complaint time warner smart home

8/6/2019 Complaint Time Warner Smart Home

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SUPERIOR COURTCIVIL ACTIONDOCKET NO.

STATE OF MAINEYORK, ss.

SMARTH OME SOLU TIONS, INC.)Plaintiffv.)T IME W A R N E R C A B L E L L C)Defendant) C O MP L A I N TNow comes the Plaintiff, SmartHome Solutions, Inc., by and throug,h undersignedcounsel, and complains against the Defendant, Time Wamer Cable LLC (hereinafter "TimeWamer") as follows:

Introduction1 .or the past 7 years, SmartHome Solutions, Inc. ("SmartHome") has beendevising and installing home entertainment, communication and automation systems in newconstruction and existing homes. Installation services include connecting homeowners to the

intemet and cable television. In or about 2007, SmartHome became a vendor/partner for TimeWarner, offering cable boxes and post-installation service for intemet and cable customers. InJune of 2011, SmartHome discovered that Time Warner pirated the name "Smart HomesSolutions" and used it to develop its own low-end installation plan for integrated home systems.Time Wamer created electronic and hard copy marketing materials, which it distributed toSmartHome's existing and prospective customers, calling itself "Smart Homes Solutions." TimeWamer cut off SmartHome's access to its email server thereby preventing SmartHome fromsending email to anyone in the "maine.rr.com " or "roadrunner.com" domains. Time Warnertraded on the brand recognition and good will established by SmartHome, and has unfairly

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Case 2:11-cv-00254-DBH Document 1-1 Filed 06/28/11 Page 1 of 11 PageID #: 5


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competed and engaged in deceptive trade practices by using SmartHome's exact name and bytaking action to prevent SmartHome from engaging in its business. SmartHome has suffered

irreparable harm and other damages. Injunctive relief should issue to prevent Time Warner frommarketing its services as Smart Homes Solutions.

The Parties2. SmartHome Solutions, Inc. is a corporation organized under the laws of the State

of Maine with a principle place of business in Kennebunk, York County, Maine.3. Time Warner, Inc. is a Delaware Corporation with a principal place of business in

New York, New York, doing business in the State of Maine under the name Time Warner Cable,with offices located at 118 Johnson Road in Portland, Maine.

Facts4. SmartHome is an electronic architect and system integrator, specializing in home

entertainment, communication and automation systems, with expertise in high-end technologyintegration design.

5. A copy of one of SmartHome's marketing brochures is attached hereto as ExhibitA .

6. Since its inception in 2003, SmartHome has invested hundreds of thousands ofdollars in branding and marketing including website and electronic marketing, customizedtrucks, magazine advertisements, direct mailing, and attendance at tradeshows.

7. SmartHome developed a significant client and refeffal base including high endcontractors and consumers throughout Maine from York to Penobscot County.

8. As part of its integrated installations, SmartHome offers cable and internetinstallation.

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9. In or about 2007, SmartHome contracted with Time Wamer as an "after seller"authorized to sell and service Time Wamer Cable boxes necessary for intemet access.

10. As part of its relationship with SmartHome, Time Wamer's marketing personnelfrequently inquired about SmartHome's product lines, services and marketing strategies in whatit claimed was an effort to better understand SmartHome's business plan.

11. On June 22, 2011, SmartHome discovered that any emails it sent to"maine.rr.com" or "roadrunner.com" customers were being bounced back by Time Wamer'sserver.

12. On June 22, 2011, SmartHome received an email from Time Wamer's marketingmanager, Shanna Alexander, advising that Time Wamer planned to launch a marketing anddirect mailing campaign advertising a service Time Warner called "Smart Home Solutions."

13. Ms. Alexander's email acknowledged the identical name of the services, statingas follows: "Hi guys, I know this might impact you because of its name. Please let me know."

14. SmartHome discovered that Time Warner's advertising and marketing campaignunder the name "Smart Home Solutions" offered the exact same service as SmartHomeSolutions, Inc.

15. On June 23, 2011, Time Warner sent a mass email, including to its customer JeffBinette, one of the principles of SmartHome, with the subject line "Smart Home Solutions. Just$33/month." It advertises "Time Wamer Cable Smart Home Solutions." A true copy of theemail is attached hereto as Exhibit B.

16. Time Wamer's website advertises Smart Home Solutions, including a statementthat says, "What You Get with Smart Home Solutions." At true copy of the web page is attachedhereto as Exhibit C.

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17. On June 23, 2011, one of SmartHome's customers who received the email fromTime Warner advertising (Exhibit B hereto) contacted SmartHome Vice President Jason Robie,asking SmartHome, "Is this you guys or are they using your name?"

Count I Violation of 10 M.R.S. 1212 (Maine Uniform Deceptive Trade Practices Act)18. Plaintiff repeats and realleges paragraphs 1-17 as if set forth fully herein.19. Time Warner is engaging in a deceptive trade practice by using the name "Smart

Homes Solutions" to pass off the name of its services as those of another, specificallySmartHome.

20. SmartHome's business focuses on providing exceptional, thorough customerservice as well as superior technical expertise, whereas Time Warner is a high-volume, low-costbusiness that cannot and does not provide the same level of service.

21. By using SmartHome's exact name, Time Warner is causing confusion inSmartHome's existing and prospective customer and referral base and deprive SmartHome of itsgood will and identity in the marketplace.

22. By using SmartHome's exact name, Time Warner is causing confusion in themarketplace and lead SmartHome's current and prospective customer and referral base to believethat SmartHome was bought out by Time Warner and no longer exists.

23. By using SmartHome's exact name, Time Warner is causing confusion in themarketplace and lead SmartHome's current and prospective customer and referral base to believethat SmartHome's services or of a lesser standard, quality or grade.

24. By using SmartHome's exact name, Time Wamer is causing confusion in themarketplace and leading SmartHome's current and prospective customer and referral base to beconfused over pricing and quality differences in the services offered by the two companies.

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2 5. By using SmartHome's exact name, Time Warner is creating a likelihood ofconfusion or misunderstanding in the marketplace, including with SmartHome's existing andpotential customer and referral base.

WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant andorder that Time Warner be prohibited from using the name Smart Home Solution for anypurpose and in any marketing or advertising material and that Time Warner be enjoined fromengaging in any activities that violate 10 M.R.S. 1212, and for costs, interest, attorneys fees andsuch other relief as the Court deems appropriate and just.

Count 11 Injunctive Relief26. Plaintiff repeats and realleges paragraphs 1-25 as if set forth fully herein.27. Time Warner is using the name "Smart Homes Solutions" to pass off the name of

its services as those of another, specifically SmartHome, a high end, well established provider ofexactly the same services that Time Warner now seeks to provide.

2 8. By using SmartHome's exact name, Time Warner is creating a likelihood ofconfusion or misunderstanding in the marketplace, including with SmartHome's existing andpotential customer and referral base.

29. On information and belief, Time Warner has shut down SmartHome's access toits email server, depriving SmartHome of the ability to email clients at the "maine.rr.com " or"roadrunner.com" addresses in order to prevent another entity from using the name "SmartHome Solutions."

3 0 Time Warner's actions are causing irreparable harrn to SmartHome in the form of,without limitation, lost business, lost business opportunities and lost good will.

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31. Injury to SmartHome outweighs whatever injury there may be to Time Wamer asa result of enjoining it from using the name Smart Home Solutions in connection with any

products, services, marketing and advertising materials.32. There is a substantial likelihood that SmartHome will succeed on the merits of

showing that Time Wamer has violated 10 M.R.S. 1212.W H E R E F O R E , Plaintiff prays that the Court enter judgment against the Defendant and

order that Time Wamer be prohibited from using the name Smart Home Solution for anypurpose and in any marketing or advertising material and that Time Wamer be enjoined fromengaging in any activities that violate 10 M.R.S. 1212 and for costs, interest, attomeys fees andsuch other relief as the Court deems appropriate and just.

Count Common Law Trademark Infringement33. Plaintiff repeats and realleges paragraphs 1-32 as if set forth fully herein.34. SmartHome has a protectable interest in a trademark or service mark called

"SmartHome Solutions."35. By using SmartHome's exact name, Time Wamer is creating a likelihood of

confusion or misunderstanding in the marketplace, including with SmartHome's existing andpotential customer and referral base, which will lead the public to believe the two businesses areconnected, associated, or identical.

36. Time Wamer's actions are causing irreparable harm to SmartHome in the form of,without limitation, lost business, lost business opportunities and lost good will.

W H E R E F O R E , Plaintiff prays that the Court enter judgment against the Defendant andaward Plaintiff monetary damages, including without limitation lost profits, damage to good will,attomey's fees, costs, interest and such other and further relief as this Court deems appropriate.

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Count IV Trademark Infringement (15 U.S.C. 1125)37. Plaintiff repeats and realleges paragraphs 1-36 as if set forth fully herein.

38. SmartHome uses and thereby owns a mark related to its service-oriented business,SmartHome Solutions.

39. Time Wamer is using the same mark by calling its new product or service "SmartHome Solutions," and marketing this service to Plaintiff s existing customer base.

40. By using SmartHome's exact name, Time Wamer is creating a likelihood ofconfusion or misunderstanding in the marketplace, including with SmartHome's existing andpotential customer base, which will lead the public to believe the two businesses are connected,associated, or identical.

41. Time Warner's actions are causing harm to SmartHome in the form of, withoutlimitation, lost business, lost business opportunities and lost good will.

WHEREFORE, Plaintiff prays that the Court enter judgment against the Defendant,enjoin Defendant from engaging in further trademark infringement, and award Plaintiff monetarydamages, including without limitation lost profits, damage to good will, Defendant's profits,attomeys' fees and costs, and such other and further relief as this Court deems appropriate.

Dated at Kennebunk, Maine thisay of June 2011.V c) NJkSusan B. Driscoll, Bar # 7689Laura H. White, Bar # 4025Attomeys for Plaintiff, SmartHome Solutions, Inc.

BERGEN & PARKINSON LLC62 Portland Road, Suite 25Kennebunk, ME 04043(207) 985-7000

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your time at home is precious. You can enjoy it even moreby integrating music, movies, climate control, lighting, IPcameras, security, and the ability to control it all fromwherever you are in the world. Home technology can be quitesophisticated, and require careful planning, designing, engineer-ing and documentation. It's not simply a matter of plugging in arack of equipment and turningon the power.SmartHome Solutions, Inc. isan electronic architect and sys-tem integrator, specializing inthe execution of fully realizedhome entertainment, communi-cation and automation systems.We have over 10 years of experience performing electronicmagic for the finest residences in New Eng and. Our impeccablerecord of exceeding the needs and desires of our clients ensure.syou the fullest enjoyment of your home.

To 1 :eartl how SrnartHorne Solutions can heir, yo0with your next aUdio a t(207) 985-9770 to set up an dppointme,nt foour desio,n showroorn.

System SolutionsAutomation & Energy ManagementFrom anywhere in your home you can easily turn on music,lights, heating/air conditioning, security, and more all from anintuitive wall-mounted touch screen panel, a home computer oeven a mobile device like your Blackberry or IPhone.Heme OnemaSmartHome Solutions can take any room and turn it into yourpersonal screening roorn. You may choose to oonstruct a roomfor the sole purpose of cinematic enjoyment. Or you may prefeto add a home theater to a living space, whether indoors orout.Distributed Audio and VideoMusic sets a wonderful mood whether for your enjoyment, torelax or for entertaining. With a system from SmartHome Solu-tions, you walk into any room, touch a button on a discretekeypad and your choice of music begins to play.LightingHaving the ability to control lighting levels and create scenesthroughout your house lets you create just the right atmos-phere for dining, entertaining, reading, or watching a movie.Wiring and NetworksSmartHome Solutions can install an advanced home wiring network that connects all the rooms in your home to the centrallocation, called a Structured Media Center.

CUSTC40ELECTRONiCDEVCAiNsuursioNASsociAioN

Merriber

Five Star Deal

HAI2 0 0 8*****Smarttiome Solutions Inc.elephone: (207) 985-97786 York Street, Suite 1, Kennebunk, Maine 04043eb: www.SmartHomeSolutionsInc.com



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View Web VersionShare: r5 Inearn more about Smart Hom e Solutions

Security is just the start.Introducing an easy - to -use smart home manaaement systemthat puts you in control of your comfort and security.You can personalize the settings to your preferences: Receive a text message when the kids get home Check on family pets via live video Coming soon - remote access to your thermostat

and lighting

When you're at home, it'stouchscreen simple. Whenyou're away, it's alwaysaccessible.It's home management yo ucontrol no matter where you are.

Three ways contralyour syslem Your mobile device Your touchscreen Any computer with online

accessWith Smart Home Solutions you can connect your home fromjust about anywhere, whenever you want.

startedNow

EXHIBIT

From: "Time Warner Cable"


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Home Managemente TimeWarnerCableTime Wamer Cable I Northeast

Smart Home Solutions

Make Your Home a Smart HomeTime Warner Cable Smart Home SoIuIionsM is a home m anagement system that puts you in c ontrol of your home'ssecurity and c omfort. Using intelligent technology, you can manage everything from c limate and lighting to door chimesand secunty c ameras all from your in-home touchscreen, mobile device or com puter .

What You Get with Smart Home Solutions All-in-one centralized system manages your home security, com fort and environment Keep an eye on your hom e when you are away through a sec ure website or mobile App Easy-to-use technology gives you fingenip control Always-on security with battery and cellular back-up and.24/7 emergency responder access

Watch the video

Create Your Custom Solution TodayOur dedicated c onsultants are standing by to help you create your own c ustomized solution.Call a representative at 1-855-892-4444Want us to call you?Get started by fil l ing out the contact formRest EasyCellular back-up, a built-in battery and our award-winning 24/7 central monitoring station means your home will besecure even if you lose power.

Run Your Home Your WayThrough the sec ure website-you can p ersonalize settingsfor your home to fit the way you live: lf you want to.seewhen your kids get home from schoot simply ceate adaily rule to have a picture taken and a text m essage sentto you when the front door sensor is open between 3 an d4 pm. Or design a vacation mode setting that can beturned on and off throughthe.website to ensure yourfights and thermostat maintain the'away from home'environment you desire (where-available).

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