Life Alert Responds
ConsumerAffairs.com, in a motion filed May 24, asked the court to dismiss the complaint.
Plaintiff LIFE ALERT EMERGENCY RESPONSE, INC., a California corporation ("Plaintiff"), alleges as follows:
GENERAL ALLEGATIONS
1. Plaintiff is, and at all times herein mentioned has been, a California corporation duly organized and existing under and by virtue of the laws of California.
2. Plaintiff is informed and believes, and thereon alleges that Defendant CONSUMERAFFAIRS.COM, Inc. ("Defendant") is, and at all times herein mentioned has been, a Virginia corporation, transacting business in the State of California.
3. This action is not subject to the provisions of Sections 2981, et seq. , (Rees-Levering Act) , or Section 1801, et seq. , (Unruh Act), of the Civil Code of the State of California.
4. The true names and capacities, whether individual, corporate, associate or otherwise of Defendants DOES 1 through 50, inclusive, are unknown to Plaintiff who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes and based thereon alleges that each of the fictitiously named Defendants is responsible in some manner for the events, acts, occurrences and liabilities alleged and referred to herein. Plaintiff will seek leave to amend this Complaint to allege the true names and capacities of these DOE Defendants when the same are ascertained.
5. Plaintiff has been in the business of providing emergency medical response services and related products for seniors on a 24 hour a day, 7 day a week basis for the last seventeen years.
6. Plaintiff has adopted "Life Alert" as its trademark (the "Mark"). Plaintiff is the owner of federal registrations of the Mark on the Principal Register of the United States Patent and Trademark Office, including U.S. Reg. Nos. 2552506 and 2641470.
7. The Mark is instantly recognizable as being associated 6 with the services and goods of Plaintiff. The Mark has appeared in numerous advertisements, brochures and solicitations for Plaintiff.
8. Plaintiff has expended great effort and substantial sums of money in making its Mark well-known to the public. In so doing, Plaintiff has established a reputation for quality in connection with all of its services and products bearing or sold under the Mark.
9. Plaintiff retains the sole and exclusive right in the United States to use and control the use of the Mark, together with the right to bring and maintain actions relating to the infringement, disparagement, dilution or other misappropriation of the Mark.
10. Plaintiff's services and products bearing and sold under the Mark have achieved popularity in the marketplace.
11. As a result of the high quality of the services and products sold by Plaintiff in conjunction with the Mark, and as a result of the extensive advertising, sale and public acceptance of those services and products, the public has come to view the Mark to identify Plaintiff's services and products exclusively. The Mark has come to symbolize the goodwill created by the sale and distribution of high-quality services and products of Plaintiff.
FIRST CAUSE OF ACTION
(For Violation Of Lanham Act �43(a), 15 U.S.C. �1125(a)
Against Defendant and Does 1-50)
12. Plaintiff repeats, repleads and realleges the allegations contained in Paragraphs 1 through 11 as though fully set forth herein.
13. Beginning at least as early as June 4, 2003 and continuing to the present, Defendants have been publishing false and defamatory items about Plaintiff on Defendant's internet website, utilizing the Mark, and in connection with advertisements promoting Plaintiff's competitors. Copies of such written items are attached hereto as Exhibit A and made a part hereof.
14. Defendant's acts as alleged above constitute a violation of Lanham Act �43(a), U.S.C. �1125.
15. By reason of the acts of Defendant alleged herein, Plaintiff has suffered, is suffering and will continue to suffer damages and irreparable injury. Unless Defendant is restrained from continuing its wrongful acts, the damage to Plaintiff will increase. Plaintiff has no adequate remedy at law.
SECOND CAUSE OF ACTION
(Unfair Competition, California Business & Professions Code
��17200 et seq. and Common Law Against Defendant and Does 1-50)
16. Plaintiff repeats, repleads and realleges the allegations contained in Paragraphs 1 through 15 as though fully set forth herein.
17. Defendant, by virtue of its acts as alleged above, has willfully, knowingly and intentionally engaged in acts of unfair competition under California Business and Professions Code �17200 et sec. and the common law of the State of California.
THIRD CAUSE OF ACTION
(For Libel Against Defendant and Does 1-50.)
18. Plaintiff repeats, repleads and realleges paragraphs 1 through 17, inclusive, of this Complaint and incorporates the same herein by reference as though set forth in full.
19. Beginning at least as early as June 4, 2003 and continuing to the present, Defendant has been publishing written items about Plaintiff on its internet website. Copies of the written items at issue are attached hereto as Exhibit "A" and Exhibit "B" and made a part hereof. The written items are false and defamatory as they pertain to Plaintiff and are libel on their face as they clearly expose Plaintiff to hatred, contempt and ridicule and obloquy.
20. Upon information and belief, the false and defamatory written items published by Defendant were seen and read by numerous residents of California, as well as by persons throughout the rest of the United States.
21. As a proximate result of the above described publications, Plaintiff has suffered loss to its reputation, all to its general damage.
22. As a further proximate result of the above described publications, Plaintiff has suffered special damages by virtue of injury caused to Plaintiff's business and/or trade.
23. Defendants conduct, as alleged hereinabove, was committed with malice, oppression, and fraud. This conduct is despicable, and was carried out in a willful and conscious disregard for the interests of Plaintiff, thereby entitling Plaintiff to an award of punitive and exemplary damages.
WHEREFORE, Plaintiff prays for judgment as follows:
1. On the First Cause of Action
a. For damages according to proof;
b. For injunctive relief;
c. For attorneys fees;
d. For interest according to law;
e. For costs of suit herein; and
f. For such other and further relief as the Court deems just and proper.
2. On the Second Cause of Action
a. That Defendant be found to have engaged in unfair
competition in violation of Section 17200 of the
California Business and Professions Code;
b. That Defendant be ordered and enjoined to make
restitution to Plaintiff due to its unfair
competition, including disgorgement of wrongfully
obtained revenues, earnings, profits, compensation,
and benefits, pursuant to California Business and
Professions Code Sections 17203 and 17204;
c. For injunctive relief;
d. For damages according to proof based on Defendant's
common law unfair competition;
e. For exemplary and punitive damages according to
proof based on Defendant's common law unfair
competition;
f. For interest according to law;
g. For costs of suit herein; and
h. For such other and further relief as the Court deems just and proper.
3. On the Third Cause of Action
a. For damages according to proof;
b. For punitive and exemplary damages according to proof;
c. For interest thereon according to law;
d. For costs of suit incurred herein; and
e. For such other and further relief as to the Court
deems just and proper.
DATED: March 5, 2004
KRANE & SMITH
By:
RALPH C. LOEB
Attorneys for Plaintiff
LIFE ALERT EMERGENCY RESPONSE, INC.
