Blind Bargains: Freedom Scientific Sues Enhanced Vision for Trademark Infringement, We've Got the Full Complaint

Details

Freedom Scientific has filed another lawsuit, this time against Enhanced Vision, makers of magnifying products. In summary, Freedom Scientific aledges that Enhanced Vision has wrongfully used their name to profit from their business, for instance, by buying the Freedom Scientific keywords on advertising platforms and linking to the Enhanced Vision website. Enhanced Vision has also used Freedom Scientific in their metatags, which are often used by search engines. We've obtained the full text of the complaint, which was converted into a text format. Some minor errors may exist, as we did not proofread the OCR output. Below is the full complaint.

UNITED STATES DISTRICT COURT



MIDDLE DISTRICT OF FLORIDA



TAMPA DIVISION



FREEDOM SCIENTIFIC, INC., a Delaware corporation,



Plaintiff,



vs.



ENHANCED VISION SYSTEMS, INC., a California corporation,



Defendant.



CASE NO.:



COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL



Plaintiff, Freedom Scientific, Inc. (the "Plaintiff), sues Defendant, Enhanced



Vision Systems, Inc. (the "Defendant"), and for its causes of action states as follows:



PARTIES, JURISDICTION AND VENUE



1.         This is an action for trademark infringement against Defendant for: (a) infringement of a federally registered mark under 15 U.S.C. §1114(1); (b) infringement of a common law trademark; and (c) unfair competition under 15 U.S.C. §1125. The Court has jurisdiction over this action under 15 U.S.C. §1121 and 28 U.S.C. §1338(a).



2.         The Plaintiff is a Delaware corporation with its principal place of business at 11800 31st Court North, in St. Petersburg, Florida 33716.



3.         The Defendant is a California corporation, with an address of 5882 Machine Drive, Huntington Beach, California 92649 and is doing business in Florida via one or more authorized resellers.



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4.         The Defendant is selling and offering for sale and advertising products in a manner that infringes on Plaintiffs federally-registered trademark and has caused those products to be distributed in the Middle District of Florida, which use is a false designation of origin. The Defendant is accordingly subject to the personal jurisdiction of this Court and this litigation arises out of or relates to the substantial contacts the Defendant has with this state and district.



5.         Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. § 1391(b)(2) and 1391(c) because the Defendant is subject to personal jurisdiction in the Middle District of Florida and therefore is deemed to reside here for venue purposes.



COMMON ALLEGATIONS



6.         Beginning on May 15, 2000, the Plaintiff adopted the mark "Freedom Scientific" and shortly thereafter used it in interstate commerce for the sale of certain products tailored to blind and low-vision users, including software that translates the Internet and digital information into Braille or audible synthesized speech.



7.         On April 25, 2000, the Plaintiff filed an application for registration of said mark in the United States Patent and Trademark Office.



8.         On December 18, 2001, said mark was registered in the United States Patent and Trademark Office on the Principal Register under the Act of 1946 covering the use of said mark with the sale of certain products tailored to blind and low-vision users, including software that translates the Internet and digital information into Braille or audible synthesized speech, and reading machines for the blind and visually impaired. A



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true and correct copy of the registration is attached hereto as Exhibit "A."  Said registration is now outstanding and valid.



9.         The Plaintiff has filed with the United States Patent and Trademark Office an affidavit of use of said mark as required by 15 U.S.C. § 1058(a), and said registration is presently valid.



10.       The validity of the registered mark and of the registration of the mark, registrant's ownership of the mark, and the Plaintiffs exclusive right to use said registered mark in commerce for the above mentioned goods are incontestable under 15 U.S.C. §1065 and 15 U.S.C. §1115(b), as the Plaintiff has filed the required affidavit with the Commissioner of Patents and Trademarks.



11.       Continuously since May 15, 2000, the Plaintiff has used the mark "Freedom Scientific" to identify its products tailored to blind and low-vision users, including software that translates the Internet and digital information into Braille or audible synthesized speech, and reading machines for the blind and visually impaired, and to distinguish these products from those made or sold by others, by, among other things, prominently displaying the mark "Freedom Scientific" on the products, their containers, the displays, and marketing associated therewith. In addition, the Plaintiff has prominently displayed said mark on various forms of advertising distributed throughout the United States.



12.       The Defendant has infringed the Plaintiffs mark in interstate commerce by using "FreedomScientific," and/or "FreedomScientific.com" on its internet landing page. See Exhibit B.



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13.       The Defendant has also purchased "FreedomScientific," and/or "FreedomScientific.com" as a keyword, whereby consumers searching for Freedom Scientific and its products are presented with a sponsored advertisement and a link to Defendant's website. See Exhibit C. Said use of said name and mark by the Defendant is without permission or authority of the Plaintiff and said use by the Defendant is likely to cause confusion, to cause mistake, and to deceive.



14.       All conditions precedent to this action have occurred or have been waived by the Defendant.



COUNT I - TRADEMARK INFRINGEMENT



15.       Plaintiff repeats and realleges the allegations set forth in Paragraphs 1-14.



16.       The Defendant's heretofore alleged acts of trademark infringement have been committed with the intent to cause confusion, mistake, and to deceive.



17.        Since on or about December 18, 2001, the Plaintiff has given notice that its mark is registered in the United States Patent and Trademark Office by displaying the mark as used with the letter R enclosed within a circle.



18.       By reason of the Defendant's acts herein, the Plaintiff has and will suffer damage to its business, reputation, and good will, and the loss of sales the Plaintiff would have made but for the Defendant's acts.



19.       The Defendant threatens to continue to do the actions complained of herein, and unless restrained and enjoined, will continue to do so, all to the Plaintiffs irreparable damage. It would be difficult to ascertain the amount of compensation which



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could afford the Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial proceedings would be required.



20. The Plaintiffs remedy at law is not adequate to compensate it for the injuries threatened.



WHEREFORE the Plaintiff prays:



(a)        That this Court grant a preliminary and permanent injunction pursuant to the powers granted it under 15 U.S.C. §1116, enjoining and restraining the Defendant and its agents, servants, and employees from directly or indirectly using the mark, "Freedom Scientific," on any marketing materials, websites, any internet landing pages, or as a metatag or other keyword to be indexed by an internet search engine, because such use is likely to cause confusion, mistake, or to deceive;



(b)        That this Court, pursuant to the powers granted it under 15U.S.C. §1118, order that all marketing materials, websites, or any internet landing pages, and other materials in the possession of the Defendant bearing the mark "Freedom Scientific" shall be delivered up, altered, and/or destroyed;



(c)        That this Court award the Plaintiff treble the amount of actual damages suffered by the Plaintiff;



(d)        That the costs of this action be awarded to the Plaintiff;



(e)        That this is an exceptional case and that the Plaintiff be awarded its reasonable attorneys' fees; and



(f)        That this Court grant such other and further relief as it shall deem just.



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COUNT II - COMMON LAW TRADEMARK INFRINGEMENT



21.       Plaintiff repeats and realleges the allegations set forth in Paragraphs 1-14.



22.       Plaintiff has generated common law trademark rights through the continuous use and adoption of the mark "Freedom Scientific" to identify products tailored to blind and low-vision users, including software that translates the Internet and digital information into Braille or audible synthesized speech and reading machines for the blind and visually impaired.



23.       Plaintiff uses the "Freedom Scientific" mark to distinguish its products from those made or sold by others, by, among other things, prominently displaying the mark "Freedom Scientific" on the products, their containers, the displays, and marketing associated therewith.



24.       In competition with Plaintiff and in the same trade area, Defendant's use of Plaintiffs mark, "Freedom Scientific," has occurred in a manner that is likely to cause confusion as to the source of the goods among a significant number of persons using ordinary care and prudence in the purchase of goods.



25.       The infringing acts of Defendant, as heretofore alleged, have been without the consent of Plaintiff.



WHEREFORE the Plaintiff prays:



(a) That this Court grant a preliminary and permanent injunction enjoining and restraining the Defendant and its agents, servants, and employees from directly or indirectly using the mark, "Freedom Scientific," on any marketing materials, websites, or any internet landing pages, or as a



6



metatag or other keyword to be indexed by an internet search engine, because such use is likely to cause confusion, mistake, or to deceive;



(b)        That this Court order that all marketing materials, websites, or any internet landing pages, and other materials in the possession of the Defendant bearing the mark "Freedom Scientific" shall be delivered up, altered, or destroyed;



(c)        That the costs of this action be awarded to the Plaintiff;



(d)        That Plaintiff be awarded its reasonable attorneys' fees; and



(e)        That this Court grant such other and further relief as it shall deem just. COUNT m-FALSE DESIGNATION OF ORIGIN UNDER THE LANHAM ACT



26.       Plaintiff repeats and realleges the allegations set forth in Paragraphs 1-14.



27.       The Defendant has caused goods to enter into interstate commerce through the use of Plaintiff s mark, "Freedom Scientific," connected therewith.



28.        Said use of "Freedom Scientific" by Defendants is a false designation of origin which is likely to cause confusion, to cause mistake and to deceive as to the affiliation, connection, or association of the Defendant with the Plaintiff as to the origin, sponsorship, or approval of such goods by the Plaintiff.



29.       In fact, said use by the Defendant has caused actual confusion, mistake, and deception. These acts are in violation of 15 U.S.C. § 1125(a), in that the Defendant has used in connection with goods a false designation of origin, a false or misleading description and representation of fact which is likely to cause confusion, and to cause mistake, and to deceive as to the affiliation, connection, or association of the Defendant



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with the Plaintiff and as to the origin, sponsorship, and approval of the Defendant's goods and commercial activities by the Plaintiff.



30.        Said use by the Defendant has caused actual confusion, mistake, and deception.



31.       By reason of the Defendant's acts herein, the Plaintiff has and will suffer damage to its business, reputation, and good will, and the loss of sales the Plaintiff would have made but for the Defendant's acts.



32.       The Defendant threatens to continue to do the actions complained of herein, and unless restrained and enjoined, will continue to do so, all to the Plaintiffs irreparable damage. It would be difficult to ascertain the amount of compensation which could afford the Plaintiff adequate relief for such continuing acts, and a multiplicity of judicial proceedings would be required.



33.       The Plaintiffs remedy at law is not adequate to compensate it for the injuries threatened.



WHEREFORE the Plaintiff prays:



(a) That this Court grant a preliminary and permanent injunction enjoining and restraining the Defendant and its agents, servants, and employees from (1) directly or indirectly using the word "Freedom Scientific" or any other mark, word, or name similar to the Plaintiffs mark which is likely to cause confusion and (2) continuing any and all acts of unfair competition as herein alleged;



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(b)        That the Defendant be required to account to the Plaintiff for any and all profits derived by the Defendant from the sale of its goods and for all damages sustained by the Plaintiff by reason of said acts of unfair competition complained of herein;



(c)        That the costs of this action be awarded to the Plaintiff; and



(d)        That this Court grant such other and further relief as it shall deem just.



DEMAND FOR JURY TRIAL Plaintiff demands trial by jury on all issues so triable.



Respectfully submitted,



ichael J. Colitz, III Trial Counsel Florida Bar No. 0164348 Aaron Silberman Florida Bar No. 15722 Gray Robinson, P. A. 201 N. Franklin St., Suite 2200 Tampa, FL 33602 Tel: (813) 273-5000 Fax:(813)273-5145



Email: michael.colitz@gray-robinson.com Email: aaron.silberman@gray-robinson.com



# 1875548 v2



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EXHIBIT A



United States Patent and Trademark Office



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Typed Drawing



Word Mark     FREEDOM SCIENTIFIC



Goods and    IC 009. US 021 023 026 036 038. G & S: Computer access software for use in providing access to the Services        Internet by blind and low vision users; reading machines for the blind and visually impaired, namely, a device that includes a microprocessor which is programmed to convert stored digital information into audible synthesized speech; computer software for use in outputting the contents of the user's computer screen to an audio sound reproducer in the form of audible synthesized speech; reading machines for the blind and visually impaired, namely, a device that converts electronic books and digital text stored on CDs into synthesized speech; program controlled microprocessors for scanning written text and converting the scanned text into synthesized speech; magnification computer hardware and software for use in magnifying the size of text and images displayed on a computer monitor, for use by the visually impaired; computer software for use in altering the way the information on a computer screen is presented, for helping students with learning disabilities or remedial needs in reading, writing, studying, and comprehension; computer software and related hardware for the speech impaired, namely, computer hardware and software for converting icons from a touch screen, text from a keyboard, and text from a digital memory into synthesized speech; personal digital assistants and portable computers for the visually impaired, namely, personal digital assistants and portable computers having a Braille keyboard, and personal digital assistants and portable computers having a conventional keyboard input which produces output in the form of synthetic speech, Braille cell display, or computer text. Braille computer monitors; Braille computer printers and embossers; and Braille keyboards. FIRST USE: 20000515. FIRST USE IN COMMERCE: 20000524



(1) TYPED DRAWING



Mark



Drawing



Code



Serial



Number



Filing Date



Current Filing Basis



Original Filing Basis



Published



for



Opposition



Registration



78005468 April 25, 2000 1A



1B



September 25, 2001



Number



Registration Date



Owner



Assignment Recorded



Attorney of Record



Type of



Mark



Register



Affidavit Text



Live/Dead Indicator



2520226



December 18, 2001



(REGISTRANT) Freedom Scientific Inc. CORPORATION DELAWARE 11800 31st Court North St. Petersburg FLORIDA 337161805



ASSIGNMENT RECORDED



Debra D. Faulk



TRADEMARK



PRINCIPAL



SECT 15. SECT8(6-YR).



LIVE



\MQME \ SITE INDEXj SEARCH | eBUSINESS | HELP \ PRIVACY POLICY



EXHIBIT B






^ For yp close, reading, and distance viewing



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^ 17/?iror221lLCD



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magnification



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EXHIBIT C



Web   images  Videos  Maps   News  Shopping   Gmatl   more ▼                                         Search sellings j Sign m



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