Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 1 of 14 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Wells Fargo & Company, John Does 1-10, vs. Plaintiff, Defendants. Court File No.: COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF JURY TRIAL DEMANDED Plaintiff Wells Fargo & Company ( Wells Fargo ) files this complaint against Defendants John Does 1-10 ( Defendants ) and alleges and states as follows: PARTIES 1. Wells Fargo is a corporation duly authorized and existing under the laws of the state of Delaware, having its principal place of business located at 420 Montgomery Street, San Francisco, California 94104. 2. Defendants John Does 1-10 are individuals and entities who participated in the scheme described herein to defraud consumers by using fictitious WELLS FARGO letterhead, trademarks and other information. JURISDICTION AND VENUE 3. This is an action for infringement of federally registered trademarks and federal unfair competition arising under the Lanham Act, 15 U.S.C. 1114 and 1125, et seq, for violation of the Racketeer Influenced and Corrupt Organization Act ( RICO ) under 18 U.S.C. 1962, et seq, and for acts which constitute deceptive trade practices and consumer fraud in
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 2 of 14 violation of the Minnesota Deceptive Trade Practices Act, Minn. Stat. 325D.44 and the Minnesota Consumer Fraud Act, Minn. Stat. 325 F.69, et seq. 4. This Court has original jurisdiction over this action under 28 U.S.C. 1331, 1338(a) and 1338 (b) and supplemental jurisdiction over the state law counts. Venue is proper in this district pursuant to 1391(b). All claims associated herein arise out of the same case of facts. GENERAL ALLEGATIONS 5. Wells Fargo is, and for decades has been, engaged in providing quality banking and financial services to the public under numerous well-known service marks, trade names, and trademarks, including but not limited to, the famous WELLS FARGO mark. 6. Wells Fargo is the registered owner of the mark WELLS FARGO. The WELLS FARGO mark is registered with the United States Patent and Trademark Office as Registration Nos. 779,187; 891,203; 1,131,103; 1,136,497; 1,138,966; 1,167,626; 1,181,279; 1,274,680; 2,555,996; 2,555,997; 2,561,807; 2,597,836; 2,617,850; 2,688,407; 2,694,042; 2,800,535; 2,808,874; 2,810,815; 2,810,816; and 3,626,451 for a wide variety of goods and services. The WELLS FARGO mark has been continuously used since the dates stated in the registrations. True and correct copies of Plaintiff s WELLS FARGO registrations are attached hereto as Exhibit A. Each of these registrations is valid and enforceable. Pursuant to 15 U.S.C. 1065, Wells Fargo s rights in these registrations are incontestable. 7. Wells Fargo is the registered owner of the red and gold WELLS FARGO box logo which is registered with the United States Patent and Trademark Office as Registration Nos. 2,526,696; 2,680,835; 2,680,854; 2,683,387; 2,690,610; 2,690,612; 2,697,633; 2,802,581; 2,810,817; 2,810,818; 2,810,819; and which has been used continuously since the dates stated in 2
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 3 of 14 each registration. True and correct copies of these registrations are attached hereto as Exhibit B. Pursuant to 15 U.S.C. 1065, Wells Fargo s rights in many of these registrations are incontestable. 8. The WELLS FARGO mark and the WELLS FARGO box logo are known throughout the United States as identifying Wells Fargo as a source of, inter alia, quality banking and financial services. Wells Fargo spends millions of dollars each year on advertising featuring its marks. 9. The WELLS FARGO mark and the WELLS FARGO box logo are of great and incalculable value to Wells Fargo, are highly distinctive and arbitrary, and have become associated in the public mind with, inter alia, banking and financial products and services of the highest quality and reputation originating with Wells Fargo. 10. Wells Fargo s extensive use in interstate commerce of the WELLS FARGO mark and the WELLS FARGO box logo in the United States has caused the public and members of the banking and financial services trade to associate goods and services bearing the WELLS FARGO mark and the WELLS FARGO box logo with Wells Fargo and Wells Fargo alone. 11. Wells Fargo closely controls the use and reproduction of its WELLS FARGO mark and the WELLS FARGO box logo to ensure that all of its current and potential customers can rely upon those marks as signifying quality, inter alia, banking and financial services. 12. Wells Fargo s substantial investment in and use of its marks has helped Wells Fargo to realize substantial revenue from its banking and financial services business. 3
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 4 of 14 DEFENDANTS ILLEGAL ACTIONS 13. In 2009, after the WELLS FARGO marks had been prominently used and promoted, Wells Fargo received complaints regarding a false and misleading funds verification letter, which on its face, appears to originate from Plaintiff Wells Fargo. A true and correct copy of this letter is attached hereto as Exhibit C. Wells Fargo did not create or mail this letter, nor did any individual or entity have authority to do so. 14. Exhibit C purports to originate from an actual Wells Fargo branch manager, Tigran Sargisya, contains a false and misleading phone number that purports to be Tigran Sargisya s business line, and is stamped with a false and misleading seal that purports to be a Wells Fargo seal. Tigran Sargisya is an employee of Wells Fargo but did not authorize the use of her name on the letter. Wells Fargo did not create the seal, nor did it authorize any individual or entity to use the same. 15. Subsequent investigation by Wells Fargo revealed that phone number listed on Exhibit C is a working phone number. When dialed, the message plays Wells Fargo music, states the name of Tigran Sargisya and asks that you leave a message. The voice is not that of a Wells Fargo employee or of Tigran Sargisya. Investigation also revealed that the number is a personal cell phone number. 16. On October 30, 2009, counsel for Wells Fargo sent correspondence to the service provider for the cell phone number listed on Exhibit C, Reachme.com, disclosing the fraudulent use of the cell phone number, and seeking suspension of the cell phone number and disclosure of the identity of the individual or entity who purchased the cell phone contract. To date, Reachme.com has refused to either suspend the cell phone number or to disclose the identity or 4
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 5 of 14 address of the individual or entity that purchased the cell phone contract without compensation for the disclosure. 17. In March 2010, an individual presented a letter which purported to be a Bank Proof of Funds Letter, to a Wells Fargo branch bank located in Detroit Lakes, Minnesota seeking verification of the Wells Fargo account number stated in the letter. A copy of the Bank Proof of Funds Letter is attached as Exhibit D. Also presented with the Bank Proof of Funds Letter was a second letter which purportedly originated from a Panamanian corporation, which states that Wells Fargo is authorized to verify funds in its Wells Fargo account, referencing the same Wells Fargo account number stated on the Exhibit D. A copy of the purported Panamanian letter is attached as Exhibit E. 18. Exhibit D also purports to originate from an actual Wells Fargo branch manager, Tigran Sargisya, contains a false and misleading phone number that purports to be Tigran Sargisya s business line, and is stamped with a false and misleading seal that purports to be a Wells Fargo seal. Tigran Sargisya did not authorize the use of her name on the letter, and Wells Fargo did not create the seal, nor did it authorize any individual or entity to use the same. 19. Upon information and belief, Defendants use of the documents contained in Exhibit C and Exhibit D is part of a scheme to defraud individuals and entities seeking financing for commercial projects or to invest in such projects. Defendants use documents such as those attached as Exhibits C and D to convince investors that Defendants have large funds available for financing and/or investing. The accounts described, and the funds stated to reside in said accounts, are entirely fictitious. 20. All statements and uses of Wells Fargo trademarks, including the WELLS FARGO mark and the WELLS FARGO box logo, are made without the approval of Plaintiff 5
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 6 of 14 and are designed to intentionally deceive the public as to the relationship between Plaintiff and Defendants. 21. Defendants have no affiliation, association or connection whatsoever with Plaintiff. Plaintiff does not sponsor, approve or authorize any of Defendants use of the WELLS FARGO mark or the WELLS FARGO box logo. The letters attached as Exhibits C and D do not originate from Wells Fargo or any affiliate of Wells Fargo. 22. Defendants use of the WELLS FARGO mark and the WELLS FARGO box logo is likely to, and is intended to, cause confusion, mistake or deception as to Defendants affiliation with Wells Fargo. 23. Defendants unauthorized use of the WELLS FARGO mark and the WELLS FARGO box logo has caused and is causing Plaintiff irreparable harm. It is impossible to know how many persons have been confused, mislead and deceived by Defendants unauthorized use of the WELLS FARGO mark and the WELLS FARGO box logo, or who have been deceived to believe that Plaintiff authorized, sponsored or approved of Defendants use of the same, or that Defendant or its business is affiliated or connected in any way with Plaintiff. 24. Defendants unauthorized use of the WELLS FARGO mark and the WELLS FARGO box logo caused and continues to cause irreparable damage to the reputation and goodwill of Plaintiff, which has no control over Defendants activities. 25. Actual confusion has occurred as a result of Defendants actions. 26. Defendants have engaged in the conduct described above willfully, intentionally, knowingly, maliciously, wantonly, oppressively and in reckless disregard of the obvious and inevitable injurious consequences of their conduct. Defendants have a bad-faith intent to trade on and profit from Plaintiff s goodwill and reputation and to confuse and mislead the public. 6
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 7 of 14 FIRST CLAIM FOR RELIEF Violation of Lanham Act for Intentional Infringement, 15 U.S.C. 1114(1) 27. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 26. 28. Plaintiff is informed and believes that Defendants willfully, knowingly and intentionally used in interstate commerce the WELLS FARGO mark without Plaintiff s consent or authorization. 29. Defendants infringement of the WELLS FARGO mark is likely to cause confusion, or to cause mistake, or to deceive the consuming public in violation of Section 32 of the Lanham Act (15 U.S.C. 1114(1)). 30. Defendants unlawful acts have caused and continue to cause Plaintiff to suffer damages, including irreparable injury to Plaintiff s business reputation, goodwill and to the integrity of their marks. 31. Plaintiff s remedies at law cannot adequately compensate it for the ongoing injuries threatened by Defendants continuing conduct. Unless Defendants are restrained and enjoined, Defendants will continue to commit unlawful acts, causing Plaintiff to suffer further irreparable injury. 32. Because Defendants infringement is intentional, Plaintiff is entitled to treble damages and reasonable attorneys fees under 15 U.S.C. 1117. SECOND CLAIM FOR RELIEF Violation of Lanham Act for Intentional Infringement, 15 U.S.C. 1114(1) 33. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 32. 7
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 8 of 14 34. Plaintiff is informed and believes that Defendants willfully, knowingly, and intentionally used in interstate commerce the WELLS FARGO box logo without Plaintiff s consent or authorization. 35. Defendants infringement of the WELLS FARGO box logo is likely to cause confusion, or to cause mistake, or to deceive the consuming public in violation of Section 32 of the Lanham Act (15 U.S.C. 1114(1)). 36. Defendants unlawful acts have caused and continue to cause Plaintiff to suffer damages, including irreparable injury to Plaintiff s business reputation, goodwill and to the integrity of their marks. 37. Plaintiff s remedies at law cannot adequately compensate it for the ongoing injuries threatened by Defendants continuing conduct. Unless Defendants are restrained and enjoined, Defendants will continue to commit unlawful acts, causing Plaintiff to suffer further irreparable injury. 38. Because Defendants infringement is intentional, Plaintiff is entitled to treble damages and reasonable attorneys fees under 15 U.S.C. 1117. THIRD CLAIM FOR RELIEF Violation of Lanham Act for False Designation of Origin, 15 U.S.C. 1125(a) 39. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 38. 40. Defendants acts constitute false designation of origin, source or sponsorship and false or misleading descriptions and representations in violation of Section 43 of the Lanham Act (15 U.S.C. 1125(a)). Such acts by Defendants were knowing, willful and intentional. 8
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 9 of 14 41. Because Defendants infringement is intentional, Plaintiff is entitled to treble damages and reasonable attorneys fees under 15 U.S.C. 1117. FOURTH CLAIM FOR RELIEF RICO Claim - Violation of 18 U.S.C. 1961 et seq. 42. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 41. 43. Defendants constitute an enterprise engaging in racketeering activity in violation of 18 U.S.C. 1961 et seq. Defendants have unlawfully engaged in at least two acts of racketeering activity in interstate commerce the following conduct of such enterprises affairs through a pattern of racketeering activity including, but not limited to, wire fraud, mail fraud and bank fraud in violation of 18 U.S.C. 1341, 1343 and 1344 to support a fraudulent scheme to induce consumers to make payments by wire transfer to Defendants for services Defendants do not in fact provide. 44. Wells Fargo was injured by reason of, and as a direct and proximate result of, Defendants fraudulent actions, in that Defendants use of the WELLS FARGO mark and the WELLS FARGO box logo in a manner that has caused, and will continue to cause, a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the respective products and services of Defendants by Plaintiff. FIFTH CLAIM FOR RELIEF Violation of Minnesota Deceptive Trade Practices Act Minn. Stat. 325D.44 45. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 44. 9
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 10 of 14 46. Defendants have, in the course of their business, used the WELLS FARGO mark and the WELLS FARGO box logo in a manner that has caused, and will continue to cause, a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the respective products and services of Defendants by Plaintiff. Defendants use of the WELLS FARGO mark and the WELLS FARGO box logo is likely to cause damage to Plaintiff. Defendants have and are therefore engaged in deceptive trade practices within the meaning of Minn. Stat. 325D.43, et seq. 47. Plaintiff is entitled to an injunction pursuant to Minn. Stat. 325D.45, subd. 1. 48. Because Defendants have willfully engaged in the described deceptive trade practices knowing them to be deceptive, Plaintiff is entitled to its reasonable attorneys fees pursuant to Minn. Stat. 325D.45, subd. 2. SIXTH CLAIM FOR RELIEF Violation of Minnesota Consumer Fraud Act Minn. Stat. 325F.69 49. Plaintiff re-alleges and incorporates by reference the allegations set forth above in paragraphs 1 through 48. 50. The Minnesota Consumer Fraud Act provides, in pertinent part, as follows: The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been mislead, deceived or damaged thereby, is enjoinable as provided herein. Minn. Stat. 325F.69, subd. 1. 51. Defendants have, in the course of their business, used the WELLS FARGO mark and the WELLS FARGO box logo in a manner that has caused, and will continue to 10
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 11 of 14 cause, a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of the services of Defendants. 52. Defendants use of the WELLS FARGO mark and the WELLS FARGO box logo was false, misleading, and deceptive. Plaintiff has not ratified or authorized Defendants use of the WELLS FARGO mark and the WELLS FARGO box logo. All statements made by Defendants on letters such as Exhibits C and Exhibit D are entirely false. 53. Minn. Stat. 8.31 provides the Minnesota Attorney General with broad statutory authority to investigate violations of law regarding unlawful practices barred by the Minnesota Consumer Fraud Act. 54. The Private Attorney General Statute provides that any person injured by a violation of the laws entrusted to the Attorney General to investigate and enforce, including the Minnesota Consumer Fraud Act, may recover damages, together with costs and reasonable attorneys fees. Minn. Stat. 8.31, subd. 3a. 55. Plaintiff has been injured as a result of Defendants violation of the Minnesota Consumer Fraud Act in that Defendants conduct has caused, and will continue to cause, a likelihood of confusion, mistake and deception as to the source, sponsorship, approval or certification of the services of Defendants. 56. Awarding Plaintiff its attorneys fees under the Minnesota Consumer Fraud Act will confer a public benefit in that Defendants are intentionally deceiving the public through the use of the WELLS FARGO mark and the WELLS FARGO box logo to defraud consumers. In exposing and prosecuting Defendants false and fraudulent conduct as a private attorney general, Plaintiff is serving the public interest. 57. Plaintiff is entitled to an injunction pursuant to Minn. Stat. 325F.70. 11
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 12 of 14 58. Plaintiff is entitled to recover its costs and disbursements herein, including reasonable attorneys fees that they have and will incur as a result of Defendants violation of the Minnesota Consumer Fraud Act. PRAYER FOR RELIEF WHEREFORE, Plaintiff Wells Fargo respectfully prays for judgment against Defendants as follows: A. That the Court grant preliminary and permanent injunctive relief against Defendants, their agents, servants, employees, attorneys, successors, licenses, and assigns, and anyone acting in concert or privity with Defendants, jointly and severally: (1) from using the WELLS FARGO mark and the WELLS FARGO box logo or any other similar term or terms likely to cause confusion therewith, in connection with the advertisement, marketing, distribution, sale or offer for sale of their goods and/or services; (2) from unfairly competing with Wells Fargo; (3) from using any other trademark, service mark, trade name, corporate name, word or symbol or doing any other acts likely to induce the belief that Defendants commercial activities, products, services or business, are Plaintiff s commercial activities, products, services or business or that Defendants are in any way authorized or sponsored by or connected, endorsed, or associated with Plaintiff or with Plaintiff s commercial activities, products, services or business; and (4) with such injunction including a provision directing Defendants to file with the Court and serve on Plaintiff within thirty (30) days after the service on Defendants 12
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 13 of 14 of such injunction a report in writing under oath setting forth in detail the manner and form in which Defendants have complied with the injunction; B. That the Court order Defendants to deliver to the Court for impoundment and destruction any and all solicitations, advertising, circulars, price lists, signs, banners, business stationery, prints, packages, labels, containers, freights, cartons, receptacles, wrappers, art work and other materials in their possession or custody or under their control that infringe Plaintiff s WELLS FARGO mark and the WELLS FARGO box logo and any other of Plaintiff s trademarks, service marks, or trade name; C. That the Court award treble damages to Wells Fargo, together with costs, interest and attorneys fees as permitted by 15 U.S.C. 1117(a); Minn. Stat. 325D.45, subd. 2; Minn. Stat. 325F.69, subd. 1; and 18 U.S.C. 1964; D. That the Court award Wells Fargo such sum or sums as the Court may find to be just pursuant to 15 U.S.C. 1117(a); E. That the Court award Wells Fargo its costs and attorneys fees in prosecuting this action; and F. That the Court award Wells Fargo such other relief as it deems just and proper. JURY DEMAND Plaintiff requests a jury trial for all issues so triable. 13
Case 0:10-cv-01142-MJD-FLN Document 1 Filed 04/06/10 Page 14 of 14 Date: April 6, 2010 BARNES & THORNBURG LLP By: s/ Felicia J. Boyd Felicia J. Boyd, MN #186168 Laura N. Maupin, MN #324942 100 South Fifth Street, Suite 1100 Minneapolis, MN 55402 Tel.: (612) 333-2111 Fax: (612) 333-6798 ATTORNEYS FOR PLAINTIFF WELLS FARGO & COMPANY MIDS01 FBOYD 600024v1 14
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