Case :-cv-000-mhb Document Filed 0// Page of SHORALL McGOLDRICK BRINKMANN east missouri avenue phoenix, az 0-0.0.00 0.0. (fax) michaelmorgan@smbattorneys.com Michael D. Morgan, #0 Attorneys for Kyle Burns In the United States District Court for the District of Arizona 0 Kyle Burns, vs. Plaintiffs No. Complaint Connecting Open Time, LLC, and Godaddy.com, LLC., Defendants. 0 NATURE OF THE ACTION. This action seeks declaratory relief pursuant to U.S.C. ()(D)(v) to establish that Plaintiff s registration and use of the domain name opentime.com (hereinafter the Disputed Domain ) is not unlawful under the Anticybersquatting Consumer Protection Act ( ACPA ), U.S.C. (d). / / /
Case :-cv-000-mhb Document Filed 0// Page of 0 0 THE PARTIES. Plaintiff Kyle Burns is a United States of America citizen residing in Japan.. Upon information and belief, Defendant Connecting Open Time, LLC (hereinafter COT ) is a Texas limited liability company with a principal place of business at Shoreham Circle, Lewisville, TX 0.. Upon information and belief, Defendant GODADDY.COM, LLC (hereinafter GODADDY ) is a Delaware business entity with its principal place of business within this judicial district at N. Hayden Rd., Suite, Scottsdale, AZ 0. Upon further information and belief, GODADDY is the world s largest domain name registrar. JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this action pursuant to U.S.C., U.S.C. ()(D)(v), and U.S.C. 0 that Plaintiff s registration and use of the Disputed Domain is not unlawful under the Anticybersquatting Consumer Protection Act (ACPA), U.S.C. (d).. This Court has personal jurisdiction over Defendant COT as a result of Defendant s initiation of an administrative proceeding against the Disputed Domain pursuant with the Uniform Domain-Name Resolution Policy ( UDRP ). / / /
Case :-cv-000-mhb Document Filed 0// Page of 0 0. Venue is proper in this District under U.S.C. (b) (). A substantial part of the property that is subject of this action is situated in this District. Moreover, venue is proper in this district because Defendant s COT s voluntary submission to this Court s jurisdiction when Defendant COT filed a complaint with the World Intellectual Property Organization (WIPO) dispute resolution service concerning Plaintiff s registration of the Disputed Domain.. The Disputed Domain has its situs in this District within the meaning of U.S.C. (d)()(c). The registrar for the Disputed Domain is Defendant GODADDY, which is not only headquartered in this District, but upon information and belief also has additional business locations in this District. FACTS COMMON TO ALL CLAIMS FOR RELIEF. Plaintiff is a technology entrepreneur with multiple technology ventures, including software services and products, and is the owner of the OPEN TIME software platform and service. Plaintiff has spent considerable time and resources developing his OPEN TIME software platform and service and the associated Intellectual Property. 0. Plaintiff has treated its OPEN TIME software platform and service and associated Intellectual Property, including the Disputed Domain, as valuable assets. Plaintiff s development of OPEN TIME and the acquisition of the Disputed Domain with its OPEN TIME software is not an effort to resell the domain for
Case :-cv-000-mhb Document Filed 0// Page of 0 0 profit or obtain or exercise any sort of leverage or advantage over another business or individual.. Plaintiff, a resident of Japan, owns a Japanese Trademark Registration for the mark OPEN TIME covering classes,,,, and. The OPEN TIME mark was registered on October, 0 with registration number.. Plaintiff also sought international registration of the mark with WIPO. Plaintiff s OPEN TIME mark was registered with WIPO on September 0, 0 and Plaintiff has applied for protection of the mark in the following countries/regions: Australia, Benelux, Switzerland, China, Columbia, Cuba, the European Community, Georgia, Israel, India, Iceland, Republic of Korea, Liechtenstein, Mongolia, Mexico, Norway, New Zealand, the African Intellectual Property Organization, Philippines, Russian Federation, Singapore, Saint Maarten (Dutch part), Turkmenistan, Tunisia, Turkey, Ukraine, United States of America, Uzbekistan, and Viet Nam.. On November, 0, Defendant COT submitted a complaint with WIPO and initiated an administrative proceeding regarding Plaintiff s registration of the Disputed Domain and sought an order to transfer the ownership rights of the Disputed Domain to Defendant COT.. The WIPO proceeding, Connecting Open Time, LLC v. Kyle Burns, Case No. D0- (WIPO February, 0) was decided on February, 0.
Case :-cv-000-mhb Document Filed 0// Page of 0 0 A WIPO arbitrator issued a decision directing transfer of the Disputed Domain to Defendant COT.. In accordance with the Internet Corporation for Assigned Names and Numbers (ICANN) Policy, Plaintiff provided notice to Defendant COT that a lawsuit would be commenced against Defendant COT concerning registration of the Disputed Domain name within a ten-day period.. Plaintiff has no current plans to sell the Disputed Domain. Plaintiff s acquisition and registration of Disputed Domain was part of Plaintiff s good faith business operations and plans related to its OPEN TIME mark and associated products. COUNT ONE Declaration Under Anticybersquatting Consumer Protection Act. Plaintiff realleges and incorporates paragraphs - above.. In registering the Disputed Domain, Plaintiff did not have a bad faith intent, as provided in U.S.C. (d)()(a)(i), to profit from any mark alleged to be owned by Defendant COT.. In registering the Disputed Domain, Plaintiff did not have the intent, as provided in U.S.C. (d)()(b), to divert consumers from Defendants online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to
Case :-cv-000-mhb Document Filed 0// Page of 0 0 tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site. 0. In registering the Disputed Domain, and at no time since registration, has Plaintiff offered to transfer, sell, or otherwise assign opentime.com to Defendants or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, nor is there prior conduct by Plaintiff indicating a pattern of such conduct.. In registering the Disputed Domain, Plaintiff did not provide material and misleading false contact information when applying for registration of that domain name, has not intentionally failed to maintain accurate contact information, nor is there prior conduct by Plaintiff indicating a pattern of such conduct.. Plaintiff has not registered or acquired multiple domain names that it knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties.. Plaintiff has not registered, trafficked in, or used a domain name that at the time the Disputed Domain was registered was identical or confusingly similar to any mark alleged to be owned by Defendant COT.
Case :-cv-000-mhb Document Filed 0// Page of 0. Plaintiff believed and had reasonable grounds to believe that its registration of the Disputed Domain was lawful.. As required by U.S.C. ()(D), Plaintiff has given notice to Defendants of its intent to file an action to establish that Plaintiff's registration and use of the Disputed Domain is not unlawful under the ACPA. COUNT TWO Declaratory Judgment. Plaintiff realleges and incorporates paragraphs - above.. A dispute exists between Plaintiff and Defendants concerning Plaintiff s right to register and use the Disputed Domain. As a consequence of the dispute, an actual and justiciable controversy exists between Plaintiff and Defendants. PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that the Court enter judgment: 0 (a) (b) Declaring that Plaintiff s registration and use of the domain name opentime.com is not unlawful under the ACPA, U.S.C. (d); Declaring that Plaintiff s registration and use of the domain name opentime.com does not constitute a bad faith intent to profit from any mark alleged to be owned by Defendant COT under the ACPA, U.S.C. (d);
Case :-cv-000-mhb Document Filed 0// Page of (c) (d) (e) Declaring that Plaintiff is not required to transfer the registration for the domain name opentime.com to Defendant COT; Declaring that the Defendant Registrar GODADDY. COM LLC shall not transfer the registration for the domain name opentime.com to Defendant COT; and For such other and further relief as the Court shall deem appropriate. Dated March 0, 0. 0 Shorall McGoldrick Brinkmann By /s/ Michael Morgan Michael D. Morgan Attorneys for Plaintiff 0