smart options v. ticket2final et. al

8/12/2019 Smart Options v. Ticket2Final et. al.

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THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

SMART OPTIONS, LLC )

)Plaintiff, ) Case No. 14-cv-164)

v. ) Judge

) Mag.

TICKET2FINAL, LTD. and )TICKET2FINAL USA LLC )

) JURY TRIAL DEMANDED

Defendants. )

COMPLAINT

Plaintiff Smart Options, LLC (“Smart Options”) files this Complaint against

Defendants Ticket2Final, Ltd. (“T2F”) and Ticket2Final USA LLC (“T2FU”)

(collectively “Ticket2Final”), stating as follows:

I. NATURE OF THE ACTION

1. This is an action for patent infringement and trademark infringement. The

action arises out of Defendants’ violations of the Lanham Act and the Patent Act.

II. PARTIES

2. Plaintiff is a limited liability company organized under the laws of

Delaware. Plaintiff has a principal place of business located at 600 West Chicago

Avenue, Suite 300N, Chicago, Illinois 60654. Smart Options integrates its patented

systems and methods for purchasing electronic options on tickets into such websites as

www.optionit.com.

3. Defendant Ticket2Final, Ltd. (“T2F”), on information and belief, is an

entity created under the laws of the Isle of Man with a registered office at 36 Hope Street,

Douglas, Isle of Man IM1 1AR. Defendant Ticket2Final USA LLC (“T2FU”) is a

http://www.optionit.com/




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limited liability company created under the laws of the State of Delaware. Ticket2Final

USA’s registered agent is Corporations & Companies, Inc., 910 Foulk Road, Suite 201,

Wilmington, DE 19803. On information and belief, Defendants own and operate the

website www.ticket2final.com. On and through that website, Defendants sell and offer

for sale options on tickets to sporting events, including in this judicial district.

III. JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction under the provisions of 28

U.S.C. §§ 1331 and 1338(a), in that this action for patent infringement and trademark

infringement arises under the laws of the United States, including 35 U.S.C. §§ 271 and

281-285 and 15 U.S.C. §§ 1114, 1121 and 1125(a).

5. Personal jurisdiction over Defendant comports with Wis. Stat. § 801.05

and the United States Constitution because Defendant does business in this judicial

district, has committed and continues to commit, or has contributed and continues to

contribute to, acts of patent infringement and/or trademark infringement in this judicial

district as alleged in this Complaint, or otherwise has sufficient contacts with the state.

6. Venue is proper in this judicial district under the provisions of 28 U.S.C.

§§ 1391(b), (c), and § 1400(b).

IV. FACTUAL BACKGROUND

7. Smart Options is the owner of United States Patent No. 7,313,539 (“539

patent”) and United State Trademark Registration No. 3,776,177 for its mark “Reserve

Now. Decide Later.” Smart Options does business as OptionIt, using the technology

described and claimed in the 539 patent and using the Reserve Now. Decide Later.®

trademark to identify OptionIt as the source for its ticketing services offered through its

website www.optionit.com.

http://www.ticket2final.com/










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8. On December 25, 2007, the United States Patent and Trademark Office

(“USPTO”) duly and legally issued United States Patent No. 7,313,539 (the “539 patent”)

entitled “Method and System for Reserving Future Purchases of Goods or Services”. The

539 patent is valid and enforceable. A true and correct copy of the 539 patent is attached

hereto as Exhibit A. On April 30, 2010, the USPTO duly and legally issued United

States Trademark Registration No. 3,776,177 for the mark “Reserve Now. Decide Later.”

This Registration is valid and subsisting. A true and correct copy of the registration

certificate is attached hereto as Exhibit B.

9. The application which became the 539 patent was filed May 5, 2008.

10. The inventions described and claimed in the 539 patents were conceived

of at least as early as March 1998.

11. The inventors diligently reduced to practice the described and claimed

inventions of the 539 patent.

12. The inventors of the Smart Options system pioneered the concepts

described and claimed in the 539 patent.

13. On information and belief, conception of the inventions claimed in the 539

patents predates those claimed by anyone else.

14. In The Ticket Reserve, Inc. v. OptionIt, Inc. (09-cv-7375), the United

States District Court for the Northern District of Illinois broadly construed claim 1 of the

539 patent to cover options on all goods and services that are not regulated by a

government agency.

15. According to 35 U.S.C. § 282, the 539 patent is presumed valid. The 539

patent is also enforceable.



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16. Smart Options complies with the marking provisions of 35 U.S.C. § 287.

V. CAUSE OF ACTION

INFRINGEMENT OF THE 539 PATENT

17. SmartOptions hereby re-alleges and incorporates by reference the

allegations set forth in paragraphs 1 through 16.

17. In this judicial district and throughout the United States, T2F and T2FU,

through their website, offer for sale and sell options to sporting events. Ticket2Final calls

these electronic options “Ticket Reservations.” According to their website a Ticket

Reservation

is a commitment given to you for the right (but not the obligation) to

buy a ticket at face value, in case your favorite team will qualify to

sports’ final events. When you purchase a Ticket Reservation, youget the ability to purchase the ticket(s) at face value, once your

favorite team has qualified to the sports’ final event. For example, if

you reserve seats for “team X”, and “team X” eventually qualifies into the Final, then you have the right (but not the obligation) to buy a

ticket at face value.

Exhibit C, http://www.ticket2final.com/FAQ. As also stated on the Ticket2Final site: “If

your team fails to qualify in to the Final, your reservation will then expire and you will

not be entitled to purchase the tickets. In this case, you will not have to pay the full cost

of the ticket (but you will not be refunded with the Reservation Fee).” Id. “The

reservation price is dynamic and calculated based on many constant and variable

parameters, such as time of purchase, quality of the team etc.” Id. “In total, you pay the

Reservation Fee + tickets’ official price.” Id.

18. On or about December 20, 2010, T2F filed a patent application with the

USPTO. That application was published on June 16, 2011 as Patent Application Number

http://www.ticket2final.com/FAQ






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US20110145024 (“T2F Pat. App.”). A true and accurate copy of that publication is

attached hereto as Exhibit D.

19. Figure 5 of the T2F Pat. App. clearly shows that Ticket2Final’s Ticket

Reservation system sells and offers for sale electronic options:



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The specification of the T2F Pat. App. also states that

Further, the T2F specification states:



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19. Upon information and belief, T2F and T2FU’s website has infringed one

or more claims of the 539 patent literally and/or under the doctrine of equivalents. Upon

information and belief, T2F and T2FU’s infringement was willful. T2F’s own patent

application clearly shows that T2F knew of the 539 patent. See Ex. D, T2F Pat. App. at ¶

6.

20. T2F and T2FU’s infringement of the 539 patent has injured Smart

Options, has caused financial and other damage to Smart Options, and will continue to do

so unless enjoined by the Court.

V. CAUSE OF ACTIONINFRINGEMENT OF THE

RESERVE NOW. DECIDE LATER.® MARK



22. SmartOptions clearly displays its registered marks, including Reserve

Now. Decide Later.®

, on its website www.optionit.com :







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23. On their website, T2F and T2FU uses virtually the same mark, Reserve

Now Decide Later!:

See Exhibit E and http://www.ticket2final.com/.

24. T2F and T2FU’s use of the Reserve Now. Decide Later.®

mark on its

website and related services is unauthorized.

25. Upon information and belief, Defendants’ use of the Reserve Now. Decide

Later.® mark is willful, intentional and with knowledge of Plaintiff’s rights in the mark.

T2F and T2FU’s unauthorized, willful and intentional use of the Reserve Now. Decide

Later.® mark is likely to cause (and/or is causing) confusion, mistake, and deception as to

the origin of the services among the general public.

26. Defendants’ activities constitute willful trademark infringement under

Section 32 of the Lanham Act, 15 U.S.C. § 1114.







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27. SmartOptions has no adequate remedy at law, and if Defendants’ actions

are not enjoined, SmartOptions will continue to suffer irreparable harm to its reputation

and the goodwill of its mark.

V. CAUSE OF ACTION

FALSE DESIGNATION OF ORIGIN (15 U.S.C. § 1125(a))



29. Defendants’ promotion, marketing, offering for sale, and sale of infringing

services has created and is creating a likelihood of confusion, mistake, and deception

among the general public as to the affiliation, connection, or association with

SmartOptions or the origin, sponsorship, or approval of Defendants’ infringing services

by SmartOptions.

30. By using the Reserve Now. Decide Later.® mark on the infringing site and

related infringing services, Defendants create a false designation of origin and a

misleading representation of fact as to the origin and sponsorship of the infringing

services.

31. Defendants’ false designation of origin and misrepresentation of fact as to

the origin and/or sponsorship of the infringing services to the general public is a willful

violation of Section 43 of the Lanham Act, 15 U.S.C. § 1125.

32. SmartOptions has no adequate remedy at law and, if Defendants’ actions

are not enjoined, SmartOptions will continue to suffer irreparable harm to its reputation

and the goodwill of its the Reserve Now. Decide Later.®

brand.



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VIII. JURY DEMAND

33. Smart Options hereby demands a trial by jury of any and all issues triable

of right by a jury pursuant to the VIIth

Amendment to the Constitution and Rule 38 of the

Federal Rules of Civil Procedure.

VII. PRAYER

Smart Options requests a judgment from this Court including the following:

a. Defendants Ticket2Final, Ltd. and Ticket2Final USA LLC have jointly

and severally, directly and/or indirectly, infringed claims of the 539 patent

either literally or under the doctrine of equivalents;

b. Defendants and their agents, servants, officers, directors, employees, and

all persons acting in concert with it, directly or indirectly, be permanentlyenjoined from infringing the 539 patent;

c. Defendants be ordered to account and pay to Smart Options the damages

to which it is entitled as a consequence of the infringement of the 539

patent including lost profits and/or no less than a reasonable royalty;

d. Damages be trebled for the willful, deliberate, and intentional

infringement by Defendant in accordance with 35 U.S.C. § 284;

e. Declare this case an exceptional case and Smart Options be awarded

prejudgment interest, costs, disbursements, and attorneys' fees herein inaccordance with 35 U.S.C. § 285;

f. Defendants Ticket2Final, Ltd. and Ticket2Final USA LLC have jointly

and severally infringed SmartOptions’ registered trademark and/or haveotherwise violated the Lanham Act;

g. Defendants and their agents, servants, officers, directors, employees, andall persons acting in concert with it, directly or indirectly, be permanently

enjoined from infringing that registered mark and/or using the mark or any

colorable imitation thereof in any manner in connection with the

distribution, marketing, advertising, offering for sale or sale of any servicerelated to tickets;

h. Defendants be ordered to account and pay to Smart Options the damages

to which it is entitled as a consequence of the infringement of the markincluding the profits, lost profits and/or any other available monetary

damages;



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i. Declare this case an exceptional case and Smart Options be awarded

prejudgment interest, costs, disbursements, and attorneys' fees herein in

accordance with 15 U.S.C. § 1117(a) and,

j. Smart Options be awarded such other and further relief as this Court may

deem just and equitable.

Respectfully submitted this 28th day of February 2014.

/s/ Geoffrey A. BakerGeoffrey A. Baker

Smart Options, LLC

600 West Chicago Avenue,

Suite 300NChicago, Illinois 60654

(708) [email protected]

mailto:[email protected]



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