HOWAR E. KIG, ESQ., STATE BANO. 77012 2 STEPHND. ROTHSCHD, ESQ., STATE BAR NO.l32514 ROTHSCHID@KBLA W.COM 3 1900 A VN OF TH STARS , < 25T FLOOR Los AGELES, CALIORA y0067-4506 4 TELEPHON: (310) 282-8989 FACSIE: (31 0) 282-8903 5 Attoreys for Plaintiffs Charles Sclnnidt 6 and Christopher Orlado Torres 7 8 UNITED STATES DISTRICT COUT 9 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 10 11 CHRLES L. SCHIDT an individual; CHISTOP H R 12 ORANDO TORRES, an individual, 13 Plaintiffs, 14 vs. 15 WARNER BROS. 16 | Defaware limited liability company, 17 18 Defendants. CASE NO. CV13-02824 JFW(MWx) FIRST AMENDED COMPLAINT FOR COPYRIGHT INFRINGEMENT, FALSE ADVERTISINq
TRADEMARK INFRINGEMEl"T, UNFAIR COMPETITION and ACCOUNTIGS DEMAND FOR JRY TRIAL 19 Plaintiffs Charles L. Sclnnidt ("Schmidt") and Christopher Orlando Tores 20 (" Torres") (collectively, "plaintiffs"), hereby allege as follows: 21 BACKGROUND OF TIS ACTION 22 1. This case is to remedy defendants Warer Bros. Entertainment, Inc. 23 (" W") and 5th Cell Media, LLC's ("51h") willful infingements of plaintiffs' 24 copyrights and trademarks in the memes "Keyboard Cat" and " Nyan Cat." 25 "Keyboard Cat" and " Nyan Cat" are kown and enjoyed by tens of millions of 26 people. That popularity makes them extremely valuable for commercial uses. 27 Unlike W and 5th, many other companies, respecting plaintiffs' intellectual 28 property rights, regularly pay substantial license fees to use plaintiffs' memes 4107.060/646706.1 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 1 of 15 Page ID #:45 KING, HOLES, PATERNO & BERUNER, llP 1 commercially. 2 2. A meme is a communication of ideas or information and can be in 3 virtally any format--words, an image, a design, a video, a cartoon, or anything else 4 through which information can be communicated. Frequently memes consist of 5 copyrightable creative works or trademarks. Successful memes "go viral" and can 6 reach hundreds of millions of consumers and become sought-afer marketing tools. 7 "Keyboard Cat" and " Nyan Cat" are among the best-kown examples. 8 3. "Keyboard Cat" is a video of Schmidt's cat, Fatso, wearing a shirt and 9 sitting upright with its paws on the keys of an electric keyboard, which Schmidt 10 manipulated to make Fatso appear to be playing a tune. Among other accolades, 11 "Keyboard Cat" is number two on Current TV's "50 Greatest Viral Videos" list. 12 Schidt created and owns the copyright to "Keyboard Cat" and the trademark 13 consisting of the words "Keyboard Cat." "Keyboard Cat" was one of the first 14 memes to become a widespread interet viral phenomenon and still is wildly 15 popular, most recently featured in a national Starburst candy television and online 16 marketing and advertising campaign. 17 4. " Nyan Cat" is a cartoon. Nyan Cat, a character with a eat's face and a 18 body resembling a horizontal breakfast bar with pink frosting sprinkled with light 19 red dots, fl ies across the screen, leaving a steam of exhaust in the form of a bright 20 rainbow in its wake. Torres created and owns the copyright to " Nyan Cat" and the 21 trademarks consisting of Nyan Cat's name and image. " Nyan Cat" was the fifh 22 most-watched video on YouTube.com in 201 1, and won the " Meme of the Year" 23 award at the prestigious 2012 Webbys. 24 5. The "W" logo also is a meme, even though it is only two letters inside 25 the outline of a shield. Of course, W employs an army of lawyers who use 26 trademark and copyright law to zealously protect its intellectual propert, including 27 its logo. 28 6. Yet, W, along with game developer 5 t , have knowingly and 4107.060/646706.1 2 FIRST AMENDED COMLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 2 of 15 Page ID #:46 KING, HOLMES, PATERNO& BERUNER, LLP 1 intentionally infinged plaintiffs' copyrights and tademarks by using Nyan Cat in 2 its "Scribblenauts Unlimited" game released in or about January 2012, and the 3 words "Keyboard Cat" and Fatso's image in successive, different versions of W's 4 top sell ing "Scribblenauts" games, including, most recently, "Scribblenauts 5 Unlimited." Compounding their infingements, defendants have used Nyan Cat and 6 Keyboard Cat, even identifing them by name, to promote and market 7 "Scribblenauts Unlimited," all without plaintiffs' permission and without any 8 compensation to plaintiffs. Hence the instant action. 9 JISDICTION AND VENE 10 7. This action is brought, and subject matter jurisdiction lies within this 11 Court, pursuant to 28 U.S. C. Sections 133 1, 1338 ad 2201. This Court has federal 12 question jurisdiction in this matter in that plaintiffs seek relief pursuant to the 13 Copyright Act of 1976, 17 U.S. C. 101 et seq. and under the Lanham Act, 15 14 U.S.C. 1 1 14 et seq. This Court has supplemental jurisdiction pursuant to 28 15 U.S.C. 1367 over any claims arising under state law because those claims are so 16 related to the claims in the action within the Court's original jurisdiction that they 17 form part of the same case or controversy under Article III of the United States 18 Constitution. 19 8. Venue lies within this district pursuant to 28 U.S.C. sections 139 1(b)(2) 20 and (3), (c), and (d) and 1400(a) because W resides for venue purposes ad is 21 subject to personal jurisdiction in this district; W and, on information and belief, 22 5 1 h regularly and systematically conduct business in this district and did so in 23 connection with the acts and omissions alleged herein, and therefore, are subject to 24 personal jurisdiction in this district; and because a substantial part of the alleged acts 25 and omissions in creating, marketing, producing and selling the infinging game 26 gives rise to the claims for the copyright and trademark infingements and unfair 27 business practices at issue herein occurred in this district. 28 4107.060/646706.1 3 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 3 of 15 Page ID #:47 KING, HOLMES, PATERNO& BERlNER, LLP THE PATIES 1 2 9. Schmidt created and is the registered ower of the copyright in the 3 audio-visual work entitled "Keyboard Cat," pursuant to United States Copyright 4 Offce Registration Number PA0001696099, registered on September 22, 2010. 5 Schmidt also owns the trademark consisting of the words "Keyboad Cat" (the 6 "Keyboard Cat Mark"). He has applications pending with the United States Patent 7 and Trademark Office to register the Keyboard Cat Mark, U.S. Serial Numbers 8 85709355 and 85709363, including for use in digital media such as the different 9 Scribblenauts games. Schmidt is ad at all times material herein has been a resident 10 of the State of Washington. 11 10. Torres created and is the registered owner of the copyright in the 12 electronic file entitled " Nyan Cat," pursuant to United States Copyright Office 13 Registration Number VAu001063390, registered on April 16, 201 1. Tores owns 14 trademarks consisting of Nyan Cat's name and image (the "Nyan Cat Marks"), and 15 has applications pending with the United States Patent and Trademark Offce to 16 register the trademark for the name, U.S. Serial Number 85357643, and the image, 17 U.S. Serial Numbers 85576372 and 85576370, including for use in sofware such as 18 "Scribblenauts Unlimited." Torres is and at all times material herein has been a 19 resident of the State of Texas. 20 11. WB is a corporation organized ad existing under the laws of the State 21 of Delaware, with its principal place of business in Los Angeles County, Califoria. 22 WB is engaged in business in many parts of the entertainment industy, including 23 developing, distributing and marketing computer games such as the Scribblenauts 24 games. 25 12. 5 1 h is a limited liability company organized and existing under the laws 26 of the State of Delaware engaged in the business of creating and developing 27 computer games, including "Scribblenauts," which WB released in or about 28 September 2009, "Super Scribblenauts," which WB released in or about October 4107.060/646706.1 4 FIRST AENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 4 of 15 Page ID #:48 KING, HOLMES, PATERNO& BERLINER, LLP 1 2010, "Scribblenauts Remix," which W released in or about October 201 1, and 2 "Scribblenauts Unlimited," which W released in or about November 2012. On 3 inforation ad belief, 5 1 h 's offices are located in the State of Washington, but, fom 4 at least 2009 to the present, 51 h 's managerial and other employees have regularly and 5 fequently traveled to this district to work with W on the development and 6 marketing of the various iterations of Scribblenauts. 7 13. Plaintiffs sue Does 1 through 10, inclusive, herein under fictitious 8 names. Plaintiffs do not kow their true names and capacities. When plaintiffs 9 ascertain the Doe defendants' true names and capacities, plaintiffs will amend this 10 complaint by inserting teir tue names and capacities herein. On information and 11 belief each defendant named herein as a Doe acted with te other Defendants and is 12 responsible for the damages to plaintiffs herein alleged. Each reference in this 13 complaint to defendants, or to any of them, also refers to all defendants sued under 14 fictitious names. 15 14. On information and belief at all times material herein each of the 16 defendants was the agent and employee of the other defendants, and in doing the 17 things hereinafer alleged, was acting within the course and scope of such agency 18 and employment. 19 FIRST CLAIM FOR RELIEF 20 (y Schmidt for Copyright Infringement against all Defendants) 21 15. Schmidt incorporates by reference as if set forth in full herein the 22 allegations of Paragraphs 1 through 14 above. 23 16. Schmidt is, and at all material times hereto has been, the owner of the 24 copyright in "Keyboard Cat" and is entitled and authorized to protect it against 25 copyright infingement. As the owner, Schmidt secured the exclusive rights under 26 17 U.S.C. Section 106, among others, to prepare derivative works using "Keyboard 27 Cat." 28 17. Defendants infinged, and are continuing to infringe, upon Schmidt's 4107.060/646706.1 5 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 5 of 15 Page ID #:49 KING, HOLMES, PATERNO& BERLINER, LLP 1 copyright, including by copying, reproducing, preparing, causing, contributing to, 2 and participating in the unauthorized copying, reproduction, and use of Keyboad 3 Cat and Fatso in "Super Scribblenauts," "Scribblenauts Remix," and "Scribblenauts 4 Unlimited," which defendants have publicly marketed, advertised and sold to 5 consumers, including in the Central District of Califoria. 6 18. Schmidt did not authorize defendants to copy, reproduce, perform, or 7 use Keyboard Cat or Fatso's image in any Scribblenauts game, or at all. Defendants 8 did not seek or obtain any permission, consent, or license fom plaintiff for the 9 copying, reproduction, performance, or use of Keyboard Cat or Fatso's image in any 10 Scribblenauts game, or for any other purpose. 11 19. Defendants' infinging acts alleged herein were willfl, deliberate, and 12 committed with prior notice and knowledge of Schmidt's copyright. At a minimum, 13 defendants acted in reckless disregard of Schmidt's copyright. 14 20. As a result of their actions, defendants ae liable to Schmidt for willfl 15 copyright infingement under 17 U.S.C. Section 501. Schmidt suffered, and will 16 continue to suffer, substantial damage, including the value of defendants' 17 unauthorized use, loss of other licensing opportunities, and other losses, in an 18 amount not yet ascertained, but which will be determined according to proof. In 19 addition to Schmidt's actual damages, Schmidt is entitled to receive all profits made 20 by defendants fom their wrongfl acts, pursuant to 17 U.S.C. Section 504; and an 21 accounting of and constuctive trust overall revenues that defendants have received 22 as a result of their wrongfl acts. In the alterative, Schmidt is entitled to statutory 23 damages pursuant to 17 U.S.C. Section 504(c), which should be enhanced by 17 24 U.S.C. Section 504(c)(2) because of defendats' willful copyright infingement. 25 2 1. Schmidt also is entitled to recover his attoreys' fees and costs of suit 26 under 17 U.S.C. Section 505. 27 Ill 28 Ill 4107.060/646706.1 FIRST AMENDED COMPLAINT 6 Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 6 of 15 Page ID #:50 KNG, HOLMES, PATERNO& BERLINER, LLP 1 2 SECON CLA FOR RELIEF (y Torres for Copyright Infringement against all Defendants) 3 22. Torres incorporates by reference as if set forth in full herein the 4 allegations of Paragraphs 1 through 21 above. 5 23. Torres is, and at all material times hereto has been, the owner of the 6 copyright in " Nyan Cat" and is entitled and authorized to protect it against copyright 7 infingement. As the owner, Torres secured the exclusive rights under 17 U. S.C. 8 Section 106, among others, to prepare derivative works using " Nyan Cat. " 9 24. Defendants infinged, and are continuing to infinge, upon Torres' 10 copyright, including by copying, reproducing, preparing, causing, contributing to, 11 and participating i te unauthorized copying, reproduction, and use of Nyan Cat in 12 "Scribblenauts Unlimited," which defendants have publicly marketed, advertised 13 and sold to consumers, including in the Central District of Califoria. 14 25. Torres did not authorize defendants to copy, reproduce, perform, or use 15 Nyan Cat in "Scribblenauts Unlimited," or at all. Defendants did not seek or obtain 16 any permission, consent, or license fom plaintiff for the copying, reproduction, 17 performance, or use of Nyan Cat in "Scribblenauts Unlimited" or for any other 18 purose. 19 20 21 22 23 24 25 26 27 28 26. Defendants' infinging acts alleged herein were willfl, deliberate, and comitted with prior notice and knowledge of Torres' copyright. At a minimum, defendants acted in reckless disregard of Torres' copyright. 27. As a result of their actions, defendants are liable to Torres for willfl copyright infingement under 17 U.S. C. Section 501. Torres suffered, and will continue to suffer, substantial damage, including the value of defendats' unauthorized use, loss of other licensing opportunities, and other losses, in an amount not yet ascertained, but which will be determined according to proof. In addition to Torres' actual damages, Torres is entitled to receive all profts made by defendants from their wrongful acts, pursuant to 17 U.S.C. Section 504; and an 4107.060/646706.1 7 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 7 of 15 Page ID #:51 KING, HOLMES, PATERNO& BERLINER, LLP 1 accounting of and constructive trust overall revenues that defendants have received 2 as a result of their wrongfl acts. In the alterative, Torres is entitled to statutory 3 damages pursuant to 17 U.S.C. Section 504( c), which should be enhanced by 17 4 U.S. C. Section 504(c)(2) because of defendants' willful copyright infingement. 5 28. Torres also is entitled to recover his attoreys' fees and costs of suit 6 under 17 U.S. C. Section 505. 7 THI CLAIM FOR RELIEF 8 (By Schmidt for False Advertising-- Lanham Act, 15 U.S.C. 1125(a) against 9 all Defendants) 10 29. Schmidt realleges and incorporates by reference paragraphs 1 through 11 28, inclusive above, as though fully set forth. 12 30. Schmidt is the owner of and applicant for Federal registration of the 13 Keyboard Cat Mark. 14 3 1. On information and belief, defendants' use of the Keyboard Cat Mark 15 in connection with the marketing, distribution, and sale of each of the Scribblenauts 16 games is and was likely to, intended to, did, and will continue to confse and 17 mislead the public and misrepresent and create the false impression that the 18 Scribblenauts games were approved, endorsed, sponsored, connected or affiliated 19 with Schmidt. 20 32. Schmidt never authorized, approved, endorsed, or sponsored any 21 Scribblenauts game and never authorized, approved, or consented to defendants' use 22 of the Keyboard Cat Mark. 23 33. As a direct and proximate result of defendants' conduct, Schmidt has 24 been damaged and will continue to be damaged in an amount to be proven at trial. 25 34. Pursuant to 15 U.S. C. 1 1 17(a), Schmidt is entitled to an Order: (a) 26 requiring defendants to account for and pay to Schmidt all profits derived by 27 defendants fom their conduct alleged herein, to be increased according to 28 applicable provisions of law, and (b) awarding all damages sustained by Schmidt 4107.060/646706.1 8 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 8 of 15 Page ID #:52 KING, HOLES, PATERNO& BERLINER, LLP 1 and caused by defendants. 2 35. Defendants' conduct alleged herein was intentional, egregious, and 3 without foundation in law and, therefore, under 15 U.S.C. 1117(a) Schmidt is 4 entitled to an award of treble damages against defendants, and each of them. 5 36. Defendants' acts make this an exceptional case under 15 U.S.C. 6 1117(a), thereby entitling Schmidt to an award of reasonable attoreys' fees. 7 FOURTH CLAI FOR RELIF 8 (By Torres for False Advertising-- Lanham Act, 15 U.S.C. 1125(a) against all 9 Defendants) 10 37. Torres realleges and incorporates by reference paragraphs 1 through 36 11 inclusive above, as though flly set forth. 12 38. Torres is the owner of and applicant for the Nyan Cat Marks. 13 39. On information and belief, defendants' use of the Nyan Cat Marks in 14 connection with the marketing, distribution, and sale of "Scribblenauts Unlimited" is 15 and was likely to, intended to, did, and will continue to confse and mislead the 16 public and misrepresent and create the false impression that "Scribblenauts 17 Unlimited" was approved, endorsed, sponsored, connected or affiliated with Tores. 18 40. Torres never authorized, approved, endorsed, or sponsored 19 "Scribblenauts Unlimited" and never authorized, approved, or consented to 20 defendants' use of the Nyan Cat Marks. 21 41. As a direct and proximate result of defendants' conduct, Torres has 22 been damaged and will continue to be damaged in an amount to be proven at trial. 23 42. Pursuant to 15 U.S.C. 1117(a), Torres is entitled to an Order: (a) 24 requiring defendants to account for and pay to Torres all profts derived by 25 defendants from their conduct alleged herein, to be increased according to 26 applicable provisions of law, and (b) awarding all damages sustained by Torres and 27 caused by defendants. 28 43. Defendants' conduct alleged herein was intentional, egregious, and 4107.060/646706.1 9 FIRST ANDED COMLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 9 of 15 Page ID #:53 KING, HOLMES, PATERNO& BERLINER, LLP 1 without foundation in law and, therefore, under 15 U.S.C. 1 1 17(a) Tores is 2 entitled to an award of treble damages against defendants, and each of them. 3 44. Defendats' acts make this an exceptional case under 15 U.S. C. 4 1 1 17(a), thereby entitling Torres to a award of reasonable attoreys' fees. 5 FIFTH CLAIM FOR RLIEF . 6 (By Schmidt for Trademark Infringement-Lanham Act, 15 U.S.C. 1125(a) 7 against all Defendants) 8 45. Schmidt realleges and incororates by reference paragraphs 1 through 9 44, inclusive above, as though flly set forth. 10 46. Without Schmidt's permission or consent, defendants have engaged in 11 the unauthorized use in commerce of reproductions, counterfeits, copies ador 12 imitations of the Keyboad Cat Mark in connection with defendants' advertising, 13 distribution, offering for sale, and sales of the Scribblenauts games. 14 47. Defendants' unauthorized use of Schmidt's trademark in commerce on 15 and in connection with the Scribblenauts games, is and was likely to cause 16 confsion, or to cause mistake, or to deceive the public, as described above, in 17 violation of the Lanham Act, 15 U.S.C. 1 125(a). Defendants have committed 18 these acts with the knowledge and intent that their use of plaintiffs trademak would 19 cause confsion, deception, or mistake. 20 48. As a direct and proximate result of defendants' willfl infinging 21 conduct as described above, Schmidt has been damaged ad will continue to be 22 damaged in amounts to be proven at trial. Defendants' infinging conduct entitles 23 Schmidt to recover his actual damages, trebled, together with defendants' profi ts, 24 and his attorey fees ad costs. 25 I I I 26 Ill 27 Ill 28 Ill 4107.060/646706.1 FIRST AMNDED COMLAINT 10 Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 10 of 15 Page ID #:54 KING, HOLMES, PATERNO& BERLINER, LLP 1 SIXTH CLAIM FOR RELIF 2 (By Torres for Trademark Infringement-Lanham Act, 15 U.S.C. 1125(a) 3 against all Defendants) 4 49. Torres realleges and incorporates by reference paragraphs 1 through 48, 5 inclusive above, as though flly set forth. 6 50. Without Torres' permission or consent, defendants have engaged in the 7 unauthorized use in commerce of reproductions, counterfeits, copies ador 8 imitations of the Nyan Cat Marks in connection with defendants' advertising, 9 distribution, offering for sale, and sales of "Scribblenauts Unlimited." 10 5 1. Defendants' unauthorized use of Torres' trademarks in commerce on 11 and in connection with "Scribblenauts Unlimited" is and was likely to cause 12 confsion, or to cause mistake, or to deceive the public, as described above, in 13 violation of the Laham Act, 15 U.S. C. 1 125(a). Defendats have committed 14 these acts with the knowledge and intent that their use of Tores' trademaks would 15 cause confusion, deception, or mistake. 16 52. As a direct and proximate result of defendants' willfl infinging 17 conduct as described above, Torres has been damaged and will continue to be 18 damaged in amounts to be proven at trial. Defendants' infinging conduct entitles 19 Torres to recover his actual damages, trebled, together with defendants' profts, and 20 his attorey fees and costs. 21 SEVENTH CLAIM FOR RELIEF 22 (By Schmidt for Unfair Competition, California Bus.& Prof. Code 17200 et 23 seq., against all Defendants) 24 53. Schmidt realleges and incorporates by reference paragraphs 1 through 25 52, inclusive above, as though flly set forth. 26 54. Defendants' wrongfl acts described herein constitute unlawfl, unfair, 27 and faudulent business practices ad misleading advertising under Califora 28 Business & Professions Code 17200 et seq. 4107.060/646706.1 1 1 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 11 of 15 Page ID #:55 KING, HOLMES, PATERNO& BERLINER, LLP 1 55. Schmidt has been damaged and will continue to be damaged by 2 defendants' unlawfl, unfair, and faudulent business practices and misleading 3 advertising, as described above. 4 56. Schmidt is entitled to an injunction prohibiting defendants fom 5 continuing the practices described above, and to restitution of all amounts acquired 6 by defendants by means of their acts of unfair competition. 7 EIGHTH CLAIM FOR RELIEF 8 (By Torres for Unfair Competition, California Bus.& Prof. Code 17200 et 9 seq., against all Defendants) iO 57. Torres realleges and incorporates by reference paragraphs 1 through 56, 11 inclusive above, as though flly set forth. 12 58. Defendants' wrongfl acts described herein constitute unlawfl, unfair, 13 and faudulent business practices and misleading advertising under Califoria 14 Business & Professions Code 17200 et seq. 15 59. Torres has been damaged and will continue to be damaged by 16 defendants' unlawfl, unfair, and faudulent business practices and misleading 17 advertising, as described above. 18 19 20 21 22 23 24 25 26 27 28 60. Torres is entitled to an injunction prohibiting defendants fom continuing the practices described above, ad to restitution of all amounts acquired by defendants by means of their acts of unfair competition. NINTH CLAI FOR RELIEF (By Schmidt for an Accounting against all Defendants) 6 1. Plaintiffs reallege and incorporate by reference paragraphs l through 60, inclusive above, as though flly set forth. 62. Schmidt is entitled to recover as damages and restitution profts derived by defendants fom their sale and exploitation of "Scribblenauts," "Super Scribblenauts," "Scribblenauts Remix," and "Scribblenauts Unlimited." The exact amounts due are unown and cannot be ascertained without an accounting of 4107.060/646706.1 12 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 12 of 15 Page ID #:56 KING, HOLES, PATERNO& BERUNER,llP 1 defendants' fnancial records. Schmidt seeks an accounting in order to determine 2 the precise amount of defendants' profits or other ill-gotten gains, and the amounts 3 of royalties due to him. 4 TENTH CLAIM FOR RELIEF 5 (y Torres for an Accounting against all defendants) 6 63. Plaintiffs reallege and incorporate by reference paragraphs 1 through 7 62, inclusive above, as though flly set forth. 8 64. Torres is entitled to recover as damages and restitution profts derived 9 by defendants fom their sale ad exploitation of "Scribblenauts Unlimited", and 10 fom their wrongfl uses of the Nyan Cat Marks. The exact amounts due are 11 unknown and cannot be ascertained without an accounting of defendants' fnancial 12 records. Torres seeks an accounting in order to determine the precise aount of 13 defendants' profts or other ill-gotten gains, and the amounts of royalties due to him. 14 WRFOR, plaintiffs pray for judgment, as follows: 15 1. For damages according to proof, plus interest at the legal rate; 16 2. For temporary, preliminary and permanent injunctive relief enjoining 17 defendants fom manufacturing, distributing, marketing, promoting or selling 18 Scribblenauts games with plaintiffs' copyrighted material and trademarks; 19 3. 20 4. 21 5. 22 Ill 23 Ill 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill 4107.060/646706.1 For an accounting; For a constructive trust; For treble damages; FIRST AMENDED COMPLAINT 13 Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 13 of 15 Page ID #:57 KING, HOLMES, PATERNO & BERLINER, LLP 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ill Ill Ill 6. 7. 8. DATED: 4107.060/646706.1 For punitive damages; For costs and attorey fees incurred herein; and For such other and fuher relief as the Court deems just and proper. May 3, 2013 KG, HOLMS, PATERO & BERLIER, LLP By <i STEPHN D. ROTHSCllD Attoreys for Plaintiffs Charles Schmidt and Christopher Orlando Torres 14 FIRST AMENDED COMPLAINT Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 14 of 15 Page ID #:58 KING, HOLMES, PATERNO& BERLINER, llP 1 DEMAND FOR JRY TRL 2 Plaintiffs demand a trial by jury on all issues so tiable. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 3, 2013 4107.060/646706.1 FIRST AMENDED COMPLAINT KG, HOLMS, PATERO & BERLINER, LLP STEPHN D. ROTHSCHD Attoreys for Plaintiffs Charles Schmidt ad Christopher Orlando Torres 15 Case 2:13-cv-02824-JFW-MRW Document 7 Filed 05/03/13 Page 15 of 15 Page ID #:59
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