO trade
dress pursuant to 15 U.S.C. 1118; and
T. That MegaHouse be awarded such other and further relief as this
Court may deem just.
Respectfully submitted,
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: August 7, 2014 By: /s/ Benjamin A. Katzenellenbogen
Benjamin A. Katzenellenbogen
Lynda J . Zadra-Symes

Attorneys for Plaintiff,
K.K. MEGAHOUSE

18595382

Othello Trademark Lawsuit

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