Complaint Home Decor v Home Depot

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FILED
LAW OFFICES OF CHRISTOPHER K. JAFARI
CHRISTOPHER K. JAFARI, ESQ., BarNo. 219971
JAMBOREE BUSINESS CENTER
2012 OCT - 1 PH z:
19
1 PARK PLAZA, SIXTH FLOOR
IRVINE, CA 92614
[email protected]
Telephone: (949) 852-4454
Facsimile: (949) 852-4453
Attorney for the Plaintiff Home Decor Center
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UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA- WESTERN DIVISION
HOME DECOR CENTER, INC., a
California corporation
PLAINTIFF,
V.
GOOGLE, INC., a California
corporation; THE HOME DEPOT,
INC, a Georgia corporation,AND
DOES 1 THROUGH 10, inclusive
DEFENDANTS.
PLAINTIFF ALLEGES AS FOLLOWS:
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Case No. CV-12-05706 GW (SHx)
SECOND AMENDED COMPLAINT
1. FEDERAL COMMON LAW
TRADEMARK INFRINGEMENT
AND UNFAIR COMPETITION
UNDER 15 U.S.C. §1125(a)
2. UNFAIR BUSINESS PRACTICES
3. CONTRIBUTORY TRADEMARK
INFRINGEMENT UNDER THE
LANHAM ACT
4. VICARIOUS TRADEMARK
INFRINGEMENT UNDER THE
LANHAM ACT
5. INTERFERENCE WITH
PROSPECTIVE CONTRACTUAL
RELATIONS
UNLIMITED CIVIL CASE
GENERAL ALLEGATIONS
COMMON TO ALL CAUSES OF ACTION
27 1. Plaintiff, HOME DECOR CENTER, INC. ("Plaintiff') is a California corporation,
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organized and existing by virtue of the laws of the United States of America and also at
SECOND AMENDED COMPLAINT

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SECOND AMENDED COMPLAINT
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all times mentioned here, was and now is authorized to do business in the State of
California.
2. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein,
Defendant Google, Inc. (“Defendant Google”) was and now is a California corporation,
organized and existing by virtue of the laws of the United States of America and also at
all times mentioned here, was and now is authorized to do business in the State of
California.
3. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein,
Defendant The Home Depot, Inc. (“Defendant Home Depot”) was and now is a Georgia
corporation, organized and existing by virtue of the laws of the United States of America
and also at all times mentioned here, was and now is authorized to do business in the
State of California.
4. The true names and identities of Defendants DOES 1 through 50 are unknown to
Plaintiff, who therefore sues said Defendants by fictitious names. Plaintiff is informed
and believes and thereon alleges that each of said DOE Defendants are liable to Plaintiffs
for the acts and conduct alleged herein, and further that each of said DOE Defendants
were the agents and/or employees of the other Defendants, and in doing the acts and
things complained of herein, did so within the course and scope of such agency and/or
employment. Plaintiff will seek leave of Court to amend this Complaint to insert the
correct names and capacities of said DOE Defendants when the same have been
ascertained by Plaintiff.
VENUE
5. This Complaint arises in part under the Lanham Act, 15 U.S.C. § 1125 and 15 U.S.C. §
1114.

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SECOND AMENDED COMPLAINT
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6. This Court has federal question jurisdiction over these claims pursuant to 15 U.S.C. §
1121 and 28 U.S.C. §§ 1331, 1338(a) and 1338(b). This Court has supplemental
jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 because those claims
are so closely related to the federal claims brought in this complaint as to form part of the
same case or controversy.

FACTUAL ALLEGATIONS
COMMON TO ALL CAUSES OF ACTION
7. Plaintiff Home Decor Center, Inc. is the owner of a valid registered trademark commonly
known as “HOME DECOR CENTER” (USPTO Serial Number 85524323), and has been
using the mark as early as 2007. Since 2007, the mark has become distinctive of the
Plaintiff’s goods which include, among other things, floor decor, wall decor, and various
other home decor products, and is thus entitled to receiving protection of its mark. (See:
Clairol Inc. v. Gillette Co., 389 F.2d 264, 267-68 (2d Cir. 1968); 3 McCarthy on
Trademarks and Unfair Competition § 19:36 (4th ed.))
8. Plaintiff Home Decor Center, Inc. is also the owner of the registered domain,
“homedecorcenter.com”, and, as reflected by the WHOIS internet domain database, has
been the owner and has registered this domain since October 26, 2006.
9. Since 2007, Plaintiff Home Decor Center, Inc. through its registered domain name
“homedecorcenter.com” has been advertising its mark aggressively to establish its
famous name and reputation in the marketplace.
10. Furthermore, Plaintiff Home Decor Center, Inc. has also been performing at its utmost
and expending its valuable resources to build its famous name and reputation in the
marketplace.

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11. Plaintiff’s customers and potential customers would find Plaintiff’s website,
“HomeDecorCenter.com” through Defendant Google’s search engine for “Home Decor
Center”.
12. It should be noted that Plaintiff retained the services of Defendant Google through its
Google “Ad Words” (pay-per-click) program in which the Plaintiff paid certain moneys
to the Defendant Google for its HomeDecorCenter.com website to be more accessible
to consumers who use Google’s search engine to search for the Plaintiff’s website and
products.
13. Ad Words is Google’s program through which advertisers purchase terms (or
keywords). When entered as a search term, the keyword triggers the appearance of the
advertiser’s ad and link. An advertiser’s purchase of a particular term causes the
advertiser’s ad and link to be displayed on the user’s screen whenever a searcher
launches a Google search based on the purchased search term. Advertisers, including
the Plaintiff Home Decor Center, pay Google based on the number of times Internet
users ‘click’ on the advertisement, so as to link to the advertiser’s website.
14. On or about September of 2011, Plaintiff experienced a drastic decline in its online and
in-store traffic and sales, in addition to the number of clicks to its website through
Defendant Google’s search engine. Plaintiff’s sales traffic decreased by as much as
60%.
15. On or about September of 2011, Plaintiff was also experiencing a high volume of
customer complaints regarding their purchases; such as damaged items, failure of
delivering orders, and failure to ship orders in a timely manner. To this date, Plaintiff
continues to receive the above-mentioned complaints from its customers.

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16. When Plaintiff inquired as to which website the complaining customers completed their
orders on, the customers clearly stated “HomeDecorators.com.” A primary and
reoccurring complaint by Plaintiff's customers is that they cannot find Plaintiff's store
location through HomeDecorators.com, which is a website owned by Defendant Home
Depot, Inc.
17. Because of these issues, Plaintiff investigated the matter and on January 17 2012, the
investigation revealed that when a consumer on a personal computer or mobile device
entered “Home Decor Center” and “HomeDecorCenter.com” in Defendant Google’s
search engine or in the address bar of a web browser supported by Defendant Google,
the search would result in a top-of-the-page advertisement which clearly stated
“HomeDecorcenter.com”, but when clicked, it would actually forward the consumer to
Defendant Home Depot’s “HomeDecorators.com” page. Attached and incorporated
herein as “Exhibit “A” are true and correct copies of numerous search query results
through Google’s search engine with the so-called “HomeDecorCenter.com” Ad Word
advertisement which were misleading the Plaintiff’s customers to Defendant Home
Depot’s “HomeDecrators.com” website.
18. Moreover, in the above infringing advertisement for HomeDecorators.com, the
advertisement claims to be related to Home Decor Center in that they falsely
misrepresent “Ad for HomeDecorCenter.com.”
19. Even if an internet user attempts to visit Home Decor Center’s website directly, by
typing a website address such as “www.homedecorcenter.com” into their internet
browser, the internet user’s browser may be designed to display Google’s results to the
said user instead of taking the user directly to Home Decor Center’s website. These
results occur on both personal computers and mobile devices.

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20. As a result of this improper and misleading advertisement, Plaintiff’s customer traffic
was misdirected and mislead to HomeDecorators.com, a website owned by Defendant
Home Depot, Inc. Not only were consumers ultimately misdirected, but influential
designers were misdirected as well. The above actions of the Defendants have proven
to be extremely detrimental to the Plaintiff.
21. In addition to Plaintiffs’ drastic decline of online sales, this improper advertising has
harmed Plaintiff’s reputation in the marketplace. Customers are led to believe that they
received substandard service from Plaintiff, when they actually had their bad
experiences with HomeDecorators.com, a website owned by Defendant Home Depot,
Inc.
22. Also, due to Plaintiff's customers being misdirected by Defendant Google’s search
engine and Ad Words to HomeDecorators.com, owned by Defendant Home Depot,
Inc., Plaintiff has had to and continues to have to constantly make price adjustments
and grant refunds to maintain relationships and protect its reputation.
23. It should be noted that while generally under 47 U.S.C.A. § 230 Defendant Google
does not owe a duty to protect the infringing use of the Plaintiff’s trademark or related
domain name in the results of its search queries since such results were merely
provided by another source, Defendant Google’s Ad Words advertisements, including
the infringing advertisement set forth above, are not immune from such protection since
these advertisements 1.) generate profits for Defendant Google for each time the
advertisements are clicked and 2.) the content of all of the advertisements are
individually created and authorized by Defendant Google’s employees and/or agents
who worked jointly with Defendant The Home Depot, Inc.. (See also: Rescuecom
Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009)

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24. As to Defendant Google’s involvement in the creation of the content of the infringing
advertisements, Google assigned its own employees to the Google AdWords account
for Home Depot/Home Decorators Collection, to individually create the content of,
market and approve these ads.
25. Plaintiff is informed and believes that Defendant Google through its own employees, is
directly involved in working jointly with the Defendant Home Depot through its own
officers, agents, and/or employees in the creation and/or development of the content of
these infringing advertisements.
26. The policy pertaining to the individual authorizations by Google of each of the Ad
Words advertisements is expressly outlined and states that “All AdWords ads go
through an approval process to make sure they're safe and appropriate for users. We
review each ad to see if it complies with our advertising policies.” Such “advertising
policies” include making sure the advertisements are “Accurate” in which Defendant
Google expressly represents, “Advertising can be informative, entertaining,
metaphorical, or even tell a story. However, any factual claims and offers should
always be credible and accurate. Misleading, inaccurate, and deceitful ads hurt
everyone – users, publishers, developers, and advertisers.” Attached and incorporated
herein as Exhibit “B” is a true and correct copy of the Defendant Google’s policy that
sets forth its authorization requirements for each advertisement it individually
authorizes prior to being posted.
27. However, as set forth above, Defendant Google jointly with Defendant Home Depot
instead willfully and intentionally chose to create the content and authorize the very
harmful and misleading advertisements which clearly stated “HomeDecorCenter.com”

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and “Ad for HomeDecorCenter.com” when such advertisements deceitfully misled the
Plaintiff’s customers to the Defendant Home Depot’s “HomeDecorators.com” website.
28. On January 26
th
, 2012 the Plaintiff through its attorney sent a cease and desist letter via
certified mail to Defendant Google, Inc.
29. Thereafter, on February 13, 2012, the Plaintiff through its attorney sent a cease and
desist letter via certified mail to Home Decorators Collection, acting on behalf of
Defendant Home Depot.
30. The cease and desist letters provided notice to both Defendants that the Plaintiff was
the owner of the Home Decor Center mark in addition to the HomeDecorCenter.com
domain name, and that its customers were being misled to believe that the Defendant
Home Depot’s website was the Plaintiff’s website. The cease and desist letters
requested the Defendants to cease from causing further confusion to the Plaintiff’s
customers. True and correct copies of the cease and desist letters with proof of certified
mailing are attached and incorporated herein as Exhibit “C.”
31. Despite such expressed written notice to cease and desist from such infringements and
unfair business practices, the Defendants refused to and continue to refuse to cease and
desist from the above-mentioned wrongful conduct, causing substantial harm to the
Plaintiff’s business and its reputation.

FIRST CAUSE OF ACTION
For Federal Common Law Trademark Infringement
and Unfair Competition Under 15 U.S.C. §1125(a)
(Against All Named and DOES Defendants)
32. Plaintiff incorporates herein by reference the allegations of paragraphs 1-31 supra as
though fully set forth herein.

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33. State courts have concurrent jurisdiction over Federal Trademark claims pursuant to 28
U.S.C. § 1338(a), providing this court with subject matter jurisdiction over the trademark
claims alleged herein.
34. The Plaintiff’s common law “Home Decor Center” trademark, as described above, has
been extensively used, advertised, and promoted through the United States and the
world in connection with the Plaintiff’s home decor products as identified above.
35. Plaintiff Home Decor Center, Inc. is also the owner of the registered domain which is
related to its mark, “homedecorcenter.com”, and, as reflected by the WHOIS internet
domain database, has registered this domain since October 26, 2006.
36. The Plaintiff’s common law trademark is inherently distinctive. As a result of the
Plaintiff’s use, advertisement and promotion of its common law trademark, the
trademark has become well and favorably known throughout the United States and the
world as identifying the Plaintiff and its products. The Plaintiff has developed
exceedingly valuable goodwill with respect to its common law trademark.
37. The essence of Plaintiff’s business is its developed and exceedingly goodwill reputation
which it has generated by marketing its products and services and building customer
confidence.
38. Plaintiff’s website, HomeDecorCenter.com is established within the marketplace and is
a primary contributing factor in distinguishing its product offers apart from others. As
reflected by the Plaintiff’s registered trademark, Plaintiff has been using its mark since
2007, with the HomeDecorCenter.com domain name being registered by the Plaintiff
since October 26, 2006.
39. The Defendant Home Depot and the Defendant Google have jointly through the
authorization and use of Defendant Google’s search engine and Ad Word advertising

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program have, together in conjunction willfully and intentionally misled and/or
confused the Plaintiff’s customers into believing that the search result advertisement
that was titled “HomeDecorCenter.com” (Exhibit “A”) was in fact what it represented
itself to be when in truth and in fact, the advertisement was forwarding the Plaintiff’s
customers to Defendant Home Depot’s “HomeDecorators.com” website through
Defendant Google and Home Depot’s willful and intentionally misleading Ad Word
link.
40. The Defendants have knowingly, willfully and intentionally created, imported,
advertised, promoted, displayed, and offered for sale and/or sold Defendant Home
Depot’s home decor products online and on the internet at the website
“HomeDecorators.com” after the Plaintiff’s customers were misled to this website by
clicking on the subject advertisement which in turn generated profits for Defendant
Google for each time the advertisement was clicked.
41. The Defendants’ use of the Plaintiff’s common law trademark on the infringing
advertisement has caused confusion in the market and is likely to cause further
confusion amongst members of the relevant public and trade, i.e., to believe that
Defendant Home Depot’s products are provided by or in affiliation with or under the
sponsorship or approval of the Plaintiff.
42. The Defendants had willfully selected, adopted and/or used the Plaintiff’s common law
trademark on their infringing advertisement with knowledge of the Plaintiff’s valuable
goodwill and business reputation association therewith, and with intent to confuse,
mislead, and deceive the public into believing the infringing advertisement came from
or is owned by the Plaintiff or is in some manner associated, approved, sponsored or
endorsed by the Plaintiff.

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43. The confusion, mistake or deception referred to the above arises out of acts alleged
above which constitute common law trademark infringement and false designation of
origin as that phrase is used in 15 U.S.C. § 1125(a).
44. By engaging in the acts described above, Defendant Home Depot, through the
assistance and authorization of Defendant Google through its Ad Words
advertisements, has unfairly competed with Plaintiff. Defendants’ unauthorized and
willful use of Plaintiff’s registered trademark in connection with their advertising
programs constitutes unfair competition in violation of the Lanham Act, 15 U.S.C. §
1114 and 1125(a).
45. Under section 43(a) of 15 U.S.C. 1125(a):
[a]ny person who, on or in connection with any goods or services
… uses in commerce any word, term, name, symbol or device …
or any false designation of original, false or misleading description
of fact, or false or misreading representation of fact which … is
likely to deceive as to the affiliation, connection or association of
such person with another person, or as to origin, sponsorship or
approval of his or her goods, services, or commercial activities by
another person … shall be liable in a civil action by any person
who believes that he or she is or is likely to be damaged by such
act.

46. By way of example, Plaintiff alleges on information and belief that Defendants have
caused a dilution of Plaintiff’s business reputation and trademark. Defendants, through
false representations and false advertising, confused and upset customers by misleading
them to purchase products from a different company and failed to receive the same
level of service, while profiting from the use of the Plaintiff’s distinctive mark by
misrepresenting that the Defendant Home Depot’s website is in fact the Plaintiff’s
official website.
47. While Defendant Home Depot has profited from misleading the Plaintiff’s customers to
its website, the Defendant Google earned profits from clicks on the misleading “Home

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Decor Center” advertisements to which it created the content jointly with Home Depot
and individually authorized.
48. Furthermore, the deceptive conduct of Defendants Google, Inc. and The Home Depot,
Inc. have damaged Plaintiff’s reputation and customer confidence, resulting in
damages.
49. Passing Off under the Lanham Act protects the indications of where the product comes
from. Defendants violated this by misleading consumers to believe they were
purchasing products from Plaintiff.
50. Defendants’ acts of unfair competition, false designation of origin, passing off and false
advertising are willful, deliberate and fraudulent, and without extenuating
circumstances, and with an intent to reap the benefit of the Plaintiff's name, goodwill
and reputation.
51. Unless restrained by this Court, the Defendants will continue to infringe the Plaintiff’s
common law trademark through its infringing advertisement.
52. Defendant's trademark infringing acts of unfair competition, false designation of origin,
passing off and false advertising have caused irreparable injury to Plaintiff's goodwill
and reputation in an amount that cannot be ascertained at this time and, unless
restrained, will cause further irreparable injury, leaving Plaintiff with no adequate
remedy at law.
53. Plaintiff is further informed and believes and thereon alleges that each of the acts of
Defendants mentioned herein were intentional, malicious, and made with reckless
disregard for the financial condition of Plaintiff, and were made with the express intent
of depriving Plaintiff of monies and assets, and consequently such conduct warrants the
award of punitive and exemplary damages in an amount to be proven at trial.

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54. By reason of the foregoing, the Plaintiff is entitled to injunctive relief against the
Defendants, permanently restraining further acts of trademark infringement, unfair
competition, false designations of origin, passing off and false advertising and to
recover any damages proven to have been caused by reason of Defendants’ aforesaid
acts of trademark infringement, unfair competition, false designations of origin, passing
off and false advertising, in an amount to be proven at trial, together with all other
remedies available under the Lanham Act, including, but not limited to, treble damages,
disgorgement of profits, and costs and attorney's fees.

SECOND CAUSE OF ACTION
For Unfair Business Practices
(Against All Named and DOES Defendants)
55. Plaintiff incorporates herein by reference the allegations of paragraphs 1-54 supra as
though fully set forth herein.
56. The California Business and Professions Code, Sections 17200 eq. set. makes it
unlawful and illegal for any person or entity to engage in unlawful, unfair or fraudulent
practices or do any act which is in furtherance of a fraudulent or deceitful tactic.
57. Defendants have violated the law and utilized unfair business practices in willfully and
intentionally creating the content of and posting online advertisements through
Google’s search engine and Ad Words program which state “HomeDecorCenter.com”
when this advertisement forwarded consumers to the Defendant Home Depot’s
“HomeDecorators.com” website.
58. Such misrepresentations of Plaintiff’s official website were misleading Plaintiff’s
customers and potential customers, causing serious harm to Plaintiff’s business and
reputation.

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59. While the Defendant Home Depot was generating profits from diverting the Plaintiff’s
customers to its website, the Defendant Google was generating profits from clicks on
these advertisements while furthermore supporting such violations by continuing to
jointly create the content of and authorize these advertisements despite both Defendants
being put on notice through a letter to cease and desist.
60. As a proximate result of these violations, Plaintiff has suffered damages in an amount
to be proven at trial, but in any event above the jurisdiction minimum of this court.
61. As a further proximate result of these violations, Plaintiff is suffering and will suffer
irreparable harm, for which there is no adequate remedy at law, and is therefore entitled
to equitable and injunctive relief.

THIRD CAUSE OF ACTION
Contributory Trademark Infringement Under the Lanham Act
(Against Defendant Google, Inc. and DOES Defendants)
62. Plaintiff incorporates herein by reference the allegations of paragraph 1-61 supra as
though fully set forth herein.
63. Google intentionally and willfully induced third-party advertisers to infringe on
Plaintiff’s trademark and its related domain name and Google has actual or constructive
knowledge that its advertising programs were and are being used to infringe Plaintiff’s
trademark and related domain name.
64. With full knowledge and willful disregard of Plaintiff’s rights in the trademark and
related domain name, Google sold the rights to use Plaintiff’s trademark in
advertisements to Defendant Home Depot through its advertising programs. In fact,
Google generates profits for each click made on the infringing advertisement.

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65. Defendant Google has actual or constructive knowledge that its advertising programs
cause online consumers to visit websites unaffiliated with Plaintiff’s and owned by
Defendant Home Depot, even when shoppers were attempting to locate Plaintiff’s
website by typing the Plaintiff’s mark in its search engine. Such knowledge is further
supported by the fact that Defendant Google had its own employees work directly with
Defendant Home Depot in creating the content of the infringing advertisements.
66. Defendant Google’s conduct is likely to cause confusion, mistake and deception as to
whether Plaintiff is the source of, or is sponsoring or affiliated with, the products and
services offered on Defendant Home Depot’s HomeDecorators.com website.
67. Through its sale of Plaintiff’s trademarks to be used in Defendant Home Depot’s
advertisements through Defendant Google, Defendant Google through its employees
provided Defendant Home Depot with aid and materially contributed to Defendant
Home Depot’s violations of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a).
68. Defendant Google is therefore contributory liable for the infringing use of Plaintiff’s
trademark and its related domain name by Defendant Home Depot.
69. Plaintiff has been and, absent injunctive relief, will continue to be irreparably harmed
by Google’s actions.
70. Plaintiff has no adequate remedy at law for the forgoing wrongful conduct.
71. Defendant Google’s contributory infringement has also damaged Plaintiff in an amount
to be determined at trial.
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FOURTH CAUSE OF ACTION
Vicarious Trademark Infringement Under the Lanham Act
(Against Defendant Google, Inc. and DOES Defendants)
72. Plaintiff incorporates herein by reference the allegations of paragraph 1-71 supra as
though fully set forth herein.
73. Defendant Google has the right, ability and obligation to control the use of Plaintiff’s
trademark and the destination of related website links it makes profits from in its
advertisements and advertising programs that were utilized by Defendant Home Depot.
74. Defendant Home Depot’s use of Plaintiff’s trademarks in Defendant Google’s
advertisements and in the context of Defendant Google’s advertising programs, is likely
to, and evidently has been causing confusion among consumers and constitutes
infringement of Plaintiff’s rights in its trademark and related domain name.
75. Defendant Google receives a direct financial benefit from Defendant Home Depot’s
infringing use of Plaintiff’s trademark and related domain name whenever each of the
Plaintiff’s customers had, through the misleading and infringing
“HomeDecorCenter.com” advertisement, clicked the link and found themselves
deceived into believing that they were at a website owned by, supported by, or
otherwise affiliated with the Plaintiff.
76. Defendant Google is vicariously liable for the infringing use of Plaintiff’s trademark
and related domain name by Defendant Home Depot.
77. Plaintiff has been, and absent injunctive relief will continue to be, irreparably harmed
by Defendant Google’s actions.
78. Plaintiff has no adequate remedy at law for the foregoing wrongful conduct.

17


SECOND AMENDED COMPLAINT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

79. Defendant Google’s vicarious infringement has damaged Plaintiff in an amount to be
determined at trial.

FIFTH CAUSE OF ACTION
Interference with Prospective Contractual Relations
(Against All Named and DOES Defendants)
80. Plaintiff incorporates herein by reference the allegations of paragraph 1-79 supra as
though fully set forth herein.
81. Plaintiff derives much of its revenues from the online sales of its home decoration
products and accessories to potential consumers.
82. Plaintiff has prospective contractual relationships with its consumers that use Google as
a search engine.
83. As a result of Defendant Home Depot and Defendant Google’s actions, including the
joint creation of the content of the infringing advertisements and authorizing them
individually, these consumers, for a substantial period of time, saw Ad Words
advertisements for Defendant Home Depot’s company and website,
Homedecorators.com, disguised under Plaintiff Home Decor Center’s trademark and
domain name “HomeDecorCenter.com.”
84. As a result of Defendant Home Depot and Defendant Google’s conduct, Plaintiff has
been, and absent injunctive relief will continue to be, irreparably harmed by Google’s
actions.
85. Plaintiff has no adequate remedy at law for the foregoing wrongful conduct.
86. Defendant Home Depot and Defendant Google’s intentional interference with
prospective contractual relations has damaged Plaintiff in an amount to be determined
at trial.
87. Furthermore, in order to prevent further irreparable loss to Plaintiffs interests, Plaintiff
2
is entitled to injunctive relief, including but not limited to, temporary restraining order,
3 preliminary and/or permanent injunction pursuant to Code of Civil Procedure§§ 525-
4
527 and Civil Code§ 3422(1)
5
6
7
WHEREFORE, Plaintiff prays for Judgment against the Defendants as follows:
8 1.
For general damages in an amount to be proven at trial;
9 2. For consequential damages subject to proof at trial;
10
3. For loss of earnings and lost profits including a disgorgement of profits earned by the
II
Defendants;
12
13
4. For costs of suit incurred herein;
14 5. For punitive and exemplary damages subject to proof at trial;
15
6. All attorney fees as allowed under the statute;
16
7. A temporary restraining order and permanent injunctive order to prevent Defendants
17
18
from such wrongful conduct.
19
8. For such other and further relief as the court deems proper;
20
21
22
Dated September 28, 2012
Respectfully Subm · ed:
23
Law Offices of , i topher K. Jafari
24
25
Christopher K. Jafar, Esq.
Attorney for Plaintiff Home Decor Center, Inc.
26
27
28
18
SECOND AMENDED COMPLAINT
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EXHIBIT ''B''
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About the ad approval process
All AdWords ads go through an approval process to make sure they're safe and appropriate for users. We review each
see if it complies with our advertising policies. If we find any issues, we'll notify you with information about the
policy and what you can do to get your ad approved.
How to submit ads for approval
Whenever you create a new ad or make changes to an existing ad, your ad automatically gets submitted to us for
review.
How long it takes
We strive to review all ads as quickly as possible, usually within three business days. If you've been waiting for your
ads to be reviewed for more than three business days, please contact us.
Tip
Because it can take a few days to get your ad approved, you might find it helpful to create your ad a few days
in advance and then pause it. Then when you're ready for your ad to go live a few days later, just unpause it.
Learn how to pause or resume your ad.
What we review
When reviewin our ads, we look at several elements of your cam ai n, including your cam ai n settings, ke ords,
We look at both the formatting (what your ad looks like), well as the content (what you rea v · · .
If we find anything that doesn't follow our policies, we'll mark your ad or keyword and send you an email with informatiol
about that policy. You'll also get an alert in your account pages informing you about the disapproval. For example, if we
find an ad that points to a website that's not working, we'll mark that ad as "Disapproved" and send you an email
explaining why we disapproved the ad.
Approval statuses
During the approval process, your ads will be given one of the following approval statuses:
• Under review
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• Approved
• Approved (non-family)
• Approved (adult)
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7/20/2012 2:54PM
Accurate Ads - Advertising Policies Help http:/ I support. google.com/ adwordspolicy /bin/topic. py?h I=en&topic ...
1 of 1
Advertising should be accurate and truthful.
Advertising can be informative, entertaining, metaphorical, or even tell a story. However, any factual claims and offers
should always be credible and accurate. Misleading, inaccurate, and deceitful ads hurt everyone- users,
developers. and advertisers. To ensure the ads we show are accurate and safe, we've developed the following
- advertising policies around accurate ads:
Relevance, Clarity,
Advertiser claims
Relevance, clarity, and accuracy
Social interaction incentives
7/20/2012 2:53PM
EXHIBIT ''C''
LAW OFFICES OF CHRISTOPHER K. JAFARI
ONE PARK PLAZA, SUITE 600, IRVINE, CA 92614
PHONE: (949) 852-4454 o FAX: (949) 852-4453 • EMAIL: [email protected]
January 26, 2012
GOGGLE
1600 Amphitheatre Parkway
Mountain View CA 94043
RE: Copyright I Trademark Infringement
Our Client: Home Decor Center.com I Home Decor Center
Trade Mark Application No 85524323
To Whom it may concern:
Please be advised that I represent Home Decor Center in regards to their intellectual Property
Matters.
My Client captioned above, is the owner of the mark and name Home Decor Center,com. This
expression is proprietary both under Common Law, and is the subject of the U.S Trademark Application
No 85524323.
It has recently come to our attention that when their customers perform a search on your Google
Search engine under their company's name Home Decor Center.com and Home Decor Center, another
company by the name of HomeDecorators.com appears next to their name, and the users are then directed
to that site instead. Please see attached a copy of the search results for Home Decor Center.com.
This direction of traffic and name confusion on your site is in violation of Trademark and may
expose Google to liability under a civil conspiracy theory. My client will be entitled to the costs of the
action under 15 U.S.C Section 1117(a) and under Common Law and 15 U.S.C. Section 1125(a).
We hope that this use of the domain name, our client's trademark is a misunderstanding and that
you immediately cease any further confusion in your search engine.
If I do not receive written assurances from Google within the next 10 days that this issue has been
resolved, my client will vigorously pursue any and all legal remedies available, and any and all remedies
under federal or state laws.
'
'
Very trJQ.y ours/
\j
Christopher Jafari
Attorney at Law
LAW OFFICES OF CHRISTOPHER K. JAFARI
ONE PARK PLAZA, SUITE 600, IRVINE, CA 92614
PHONE: (949) 852-4454 • FAX: (949) 852-4453 • EMAIL: [email protected]
February 13
1
h 2012
Home Decorators Collection
c/o Customer Service
8920 Pershall Road
Hazelwood, MO 63042
RE: Copyright I Trademark Infringement
Our Client: Home Decor Center.com I Home Decor Center
Trade Mark Application No 85524323
To Whom it may concern:
Please be advised that I represent Home Decor Center in regards to their intellectual Property
Matters. This is my second notice regarding this issue to your company.
My Client captioned above, is the owner of the mark and name Home Decor Center,com. This
expression is proprietary both under Common Law, and is the subject of the U.S Trademark Application
No 85524323.
It has recently come to our attention that when their customers perform a search on Google
Search engine under their company's name Home Decor Center.com, your company by the name of
HomeDecorators.com appears next to their name, and the users are then directed to that site instead.
Please see attached a copy of the search results for Home Decor Center.com.
This direction of traffic and name confusion on your site is in violation of Trademark and may
expose your company to liability under federal and state trademark violation and under California unfair
and deceptive business practice. My client will be entitled to the costs of the action under 15 U.S.C
Section 1117(a) and under Common Law and 15 U.S.C. Section 1125(a).
We hope that this use of the domain name, our client's trademark is a misunderstanding and that
you immediately cease any further confusion in your advertising of your business.
If I do not receive written assurances from you within the next 1 0 days that this issue has been
resolved, my client will vigorously pursue any and all legal remedies available, and any and all remedies
under federal or state laws.
Very truly yours
Chri(]lfuri
Attorney at Law
'
SENDER: COMPLETE THIS SECTION
• Complete items 1, 2, and 3. Also complete
item 4 If Restricted Delivery is desired.
• Print your name and address on the reverse
soJhat we can return the card to you.
• Attach this card to the back of the mailpiece,
the front if space permits.
D. Is delivery address different from Item 1?
If YES, enter delivery address below:
0
3.
JO"'Certified Mail
0 Registered
0 Insured Mail
GRetum Receipt for Merchandise
0 C.O.D.
4. RestriCted Delivery? (Extra Fee) 0 Yes
2. Article Number
(Transfer from service label)
7011 0470 0002 9780 1496
PS Form 3811, February 2004 Domestic Return Receipt
·-·--·
SENDER: COMPLETE THIS SECTION
• Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse
so that we can return the card to you.
• Attach this card to the back of the mailpiece,
or on the front if space permits.
1. Miele Addressed to:
·---
1 02595..()2-M-1540 '
@_/a:;;u

· - elf Certified Mail 0 Express Mail
D. Is delivery address different from item
If YES, enter delivery address below:
} )c>/N? / /) tJ Registered 1\tRetumReceiptforMerchandise
( ' c-vt.// / 0 Insured Mail 0 C.O.D.
·· .( 3 4. Restricted Delivery? (Extra Fee) 0 Yes
2. Article Number
(Transfer from service label
7010 1670 0002 0630 7992
PS Form 3811, February 2004 Domestic Return Receipt 102595..()2-M-1540
D
PROOF OF SERVICE AND CERTIFICATION
1 am employed in the County of Orange County, State of California. I am over the age of 18 and not a party to
the within action; my business address is 1 Park Plaza, Suite 600 Irvine California, 92614
On September 28, 2012 I served the foregoing document(s) described SECOND AMENDED
COMPLAINT by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Gary L. Bostwick, Esq.
Jean-Paul Jassy, Esq.
Kevin L. Vick, Esq.
Bostwick & Jassy LLP
Daryl M. Crone, Esq.
Joshua P. Gelbart, Esq.
Crone Hawxhurst LLP
10880 Wilshire Blvd., Suite 1150
Los Angeles, CA 90024
12400 Wilshire Blvd., Suite 400
Los Angeles, CA 90025
X
X
D
D
On the above date:
(BY ~ ELECTRONIC MAIL) TO Josh Gelbert [email protected], Gary Bostwick
[email protected], Kevin L. Vick [email protected], Jean-Paul Jassy
[email protected]
(BY ~ U.S. MAIL/BY D EXPRESS MAIL) The sealed envelope with postage thereon fully prepaid was placed
for collection and mailing following ordinary business practices. I am aware that on motion of the party served,
service is presumed invalid if the postage cancellation date or postage meter date on the envelope is more
than one day after the date of deposit for mailing set forth in this declaration. I am readily familiar with Chris
Jafari's practice for collection and processing of documents for mailing with the United States Postal Service
and that the documents are deposited with the United States Postal Service the same day as the day of
collection in the ordinary course of business.
(BY FACSIMILE TRANSMISSION) at __ a.m./p.m. at Orange County, California, I served the above-
referenced document on the above-stated addressee by facsimile transmission pursuant to Rule 2008 of the
California Rules of Court. The telephone number of the sending facsimile machine was (949) 852-4453, and
the telephone number of the receiving facsimile number was . A transmission report was properly
issued by the sending facsimile machine, and the transmission was reported as complete and without error.
Copies of the facsimile transmission cover sheet and the transmission report are attached to this proof of
service.
(BY PERSONAL DELIVERY) By causing a true copy of the within document(s) to be personally hand-
delivered to the office(s) of the addressee(s) set forth above, on the date set forth above.
(BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee.
(FEDERAL ONLY) I declare that I am employed in the office of a member of the bar of this court at whose
direction the service was made.
I hereby certify that the above document was printed on recycled paper.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on September28, 2012 at Orange County, C ~
Kay Jafari
39073\955149v2