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Advanced Baseball Academy v. Google.pdf

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ADVANCED BASEBALL ACADEMY, LLC ) ) Plaintiff, ) ) v. ) Civil Action No. ) GOOGLE, INC. ) ) and ) ) ALI SEELING, an individual d/b/a ) GOLDGLOVEKC d/b/a GOLD GLOVE ) BASEBALL AND SOFTBALL ACADEMY ) ) and ) ) CHAD ANDERSON, an individual d/b/a ) GOLD GLOVE BASEBALL AND ) SOFTBALL ) ) and )
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    1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ADVANCED BASEBALL ACADEMY, LLC )   ) Plaintiff,  ) ) v. ) Civil Action No. ) GOOGLE, INC. ) ) and  ) ) ALI SEELING, an individual d/b/a ) GOLDGLOVEKC d/b/a GOLD GLOVE ) BASEBALL AND SOFTBALL ACADEMY )   ) and ) ) CHAD ANDERSON, an individual d/b/a  ) GOLD GLOVE BASEBALL AND ) SOFTBALL  ) ) and ) ) GOLD LINE APPAREL LLC  ) ) Defendants.  ) FIRST AMENDED COMPLAINT COMES NOW PLAINTIFF, Advanced Baseball Academy, LLC (“ABA”), for its First Amended Complaint against Google, Inc., Ali Seeling d/b/a GoldGloveKC d/b/a Gold Glove Baseball and Softball Academy, Chad Anderson d/b/a Gold Glove Baseball and Softball, and Gold Line Apparel LLC and alleges as follows: JURISDICTION AND VENUE  1.   Plaintiff ABA is a Kansas limited liability company having its principal place of Case 2:14-cv-02461-CM-GLR Document 7 Filed 10/22/14 Page 1 of 19    2business in Paola, Kansas. 2.   Upon information and belief, Google, Inc. (“Google”) is a Delaware corporation with a principal place of business at 1600 Amphitheatre Parkway, Mountain View, CA, 94043. 3.   Upon information and belief, Google is engaged in the business of providing Internet Services to customers through the world including within this judicial district. 4.   Upon information and belief, Ali Seeling (“Seeling”) is an individual doing business under Gold Glove Baseball and Softball Academy located at 15585 S. Keeler, Olathe, KS, 66062. 5.   Upon information and belief, Chad Anderson (“Anderson”) is an individual doing business under Gold Glove Baseball and Softball located at 15585 S. Keeler, Olathe, KS, 66062. 6.   Upon information and belief, Gold Line Apparel LLC (“GLA”) is a Kansas limited liability company with a principal place of business at 640 N. Pine Cir, Gardner, KS 66030. 7.   Upon information and belief, GLA is engaged in the business of designing, producing, and selling apparel within this judicial district. 8.   This is an action for trademark infringement, false designation of srcin, and unfair competition, arising under the Lanham Act, 15 U.S.C. § 1125, the statutory and common law of the State of Kansas and for copyright infringement under 17 U.S.C. § 501 et seq . 9.   This Court has jurisdiction on over the subject matter of the complaint pursuant to 15 U.S.C. § 1121, 28 U.S.C § 1331 and over the unfair competition cause of action under 28 U.S.C. § 1138(b) and 28 U.S.C. § 1367. 10.   Furthermore, this Court has pendant jurisdiction of the common law trademark Case 2:14-cv-02461-CM-GLR Document 7 Filed 10/22/14 Page 2 of 19    3infringement claims pursuant to 28 U.S.C. § 1338(b) since this claim is joined with substantial and related claims under the Lanham Act and Copyright laws. 11.   Upon information and belief, this Court has personal jurisdiction over Seeling and Anderson as they reside and conduct business throughout the State of Kansas, both of which are residents within this jurisdiction. Additionally, this Court has personal jurisdiction over GLA and Google as they conduct business throughout the state of Kansas, which is within this jurisdiction. Venue is proper in this district pursuant to 28 U.S.C. § 1391 & 1400 because Defendants’ conduct business within the judicial district, they or their agents or affiliates can be found in this judicial district and acts giving rise to this complaint are believed to have occurred within this judicial district. FACTS COMMON TO ALL COUNTS ABA’s Background 12.   ABA operates a baseball and softball coaching and training facility under the name Gold Glove Boot Camp and maintains a website located at the URL www.goldglovebootcamp.com for the promotion and sale of training camps. A screen shot is attached as Exhibit C. ABA’s coaches have spent over two decades providing baseball and softball services, namely, camps and individual athlete and team coaching services. ABA’s coaches are considered to be some of the best in the state of Kansas and are often sought after by individuals and teams looking for someone with baseball and softball expertise, who can provide baseball and softball camps and coaching services. ABA’s baseball and softball camps and coaching services constitute a substantial and important part of ABA’s business. 13.   ABA actively and prominently promotes its services in Kansas and Missouri Case 2:14-cv-02461-CM-GLR Document 7 Filed 10/22/14 Page 3 of 19    4using a stylized “Double G” mark in its advertisements, including, but not limited to, online advertisements, print advertisements and business cards. 14.   ABA actively and prominently promotes its services in Kansas using the term GOLD GLOVE BOOT CAMP which serves as a word mark (“ABA WORD MARK”). ABA began using the ABA WORD MARK at least as early as 2012. 15.   ABA’s stylized mark serves as its logo in its advertising and promotional materials. ABA’s logo is unique and distinctive logo formed with a pair of mirrored G’s using a  yellow color (“ABA LOGO MARK”). ABA actively and prominently promotes its services in Kansas and Missouri using its distinctive logo. 16.   ABA has used the ABA WORD MARK substantially and continuously prior to use by Seeling, Anderson, and GLA. ABA has expended substantial amounts of money promoting the ABA WORD MARK and as such, the ABA WORD MARK serves to identify ABA as the source of services bearing the marks. 17.   The ABA WORD MARK serves as its common law trademark in its advertising and promotional materials. ABA actively and prominently promotes its services in Kansas and throughout the U.S. using its word mark. 18.   ABA has used the ABA LOGO MARK substantially and continuously prior to use by Seeling, Anderson, and GLA. ABA has expended substantial amounts of money promoting the ABA LOGO MARK and as such, the ABA LOGO MARK serves to identify ABA as the source of services bearing the marks. 19.   ABA has applied for a federal copyright registration for its artwork associated with the ABA LOGO MARK. A copy of the copyright application is attached as Exhibit A. 20.   ABA has a federal trademark application for its ABA LOGO MARK which was Case 2:14-cv-02461-CM-GLR Document 7 Filed 10/22/14 Page 4 of 19
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