Professional Documents
Culture Documents
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.
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(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)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
Yes
NATURE OF SUIT
TORTS
PERSONAL INJURY
PERSONAL INJURY
FORFEITURE/PENALTY
BANKRUPTCY
OTHER STATUTES
[ ] 422 APPEAL
( ] 400STATE
[ ] 367 HEALTHCARE/
[
[
[
[
1110
1120
1130
1140
[ 1150
INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT
LIABILITY
[ ] 330 FEDERAL
EMPLOYERS'
OVERPAYMENT &
ENFORCEMENT
[ 1151
[ 1152
OF JUDGMENT
MEDICARE ACT
STUDENT LOANS
[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY
(EXCL VETERANS)
[ ]153
RECOVERY OF
INJURY
BENEFITS
[ ]190
[ ]195
REAL PROPERTY
[ I 240
[ I 245
[ ]290
28 USC 157
[ ] 690 OTHER
PROPERTY RIGHTS
LIABILITY
REAPPORTIONMENT
[
[
[
[
[
] 410
] 430
] 450
] 460
] 470
LABOR
PROPERTY DAMAGE
VACATE SENTENCE
LAND
FORECLOSURE
RENT LEASE &
EJECTMENT
TORTS TO LAND
TORT PRODUCT
LIABILITY
ALL OTHER
( ] 441 VOTING
[ ] 442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS
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
RELATIONS
[ ]791 EMPLRETINC
SECURITY ACT
IMMIGRATION
[ ] 462 NATURALIZATION
[ ] 550 CIVIL RIGHTS
[ ] 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE
[
[
(
[
[
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
21 USC 881
PRODUCT LIABILITY
STOCKHOLDERS
[ 1196 FRANCHISE
PRODUCT LIABILITY
PRODUCT LIABILITY
OF VETERAN'S
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
SEIZURE OF PROPERTY
OVERPAYMENT
[1160
28 USC 158
LIABILITY
RECOVERY OF
DEFAULTED
PHARMACEUTICAL PERSONAL
INJURY/PRODUCT LIABILITY
APPLICATION
[ ] 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
[ ] 448 EDUCATION
REAL PROPERTY
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
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
Reopened
from
I I 7 Appeal to District
Judge from
Magistrate Judge
Judgment
Litigation
Appellate
Court
I | b. At least one
party is pro se.
(PLACEAN x INONEBOXONLY)
BASIS OF JURISDICTION
IF DIVERSITY, INDICATE
.[x]1 DIVERSITY0"
CITIZENSHIP BELOW.
UIIZhNOh'THISSTATE-
[]2
[]2
PTF
PTF DEF
DEF
-W-rH1
CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
*t*r-
DEF
h+W-
0"
.[xj <1 [ }A
FOREIGN NAIIUN
t4&-_U6
143 Varick Street New York, NY 10013, United States of America, New York County
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
Check one:
WHITE PLAINS
\x\ MANHATTAN
(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)
DATE
RECEIPT #
'
t S
V\^V
x \
UftJIKEMMS
is so Designated.
Yr. 2010 )
Shopkeep.com, Inc.
Plaintiff
Case No.
CO
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I,.
Defendant
--
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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.
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.
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
4,370,734
ShopKeepPOS
4,376,632
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.
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
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.
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
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.
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
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
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.
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
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.
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
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
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;
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.
By:_
EXHIBIT 1
*-*#
SHOPKEEP
Reg. No. 3,936,441
BROOKLYN, NY 11238
SERVICEMARK
EXHIBIT 2
^Cf
ShopKeepPOS
Reg. No. 4,370,734
TRADEMARK
SERVICE MARK
FIRST USE 2-27-2012; IN COMMERCE 2-27-2012.
PRINCIPAL REGISTER
J^5*
ActBig Director f the United Slatei Patent and Trademark Oflke
EXHIBIT 3
VZy*
^(f.
ShopKeepPOS
Reg. No. 4,376,632
shopkeep.com, inc.(Delawarecorporation)
55 BROAD STREET
Int. CL: 35
SERVICE MARK
PRINCIPAL REGISTER
EXHIBIT 4
Certificate ofRegistration
This Certificate issued under the seal ofthe Copyright
d>:***
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
August 5, 2011
Author
Author:
Author Created:
Author:
Author Created:
Citizen of:
Author:
Author Created:
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
Page 1 of 2
Organization Name:
Telephone:
Address:
Certification
Name:
Date:
Ted Sabety,Esq.
November 28,2011
Page 2 of 2
Registration #: PA0001762902
EXHIBIT 5
SHOPKEEP.COM, INC.,
Plaintiff,
Case No.
-v-
Defendant.
I am Norm Merritt.
2.
3.
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.
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.
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^
EXHIBIT A
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^PayVida
HOME
ABOUT
PRODUCTS
BENEFITS
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WORKWTTHUS
CONTACT US
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Cash:
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WEB TERMINAL
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easy to use POS
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EXHIBIT B
Certificate ofRegistration
This Certificate issued under theseal oftheCopyright
AzSZSSz-.
Registration Number
PA 1-762-902
cuu^
x'RkWt
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
Author
Author:
Author Created:
Citizen of:
Author:
Author Created:
Citizen of:
Author:
Author Created:
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:
By written agreement
-^^^^__^_^__^^^_
Page 1 of 2
Telephone: \ 212-481-8686
Certification
Name:
Date:
Page 2 of 2
Registration #: PAOOO1762902
EXHIBIT C
ShopKecp:Jason
Description
Qty
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
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
A htp
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j- wayback machine
http7Avww.shopkesp.com/
155 captures
work wrm us
Merchant Services Providers 55 Broad Street. 9th Floor, New York, NY 10004
Customer Reviews
Press
Jobs
Contact Us
Affiliates
Hardware
PayPal Partnership
LevelUp Integration
Merchants
Introduction to POS
Blog
Pricing
Sign Up
-h e
Close m
800-820-9814
Made in NYC i
Facebook
Twitter
EXHIBIT E
$ payvidaxa;lciuie!-pi.' '. j
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ft i =
print reports.
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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
Fi 646.349.2782
EMAILilnfo@beiy.nec
URL: www.tibety.net
December 6,2013
Robert J. Ronning
President & CEO
WestbankBCV4T3E3
Canada
Fax: 855,346.8432
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.
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
Registration Number
TX 7-482-937
iTLMLA'hku s
mo
Effective date of ^
registration:
Title
February 9,2012
^^^^
Title of Work: ShopKeep Registerfor iPad
Completion/Publication
Year of Completion: 2011
Date Of1st Publication; August 5,2031
Author
Author.
Ronald Reeier
Author:
Yes
United States
Jason Rtchelson
Yes
United States
Domiciled in:
United States
i-i '
Author: MattCullin
Yes
United States
Copyright claimant
CopyrightClaimant: ShopKeep corn, the
Page 1 of 2
<
2J2-481-8686
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Certification
Name: Ted Sabety, Esq. -,
Date; November 28,2d11 %
Correspondence1 Yes
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Copyright Office notes; Regarding deposit, Registered; under mlo ofdoubt JDepc-sit is object code
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Certificate ofRegistration
^p-gf*I*fr.
c"
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
Author
Author:
Author Created:
( :
Author:
Author Created:
Citizen of:
Author;
Author Crea ted;
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
^_^___
Page J of 2
Certification
Name:
Date:
Page 2 of 2
Sabety+Associates PLLC
TedSabety
8 West 40lh Street, 12th Floor
New York, NY 10018 United States
http://www.payvida.ca/lablet-pos-solulions.hlml
ESt3*ffi533Srai
4^ PayVida*
HOME
ABOUT
PRODUCTS
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WORK WITH US
CONTACT US
Add Items:
^'V:
Add A Tip:
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
Bar-code scanner:
Remote Printer:
Scales:
your customer.
efficiency.
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Tablet & iPad Point ofSale Payment Solutions - PayVida Solutions Inc.
Cash:
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Debit Cards:
inventory management:
Add Items: Track your entire
Inventory, Including pricing and
quantities. Have choices with
the modifiers and know when (o
3 of 5
Employee management:
Control access: Assign
12/3/2013 3:56 PM
htlp.7Avww.payvlda.ca/lablet-pos-solulions.html
Tablet & iPad Point of Sale Payment Solutions - PayVida Solutions Inc,
Customer Loyalty:
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A report for everything
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Super-fast setup
From Initialsign-up straight
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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
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MOBILE
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RETAIL
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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
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