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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE QSOFT CONSULTING LIMITED, Plaintiff, v. TEDDY TONG and TDTONG LTD., Defendants. ) ) ) ) ) C.A. No._________( ) ) ) )
)
VERIFIED COMPLAINT Plaintiff QSoft Consulting Limited ("Plaintiff," or "QSoft"), by and through its undersigned attorneys, hereby brings the following Verified Complaint against Defendants Teddy Tong ("Tong") and tdtong ltd (collectively, "Defendants"), and states as follows: SUMMARY OF ACTION 1. QSoft is the world's leading provider of online gay and lesbian oriented
services. QSoft owns and operates several online communities where QSoft members can meet, chat, or access other Internet-based services. Since November 2006 and
continuing through the date of filing, QSoft has been receiving complaints from its members about being targeted by recurring, unsolicited commercial messages. These unsolicited messages are being sent by Tong and promote websites, which are registered to Defendants, and which offer services in direct competition with QSoft's online services and infringe on QSoft's protected GAYDAR mark. QSoft files this action to enjoin Defendants from continuing their ongoing illegal and injurious conduct and for actual damages suffered as a result of such conduct.
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PARTIES AND VENUE 2. QSoft is a private British corporation having its principal place of
business at Twickenham, Middlesex, TW1 4EG, United Kingdom. 3. Upon information and belief, Defendants are residents of New Jersey,
with a claimed address in Princeton, New Jersey, and are the registrants of record for the following Infringing Domain Names:
Defendants are the registrants of
Lanham Act, 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) and 1338(b), the Controlling the Assault of Non-Solicited Pornography Act (the "CAN-SPAM Act"), 15 U.S.C. § 7706(f)(7), and the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. This Court also has supplemental jurisdiction over the state law claims included herein pursuant to 28 U.S.C. § 1367, as such claims are so related to the claims over which this Court has original jurisdiction that they form part of the same case or controversy. 5. Defendant Teddy Tong has submitted himself to the jurisdiction of this
Court by registering the Infringing Domain Names with Estdomains Inc., a Delaware corporation.
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6.
Defendant tdtong ltd. has submitted itself the jurisdiction of this Court
by registering the Infringing Domain Names with Estdomains Inc., a Delaware corporation. 7. Upon information and belief, Defendants solicit, transact and do
business within this Judicial District. Defendants have also maintained systematic and continuous contacts with Delaware via the email and Internet-related violations described below. 8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a
substantial portion of the events giving rise to the claims pled herein occurred in this Judicial District and, upon information and belief, Defendants do business in this Judicial District. FACTUAL ALLEGATIONS 9. 10. QSoft was incorporated on November 27, 1997. QSoft is a technology company with a network of complimentary media
brands/marks that include the world's leading gay and lesbian dating websites and an online digital radio station. 11. QSoft's media brands/marks include GAYDAR and RAINBOW
NETWORK, as well as the related URLs
names through which its online services are accessible. A complete list of QSoft's domain names is attached as Exhibit B.
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13.
Since November 1999, QSoft has been extensively involved in the
development of interactive online services for the gay and lesbian community. 14. Since November 1999, QSoft has supplied online dating services for the
gay and lesbian community under the media brand/mark GAYDAR. 15. QSoft's network of websites serves more than 300 million page
impressions per month to over three million registered and audited users ("Gaydar Members"). 16. Of its three million registered and audited users, approximately 409,026
are residents of the United States. QSOFT'S MARKS AND REGISTRATIONS 17. QSoft first adopted its GAYDAR mark in May 1999, when the domain
name
European Community. On January 9, 2003, QSoft registered GAYDAR as a trademark in the European Community. 19. 20. 2001. 21. 22. 2004. 23. 2003. QSoft registered the domain name
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24. 6, 1998. 25. 2001. 26.
QSoft registered the domain name
QSoft registered the domain name
QSoft currently operates its online dating and chat services business
through the domain names:
operates the
Websites include access to other GAYDAR websites, the ability to send and receive electronic communications to and from other Gaydar Members, and other features such as chat rooms, online content, or online applications offered from time to time by QSoft in connection with the GAYDAR Websites. 29. "CupidoCam." 30. QSoft personnel expend significant time and energy to minimize any QSoft provides advertising for a webcam service known as
disruption to its services and members by indiscriminate and unauthorized mass mailings of unsolicited commercial email ("spam").
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31.
QSoft regulates its GAYDAR websites and service in part by strictly
prohibiting the sending of spam through the GAYDAR websites. QSoft also prohibits any automated use of its system, such as the use of scripts, bots, or other executable programs that, among other things, may alter a user's experience and damage QSoft's computer network. 32. QSoft's prohibitions of unsolicited commercial messages, registration of
multiple user accounts per individual, submission of false registration information, and promotion of other commercial products or services are set forth in its contracts with its users. QSoft's contract with Gaydar Members is referred to as the Gaydar Website Membership Terms and Conditions ("Terms and Conditions"). QSoft's current Terms and Conditions are publicly posted on its website at http://gaydar.co.uk. A true and correct copy of QSoft's current Terms and Conditions is attached hereto as Exhibit C. 33. QSoft's Terms and Conditions specifically prohibit Gaydar Members
from advertising or promoting the user's or a third-party's products or services in any manner without QSoft's permission. 34. QSoft's Terms and Conditions govern the use of the GAYDAR
websites, and in order to become a Gaydar Member, communicate with other Gaydar Members, and make use of the services provided by QSoft, a user must first agree to be bound by the Terms and Conditions before being allowed to register for an account. QSOFT'S PROMOTION OF GAYDAR WEBSITES 35. QSoft's online dating services business is advertised on its GAYDAR
websites and through other QSoft domain names.
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36.
QSoft has engaged in extensive national and international advertising on
the Internet, in newspapers, and on radio stations in the United States. 37. During 2005, QSoft spent $124,145.00 advertising and promoting the
GAYDAR mark and websites in the United States alone. Examples of QSoft's United States print advertisements are attached hereto as Exhibit D. 38. QSoft has also developed search engine optimization strategies to
maximize its visibility on the Internet. 39. As a result of its superior customer service, competitive pricing, and
extensive advertising, QSoft now operates some of the largest gay and lesbian oriented lifestyle and dating websites in the world. 40. Advertisers who wish to target the affluent gay and lesbian community
do so through QSoft's GAYDAR websites. 41. The GAYDAR mark has come to represent QSoft's goodwill and
recognition as a leading source of online dating services in the industry and with consumers in the United States, the United Kingdom, and throughout the world. 42. The GAYDAR mark therefore has grown to become one of the biggest
and most recognized brands in the global gay and lesbian marketplace. DEFENDANTS' UNLAWFUL AND INFRINGING ACTIVITIES 43. On or about November 22, 2006, QSoft discovered that the Infringing
Domain Names
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44.
The
See Exhibit A. Tong has registered numerous user names including, among others, "speciallyexult" and "bargeincidence". 45. Upon information and belief, the
fraudulently created for the specific purpose of sending unsolicited commercial messages to Gaydar Members. 46. The
early as November 21, 2006, hundreds of unsolicited commercial messages to Gaydar Members. 47. The unsolicited commercial messages advertise and link Gaydar
Members to the Infringing Domain Name websites
action to block his illegal activities, by, among other things, sending Defendants a cease and desist letter on November 24, 2006 thereby notifying them that the unsolicited commercial chat room messages are illegal and advising Tong that he would be liable to QSoft for damages resulting therefrom. Additionally, upon learning that Tong had
registered a different physical address with GoDaddy.com, QSoft sent a second cease and desist letter to all of his purported physical and electronic addresses. True and correct copies of the cease and desist letters are collectively attached hereto as Exhibit E.
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49.
The spam messages were sent from Tong's multiple fraudulently created
accounts to create the false impression that the messages came from other individual users and Gaydar Members rather than an individual unaffiliated with QSoft. 50. Defendants are direct competitors of QSoft. Among other domain
names, Tong is the owner of
promotion of, online gay and lesbian oriented dating and webcam services that directly compete with QSoft and CupidoCam. 52. Defendants are not affiliated with QSoft and, as a result, are not
authorized to use the GAYDAR mark. 53. Defendants have used the GAYDAR mark in connection with their
spamming and infringing activities, including their commercial advertisements for their Infringing Domain Names and corresponding websites. Defendants' activities dilute, tarnish, and otherwise diminish the value of the GAYDAR mark. 54. Defendants have no legitimate reason to use QSoft's GAYDAR mark in
connection with their competing online gay and lesbian oriented dating, webcam, or chat room services businesses. 55. At all relevant times, Defendants have been aware that their use of
QSoft's GAYDAR mark for their commercial endeavors was not authorized by QSoft. Defendant Tong has also been aware that he was prohibited from spamming GAYDAR website users with his illegal messages.
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56.
Defendant Tong's willfulness is evident from, among other things, the
fact that all the messages were sent in violation of the Terms and Conditions. 57. Defendant Tong's willfulness is also evident from the fact that Tong has
continued to send unsolicited commercial messages after receiving both of QSoft's cease and desist letters. 58. Defendant Tong's willfulness is further evidenced by his use of multiple
apparently false street addresses in violation of 17 U.S.C. § 504(c)(3), which provides that a presumption of willfulness is created when one provides materially false contact information to a domain name registrar. See Exhibit A. 59. Defendants' conduct was, and is, intentional, willful, and designed to
unlawfully misappropriate QSoft's goodwill and reputation and also to unfairly divert QSoft's potential business to Defendants' businesses. RESULTING HARM TO QSOFT 60. In being duped into delivering multiple illegal, automated commercial
messages initiated by Defendant Tong to Gaydar Members via chat rooms, QSoft has incurred and continues to incur substantial bandwidth and delivery-related costs. QSoft has also been forced to devote time, money and resources to the problems caused by Defendants' harmful and ongoing activities. 61. Defendants' use of
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Such confusion also dilutes and diminishes the value of the famous GAYDAR mark by associating it with Defendant Tong's spamming activities. Attached as Exhibit G is one example of an e-mail written by a confused Gaydar Member believing that the spam messages originated from QSoft or one of the GAYDAR websites. 62. Defendants' wrongful acts have resulted in substantial harm to QSoft in
its reputation, loss of goodwill, loss of profits, reduced server capacity, employee costs, attorneys' fees, and other pecuniary damages. Attached as Exhibit H is one example of an e-mail written by an irate Gaydar Member who believed that the spam messages were sent (or could have been sent) by QSoft or one its GAYDAR websites. 63. Unless enjoined by this Court, Defendants will continue their activities
thereby causing further immediate and irreparable harm to QSoft. COUNT I Violation of the CAN-SPAM ACT (15 U.S.C. § 7701 et seq.) 64. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 65. By the aforementioned conduct, Defendant Tong has committed
actionable violations of the CAN-SPAM Act, 15 U.S.C. § 7701 et seq. 66. Defendant Tong has violated 15 U.S.C. § 7704(a)(1) which prohibits the
initiation of the transmission, to a protected computer, of a commercial electronic mail message that contained or was accompanied by header information that was materially false or misleading. Among other things, Defendant violated Section 7704(a)(1) by using false or fraudulent pretenses to obtain multiple
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specifically agreed would not be used for commercial purposes, which he then used to spam Gaydar Members to promote his own commercial endeavors. 67. Tong has engaged in a pattern or practice of misconduct involving
repeated instances of misconduct in violation of the CAN-SPAM Act, 15 U.S.C. § 7704(a)(2). Defendant has repeatedly transmitted commercial messages while having knowledge, or knowledge fairly implied on the basis of objective circumstances, that the subject heading of the message would likely mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message. Among other things, Defendant Tong mislead QSoft's members by utilizing an automated robot to simulate human conversation. 68. Tong has engaged in a pattern or practice of misconduct involving
repeated instances of misconduct in violation of the CAN-SPAM Act, 15 U.S.C. § 7704(a)(3). Tong has repeatedly transmitted unsolicited, electronic commercial messages that did not comply with the consumer protection provisions of the CAN-SPAM Act. Among other things, the Spam messages that Tong sent to Gaydar Members failed to include a functional electronic return address or any other mechanism, conspicuously displayed or otherwise, which the recipient could use to request not to receive any future commercial messages from Tong. 69. Tong has engaged in a pattern or practice of misconduct involving
repeated instances of misconduct in violation of the CAN-SPAM Act, 15 U.S.C. § 7704(a)(4). These violations involve, among other things, continuing to transmit
unsolicited commercial messages regarding his commercial endeavors more than ten business days after receiving requests from the recipients of these messages not to receive
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such messages in the future, and by continuing to send the unsolicited messages to Gaydar Members despite QSoft's request, on behalf of its customers, not to do so. 70. Tong has engaged in a pattern or practice of misconduct involving
repeated instances of misconduct in violation of the CAN-SPAM Act, 15 U.S.C. § 7704(a)(5). These violations have involved, among other things, failing to include a clear and conspicuous identification that the spam messages sent to Gaydar Members from the fraudulently obtained
willfully, and with actual knowledge or knowledge fairly implied on the basis of objective circumstances. 72. As a result of Defendant Tong's acts, QSoft has suffered, and continues
to suffer, irreparable injury, loss of reputation, and pecuniary damages including actual damages in an amount to be proven at trial and statutory damages trebled for willfulness. QSoft is also entitled to recover attorneys' fees pursuant to 15 U.S.C. § 7706. 73. Unless enjoined by this Court, Tong will continue these acts, causing
QSoft further and immediate irreparable harm.
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COUNT II Cybersquatting Under the Anticybersquatting Consumer Protection Act (15 U.S.C. § 1125(d)) 74. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 75. The Infringing Domain Names
and
intent to profit from QSoft's GAYDAR mark. 77. Defendants provided false contact information when applying for the
registration of the Infringing Domain Names in an effort to further conceal their true identity in violation of 17 U.S.C. § 504(c)(3). 78. Defendants' use of the Infringing Domain Names has caused, and will
continue to cause, irreparable harm to QSoft's goodwill and reputation. 79. 80. Defendants' actions were willful. QSoft has no adequate remedy at law. QSoft therefore seeks an order
from the Court transferring the Infringing Domain Names to QSoft. 81. Defendants' activities, as alleged herein, constitute a violation of the
federal Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d). 82. QSoft has incurred attorneys' fees and costs as a result of Defendants'
willful and intentional actions. 83. QSoft has been damaged in an amount to be proven at trial as a result of
Defendants' willful and intentional actions.
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COUNT III Violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.) 84. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 85. QSoft maintains one or more computers as defined by 18 U.S.C. §
1030(e) through which e-mail transmissions are received, stored and disseminated for the benefit of Gaydar Members. 86. Defendant Tong, without authorization, caused the transmission of one
or more programs, information, codes, or commands to QSoft's computer facilities through the means of a computer used in interstate commerce,, knowingly and willfully, with the intent, or alternatively with reckless disregard of a substantial and unjustified risk, that its transmission would damage or cause damage to QSoft's computer system or network. 87. Tong knowingly and intentionally accessed QSoft's computer system
and network by obtaining multiple
Members that included, in place of the actual sender's return address, the addresses of two
knowing that numerous messages and complaints would be collected by his fraudulently obtained
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90.
Tong transmitted unsolicited commercial messages to Gaydar Members
knowing that numerous recipients of the messages would e-mail complaints to QSoft. 91. Tong transmitted unsolicited commercial messages to Gaydar Members
knowing that his conduct could potentially damage QSoft's computer system and online services, including the risk that QSoft would be forced to withhold or delay the use of computer services to its legitimate subscribers. 92. Defendant Tong's willful transmission of one or more programs,
information, codes, or commands to QSoft's computer system or network did in fact cause damage to QSoft's computer system and network. 93. By the actions alleged above, Tong intentionally accessed QSoft's
protected computer network or system without authorization, or in excess of authorization, and obtained information from a protected computer via an interstate or foreign communication in violation of 18 U.S.C. § 1030(a)(2)(C). 94. By the actions alleged above, Tong, knowingly and with intent to
defraud, accessed QSoft's protected computer system or network without authorization and/or in excess of authorized access in violation of 18 U.S.C. § 1030(a)(4). 95. By the actions alleged above, Tong knowingly and intentionally
accessed QSoft's protected computer system and network and knowingly caused the transmission of a program, information, code, or command, without authorization and/or in excess of authorized access in violation of 18 U.S.C. § 1030(a)(5). 96. economic loss. Defendant Tong's actions caused QSoft to suffer in excess of $5,000 in
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97.
QSoft has suffered immediate and ongoing irreparable harm and has no
adequate remedy at law. COUNT IV Violation of the Lanham Act (Section 43(c), 15 U.S.C. § 1125) 98. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 99. 100. QSoft is the owner of the GAYDAR common law name and mark. QSoft, using its GAYDAR mark, has been overwhelmingly successful.
QSoft's GAYDAR websites are some of the most visited gay and lesbian oriented websites in the world. QSoft's network of websites serve more than 300 million page impressions per month to over three million registered and audited users. As such, the GAYDAR name and mark is incredibly valuable and famous. 101. By the actions alleged above, Defendants have made commercial use in
commerce of the GAYDAR name and mark with the willful intent to trade on QSoft's reputation and to cause dilution of the famous GAYDAR mark. 102. Defendants' use of the GAYDAR mark began in November 2006, long
after QSoft's GAYDAR mark had become well-known and famous. 103. Defendants' use of the GAYDAR mark has caused, and continues to
cause, dilution of its distinctive quality and lessens its capacity to identify and distinguish QSoft's goods, services, and customers. Additionally, Defendants' intentional
association of the GAYDAR mark with its unsolicited commercial messages tarnishes and diminishes the value of the GAYDAR famous mark.
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104.
Defendants' activities described herein constitute trademark dilution
within the meaning of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 105. On November 24, 2006, QSoft advised Defendants in writing of QSoft's
ownership of the GAYDAR mark and demanded that Defendants immediately cease and desist from further use of the GAYDAR mark and its activities related thereto. See Exhibit E. Defendants failed to comply with QSoft's request. 106. On May 30, 2007, QSoft again demanded in writing that Defendants See Exhibit E.
cease and desist their infringing and otherwise harmful activities. Defendants have not complied with QSoft's requests. 107.
Defendants' acts have damaged, impaired, and diluted that part of
QSoft's goodwill symbolized by its GAYDAR mark to QSoft's immediate and irreparable damage. This is especially true insofar as Defendants' acts induce those viewing or receiving Defendant Tong's unsolicited commercial messages and advertisements to conclude incorrectly that QSoft was somehow connected with, condoned, or participated in Defendants' commercial endeavors. 108. As a result of Defendants' activities, QSoft has suffered, and continues
to suffer, irreparable injury, loss of reputation, and pecuniary damages, and, therefore, is entitled to three times its actual damages as well as disgorgement of any if Defendants' profits, in addition to attorneys' fees and costs, in amounts to be proven at trial. 109. Unless enjoined by this Court, Defendants will continue these acts,
thereby causing QSoft further immediate and irreparable harm.
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110.
The above-mentioned acts were done in an intentional, willful,
malicious, and oppressive manner in conscious disregard of QSoft's rights. Accordingly, QSoft is entitled to treble damages under the Lanham Act. COUNT V Violation of the Delaware Uniform Deceptive Trade Practices Act (Del. Code tit. 6, § 2531 et seq.) 111. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 112. 113. QSoft is the owner of the GAYDAR common law name and mark. QSoft has been overwhelmingly successful. Since their inception,
QSoft's GAYDAR websites have become some of the most visited gay and lesbian websites in the world. QSoft's network of websites serve more than 300 million page impressions per month to over three million registered and audited users. As such, the GAYDAR name and mark is incredibly valuable and famous. 114. Upon information and belief, Defendants are engaged in a business,
vocation, or occupation involving the manipulation of Internet traffic, as well as the provision, maintenance, or management of substantive content on the Internet. 115. Defendants have sent hundreds of unsolicited commercial messages to
QSoft's customers that contained links to websites. These websites contained QSoft's famous mark, GAYDAR. 116. Defendants' infringing use of QSoft's GAYDAR mark in the unsolicited
commercial messages sent to QSoft customers was done in the course of Defendants' business, vocation, or occupation.
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117.
Defendants' infringing use of QSoft's GAYDAR mark in the unsolicited
commercial messages sent to QSoft customers causes a likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of the spam messages and of the infringing websites in violation of Section 2532(a)(2) of the Delaware Uniform Deceptive Trade Practices Act. 118. Defendants' infringing use of QSoft's GAYDAR mark in the unsolicited
commercial messages sent to QSoft customers causes a likelihood of confusion or of misunderstanding as to the spam messages' or infringing websites' affiliation, connection, or association with, or certification by, QSoft in violation of Section 2532(a)(3) of the Delaware Uniform Deceptive Trade Practices Act. 119. Through their infringing use of QSoft's GAYDAR mark in the
unsolicited commercial messages sent to QSoft customers, Defendants have misrepresented that their spam messages or infringing websites have the sponsorship or approval of QSoft in violation of Section 2532(a)(5) of the Delaware Uniform Deceptive Trade Practices Act. Additionally, through their infringing use of QSoft's GAYDAR mark in the unsolicited commercial messages sent to QSoft customers, Defendants have misrepresented that they are sponsored by QSoft, that QSoft approves of their conduct, or that their goods or services are connected to QSoft, all in violation of Section 2532(a)(5) of the Delaware Uniform Deceptive Trade Practices Act. 120. Defendants have engaged in other conduct which similarly creates a
likelihood of confusion or misunderstanding in violation of Section 2532(a)(12) of the Delaware Uniform Deceptive Trade Practices Act by using fraudulently obtained Gaydar Member accounts to transmit the unsolicited commercial messages to QSoft customers.
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By using a Gaydar Member account to initiate the spam messages, Defendants greatly increased the likelihood that a recipient would be confused or misled as to the origin, sponsorship, or affiliation of the spam messages or the infringing websites. 121. By the above-stated conduct, Defendants have committed actionable
violations of the Delaware Uniform Deceptive Trade Practices Act, Del. Code Tit. 6, § 2531 et seq. 122. QSoft has suffered actual damages to be proven at trial as a result of
Defendants' aforementioned conduct. 123. The above-mentioned acts were done in an intentional, willful,
malicious, and oppressive manner in conscious disregard of QSoft's rights. Accordingly, QSoft is entitled to treble damages and attorneys fees under the Delaware Uniform Deceptive Trade Practices Act. COUNT VI Common Law Trademark Infringement and Unfair Competition 124. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 125. Defendants' use of the Infringing Domain Names to promote directly
competitive online gay and lesbian oriented dating and chat room services has caused actual confusion or is likely to cause confusion with QSoft's GAYDAR mark. See Exhibit G. 126. Defendants' conduct constitutes unfair competition by using the
Infringing Domain Names for the promotion of directly competitive online gay and lesbian oriented dating and chat room services creates the false and misleading
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impression that the advertised gay and lesbian oriented dating and chat room services are authorized or sponsored by, or are associated with, QSoft. 127. Defendants' promotion of directly competitive online gay and lesbian
oriented dating and chat room services are based on false and fraudulent claims and is designed to influence consumer purchasing decisions. Attached as Exhibit I is an
unsolicited commercial message from one of Defendant Tong's
infringed QSoft's common law rights in its GAYDAR mark, and have otherwise competed unfairly with QSoft in violation of the common law of the State of Delaware and Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 129. Upon information and belief, all of Defendants' aforementioned acts
were and are intentional and willful. 130. Defendants' aforementioned acts have damaged QSoft and, unless
enjoined, will continue to damage and cause irreparable injury to QSoft's goodwill and reputation. 131. QSoft has no adequate remedy at law. COUNT VII Breach of Contract 132. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 133. In order to obtain a
specifically required, and expressly accepted, QSoft's Terms and Conditions.
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contract expressly prohibited any use of the GAYDAR websites to spam or send unsolicited commercial messages. See Exhibit C Provision 6.1.2. 134. QSoft's Terms and Conditions also expressly prohibits the use of
QSoft's services for any commercial endeavors and prohibits users from having more than one Member Account at one time. See Exhibit C, Provision 6.1.2 and 6.1.11. 135. accounts. 136. Defendant Tong's use of multiple, fraudulently obtained
accounts to send hundreds of unsolicited commercial messages to Gaydar Members in order to carry out his illegal scheme constitutes a breach of his contract with QSoft. 137. activities. 138. As a result of Defendant Tong's breaches of contract, QSoft is entitled to QSoft has been damaged as a result of Defendant Tong's breaching
actual and consequential damages in an amount to be proven at trial. COUNT VIII Trespass to Chattel 139. QSoft realleges and incorporates by reference paragraphs 1 through 63
as if fully set forth herein. 140. Defendants intentionally employed automated robots, scripts, or
executable commands to send multiple unsolicited commercial messages to QSoft's customers in direct violation of QSoft's Terms and Conditions and in direct contravention of QSoft's cease and desist letters.
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141.
Defendants were never authorized to use QSoft's computer systems to
send unsolicited commercial messages to QSoft customers. 142. capacity. 143. Defendants' automated transmission of hundreds of unsolicited QSoft's computer systems are valuable resources and have a finite
commercial messages to QSoft customers through the use of QSoft's computer systems consumed a significant capacity of QSoft's computer systems. 144. Defendants' unauthorized consumption of QSoft's computer systems' usage by QSoft customers,
capacity depleted the capacity available for authorized
thereby diminishing the condition, quality, and/or value of QSoft's computer systems. 145. In addition, Defendants' unauthorized use of automated robots, scripts,
or executable commands endangers QSoft's computer systems by creating a threat of congestion and overload problems, both of which would significantly disrupt QSoft's operations. 146. As a result of Defendants' trespass to chattel, QSoft is entitled to actual
and consequential damages in an amount to be proven at trial. RELIEF REQUESTED WHEREFORE, Plaintiff QSoft Consulting Limited, prays for judgment against Defendants Teddy Tong and tdtong ltd on each and every count listed in the Complaint and for relief including: A) An order temporarily or permanently enjoining Defendants from: (i) directly or indirectly sending or transmitting any unsolicited commercial messages to any Internet or QSoft user including, but not limited to, any such message that references in any way
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GAYDAR or any of the GAYDAR websites for a commercial purpose; (ii) (iii) using any automated scripts, bots, or other executable programs in connection with any QSoft and/or GAYDAR account or service; using, linking, selling, exercising control over, or otherwise owning the Infringing Domain Names
(iv)
(v) (vi) (vii)
(viii) using QSoft's computer network or system in connection with sending unsolicited commercial messages; (ix) (x) continuing to violate QSoft's Terms and Conditions; assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (i) through (ix) above;
B)
An order transferring the Infringing Domain Names,
C)
An order directing Defendants to deliver up for destruction all printed and electronically stored materials in Defendants' control bearing all or part of the GAYDAR mark;
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D)
An order requiring Defendants to pay QSoft damages in an amount sufficient to compensate it fairly for the injury it sustained, plus all profits that are attributable to Defendants' use of the Infringing Domain Names and QSoft's GAYDAR mark in the promotion, advertising, and sale of QSoft's goods and services, and further that the amount of monetary award be trebled in view of the willful and deliberate nature of Defendants' unlawful conduct under the Delaware Uniform Deceptive Trade Practices Act, Del. Code tit. 6, § 2531 et seq., including but not limited to any and all fees, costs, expenses, and attorneys' fees incurred in this action and any and all statutory damages;
E)
An order requiring Defendants to pay QSoft an amount of money for QSoft to effectively engage in a corrective advertising campaign to undo the damage to its business and reputation caused by Defendants;
F)
An order requiring Defendants to pay QSoft statutory damages for each violation of the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d);
G)
Actual damages in an amount to be proven at trial or statutory damages under the CAN-SPAM Act;
H) I)
An order requiring Defendants to pay QSoft its attorneys' fees and costs; An order awarding such other and further relief as this Court may deem equitable and proper;
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