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JUDGE DAW

JS 44C/SDNY

#T^?15

hJLtO

CIVIL COVER SI

REV. 4/2014

The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filing and service of

pleadingsor other papers as required by law,except as provided by local rules of court. Thisform, approved by the
Judicial Conference of the United States in September 1974, is required for use of the Clerk of Court for the purpose of
initiating the civil docket sheet.
DEFENDANTS

PLAINTIFFS

Shopkeep.com, Inc.

PayVida Solutions Inc.

ATTORNEYS (FIRM NAME, ADDRESS, ANDTELEPHONE NUMBER


Sabety + Associates PLLC, 830 Third Avenue, 5th Floor, New York, NY

ATTORNEYS (IF KNOWN)

10022

Phone:212-481-8686

CAUSEOF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OFCAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

copyright infringement 17 USC 106, 501; false designation &trademark infringement 15 U.S.C. 1114, 1125; NYS unfair competition

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY atany time? NrJZjVesIUudge Previously Assigned
Ifyes, wasthis case Vol. fj Invol. Q Dismissed. No []] Yes fj
IS THIS AN INTERNATIONAL ARBITRATION CASE?

No 0

If yes, give date.

& Case No.

Yes
NATURE OF SUIT

(PLACE AN [x] IN ONEBOXONLY)

ACTIONS UNDER STATUTES

TORTS

PERSONAL INJURY

PERSONAL INJURY

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

[ ] 625 DRUG RELATED

[ ] 422 APPEAL

( ] 400STATE

[ ] 367 HEALTHCARE/
[
[
[
[

1110
1120
1130
1140

[ 1150

INSURANCE
MARINE

MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF

[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT
LIABILITY

[ ] 320 ASSAULT, LIBELS,


SLANDER

[ ] 330 FEDERAL
EMPLOYERS'

OVERPAYMENT &
ENFORCEMENT

[ 1151
[ 1152

OF JUDGMENT
MEDICARE ACT

STUDENT LOANS

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY

[ ] 350 MOTOR VEHICLE


[ ] 355 MOTOR VEHICLE

(EXCL VETERANS)
[ ]153

RECOVERY OF

INJURY

[ ] 362 PERSONAL INJURY MED MALPRACTICE

BENEFITS

[ ]190

[ ]195

REAL PROPERTY

[ I 240
[ I 245
[ ]290

28 USC 157

[ ] 690 OTHER

PROPERTY RIGHTS

LIABILITY

REAPPORTIONMENT

[
[
[
[
[

] 410
] 430
] 450
] 460
] 470

[ ] 370 OTHER FRAUD


[ ] 371 TRUTH IN LENDING
SOCIAL SECURITY

[ ] 380 OTHER PERSONAL

LABOR

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

[ ] 463 ALIEN DETAINEE


[ ] 510 MOTIONS TO
ACTIONS UNDER STATUTES

[ ] 710 FAIR LABOR


STANDARDS ACT

VACATE SENTENCE

[ ] 440 OTHER CIVIL RIGHTS


(Non-Prisoner)

LAND

FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER

( ] 441 VOTING
[ ] 442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS

[ ] 445 AMERICANS WITH


DISABILITIES EMPLOYMENT

[ ] 530 HABEAS CORPUS


[ ] 535 DEATH PENALTY
[ ] 540 MANDAMUS & OTHER

ORGANIZATION ACT

(RICO)
[ ] 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV

]861
] 862
] 863
] 864
] 865

HIA(1395ff)
BLACK LUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))

[ ] 850 SECURITIES/
COMMODITIES/
EXCHANGE

[ ] 890 OTHER STATUTORY


ACTIONS

RELATIONS

[ ] 751 FAMILY MEDICAL


LEAVE ACT (FMLA)

[ ] 790 OTHER LABOR


LITIGATION

[ ]791 EMPLRETINC
SECURITY ACT
IMMIGRATION

PRISONER CIVIL RIGHTS

[ ] 462 NATURALIZATION
[ ] 550 CIVIL RIGHTS
[ ] 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

[
[
(
[
[

[ ] 891 AGRICULTURAL ACTS

[ ] 740 RAILWAYLABOR ACT

28 USC 2255
CIVIL RIGHTS

ANTITRUST
BANKS & BANKING
COMMERCE
DEPORTATION
RACKETEER INFLU
ENCED & CORRUPT

M 820 COPYRIGHTS
[ ] 830 PATENT
._

PERSONAL PROPERTY

[ ] 720 LABOR/MGMT

CONDEMNATION

[ ]220
[ ]230

[ ] 423 WITHDRAWAL

INJURY PRODUCT

PRISONER PETITIONS

LIABILITY

[ ]210

[ ] 368 ASBESTOS PERSONAL

21 USC 881

PRODUCT LIABILITY

STOCKHOLDERS

[ 1196 FRANCHISE

PRODUCT LIABILITY

PRODUCT LIABILITY

OF VETERAN'S

SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT

SEIZURE OF PROPERTY

[ ] 365 PERSONAL INJURY

[ ] 360 OTHER PERSONAL

OVERPAYMENT

[1160

[ 1 375 FALSE CLAIMS

28 USC 158

LIABILITY

RECOVERY OF
DEFAULTED

PHARMACEUTICAL PERSONAL
INJURY/PRODUCT LIABILITY

APPLICATION

[ ] 465 OTHER IMMIGRATION

FEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiff or


Defendant)
[ ]871 IRS-THIRD PARTY

[ ] 893 ENVIRONMENTAL
MATTERS

[ ] 895 FREEDOM OF
INFORMATION ACT

26 USC 7609

[ ] 896 ARBITRATION
[ ] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES

ACTIONS

CONDITIONS OF CONFINEMENT

[ ] 446 AMERICANS WITH


DISABILITIES-OTHER

[ ] 448 EDUCATION

REAL PROPERTY

Check if demanded in complaint:

CHECK IF THIS IS ACLASS ACTION

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?

UNDER F.R.C.P. 23

DEMAND $_

OTHER

JUDGE

DOCKET NUMBER

Check YES onlyifdemandedin complaint

JURY DEMAND: E YES QjO

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).

(PLACEAN x INONEBOXONLY)

S 1 Original

Proceeding

ORIGIN

2 Removed from

state Court

Remanded

I I4 Reinstated or

Q 5 Transferred from Q 6 Multidistrict


(Specify District)

Reopened

from

I I 7 Appeal to District
Judge from
Magistrate Judge
Judgment

Litigation

Appellate

3. all parties represented

Court

I | b. At least one
party is pro se.

(PLACEAN x INONEBOXONLY)

BASIS OF JURISDICTION

1 U.S. PLAINTIFF 2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION

IF DIVERSITY, INDICATE

.[x]1 DIVERSITY0"

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)


(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF

UIIZhNOh'THISSTATE-

CITIZEN OF ANOTHER STATE

[]2

[]2

PTF

PTF DEF

DEF

-W-rH1

CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY

*t*r-

"INCORPORATED and PRINCIPArPtAeE

DEF

h+W-

0"

OF BUSINESS IN ANOTHER STATE

INCORPORATED or PRINCIPAL PLACE

.[xj <1 [ }A

FOREIGN NAIIUN

t4&-_U6

OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

143 Varick Street New York, NY 10013, United States of America, New York County

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

PayVida Solutions Inc., 221-3011 Louie Drive, Westbank BC V4T 3E3, Canada
PayVida Solutions Inc., c/o Ryan Conrad Strauss, 2209 Sunview Drive, West Kelowna BC V1Z 3X9,
Canada

DEFENDANT(S) ADDRESS UNKNOWN


REPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IBINCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

WHITE PLAINS

\x\ MANHATTAN

(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)

DATE
RECEIPT #

SIGNATURE OF ATTORNEY OF RECORD I


<0

'

t S

V\^V
x \

Magistrate Judge is to be designated by the Clerk of the Court


Magistrate Judge
Ruby J. Krajick, Clerk of Court by

WYES (DATE ADMITTED MoPj?

Attorney Bar Code #TS9970

UftJIKEMMS

. Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

ADMITTED TO PRACTICE IN THIS DISTRICT

is so Designated.

Yr. 2010 )

}UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

Shopkeep.com, Inc.
Plaintiff

Case No.

COMPLAINT AND JURY DEMAND

PayVida Solutions Inc.,

CO

C_
I,.

Defendant

--

r~

COMPLAINT AND JURY DEMAND

' g

Plaintiff, Shopkeep.com, Inc. ("Shopkeep"), by counsel, for its Complaint against


Defendant, PayVida Solutions Inc. ("Defendant" or "PayVida"), seeks damages, injunctive
relief, and other relief for copyright infringement, trademark infringement, false designation of
origin, and unfair competition, alleges as follows:

1. This is an action for copyright infringement, trademark infringement, false designation


of origin, and unfair competition under the Copyright Act, 17 U.S.C. 101 et seq., the Lanham
Act, 15 U.S.C. 1051 et seq., and New York state law.
PARTIES

2. Shopkeep is a corporation organized and existing under the laws of the State of
Delaware. Shopkeep has its principal place of business at 143 Varick Street, New York, NY
10013, United States of America.

3. On information and belief, PayVida is a corporation organized and existing under the
laws of Canada.

4. On information and belief, PayVida has its principal place of business at 221-3011
Louie Drive, Westbank BC V4T 3E3, Canada.

5. On information and belief, PayVida has at least one corporate director, Ryan Conrad
Strauss, with a residence at 2209 Sunview Drive, West Kelowna BC VIZ 3X9, Canada.
JURISDICTION AND VENUE

6. This action arises under the Copyright Act and Lanham Act, 17 U.S.C. 101 et seq.,
15 U.S.C. 1051 et seq., and New York State law. Subject matter jurisdiction exists pursuant to
28 U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (copyright, trademark, and unfair

competition), 28 U.S.C. 1338(b) (action asserting claim of unfair competition joined with a
substantial and related claim under the trademark and copyright laws); and 28 U.S.C. 1367
(supplemental jurisdiction).
7. This Court has personal jurisdiction over Defendant because Defendant has committed

acts of infringement in the District and due to its contacts with this District should reasonably
have expected to be brought before a court in this District as a result of such acts. Defendant's

website, which includes publications of infringing content, is accessible across the Internet,
including to residents in New York State. On information and belief, Defendant offers its
products and services for sale to customers in the state of New York. On information and belief

Defendant employs at least one U.S.-based sales agent that promotes Defendant's product and
services in the state of New York. On information and belief Defendant intentionally directs its
website into the state of New York in an effort to unfairly compete with Plaintiff and abscond
with its customers in this state and district.

8. Venue is proper pursuant to 28 U.S.C. 1391(b)(2), (c), (d), and/or 1400(a).


BACKGROUND AND SHOPKEEP'S INTELLECTUAL PROPERTY RIGHTS

9. Shopkeep is in the business of software services, offering an award winning iPad


point of sale and business management software system that is currently used by over ten
thousand (10,000) small businesses in North America.

10. Shopkeep offers its software system and servicesto customers by sales through a
variety of platforms. Customers can contact Shopkeep directly from the Shopkeep website or
through its customer service telephone line. Shopkeep also offers its software system and
services to consumers through VAR (value added resellers), as well as by referrals from credit
card processing vendors.

11. Shopkeep is the owner of important and highly valuable intellectual property that is
the heart of its products and award-winning brand.

12. Shopkeep is the owner of numerous federally registered trademark registrations

registered on the U.S. Principal Register, including the following marks (the "Shopkeep
Trademarks"):
Mark

U.S.

Goods / Services

Trademark

Registration
Number
SHOPKEEP

3,936,441

Class 9: Computer software for business management,


namely, sales transaction data management, sale
transaction processing, inventory management, contact
management, payroll management, vendor payment
management, marketing, scheduling
Class 35: Business services, namely, data processing
of business management data, namely, sales
transaction data, inventory management data, contact
management data, payroll management data, vendor
payment management data, marketing data and
scheduling data

Class 42: Operating a website providing software as a


service (SAAS) for use with business management,
namely, sales transaction data management, sale

transaction processing, inventory management, contact


management, payroll management, vendor payment
management, marketing, scheduling
ShopKeepPOS

4,370,734

Class 9: Computer software for business management,


namely, sales transaction data management, sale
transaction processing, inventory management, contact
management, payroll management, vendor payment
management, marketing, scheduling
Class 42: Operating a website providing software as a
service (SAAS) for use with business management,
namely, sales transaction data management, sale
transaction processing, inventory management, contact
management, payroll management, vendor payment
management, marketing, scheduling

ShopKeepPOS

4,376,632

Class 35: Business services, namely, data processing


of business management data, namely, sales
transaction data, inventory management data, contact
management data, payroll management data, vendor
payment management data, marketing data and
scheduling data

True and correct copies of these trademark registration certificates are attached as Exhibits 1 to 3
and are incorporated herein by reference.
13. Shopkeep is, and at all relevant times has been, the owner of numerous U.S.

copyright registrations including U.S. Copyright Registration Number PA 1-762-902, "Register

for iPad", which protects the graphical user interface of a version of the Shopkeep iPad point of
sale software. A true and correct copy of this copyright registration certificate is attached as
Exhibit 4 and is incorporated herein by reference.

14. Shopkeep is, and at all relevant times has been, also the owner of the copyrightable

works embodied in the content on its website, including the website homepage as it appeared on
May 2, 2013, available in archived format at

https://web.archive.org/web/20130502213645//http://www.shopkeep.com/ (U.S. Copyright


4

Registration Number PA 1-762-902 and related website copyrightable content hereinafter

referred to as "Shopkeep Copyrights", "Shopkeep Copyrighted works", or "Shopkeep's


Copyrights"). See Exhibit 5, Merritt Aff. fflf 5, 6, 7.

15. Shopkeep expends enormous efforts to develop and market its brand, copyrighted
products and services, and its registered trademarks.

16. Shopkeep has received great industry and consumerrecognition of its products and
services. For example, in 2011 Shopkeep won the Retail Solutions Providers Association

"Innovative Solutions Award." In 2012, Shopkeep won the "Best in Show" designation at the
FinovateFall 2012 technology innovation showcase. In 2013, Shopkeep was selected as the "#1
New and Noteworthy Business App" by the iTunes App Store, it was awarded a "Bronze in

Customer Service" by the Stevie Awards, and won the "Technology Innovator of the Year"
award at the ETA Star Awards. In 2014, Shopkeep surpassed its award-winning performance in
2013 and was awarded a "Gold in Customer Service" by the Stevie Awards.

17. As a result of Shopkeep's long-term and widespread use of the Shopkeep

Trademarks, the Shopkeep Trademarks have acquired such goodwill and secondary meaning that
the public has come to associate the Shopkeep Trademarks as exclusively with the Plaintiff, and
the Shopkeep Trademarks have become famous.
DEFENDANT'S UNLAWFUL ACTS AND CONDUCT

18. On information and belief, PayVida is the registrant and owner of the domain name

www.pavvida.ca and owns, operates, and maintains the website www.payvida.ca.

19. On information and belief, GoDaddy.com, LLC is acting as a contractor for


Defendant to host and maintain www.pavvida.ca. See Exhibit 7.

20. Defendant's website www.payvida.ca depicts unauthorized reproductions of the


Shopkeep Trademarks and unauthorized reproductions of, and derivative works of, the Shopkeep
Copyrights. Exhibit 5, Merritt Aff. lj[ 10-19.

21. Rather than develop its own website content, Defendant chose to copy and reproduce
Plaintiffs website content and reproduce depictions of Plaintiff s copyrighted graphical user
interface that appeared on Plaintiffs website. Exhibit 5, Merritt Aff. Iff 10-19.
22. Defendant's website employs unauthorized reproductions of Plaintiff s intellectual
property in order to promote its directly competitive point of sale systems for businesses to

process payment and manage their staff, inventory, and business data. Exhibit 5, Merritt Aff. f]f
10-19.

23. Defendant does not have a license from Shopkeep to use any of the Shopkeep
Copyrighted works appearing on Defendant's website and Shopkeep has not consented to,

sponsored, endorsed, or approved of Defendant's use of the Shopkeep Trademarks and Shopkeep
Copyrights or any variation thereof to promote a PayVida branded point of sale system. Exhibit
5, Merritt Aff. 118.

24. The association of the Shopkeep Trademarks with the PayVida platform has and will

continue to cause damage to the goodwill and value of the Shopkeep Trademarks. Shopkeep has
and continues to be injured by Defendant's unlawful acts within the State of New York and this
judicial district.

25. Shopkeep has made demands that Defendant discontinue and cease the infringement

and acts complained of, but Defendant has continued to infringe the Shopkeep Trademarks and
Shopkeep Copyrights. See Exhibit 6.

26. On information and belief, Defendant has performed the acts complained of herein

willfully and with knowledge of the infringement caused and with intent to cause confusion,
mistake, or deception, and to unfairly trade on Shopkeep's goodwill in the Shopkeep

Trademarks, copyrighted website content and the copyrighted graphical user interface
comprising the Shopkeep Copyrights.

27. As of the date of this Complaint, Defendant continues to use unauthorized and

confusing uses of the Shopkeep Trademarks and unauthorized copies of the Shopkeep

Copyrights. Defendant's failure to comply with Shopkeep's demands to cease and desist further
demonstrates Defendant's intent to wrongfully infringe Plaintiffs intellectual property rights, to

dilute and damage the enormous value of the Shopkeep Trademarks, to damage the goodwill
associated with the Shopkeep Trademarks, and to unfairly compete with Shopkeep.
COUNT ONE: FEDERAL COPYRIGHT INFRINGEMENT (17 U.S.C. $106, 501)

28. Plaintiff repeats and realleges each and every allegation set forth above as if fully set
forth here.

29. Shopkeep is the sole and exclusive owner of all rights, title, and interest in and to the
registered copyrights in the Shopkeep graphical user interface display.
30. Defendant accessed Shopkeep's website content in order to obtain the images

comprising depictions of Shopkeep's registered copyrights in its graphical user interface display
and copyrighted website content.

31. Defendant has infringed Plaintiffs Shopkeep Copyrights in its graphical user

interface display and related website content in violation of Section 106 and 501 of the

Copyright Act, 17 U.S.C. 106, 501 by creating unauthorized derivative works of, and making

copies of, transmitting or publicly performing the Shopkeep Copyrighted works without
authorization.

32. Upon information and belief, Defendant has profited from the use of infringing

images and interfaces, which are identical or virtually identical to Shopkeep's Copyrights in the
graphical user interface and related website content.

33. As a result of Defendant's wrongful conduct, Shopkeep has been deprived of its

exclusive rights under the Copyright Act, including Shopkeep's exclusive rights to reproduce,
distribute copies, transmit, publicly perform, and create derivate works of the Shopkeep
Copyrights.

34. Defendant's acts of infringement are willful, intentional, and purposeful, in disregard
of and with indifference to Plaintiffs exclusive rights.

35. As a direct and proximate result of said copyright infringement by Defendant,


Plaintiff is entitled to statutory damages for copyright infringement.
36. Plaintiff is also entitled to Defendant's profits attributable to the infringement,
pursuant to 17 U.S.C. 504(b), including an accounting of and a constructive trust with respect
to such profits.

37. Plaintiff is further are entitled to its attorneys' fees and full costs pursuant to 17
U.S.C. 505 and otherwise according to law.

38. As a direct and proximate result of the foregoing acts and conduct, Plaintiff has

sustained and will continue to sustain substantial, immediate, and irreparable injury, for which
there is no adequate remedy at law. Plaintiff, on information and belief, and on that basis aver

that unless enjoined and restrained by this Court, Defendant will continue to infringe Plaintiffs

rights in the Shopkeep Copyrights. Plaintiff is entitled to preliminary and permanent injunctive
relief to restrain and enjoin Defendant's continuing infringing conduct.
COUNT TWO: UNFAIR COMPETITION

39. Plaintiff repeats and realleges each and every allegation set forth above as if fully set
forth here.

40. Upon information and belief, Defendant has adopted and used Plaintiffs intellectual
property rights, including the Shopkeep Trademarks and Shopkeep Copyrights which are the
products of Shopkeep's labors and expenditure, with full knowledge of Shopkeep's rights, and
without Shopkeep's authorization or consent.
41. Defendant's misappropriation and use of Shopkeep's intellectual property rights is
likely to cause confusion or to deceive consumers as to the origin of the goods and services
and/or has caused actual confusion among consumer as to the origin of the goods and services.
42. Defendant's use of Shopkeep's intellectual property has resulted in the

misappropriation of and trading upon Shopkeep's goodwill and business reputation at


Shopkeep's expense and at no expense to Defendant.
43. Defendant's misappropriation and use of Shopkeep's intellectual property rights has
unjustly enriched Defendant.

44. Defendant's misappropriation and use of Shopkeep's intellectual property rights has
damaged Shopkeep.
45. Defendant's aforesaid conduct, as alleged herein, constitutes willful unfair

competition in violation of the common law of the State of New York.


46. Upon information and belief, Defendant intends to continue its willful unfair
competitive conduct, unless restrained by this Court.

47. Upon information and belief, Defendant, by its willful conduct, has made and will
continue to make substantial profits and gains to which it is not entitled to in law or in equity.
48. Defendant's conduct is causing and will continue to cause Shopkeep to suffer

irreparable harm and damage, and Shopkeep has no adequate remedy at law.
COUNT THREE: FALSE DESIGNATION OF ORIGIN OR SPONSORSHIP
(15 U.S.C. 1125(a))

49. Plaintiff repeats and realleges each and every allegation set forth above as if fully set
forth here.

50. Defendant's advertising, promotion, distribution, sale, and offering for sale of a point
of sale platform that without license or authorization employs the Shopkeep Trademarks and

Shopkeep Copyrights in either Defendant's platform itself or its promotion, is calculated to, and
is likely to confuse, mislead, or deceive consumers, the public, and the payment processing and
retail store industries, as to the origin, source, sponsorship, and/or affiliation of or between the

Shopkeep and the PayVida point of sale platforms, and is intended or is likely to cause such
parties to believe in error that the infringing PayVida platform has been authorized, sponsored,

approved, endorsed, or licensed by Shopkeep, or that there is some other affiliation, connection,
or association between Shopkeep and Defendant.

51. Defendant's conduct constitutes a false designation of origin and/or sponsorship


and/or false and misleading descriptions and representations of fact, all in violation of 15 U.S.C
1125(a).

52. Upon information and belief, Defendant intends to continue its willful false
designation of the origin of the PayVida platform, unless restrained by this Court.

10

53. Upon information and belief, by its willful acts, Defendant has made and will

continue to make substantial profits and gains to which it is not in law or in equity entitled.
54. The actions of Defendant, if not enjoined, will continue. Plaintiff has suffered, is

suffering, and will continue to suffer irreparable damage consisting of, among other things,
diminution in the value of and goodwill associated with the Shopkeep Trademarks, and injury to
Shopkeep's business. Unless Defendant is restrained from continuing its wrongful acts and
operations of its infringement, the damage to Plaintiff will increase. Plaintiff therefore is entitled
to injunctive relief pursuant to 15 U.S.C. 1116.

55. Because Defendant's actions have been committed with intent to damage Shopkeep

and to confuse and deceive the public, Shopkeep is entitled to treble its actual damages or
Defendant's profits, whichever is greater, and to an award of costs, and reasonable attorneys fees
pursuant to 15 U.S.C. 1117.
COUNT FOUR: FEDERAL TRADEMARK INFRINGEMENT UNDER
15 U.S.C. 1114(1)

56. Plaintiff repeats and realleges each and every allegation set forth above as if fully set
forth here.

57. The United States Patent and Trademark Office has granted federal registrations to
the trademarks SHOPKEEP and SHOPKEEPPOS. Shopkeep owns the exclusive trademark

rights and privileges in and to SHOPKEEP and SHOPKEEPPOS. Shopkeep uses the
SHOPKEEP and SHOPKEEPPOS marks as designations of the source and quality of its goods
and services.

58. Defendant is using the Shopkeep Trademarks without authorization and confusingly
similar variations thereof in a manner that is likely to confuse, cause mistake, deceive as to the

11

source of origin or sponsorship or endorsement of Defendant's website and point of sale system,
or to wrongly lead consumers and website browsers to conclude that some connection exists
between Defendant's products and Shopkeep, and therefore infringes Shopkeep's exclusive
rights in the Shopkeep Trademarks in violation of 15 U.S.C. 1114(1).
59. On information and belief, prior to Defendant's first use of the infringing content, it

was aware of Shopkeep's business and had either actual notice and knowledge, or constructive
notice of, the registered Shopkeep Trademarks.

60. Shopkeep has no adequate remedy at law for Defendant's infringement of the
Shopkeep Trademarks in that: (i) the Shopkeep Trademarks are unique and valuable property,
injury to which cannot adequately be compensated by monetary damages; (ii) the infringement
of the Shopkeep Trademarks has injured and threatens to continue to injure Plaintiffs reputation
and goodwill; and (iii) the injury resulting to Plaintiff from Defendant's wrongful conduct, and
the conduct itself, are continuing.

61. On information and belief, the acts were undertaken willfully and with the intention

of causing confusion, mistake, or deception.


62. The actions of Defendant, if not enjoined, will continue. Plaintiff has suffered, is

suffering, and will continue to suffer irreparable damage consisting of, among other things,
diminution in the value of and goodwill associated with the Shopkeep Trademarks, and injury to

Shopkeep's business. Unless Defendant is restrained from continuing its wrongful acts and
operations of its infringement, the damage to Plaintiff will increase. Plaintiff therefore is entitled
to injunctive relief pursuant tol5U.S.C. 1116.
63. Because Defendant's actions have been committed with intent to damage Shopkeep

and to confuse and deceive the public, Shopkeep is entitled to treble its actual damages or

12

Defendant's profits, whichever is greater, and to an award of costs, and reasonable attorneys fees
pursuant to 15 U.S.C. 1117.
COUNT FIVE: COMMON LAW TRADEMARK INFRINGEMENT

64. Plaintiff repeats and realleges each and every allegation set forth above as if fully set
forth here.

65. Shopkeep has prior rights in the Shopkeep Trademarks.

66. Defendant has infringed the Shopkeep Trademarks by using identical and

confusingly similar variations of the Shopkeep Trademarks in the promotion of its competing
products.

67. Defendant is using the Shopkeep Trademarks and confusingly similar variations
thereof in a manner that is likely to confuse, cause mistake, deceive as to the source of origin or
sponsorship or endorsement of Defendant's website and point of sale system, or to wrongly lead
consumers to conclude that some connection exists between Defendant's products or services

and Shopkeep, and therefore infringes Shopkeep's exclusive rights in the Shopkeep Trademarks
in violation of New York State common law.

68. On information and belief, prior to Defendant's first infringing use of the Shopkeep
Trademarks, it was aware of Shopkeep's business and had either actual notice and knowledge, or
constructive notice of, the registered Shopkeep Trademarks.

69. Shopkeep has no adequate remedy at law for Defendant's infringement of the
Shopkeep Trademarks in that: (i) the Shopkeep Trademarks are unique and valuable property,

injury to which cannot adequately be compensated by monetary damages; (ii) the infringement
has injured and threatens to continue to injure Plaintiffs reputation and goodwill; and (iii) the

13

injury resulting to Plaintiff from Defendant's wrongful conduct, and the conduct itself, are
continuing.

70. On information and belief, the acts were undertaken willfully and with the intention
of causing confusion, mistake, or deception.
71. The actions of Defendant, if not enjoined, will continue. Plaintiff has suffered, is

suffering, and will continue to suffer irreparable damage consisting of, among other things,
diminution in the value of and goodwill associated with the Shopkeep Trademarks, and injury to
Shopkeep's business. Unless Defendant is restrained from continuing its wrongful acts and
operations of its infringement, the damage to Plaintiff will increase. Plaintiff therefore is entitled
to injunctive relief.

72. Because Defendant's actions have been committed with intent to damage Shopkeep
and to confuse and deceive the public, Shopkeep is entitled to recover its actual damages or
Defendant's profits, whichever is greater.
PRAYER FOR RELIEF

WHEREFORE, Shopkeep demands judgment against PayVida as follows:

1. That Defendant and their officers, agents, servants, distributors, affiliates, employees,
attorneys and representatives, and all those in privity or acting in concert with Defendants or on

their behalf, be preliminary and permanently enjoined and restrained from:

i) using Shopkeep Trademarks, or any other confusingly similar mark or design


thereto, or the Shopkeep Copyrights, or any substantially similar designs thereto, alone or in
combination to advertise or promote any PayVida products or services;

ii) manufacturing, importing, advertising, promoting, supplying, distributing,

offering for sale or selling any products or services which bear the Shopkeep Trademarks, or any
14

other confusingly similar mark or design thereto, or the Shopkeep Copyrights, or any
substantially similar designs thereto, alone or in combination;
iii) engaging in any other conduct constituting infringement of any Shopkeep
intellectual property right;

iv) using in any other way any mark or designation so similar to the Shopkeep
Trademarks as to be likely to cause confusion, mistake or deception;

v) falsely designating the origin, sponsorship, or affiliation of the Defendant's


products as in some way related to Shopkeep;

vi) otherwise competing unfairly with Shopkeep;

vii) infringing Shopkeep's exclusive rights in its copyrights;


viii) continuing to perform in any manner whatsoever any of the acts complained
of in this complaint.

2. That pursuant to 17 U.S.C 503, Defendant pay to Plaintiff for its infringement of the
Shopkeep Copyrights statutory damages for Defendant's infringement of Shopkeep's registered
Copyrights, plus any profits of Defendant attributable to the other claims of copyright
infringement and Plaintiffs fees and costs.

3. That Defendant be required to account for and pay over all gains, profits, and
advantages derived by Defendant and any damages sustained by Plaintiff as a result of its
infringements of Plaintiff s intellectual property rights as enumerated herein.

15

4. That Defendant be required to account for and pay over all gains, profits, and
advantages derived by Defendant and any damages sustained by Plaintiff as a result of its
infringements of Plaintiff s unfair competition as enumerated herein.

5. Requiring such other measure as the Court may deem appropriate to prevent the public
from deriving any erroneous impression that the PayVida website or the PayVida point of sale
platform has been authorized or is in any way related to Shopkeep.
6. Awarding Shopkeep its costs and attorneys fees and investigatory fees and expenses to

the fullest extend provided for by the Lanham Act and the Copyright Act.
7. Requiring Defendant to deliver up to Shopkeep for destruction and other disposition
any remaining infringing inventory, including all advertising, promotional, and marketing
materials, as well as all means of making the same.

8. Awarding to Shopkeep pre-judgment interest on any monetary award made part of the
judgment against Defendant.

9. Awarding to Shopkeep such additional and further relief as the Court deems just and
proper.

Dated: New York, New York


January 8, 2015

SABETY + ASSOCIATES PLLC

By:_

AttorneMfor Plaintiff, SMgDkeep.com, Inc.


830 Third Avenue, 5th Floor
New York, NY 10022

Tel: (212) 481-8686


Fax: (646) 349-2782
E-mail: docketfSjsabety.net
16

EXHIBIT 1

THE UNITED STATES OF AMERICA

^tttU states of Mitten


W*

Wuittto &m*& patent an* t&ra&emarlt Office

*-*#

SHOPKEEP
Reg. No. 3,936,441

WINEDELIVERY, LLC(NEWYORK LIMITED LIABILITYCOMPANY)

Registered Mar. 29,2011

BROOKLYN, NY 11238

Int Cls.: 9,35 and 42


TRADEMARK

175 LAFAYETTE AVE

FOR: COMPUTER SOFTWARE FOR BUSINESS MANAGEMENT, NAMELY, SALES


TRANSACTIONDATA MAN\GEMENT,SALETRANSACTIONPROCESSING, INVENTORY
MANAGEMENT, CONTACT MANAGEMENT, PAYROLL MANAGEMENT, VENDOR
PAYMENT MANAGEMENT, MARKETING, SCHEDULING, IN CLASS 9 (U.S. CLS. 21, 23,
26,36 AND 38).

SERVICEMARK

FIRST USE 1-20-2010;IN COMMERCE 1-20-2010.


PRINCIPAL REGISTER

FOR: BUSINESS SERVICES, NAMELY, DATAPROCESSINGOF BUSINESS MANAGEMENT

DATA, NAMELY, SALES TRANSACTION DATA, INVENTORY MANAGEMENT DATA,


CONTACT MANAGEMENT DATA, PAYROLL MANAGEMENT DATA, VENDOR PAYMENT
MANAGEMENT DATA, MARKETING DATA AND SCHEDULING DATA, IN CLASS 35
(U.S. CLS. 100,101 AND 102).
FIRST USE 1-20-2010; IN COMMERCE 1-20-2010.

FOR: OPERATING A WEBSITE PROVIDING SOFTWARE AS A SERVICE (SAAS) FOR USE


WITH BUSINESS MANAGEMENT, NAMELY, SALES TRANSACTION DATA MANAGE

MENT, SALE TRANSACTION PROCESSING, INVENTORY MANAGEMENT, CONTACT

MANAGEMENT, PAYROLL MANAGEMENT, VENDOR PAYMENT MANAGEMENT,


MARKETING, SCHEDULING, IN CLASS 42(U.S. CLS. 100 AND 101)
FIRST USE 1-20-2010; IN COMMERCE 1-20-2010.

THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR


TICULAR FONT, STYLE, SIZE, OR COLOR.
SER. NO. 77-921,264, FILED 1-27-2010.
JEFFREY LOOK, EXAMINING ATTORNEY

UiRclw ofthe United Stun Paten end 1'mlaiaik Office

EXHIBIT 2

^vte* states of %met,rjy


VIV^

?Hmtetr States* patent anb tErabemarfc Office

^Cf

ShopKeepPOS
Reg. No. 4,370,734

shopkeep.com, inc.(Delaware corporation)


55 BROAD STREET, 13TH FLOOR

Registered July 23,2013 newyork,ny 10004


Int. Cls.: 9 and 42

FOR: COMPUTER SOFTWARE FOR BUSINESS MANAGEMENT, NAMELY, SALES


TRANSACTION DATA MANAGEMENT, SALE TRANSACTION PROCESSING, INVENTORY
MANAGEMENT, CONTACT MANAGEMENT, PAYROLL MANAGEMENT, VENDOR

TRADEMARK

PAYMENT MANAGEMENT, MARKETING, SCHEDULING, IN CLASS 9 (U.S. CLS. 21, 23,


26, 36 AND 38).

SERVICE MARK
FIRST USE 2-27-2012; IN COMMERCE 2-27-2012.

PRINCIPAL REGISTER

FOR: OPERATING A WEBSITE PROVIDING SOFTWAREAS A SERVICE (SAAS) FOR USE


WITH BUSINESS MANAGEMENT, NAMELY, SALES TRANSACTION DATA MANAGE
MENT, SALE TRANSACTION PROCESSING, INVENTORY MANAGEMENT, CONTACT
MANAGEMENT, PAYROLL MANAGEMENT, VENDOR PAYMENT MANAGEMENT,
MARKETING, SCHEDULING, IN CLASS 42 (U.S. CLS. 100 AND 101).
FIRST USE 2-27-2012; IN COMMERCE 2-27-2012.
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR

TICULAR FONT, STYLE, SIZE, OR COLOR.


OWNER OF U.S. REG. NO. 3,936,441.
SER. NO. 85-564,448, FILED 3-8-2012.
PAM WILLIS, EXAMINING ATTORNEY

J^5*
ActBig Director f the United Slatei Patent and Trademark Oflke

EXHIBIT 3

VZy*

Wnitds &tate* patent an* ^ratremarfe Office

^(f.

ShopKeepPOS
Reg. No. 4,376,632

shopkeep.com, inc.(Delawarecorporation)
55 BROAD STREET

Registered July 30,2013 oth floor


NEW YORK, NY 10004

Int. CL: 35
SERVICE MARK
PRINCIPAL REGISTER

FOR: BUSINESS SERVICES, NAMELY, DATA PROCESSING OF BUSINESS MANAGEMENT


DATA, NAMELY, SALES TRANSACTION DATA, INVENTORY MANAGEMENT DATA,
CONTACT MANAGEMENT DATA, PAYROLL MANAGEMENT DATA, VENDOR PAYMENT
MANAGEMENT DATA, MARKETING DATA AND SCHEDULING DATA, IN CLASS 35
(U.S. CLS. 100, 101 AND 102).
FIRST USE 2-27-2012; IN COMMERCE 2-27-2012.
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR

TICULAR FONT, STYLE, SIZE, OR COLOR.

OWNER OF U.S. REG. NO. 3,936,441.


SER. NO. 85-977,483, FILED 3-8-2012.
PAM WILLIS, EXAMINING ATTORNEY

Atttaf Director affile United Slates Patent and Tradeniarit Oflke

EXHIBIT 4

Certificate ofRegistration
This Certificate issued under the seal ofthe Copyright

d>:***

Office in accordancewith title 17, United States Code,


atteststhat registrationhas been made for the work
identified below. The information on this certificate has

been made a part oftheCopyright Office records.

Registration Number

PA 1-762-902
J870

"7%u*l x &Mz
Register of Copyrights, UnitedStates of America

Effective date of

registration:
November 28,2011

Title
Tide ofWork: ShopKeep Register for iPad

Completion/Publication
Year of Completion: 2011

Date of 1st Publication:

August 5, 2011

Nation of 1st Publication: United States

Author

Author:
Author Created:

Work made for hire:


Citizen of:

Author:
Author Created:

Work made for hire:

Citizen of:

Author:
Author Created:

Work made for hire:

Citizen of:

Ronald Reeser
audiovisual material

Yes
United States

Domiciled in:

United States

Domiciled in:

United States

Domiciled in:

United States

Jason Richelson
audiovisual material
Yes

United States
MattCullin
audiovisual material

Yes

United States

Copyright claimant
Copyright Claimant: ShopKeep.com, Inc.
55 Broad Street, New York, NY, 10004, United States

Transfer Statement:

By written agreement

Rights and Permissions

Page 1 of 2

Organization Name:
Telephone:
Address:

Sabety + Associates PLLC


212-481-8686

8 West 40th Street, 12th Floor

New York, NY 10018 United States

Certification
Name:
Date:

Ted Sabety,Esq.
November 28,2011

Page 2 of 2

Registration #: PA0001762902

Service Request #: 1-691208254

Sabety + Associates PLLC


Ted Sabety
8 West 40th Street, 12th Floor
New York, NY 10018 United States

EXHIBIT 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

SHOPKEEP.COM, INC.,
Plaintiff,

Case No.

-v-

PAYVIDA SOLUTIONS INC.,

Defendant.

DECLARATION OF NORM MERRITT

Norm Merritt hereby states as follows:


1.

I am Norm Merritt.

2.

I am Co-CEO and President ofShopkeep.com, Inc.

3.

I make this declaration based on my personal knowledge.

4.
Attached as Exhibit A is a true and correct copy of screenshots of a webpage from
the Defendant's website, specifically <http://payvida.ca/tablet-pos-solutions.html> (referred to
herein as the "Payvida website"), as retrieved on November 24, 2014.
5.
Attached as Exhibit B is a true and correct Certificate of Registration for U.S.
Copyright Registration No. PA 1-762-902.

6.

Attached as Exhibit C is a true and correct copy of the deposit for registration PA 1-

762-902.

7.

Shopkeep.com, Inc. is the owner of U.S. Copyright Registration PA 1-762-902.

8.
Shopkeep.com, Inc. is the owner of all copyright interest in the display imagerythat
depicts its software user interface and all other text and imagery that appears on its website,
www.shopkeep.com.

9.
Exhibit D is a true and correct screenshot of the home page www.shopkeep.com,
dated May 2, 2013 archived at
<https://web.archive.Org/web/20130502213645/http://www.shopkeep.com/>. The home page
includes the copyright notice " ShopKeep.com, Inc. All Rights Reserved."
10.
The Payvida website as shown in Exhibit A contains at least 6 instances of
unauthorized copies, transmissions or unauthorized derivative works of Shopkeep.com's
copyrighted user interface.

11.
The unauthorized images of Shopkeep.com's copyrighted user interface that appear
on the Payvida website are identical to and extracted from an earlier version of Shopkeep.com's
website that was published on and made publicly available on Shopkeep.corn's website,
www.shopkeep.com.
12.
One page of the Payvida Website presented in Exhibit A, sheet 4, includes an image
of a person alongside the text "Hi, I'm Josh! I'll be your dedicated POS Specialist during your 30day trial. Feel free to contact me for helpful tips and tricks and any questions you have about
POS." A magnified portion is presented on sheet 5 of Exhibit A.
13.
Josh Jasper.

The person identified as "Josh" on the PayVida webpage presented in Exhibit A is

14.
Josh Jasper is an employee ofShopkeep.com, Inc. and his current title is Point Of
Sale Specialist.

15.

Josh Jasper did not authorize Payvida to use his image or likeness.

16.
The image of the person identified as "Josh" in the PayVida webpage presented in
Exhibit A is identical to a picture of Josh Jasper that was published on and made publicly available
on Shopkeep.com's website, www.shopkeep.com.

17.
Shopkeep.com, Inc. owns all copyright in the image of Josh Jasper and the
accompanying text that appears on the Shopkeep.com website, www.shopkeep.com.
18.
Shopkeep.com, Inc. did not authorize Payvida to copy, transmit, publicly perform,
create derivative works of or otherwise use its copyrighted user interface imagery or any imagery
obtained from Shopkeep.com, Inc.'s website www.shopkeep.com or those of its authorized
distributors.

19.
Access and verbatim copying is demonstrated by Exhibit E, which is a true and
correct screenshot from Payvida's website. It shows content reproduced from the Shopkeep
website. This is demonstrated by Exhibit F, which shows a zoom-in image of the screenshot in
Exhibit E, where Payvida's attempt to obscure Shopkeep's trademark failed and Shopkeep's
trademark readily appears.
[Remainder of Page Blank]

I declare under penalty of perjury that the foregoing is true and correct.

Executed on l^-flyj^Q^

Declaration of Norm Merritt

EXHIBIT A

Eite fdit yjew Hipory fioofcmarig loots tjgip


Tablet 8u"PadPoint of Sale Pay... x

4" f3t payvidaxa.'^t'e* p >

* in i+-

^PayVida

C H " mpep usptogov petition torevive issue fee

HOME

ABOUT

PRODUCTS

BENEFITS

& i 2

WORKWTTHUS
CONTACT US

Meet Your New Rockstar Business Manager


PayVida's iPad POS Makes Sales Simple

Accept Any Payment


Take cash or credit cards, or debit

^^>

Cash:

AllIMaj
Major Credit Cards:

B * mpep uspto.gov petition to revive issue fee

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debit transactions.

The Most Powerful Tools To Manage Your


Business
Make smarter business decisions from any web browser with our
BackOffice & Clearsight Reports

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41 r$ payvKJaxataif p--- r^cis-m

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Contact us!

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EXHIBIT B

Certificate ofRegistration
This Certificate issued under theseal oftheCopyright

AzSZSSz-.

Officein accordance with title 17, United States Code,


attests that registration has been made for the work
identified below. The information on this certificate has

beenmade a part ofthe Copyright Office records.

Registration Number

PA 1-762-902
cuu^

x'RkWt

Register of Copyrights, UnitedStates of America

Effective date of

registration:
November 28,2011

Title
Tide ofWork: ShopKeep Register for iPad

Completion/Publication
Year of Completion:
Date of 1st Publication:

2011
August 5,2011

Nation of 1st Publication: United States

Author

Author:
Author Created:

Work made for hire:

Citizen of:

Author:
Author Created:

Work made for hire:

Citizen of:

Author:
Author Created:

Work made for hire:

Citizen of:

Ronald Reeser
audiovisual material

Yes

United States

Domiciled in:

United States

Domiciled in:

United States

Domiciled in:

United States

Jason Richelson
audiovisual material

Yes

United States
Matt Cullin
audiovisual material

Yes

United States

Copyright claimant
Copyright Claimant:

ShopKeep.com, Inc.
55 Broad Street, New York, NY, 10004, United States

Transfer Statement:

Rights and Permissions

By written agreement

-^^^^__^_^__^^^_

Page 1 of 2

Organization Name: Sabety + AssociatesPLLC

Telephone: \ 212-481-8686

Address: | 8West 40th Street, 12th Floor


iNewYork, NY10018 United States

Certification
Name:
Date:

Ted Sabety, Esq.


November 28,2011

Page 2 of 2

Registration #: PAOOO1762902

Service Request #: 1-691208254

Sabety + Associates PLLC


Ted Sabety
8 West 40th Street, 12th Floor
New York, NY 10018 United States

EXHIBIT C

ShopKecp:Jason
Description

Qty

Unit Price Subtotal jMSinjtifl

Total

Cash

Esptesso

Coffee

Mactfifetto

appuccin

E&fe

Drip
offeeSO

Roberta's

Butter+Lov

sBcfcybun!

e Cookies

Caffe

CofcfcSirew

Mocha

NQfcQ

Sairaftwche
S

Stegte
Espresso

Cash Tender

5.98

00

Enter

20.00

ShopKeep: Jason

Qty Unit Price Subtotal |2jgg

Description

Subtotal

Sandwiches

5.49

10.98

10.98 T

Macchiato

3.25

3.25

3.25 T

Butter+Love Cookies

1.50

1.50

1.50

Drip Coffee SO

Coffee

Pains au

Almond

Ctiocolat

Croissants

19.23

Discount

0.00

3.50 T

Mafcfififeto

iGaffe

Caffe

tiHK

Mocha

Drip

Sanfltefehe

OofefcSrew

'{US

Hot.ea

CiSfflffirate

Buttet+tov

Sip^te-

e CotStoes

Espresso

EXHIBIT D

jie Edit iew History Eoofcmarfcs IooUHelpJ


iPad POS System jCloud Point .

A htp

- artftitjOfg.v.e&,'2CliO:

j- wayback machine

http7Avww.shopkesp.com/
155 captures

easy-to-use iPad. By combining an iPad


register with our cloud-based BackOffice
reporting, you have the ability to generate
powerful analysis of inventory, sales and
customer relationship management with a
service that never becomes outdated.

up customers, print or email receipts, pop the


cash drawer, accept credit cards, print to the
kitchen, scan items, manage your inventory,
update pricing and have real time access to
sales numbers from anywhere. Try the demo,
sign up. then go live in minutes. Have a
question or concern? Call us.

personal store online. Our powerful


reporting suite allows you to slice and
dice your data easily and extract the
infonnation that is really meaningful to
your business. ShopKeep POS is the
simplest way to make smarter business
decisions.

Don't hesitate to call us. We're a friendly bunch!


800-820-9814

C 2013 ShopKeep.com. Inc. All Rights Reserved.


iPad is a registered trademark of Apple. Inc.
Patent pending.
SHOPKEEPPOS

Tenns of Service Privacy Policy

Why ShopKeep POS


How it Works

work wrm us

Merchant Services Providers 55 Broad Street. 9th Floor, New York, NY 10004

Customer Reviews

Press

Jobs

Value Added Resellers

Contact Us

Affiliates

Hardware

PayPal Partnership
LevelUp Integration

Merchants

Introduction to POS

Rilling policy Mmftft User License Agreement

Blog

Pricing
Sign Up

-h e
Close m

1Apr 01-20 Nov14

1HU Mif)l!{I MM! All 41elegant

800-820-9814
Made in NYC i

Facebook
Twitter

RSPA, Innovative Solution Awards

EXHIBIT E

file Edit View Htstoiy Bookmarks Tools Help]

IF TaHet &iPad Point ofSale Pay... x


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$ payvidaxa;lciuie!-pi.' '. j

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print reports.
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Time clock: Easily track


employee hours for easier pa}
and shift management when ti

M^elieyi.

clock in and clock out on the il

Contact us!

EXHIBIT F

John Srciilh

c*oek<xl in at 7:45:mi

EXHIBIT 6

H| Sabety+associates pllc
I Law, Technology and Electronic Media

SWesi 40th Street. 12th Floor


NewYork.NYI00IB
Pi 212481.8686

Fi 646.349.2782

EMAILilnfo@beiy.nec
URL: www.tibety.net

December 6,2013

Robert J. Ronning
President & CEO

PayVida Solutions, Inc.


221-3011 Louie Drive

WestbankBCV4T3E3
Canada
Fax: 855,346.8432

Dear Mr. Ronning,

I represent Shopkeep.com, Inc., locatedin New YorkCity ("ShopKeep"). I understand that


you contacted my client in May of this year ostensibly to procure a referral code and become a

value added reseller. However, my understanding is that your company never signed the
referral agreementthat you requestednor procured any customers. Therefore,there is no
contract between your company and ShopKeep.

Shopkeep.com ownsseveral copyright registrations for its software code, including a registered
copyright for its userinterface. I have been alerted to thefact thatyour company sellssoftware
that presents a user interface that infringes Shopkeep's copyrights. I attach here the relevant
copyright registrations. In particular the attached screenshot fromthe PayVida website shows a
user interface that is virtuallyidentical to the user interface that ShopKeep.com created and
registered with the U.S. Copyright Officetwo years ago. It is galling to see that you have
placed the PayVida trademark onto the images of the user interface of ShopKeep's software.
The identical appearance of the userinterface is itselfblatant copyright infringement. But the
identical nature of the user interface suggests that PayVidaobtained a copy of ShopKeep's
tabletPOS program code by pretending to be a ShopKeep customerand, without authorization,
used ShopKeep's software code in violation of the ShopKeepend user license.

UnderU.S. and Canadian law, it is copyright infringement to makecopies of, distribute, or


createderivations of copyrighted workswithout permission from the copyright owner.
Therefore, the use, creationand transmission of the infringing user interface and the infringing
software code are actionable bothin the U.S. and in Canada underthe respective copyright laws
of bothcountries. The transmission of the infringing screenshots from the PayVida website are
equally actionable both in the U.S. and in Canada. In addition, the association of the PayVida
logo withShopKeep's distinctive user interface design raises claims of trade dress infringement
and unfair competition,

To the extent you think there is a contract between your company and ShopKeep, consider this
letter termination onnotice, due to your company's infringement of ShopKeep's intellectual
property, pursuant to Section 5 ofthatunsigned document. Furthermore, any rights in
Shopkeep's trademarks orcopyrights granted by such document are granted "at will," pursuant
to Section 9, So consider this letter revocation and termination of such rights on notice,

Therefore, as ofnow there isno doubt your company has no rights to the intellectual property of
Shopkeep.

On behalfofShopkeep.com, I demand that PayVida cease and desistfrom any further use,

creation ordistribution of any software code that (i)is derived from ShopKeep's program code
or(ii) displays the infringing user interface and that PayVida cease and desist from any further
use, copying ortransmission ofthe infringing images. I also demand that PayVida cease
associating itsname with any ShopKeep intellectual property, including user interface designs,
website images and/or ShopKeep's trademarks. I alsodemand that PayVida disclose the
number of customers who havereceived the PayVida software, the amount of revenues received

and the country oftheir residence. If I do not get confirmation back from PayVida within 5
days that il intends to comply with these demands, or if PayVida does not comply within 10
days, ShopKeep is prepared to (i)take legal action against your company, seeking damages,
attorney's fees and an injunction preventing PayVida from further distribution of its software in
Canada and/or theU.S., (ii)take legal action against your website hosting provider to have the

infringing website taken down and (iii) inform PayVida's credit card partners that PayVida
intentionally infringes ShopKeep's intellectual property, putting suchpartners at risk.
Shopkeep reserves all of its rights and defensesin this matter.

Certificate of Registration
This Certificate Issued under the seal ofthe Copyright
Office in accordance withtitle17, United States Code,
atteststhatregistration hasbeen made for the work
Identified below.The information on this certificatehas

been made apart oftheCopyright Office records

Registration Number

TX 7-482-937

iTLMLA'hku s

mo

Effective date of ^

registration:

Register of Copyrights, United States of America

Title

February 9,2012

^^^^
Title of Work: ShopKeep Registerfor iPad

Completion/Publication
Year of Completion: 2011
Date Of1st Publication; August 5,2031

Nation of 1st Publication: United Stales

Author

Author.

Ronald Reeier

Author Created: computer program


Work made for hire:
Citizen of:

Author:

Yes
United States

Domiciled id: United States

Jason Rtchelson

Author Created: computer program


1 ;

Work made for hire:


CJtizcirof;

Yes
United States

Domiciled in:

United States
i-i '

Author: MattCullin

Author Created; computer program


Work made for hire:
Citizen of:

Yes
United States

Domiciled in: United States

Copyright claimant
CopyrightClaimant: ShopKeep corn, the

55 Broad Street, NewYork, NY, 10004, United States


Transfer Statement! By writtenagreement

Rights and Permissions

Page 1 of 2

<

Organization Names Sabety +Associates PLI,C


Telephone:

2J2-481-8686

Address: Attn TedSabety


8 West 40thStreet, 12m Floor
New York, NY 10018 Umted Slates

>

Certification
Name: Ted Sabety, Esq. -,
Date; November 28,2d11 %

Correspondence1 Yes

t ^

Copyright Office notes; Regarding deposit, Registered; under mlo ofdoubt JDepc-sit is object code

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Sabety +Associates PLLC


TedSabory

>^!-V-:'G--C^rC-,-^^-.C/r.:/;.-;^
:;:::-;;;4"<.i--i^t-l;M-:r->^-ij'C';^"> ^
8West40thStreet, ISUfFloor ^^M^<^S^^^fcQ^)--

New York, NY 10018 United Sk^^"^?:;^;-^P[!;V;-v-: :-f-;^."^:

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Certificate ofRegistration
^p-gf*I*fr.

TnlsCertificate issued under theseal of theCopyright

c"

Office inaccordance with title 17, United States Code,


attests thatregistration hasbeen madefor the work
identified below. The information on this certificate has

been made a part of the Copyright Office records.

Registration Number

PA 1-762-902
Effective date of

registration:
Register of Copyrights, UnitedStates of America

November 28,2011

Title
Title ofWork: ShopKeep RegisterforiPad

Completion/Publication
Year of Completion: 2011
Date of 1st Publication:

August 5,2011

Nation of 1st Publication: United States

Author

Author:
Author Created:

( :

Work made for hire!


Citizen of:

Author:
Author Created:

Work made for hire:

Citizen of:

Author;
Author Crea ted;

Work made for hlrci

Citizen of:

Ronald Reeser
audiovisual material

Yes
United States

Domiciled in:

United States

Domiciled in:

United States

Domiciled in:

United States

Jason Richelson
audiovisual material
Yes

United States

MattCullln
audiovisual material
Yes

United States

Copyright claimant
Copyright Claimant: ShopKeep.com,Inc,
55 Broad Street, New York, NY, 10004,United States
Transfer Statement: By written agreement

Rights and Permissions

^_^___

Page J of 2

Organization Name: jSabety +Associates PLLC


Telephone: ; 212-481-8686
i

Addrm: ! 8 West 40th Street, 12th Floor


New York,NY 10018 United States

Certification
Name:
Date:

Ted Sabety, Esq.


November28,2011

Page 2 of 2

Registration H: PAOOO 1762902

Service Request ft 1-691208254

Sabety+Associates PLLC
TedSabety
8 West 40lh Street, 12th Floor
New York, NY 10018 United States

Tablet & iPad Point of SalePayment Solutions - PayVida Solutions Inc.

http://www.payvida.ca/lablet-pos-solulions.hlml

ESt3*ffi533Srai

4^ PayVida*

HOME

ABOUT

PRODUCTS

BENEFITS

WORK WITH US
CONTACT US

Meet Your New Rockstar Business Manager


PayVida's iPad POS Makes Sales Simple

Add Items:

Add items by tapping, searching by name, or using the


bar-code scanner. Easily adjust quantities or apply discounts.

Pick A Payment Type:

Accept cash, swipe credit cards or debit (debit is through a

^'V:

separate PayVida terminal).

Add A Tip:

Invite tippingwith the preset tip icons.

Complete The Sale:

Let yourcustomers sign right on youriPad and then youcan


either print their receipt or email it to them.

Tailor Your iPad Register to YOU


Customize your hardware setup to the exact noeds of your business

I of 5

12/3/2013 3:56 PM

Tablet & iPad Point of Sale Payment Solutions - PayVida Solutions Inc.

htlp://www,payvida.ca/lablet-pos-solutions.html

Takethe basic setup to the next level with additional hardware

Bar-code scanner:

Remote Printer:

Scales:

Improve your checkout speed to


focus on interacting with

Print orders straight to the bar,

Diversify your offerings and

kitchen or Batista for increased

sell any item by weight, easily

your customer.

efficiency.

with more accuracy.

Modify With Ease


Cheeseburger, hold the kelehtip,
add fried onions... No Problem
Configure groups (e.g. well done, medium,
and rare) or add-ons (e.g. lettuce or
tomatoes) for any item, then tap thai item on
your PayVida register to open up its options.

Completelycustomize (he order for your


customers and wlrelessley send it straight to
the kitchen or bar printer.

Accept Any Payment


Take cash or credit cards, or debit

2 of 5

12/3/2013 3;56PM

Tablet & iPad Point ofSale Payment Solutions - PayVida Solutions Inc.

Cash:

When your customer pays,


the cash drawer pops open.
Store your cash safely and keep it
organized.

hUp://www.payvida.ca/lablet-pos-solulions,html

All Major Credit Card.s:


Swipe any major credit card

through the PayVida card swiper


attached to your iPad.

Debit Cards:

The iPad does not accept debit


because of the EMV/Pin in Canada.

But, PayVida provides you with a


free counter top terminal for your
debit transactions.

The Most Powerful Tools To Manage Your


Business
Make smarter business decisions from any web browser with our
BackOffice & Clearsight Reports

inventory management:
Add Items: Track your entire
Inventory, Including pricing and
quantities. Have choices with
the modifiers and know when (o

order more product or supplies.


Customize your layout:
Choose exactly how your items
are arranged on your iPad
register, so you can assure that
popular items are easy to find,

3 of 5

Employee management:
Control access: Assign

Individual sign In codes to your


employees, offering them

cashier, manager or back


office permissions.
Manager dashboard:
Managers can open and close
shifts, see the dally totals,
create payouls and print
reports.

12/3/2013 3:56 PM

htlp.7Avww.payvlda.ca/lablet-pos-solulions.html

Tablet & iPad Point of Sale Payment Solutions - PayVida Solutions Inc,

Raw Goods: Keep track of


Individual Ingredients that go
Into your products to ensure
re-ordering when supplies are
running low.

Time clock: Easilytrack


employee hours foreasier
payroll and shift management
when Ihey clock in and clock
out on the iPad.

Customer Loyalty:

Customize receipts;

Get to know your

Customize store details;

customers: Save customer

Encourage customers to
remember you with a
customized print receipt

information on every
purchase and greet regulars

featuring your company name,


slogan, contact and social

wilh their favorite items.

Send marketing emails:


Contact your PayVida iPad

media info.

Offer digital receipts: Save


lime and trees by offering email
receipts and the abilityfor
customers to sign and tip for

customers wilh information

about special events,


promotions and much more.

their orders right on the display


screen.

Robust Reporting
UiKioi'stcind your business better than ever with our Clearln&ight Reports
A report for everything

Use the powerand flexibility of our easy-to-understand Clearinsight Reports to make smarterbusiness decisions.
W4.-,[Mt.vJ<

A range of reports

Cj Summary Report
b Sales by Date
Cj Sales by Hour

L Sales by Date Range


f_j Sales by Tender
Cj Sales by Department

Cj Modifiers Report
Cj InventoryValue Report
Ci Reorder Report
Cj Tax Report
Cj Drop/Payouls/lnventory

Cj Inventory Adjustment Report

Plus, plenty of useful exports

Cj Top Selling items


Cj QulckBooks

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Cj Returns
Cj Returned Items

L> Loyalty Program Vouchers

Cj Sales
D Sold Items

G Order from Sales


Cj What do I need to order?

Cj Slock Items

v-m-i

Safe, Easy, Fast


Safe and Secure

All In the Cloud

Payvida POS Is a cloud-based


point of sale system, meaning
no more local servers, easy

upgrades, and data thai Is


always available and accessible
from anywhere,

-(

. All PayVida POS transactions are


protected by several layers of
securily and no card dala Is ever
louched. stored, or shared In any

way. The register Bven worte


when you are offline.

Super-fast setup
From Initialsign-up straight
through (o employee training and
advanced features, you'll be
amazed at PayVida POS1 ease of
use, which allows you to spend
more time managing your
business,

Keep track from

4 of 5

12/3/2013 3:56 PM

Tablet& iPad Pointof Sale Payment Solutions - PayVida Solutions Inc.

http://www.payvida.ca/tablel-pos-sohitions.html

anywhere
The free Dashboard App lots you see
your day >it a gkinoe from your iPhons
or Android phone.
Track live sates data for each of youriPad POS
registers, at any ol your stores. Wilh (he swipe of
a finger, check out yesterday's totalsales
summary report, so you can monitor the cost of
goods sold and gross margin to make sure you
are making money on a daily basis.

MOBILE

WEB TERMINAL

TABLET POS

Simple, Reliable

Now Anyone Can

And Efficient Wired &

Collect Credit Card

All In One Solution To


Get A Merchant

Simple to set up and


easy to use POS

System. Scan
barcodes, take cash or
credit, print or email

RETAIL

Wireless Point Of Sale

Payments Anywhere,

Account, Payment

Solutions That Offer

Anytime, Accept Credit

Gateway &Recurring

The Latest Chip Card

Cards On Your iPhone,

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ABOUT

PRODUCTS

WORK WITH US

Our Story

Retail / Office 1 Restaurant Solutions


Smartphone / Tablet Solutions
Web Terminal

Affinity Partners
Charily Partners
Agents & Independent Sales

Tablet Point ol Sale

Offices

Benefits
Contact Us

62013 PayVida Solutions All rights reserved.

The PayVida nameandlogoaretrademarks of PayVida Solutions Inc.The Inlerac name and logoare trademarks or
Inlerac Inc. The Visa and MasterCard logos are trademarks of Visa frriemaUonel and MasterCard International

V/SA

Incorporated. PayVjda Isa registered MSP/ISO of (he CanadianbranchorU.S. Bank National Associationand Elavon,
New applicants are subjectto conditions and approval oMheeppHcalkxi by Payvidaand its partnering banks.

5 of 5

12/3/2013 3:56 PM

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