Case 2:08-cv-00157-MHW-MRA Document 64-6 Filed 03/05/10 ... · Case 2:08-cv-00157-MHW-MRA Document 64-6 Filed 03/05/10 Page 1 of 306. 2 JURISDICTION AND VENUE 3. Jurisdiction is predicated

Case 2:08-cv-00157-MHW-MRA Document 64-6 Filed 03/05/10 Page 1 of 306

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JURISDICTION AND VENUE

3. Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1338(a) and (b), and 1367(a).

As the parties are citizens of different states and as the matters in controversy exceed the sum or

value of seventy-five thousand dollars ($75,000.00), exclusive of interest and costs, this court

also has jurisdiction over the state-law claims herein under 28 U.S.C. § 1332.

4. David Allison’s claims arise in whole or in part in this District; Defendant

operates and/or transacts business in this District, and Defendant has aimed its tortious conduct

in whole or in part at this District. Accordingly, venue is proper under 28 U.S.C. §§ 1391(b) and

(c), and 1400(a).

PARTIES

5. David Allison is a sole proprietorship with its principal place of business located

in Broomfield, Colorado, and operates a website located at www.cheatcc.com. David Allison

owns the exclusive copyrights to each of the web pages posted at www.cheatcc.com, as fully set

forth below.

6. The true name and capacity of the Defendant is unknown to Plaintiff at this time.

Defendant is known to Plaintiff only by the www.Ps3cheats.com website where the infringing

activity of the Defendant was observed. Plaintiff believes that information obtained in discovery

will lead to the identification of Defendant’s true name.

GENERAL ALLEGATIONS

Plaintiff’s Ownership of Copyrights Covering Web Pages

7. David Allison operates a premier website providing video game “cheat” codes,

located at www.cheatcc.com. These “cheat” codes allow video game players to access hidden


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video game features, and are not typically included as part of the instruction manuals that

accompany video game purchases. Rather, they must be discovered through either

experimentation or receipt of direct information from the video game programmers. There is a

long tradition of video game programmers and manufacturers incorporating these hidden cheat

codes in their video games. As a result, a market has developed for information describing these

hidden cheat codes for video game users.

8. David Allison began writing about video game cheat codes as early as May 1997,

and in 1999/2000, he wrote and published a book on video game cheat codes, entitled The

Ultimate Code Book.

9. David Allison also owns and operates a web site located at www.cheatcc.com,

where he writes, compiles, arranges, and posts information and commentary on cheat codes for

thousands of video games across the most popular platforms in the gaming industry. David

Allison wrote the text contained on each cheat code web page located at www.cheatcc.com, and

solely created the compilation and arrangement of the cheat code information on each of those

pages.

10. David Allison has built up a reputation for presenting quality cheat code guides

through the published books and web site postings he has written. As part of his work, David

Allison built relationships with video game developers, which allowed him to obtain and write

about the latest and most interesting cheat codes. This information is a highly desired item

among video game users.

11. David Allison began to post web pages containing his commentary on video game

codes on the www.cheatcc.com web site October 1998. Since that time, David Allison has


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continually updated the www.cheatcc.com website by posting new web pages about additional

games and/or updating and revising the previously up loaded web pages. David Allison is the

sole author of all video game cheat code commentary published on the www.cheatcc.com

website.

12. David Allison’s book, The Ultimate Code Book, and the content of the

www.cheatcc.com web site, (“the Copyrighted Web Pages”), have been registered with the

United States Copyright Office as follows:

Name of Work Copyright Registration No. Registration Date

The Ultimate Code Book TX-5-116-527 January 5, 2000

Cheatcc.com web site TX-6-162-180 May 12, 2005

(A true and correct copy of the copyright registration certificate for the Copyrighted Web Pages

is attached as Exhibit A.)

13. David Allison created the Copyrighted Web Pages listed above and fixed them in

a tangible medium, with the exception of any third party banner ads contained on the pages. The

Copyrighted Web Pages are David Allison’s original works of authorship and constitute

copyrightable subject matter under the copyright laws of the United States.

14. David Allison’s Copyrighted Web Pages have been published on the

www.cheatcc.com web site, where they can be viewed and/or downloaded by any person. The

www.cheatcc.com web site contains a copyright notice indicating that the content is owned by

Cheat Code Central, the name of David Allison’s sole proprietorship.


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15. The quality and breadth of the video game cheat code commentary posted on the

www.cheatcc.com drives a significant volume of traffic to the website, which in turn, generates

advertising revenue. In the past, the www.cheatcc.com web site has received between six and

seven million unique visitors per month.

Defendant’s Wrongful Acts

16. Upon information and belief, Defendant owns and operates the

www.Ps3cheats.com website. The www.Ps3cheats.com website is devoted to providing video

game cheat codes for popular gaming platforms, including PlayStation 2, PlayStation 3, Sony

PSP, XBox, XBox 360, Gameboy Advance, Nintendo DS, Nintendo Wii, Gamecube, PC,

Playstation, Dreamcast, Nintendo 64, DVD and Gameboy platforms, that directly compete with

David Allison’s www.cheatcc.com website.

17. The text on the www.Ps3cheats.com web pages providing the cheat codes for the

platforms listed above (“www.Ps3cheats.com Web Pages”) are identical to pages from David

Allison’s Copyrighted Web Pages, with the sole exception that banner ads contained on the

respective pages are different.

18. On information or belief, Defendant copied David Allison’s Copyrighted Web

Pages and reproduced those pages in their entirety (with the exception of banner ads) on one or

more of the www.Ps3cheats.com Web Pages, where they are currently on public display.

19. Defendant displayed and distributed copies of the www.Ps3cheats.com Web

Pages without conspicuously and appropriately publishing on each copy an appropriate copyright

notice crediting David Allison and/or Cheat Code Central as the original author of the work.


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20. Defendant is not now, nor has ever been, authorized or licensed to copy,

reproduce, modify, distribute, or display any of David Allison’s Copyrighted Web Pages. Nor

has David Allison authorized Defendant to engage in the activities about which he now

complains.

21. Defendant falsely represented to customers, potential customers, and/or others,

directly and/or indirectly, that the text on the www.Ps3cheats.com Web Pages posted on one or

more of the www.Ps3cheats.com websites originated from Defendant.

22. Defendant had actual knowledge of David Allison’s copyrights and copyright

notices. Despite this knowledge, Defendant willfully copied, reproduced, modified, displayed

and/or distributed unauthorized (and therefore infringing) copies of David Allison’s Copyrighted

Web Pages, and passed of David Allison’s Copyrighted Web Pages as Defendant’s own.

23. Defendant copied, reproduced, modified, displayed, and/or distributed the

www.Ps3cheats.com Web Pages for the purposes of commercial advantage and/or private

financial gain.

Injury to David Allison

24. David Allison is informed and believes, and on that basis alleges, that unless

enjoined by this Court, Defendant intends to continue their course of wrongful conduct and to

continue to copy, reproduce, modify, distribute, display, use, infringe upon, and/or otherwise

profit from David Allison’s Copyrighted Web Pages and the www.Ps3cheats.com Web Pages

directly copied from David Allison’s Copyrighted Web Pages. As a direct and proximate result

of Defendant’s wrongful acts, David Allison has already suffered irreparable injury and

monetary damages in an undetermined amount.


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25. David Allison is informed and believes that, since Defendant directly copied

David Allison’s Copyrighted Web Pages and posted them as their own on one or more of the

www.Ps3cheats.com Web Pages, traffic to David Allison’s www.cheatcc.com website has gone

down, while traffic to Defendant’s www.Ps3cheats.com website has increased.

26. David Allison has no adequate remedy at law to redress all of the injuries that

Defendant has caused and are likely to continue to cause by their conduct. David Allison will

continue to suffer irreparable injury and monetary damage until Defendant’s wrongful actions

are enjoined by this Court.

FIRST CLAIM FOR RELIEF Copyright Infringement – 17 U.S.C. §§ 101 et seq.

27. David Allison repeats and realleges every allegation of this Complaint and

incorporates them herein by this reference.

28. David Allison’s Copyrighted Web Pages were automatically subject to copyright

protection under 17 U.S.C. § 102(a) when David Allison fixed such works in a tangible medium

of expression. David Allison received Copyright Registration TX-5-116-527 for his book

entitled The Ultimate Code Book, which registration has an effective date of January, 5, 2000.

David Allison received Copyright Registration TX-6-162-180 for the “Cheatcc.com web site,”

which registration has an effective date of May 12, 2005. These copyright registrations fulfill

the jurisdictional requirements of 17 U.S.C. § 411(a) to bring a copyright action regarding the

Copyrighted Web Pages.

29. Certificates of Copyright Registration constitute prima facie evidence of the

validity of the copyrights and of the facts stated in the certificates, under 17 U.S.C. § 410(c).

David Allison’s registered copyrights are entitled to a statutory presumption of validity.


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30. By the actions alleged above, Defendant has infringed and are continuing to

infringe David Allison’s copyrights in and relating to the Copyrighted Web Pages by copying,

reproducing, modifying, displaying and/or distributing, without David Allison’s authorization,

web pages which contain direct, verbatim copies of David Allison’s Copyrighted Web Pages in

violation of 17 U.S.C. §§ 106 and 501.

31. Upon information and belief, after a reasonable opportunity for further

investigation or discovery, there is likely to be evidentiary support that Defendant’s conduct was

and is willfully done with knowledge of David Allison’s copyrights.

32. David Allison has no adequate remedy at law. Defendant’s conduct has caused,

and, if not enjoined will continue to cause, irreparable harm to David Allison. As a result of

Defendant’s wrongful conduct, David Allison is entitled to injunctive relief, actual damages, and

Defendant’s profits.

SECOND CLAIM FOR RELIEF Passing Off and Federal Unfair Competition – 15 U.S.C. § 1051 et seq.



34. The aforesaid acts of Defendant are likely to cause confusion, mistake, or

deception as to the origin, sponsorship, or approval of Defendant’s goods, and also misrepresent

the nature, characteristics, and qualities of Defendant’s goods. Defendant’s actions constitute

false designations of origin, unfair competition, false advertising, and passing off in violation of

Section 43(a) of the Trademark Act of 1946, as amended, 15 U.S.C. § 1125(a). Such actions

were and are willful and deliberate.


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35. David Allison has no adequate remedy at law. Defendant’s conduct has caused,


Defendant’s wrongful conduct, David Allison is entitled to injunctive relief, actual damages,

Defendant’s profits, exemplary damages, attorney’s fees, and costs.

THIRD CLAIM FOR RELIEF Common Law Unfair Competition



37. The aforesaid acts of Defendant constitute common law unfair competition in

Colorado and other states where Defendant offers and/or advertises its goods, including this

District, and violate of the common law of Colorado and laws of other states, by reason of which

David Allison has suffered, and will continue to suffer, irreparable injury and monetary damages

in an undetermined amount. Such actions were and are willful and deliberate.

38. As a result of Defendant’s wrongful conduct, David Allison is entitled to

injunctive relief, actual damages, Defendant’s profits, exemplary damages, attorney’s fees, and

costs.

FOURTH CLAIM FOR RELIEF Deceptive Trade Practices, Colorado Consumer Protection Act – Colo. Rev. Stat. § 6-1-105(1)



40. The aforesaid acts of Defendant constitute deceptive trade practices under the

Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105(1). Such acts were undertaken

willfully, wantonly and in bad faith.


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41. David Allison has been injured by Defendant’s deceptive trade practices taken in

the course of their business. Defendant’s deceptive trade practices have had and are continuing

to have a significant impact on the consuming public that seeks cheat code information.

42. As a result of Defendant’s deceptive trade practices, David Allison has been

damaged. David Allison will continue to sustain irreparable injury and monetary damages from

Defendant’s deceptive trade practices unless and until Defendant is enjoined from continuing

their unlawful conduct. David Allison is entitled to recover actual or statutory damages,

Defendant’s profits, exemplary damages, reasonable attorneys’ fees, and costs in connection with

this claim, as well as appropriate equitable relief.

PRAYER FOR RELIEF

WHEREFORE, David Allison prays that this Court enter judgment in his favor on each

and every claim for relief set forth above, and award David Allison all appropriate relief,

including but not limited to the following:

A. Declare that Defendant has infringed David Allison’s copyrights covering his


B. Declare that Defendant has engaged in unfair competition and deceptive trade

practices, and has violated Section 43(a) of the Lanham Act, as well as Colorado

statutes and the common law.

C. Order that, pursuant to 17 U.S.C. § 502 and/or 17 U.S.C. § 1203, Defendant and

all of its employees, servants, agents, distributors, and persons in active concert or

participation with it be preliminarily during the pendency of this action and

permanently thereafter enjoined from copying, reproducing, modifying,


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displaying and/or distributing the www.Ps3cheats.com Web Pages and/or the

Copyrighted Web Pages, or otherwise infringing David Allison’s copyrights.

D. Order the impounding for destruction of all copies or reproductions of any

products containing unauthorized reproductions of David Allison’s Copyrighted

Web Pages, including but not limited to the www.Ps3cheats.com Web Pages.

E. Order an accounting of Defendant’s profits and award David Allison its actual

damages and Defendant’s profits not taken into account in calculating actual

damages, including increased damages for willful violations of David Allison’s

rights.

F. Award David Allison monetary relief in an amount to be fixed by the Court in its

discretion as just, including:

(a) All profits received by Defendant from sales and revenues of any kind made

as a result of its infringing or otherwise wrongful actions;

(b) All damages sustained by David Allison as a result of Defendant’s acts, and

that such damages be trebled pursuant to 15 U.S.C. § 1117 and/or 18 U.S.C.

§ 1964(c), and Colo. Rev. Stat. § 6-1-113; and

(c) Exemplary damages in view of the intentional, malicious, and bad faith nature

of Defendant’s actions.

G. Award David Allison prejudgment and post-judgment interest, and David

Allison’s costs and attorney’s fees.

H. Award David Allison such other and further relief as this Court deems just and

appropriate.


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JURY DEMAND

Plaintiff David Allison, doing business as Cheat Code Central, demands a trial by jury on

all issues so triable.

Respectfully submitted this 22nd day of February, 2007

s/ Jared B. Briant

Mark W. Fischer Jared B. Briant FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, Colorado 80302 Tel. - (303) 447-7700 Fax - (303) 447-7800 E-mail – [email protected] [email protected] Attorneys for Plaintiff DAVID ALLISON

Plaintiff’s Address: Cheat Code Central 4560 Augusta Drive Broomfield, Colorado 80020








IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No.: ____________

DAVID ALLISON, doing business as CHEAT CODECENTRAL, a sole proprietorship,

Plaintiff,

v.

CRAVE ONLINE MEDIA, LLC, a California limited liabilitycompany, and

ANDREW SIMON, an individual,

Defendants.

VERIFIED COMPLAINT AND JURY DEMAND

Plaintiff David Allison, doing business as Cheat Code Central, a sole proprietorship, for

his Complaint against Defendants Crave Online Media, LLC and Andrew Simon, states as

follows:

NATURE OF THE CASE

1. This is an action for copyright infringement brought under the Copyright Laws of

the United States, 17 U.S.C. § 101 et seq., unfair competition and passing off brought under the

Lanham Act, 15 U.S.C. § 1051 et seq., and state and common law unfair competition

2. Plaintiff David Allison, doing business as Cheat Code Central, a sole

proprietorship (“David Allison”), brings this action because Defendants, individually and in

association with each other and/or third parties, willfully infringed David Allison’s copyrights by


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copying, reproducing, and distributing David Allison’s copyrighted works without authorization

and willfully engaged in unfair competition by passing off David Allison’s copyrighted works as

if they were Defendants’ works.






4. David Allison’s claims arise in whole or in part in this District; Defendants

operate and/or transact business in this District, and the Defendants have aimed their tortious

conduct in whole or in part at this District. Accordingly, venue is proper under 28 U.S.C.

§§ 1391(b) and (c), and 1400(a).

PARTIES




forth below.

6. Defendant Crave Online Media, Inc. (“Crave”) is a limited liability company

organized under the laws of the State of California, with its principal place of business in Santa

Monica, California. Crave is a direct competitor of David Allison.


http://www.cheatcc.com.

http://www.cheatcc.com,

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7. Defendant Andrew Simon is an employee and/or independent contractor of

Defendant Crave; and/or is an individual who directly participated in and/or directed the acts

described below.

FACTS


8. David Allison operates a premier website relating to video game “cheat” codes,










Ultimate Code Book.



thousands of video games across numerous platforms, including games used with the PlayStation

2 and X-Box consoles, which are two of the most popular platforms. David Allison wrote the

text contained on each cheat code web page located at www.cheatcc.com, and the text,





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compilation, and arrangement of the cheat code information on those pages was solely created by

David Allison




about the latest and most interesting cheat codes.

12. Cheat code information is a highly desired item among video game users.

13. David Allison began to post web pages containing his commentary on PlayStation

2 video game codes on the www.cheatcc.com web site around March 2000 and on X-Box video

game codes around November 2001. Since that time, Mr. Allison has continually updated the

www.cheatcc.com website by posting new web pages about additional games and/or updating

and revising the previously up loaded web pages. David Allison is the sole author of all video

game cheat code commentary published on the www.cheatcc.com website.










http://www.cheatcc.com




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a tangible form, with the exception of any third party banner ads contained on the pages. The



16. David Allison’s Copyrighted Web Pages were published on the








Defendants’ Wrongful Acts

18. On or about December 2, 2004, Andrew Simon, an employee or independent

contractor of Crave, contacted David Allison by email to inquire about the possibility of

advertising the www.craveonline.com website on David Allison’s www.cheatcc.com website.

19. During the month of December, Andrew Simon (on behalf of Crave) and David

Allison discussed the possibility of various cross-marketing opportunities. But by the end of

December 2004 / beginning of January 2005, it was clear that Crave was no longer interested in

working with David Allison and www.cheatcc.com.

20. After David Allison published his Copyrighted Web Pages, Crave started a

section on its www.craveonline.com web site devoted to PlayStation 2 and X-Box video game






http://www.craveonline.com




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cheat codes that directly competes with David Allison’s www.cheatcc.com website. This section

of the www.craveonline.com website is currently located at

http://video.craveonline.com/games/cheats/xbox/cheats_a.php,

http://video.craveonline.com/games/cheats/ps2/cheats_a.php,

http://www.craveonline.com/games/cheats/xbox/cheats_a.php, and

http://www.craveonline.com/games/cheats/ps2/cheats_a.php.

21. The text on the Crave web pages dealing with PlayStation 2 and X-Box cheat

codes (“Crave Infringing Web Pages”) are identical to pages from David Allison’s Copyrighted

Web Pages, with the sole exception that banner ads contained on the respective pages are

different. (A true and correct copy of a list of the cheat code pages that were copied is attached

as Exhibit B.) A comparison demonstrating the identity between the Copyrighted Web Pages

and the Crave Infringing Web Pages is attached as Exhibit C.

22. On information or belief, on or about December 2004, Defendants copied David

Allison’s Copyrighted Web Pages and reproduced those pages in their entirety (with the

exception of banner ads) on the www.craveonline.com web site, where they are currently on

public display.

23. Defendants displayed and distributed copies of the Crave Infringing Works

without conspicuously and appropriately publishing on each copy an appropriate copyright


24. Defendants are not now, nor have they ever been, authorized or licensed to copy,





http://video.craveonline.com/games/cheats/xbox/cheats_a.php,

http://video.craveonline.com/games/cheats/ps2/cheats_a.php,

http://www.craveonline.com/games/cheats/xbox/cheats_a.php,

http://www.craveonline.com/games/cheats/ps2/cheats_a.php.


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has David Allison authorized Defendants to engage in the activities about which he now

complains.

25. Defendants falsely represented to customers, potential customers, and/or others,

directly and/or indirectly, that the Crave Infringing Web Pages they posted on the

www.craveonline.com web site originated from Crave.

26. Defendants had actual knowledge of David Allison’s copyrights and copyright

notices. Despite this knowledge, Defendants willfully copied, reproduced, modified, displayed

and/or distributed unauthorized (and therefore infringing) copies of some of David Allison’s

Copyrighted Web Pages, and passed of David Allison’s Copyrighted Web Pages as Crave’s own.

27. Defendants copied, reproduced, modified, displayed, and/or distributed the Crave

Infringing Web Pages for the purposes of commercial advantage and/or private financial gain.



enjoined by this Court, Defendants intend to continue their course of wrongful conduct and to


profit from David Allison’s Copyrighted Web Pages and the Crave Infringing Web Pages


of Defendants’ wrongful acts, David Allison has already suffered irreparable injury and


29. David Allison is informed and believes that, since Crave directly copied David

Allison’s Copyrighted Web Pages and posted them as their own on the www.craveonline.com




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web site, traffic to David Allison’s www.cheatcc.com website has gone down, while traffic to

Crave’s www.craveonline.com website has increased.


Defendants have caused and are likely to continue to cause by their conduct. David Allison will

continue to suffer irreparable injury and monetary damage until Defendants’ wrongful actions


COUNT ICopyright Infringement17 U.S.C. §§ 101 et seq.












validity of the copyrights and of the facts stated in the certificates. 17 U.S.C. § 410(c). David

Allison’s registered copyrights are entitled to such statutory presumption of validity.




9

34. By the actions alleged above, Defendants have infringed and are continuing to






investigation or discovery, there is likely to be evidentiary support that Defendants’ conduct was


36. David Allison has no adequate remedy at law. Defendants’ conduct has caused,


Defendants’ wrongful conduct, David Allison is entitled to injunctive relief, actual damages, and

Defendants’ profits.

COUNT IIPassing Off and Federal Unfair Competition

15 U.S.C. § 1051 et seq.



38. The aforesaid acts of Defendants are likely to cause confusion, mistake, or

deception as to the origin, sponsorship, or approval of Defendants’ goods, and also misrepresent

the nature, characteristics, and qualities of Defendants’ goods. Defendants’ actions constitute





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Defendants’ wrongful conduct, David Allison is entitled to injunctive relief, actual damages,


COUNT IIICommon Law Unfair Competition



41. The aforesaid acts of Defendants constitute common law unfair competition in

Colorado, California, and other states where Defendants offer and/or advertise their goods,

including this District, and violate of the common law of Colorado, California, and laws of other

states, by reason of which David Allison has suffered, and will continue to suffer, irreparable

injury and monetary damages in an undetermined amount. Such actions were and are willful and

deliberate.

42. As a result of Defendants’ wrongful conduct, David Allison is entitled to

injunctive relief, actual damages, Defendants’ profits, exemplary damages, attorney’s fees, and

costs.

COUNT IVDeceptive Trade Practices – Colorado Consumer

Protection Act




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44. The aforesaid acts of Defendants constitute deceptive trade practices under the

Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-105(1). Such acts were undertaken


45. David Allison has been injured by Defendants’ deceptive trade practices in the

course of his business. Defendants’ deceptive trade practices have had and are continuing to

have a significant impact on the consuming public that seeks cheat code information.

46. As a result of Defendants’ deceptive trade practices, David Allison has been


Defendants’ deceptive trade practices unless and until Defendants are enjoined from continuing


Defendants’ profits, exemplary damages, reasonable attorneys’ fees, and costs in connection with


COUNT VUnfair Competition - California Business and

Professional Code



48. The aforesaid acts of Defendants constitutes unfair competition in violation of

California Business and Professional Code §§ 17200 et seq. and 17500 et seq. Such actions were

and are willful and deliberate.

49. As a result of Defendants’ unfair competition, David Allison has been damaged.

David Allison will continue to sustain irreparable injury and monetary damages from

Defendants’ unfair competition unless and until Defendants are enjoined from continuing their


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unlawful conduct. David Allison is entitled to recover restitution, reasonable attorneys’ fees, and

costs in connection with this claim, as well as appropriate equitable relief.

PRAYER FOR RELIEF




A. Declare that Defendants have infringed David Allison’s copyrights covering its


B. Declare that Defendants have engaged in unfair competition and deceptive trade

practices, and have violated Section 43(a) of the Lanham Act, as well as Colorado

and California statutes and the common law.

C. Order that, pursuant to 17 U.S.C. § 502 and/or 17 U.S.C. § 1203, Defendants and

all of their employees, servants, agents, distributors, and persons in active concert

or participation with them be preliminarily during the pendency of this action and


displaying and/or distributing the Crave Infringing Web Pages and/or the




Web Pages, including but not limited to the Crave Infringing Web Pages.


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E. Order an accounting of Defendants’ profits and award David Allison its actual

damages and Defendants’ profits not taken into account in calculating actual


rights.













appropriate.

JURY DEMAND




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VERIFICATION

STATE OF COLORADO ))

COUNTY OF BROOMFIELD )

David Allison, of lawful age, being first duly sworn, upon oath deposes and states:

1. That he is the Plaintiff in the above-entitled cause;

2. That he has read the above and foregoing Verified Complaint and Jury Demandand knows the contents thereof; and

3. That the facts therein set forth are true and correct to the best of his knowledgeand belief.

/s/ David AllisonDavid Allison

SUBSCRIBED AND SWORN TO before me, a notary public, in and for said Countyand State, this 24th day of June , 2005.

/s/ Maisie LivengoodNotary Public

My Commission Expires:_12/12/08

[SEAL]


15

Respectfully submitted this 24th day ofJune, 2005

By /s/ Christopher P. BeallMark W. FischerChristopher P. BeallFAEGRE & BENSON LLP3200 Wells Fargo Center1700 Lincoln StreetDenver, Colorado 80203Tel. - (303) 607-3500Fax - (303) 607-3600E-mail – [email protected]

Attorneys for Plaintiff,DAVID ALLISON, d/b/a Cheat Code Central


BLDR1:50228451.04


mailto:[email protected]





Exhibit B / Page 1 of 16

Exhibit B

List of Infringing Web Pages

All pages appearing under the section of the domain name directory“http://www.craveonline.com/games/cheats/ps2/cheat.php/” including the following Playstation2 Cheat Codes, which are hyperlinked to the corresponding webpage:

1. Ace Combat 4: Shattered Skies2. Ace Combat 5: The Unsung War3. Activision Anthology4. Adventures Of Cookie And Cream5. Aero Elite: Combat Academy6. AFL Live 20037. Age Of Empires 2: The Age Of

Kings8. Aggressive Inline9. Air Ranger: Rescue Helicopter10. Air Ranger 2: Rescue Helicopter11. Airblade12. AirForce Delta Strike13. Alias14. Alien Hominid15. Aliens vs. Predator: Extinction16. All-Star Baseball 200217. All-Star Baseball 200318. All-Star Baseball 200419. All-Star Baseball 200520. All-Star Professional Wrestling21. All-Star Professional Wrestling 222. Alpine Racer 323. Alter Echo24. American Chopper25. Amplitude26. Ape Escape 227. Ape Escape: Pumped And Primed28. Aqua Aqua29. Arc The Lad: Twilight Of The

Spirits30. Arctic Thunder31. Armored Core 2

32. Armored Core 2: Another Age33. Armored Core 334. Armored Core: Nexus35. Army Men: Air Attack 236. Army Men: Green Rogue37. Army Men: RTS38. Asterix And Obelix: Kick Buttix39. Astro Boy40. Athens 200441. ATV Offroad Fury42. ATV Offroad Fury 243. ATV Offroad Fury 344. ATV Quad Power Racing 245. Auto Modellista46. Adventures Of Cookie And Cream47. Backyard Basketball48. Backyard Wrestling49. Backyard Wrestling 2: There Goes

The Neighborhood50. Bad Boys 251. Barbarian52. Bass Strike53. Batman: Rise Of Sin Tzu54. Batman: Vengeance55. Battle Engine Aquila56. Battlestar Galactica57. Beyond Good And Evil58. Big Mutha Truckers59. Bionicle60. Black And Bruised61. Blade 262. Bloody Roar 363. Bloody Roar 4



64. Blood: The Last Vampire65. Blood Will Tell66. BloodRayne67. BloodRayne 268. BlowOut69. BMX XXX70. Bombastic71. Bomberman Land 272. Bratz: Formal Funk73. Breath Of Fire 5: Dragon Quarter74. Broken Sword: The Sleeping

Dragon75. Buffy The Vampire Slayer: Chaos

Bleeds76. Bujingai: The Forsaken City77. Burnout78. Burnout 2: Point Of Impact79. Burnout 3: Takedown80. Bombastic81. Call Of Duty: Finest Hour82. Capcom Fighting Evolution83. Capcom vs. SNK 2: Mark Of The

Millennium84. Carmen Sandiego: The Secret Of

The Stolen Drums85. CART Fury: Championship Racing86. Casper: Spirit Dimensions87. Castlevania: Lament Of Innocence88. Catwoman89. ChainDive90. Champions Of Norrath: Realms Of

EverQuest91. Chaos Legion92. Checkmate93. Chessmaster94. City Crisis95. Clock Tower 396. Colin McRae Rally 397. Colin McRae Rally 498. Commandos 2: Men Of Courage99. Conflict: Desert Storm100. Conflict: Desert Storm 2 - Back To

Baghdad101. Conflict: Vietnam102. Conflict Zone103. Contra: Shattered Soldier

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Republic 2 - The Sith Lords378. Star Wars: Obi-Wan379. Star Wars: Starfighter - Special

Edition380. Star Wars: The Clone Wars381. Starsky And Hutch382. State Of Emergency383. Steel Battalion384. Street Fighter Anniversary

Collection385. Street Hoops386. Street Racing Syndicate387. Sudeki388. Superman: The Man Of Steel389. SWAT: Global Strike Team390. SX Superstar391. Syberia392. Syberia 2393. Steel Battalion394. The Wild Rings395. The Haunted Mansion396. The Hulk397. The House Of The Dead 3398. The Hobbit

399. The Cat In The Hat400. The Chronicles Of Riddick: Escape

From Butcher Bay401. Totaled!402. The Dukes Of Hazzard: Return Of

The General Lee403. The Elder Scrolls: Morrowind404. The Incredibles405. The Italian Job406. The Lord Of The Rings: The

Fellowship Of The Ring407. The Lord Of The Rings: The

Return Of The King408. The Lord Of The Rings: The Third

Age409. The Lord Of The Rings: The Two

Towers410. The Simpsons: Hit And Run411. The Simpsons: Road Rage412. The Sims413. The Suffering414. Tak 2: The Staff Of Dreams415. Tao Feng: Fist Of The Lotus416. Taz Wanted417. Teenage Mutant Ninja Turtles418. Teenage Mutant Ninja Turtles 2:

Battle Nexus419. Tenchu: Return From Darkness420. Terminator: Dawn Of Fate421. Terminator 3: Rise Of The

Machines422. Terminator 3: The Redemption423. Test Drive424. Test Drive: Eve Of Destruction425. Test Drive: Off-Road - Wide Open426. Tetris Worlds427. Tetris Worlds: Online Edition428. Thief: Deadly Shadows429. The Thing430. Tiger Woods PGA Tour 2003431. Tiger Woods PGA Tour 2004432. Tiger Woods PGA Tour 2005433. TimeSplitters 2434. TOCA Race Driver435. TOCA Race Driver 2: The

Ultimate Racing Simulator



436. ToeJam And Earl 3: Mission ToEarth

437. Tom And Jerry: War Of TheWhiskers

438. Top Spin439. Total Immersion Racing440. Totaled!441. Toxic Grind442. TransWorld Snowboarding443. TransWorld Surf444. Trivial Pursuit: Unhinged445. Tron 2.0: Killer App446. True Crime: Streets Of L.A.447. Turok: Evolution448. Ty The Tasmanian Tiger449. Ty The Tasmanian Tiger 2: Bush

Rescue450. The Urbz: Sims In The City451. UEFA Euro 2004452. UFC Tapout453. UFC Tapout 2454. Ultra Bust-A-Move455. Unreal 2: The Awakening456. Unreal Championship457. Van Helsing458. Vexx459. Vietcong: Purple Haze460. Voodoo Vince461. V-Rally 3462. Wallace And Gromit In Project

Zoo463. Whacked!464. Whiplash465. WhiteOut466. Wings Of War467. World Championship Poker468. World Championship Rugby469. World Racing470. World Series Baseball471. World Series Baseball 2K3472. Worms 3DWrath Unleashed473. Wreckless: The Yakuza Missions474. WWE Crush Hour475. WWE Raw 2: Ruthless Aggression476. WWF RawWorld Racing

477. Xbox Exhibition Volume 1XboxExhibition Volume 2Xbox System

478. XGRA: Extreme-G RacingAssociation

479. XIII480. X-Men: Legends481. X-Men: Next Dimension482. Yager483. Yu-Gi-Oh! Dawn Of Destiny484. Zapper















































































































































































































IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: DAVID ALLISON, doing business as CHEAT CODE CENTRAL, a sole proprietorship, Plaintiff, v. JUPITER ELECTRIC, a Canadian entity, X PRODUCTIONS, a Canadian entity, RUSSELL ZOHOOR, an individual, and HOOMAN ZOHOOR, an individual, Defendants.

COMPLAINT AND JURY DEMAND


his Complaint against Defendants Jupiter Electric, x productions, Russell Zohoor and Hooman

Zohoor, states as follows:

NATURE OF THE CASE



Lanham Act, 15 U.S.C. § 1051 et seq., and state and common law unfair competition.


proprietorship (“David Allison”), brings this action because Defendants, individually and in

association with each other and/or third parties, willfully infringed David Allison’s copyrights by


2

copying, reproducing, and distributing David Allison’s copyrighted works without authorization

and willfully engaged in unfair competition by passing off David Allison’s copyrighted works as

if they were Defendants’ works.



As the plaintiff is a citizen of a State and the defendants are, on information and belief, citizens

or subjects of a foreign state, and as the matters in controversy exceed the sum or value of

seventy-five thousand dollars ($75,000.00), exclusive of interest and costs, this court also has

jurisdiction over the state-law claims herein under 28 U.S.C. § 1332.

4. David Allison’s claims arise in whole or in part in this District; Defendants

operate and/or transact business in this District, and the Defendants have aimed their tortious

conduct in whole or in part at this District. Accordingly, venue is proper under 28 U.S.C.

§§ 1391(b) and (c), and 1400(a).

PARTIES




forth below.

6. On information and belief, Defendant Jupiter Electric (“Jupiter”) is an entity

organized under and/or subject to the laws of Canada, with its principal place of business in

Markham, Ontario, Canada. Jupiter is a direct competitor of David Allison.


3

7. On information and belief, Defendant x productions is an entity organized under

and/or subject to the laws of Canada, with its principal place of business in Toronto, Ontario,

Canada. x productions is a direct competitor of David Allison.

8. On information and belief, Defendant Russell Zohoor is the president of

Defendant x productions; and/or is an individual who directly participated in and/or directed the

acts described below.

9. On information and belief, Defendant Hooman Zohoor is an employee and/or

officer of Defendant Jupiter; and/or is an individual who directly participated in and/or directed

the acts described below.

FACTS


10. David Allison operates a premier website relating to video game cheat codes,

located at www.cheatcc.com. “Cheat codes” allow video game players to access hidden video

game features and are not typically included as part of the instruction manuals that accompany

video game purchases. Rather, they must be discovered through either experimentation or

receipt of direct information from the video game programmers. There is a long tradition of

video game programmers and manufacturers incorporating these hidden cheat codes in their

video games. As a result, a market has developed for information describing these hidden cheat

codes for video game users.



Ultimate Code Book.


4



thousands of video games across numerous video game platforms. David Allison wrote the text

contained on each cheat code web page located at www.cheatcc.com, and the text, compilation,

and arrangement of the cheat code information on those pages was solely created by David

Allison.




about the latest and most interesting cheat codes.

14. Cheat code information is a highly desired item among video game users.

15. David Allison began to post web pages containing his commentary on PlayStation

2 video game codes on the www.cheatcc.com web site around March 2000 and on X-Box video

game codes around November 2001. Since that time, Mr. Allison has continually updated the

www.cheatcc.com website by posting new web pages about additional games and/or updating

and revising the previously up loaded web pages. David Allison is the sole author of all video

game cheat code commentary published on the www.cheatcc.com website.





5







a tangible form, with the exception of any third party banner ads contained on the pages. The



18. David Allison’s Copyrighted Web Pages were published on the








Defendants’ Wrongful Acts

20. Beginning as early as 1999, Defendants have operated and continue to operate

multiple websites devoted to video game cheat codes at numerous web addresses, including

www.cheatindex.com, allps2.net, xbox.cheatindex.com, snes.cheatindex.com, and


6

www.allcodes.com (collectively the “Cheatindex Websites”), that directly compete with David

Allison’s www.cheatcc.com website.

21. The substantive content, including the text and the selection, coordination and

arrangement of materials, on most if not all of the pages of the Cheatindex Websites dealing with

video game cheat codes (“Cheatindex Infringing Web Pages”) are identical to pages from David



22. On information or belief, Defendants copied David Allison’s Copyrighted Web

Pages and reproduced those pages in their entirety (with the exception of banner ads) on one or

more of the Cheatindex Websites, where they are currently on public display.

23. Defendants displayed and distributed copies of the Cheatindex Infringing Web

Pages without conspicuously and appropriately publishing on each copy an appropriate copyright


24. Defendants are not now, nor have they ever been, authorized or licensed to copy,


has David Allison authorized Defendants to engage in the activities about which he now

complains.

25. Defendants falsely represented to customers, potential customers, and/or others,

directly and/or indirectly, that the Cheatindex Infringing Web Pages they posted on the

Cheatindex Websites originated from Defendants.

26. Defendants had actual knowledge of David Allison’s copyrights and copyright

notices. Despite this knowledge, Defendants willfully copied, reproduced, modified, displayed


7

and/or distributed unauthorized (and therefore infringing) copies of some of David Allison’s

Copyrighted Web Pages, and passed off David Allison’s Copyrighted Web Pages as Defendants’

own.

27. Defendants copied, reproduced, modified, displayed, and/or distributed the

Cheatindex Infringing Web Pages for the purposes of commercial advantage and/or private

financial gain.



enjoined by this Court, Defendants intend to continue their course of wrongful conduct and to


profit from David Allison’s Copyrighted Web Pages and the Cheatindex Infringing Web Pages


of Defendants’ wrongful acts, David Allison has already suffered irreparable injury and


29. David Allison is informed and believes that, since Defendants directly copied

David Allison’s Copyrighted Web Pages and posted them as their own on the Cheatindex

Websites, traffic to David Allison’s www.cheatcc.com website has gone down, while traffic to

the Cheatindex Websites has increased.


Defendants have caused and are likely to continue to cause by their conduct. David Allison will

continue to suffer irreparable injury and monetary damage until Defendants’ wrongful actions



8

COUNT I

Copyright Infringement 17 U.S.C. §§ 101 et seq.












validity of the copyrights and of the facts stated in the certificates. 17 U.S.C. § 410(c). David

Allison’s registered copyrights are entitled to such statutory presumption of validity.

34. By the actions alleged above, Defendants have infringed and are continuing to






9


investigation or discovery, there is likely to be evidentiary support that Defendants’ conduct was




Defendants’ wrongful conduct, David Allison is entitled to injunctive relief, actual damages, and

Defendants’ profits.

COUNT II Passing Off and Federal Unfair Competition

15 U.S.C. § 1051 et seq.



38. The aforesaid acts of Defendants are likely to cause confusion, mistake, or

deception as to the origin, sponsorship, or approval of Defendants’ goods, and also misrepresent

the nature, characteristics, and qualities of Defendants’ goods. Defendants’ actions constitute






Defendants’ wrongful conduct, David Allison is entitled to injunctive relief, actual damages,



10

COUNT III Common Law Unfair Competition



41. The aforesaid acts of Defendants constitute common law unfair competition in

Colorado and other states where Defendants offer and/or advertise their goods, including this




42. As a result of Defendants’ wrongful conduct, David Allison is entitled to

injunctive relief, actual damages, Defendants’ profits, exemplary damages, attorney’s fees, and

costs.

COUNT IV Deceptive Trade Practices – Colorado Consumer

Protection Act



44. The aforesaid acts of Defendants constitute deceptive trade practices under the

Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-105(1). Such acts were undertaken


45. David Allison has been injured by Defendants’ deceptive trade practices in the

course of his business. Defendants’ deceptive trade practices have had and are continuing to

have a significant impact on the consuming public that seeks cheat code information.


11

46. As a result of Defendants’ deceptive trade practices, David Allison has been


Defendants’ deceptive trade practices unless and until Defendants are enjoined from continuing


Defendants’ profits, exemplary damages, reasonable attorneys’ fees, and costs in connection with


PRAYER FOR RELIEF




A. Declare that Defendants have infringed David Allison’s copyrights covering its


B. Declare that Defendants have engaged in unfair competition and deceptive trade

practices, and have violated Section 43(a) of the Lanham Act, as well as Colorado

statutes and the common law.

C. Order that, pursuant to 17 U.S.C. § 502 and/or 17 U.S.C. § 1203, Defendants and

all of their employees, servants, agents, distributors, and persons in active concert

or participation with them be preliminarily during the pendency of this action and


displaying and/or distributing the Cheatindex Infringing Web Pages and/or the



12



Web Pages, including but not limited to the Cheatindex Infringing Web Pages.

E. Order an accounting of Defendants’ profits and award David Allison its actual

damages and Defendants’ profits not taken into account in calculating actual


rights.













appropriate.


13

JURY DEMAND



Respectfully submitted this 20th day of January, 2006

s/ J. Owen Borum

Mark W. Fischer J. Owen Borum FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, Colorado 80302 Telephone: (303) 447-7700 Facsimile: (303) 447-7800 E-mail: [email protected] [email protected] Attorneys for Plaintiff David Allison d/b/a Cheat Code Central



�JS 44 (Rev. 11/04) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INS TR UC TIO NS ON TH E R EV ER SE O F TH E FO RM .)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) ( IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND COND EMNATION CASES, USE THE LOCATION OF THE

LAND INVOLVED.

(c) Attorney’s (Firm Na me, A ddres s, and Telep hone N umbe r) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X ” in One B ox Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Pla ce an “ X” in O ne B ox fo r Pla intiff

(For Diversity Cases O nly) and O ne Bo x for De fendant)

� 1 U.S. G overnment � 3 Federal QuestionPTF

DEF PTF DEF

Pla intiff (U.S. G overnment N ot a Party) Citizen o f This State � 1 � 1 Incorporated or Principal Place � 4 � 4

of Busine ss In T his State

� 2 U.S. G overnment � 4 Divers ity Citizen o f Anothe r State � 2 � 2 Incorporated and Principal Place � 5 � 5

Defenda nt(Indicate C itizenship of Pa rties in Item III)

of Busine ss In A nother S tate

Cit izen or Subje ct o f a � 3 � 3 Foreign Nation � 6 � 6

Foreign C ountry

IV. NATURE OF SUIT (Place an “X ” in One B ox Only)

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC 158 400 S tate Reap portionment

120 M arine 310 A irplane 362 P ersonal Injury - 620 O ther Food & Drug 423 Withdrawal 410 Antitrust

130 Miller Act 315 Airplane Product Med. M alpractice 625 Drug Re lated Se izure 28 USC 157 430 B anks and B anking

140 N egotiable Instrument Liability 365 P ersonal Injury - of Property 21 USC 881 450 Commerce

150 R ecovery of O verpayment 32 0 A ssa ult, L ibe l & Prod uct Liability 630 L iquor Laws PROPERTY RIGHTS 460 Deportation

& E nforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Co pyrights 470 R acketeer Influenced and

151 Medicare Act 330 Federal Employers’ Injury Product 650 Airline Regs. 830 P atent Corrupt O rganizations

152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trad ema rk 48 0 C ons ume r C red it

Student Loans 340 M arine PERSONAL PROPERTY Safety/H ealth 490 Cable/Sat TV

(Excl. Veterans) 345 Marine Product 370 O ther Fraud 690 Other 810 Selective Service

153 R ecovery of O verpayment Liability 371 T ruth in Lending L A B O R SOCIAL SECURITY 850 Securities/Commodities/

of Ve teran’s Bene fits 35 0 M oto r V ehic le 380 Other Personal 710 Fair Labor Standards 86 1 H IA (13 95 ff) Exchange

160 Stock holders ’ Suits 35 5 M oto r V ehic le Property D amage Act 862 Black Lung (923) 875 C ustomer C hallenge

190 Other Contract Prod uct Liability 385 P roperty Da mage 720 La bor/M gmt. Relations 863 DIW C/D IW W (405 (g)) 12 USC 3410

195 Co ntract Pro duct Liab ility 360 Other Personal Prod uct Liability 730 La bor/M gmt.Repo rting 864 SSID T it le XVI 890 O ther Statutory Actions

196 Franchise Injury & Disclosure Act 865 RS I (405 (g)) 891 Agricultural Ac ts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilization Act

210 Land Condemnation 441 V oting 510 M otions to V acate 790 Other Labor Litigation 87 0 T axe s (U .S. Pla intiff 893 Environm ental M atters

220 Forec losure 442 E mployment Sentence 791 Empl. Ret. Inc. or D efenda nt) 894 Energy Allocation Act

230 R ent Lease & Ejectment 443 H ousing/ Habeas Corpus: Security Act 871 IRS — Third Pa rty 895 Freedom of Information

240 T orts to Land Acco mmod ations 530 General 26 USC 7609 Act

245 Tort P roduc t Liability 444 W elfare 535 De ath Pe nalty 900Appeal of Fee Determination

290 All Othe r Re al Prop erty 445 Amer. w/Disabilities - 540 Mandamus & O ther Under Equal Access

Employme nt 550 Civil Rights to Justice

446 Amer. w/Disabilities - 555 Prison Condition 950 Constitutionality of

Other State Statutes

440 Othe r Civil Rights

V. ORIGINTransferred fromanother district(specify)

Appeal to DistrictJudge fromMagistrateJudgment

(Place an “X ” in One B ox Only)

� 1 OriginalProceeding

� 2 Removed fromState Court

� 3 Remanded fromAppellate Court

� 4 Reinstated orReopened

� 5 � 6 MultidistrictLitigation

� 7

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN

COM PLAINT:

� CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: � Yes � No

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLY ING IFP JUDGE MAG. JUDGE

DAVID ALLISON, doing business as

CHEAT CODE CENTRAL, a sole proprietorship

JUPITER ELECTRIC, a Canadian entity, X PRODUCTIONS, a

Canadian entity, RUSSELL ZOHOOR, an individual, and

HOOMAN ZOHOOR, an individual

Mark W. Fischer, J. Owen Borum, FAEGRE & BENSON LLP,

1900 Fifteenth Street, Boulder, Colorado 80302, (303) 447-7700

Broomfield Markham Ontario Canada

✔

✔

✔

✔

✔

Copyright Act (17U.S.C. Section 101, et. seq.) and Lanham Act (15 U.S.S. Section 1051, et. seq.)

Copyright Infringement, Unfair Competition and Passing Off

$75,000 + ✔

1/20/06 s/J. Owen Borum



peajl

Text Box

EXHIBIT A





IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No.: 07-cv-00373-RPM-CBS DAVID ALLISON, doing business as CHEAT CODE CENTRAL, a sole proprietorship, Plaintiff, v. THOMAS CARROLL, Defendant.

FIRST AMENDED COMPLAINT AND JURY DEMAND


his First Amended Complaint against Defendant Thomas Carroll, states as follows:

NATURE OF THE CASE





proprietorship (“David Allison”), brings this action because Defendant, individually and in

association with third parties, willfully infringed David Allison’s copyrights by copying,

reproducing, and distributing David Allison’s copyrighted works without authorization and

willfully engaged in unfair competition by passing off David Allison’s copyrighted works as if

they were Defendant’s works.


2









(c), and 1400(a).

PARTIES




forth below.

6. Defendant Thomas Carroll (“Carroll”) is a resident of Wilmette, Illinois, and is an

individual who, upon information and belief, owns and operates www.ps3cheats.com.

Defendant Carroll has directly participated in and/or directed the acts described below.

GENERAL ALLEGATIONS






3








Ultimate Code Book.






pages.










4



website.




















5




16. Upon information and belief, Carroll owns and operates the www.Ps3cheats.com

website. The www.Ps3cheats.com website is devoted to providing video game cheat codes for

popular gaming platforms, including PlayStation 2, PlayStation 3, Sony PSP, XBox, XBox 360,

Gameboy Advance, Nintendo DS, Nintendo Wii, Gamecube, PC, Playstation, Dreamcast,

Nintendo 64, DVD and Gameboy platforms, that directly compete with David Allison’s

www.cheatcc.com website.





18. On information or belief, Carroll copied David Allison’s Copyrighted Web Pages

and reproduced those pages in their entirety (with the exception of banner ads) on one or more of

the www.Ps3cheats.com Web Pages, where they are currently on public display.

19. Carroll displayed and distributed copies of the www.Ps3cheats.com Web Pages

without appropriately publishing on each copy an appropriate copyright notice crediting David

Allison and/or Cheat Code Central as the original author of the work.

20. Carroll is not now, nor has ever been, authorized or licensed to copy, reproduce,

modify, distribute, or display any of David Allison’s Copyrighted Web Pages. Nor has David

Allison authorized Carroll to engage in the activities about which he now complains.


6

21. Carroll falsely represented to customers, potential customers, and/or others,


more of the www.Ps3cheats.com websites originated from Carroll.

22. Carroll had actual knowledge of David Allison’s copyrights and copyright

notices. Despite this knowledge, Carroll willfully copied, reproduced, modified, displayed


Web Pages, and passed of David Allison’s Copyrighted Web Pages as Carroll’s own.

23. Carroll copied, reproduced, modified, displayed, and/or distributed the


financial gain.



enjoined by this Court, Carroll intends to continue his course of wrongful conduct and to




of Carroll’s wrongful acts, David Allison has already suffered irreparable injury and monetary

damages in an undetermined amount.

25. David Allison is informed and believes that, since Carroll directly copied David

Allison’s Copyrighted Web Pages and posted them as his own on one or more of the


down, while traffic to Carroll’s www.Ps3cheats.com website has increased.


7


Carroll has caused and are likely to continue to cause by his conduct. David Allison will

continue to suffer irreparable injury and monetary damage until Carroll’s wrongful actions are

enjoined by this Court.

FIRST CLAIM FOR RELIEF Copyright Infringement – 17 U.S.C. §§ 101 et seq.














30. By the actions alleged above, Carroll has infringed and is continuing to infringe

David Allison’s copyrights in and relating to the Copyrighted Web Pages by copying,



8




investigation or discovery, there is likely to be evidentiary support that Carroll’s conduct was


32. David Allison has no adequate remedy at law. Carroll’s conduct has caused, and,

if not enjoined will continue to cause, irreparable harm to David Allison. As a result of Carroll’s

wrongful conduct, David Allison is entitled to injunctive relief, actual damages, and Carroll’s

profits.

SECOND CLAIM FOR RELIEF Passing Off and Federal Unfair Competition – 15 U.S.C. § 1051 et seq.



34. The aforesaid acts of Carroll are likely to cause confusion, mistake, or deception

as to the origin, sponsorship, or approval of Carroll’s goods, and also misrepresent the nature,

characteristics, and qualities of Carroll’s goods. Carroll’s actions constitute false designations of

origin, unfair competition, false advertising, and passing off in violation of Section 43(a) of the

Trademark Act of 1946, as amended, 15 U.S.C. § 1125(a). Such actions were and are willful and

deliberate.



wrongful conduct, David Allison is entitled to injunctive relief, actual damages, Carroll’s profits,

exemplary damages, attorney’s fees, and costs.


9

THIRD CLAIM FOR RELIEF Common Law Unfair Competition



37. The aforesaid acts of Carroll constitute common law unfair competition in

Colorado and other states where Carroll offers and/or advertises his goods, including this




38. As a result of Carroll’s wrongful conduct, David Allison is entitled to injunctive

relief, actual damages, Carroll’s profits, exemplary damages, attorney’s fees, and costs.

FOURTH CLAIM FOR RELIEF Deceptive Trade Practices, Colorado Consumer Protection Act – Colo. Rev. Stat. § 6-1-105(1)



40. The aforesaid acts of Carroll constitute deceptive trade practices under the



41. David Allison has been injured by Carroll’s deceptive trade practices taken in the

course of his business. Carroll’s deceptive trade practices have had and are continuing to have a

significant impact on the consuming public that seeks cheat code information.

42. As a result of Carroll’s deceptive trade practices, David Allison has been



10

Carroll’s deceptive trade practices unless and until Carroll is enjoined from continuing their

unlawful conduct. David Allison is entitled to recover actual or statutory damages, Carroll’s

profits, exemplary damages, reasonable attorneys’ fees, and costs in connection with this claim,

as well as appropriate equitable relief.

FIFTH CLAIM FOR RELIEF Violation of the Illinois Uniform Fraud and Deceptive Business Practices Act

815 ILCS 510/1 et seq.



44. Carroll’s conduct, and the conduct of his representatives, creates a likelihood of

misunderstanding and therefore violates the Illinois Uniform Deceptive Trade Practices Act.

SIXTH CLAIM FOR RELIEF Illinois State Unfair Competition



46. Carroll’s conduct, and the conduct of his representatives, violates Illinois unfair

competition law.

PRAYER FOR RELIEF







11



and Illinois statutes and the common law.


all of his employees, servants, agents, distributors, and persons in active concert

or participation with it be preliminarily during the pendency of this action and










rights.






12








H. Award David Allison such other relief as this Court deems just and appropriate.

JURY DEMAND



Respectfully submitted this 8th day of March, 2007

s/ Jared B. Briant

Mark W. Fischer Jared B. Briant FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, Colorado 80302 Tel. - (303) 447-7700 Fax - (303) 447-7800 E-mail – [email protected] [email protected] Attorneys for Plaintiff DAVID ALLISON







IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No.: 07-cv-00373-RPM-CBS

DAVID ALLISON, doing business as CHEAT CODECENTRAL, a sole proprietorship,

Plaintiff,

v.

THOMAS CARROLL,

Defendant.

SECOND AMENDED COMPLAINT AND JURY DEMAND


his Second Amended Complaint against Defendant Thomas Carroll, states as follows:

NATURE OF THE CASE





proprietorship (“David Allison”), brings this action because Defendant, individually and in

association with third parties, willfully infringed David Allison’s copyrights by copying,

reproducing, and distributing David Allison’s copyrighted works without authorization and

willfully engaged in unfair competition by passing off David Allison’s copyrighted works as if

they were Defendant’s works.


2









(c), and 1400(a).

PARTIES




forth below.

6. Defendant Thomas Carroll (“Carroll”) is a resident of Wilmette, Illinois, and is an

individual who, upon information and belief, owns and operates www.ps3cheats.com.

Defendant Carroll has directly participated in and/or directed the acts described below.

GENERAL ALLEGATIONS








http://www.ps3cheats.com.


3








Ultimate Code Book.






pages.














4



website.







Cheatcc.com web site TX-6-516-407 January 29, 2007

(A true and correct copy of the copyright registration certificates for the Copyrighted Web Pages















5






16. Upon information and belief, Carroll owns and operates the www.Ps3cheats.com

website. The www.Ps3cheats.com website is devoted to providing video game cheat codes for

popular gaming platforms, including PlayStation 2, PlayStation 3, Sony PSP, XBox, XBox 360,

Gameboy Advance, Nintendo DS, Nintendo Wii, Gamecube, PC, Playstation, Dreamcast,

Nintendo 64, DVD and Gameboy platforms, that directly compete with David Allison’s

www.cheatcc.com website.





18. On information or belief, Carroll copied David Allison’s Copyrighted Web Pages

and reproduced those pages in their entirety (with the exception of banner ads) on one or more of

the www.Ps3cheats.com Web Pages, where they are currently on public display.

19. Carroll displayed and distributed copies of the www.Ps3cheats.com Web Pages

without appropriately publishing on each copy an appropriate copyright notice crediting David

Allison and/or Cheat Code Central as the original author of the work.




http://www.Ps3cheats.com







6

20. Carroll is not now, nor has ever been, authorized or licensed to copy, reproduce,

modify, distribute, or display any of David Allison’s Copyrighted Web Pages. Nor has David

Allison authorized Carroll to engage in the activities about which he now complains.

21. Carroll falsely represented to customers, potential customers, and/or others,


more of the www.Ps3cheats.com websites originated from Carroll.

22. Carroll had actual knowledge of David Allison’s copyrights and copyright

notices. Despite this knowledge, Carroll willfully copied, reproduced, modified, displayed


Web Pages, and passed of David Allison’s Copyrighted Web Pages as Carroll’s own.

23. Carroll copied, reproduced, modified, displayed, and/or distributed the


financial gain.



enjoined by this Court, Carroll intends to continue his course of wrongful conduct and to




of Carroll’s wrongful acts, David Allison has already suffered irreparable injury and monetary

damages in an undetermined amount.






7

25. David Allison is informed and believes that, since Carroll directly copied David

Allison’s Copyrighted Web Pages and posted them as his own on one or more of the


down, while traffic to Carroll’s www.Ps3cheats.com website has increased.


Carroll has caused and are likely to continue to cause by his conduct. David Allison will

continue to suffer irreparable injury and monetary damage until Carroll’s wrongful actions are

enjoined by this Court.

FIRST CLAIM FOR RELIEFCopyright Infringement – 17 U.S.C. §§ 101 et seq.


















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30. By the actions alleged above, Carroll has infringed and is continuing to infringe

David Allison’s copyrights in and relating to the Copyrighted Web Pages by copying,





investigation or discovery, there is likely to be evidentiary support that Carroll’s conduct was




wrongful conduct, David Allison is entitled to injunctive relief, actual damages, and Carroll’s

profits.

SECOND CLAIM FOR RELIEFPassing Off and Federal Unfair Competition – 15 U.S.C. § 1051 et seq.



34. The aforesaid acts of Carroll are likely to cause confusion, mistake, or deception

as to the origin, sponsorship, or approval of Carroll’s goods, and also misrepresent the nature,

characteristics, and qualities of Carroll’s goods. Carroll’s actions constitute false designations of

origin, unfair competition, false advertising, and passing off in violation of Section 43(a) of the

Trademark Act of 1946, as amended, 15 U.S.C. § 1125(a). Such actions were and are willful and

deliberate.


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wrongful conduct, David Allison is entitled to injunctive relief, actual damages, Carroll’s profits,

exemplary damages, attorney’s fees, and costs.

THIRD CLAIM FOR RELIEFCommon Law Unfair Competition



37. The aforesaid acts of Carroll constitute common law unfair competition in

Colorado and other states where Carroll offers and/or advertises his goods, including this




38. As a result of Carroll’s wrongful conduct, David Allison is entitled to injunctive

relief, actual damages, Carroll’s profits, exemplary damages, attorney’s fees, and costs.

FOURTH CLAIM FOR RELIEFDeceptive Trade Practices, Colorado Consumer Protection Act – Colo. Rev. Stat. § 6-1-105(1)



40. The aforesaid acts of Carroll constitute deceptive trade practices under the




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41. David Allison has been injured by Carroll’s deceptive trade practices taken in the

course of his business. Carroll’s deceptive trade practices have had and are continuing to have a

significant impact on the consuming public that seeks cheat code information.

42. As a result of Carroll’s deceptive trade practices, David Allison has been


Carroll’s deceptive trade practices unless and until Carroll is enjoined from continuing their

unlawful conduct. David Allison is entitled to recover actual or statutory damages, Carroll’s

profits, exemplary damages, reasonable attorneys’ fees, and costs in connection with this claim,

as well as appropriate equitable relief.

FIFTH CLAIM FOR RELIEFViolation of the Illinois Uniform Fraud and Deceptive Business Practices Act

815 ILCS 510/1 et seq.



44. Carroll’s conduct, and the conduct of his representatives, creates a likelihood of

misunderstanding and therefore violates the Illinois Uniform Deceptive Trade Practices Act.

SIXTH CLAIM FOR RELIEFIllinois State Unfair Competition



46. Carroll’s conduct, and the conduct of his representatives, violates Illinois unfair

competition law.


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PRAYER FOR RELIEF








and Illinois statutes and the common law.


all of his employees, servants, agents, distributors, and persons in active concert

or participation with it be preliminarily during the pendency of this action and










rights.




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H. Award David Allison such other relief as this Court deems just and appropriate.

JURY DEMAND



Respectfully submitted this 15th day of October, 2007

s/ Jared B. BriantDarrell M. DaleyJared B. BriantFAEGRE & BENSON LLP1900 Fifteenth StreetBoulder, Colorado 80302Tel. - (303) 447-7700Fax - (303) 447-7800E-mail – [email protected] [email protected] for Plaintiff DAVID ALLISON




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Case 2:08-cv-00157-MHW-MRA Document 64-6 Filed 03/05/10 ... · Case 2:08-cv-00157-MHW-MRA Document 64-6 Filed 03/05/10 Page 1 of 306. 2 JURISDICTION AND VENUE 3. Jurisdiction is predicated

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