Complaint Re Patent For Program-integrated Commercial
This document was uploaded by user and they confirmed that they have the permission to share it. If you are author or own the copyright of this book, please report to us by using this DMCA report form. Report DMCA
Overview
Download & View Complaint Re Patent For Program-integrated Commercial as PDF for free.
More details
- Words: 5,007
- Pages: 17
EFiled: Aug 14 2009 2:48PM EDT Transaction ID 26600691 Case No. 09C-08-138 RRC IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DENIZEN LLC Plaintiff, v. WPP GROUP USA, INC., J. WALTER THOMPSON COMPANY, and J. WALTER THOMPSON U.S.A., INC. Defendants.
) ) ) ) ) ) ) ) ) ) ) ) ) )
Civil Action No. _______ JURY TRIAL DEMANDED
COMPLAINT Denizen LLC (“Denizen”) hereby alleges by and through its attorneys as follows: THE PARTIES 1.
Denizen is a Delaware limited liability company with its principal place of business
located in the state of Maryland. Denizen’s predecessor company is One Eye Limp One Eye One Eye, LLC. 2.
Defendant WPP Group USA, Inc. (“WPP”) is a Delaware corporation with, upon
information and belief, its principal place of business located in New York, New York. 3.
Defendant J. Walter Thompson Company is a Delaware corporation with, upon
information and belief, its principal place of business located in New York, New York. 4.
Defendant J. Walter Thompson U.S.A., Inc. (J. Walter Thompson U.S.A., Inc. and J.
Walter Thompson Company are collectively referred to herein as “JWT”) is a Delaware corporation with, upon information and belief, its principal place of business located in New York, New York.
1
JURISDICTION 5.
This action arises under various provisions of the Delaware Code, including 6 Del. C. §
2001 et seq., and under applicable common law governing substantial and related claims that arise out of the same or related operative facts. FACTUAL BACKGROUND Denizen’s Business Activities, Trade Secrets, and Other Confidential and Proprietary Information 6.
Television networks generally sell advertising during television programs and generally
receive revenue for use of the commercial airtime in proportion to the program’s viewership, i.e., ratings. 7.
As such, networks face the problem of viewers not watching the advertisements in
between segments of the television program. 8.
Denizen is an innovator in advertising and created the concept of “program integrated
advertisement” in order to entice viewers to pay attention to advertisements in various media, including, but not limited to, television, radio, and the Internet. 9.
The U.S. Patent and Trademark Office found that Denizen’s idea of program integrated
advertisements was novel and awarded Denizen a patent in 2005. 10.
Denizen created trade secrets for when and how to implement and go about contacting
the parties needed to make program integrated advertisements. See Exh. A at ¶¶ 7-9. Confidentiality Agreement between WPP and Denizen 11.
WPP sent Denizen a confidentiality agreement for execution prior to a meeting scheduled
for October 3, 2002. See id. at ¶ 5. A copy of the agreement executed by Denizen is attached as Exhibit B. 12.
The confidentiality agreement begins by stating:
In connection with our [WPP’s] consideration of a possible transaction (the “Transaction”) with One Eye Limp One Eye One Eye LLC (the “Company”), the Company is prepared to furnish us with certain confidential and proprietary information concerning its business. All such information, whether oral or written, is herein collectively referred to as “Material”. As a condition to the Company's furnishing us
2
with the Material, we agree as follows (it being understood that we are also agreeing to cause all our affiliates to comply with the provisions hereof): Exh. B. 13.
WPP agreed, for itself and all of its affiliates, to keep the Material confidential. Id. at § 1.
14.
Section 7 of the confidentiality agreement states:
The obligations regarding the non-Technology-related Confidential Information set forth in this Agreement shall terminate two (2) years after the date of this Agreement. The obligations regarding Technology-related Confidential Information shall terminate on the later of: (a) two (2) years after the date of this Agreement or (b) the date on which the Company’s patent application(s) regarding the Technology has been abandoned or accepted for issuance; provided that the Company shall provide notice to us promptly after such event. We agree that in no way does this Agreement or the termination thereof impart to us any license to use any intellectual property or proprietary rights of the Company. For purposes of this Section 7, “Technology” means the Company’s proprietary advertising method. Id. at § 7 (emphasis added). 15.
According to the terms of Section 7, the confidentiality obligations were to remain in
effect because Denizen has pending patent applications on certain aspects of the Technology. 16.
Section 6 of the confidentiality agreement recites:
the Company may be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement, in addition to all other remedies available to the Company at law or in equity. It is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. Id. at § 6. 17.
The confidentiality agreement is governed by and is to be construed in accordance with
New York law, without regard to New York’s conflict of laws provisions. Exh. B at § 8. Meeting between Denizen and WPP 18.
Denizen and Roel Smits of WPP met on October 3, 2002 at 125 Park Avenue, 4th Floor,
New York, NY 10017. See Exh. A at ¶¶ 4, 6. 19.
Upon information and belief, Mr. Smits was the Vice President of Corporate
Development for WPP. 3
20.
Prior to any discussions taking place on October 3, 2002 and after the confidentiality
agreement was fully executed, Denizen disclosed its proprietary, trade secret business plans to implement program integrated advertisements to WPP at WPP’s office. See id. at ¶¶ 6-9. 21.
Denizen disclosed its trade secrets to WPP so that a business relationship could be
entered between Denizen and WPP and/or WPP’s affiliates, including, but not limited to, WPP's subsidiaries and other related entities. See id. at ¶ 10. 22.
Upon learning of Denizen’s proprietary and confidential ideas, Mr. Smits informed
Denizen that he would contact various WPP entities to determine which ones could partner with and implement Denizen’s ideas. See id. at ¶ 11. Mr. Smits confirmed that he contacted WPP entities about Denizen’s ideas. See id. at ¶ 12. 23.
The WPP entities which Mr. Smits contacted are affiliates who were obligated to comply
with the terms of the confidentiality agreement. 24.
The WPP entities which Mr. Smits contacted also are “Representatives” under the
confidentiality agreement. See Exh. B at § 1. WPP was obligated to inform Representatives “of the confidential nature of the Material and [the Representatives] will be under a duty to maintain the confidentiality of the Material.” Id. 25.
Per WPP’s request, Denizen followed up with WPP in September 2004 by sending an e-
mail to Mr. Smits. See Exh. C at pp. 1-2; see also Exh. A at ¶¶ 12-13. 26.
Mr. Smits told Denizen that he was interested in “hear[ing] what you guys [Denizen]
have done to make a business out of this idea.” Exh. C at p. 1. Denizen’s Further Communications with WPP 27.
Denizen followed up with WPP via e-mail in October 2004. See Exh. D at pp. 1-2.
28.
In response to Denizen’s e-mail, WPP stated that it “would obviously love a situation
where MindShare is interested in entering into a partnership with you [Denizen].” See id. at p. 1. 29.
MindShare is a WPP entity.
30.
Approximately two years later, Denizen contacted WPP, provided an update as to its 4
business dealings, and suggested that Denizen work with numerous WPP affiliates, including WPP’s Group M, to implement program integrated advertisements. See Exh. E at pp. 4-6; see also Exh. A at ¶ 14. 31.
Denizen again contacted WPP on November 6, 2006 to work with a WPP affiliate to
implement program integrated advertisements. See Exh. E at pp. 3; see also Exh. A at ¶ 15. 32.
On November 7, 2006, Mark Read of WPP asked Denizen for more details of the
opportunity Denizen presented. See Exh. E at pp. 2-3; see also Exh. A at ¶¶ 15-16. 33.
Upon information and belief, Mr. Read is or was the Strategy Director and Chief
Executive Officer of WPP Digital. 34.
Denizen provided WPP additional information on the following day. See Exh. E at pp. 1-
2; see also Exh. A at ¶ 16. 35.
In response to the information Denizen provided, WPP mentioned that the opportunities
were “really something for our media agencies.” See Exh. E at p. 1; see also Exh. A at ¶ 16. 36.
Denizen asked WPP for a contact person at a WPP media agency, and in response, Mr.
Read informed Denizen that Peter Tortorici of Group M, a WPP entity, would consider the information Denizen provided. Exh. E at p. 1; see also Exh. A at ¶ 16. 37.
Upon information and belief, Mr. Tortorici is or was the Chief Executive Officer at
Group M and before that was the Chief Executive Officer of MindShare. 38.
Denizen received no further response from WPP or Mr. Tortorici. Exh. A at ¶ 16. JWT’s Advertising Campaign for Microsoft
39.
JWT is an affiliate of WPP. More specifically, JTW is a WPP subsidiary. See Exh. F.
40.
Denizen has not met or had discussions with any representatives from JWT.
41.
Denizen has disclosed its trade secrets to JWT’s parent company, WPP.
42.
Upon information and belief, Mr. Smits spoke to various WPP affiliates, including JWT,
about Denizen’s proprietary ideas.
5
43.
Upon information and belief, JWT created an advertising campaign for Microsoft’s Bing
search engine which features program integrated advertisements. See Exhs. G-H; Exh. A at ¶ 17. 44.
The JWT advertising campaign includes custom, co-branded promotional spots and
original branded-content vignettes. 45.
Examples
of
the
advertising
campaign
are
found
at
http://www.youtube.com/watch?v=nt2r0ibNmJU (last accessed August 13, 2009), a printout of which is attached as Exhibit I. 46.
Upon information and belief, based at least on the success of the Microsoft advertising
campaign, WPP intends to solicit customers by continuing to use Denizen’s proprietary, trade secret information to solicit customers for WPP and its affiliates, including, but not limited to, WPP's subsidiaries and other related entities. The Unauthorized Use of Denizen’s Trade Secrets Obliterated the Trade Secrets 47.
An article entitled “Bing Tie-In With the Philanthropist,” published by Shots on July 1,
2009, is about the Microsoft Bing advertising campaign created by JWT. See Exh. J. 48.
The Shots article begins by stating:
Micorsoft [sic] search engine Bing continues its TV marketing push with a unique tie in with hotly-tipped NBC show The Philanthropist. The series, starring James Purefoy and Neve Campbell, is about a billionaire who travels the world seeking out deserving causes. The idents which book-end segments of the show will feature characters and sets from it - and will in fact tie in with the plot of the first episode. Id. 49.
The article contends that the idents were “the first time a brand has tied in its sponsorship
spots to the plot of the show. In fact, the spots mirror the show so closely that they even use one of its directors.” Id. 50.
The article publicized that the advertisements were filmed “where the majority of the
show was shot” before the series wrap party. “Using pre-exisiting [sic] sets and cast members who were
6
already in the country meant that Bing saved costs and could get the idents [advertisements] as close to the feeling of the show as possible.” Id. 51.
According to the article, the director, Andy Wilson said, “They got an enormous amount
of bang for their buck.” Id. 52.
The article explains that the scripts for the idents were written by the series’ writers. See
53.
The article continued:
id.
According to Wilson [the director], having the sponsor so closely linked with the subject and plot of the show didn’t feel particularly uncomfortable. In fact, the team behind The Philanthropist were so keen to spread awareness about the issues discussed in the show that they were more than happy to collaborate with Bing. Exh. J. 54.
After reading the article, it became apparent that Denizen’s trade secrets were used to
make the advertisements for the Microsoft Bing campaign that involved The Philanthropist. See Exh. A at ¶ 18. 55.
Given the number of parties involved in creating the advertisements for the Microsoft
Bing campaign, Denizen’s trade secrets are now publicly known though no fault of Denizen. Id. CLAIMS COUNT ONE: WPP’S MISAPPROPRIATION OF TRADE SECRETS 56.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 57.
Denizen’s trade secret materials comprise information, including, but not limited its
business plans, techniques for implementing program integrated advertisements, such as, but without limitation, ways to shoot the advertisements, strategies for obtaining Screen Actors Guild contracts, methods to gain access or rights to television program content, and how an advertising agency could work with a production house or network, that are not generally known to the public or to other persons who can obtain economic value from their disclosure or use.
7
58.
This information is the subject of reasonable efforts by Denizen to maintain their secrecy,
and they derive independent economic value from not being generally known. 59.
The information comprising Denizen’s trade secrets constitutes “trade secrets” under
New York common law. 60.
Upon information and belief, WPP willfully and maliciously misappropriated Denizen’s
trade secrets and derivatives. 61.
By reason of the above alleged acts and conduct of WPP and, upon information and
belief, WPP’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered monetary damages to its business, lost customers and potential customers, and will suffer great harm and continuing damage due to the misappropriation of its trade secrets. 62.
Denizen is entitled to recover from WPP the actual, compensatory and consequential
damages sustained by Denizen as a result of WPP’s wrongful acts described in this Complaint or the value of WPP’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages. 63.
WPP’s acts of misappropriation were both willful and malicious, and, Denizen is entitled
to an award of punitive (exemplary) damages. 64.
Denizen is further entitled to an award of attorneys’ fees and costs against WPP. COUNT TWO: WPP’S BREACH OF CONTRACT
65.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 66.
Denizen entered into the confidentiality agreement with WPP attached as Exhibit B, and
fulfilled its obligations under the agreement. 67.
On information and belief, WPP breached the confidentiality agreement with Denizen by
using, disclosing, and permitting JWT to use Denizen’s trade secrets to create an advertising campaign featuring program integrated advertisements regarding Microsoft’s Bing search engine.
8
68.
As a result of WPP’s breach and, upon information and belief, WPP’s intent to solicit
customers by using Denizen’s trade secrets, Denizen has suffered and will suffer further harm, including the loss of confidential and proprietary information, competitive position, customers, and goodwill, the amount of which will be difficult to ascertain. 69.
Denizen is entitled to restitution for any damages incurred as a result of the breach by
WPP, including investigative costs. COUNT THREE: COMMON LAW UNFAIR COMPETITION – WPP 70.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 71.
WPP wrongfully obtained, possessed and used, and continues to possess and use,
Denizen’s confidential and proprietary information, which may constitute “trade secrets” (as defined by the Restatement of Torts § 757), relating to its business operations, customers and prospective customers. Denizen invested substantial time and money in developing the confidential and proprietary information at issue in this Complaint. By misappropriating Denizen’s intellectual property without authorization as described above, WPP has gained an unfair competitive advantage over Denizen.
WPP obtained
Denizen’s confidential and proprietary information at little or no cost, and used Denizen’s confidential and proprietary information to its benefit by disclosing and permitting JWT to use Denizen’s confidential and proprietary information. 72.
By reason of the above alleged acts and conduct of WPP, and, upon information and
belief, WPP’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered, and will continue to suffer, great harm and damage. 73.
Denizen is entitled to recover from WPP the greater of restitution for any damages
sustained by Denizen as a result of WPP’s wrongful acts described in this Complaint or the value of WPP’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages.
9
74.
WPP’s actions were both willful and malicious, and Denizen is entitled to an award of
punitive damages, attorneys’ fees, and costs against WPP. COUNT FOUR: CONVERSION – WPP 75.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 76.
Upon information and belief, WPP wrongfully converted valuable property belonging to
Denizen, including Denizen’s proprietary and confidential information. WPP’s conduct is both willful and malicious and has been or will be taken with the intention of causing harm to Denizen or has been taken with knowledge that harm will come to Denizen. 77.
As a result of the conversion by WPP of the aforesaid valuable property, Denizen has
been injured, damaged, and harmed. Because of the nature of the property converted, Denizen has and will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm 78.
Denizen is entitled to WPP's unjust enrichment from such conversion. COUNT FIVE: INTENTIONAL MISREPRESENTATION/FRAUD – WPP
79.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 80.
By the acts alleged in the preceding paragraphs, WPP has committed the tort of
intentional misrepresentation. 81.
Denizen disclosed its trade secrets to WPP so that a business relationship could be
entered between Denizen and WPP. See Exh. A at ¶ 10. 82.
In response to Denizen’s informing it that Denizen wished to form a relationship with
WPP, WPP said that it would contact various WPP affiliates, including, but not limited to subsidiaries and other related entities, to determine their interest in forming a relationship with Denizen. WPP also told Denizen that it would inform Denizen of possible opportunities for collaboration. See id. at ¶ 11.
10
83.
On information and belief, WPP contacted various WPP affiliates, including but not
limited to JWT, and disclosed Denizen’s trade secrets knowing that the affiliates were not going to form a relationship with Denizen. 84.
On information and belief, WPP made the false representations with the intention that
Denizen rely on the statements, and with the intention of inducing Denizen into not taking adverse action against WPP or WPP’s affiliates, including but not limited to WPP's subsidiaries or other related entities, such as but not notwithstanding Denizen's contacting Microsoft. 85.
Denizen was reasonable in relying on WPP’s misrepresentations because of the position
Mr. Smits held at WPP. 86.
WPP had a duty to disclose that it planned on using, or having its affiliates, including,
but not limited to, WPP's subsidiaries and other related entities, use, Denizen’s trade secrets to pitch and obtain clients and that it intended to create, or have its affiliates, including, but not limited to, WPP's subsidiaries and other related entities, create, advertisements through use of Denizen’s trade secrets. Had Denizen known those facts, it would have at least acted to protect its confidential and proprietary information and prevented dissemination of its trade secrets. 87.
As a result of the concealment, suppression, and its reliance on WPP’s
misrepresentations, Denizen suffered monetary and non-monetary harm. 88.
Denizen’s monetary harm includes lost profits and the benefits obtained by JWT’s
creating the advertising campaign for Microsoft. 89.
Denizen was harmed because of these misrepresentations, and the concealment of facts
allowed WPP more time in which to misappropriate and convert Denizen’s trade secrets, and confidential and proprietary information. WPP has used the wrongfully obtained information to obtain an unfair competitive advantage over Denizen.
Because of the nature of the property converted and
misappropriated, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm.
11
90.
WPP’s misrepresentations and concealment of facts were willful and malicious, and
Denizen is entitled to an award of punitive damages, attorneys’ fees, and costs against WPP. COUNT SIX: NEGLIGENT MISREPRESENTATION – WPP 91.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 92.
By the acts alleged in the preceding paragraphs, WPP has committed the tort of negligent
misrepresentation. 93.
WPP made false representations to Denizen that it contacted and disclosed Denizen’s
trade secrets to various WPP affiliates, including, but not limited to, WPP's subsidiaries and other related entities, for the purpose of forming a relationship with Denizen. 94.
WPP had no reasonable grounds for believing that these representations were true when
they made them. Upon information and belief, at the time they made the false representations, WPP was already planning to use Denizen’s trade secrets. 95.
Upon information and belief, WPP made the false representations with the intention that
Denizen rely on the statements, and with the intention of inducing Denizen into not taking any adverse action against WPP, WPP’s affiliates, including, but not limited to, WPP's subsidiaries and other related entities, such as but notwithstanding taking action to prevent misappropriation of its confidential information and preventing dissemination of its trade secrets. 96.
Denizen was reasonable in relying on WPP’s misrepresentations and, as a result, suffered
monetary and non-monetary harm. 97.
Denizen’s monetary harm includes the lost profits and the benefits obtained by JWT's
creating the advertising campaign for Microsoft. 98.
Denizen was harmed because WPP’s misrepresentations allowed it more time in which to
misappropriate and convert Denizen’s trade secrets, and confidential and proprietary information. WPP then used the wrongfully obtained information to give it an unfair competitive advantage over Denizen.
12
Because of the nature of the property converted and misappropriated, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm. COUNT SEVEN: UNJUST ENRICHMENT – WPP 99.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 100.
WPP received a benefit and unjustly retained and continue to retain that benefit at the
expense of and without compensating Denizen. COUNT EIGHT: JWT’S MISAPPROPRIATION OF TRADE SECRETS 101.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 102.
Denizen’s trade secret materials comprise information, including, but not limited its
business plans, techniques for implementing program integrated advertisements, such as, but without limitation, ways to shoot the advertisements, strategies for obtaining Screen Actors Guild contracts, methods to gain access or rights to television program content, and how an advertising agency could work with a production house or network, that are not generally known to the public or to other persons who can obtain economic value from their disclosure or use. 103.
This information is the subject of reasonable efforts by Denizen to maintain their secrecy,
and they derive independent economic value from not being generally known. 104.
The information comprising Denizen’s trade secrets constitutes “trade secrets” under
New York common law. 105.
JWT was under a duty to maintain the confidentiality of Denizen’s trade secrets pursuant.
See Exh. B; id. at § 1. 106.
JWT did not have a license to use Denizen’s trade secrets. See id. at § 7.
107.
Upon information and belief, JWT willfully and maliciously misappropriated Denizen’s
trade secrets and derivatives.
13
108.
By reason of the above alleged acts and conduct of JWT and, upon information and
belief, JWT’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered monetary damages to its business, lost customers and potential customers, and will suffer great harm and continuing damage due to the misappropriation of its trade secrets. 109.
Denizen is entitled to recover from JWT the actual, compensatory and consequential
damages sustained by Denizen as a result of JWT’s wrongful acts described in this Complaint or the value of JWT’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages. 110.
JWT’s acts of misappropriation were both willful and malicious, and, Denizen is entitled
to an award of punitive (exemplary) damages. 111.
Denizen is further entitled to an award of attorneys’ fees and costs against JWT. COUNT NINE: JWT'S BREACH OF CONTRACT
112.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 113.
Denizen entered into the confidentiality agreement with WPP attached as Exhibit B, and
fulfilled its obligations under the agreement. 114.
The confidentiality agreement states that "we agree as follows (it being understood that
we are also agreeing to cause all our affiliates to comply with the provisions hereof)," Exh. B, and that “Representatives will be informed of the confidential nature of the Material and will be under a duty to maintain the confidentiality of the Material.” Id. at § 1. 115.
As an affiliate of WPP, all of the provisions of the confidentiality agreement applied to
116.
Upon information and belief, WPP disclosed Denizen’s trade secrets to JWT, making
JWT.
JWT a “Representative” according to the confidentiality agreement. 117.
On information and belief, JWT breached its duty to maintain the confidentiality of
Denizen’s trade secrets specified in the confidentiality agreement by using Denizen’s trade secrets to 14
create an advertising campaign featuring program integrated advertisements regarding Microsoft’s Bing search engine. 118.
As a result of JWT’s breach and, upon information and belief, JWT’s intent to solicit
customers by using Denizen’s trade secrets, Denizen has suffered and will suffer further harm, including the loss of confidential and proprietary information, competitive position, customers, and goodwill, the amount of which will be difficult to ascertain. 119.
Denizen is entitled to restitution for any damages incurred as a result of the breach by
JWT, including investigative costs. COUNT TEN: COMMON LAW UNFAIR COMPETITION – JWT 120.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 121.
JWT wrongfully obtained, possessed and used, and continues to possess and use,
Denizen’s confidential and proprietary information, which may constitute “trade secrets” (as defined by the Restatement of Torts § 757), relating to its business operations, customers and prospective customers. Denizen invested substantial time and money in developing the confidential and proprietary information at issue in this Complaint. By misappropriating Denizen’s intellectual property without authorization as described above, JWT has gained an unfair competitive advantage over Denizen.
JWT obtained
Denizen’s confidential and proprietary information at little or no cost, and used Denizen’s confidential and proprietary information to its benefit by disclosing and permitting JWT to use Denizen’s confidential and proprietary information. 122.
By reason of the above alleged acts and conduct of JWT, and, upon information and
belief, JWT’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered, and will continue to suffer, great harm and damage. 123.
Denizen is entitled to recover from JWT the greater of restitution for any damages
sustained by Denizen as a result of JWT’s wrongful acts described in this Complaint or the value of
15
JWT’s unjust enrichment in an amount to be determined at trial. Denizen is at presently unable to ascertain the full extent of such damages. 124.
JWT’s actions were both willful and malicious, and Denizen is entitled to an award of
punitive damages, attorneys’ fees, and costs against JWT. COUNT ELEVEN: CONVERSION – JWT 125.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 126.
Upon information and belief, JWT wrongfully converted valuable property belonging to
Denizen, including Denizen’s proprietary and confidential information. JWT’s conduct is both willful and malicious and has been or will be taken with the intention of causing harm to Denizen or has been taken with knowledge that harm will come to Denizen. 127.
As a result of the conversion by JWT of the aforesaid valuable property, Denizen has
been injured, damaged, and harmed. Because of the nature of the property converted, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm. 128.
Denizen is entitled to JWT’s unjust enrichment from such conversion. COUNT TWELVE: UNJUST ENRICHMENT – JWT
129.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 130.
JWT received a benefit and unjustly retained and continue to retain that benefit at the
expense of and without compensating Denizen. JURY DEMAND Denizen hereby demands a jury trial on all issues appropriately triable by jury. PRAYER FOR RELIEF WHEREFORE, Denizen prays for judgment against WPP and JWT as follows: (1)
Restitution;
16
(2)
An accounting of all profits and revenue generated by WPP and JWT relating to the use
of Denizen's trade secrets; (3)
The greater of actual, compensatory and consequential damages or the value of WPP’s
and JWT’s unjust enrichment or a reasonable royalty in an amount to be determined at trial; (4)
Exemplary damages pursuant to 6 Del. C. § 2003(b);
(5)
Attorneys’ fees pursuant to 6 Del. C. § 2004;
(6)
Punitive damages;
(7)
All costs of suit herein incurred, including investigative costs;
(8)
Pre- and post-judgment interest as provided by law; and
(9)
Such other and further relief to which Denizen may be justly entitled as the Court may
deem proper. Dated: August 14, 2009
STAMOULIS & WEINBLATT LLC /s/ Richard C. Weinblatt Stamatios Stamoulis #4606 [email protected] Richard C. Weinblatt #5080 [email protected] 5616 Kirkwood Highway Wilmington, DE 19808 Telephone: (302) 999-1540 Attorneys for Plaintiff
17
) ) ) ) ) ) ) ) ) ) ) ) ) )
Civil Action No. _______ JURY TRIAL DEMANDED
COMPLAINT Denizen LLC (“Denizen”) hereby alleges by and through its attorneys as follows: THE PARTIES 1.
Denizen is a Delaware limited liability company with its principal place of business
located in the state of Maryland. Denizen’s predecessor company is One Eye Limp One Eye One Eye, LLC. 2.
Defendant WPP Group USA, Inc. (“WPP”) is a Delaware corporation with, upon
information and belief, its principal place of business located in New York, New York. 3.
Defendant J. Walter Thompson Company is a Delaware corporation with, upon
information and belief, its principal place of business located in New York, New York. 4.
Defendant J. Walter Thompson U.S.A., Inc. (J. Walter Thompson U.S.A., Inc. and J.
Walter Thompson Company are collectively referred to herein as “JWT”) is a Delaware corporation with, upon information and belief, its principal place of business located in New York, New York.
1
JURISDICTION 5.
This action arises under various provisions of the Delaware Code, including 6 Del. C. §
2001 et seq., and under applicable common law governing substantial and related claims that arise out of the same or related operative facts. FACTUAL BACKGROUND Denizen’s Business Activities, Trade Secrets, and Other Confidential and Proprietary Information 6.
Television networks generally sell advertising during television programs and generally
receive revenue for use of the commercial airtime in proportion to the program’s viewership, i.e., ratings. 7.
As such, networks face the problem of viewers not watching the advertisements in
between segments of the television program. 8.
Denizen is an innovator in advertising and created the concept of “program integrated
advertisement” in order to entice viewers to pay attention to advertisements in various media, including, but not limited to, television, radio, and the Internet. 9.
The U.S. Patent and Trademark Office found that Denizen’s idea of program integrated
advertisements was novel and awarded Denizen a patent in 2005. 10.
Denizen created trade secrets for when and how to implement and go about contacting
the parties needed to make program integrated advertisements. See Exh. A at ¶¶ 7-9. Confidentiality Agreement between WPP and Denizen 11.
WPP sent Denizen a confidentiality agreement for execution prior to a meeting scheduled
for October 3, 2002. See id. at ¶ 5. A copy of the agreement executed by Denizen is attached as Exhibit B. 12.
The confidentiality agreement begins by stating:
In connection with our [WPP’s] consideration of a possible transaction (the “Transaction”) with One Eye Limp One Eye One Eye LLC (the “Company”), the Company is prepared to furnish us with certain confidential and proprietary information concerning its business. All such information, whether oral or written, is herein collectively referred to as “Material”. As a condition to the Company's furnishing us
2
with the Material, we agree as follows (it being understood that we are also agreeing to cause all our affiliates to comply with the provisions hereof): Exh. B. 13.
WPP agreed, for itself and all of its affiliates, to keep the Material confidential. Id. at § 1.
14.
Section 7 of the confidentiality agreement states:
The obligations regarding the non-Technology-related Confidential Information set forth in this Agreement shall terminate two (2) years after the date of this Agreement. The obligations regarding Technology-related Confidential Information shall terminate on the later of: (a) two (2) years after the date of this Agreement or (b) the date on which the Company’s patent application(s) regarding the Technology has been abandoned or accepted for issuance; provided that the Company shall provide notice to us promptly after such event. We agree that in no way does this Agreement or the termination thereof impart to us any license to use any intellectual property or proprietary rights of the Company. For purposes of this Section 7, “Technology” means the Company’s proprietary advertising method. Id. at § 7 (emphasis added). 15.
According to the terms of Section 7, the confidentiality obligations were to remain in
effect because Denizen has pending patent applications on certain aspects of the Technology. 16.
Section 6 of the confidentiality agreement recites:
the Company may be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement, in addition to all other remedies available to the Company at law or in equity. It is further understood and agreed that no failure or delay by the Company in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. Id. at § 6. 17.
The confidentiality agreement is governed by and is to be construed in accordance with
New York law, without regard to New York’s conflict of laws provisions. Exh. B at § 8. Meeting between Denizen and WPP 18.
Denizen and Roel Smits of WPP met on October 3, 2002 at 125 Park Avenue, 4th Floor,
New York, NY 10017. See Exh. A at ¶¶ 4, 6. 19.
Upon information and belief, Mr. Smits was the Vice President of Corporate
Development for WPP. 3
20.
Prior to any discussions taking place on October 3, 2002 and after the confidentiality
agreement was fully executed, Denizen disclosed its proprietary, trade secret business plans to implement program integrated advertisements to WPP at WPP’s office. See id. at ¶¶ 6-9. 21.
Denizen disclosed its trade secrets to WPP so that a business relationship could be
entered between Denizen and WPP and/or WPP’s affiliates, including, but not limited to, WPP's subsidiaries and other related entities. See id. at ¶ 10. 22.
Upon learning of Denizen’s proprietary and confidential ideas, Mr. Smits informed
Denizen that he would contact various WPP entities to determine which ones could partner with and implement Denizen’s ideas. See id. at ¶ 11. Mr. Smits confirmed that he contacted WPP entities about Denizen’s ideas. See id. at ¶ 12. 23.
The WPP entities which Mr. Smits contacted are affiliates who were obligated to comply
with the terms of the confidentiality agreement. 24.
The WPP entities which Mr. Smits contacted also are “Representatives” under the
confidentiality agreement. See Exh. B at § 1. WPP was obligated to inform Representatives “of the confidential nature of the Material and [the Representatives] will be under a duty to maintain the confidentiality of the Material.” Id. 25.
Per WPP’s request, Denizen followed up with WPP in September 2004 by sending an e-
mail to Mr. Smits. See Exh. C at pp. 1-2; see also Exh. A at ¶¶ 12-13. 26.
Mr. Smits told Denizen that he was interested in “hear[ing] what you guys [Denizen]
have done to make a business out of this idea.” Exh. C at p. 1. Denizen’s Further Communications with WPP 27.
Denizen followed up with WPP via e-mail in October 2004. See Exh. D at pp. 1-2.
28.
In response to Denizen’s e-mail, WPP stated that it “would obviously love a situation
where MindShare is interested in entering into a partnership with you [Denizen].” See id. at p. 1. 29.
MindShare is a WPP entity.
30.
Approximately two years later, Denizen contacted WPP, provided an update as to its 4
business dealings, and suggested that Denizen work with numerous WPP affiliates, including WPP’s Group M, to implement program integrated advertisements. See Exh. E at pp. 4-6; see also Exh. A at ¶ 14. 31.
Denizen again contacted WPP on November 6, 2006 to work with a WPP affiliate to
implement program integrated advertisements. See Exh. E at pp. 3; see also Exh. A at ¶ 15. 32.
On November 7, 2006, Mark Read of WPP asked Denizen for more details of the
opportunity Denizen presented. See Exh. E at pp. 2-3; see also Exh. A at ¶¶ 15-16. 33.
Upon information and belief, Mr. Read is or was the Strategy Director and Chief
Executive Officer of WPP Digital. 34.
Denizen provided WPP additional information on the following day. See Exh. E at pp. 1-
2; see also Exh. A at ¶ 16. 35.
In response to the information Denizen provided, WPP mentioned that the opportunities
were “really something for our media agencies.” See Exh. E at p. 1; see also Exh. A at ¶ 16. 36.
Denizen asked WPP for a contact person at a WPP media agency, and in response, Mr.
Read informed Denizen that Peter Tortorici of Group M, a WPP entity, would consider the information Denizen provided. Exh. E at p. 1; see also Exh. A at ¶ 16. 37.
Upon information and belief, Mr. Tortorici is or was the Chief Executive Officer at
Group M and before that was the Chief Executive Officer of MindShare. 38.
Denizen received no further response from WPP or Mr. Tortorici. Exh. A at ¶ 16. JWT’s Advertising Campaign for Microsoft
39.
JWT is an affiliate of WPP. More specifically, JTW is a WPP subsidiary. See Exh. F.
40.
Denizen has not met or had discussions with any representatives from JWT.
41.
Denizen has disclosed its trade secrets to JWT’s parent company, WPP.
42.
Upon information and belief, Mr. Smits spoke to various WPP affiliates, including JWT,
about Denizen’s proprietary ideas.
5
43.
Upon information and belief, JWT created an advertising campaign for Microsoft’s Bing
search engine which features program integrated advertisements. See Exhs. G-H; Exh. A at ¶ 17. 44.
The JWT advertising campaign includes custom, co-branded promotional spots and
original branded-content vignettes. 45.
Examples
of
the
advertising
campaign
are
found
at
http://www.youtube.com/watch?v=nt2r0ibNmJU (last accessed August 13, 2009), a printout of which is attached as Exhibit I. 46.
Upon information and belief, based at least on the success of the Microsoft advertising
campaign, WPP intends to solicit customers by continuing to use Denizen’s proprietary, trade secret information to solicit customers for WPP and its affiliates, including, but not limited to, WPP's subsidiaries and other related entities. The Unauthorized Use of Denizen’s Trade Secrets Obliterated the Trade Secrets 47.
An article entitled “Bing Tie-In With the Philanthropist,” published by Shots on July 1,
2009, is about the Microsoft Bing advertising campaign created by JWT. See Exh. J. 48.
The Shots article begins by stating:
Micorsoft [sic] search engine Bing continues its TV marketing push with a unique tie in with hotly-tipped NBC show The Philanthropist. The series, starring James Purefoy and Neve Campbell, is about a billionaire who travels the world seeking out deserving causes. The idents which book-end segments of the show will feature characters and sets from it - and will in fact tie in with the plot of the first episode. Id. 49.
The article contends that the idents were “the first time a brand has tied in its sponsorship
spots to the plot of the show. In fact, the spots mirror the show so closely that they even use one of its directors.” Id. 50.
The article publicized that the advertisements were filmed “where the majority of the
show was shot” before the series wrap party. “Using pre-exisiting [sic] sets and cast members who were
6
already in the country meant that Bing saved costs and could get the idents [advertisements] as close to the feeling of the show as possible.” Id. 51.
According to the article, the director, Andy Wilson said, “They got an enormous amount
of bang for their buck.” Id. 52.
The article explains that the scripts for the idents were written by the series’ writers. See
53.
The article continued:
id.
According to Wilson [the director], having the sponsor so closely linked with the subject and plot of the show didn’t feel particularly uncomfortable. In fact, the team behind The Philanthropist were so keen to spread awareness about the issues discussed in the show that they were more than happy to collaborate with Bing. Exh. J. 54.
After reading the article, it became apparent that Denizen’s trade secrets were used to
make the advertisements for the Microsoft Bing campaign that involved The Philanthropist. See Exh. A at ¶ 18. 55.
Given the number of parties involved in creating the advertisements for the Microsoft
Bing campaign, Denizen’s trade secrets are now publicly known though no fault of Denizen. Id. CLAIMS COUNT ONE: WPP’S MISAPPROPRIATION OF TRADE SECRETS 56.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 57.
Denizen’s trade secret materials comprise information, including, but not limited its
business plans, techniques for implementing program integrated advertisements, such as, but without limitation, ways to shoot the advertisements, strategies for obtaining Screen Actors Guild contracts, methods to gain access or rights to television program content, and how an advertising agency could work with a production house or network, that are not generally known to the public or to other persons who can obtain economic value from their disclosure or use.
7
58.
This information is the subject of reasonable efforts by Denizen to maintain their secrecy,
and they derive independent economic value from not being generally known. 59.
The information comprising Denizen’s trade secrets constitutes “trade secrets” under
New York common law. 60.
Upon information and belief, WPP willfully and maliciously misappropriated Denizen’s
trade secrets and derivatives. 61.
By reason of the above alleged acts and conduct of WPP and, upon information and
belief, WPP’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered monetary damages to its business, lost customers and potential customers, and will suffer great harm and continuing damage due to the misappropriation of its trade secrets. 62.
Denizen is entitled to recover from WPP the actual, compensatory and consequential
damages sustained by Denizen as a result of WPP’s wrongful acts described in this Complaint or the value of WPP’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages. 63.
WPP’s acts of misappropriation were both willful and malicious, and, Denizen is entitled
to an award of punitive (exemplary) damages. 64.
Denizen is further entitled to an award of attorneys’ fees and costs against WPP. COUNT TWO: WPP’S BREACH OF CONTRACT
65.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 66.
Denizen entered into the confidentiality agreement with WPP attached as Exhibit B, and
fulfilled its obligations under the agreement. 67.
On information and belief, WPP breached the confidentiality agreement with Denizen by
using, disclosing, and permitting JWT to use Denizen’s trade secrets to create an advertising campaign featuring program integrated advertisements regarding Microsoft’s Bing search engine.
8
68.
As a result of WPP’s breach and, upon information and belief, WPP’s intent to solicit
customers by using Denizen’s trade secrets, Denizen has suffered and will suffer further harm, including the loss of confidential and proprietary information, competitive position, customers, and goodwill, the amount of which will be difficult to ascertain. 69.
Denizen is entitled to restitution for any damages incurred as a result of the breach by
WPP, including investigative costs. COUNT THREE: COMMON LAW UNFAIR COMPETITION – WPP 70.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 71.
WPP wrongfully obtained, possessed and used, and continues to possess and use,
Denizen’s confidential and proprietary information, which may constitute “trade secrets” (as defined by the Restatement of Torts § 757), relating to its business operations, customers and prospective customers. Denizen invested substantial time and money in developing the confidential and proprietary information at issue in this Complaint. By misappropriating Denizen’s intellectual property without authorization as described above, WPP has gained an unfair competitive advantage over Denizen.
WPP obtained
Denizen’s confidential and proprietary information at little or no cost, and used Denizen’s confidential and proprietary information to its benefit by disclosing and permitting JWT to use Denizen’s confidential and proprietary information. 72.
By reason of the above alleged acts and conduct of WPP, and, upon information and
belief, WPP’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered, and will continue to suffer, great harm and damage. 73.
Denizen is entitled to recover from WPP the greater of restitution for any damages
sustained by Denizen as a result of WPP’s wrongful acts described in this Complaint or the value of WPP’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages.
9
74.
WPP’s actions were both willful and malicious, and Denizen is entitled to an award of
punitive damages, attorneys’ fees, and costs against WPP. COUNT FOUR: CONVERSION – WPP 75.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 76.
Upon information and belief, WPP wrongfully converted valuable property belonging to
Denizen, including Denizen’s proprietary and confidential information. WPP’s conduct is both willful and malicious and has been or will be taken with the intention of causing harm to Denizen or has been taken with knowledge that harm will come to Denizen. 77.
As a result of the conversion by WPP of the aforesaid valuable property, Denizen has
been injured, damaged, and harmed. Because of the nature of the property converted, Denizen has and will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm 78.
Denizen is entitled to WPP's unjust enrichment from such conversion. COUNT FIVE: INTENTIONAL MISREPRESENTATION/FRAUD – WPP
79.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 80.
By the acts alleged in the preceding paragraphs, WPP has committed the tort of
intentional misrepresentation. 81.
Denizen disclosed its trade secrets to WPP so that a business relationship could be
entered between Denizen and WPP. See Exh. A at ¶ 10. 82.
In response to Denizen’s informing it that Denizen wished to form a relationship with
WPP, WPP said that it would contact various WPP affiliates, including, but not limited to subsidiaries and other related entities, to determine their interest in forming a relationship with Denizen. WPP also told Denizen that it would inform Denizen of possible opportunities for collaboration. See id. at ¶ 11.
10
83.
On information and belief, WPP contacted various WPP affiliates, including but not
limited to JWT, and disclosed Denizen’s trade secrets knowing that the affiliates were not going to form a relationship with Denizen. 84.
On information and belief, WPP made the false representations with the intention that
Denizen rely on the statements, and with the intention of inducing Denizen into not taking adverse action against WPP or WPP’s affiliates, including but not limited to WPP's subsidiaries or other related entities, such as but not notwithstanding Denizen's contacting Microsoft. 85.
Denizen was reasonable in relying on WPP’s misrepresentations because of the position
Mr. Smits held at WPP. 86.
WPP had a duty to disclose that it planned on using, or having its affiliates, including,
but not limited to, WPP's subsidiaries and other related entities, use, Denizen’s trade secrets to pitch and obtain clients and that it intended to create, or have its affiliates, including, but not limited to, WPP's subsidiaries and other related entities, create, advertisements through use of Denizen’s trade secrets. Had Denizen known those facts, it would have at least acted to protect its confidential and proprietary information and prevented dissemination of its trade secrets. 87.
As a result of the concealment, suppression, and its reliance on WPP’s
misrepresentations, Denizen suffered monetary and non-monetary harm. 88.
Denizen’s monetary harm includes lost profits and the benefits obtained by JWT’s
creating the advertising campaign for Microsoft. 89.
Denizen was harmed because of these misrepresentations, and the concealment of facts
allowed WPP more time in which to misappropriate and convert Denizen’s trade secrets, and confidential and proprietary information. WPP has used the wrongfully obtained information to obtain an unfair competitive advantage over Denizen.
Because of the nature of the property converted and
misappropriated, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm.
11
90.
WPP’s misrepresentations and concealment of facts were willful and malicious, and
Denizen is entitled to an award of punitive damages, attorneys’ fees, and costs against WPP. COUNT SIX: NEGLIGENT MISREPRESENTATION – WPP 91.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 92.
By the acts alleged in the preceding paragraphs, WPP has committed the tort of negligent
misrepresentation. 93.
WPP made false representations to Denizen that it contacted and disclosed Denizen’s
trade secrets to various WPP affiliates, including, but not limited to, WPP's subsidiaries and other related entities, for the purpose of forming a relationship with Denizen. 94.
WPP had no reasonable grounds for believing that these representations were true when
they made them. Upon information and belief, at the time they made the false representations, WPP was already planning to use Denizen’s trade secrets. 95.
Upon information and belief, WPP made the false representations with the intention that
Denizen rely on the statements, and with the intention of inducing Denizen into not taking any adverse action against WPP, WPP’s affiliates, including, but not limited to, WPP's subsidiaries and other related entities, such as but notwithstanding taking action to prevent misappropriation of its confidential information and preventing dissemination of its trade secrets. 96.
Denizen was reasonable in relying on WPP’s misrepresentations and, as a result, suffered
monetary and non-monetary harm. 97.
Denizen’s monetary harm includes the lost profits and the benefits obtained by JWT's
creating the advertising campaign for Microsoft. 98.
Denizen was harmed because WPP’s misrepresentations allowed it more time in which to
misappropriate and convert Denizen’s trade secrets, and confidential and proprietary information. WPP then used the wrongfully obtained information to give it an unfair competitive advantage over Denizen.
12
Because of the nature of the property converted and misappropriated, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm. COUNT SEVEN: UNJUST ENRICHMENT – WPP 99.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 100.
WPP received a benefit and unjustly retained and continue to retain that benefit at the
expense of and without compensating Denizen. COUNT EIGHT: JWT’S MISAPPROPRIATION OF TRADE SECRETS 101.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 102.
Denizen’s trade secret materials comprise information, including, but not limited its
business plans, techniques for implementing program integrated advertisements, such as, but without limitation, ways to shoot the advertisements, strategies for obtaining Screen Actors Guild contracts, methods to gain access or rights to television program content, and how an advertising agency could work with a production house or network, that are not generally known to the public or to other persons who can obtain economic value from their disclosure or use. 103.
This information is the subject of reasonable efforts by Denizen to maintain their secrecy,
and they derive independent economic value from not being generally known. 104.
The information comprising Denizen’s trade secrets constitutes “trade secrets” under
New York common law. 105.
JWT was under a duty to maintain the confidentiality of Denizen’s trade secrets pursuant.
See Exh. B; id. at § 1. 106.
JWT did not have a license to use Denizen’s trade secrets. See id. at § 7.
107.
Upon information and belief, JWT willfully and maliciously misappropriated Denizen’s
trade secrets and derivatives.
13
108.
By reason of the above alleged acts and conduct of JWT and, upon information and
belief, JWT’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered monetary damages to its business, lost customers and potential customers, and will suffer great harm and continuing damage due to the misappropriation of its trade secrets. 109.
Denizen is entitled to recover from JWT the actual, compensatory and consequential
damages sustained by Denizen as a result of JWT’s wrongful acts described in this Complaint or the value of JWT’s unjust enrichment in an amount to be determined at trial. Denizen is at present unable to ascertain the full extent of such damages. 110.
JWT’s acts of misappropriation were both willful and malicious, and, Denizen is entitled
to an award of punitive (exemplary) damages. 111.
Denizen is further entitled to an award of attorneys’ fees and costs against JWT. COUNT NINE: JWT'S BREACH OF CONTRACT
112.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 113.
Denizen entered into the confidentiality agreement with WPP attached as Exhibit B, and
fulfilled its obligations under the agreement. 114.
The confidentiality agreement states that "we agree as follows (it being understood that
we are also agreeing to cause all our affiliates to comply with the provisions hereof)," Exh. B, and that “Representatives will be informed of the confidential nature of the Material and will be under a duty to maintain the confidentiality of the Material.” Id. at § 1. 115.
As an affiliate of WPP, all of the provisions of the confidentiality agreement applied to
116.
Upon information and belief, WPP disclosed Denizen’s trade secrets to JWT, making
JWT.
JWT a “Representative” according to the confidentiality agreement. 117.
On information and belief, JWT breached its duty to maintain the confidentiality of
Denizen’s trade secrets specified in the confidentiality agreement by using Denizen’s trade secrets to 14
create an advertising campaign featuring program integrated advertisements regarding Microsoft’s Bing search engine. 118.
As a result of JWT’s breach and, upon information and belief, JWT’s intent to solicit
customers by using Denizen’s trade secrets, Denizen has suffered and will suffer further harm, including the loss of confidential and proprietary information, competitive position, customers, and goodwill, the amount of which will be difficult to ascertain. 119.
Denizen is entitled to restitution for any damages incurred as a result of the breach by
JWT, including investigative costs. COUNT TEN: COMMON LAW UNFAIR COMPETITION – JWT 120.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 121.
JWT wrongfully obtained, possessed and used, and continues to possess and use,
Denizen’s confidential and proprietary information, which may constitute “trade secrets” (as defined by the Restatement of Torts § 757), relating to its business operations, customers and prospective customers. Denizen invested substantial time and money in developing the confidential and proprietary information at issue in this Complaint. By misappropriating Denizen’s intellectual property without authorization as described above, JWT has gained an unfair competitive advantage over Denizen.
JWT obtained
Denizen’s confidential and proprietary information at little or no cost, and used Denizen’s confidential and proprietary information to its benefit by disclosing and permitting JWT to use Denizen’s confidential and proprietary information. 122.
By reason of the above alleged acts and conduct of JWT, and, upon information and
belief, JWT’s intent to solicit customers by using Denizen’s trade secrets, Denizen has suffered, and will continue to suffer, great harm and damage. 123.
Denizen is entitled to recover from JWT the greater of restitution for any damages
sustained by Denizen as a result of JWT’s wrongful acts described in this Complaint or the value of
15
JWT’s unjust enrichment in an amount to be determined at trial. Denizen is at presently unable to ascertain the full extent of such damages. 124.
JWT’s actions were both willful and malicious, and Denizen is entitled to an award of
punitive damages, attorneys’ fees, and costs against JWT. COUNT ELEVEN: CONVERSION – JWT 125.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 126.
Upon information and belief, JWT wrongfully converted valuable property belonging to
Denizen, including Denizen’s proprietary and confidential information. JWT’s conduct is both willful and malicious and has been or will be taken with the intention of causing harm to Denizen or has been taken with knowledge that harm will come to Denizen. 127.
As a result of the conversion by JWT of the aforesaid valuable property, Denizen has
been injured, damaged, and harmed. Because of the nature of the property converted, Denizen will continue to suffer a loss of sales, loss of business reputation and goodwill, and other harm. 128.
Denizen is entitled to JWT’s unjust enrichment from such conversion. COUNT TWELVE: UNJUST ENRICHMENT – JWT
129.
Denizen repeats and realleges each and every allegation made in the foregoing
paragraphs as if fully set forth herein. 130.
JWT received a benefit and unjustly retained and continue to retain that benefit at the
expense of and without compensating Denizen. JURY DEMAND Denizen hereby demands a jury trial on all issues appropriately triable by jury. PRAYER FOR RELIEF WHEREFORE, Denizen prays for judgment against WPP and JWT as follows: (1)
Restitution;
16
(2)
An accounting of all profits and revenue generated by WPP and JWT relating to the use
of Denizen's trade secrets; (3)
The greater of actual, compensatory and consequential damages or the value of WPP’s
and JWT’s unjust enrichment or a reasonable royalty in an amount to be determined at trial; (4)
Exemplary damages pursuant to 6 Del. C. § 2003(b);
(5)
Attorneys’ fees pursuant to 6 Del. C. § 2004;
(6)
Punitive damages;
(7)
All costs of suit herein incurred, including investigative costs;
(8)
Pre- and post-judgment interest as provided by law; and
(9)
Such other and further relief to which Denizen may be justly entitled as the Court may
deem proper. Dated: August 14, 2009
STAMOULIS & WEINBLATT LLC /s/ Richard C. Weinblatt Stamatios Stamoulis #4606 [email protected] Richard C. Weinblatt #5080 [email protected] 5616 Kirkwood Highway Wilmington, DE 19808 Telephone: (302) 999-1540 Attorneys for Plaintiff
17
Related Documents
Hill Electronic Catalog Patent Complaint
June 2020 3
Re/max Cybersquatting Complaint
May 2020 5
Usdoj Complaint Re Ehpd
April 2020 7
2ry Patent For Protection
May 2020 6
Patent Basics For Accountants
May 2020 3More Documents from "Jose L. Sanchez"
