autobidmaster complaint

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

AUTOBIDMASTER, LLC,

Plaintiff, v.

ALPINE AUTO GALLERY, LLC, VEHIKO, LLC f/kla WINDA Y.COM, LLC, EDWARD AGABS, and JOHN DOES 1 through 5,

Defendants.

CASE NO.

COMPLAINT

COMPLAINT

Plaintiff AUTOBIDMASTER, LLC complains and alleges against defendants

ALPINE AUTO GALLERY, LLC, WINDAY.COM, LLC, and EDWARD AGABS

(collectively "Defendants"), as follows :

PARTIES

1. Plaintiff AutoBidMaster, LLC ("AutoBidMaster" or "Plaintiff') is an Oregon

limited liability company with its principal place of business at 6807 NE 79th Court, Suite

B, Portland, Oregon 97218.

2. Defendant Alpine Auto Gallery, LLC ("Alpine"), is a New Jersey limited

liability company with its principal place of business at 1039-1045 Market Street, Paterson,

New Jersey 07513. Upon information and belief, Alpine operates under the assumed

business names and/or trade names Alpine Auto Gallery, Win Day, Alpine Rebuildable

Cars, and Alpine Salvage.

3. Defendant Vehiko, LLC f/k/a/ WinDay.com, LLC ("WinDay"), is a

Connecticut limited liability company with its principal place of business located at 86

Camp Ave. , Darien, Connecticut 06820. Upon information and belief, WinDay changed its

business name from WinDay.com, LLC to Vehiko, LLC on or about October 1, 2013.

4. Defendant Edward Agabs is, upon information and belief, a resident of the

State of Connecticut. Mr. Agabs is the sole member ofWinDay.

Case 3:14-cv-01083-AC Document 1 Filed 07/08/14 of 12 Page ID#: 1

5. Defendants John Does 1 through 5 are individuals and/or legal entities who

participated in the unlawful acts complained of herein, but whose exact identifies are

currently unascertained and/or unknown. Plaintiff respectfully reserves the right to amend

this Complaint once the identities of said John Does have been ascertained.

6. Defendants Alpine, WinDay, Mr. Agabs, and John Does 1 through 5 are

collectively referred to as "Defendants".

JURISDICTION AND VENUE

7. This is a civil action for claims arising under the federal trademark laws of

the United States, including without limitation 15 U.S.C. § 1051 et seq. , and under the

common laws of the State of Oregon.

8. This court has original jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a).

9. The amount in controversy between the parties exceeds $75 ,000.

10. Venue is proper in the United States District Court for the District of Oregon

pursuant to 28 U.S.C. § 1391(a) and (c). Upon information and belief, Defendants have

transacted business in and/or have had continuous and systematic contacts with the District

of Oregon.

FACTS SUPPORTING PLAINTIFF'S REQUESTED RELIEF

11. AutoBidMaster is an industry-leading membership-based online auto auction

marketplace that provides broker services to consumers seeking to purchase used and

salvage vehicles. AutoBidMaster is a registered broker for Copart, Inc. ("Copart").

AutoBidMaster's systems and website enable consumers around the world to participate in

auto auctions operated by Copart and to purchase used and salvage vehicles through its

online marketplace. AutoBidMaster also offers transportation and shipping services around

the globe to improve their member's buying experience.

12. AutoBidMaster maintains and operates a website located at

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www.autobidmaster.com ("Website") through which it provides its services. AutoBidMaster

registered, maintained, and started operating the domain name autobidmaster.com on or

about February 23 , 2009.

13. AutoBidMaster's business name and domain name "AutoBidMaster"

("Mark") is a mark that AutoBidMaster has used continuously and exclusively in interstate

commerce in connection with providing its services since May 13, 2008. From May 13,

2008 until February 28, 2011, AutoBidMaster operated the Website under the registered

business name of Vestra Motors, LLC using the assumed business name AutoBidMaster. On

or about February 28, 2011 , AutoBidMaster changed its registered business name from

Vestra Motors, LLC to AutoBidMaster, LLC.

14. AutoBidMaster filed for registration of the Mark on May 9, 2011 and the

Mark was registered on December 27, 2011.

15. AutoBidMaster's continuing use of the Mark is prima facie evidence of the

validity of AutoBidMaster's ownership of the Mark.

16. AutoBidMaster has expended substantial sums of money in promoting,

advertising, and marketing the Mark in connection with its services and its Website.

17. As a result of AutoBidMaster's promotion, advertising, and marketing of the

Mark and its Website, the Mark has become exceedingly well-known to people in the auto

auction sales and shipping industry and to internet users in general as a distinctive indication

of origin of services offered by and/or through AutoBidMaster and its Website.

DEFENDANTS' UNLAWFUL ACTIVITIES

18. Upon information and belief, at all material times herein, defendant Agabs

and John Does 1 through 5 acted as the duly authorized employee, representative, and/or

agent (actual and/or apparent) of defendants WinDay and Alpine.

19. Upon information and belief, Alpine is a registered broker for Copart.

20. Upon information and belief, Defendants registered, maintained, controlled,

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and/or operated the websites with domain names winday.com, alpineautogallery.com,

alpinesalvage.com, alpinerebuildablecars.com, through which they operate and/or provide

online auto auction and shipping services that are identical and/or substantially similar to

those offered by AutoBidMaster.

21. On or about January 12, 2012, Defendants registered, maintained, and started

operating a website with the uniform resource locator ("URL") address

www.autobidmaser.com, which is inherently and/or confusingly similar to AutoBidMaster's

domain name autobidmaster.com and/or the Mark.

22. On or about January 12, 2012, Defendants registered, maintained, and started

operating a website with the uniform resource locator ("URL") address

www.autobidmater.com, which is inherently and/or confusingly similar to AutoBidMaster's

domain name autobidmaster.com and/or the Mark.

23. On or about January 12, 2012, Defendants used the Mark in advertising,

promoting, and/or marketing the online auto auction services of WinDay and Alpine, which

are identical or confusingly similar to AutoBidMaster's, usmg the websites

www.autobidmaser.com, www.autobidmater.com, and www.winday.com. When the

consumer typed the URL www.autobidmaser.com or www.autobidmater.com, the consumer

was automatically redirected to Defendants' competitive website with the URL

www.winday.com. Defendants also operate the websites www.alpinesalvage.com and

www.alpinerebuildablecars.com, which, upon information and belief, receive customer

referrals from the website www.winday.com.

24. Defendants used deceptive techniques to divert AutoBidMaster's customers

from the Website by using websites with domain names and/or URLs

www.autobidmaser.com and www.autobidmater.com, which redirected unsuspecting

customers to Defendants' competing website with the URL www.windday.com.

25. Defendants pray on consumers who mistype the Website's domain name

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and/or consumers who forget AutoBidMaster's domain and/or business name.

26. Notwithstanding AutoBidMaster's well-established prior rights in the Mark,

Defendants intentionally and deliberately used the Mark, and/or confusingly similar

variations thereof, without AutoBidMaster's authorization and/or permission, to promote

Defendants' competing website and services.

COUNT 1

FEDERAL TRADEMARK INFRINGMENT

(15 u.s.c. § 1114)

27. Plaintiff realleges and incorporates herein the allegations contained m

paragraphs 1-26 of this Complaint.

28. Defendants' actions described above and, specifically, without limitation,

Defendants' unauthorized use of AutoBidMaster's Mark, and/or confusingly similar

variations thereof, in commerce to advertise, promote, market, and/or sell Defendants'

competing website and services throughout the United States including Oregon, was likely

to cause and/or has caused actual confusion among consumers who mistakenly believe that

Defendants' services are provided by or emanate from, or are otherwise sponsored,

approved, authorized, and/or licensed by or otherwise associated with AutoBidMaster.

29. Defendants' use of AutoBidMaster's Mark, and/or confusingly similar

variations thereof, constitutes trademark infringement in violation of 15 U.S.C. § 1114(1).

30. As a direct and proximate result, AutoBidMaster has suffered damages in an

amount to be determined at trial, consisting of, among other things, diminution in the value

and goodwill associated with the Mark, and injury to AutoBidMaster's business.

31. Pursuant to 15 U.S.C. § 1117, AutoBidMaster is entitled to recover damages

in an amount to be proven at trial, profits made by Defendants, and the costs of this action.

Furthermore, AutoBidMaster is informed and believes, and on that basis alleges, that the

actions of Defendants were in bad faith, and undertaken willfully and with the intention of

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causmg confusion, mistake, or deception, making this an exceptional case entitling

AutoBidMaster to recover additional treble damages and reasonable attorneys' fees pursuant

to 15 U.S.C. § 1117.

COUNT II

FEDERAL TRADEMARK DILUTION

(15 U.S.C. § 1125(c))










34. Defendants' use of AutoBidMaster's Mark, and confusingly similar variations

thereof, was likely to cause and/or has caused dilution by blurring and tarnishment in

violation 15 U.S.C. § 1125(c).


amount to be determined at trial, consisting of, among other things, diminution in the value


36. On information and belief, the actions of Defendants described above were

deliberate and willful and undertaken with the intent to trade upon the reputation and

goodwill of AutoBidMaster, and to dilute the Mark. AutoBidMaster is therefore entitled to

recover damages in an amount to be proven at trial , profits made by Defendants, and the

costs of this action pursuant to 15 U.S.C. § 1117.

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COUNT III

FEDERAL CYBERPIRACY

(15 u.s.c. § 1125(d))


paragraphs 1-36 ofthis Complaint.

38. The domain names autobidmaser.com and autobidmater.com are substantially

the same and/or confusingly similar to AutoBidMaster's Mark, business name, and Website

domain name.

39. Defendants' registration and use of the domain names autobidmaser.com and

autobidmater.com were in bad faith and were intended to permit Defendants to profit from

the reputation and goodwill of AutoBidMaster and/or the Mark.

40. Defendants' use of AutoBidMaster's Mark, and/or confusingly similar

variations thereof, constitutes cyberpiracy in violation 15 U .S.C. § 1125( d).


amount to be determined at trial , consisting of, among other things, diminution in the value


42. Pursuant to 15 U.S.C. § 1117, AutoBidMaster is entitled to recover

compensatory damages in an amount to be proven at trial , profits made by Defendants or

statutory damages in the amount of not less than $1 ,000 and not more than $100,000 per

domain name, and the costs of this action. Furthermore, AutoBidMaster is informed and

believes, and on that basis alleges, that the actions of Defendants were in bad faith,

undertaken willfully, and with the intention of causing confusion, mistake, or deception,

making this an exceptional case entitling AutoBidMaster to recover additional treble

damages and reasonable attorneys' fees pursuant to 15 U.S.C. § 1117.

Ill

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COUNT IV

FEDERAL UNFAIR COMPETITION

(15 U.S.C. 1125(a))






competing website and services throughout the United States including Oregon, constitute

false designations of origin and false descriptions or representations that Defendants' website

and/or services originate from or are authorized by AutoBidMaster, when in fact they are

not. Such conduct limits AutoBidMaster's ability to interact with potential customers.

45. Defendants' unauthorized use of the Mark, and confusing similar variations

thereof, was likely to cause and/or has caused actual confusion among consumers who

mistakenly believe that Defendants' services are provided by or emanate from, or are

otherwise sponsored, approved, authorized, and/or licensed by or otherwise associated with

AutoBidMaster.

46. Defendants' conduct was willful and was intended to reap the benefit of

AutoBidMaster's goodwill in violation of 15 U.S.C. § 1125(a)(l)(A).

47. As a direct and proximate result of Defendants' wrongful conduct,

AutoBidMaster has suffered damages. AutoBidMaster is entitled to recover damages in an

amount to be proven at trial , profits made by Defendants, and the costs of this action.

COUNTV

COMMON LAW TRADEMARK INFRINGMENT


paragraphs 1-4 7 of this Complaint.

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49. AutoBidMaster has common law rights in the Mark based on its continuous

use ofthe Mark in Oregon in connection with its Website and services.








51. Defendants' use of AutoBidMaster's Mark, and confusingly similar variations

thereof, constitutes common law trademark infringement.

52. As a direct result, AutoBidMaster has suffered damages in an amount to be

determined at trial consisting of, among other things, diminution in the value and goodwill

associated with the Mark, and injury to AutoBidMaster's business.

53. AutoBidMaster is entitled to recover damages in an amount to be proven at

trial, profits made by Defendants, and the costs of this action.

COUNT VI

COMMON LAW UNFAIR COMPETITION






competing website and services throughout the United States including Oregon, constitute

false designations of origin and false descriptions or representations that Defendants' website

and/or services originate from or are authorized by AutoBidMaster, when in fact they are

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not. Such conduct limits AutoBidMaster's ability to interact with potential customers.

56. Defendants' unauthorized use of the Mark, and/or confusing similar

variations thereof, has caused actual confusion among consumers who mistakenly believe

that Defendants' services are provided by or emanate from, or are otherwise sponsored,


57. Defendants' conduct is willful and was intended to reap the benefit of

AutoBidMaster's goodwill, and constitutes common law unfair competition.

58. As a result of Defendants' wrongful conduct, AutoBidMaster has suffered

damages. AutoBidMaster is entitled to recover damages in an amount to be proven at trial ,

profits made by Defendants, and the costs of this action.

COUNT VII

UNJUST ENRICHMENT



60. Defendants have received and/or will receive unjust enrichment from its

unauthorized use of AutoBidMaster's Mark. Accordingly, any such enrichment is unjust and

should, in equity, be returned to AutoBidMaster.

61. As a direct and proximate result of Defendants' use of the Mark, and/or

confusing similar variations thereof, AutoBidMaster has been irreparably harmed, and

Defendants have been unjustly enriched at AutoBidMaster's expense and must make

restitution.

COUNT VIII

ACTION TO PIERCE CORPORATE VEIL



63. Plaintiff is informed and believes, and on that basis alleges, that members

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and/or managers of Defendants actively participated in the unlawful conduct complained of

herein. As active participants in said conduct, the individual Defendants are not entitled to

the limited liability protections of the corporate form.

64. In addition and/or in the alternative, Plaintiff believes and therefor alleges

that Defendants have misused the limited liability company form and/or disregarded

formalities to a dree where the distinction between the individual and entity Defendants and

the distinction among the Defendants has been rendered meaningless, thereby rendering the

entity and/or entities a "sham" for purposes of this action.

WHEREFORE, Plaintiff prays for relief as follows:

(1) An award in favor of Plaintiff and against Defendants for Plaintiffs actual

damages and all profits received by Defendants as a result of their unlawful use of

AutoBidMaster's Mark and/or confusing similar variations thereof, in an amount to be

determined at the time of trial, which is anticipated to be in excess of$75,000; or

(2) In the alternative, and at Plaintiffs election, an award in favor of Plaintiff and

against Defendants for statutory damages in the amount of not less than $1 ,000 and not more

than $100,000 per domain name, as the court considers just, in an amount to be determined

at the time of trial , which is anticipated to be in excess of$75 ,000; and

(3) An award in favor of Plaintiff and against Defendants for interest, costs of

this suit, and reasonable attorneys' fees; and

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( 4) Such other relief that the Court deems equitable, just, and appropriate.

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JURY DEMAND

Plaintiff respectfully demands a trial by jury.

DATED: July _ _ , 2014.

Nathaniel L. Funk Chief Legal Officer AutoBidMaster, LLC 6807 NE 79th Ct. , Ste. B Portland, OR 97218 (503) 298-4300 x300 [email protected]

Attorney for Plaintiff

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autobidmaster complaint

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