JACK E. BROWN (Pro Hac Vice to be filed)
BROWN & BAIN, P.A.
2901 North Central Avenue
Post Office Box 400
Phoenix, Arizona 85001-0400
Attorneys for Plaintiff
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
an Illinois corporation,
MICROSOFT CORPORATION,a Washington corporation,
Defendant. No. 97-3055 DDP
Plaintiff Ticketmaster Corporation (“Ticketmaster”), by its undersigned attorneys, complains of defendant Microsoft Corporation (“Microsoft”) and alleges as follows:
1.Ticketmaster is an Illinois corporation with its principal place of business in Los Angeles, California.
2.Ticketmaster is engaged in the business of providing automated ticketing services to various arenas and other sites located throughout the United States and elsewhere. It maintains approximately 2,700 remote ticketing outlets in 44 states in the United States and 16 domestic phone centers, as well as operations in England, Mexico and Australia. Its annual ticket sales for its clients currently exceed $1.6 billion and, on information and belief, it is the world’s largest provider of computerized ticket distribution products and services to producers and promoters of entertainment events.
3.Ticketmaster has made extensive use of its name and marks for its ticketing products and services throughout the United States. It owns federal registrations for the following marks: MARKREG. NO.
January 12, 1993TICKETMASTER & Design1,746,017
January 12, 1993TICKETMASTER ONLINE & Design 1,960,551
March 5, 1996 TICKETMASTER MUSIC SHOWCASE & Design 1,991,124
August 6, 1996 TICKETMASTER 2,009,129
October 15, 1996 TICKETMASTER 2,012,812
October 29, 1996 TICKETMASTER 1/2 Tix & Design 1,897,084 May 30, 1995
4.Ticketmaster also has made extensive use of its name and marks for its ticketing products and services throughout other parts of the world. Ticketmaster owns registrations for the “TICKETMASTER” mark in numerous other countries throughout the world.
5.As an integral part of the services it performs, Ticketmaster sells and markets tickets to various entertainment events through the use of the Internet. To engage in such sales and marketing, it has created and is the owner of a worldwide web site on the Internet using the domain name “http://www.ticketmaster.com.” Attached herewith as Exhibit B is a printout of an excerpt from Ticketmaster’s web site as it currently appears on personal computer screens.
6.Ticketmaster’s web site, utilizing Ticketmaster’s name and marks, is a valuable commercial asset in that it provides information that consumers desire and in which they have come to have confidence, as well as providing a means of easy access to the purchase of tickets. Ticketmaster’s web site provides listings and ticketing access to more than 25,000 events across the United States, including Los Angeles and Seattle. It is by far the Internet’s most comprehensive live event site. Companies that publish city guides (including Microsoft) also occupy a unique niche on the Internet, in that they directly derive advertising revenue and credibility from their ability to provide the most comprehensive community information available to their users. By accessing Ticketmaster’s live event information and services without Ticketmaster’s approval, and by prominently offering it as a service to their users, Microsoft is feathering its own nest at Ticketmaster’s expense. It is, in effect, committing electronic piracy. In this narrow corridor of cyberspace, Ticketmaster must maintain control of the manner in which others utilize and profit >from its proprietary services, or face the prospect of a feeding frenzy diluting its content.
7.Ticketmaster spends significant sums of money in advertising its goods and services in the United States each year. The Ticketmaster name and logo are widely known as identifying high quality goods and services.
8.As a result of the foregoing, Ticketmaster’s trademarks have developed and possesses secondary and distinctive meaning to purchasers of the goods and services bearing the Ticketmaster trademarks.
9.Microsoft is a Washington corporation with its principal place of business in Redmond, Washington. Microsoft is qualified to do business and is doing business in this judicial district.
10.Microsoft is engaged in the business of developing, marketing and publishing computer programs. It has as an adjunct to its business the online publication, via the Internet and a worldwide web site, of a city guide to entertainment and restaurants available in the Seattle, Washington area known as the Seattle Sidewalk, with the web site domain name “http://seattle.sidewalk.com.” The city guide web site is a featured offering by Microsoft on Microsoft’s publication known as The Microsoft Network. Microsoft plans to publish additional city guides in a number of cities — including New York, Boston, Denver, Houston, Minneapolis-St. Paul, San Diego, San Francisco, Washington, D.C., and Sydney, Australia — to be supported by national, regional and local advertising — including advertisers such as CitiBank, Visa USA and Bank of America.
JURISDICTION AND VENUE
11.This is an action arising out of Microsoft’s wrongful appropriation and misuse of Ticketmaster’s name and trademarks and unfair competition, with the threatened result being the dimunition and dilution in value of Ticketmaster’s name, trademark, goodwill and business.
12.This Court has federal question and diversity jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§1331 and 1332, 28 U.S.C. §2201, 28 U.S.C. §1367, 15 U.S.C. §1121 and the doctrine of pendent jurisdiction.
13.Venue is proper in this court pursuant to 28 U.S.C. §1391(a)(b) and (c).
THE OPERATIVE FACTS
14.Microsoft has utilized in its seattle.sidewalk site the name and marks of Ticketmaster and Ticketmaster’s web site notwithstanding Ticketmaster’s protestation against such use and Microsoft’s implicit recognition that, absent an agreement with the owner for use of a web site, web sites are for personal non-commercial use.
15.Negotiations with Microsoft for an agreement allowing Microsoft to profit from linkage to and association with Ticketmaster’s web site have failed and Microsoft is making use of such linkage and association as a freerider and in express contravention of Ticketmaster’s request.
16.Microsoft’s commercial use and appropriation of Ticketmaster’s name, marks and web site as aforesaid has enhanced the value of Microsoft’s web site and business and diluted and diminished the value of Ticketmaster’s web site and business. E.g., Microsoft has gained revenue from advertising made a part of Microsoft’s web site, depriving Ticketmaster of favorable advertising business and opportunities.
17.Further, Microsoft has published in its seattle.sidewalk web site information concerning Ticketmaster and its business that was and is erroneous and misleading concerning the type of payment that is accepted by Ticketmaster for payment of the tickets it sells.
18.Ticketmaster also has a business relationship with MasterCard by which Ticketmaster has agreed to give MasterCard prominence over any other credit cards in any advertising. Microsoft’s use of Ticketmaster’s name in connection with MasterCard, which use does not give MasterCard prominence, dilutes the value of that relationship.
FIRST CLAIM FOR RELIEF(Violation of the Lanham Act, 15 U.S.C. §1125(c)-Dilution)
20.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
21.By reason of the foregoing, Ticketmaster asserts a claim against Microsoft for damages, injunctive relief, costs and attorneys’ fees pursuant to 15 U.S.C. §§1125(c), 1117 and 1116, with respect to the dilution of Ticketmaster’s trademarks caused by Microsoft’s unlawful use of said trademarks.
SECOND CLAIM FOR RELIEF(Violation of the Lanham Act, 15 U.S.C. §1125(a))
22.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
23.By reason of the foregoing, Ticketmaster asserts a claim against Microsoft for damages, injunctive relief, costs and attorney’s fees pursuant to 15 U.S.C. §§ 1125, 1117 and 1116, with respect to Microsoft’s falsely, deceptively and misleadingly representing its association, connection or affiliation with Ticketmaster and the operation of Ticketmaster’s business in Microsoft’s website and its advertising.
THIRD CLAIM FOR RELIEF (Violation of California Business & Professions Code § 17200 et. seq.)
23.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
24.By reason of the foregoing, Ticketmaster asserts a claim against Microsoft for damages, injunctive relief, costs and attorney’s fees for unfair competition under the California Business and Professions Code § 17200 et. seq.
FOURTH CLAIM FOR RELIEF (Violation of California Business & Professions Code § 17500 et. seq.)
25.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
26.By reason of the foregoing, Ticketmaster asserts a claim against Microsoft for damages, injunctive relief, costs and attorney’s fees for false and misleading statements under the California Business and Professions Code § 17500 et. seq.
FIFTH CLAIM FOR RELIEF (Violation of California Common Law-Unfair Competition andUnfair Business Practices)
27.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
28.By reason of the foregoing, Ticketmaster asserts a claim against Microsoft for damages, injunctive relief, costs and attorney’s fees for violations of California common law against unfair competition and unfair business practices.
SIXTH CLAIM FOR RELIEF (Declaratory Relief)
29.Ticketmaster realleges and incorporates by this reference each and every allegation set forth in paragraphs 1 through 19 above.
30.An actual controversy between Ticketmaster and Microsoft now exists as to their respective rights.
31.Microsoft has a website for which it obtains advertising and revenue thereon, and, in some ways, competes with Ticketmaster’s own website. Microsoft believes it can use Ticketmaster’s trademarks, the link to the Ticketmaster website, and the descriptions and in certain instances false “misdescriptions” of Ticketmaster goods and services, and to use the link to and actual reference to the Ticketmaster website to obtain advertising, users and otherwise advance Microsoft’s own website. Ticketmaster disputes Microsoft’s ability to use Ticketmaster’s trademarks in the aforementioned manner.
32.A judicial determination regarding Ticketmaster and Microsoft’s respective rights is necessary and appropriate so that Ticketmaster and Microsoft can ascertain their respective rights and properly engage in their businesses now and in the future.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Ticketmaster seeks relief against Microsoft and requests entry of judgment against Microsoft as follows:
As To All Claims for Relief:
(1) Entering declaratory judgment in favor of Ticketmaster against Microsoft declaring that Microsoft’s seattle.sidewalk web site has damaged Ticketmaster’s rights in its name, marks and web site;
(2) Enjoining Microsoft and those in active concert or participation with Microsoft, temporarily, preliminarily and permanently, from making any commercial use of Ticketmaster’s name, marks or web site in connection with its seattle.sidewalk web site or with any advertising sold or sponsored by Microsoft;
(3) For Microsoft to pay Ticketmaster damages in an amount to be determined;
(4) For Ticketmaster to be awarded its costs, attorney’s fees; and
(5) Awarding Ticketmaster such other relief as is just and equitable in the circumstances.
Dated: April 28, 1997
MANATT, PHELPS & PHILLIPS, LLP
Robert H. Platt
Cara R. Burns
By: Robert H. Platt
BROWN & BAIN, P.A.
Jack E. Brown
2901 North Central Avenue
Post Office Box 400
Phoenix, Arizona 85001-0500
Attorneys for Plaintiff