Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 1 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

David S. Gingras, #021097 Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 Tel.: (480) 668-3623 Fax: (480) 248-3196 David@GingrasLaw.com Attorney for Plaintiff Xcentric Ventures, LLC

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, vs. KARSEN, LTD., a foreign entity of unknown origin d/b/a Scaminformer.com; KURT STANGO, an individual d/b/a Scaminformer.com; EUGENE SELIHOV, an individual d/b/a Scaminformer.com; DOES 1-10, inclusive, Defendants.

Case No: 11-cv-1055-FJM

SECOND AMENDED COMPLAINT

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

For its Second Amended Complaint Plaintiff Xcentric Ventures, LLC alleges as follows: 1. This is a civil action seeking monetary damages and injunctive relief for

various acts of copyright infringement under the copyright laws of the United States (17 U.S.C. 101 et seq.) and for various acts of trademark infringement in violation of the Lanham Act, 15 U.S.C. 1051, et seq., and related state law claims. 2. This Court has jurisdiction under 15 U.S.C. 1121 (trademark); 17 U.S.C.

101 et seq. (copyright); 28 U.S.C. 1331 (federal question); and 28 U.S.C. 1338(a) (copyright). This Court has supplemental jurisdiction over state and common law claims pursuant to 28 U.S.C. 1367(a).

SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 2 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

3.

Venue in this District is proper under 28 U.S.C. 1391(b) and (c), and/or

28 U.S.C. 1400(a). A substantial part of the acts of infringement complained of occurred in this District, and certain corporate defendants are subject to personal jurisdiction in this District. 4. Personal jurisdiction in this District is proper because each defendant

engaged in acts of copyright infringement within the District of Arizona, and/or intentionally directed tortious conduct at Plaintiff knowing such conduct would cause harm within this District. 5. Plaintiff XCENTRIC VENTURES, LLC (Plaintiff) is and at all relevant

times was an Arizona limited liability company located in Phoenix, Arizona. 6. Plaintiff operates a consumer complaint and free speech forum known as

the Rip-off Report located at www.RipoffReport.com (the Rip-off Report site). The Rip-off Report is widely used by consumers, and works closely with government agencies, attorneys general, federal, state, and local law enforcement, and the news media to help report, identify and prevent consumer fraud and similar conduct. 7. Defendant KURT STANGO (STANGO) is a resident of Sofia, Bulgaria

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

who was previously a registrant of the domain name www.Scaminformer.com. Defendant STANGO has engaged in substantial contacts with the State of Arizona sufficient to confer specific personal jurisdiction over him in this District. 8. Defendant EUEGE SELIHOV (SELIHOV) is a resident of Russia who as

of the date of this Second Amended Complaint is the current registrant of the domain name www.Scaminformer.com. Upon information and belief, Defendant SELIHOV has consented to the exercise of personal jurisdiction in this action. GENERAL ALLEGATIONS 9. Plaintiff is and at all relevant times has been the lawful owner of the mark

RIP-OFF REPORT which has been registered with the United States Patent and Trademark Office and assigned registration #2958949. 2 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 3 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

10.

Since February 1998 through the filing of this action, Plaintiff has

continuously used the mark RIP-OFF REPORT in commerce to identify and distinguish Plaintiffs business from other businesses in the same field. 11. Plaintiff is and at all relevant times has been the lawful owner of the mark

DONT LET THEM GET AWAY WITH IT which has been registered with the United States Patent and Trademark Office and assigned registration #2824390. 12. Since February 1998 through the filing of this action, Plaintiff has

continuously used the mark DONT LET THEM GET AWAY WITH IT in commerce to identify and distinguish Plaintiffs business from other businesses in the same field. 13. Plaintiffs ownership of the DONT LET THEM GET AWAY WITH IT

mark is incontestable as a matter of law pursuant to 15 U.S.C. 1065. 14. Plaintiff is the owner of various copyrights relating to content appearing on

the Rip-off Report website. 15. Plaintiff is the owner of the federal copyright issued by the United States

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Copyright Office Certificate of Registration No. TXu1-371-920 entitled Group database registration for automated database entitled Rip-off report database (the 920 Copyright) dated May 20, 2008. The 920 copyright applies to a database/compilation of more than 600,000 user-generated reports posted on the Rip-off Report website. 16. Plaintiff does not publish everything submitted to the Rip-off Report

website. Rather, when material is submitted to the website by a third party, it is held for review by one of Plaintiffs employees known as content monitors. 17. Plaintiffs staff of content monitors review each and every submission to

the site and select only certain submissions for publication based on their content. Any submissions selected for publication are further reviewed for compliance with a written set of policies and procedures which identify certain material which must be removed from each submission (such as social security numbers, pornography, threats of violence, etc.) and certain contents which may be removed based on the content monitors editorial 3 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 4 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

discretion (such as profanity, racial slurs, or inappropriate commercial advertisements). Only after a submission has been fully reviewed will it appear on Plaintiffs website. 18. The resulting collection of user-generated material appearing on the Rip-off

Report website has been formed by the selection, coordination, and arrangement of material in such a way that the work as a whole is original and constitutes a copyrightable and protectable compilation within the meaning of 17 U.S.C. 101. 19. Plaintiff is the owner of the federal copyright issued by the United States

Copyright Office Certificate of Registration No. TXu1-574-438 entitled Rip-off Report Content dated March 25, 2008 (the 438 Copyright). The 438 Copyright applies to all non-user generated original content located at www.RipoffReport.com including all sub-pages and including, but not limited to, the following specific URLs: http://www.ripoffreport.com/ http://www.ripoffreport.com/ConsumersSayThankYou/WantToSueRipoffReport.aspx http://www.ripoffreport.com/PrivacyPolicy.aspx http://www.ripoffreport.com/ConsumersSayThankYou/TermsOfService.aspx http://www.ripoffreport.com/CorporateAdvocacy.aspx and http://www.ripoffreport.com/ConsumersSayThankYou/FalseReport.aspx 20. When a third party user of the Rip-off Report site submits material to the

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

site, they are required to affirmatively review and accept Plaintiffs Terms of Service. Among other things, Plaintiffs Terms of Service provide, By posting information or content to any public area of www.RipoffReport.com, you automatically grant, and you represent and warrant that you have the right to grant, to Xcentric an irrevocable, perpetual, fully-paid, worldwide exclusive license to use, copy, perform, display and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. Every post made to the Rip-off Report site is subject to these Terms of Service which includes an electronic signature by the author which complies with 15 4 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 5 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

U.S.C. 7001(a).

As such, pursuant to 17 U.S.C. 201(d)(2), Plaintiff owns the

exclusive rights to each and every user-generated report posted to the Rip-off Report site. DEFENDANTS ACTIVITIES 21. Defendant SELIHOV purports to own and operate a website located at

www.ScamInformer.com (the Scam Informer site). The Scam Informer site allows the publication of consumer complaints, comments, and reviews, and is a direct competitor of Plaintiffs Rip-off Report site. 22. The domain name www.ScamInformer.com was registered for the first time

on January 31, 2011. The listed registrant was initially an Australian-based privacy protection service identified as www.PrivacyProtect.org. However, upon information

and belief, Defendant KARSEN was initially the true owner of the domain name www.ScamInformer.com and the operator of the Scam Informer site. 23. Since acquiring ownership and control over the www.ScamInformer.com

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

site, Defendant SELIHOV has engaged in a campaign to willfully infringe Plaintiffs copyrights and to engage in deceptive and unlawful commercial use of Plaintiffs registered marks including, but not limited to, the RIP-OFF REPORT mark and the DONT LET THEM GET AWAY WITH IT mark. 24. Specifically, since acquiring ownership and control over the

www.ScamInformer.com site, Defendant SELIHOV has engaged in the wholesale copying of numerous pages from Plaintiffs Rip-off Report site. The material copied by Defendant SELIHOV includes original creative works owned exclusively by Plaintiff. 25. In addition to copying Plaintiffs works, Defendant SELIHOV has used the

Scam Informer site to directly compete with Plaintiffs Rip-off Report site using the RIP-OFF REPORT mark and the DONT LET THEM GET AWAY WITH IT mark. 26. At some time after the commencement of this action, Defendant KARSEN

transferred ownership and control of the domain name www.Scaminformer.com to Defendant STANGO. Following this transfer and for an unknown period of time, 5 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 6 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

Defendant STANGO continued to operate the www.Scaminformer.com site in the same unlawful manner as Defendant KARSEN. 27. At some time after the commencement of this action, Defendant STANGO

transferred ownership and control of the domain name www.Scaminformer.com to Defendant SELIHOV. Following this transfer and through the date of this Amended Complaint, Defendant SELIHOV continued to operate the www.Scaminformer.com site in the same unlawful manner as Defendants KARSEN and STANGO. 28. Defendants SELIHOVs and STANGOs use of copyrighted works from

the Rip-off Report site combined with the use of Plaintiffs registered marks was, and is, likely to cause confusion as to source or sponsorship. COUNT 1 INFRINGEMENT OF COPYRIGHT 17 U.S.C. 106, 501(a) (Against Defendants STANGO and SELIHOV) 29. above. 30. Defendants STANGO, and SELIHOV have violated Plaintiffs exclusive Plaintiff incorporates herein by reference each and every allegation set forth

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

rights under 17 U.S.C. 106(1) (direct copying) by copying Plaintiffs works without permission. 31. Defendants STANGO, and SELIHOV have violated Plaintiffs exclusive

rights under 17 U.S.C. 106(3) (distribution) by distributing Plaintiffs works without permission 32. Defendants STANGO and SELIHOV have violated Plaintiffs rights under

17 U.S.C. 106(5) (display) by publicly displaying Plaintiffs works without permission. 33. Plaintiff is informed and believes that the foregoing acts of infringement

have been willful, intentional, and in disregard of and with indifference to the rights of Plaintiff. 34. Defendants infringing activities were not authorized by Plaintiff and were

performed without Plaintiffs knowledge, consent, or permission. 6 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 7 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

35.

Defendants infringing activities were and are done for Defendants

financial gain. 36. Defendants infringing activities have caused Plaintiff to incur actual

damages of not less than $150,000. 37. As the result of Defendants willful infringement of Plaintiffs exclusive

rights, Plaintiff is entitled to recover from Defendants its actual damages pursuant to 17 U.S.C. 504(b) or statutory damages pursuant to 17 U.S.C. 504(c), whichever is greater. 38. As the result of Defendants infringement of Plaintiffs registered works,

Plaintiff further is entitled to attorneys fees and costs pursuant to 17 U.S.C. 505. COUNT 2 UNLAWFUL REMOVAL OF COPYRIGHT MANAGEMENT INFORMATION 17 U.S.C. 1202(b) (Against Defendant SELIHOV) 39. above. 40. All 600,000+ unique report pages on the Rip-off Report website contain Plaintiff incorporates herein by reference each and every allegation set forth

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

copyright management information within the meaning of 17 U.S.C. 1202(c). 41. The copyright management information found on each unique report page

includes a legend identifying the exact date/time the report was posted, and the exact web address where the report is located, and information identifying Plaintiff as the owner of the exclusive license to the report. This legend generally employs the following format: This report was posted on Ripoff Report on [DATE] [TIME] and is a permanent record located here: http://www.ripoffreport.com/[address].htm. Ripoff Report has an exclusive license to this report. It may not be copied without the written permission of Ripoff Report 42. In addition to unlawfully copying tens of thousands of individual report

pages from the Rip-Off Report site, Defendants KARSEN and SELIHOV also modified and removed the copyright management information from each such page. 7 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 8 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

43.

After assuming ownership and control of the Scaminformer.com website,

Defendant SELIHOV has continued to copy material from the Rip-off Report website, has removed the copyright management information from such material, and has reposted the copied material on Scaminformer.com. 44. Pursuant to 17 U.S.C. 1203(c)(B), Plaintiff is entitled to recover statutory

damages of not less than $2,500 nor more than $25,000 for each of Defendant SELIHOVs violations of 17 U.S.C. 1202. 45. Pursuant to 17 U.S.C. 1203(b)(1), Plaintiff is further entitled to

preliminary and permanent injunctive relief against Defendants infringing activities and attorneys fees pursuant to 17 U.S.C. 1203(b)(5). COUNT 3 TRADEMARK INFRINGEMENT 15 U.S.C. 1114 (Against Defendants STANGO and SELIHOV) 46. Plaintiff incorporates herein by reference each and every allegation

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

contained herein. 47. 48. trademark. 49. Plaintiff owns RIP-OFF REPORT and DONT LET THEM GET RIP-OFF REPORT is a valid, protectable trademark. DONT LET THEM GET AWAY WITH IT is a valid, protectable

AWAY WITH IT as its trademarks. 50. Defendants STANGO and SELIHOV used Plaintiffs marks, or marks

confusingly similar thereto, without the consent of Plaintiff in a manner that is likely to cause confusion among ordinary consumers as to the source of the services offered by Plaintiff and by Defendants. COUNT 4 UNFAIR COMPETITION/INITIAL INTEREST CONFUSION TRADEMARK INFRINGEMENT 15 U.S.C. 1114 (Against Defendants STANGO and SELIHOV) 8 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 9 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

51.

Plaintiff incorporates herein by reference each and every allegation

contained herein. 52. 53. trademark. 54. Plaintiff owns RIP-OFF REPORT and DONT LET THEM GET RIP-OFF REPORT is a valid, protectable trademark. DONT LET THEM GET AWAY WITH IT is a valid, protectable

AWAY WITH IT as its trademarks. 55. By using the RIP-OFF REPORT mark in both its content and in metatags

associated with the Scam Informer site, Defendants have infringed Plaintiffs trademark without the consent of Plaintiff in a manner calculated to capture initial consumer attention and to direct such attention to the Scam Informer site at the expense of viewers looking for the Rip-off Report site. 56. Defendants conduct constitutes unfair competition and initial interest

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

confusion in violation of Plaintiffs rights under the Lanham Act and under the common law. COUNT 5 FRAUDULENT TRANSFER (Against Defendant STANGO) 57. Plaintiff incorporates herein by reference each and every allegation

contained herein. 58. Following the commencement of this action, Defendant KARSEN

transferred ownership of the domain name www.Scaminformer.com to Defendant STANGO. This transfer was made solely for the intended purpose of hindering, delaying, and defrauding Plaintiff in violation of A.R.S. 44-1004(A)(1). 59. Pursuant to A.R.S. 44-1007, Plaintiff is entitled to garnishment against

STANGO and/or SELIHOV and/or DOES 110 and/or any future transferee of the domain name www.Scaminformer.com, and to an order avoiding and nullifying any subsequent fraudulent transfers of the domain name www.Scaminformer.com. 9 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 10 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

COUNT 6 INJUNCTIVE RELIEF 17 U.S.C. 502(a), 1203(b)(1) (Against Defendants STANGO and SELIHOV) 60. above. 61. The conduct of each Defendant has caused, is causing and, unless enjoined Plaintiff incorporates herein by reference each and every allegation set forth

and restrained by this Court, will continue to cause Plaintiff great and irreparable injury that cannot fully be compensated or measured in money. 62. 63. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. 502(a) and 503, Plaintiff is entitled to preliminary

and permanent injunctive relief prohibiting each Defendant from further infringing Plaintiffs copyrighted works. 64. Pursuant to 17 U.S.C. 1203(b)(1) Plaintiff is entitled to preliminary and

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

permanent injunctive relief prohibiting each Defendant from removing or falsifying any copyright management information contained within or associated with any of Plaintiffs copyrighted works. WHEREFORE, Plaintiff prays for judgment against Defendants STANGO and SELIHOV as follows: 1. For Plaintiffs actual damages and Defendants profits, or statutory damages, as Plaintiff may elect, for infringement of each copyrighted work pursuant to 17 U.S.C. 504; 2. 3. 4. 5. For statutory damages pursuant to 17 U.S.C. 1203(c)(3)(B); For statutory and/or treble damages pursuant to 15 U.S.C. 1117; For injunctive relief pursuant to 17 U.S.C. 502(a), 503, and 1203(b)(1); For Plaintiffs costs in this action pursuant to 17 U.S.C. 504, 1203(b)(4) and/or 15 U.S.C. 1117(a); 6. For Plaintiffs reasonable attorneys fees incurred pursuant to 17 U.S.C. 504, 1203(b)(5) and/or 15 U.S.C. 1117(a); 10 SECOND AMENDED COMPLAINT

Case 2:11-cv-01055-FJM Document 18 Filed 11/22/11 Page 11 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13
GINGRAS LAW OFFICE, PLLC 3941 E. CHANDLER BLVD., #106-243 PHOENIX, AZ 85048

7.

For an order pursuant to A.R.S. 44-1007(A)(1) providing that Plaintiff is entitled to garnishment against Defendant STANGO, SELIHOV and/or any future transferee of the domain name www.Scaminformer.com;

8.

For an order pursuant to A.R.S. 44-1007(A)(2) avoiding and nullifying any subsequent fraudulent transfers of the domain name

www.Scaminformer.com; 9. For such other and further relief as the Court may deem just and proper. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Plaintiff XCENTRIC VENTURES, LLC

DATED Nov. 22, 2011.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 SECOND AMENDED COMPLAINT