shopkeep v. payvida complaint.pdf

8/10/2019 Shopkeep v. PayVida complaint.pdf

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J S 44C/SDNY

REV. 4 / 2 0 1 4

JUDGE DAW

hJLtO

IVIL COVER

SI

#T^?15

The JS-44 civilcover

sheet

and the information contained herein neither replace nor supplement the filingand service of

pleadingsorother papers as requiredbylaw,except as

provided

bylocalrulesof court. This

form,

approvedbythe

Judicial Conference ofthe UnitedStates inSeptember 1974, isrequired for use ofthe Clerk of Court for the purpose of

initiating the civil

docket

sheet.

PLAINTIFFS

Shopkeep.com, Inc.

DEFENDANTS

PayVida Solutions Inc.

ATTORNEYS

(FIRM

NAME, ADDRESS,ANDTELEPHONENUMBER ATTORNEYS(IF KNOWN)

Sabety + Associates PLLC, 830 Third Avenue, 5th Floor, New York, NY

1 0 0 2 2

Phone:212-481-8686

CAUSEOF ACTION (CITE THE U.S. CIVIL STATUTE UNDER

WHICH YOU

ARE

FILING AND

WRITE ABRIEF STATEMENT OFCAUSE)

(DO NOTCITEJURISDICTIONALSTATUTES UNLESS DIVERSITY)

copyright

infringement 17

USC

106, 501;false designation&trademark infringement 15 U.S.C. 1114, 1125;NYS unfair competition

Has this action, case, or proceeding, or one

essentially

the same

been

previously

filed in SDNY

at

any time? NrJZjVesIUudge PreviouslyAssigned

Ifyes,

was this case

Vol.

f j

Invol.

Q Dismissed. No []] Yes

f j

If yes, give date.

ISTHIS AN INTERNATIONAL ARBITRATION CASE?

(PLACE

AN[x] INONEBOXONLY)

TORTS

PERSONAL INJURY

No 0

Yes

NATURE

OF SUIT

FORFEITURE/PENALTY

[ ]625 DRUG RELATED

SE IZURE OF PROPERTY

21 US C 88 1

[ ]690 OTHER

& C a s e No .

ACT IONS UNDER STATUTES

BANKRUPTCY

[ ] 422 APPEAL

28 US C

15 8

[ ] 423 WITHDRAWAL

2 8 U SC 1 57

[ 1110

[ 1120

[ 1130

[ 1140

[

1150

[ 1151

[

1152

INSURANCE

MARINE

MILLER ACT

NEGOTIABLE

INSTRUMENT

RECOVERY

OF

OVERPAYMENT &

ENFORCEMENT

OF

JUDGMENT

MEDICARE ACT

RECOVERY OF

DEFAULTED

STUDENT LOANS

(EXCLVETERANS)

RECOVERY

OF

OVERPAYMENT

OF

VETERAN'S

BENEFITS

STOCKHOLDERS

SUITS

OTHER

CONTRACT

CONTRACT

PRODUCT

LIABILITY

FRANCHISE

[ ] 310 AIRPLANE

[ ] 315 AIRPLANEPRODUCT

LIABILITY

[ ] 320 ASSAULT, LIBELS,

SLANDER

[ ] 330 FEDERAL

EMPLOYERS'

LIABILITY

[ ]340 MARINE

[ ] 345 MARINEPRODUCT

LIABILITY

[ ] 350 MOTORVEHICLE

[ ] 355 MOTORVEHICLE

PRODUCT

LIABILITY

[ ] 360 OTHER PERSONAL

INJURY

[ ] 362 PERSONAL INJURY-

MED MALPRACTICE

PERSONALINJURY

[ ] 367 HEALTHCARE/

PHARMACEUTICAL

PERSONAL

INJURY/PRODUCT LIABILITY

[ ]

365 PERSONAL

INJURY

PRODUCT LIABILITY

[ ] 3 68 ASBESTOS PERSONAL

INJURY PRODUCT

LIABILITY

PERSONAL

PROPERTY

[ ] 370 OTHER FRAUD

[ ] 371 TRUTH INLENDING

PROPERTY R IGHTS

M

820 COPYRIGHTS

[ ]

830

PATENT

[

]153

[1160

[ ]190

[ ]195

[ 1196

REAL

PROPERTY

[ ]210

[ ]220

[ ]230

[ I 240

[ I 245

[ ]290

LAND

CONDEMNATION

FORECLOSURE

RENT

LEASE

&

EJECTMENT

TORTS

TO

LAND

TORT PRODUCT

LIABILITY

ALL

OTHER

REAL

P R O P E R T Y

ACTIONS

UNDER

STATUTES

CIVIL

RIGHTS

[ ] 440 OTHER CIVILRIGHTS

(Non-Prisoner)

( ] 441 VOTING

[ ] 442 EMPLOYMENT

[ ] 443 HOUSING/

ACCOMMODATIONS

[ ]445 AMERICANS WITH

DISABILITIES

-

EMPLOYMENT

[ ] 446 AMERICANS WITH

DISABILITIES-OTHER

[ ] 448 EDUCATION

Checkifdemanded incomplaint:

CHECK IF

THIS

IS ACLASS

ACTION

UNDER F .R .C .P .

23

[ ] 380 OTHER PERSONAL

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

PRODUCT LIABILITY

PRISONER PETITIONS

[ ] 463 ALIEN DETAINEE

[ ] 510 MOTIONS TO

VACATE SENTENCE

28

US C

2 2 5 5

[ ]530 HABEAS CORPUS

[ ] 535 DEATH PENALTY

[ ] 540 MANDAMUS& OTHER

PRISONER

CIVIL

RIGHTS

[

] 550 CIVILRIGHTS

[ ] 555 PRISON CONDITION

[ ] 560 CIVILDETAINEE

LABOR

[ ] 710 FAIRLABOR

STANDARDS

AC T

[ ] 720 LABOR/MGMT

RELATIONS

[ ] 740 RAILWAYLABOR ACT

[ ] 751 FAMILYMEDICAL

LEAVE ACT (FMLA)

[ ]790 OTHER LABOR

LITIGATION

[ ]791 EMPLRETINC

SECURITY

AC T

IMMIGRATION

[ ] 462 NATURALIZATION

APPLICATION

[ ] 465 OTHER IMMIGRATION

ACTIONS

CONDITIONS

OF

CONFINEMENT

SOC IAL SECUR ITY

[

]861

HIA(1395ff)

[ ] 862 BLACKLUNG (923)

( ] 863 DIWC/DIWW (405(g))

[ ]

864SSID

TITLE XVI

[ ] 865 RSI (405(g) )

FEDERAL

TA X SU ITS

[ ] 870 TAXES (U.S. Plainti ffor

Defendant)

[ ]871 IRS-THIRD PARTY

26

US C

7 6 0 9

OTHER STATUTES

[ 1375 FALSE CLAIMS

( ]400

STATE

REAPPORTIONMENT

[ ] 410 ANTITRUST

[ ] 430 BANKS &BANKING

[ ]450 COMMERCE

[ ]460 DEPORTATION

[ ]470 RACKETEER INFLU

ENCED & CORRUPT

ORGANIZATION ACT

(RICO)

[ ] 480 CONSUMER CREDIT

[ ] 490 CABLE/SATELLITETV

[ ] 850 SECURITIES/

COMMODITIES/

EXCHANGE

[ ] 890 OTHER STATUTORY

ACTIONS

[ ] 891 AGRICULTURAL ACTS

[ ] 893 ENVIRONMENTAL

MATTERS

[ ]895 FREEDOM OF

INFORMATION ACT

[ ] 896 ARBITRATION

[ ] 899 ADMINISTRATIVE

PROCEDURE ACT/REVIEW

APPEAL OF

AGENCY

DECI

[ ] 950 CONSTITUTIONALIT

STATE

STATUTES

DEM ND

OTHER

DO

YOU

CLAIM THIS CASE IS

RELATED

TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?

JUDGE DOCKET NUMBER

Check YES onlyifdemandedincomplaint

JURY DEMAND: E YES QjO

NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-


2/59

PLACEANx INONEBOXONLY)

S 1 Original 2 Removed from

Proceeding state Court

3. allpartiesrepresented

3

R e m a n d e d

from

Appellate

C o u r t

ORIGIN

I I4 Reinstated or Q 5 Transferred

from

Q 6 Multidistrict

(Specify

District) Litigation

eopened

I I 7 Appeal toDistrict

Judge from

Magistrate Judge

Judgment

I | b.

At

least one

party is pro se.

(PLACEAN

x

INONEBOXONLY)

BASIS

OF JURISDICTION

1

U.S. PLAINTIFF

2 U.S.

DEFENDANT

[x] 3 FEDERAL QUESTION .[x]1 DIVERSITY0

(U.S. NOT A PARTY)

IFDIVERSITY,INDICATE

CITIZENSHIP BELOW.

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place

an [X]in

one

box for Plaintiff

and one

box for Defendant)

P TF D E F

T F DE F

- W - r H 1

PTF DEF

INCORPORATEDand PRINCIPArPtAeE h+W-

OF BUSINESS IN

ANOTHER

STATE

0

I I Z h N O h T H I S S T A T E -

CITIZEN OF ANOTHER STATE [ ] 2 [ ] 2

CITIZEN OR

SUBJECT OF A

FOREIGN COUNTRY

t r

INCORPORATED or PRINCIPAL PLACE .[xj [

}A

FOREIGN NAIIUN

OF

BUSINESS

IN THIS

STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

143

Varick

Street

New

York, NY

10013,

United

States

of America,

New

York

County

t4&-_U6

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

PayVida Solutions Inc., 221-3011 Louie Drive,

Westbank

BC V4T

3E3,

Canada

PayVida Solutions Inc., c/o Ryan

Conrad Strauss,

2209

Sunview Drive,

West

Kelowna BC V1Z 3X9,

C a n a d a

DEFENDANT(S) ADDRESS UNKNOWN

REPRESENTATION IS HEREBY MADE THAT, AT

THIS

TIME, I HAVE BEEN UNABLE,

WITH

REASONABLE

DILIGENCE,

TO ASCERTAIN

RE9IBINCE

ADDRESSES OF

THE

FOLLOWING

DEFENDANTS:

Check one: THIS ACTION

SHOULD

BEASSIGNEDTO: WHITE

PLAINS \x\ MANHATTAN

(DO NOT

check either

box

if

this

a

PRISONER

PETITION/PRISONER

CIVIL

RIGHTS

COMPLAINT.)

DATE

SIGNATURE OF ATTORNEY OF RECORD

I t

S

ADMITTED

TO PRACTICE

IN

THIS DISTRICT

V\^V WYES (DATE ADMITTED MoPj? Yr. 2010 )

RECEIPT #


3/59

Shopkeep.com, Inc.

Plaintiff

PayVida Solutions Inc.,

Defendant

}

Case

N o .

C OM PL AIN T A ND JU RY D EM A ND

CO

C _

p

-

I,.

C

1

r~

COMPLAINT

AND

JURY

DEMAND ' g

Plaintiff, Shopkeep.com, Inc. ( Shopkeep ), by counsel, for its Complaint against

Defendant, PayVida Solutions Inc. ( Defendant or PayVida ), seeks damages, injunctive

relief, and other relief for copyright infringement, trademark infringement, false designation of

origin, and unfair competition, alleges as follows:

1. This is an action for copyright infringement, trademark infringement, false designation

of

origin, and unfair competition under the Copyright Act, 17U.S.C. 101 et seq., the Lanham

Act, 15 U.S.C. 1051 et seq., and New York state law.

PART I E S

2. Shopkeep is a corporation organized and existing under the laws

of

the State of

Delaware. Shopkeep has its principal place of business at 143 Varick Street,

New

York, NY

10013, United

States

of America.

3. On information and belief, PayVida is a corporation organized and existing under the

laws o f Canada.

4. On information and belief, PayVida has its principal place

of

business at 221-3011

Louie Drive, Westbank

BC V4T 3E3, Canada.

UNITED S TA TE S D I STR ICT

COURT

FOR THE SOUTHERN D I ST R IC T OF

NEW YORK


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5. On information and belief, PayVida has at least one corporate director, Ryan Conrad

Strauss, with a residence at 2209 Sunview Drive, West Kelowna BC

VIZ

3X9, Canada.

JUR ISD IC TION AND

VENUE

6. This action arisesunder the Copyright Act and LanhamAct, 17U.S.C. 101 et seq.,

15U.S.C.

1051

et seq., and New York State law. Subject matter jurisdiction exists pursuant to

28 U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (copyright, trademark, and unfair

competition), 28 U.S.C. 1338(b) (action asserting claim of unfair competition joined with a

substantial and related claim under the trademark and copyright laws); and 28 U.S.C. 1367

(supplemental jurisdiction).

7. This Court has personal jurisdiction over Defendant because Defendant has committed

acts of infringement in the District and due to its contacts with this District should reasonably

have expected to be brought before a court in this District as a result

of

such acts. Defendant's

website, which includes publications of infringing content, is accessible across the Internet,

including to residents in New York State. On information and belief, Defendant offers its

products and services for sale to customers in the state ofNew York. On information and belief

Defendant employs at least one U.S.-based sales agent that promotes Defendant's product and

services in the state

of

New York. On information and beliefDefendant intentionally directs its

website into the state ofNew York in an effort to unfairly compete with Plaintiffand abscond

with it s customers

in

this state

and

district.

8. Venue is proper pursuant to 28 U.S.C. 1391(b)(2), (c), (d), and/or 1400(a).

BACKGROUND AND SHOPKEEP 'S

INTELLECTUAL PROPERTY

RIGHTS


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9. Shopkeep is in the businessof software services, offeringan awardwinning iPad

point of sale and businessmanagement software system that is currently used by over ten

thousand (10,000) small businesses in North America.

10.

Shopkeep offersits software systemand servicesto customers by sales througha

varietyof platforms. Customers cancontactShopkeep directlyfrom the Shopkeep websiteor

through its customerservice telephone line. Shopkeepalso offers its software system and

servicesto consumers through VAR (value added resellers), as well as by referrals from credit

card processing vendors.

11.

Shopkeep is the ownerof importantand highlyvaluable intellectual propertythat is

the heart of its products and award-winning brand.

12. Shopkeep is the ownerof numerous federally registered trademarkregistrations

registered on the

U.S.

Principal Register, including the following marks(the Shopkeep

Trademarks ):

Mar k

U.S.

Tr ad ema r k

Registration

Numbe r

Goods /

Services

S H O P K E E P

3,936,441

Class 9: Computer software for business management,

namely, sales transaction data management, sale

transaction processing, inventory management, contact

management, payroll management, vendor payment

management, marketing, scheduling

Class 35: Business services, namely, data processing

of business management data, namely, sales

transaction data, inventory management data, contact

management data, payroll management data, vendor

payment management data, marketing data and

scheduling data

Class 42: Operating a website providing software as a

service (SAAS) for use with business management,



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ShopKeepPOS

4,370,734

Class 9: Computer software for business management,





Class 42: Operating a website providing software as a

service (SAAS) for use with business management,





ShopKeepPOS

4,376,632

Class 35: Business services, namely, data processing

of

business management data, namely, sales

transaction data, inventory management data, contact

management data, payroll management data, vendor

payment management data, marketing data and

scheduling data

True and correct copies

of

these trademark registration certificates are attached as Exhibits 1 to 3

and are incorporated herein by reference.

13. Shopkeep is, and at all relevant times has been, the owner of numerous U.S.

copyright registrations including U.S. Copyright RegistrationNumber PA 1-762-902, Register

for iPad , which protects the graphical user interface of a version of the Shopkeep iPad point of

sale software. A true and correct copy of this copyright registration certificate is attached as

Exhibit 4 and is incorporated herein by reference.

14. Shopkeep is, and at all relevant times has been, also the owner

of

the copyrightable

works embodiedin the content on its website, including the website homepage as it appearedon

May 2, 2013, available in archived format at

https://web.archive.org/web/20130502213645//http://www.shopkeep.com/ (U.S. Copyright

4


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Registration

Number

PA

1-762-902

and related website copyrightable content hereinafter

referred to as Shopkeep Copyrights , Shopkeep Copyrighted works , or Shopkeep's

Copyrights ).

See

Exhibit 5, Merritt Aff.

fflf

5, 6, 7.

15.

Shopkeep expends enormous efforts to develop andmarket its brand, copyrighted

products and services, and its registered trademarks.

16. Shopkeep has receivedgreat industryand consumerrecognition of its productsand

services. For example, in 2011 Shopkeep won the Retail Solutions Providers Association

Innovative Solutions Award. In2012, Shopkeep wonthe Best in Show designation at the

FinovateFall 2012 technology innovation showcase. In 2013, Shopkeep was selectedas the #1

New and Noteworthy Business App by the iTunes App Store, it was awarded a Bronze in

Customer Service by the StevieAwards, andwon the Technology Innovatorof theYear

award at theETAStarAwards. In 2014, Shopkeep surpassed its award-winning performance in

2013 and was awarded a Gold in Customer Service by the Stevie Awards.

17. As a resultof Shopkeep's long-term and widespread use of the Shopkeep

Trademarks, the Shopkeep Trademarks haveacquired suchgoodwill and secondary meaning that

the public has come to associate the ShopkeepTrademarksas exclusively with the Plaintiff, and

the Shopkeep Trademarks have become famous.

DEFEND NT S UNL WFUL

TS

N D O ND U T

18. On information and belief, PayVida is the registrant and owner of the domain name

www.pavvida.ca and owns, operates, and maintains the website www.payvida.ca.

19. On informationand belief, GoDaddy.com, LLC is acting as a contractor for

Defendant to host and maintain www.pavvida.ca.

See

Exhibit 7.


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20. Defendant's website www.payvida.ca depicts unauthorized reproductions of the

Shopkeep Trademarks and unauthorized reproductions of, and derivative works of, the Shopkeep

Copyrights. Exhibit 5, Merritt Aff. lj[ 10-19.

21. Rather than develop its own website content, Defendant chose to copy and reproduce

Plaintiffs website content and reproduce depictions ofPlaintiff s copyrighted graphical user

interface that appeared on Plaintiffs website. Exhibit 5, Merritt Aff. Iff 10-19.

22. Defendant's website employs unauthorized reproductions

of

Plaintiff

s intellectual

property in order to promote its directly competitive point of sale systems for businesses to

process payment and manage their staff, inventory, and business data. Exhibit 5, Merritt Aff. f]f

10-19.

23. Defendant does not have a license from Shopkeep to use any

of

the Shopkeep

Copyrighted works appearing on Defendant's website and Shopkeep has not consented to,

sponsored, endorsed, or approved of Defendant's use of the Shopkeep Trademarks and Shopkeep

Copyrights or any variation thereof to promote a PayVida branded point of sale system. Exhibit

5, Merritt Aff.

118.

24. The association

of

the Shopkeep Trademarks with the PayVida platform has and will

continueto cause damage to the goodwill and value of the ShopkeepTrademarks. Shopkeephas

and continues to be injured by Defendant's unlawful acts within the State ofNew York and this

judicial district.

25. Shopkeep has made demands that Defendant discontinue and cease the infringement

and acts complained of, but Defendant has continued to infringe the Shopkeep Trademarks and

Shopkeep Copyrights. See Exhibit 6.


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26. On information and belief, Defendant has performed the acts complained of herein

willfully andwith knowledge of the infringement causedandwith intent to causeconfusion,

mistake,or deception,and to unfairly trade on Shopkeep's goodwill in the Shopkeep

Trademarks, copyrighted website contentand the copyrighted graphical user interface

comprising the Shopkeep Copyrights.

27. As of the date of this Complaint, Defendant continues to use unauthorized and

confusinguses of the ShopkeepTrademarks and unauthorizedcopiesof the Shopkeep

Copyrights. Defendant's failure to complywith Shopkeep's demands to cease anddesist further

demonstrates Defendant's intent to wrongfully infringe Plaintiffs intellectual property rights, to

dilute and damagethe enormousvalue of the ShopkeepTrademarks, to damage the goodwill

associated with the Shopkeep Trademarks, and to unfairly compete with Shopkeep.

COUNT

ONE:

FEDERAL

COPYRIGHT

INFRINGEMENT (17 U.S.C.

$106, 501)

28. Plaintiff repeats and realleges each and every allegation set forth above as if fully set

f or th he re .

29. Shopkeep is the sole and exclusive owner of all rights, title, and interest in and to the

registered copyrights in the Shopkeep graphical user interface display.

30. Defendant accessed Shopkeep's website content in order to obtain the images

comprisingdepictions ofShopkeep's registered copyrights in its graphical user interface display

and copyrighted website content.

31. Defendant has infringed

Plaintiffs

Shopkeep Copyrights in its graphical user

interface display and related website content in violation of Section 106 and 501 of the

Copyright Act, 17U.S.C. 106, 501 by creating unauthorized derivative works of, and making


10/59

copies of, transmitting or publicly performing the Shopkeep Copyrighted works without

author izat ion.

32. Upon information and belief, Defendant has profited from the use

of

infringing

imagesand interfaces,which are identical or virtually identical to Shopkeep's Copyrights in the

graphical user interface and related website content.

33. As a result of Defendant's wrongful conduct, Shopkeep has been deprived of its

exclusiverights under the CopyrightAct, includingShopkeep's exclusive rights to reproduce,

distributecopies, transmit, publicly perform, and create derivateworks of the Shopkeep

Copyrights.

34. Defendant's acts

of

infringement are willful, intentional, and purposeful, in disregard

of

and with indifference to

Plaintiffs

exclusive rights.

35. As a direct and proximate result of said copyright infringement by Defendant,

Plaintiff is entitled to statutory damages for copyright infringement.

36. Plaintiffis also entitled to Defendant's profits attributable to the infringement,

pursuant to 17U.S.C. 504(b), including an accounting of and a constructive trust with respect

to such profits.

37. Plaintiff is further are entitled to its attorneys' fees and full costs pursuant to 17

U.S.C. 505 and otherwise according to law.

38. As a direct and proximate result of the foregoing acts and conduct, Plaintiffhas

sustained and will continue to sustain substantial, immediate, and irreparable injury, for which

there is no adequate remedy at law. Plaintiff, on information and belief, and on that basis aver

that unless enjoined and restrained by this Court, Defendant will continue to infringe Plaintiffs


11/59

rights in the Shopkeep Copyrights. Plaintiff is entitled to preliminary and permanent injunctive

reliefto restrain and enjoin Defendant's continuing infringing conduct.

COUNT

TWO : UNFAIR COMPE T IT ION

39. Plaintiff repeats and realleges each and every allegation set forth above as

if

fully set

forth

here.

40. Upon information and belief, Defendant has adopted and used

Plaintiffs

intellectual

property rights, including the Shopkeep Trademarks and Shopkeep Copyrights which are the

products

of

Shopkeep's labors and expenditure, with full knowledge of Shopkeep's rights, and

without Shopkeep's authorization or consent.

41. Defendant's misappropriation and use of Shopkeep's intellectual property rights is

likely to cause confusion or to deceive consumers as to the origin

of

the goods and services

and/or has caused actual confusion among consumer as to the origin of the goods and services.

42. Defendant's use of Shopkeep's intellectual property has resulted in the

misappropriation

of

and trading upon Shopkeep's goodwill and business reputation at

Shopkeep's expense and at no expense to Defendant.

43. Defendant's misappropriation and use of Shopkeep's intellectual property rights has

unjustly enriched Defendant.

44. Defendant's misappropriation and use of Shopkeep's intellectual property rights has

damaged Shopkeep.

45.

Defendant's

aforesaid conduct, as alleged herein, constitutes willful unfair

competition in violation of the common law of the State ofNew York.

46.

Upon

information and belief, Defendant intends to continue its willful unfair

competitive conduct, unless restrained by this Court.


12/59

47.

Upon information

and

belief,

Defendant, byits

willful

conduct, has

made and will

continue to make substantial profits and gains to which it is not entitledto in law or in equity.

48. Defendant's conduct is causing and will continue to cause Shopkeepto suffer

irreparable harmand damage, and Shopkeep has no adequate remedy at law.

COUNT THREE: FALSE

DESIGNATION

OF ORIGIN

OR

SPONSORSHIP

(1 5 U.S .C . 1125(a ))

49. Plaintiff repeatsand realleges each and every allegation set forth above as if fully set

forth

here.

50. Defendant's advertising,promotion, distribution, sale, and offering for sale of a point

of saleplatformthat without license or authorization employs the ShopkeepTrademarks and

Shopkeep

Copyrights in eitherDefendant'splatform itselfor its promotion, is calculated to, and

is likely to confuse, mislead, or deceive consumers, the public, and the payment processingand

retail store industries, as to the origin, source, sponsorship, and/or affiliation of or between the

Shopkeep and the PayVida point of sale platforms, and is intendedor is likely to cause such

parties to believe in error that the infringing PayVida platform has been authorized, sponsored,

approved, endorsed, or licensedby Shopkeep, or that there is some other affiliation, connection,

or association between Shopkeep and Defendant.

51. Defendant's conduct constitutes a false designation

of

origin and/or sponsorship

and/or false and misleading descriptions and representations of fact, all in violation of 15 U.S.C

1125(a).

52. Upon information and belief, Defendant intends to continue its willful false

designation of the origin of the PayVida platform, unless restrained by this Court.

1 0


13/59

53. Upon information and belief, by its willful acts, Defendant has made and will

continue to make substantial profits and gains to which it is not in law or in equity entitled.

54. The actions of Defendant,

if

not enjoined, will continue. Plaintiff has suffered, is

suffering, and will continue to suffer irreparable damage consisting of, among other things,

diminution in the value of and goodwill associated with the Shopkeep Trademarks, and injury to

Shopkeep's business. Unless Defendant is restrained from continuing its wrongful acts and

operations of its infringement, the damage to Plaintiffwill increase. Plaintifftherefore is entitled

to injunctive reliefpursuant to 15 U.S.C. 1116.

55. Because Defendant's actions have been committed with intent to damage Shopkeep

and to confuse and deceive the public, Shopkeep is entitled to treble its actual damages or

Defendant's profits, whichever is greater, and to an award

of

costs, and reasonable attorneys fees

pursuant to 15 U.S.C. 1117.

COUNT FOUR: FEDERAL

TRADEMARK

INFR INGEMENT UNDER

15 U.S.C.

1114(1)


f o rt h he re .

57. The United States Patent and Trademark Office has granted federal registrations to

the trademarks SHOPKEEP and SHOPKEEPPOS. Shopkeep owns the exclusive trademark

rights and privileges in and to SHOPKEEP and SHOPKEEPPOS. Shopkeep uses the

SHOPKEEP and SHOPKEEPPOS marks as designations

of

the source and quality

of

its goods

and services.

58. Defendant is using the Shopkeep Trademarks without authorization and confusingly

similar variations thereof in a manner that is likely to confuse, cause mistake, deceive as to the

1 1


14/59

sourceof origin or sponsorship or endorsement of Defendant's website and point of sale system,

or to wrongly lead consumers and website browsers to conclude that some connectionexists

between Defendant's products and Shopkeep, and therefore infringes Shopkeep's exclusive

rights in the Shopkeep Trademarks in violation of 15U.S.C. 1114(1).

59. On information and belief, prior to Defendant's first use of the infringing content, it

was aware of Shopkeep's business and had either actual notice and knowledge, or constructive

notice of, the registered Shopkeep Trademarks.

60. Shopkeephas no adequate remedy at law for Defendant's infringement of the

ShopkeepTrademarks in that: (i) the Shopkeep Trademarks are unique and valuable property,

injury to which cannot adequately be compensated by monetary damages; (ii) the infringement

of the ShopkeepTrademarks has injured and threatens to continue to injure Plaintiffs reputation

and goodwill; and (iii) the injury resulting to Plaintifffrom Defendant's wrongful conduct, and

the conduct itself, are continuing.

61. On information and belief, the acts were undertaken willfully and with the intention

of causing confusion, mistake, or deception.

62. The actions of Defendant,

if

not enjoined, will continue. Plaintiffhas suffered, is




operations

of

its infringement, the damage to Plaintiffwill increase. Plaintiff therefore is entitled

to injunctive relief pursuant

tol5U.S.C. 1116.


and to confuse and deceive the public, Shopkeep is entitled to treble its actual damages or

1 2


15/59

Defendant's profits, whichever is greater, and to an award of costs, and reasonable attorneys fees

pursuant to 15 U.S.C. 1117.

COUNT

FIVE: COMMON LAW

TRADEMARK

INFR INGEMENT


f or th he re .

65. Shopkeep has prior rights in the Shopkeep Trademarks.

66. Defendant has infringed the Shopkeep Trademarks by using identical and

confusingly similar variations of the Shopkeep Trademarks in the promotion of its competing

products.

67. Defendant is using the Shopkeep Trademarks and confusingly similar variations

thereof in a manner that is likely to confuse, cause mistake, deceive as to the source

of

origin or

sponsorship or endorsement

of

Defendant's website and point of sale system, or to wrongly lead

consumers to conclude that some connection exists between Defendant's products or services

and Shopkeep, and therefore infringes Shopkeep's exclusive rights in the Shopkeep Trademarks

in violation o f New York State

common

law.

68. On information and belief, prior to Defendant's first infringing use of the Shopkeep

Trademarks, it was aware of Shopkeep's business and had either actual notice and knowledge, or

constructive notice of, the registered Shopkeep Trademarks.

69. Shopkeep has no adequate remedy at law for Defendant's infringement of the

Shopkeep Trademarks in that: (i) the Shopkeep Trademarks are unique and valuable property,

injury to which cannot adequately be compensated by monetary damages; (ii) the infringement

has injured and threatens to continue to injure Plaintiffs reputation and goodwill; and (iii) the

1 3


16/59

injury resulting to Plaintifffrom Defendant's wrongful conduct, and the conduct itself, are

continuing.

70. On information and belief, the acts were undertaken willfully and with the intention

of causing confusion, mistake, or deception.

71. The actions of Defendant, if not enjoined, will continue. Plaintiffhas suffered, is




operations

of

its infringement, the damage to Plaintiffwill increase. Plaintiff therefore is entitled

to injunctive relief.


and to confuse and deceive the public, Shopkeep is entitled to recover its actual damages or

Defendant's profits, whichever is greater.

PRA YE R FOR REL IEF

WHEREFORE, Shopkeep demands judgment against PayVida as follows:

1. That Defendant and their officers, agents, servants, distributors, affiliates, employees,

attorneys and representatives, and all those in privity or acting in concert with Defendants or on

their behalf, be preliminary and permanently enjoined and restrained from:

i) using Shopkeep Trademarks, or any other confusingly similar mark or design

thereto, or the Shopkeep Copyrights, or any substantially similar designs thereto, alone or in

combination to advertise or promote any PayVida products or services;

ii) manufacturing, importing, advertising, promoting, supplying, distributing,

offering for sale or selling any products or services which bear the Shopkeep Trademarks, or any

1 4


17/59

other confusingly similar mark or design thereto, or the Shopkeep Copyrights, or any

substantially similar designs thereto, alone or in combination;

iii) engaging in any other conduct constituting infringement of any Shopkeep

intellectual property right;

iv) using in any other way any mark or designation so similar to the Shopkeep

Trademarks as to be likely to cause confusion, mistake or deception;

v) falsely designating the origin, sponsorship, or affiliation of the Defendant's

products as in some

way

related to Shopkeep;

vi) otherwise competing unfairly with Shopkeep;

vii) infringing Shopkeep's exclusive rights in its copyrights;

viii) continuing to perform in any manner whatsoever any of the acts complained

of

in this complaint.

2. That pursuant to 17 U.S.C 503, Defendant pay to Plaintiff for its infringement of the

Shopkeep Copyrights statutory damages for Defendant's infringement of Shopkeep's registered

Copyrights, plus any profits of Defendant attributable to the other claims of copyright

infringement and Plaintiffs fees and costs.

3. That Defendant be required to account for and pay over all gains, profits, and

advantages derived by Defendant and any damages sustained by Plaintiff as a result of its

infringements of Plaintiffs intellectual property rights as enumerated herein.

1 5


18/59

4. That Defendant be required to account for and pay over all gains, profits, and

advantages derived by Defendant and any damages sustained by Plaintiffas a result of its

infringements

of

Plaintiffs unfair competition as enumerated herein.

5. Requiring such other measure as the Court may deem appropriate to prevent the public

from deriving any erroneous impression that the PayVida website or the PayVida point

of

sale

platform has been authorized or is in any way related to Shopkeep.

6. Awarding Shopkeep its costs and attorneys fees and investigatory fees and expenses to

the fullest extend provided for by the Lanham Act and the Copyright Act.

7. Requiring Defendant to deliver up to Shopkeep for destruction and other disposition

any remaining infringing inventory, including all advertising, promotional, and marketing

materials, as well as all means of making the same.

8. Awarding to Shopkeep pre-judgment interest on any monetary award made part

of

the

judgment against Defendant.

9. Awarding to Shopkeep such additional and further relief as the Court deems just and

proper .

Dated: New York, New York

January

8,

2015

1 6

S A B E T Y

+

ASSOCIATES PLLC

By:_

AttorneMfor Plaintiff,

SMgDkeep.com,

Inc.

830

Third

Avenue,

5th Floor

New

York, NY

10022

Tel: (212) 481-8686

Fax: (646) 349-2782

E-mail:

docketfSjsabety.net


19/59

EXHIBIT

1

TH E UN I TED

S TA TE S

OF AMER I C A


20/59

^tttU

states

ofMitten

W*

Wuittto

m

patent

an*

t&ra&emarlt

Office

*-*#

S H O P K E E P

Reg. No. 3,936,441

Registered Mar. 29,2011

In t

Cls.:

9,35

and

42

TRADEMARK

SERV ICEMARK

PRINCIPAL REGISTER

WINEDELIVERY, LLC(NEWYORKLIMITED LIABILITYCOMPANY)

17 5

LAFAYETTE

AVE

BROOKLYN, NY

11238

FOR:

COMPUTER SOFTWARE

FOR

BUSINESS MANAGEMENT, NAMELY,

SALES

TRANSACTIONDATAMAN\GEMENT,SALETRANSACTION

PROCESSING,

INVENTORY

MANAGEMENT, CONTACT MANAGEMENT, PAYROLL MANAGEMENT, VENDOR

PAYMENT

MANAGEMENT, MARKETING,

SCHEDULING, INCLASS9 (U.S. CLS.21,23,

26,36 AND 38).

UiRclw

o f the UnitedStun Paten end 1'mlaiaik Office

FIRST USE 1-20-2010;IN COMMERCE 1-20-2010.

FOR:

BUSINESS SERVICES,NAMELY, DATAPROCESSINGOFBUSINESS MANAGEMENT

DATA,

NAMELY, SALES TRANSACTION

DATA,

INVENTORY

MANAGEMENT DATA,

CONTACT

MANAGEMENT DATA,

PAYROLL

MANAGEMENT DATA,

VENDOR PAYMENT

MANAGEMENT DATA, MARKETING DATA AND SCHEDULING DATA, IN CLASS 35

(U.S. CLS. 100,101 AND 102).

FIRST USE 1-20-2010; IN COMMERCE 1-20-2010.

FOR: OPERATING

A

WEBSITE PROVIDING SOFTWARE

ASA

SERVICE (SAAS) FOR USE

WITH BUSINESS MANAGEMENT, NAMELY, SALES TRANSACTION DATA MANAGE

MENT, SALE TRANSACTION PROCESSING, INVENTORY

MANAGEMENT,

CONTACT

MANAGEMENT, PAYROLL MANAGEMENT,

VENDOR PAYMENT

MANAGEMENT,

MARKETING,

SCHEDULING,

INCLASS42

(U.S. CLS.

100 AND101)


THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR

TICULAR FONT, STYLE, SIZE, OR COLOR.

SER. NO. 77-921,264, FILED 1-27-2010.

JEFFREY

LOOK,

EXAMINING

ATTORNEY


21/59

EXHIBIT

2

^vte* states

of

met,rjy

VIV^

?Hmtetr

States* patent

anb tErabemarfc

Office ^Cf

ShopKeepPOS

Reg.

No. 4,370,734

shopkeep.com, inc.(Delaware corporation)

55

BROAD

STREET, 13TH

FLOOR

Registered July 23,2013

newyork,ny

10004

In t . Cls.: 9 and 42

TRADEMARK

SERV ICE

MARK

PRINCIPAL REGISTER

J^5*

ActBig Directorfthe United Slatei Patent and TrademarkOflke

FOR: COMPUTER SOFTWARE FOR BUSINESS MANAGEMENT, NAMELY, SALES

TRANSACTION

DATA

MANAGEMENT, SALETRANSACTION

PROCESSING,

INVENTORY

MANAGEMENT, CONTACT MANAGEMENT, PAYROLL MANAGEMENT, VENDOR

PAYMENT MANAGEMENT, MARKETING, SCHEDULING, IN CLASS 9 (U.S. CLS. 21, 23,

26, 36

AND

38).

FIRST USE

2-27-2012; IN COMMERCE 2-27-2012.

FOR: OPERATINGA WEBSITE PROVIDINGSOFTWAREAS A SERVICE (SAAS) FOR USE

WITH BUSINESS MANAGEMENT,

NAMELY,

SALES TRANSACTION

DATA

MANAGE

MENT,

SALE TRANSACTION PROCESSING, INVENTORY MANAGEMENT,

CONTACT

MANAGEMENT, PAYROLL MANAGEMENT, VENDOR PAYMENT MANAGEMENT,

MARKETING, SCHEDULING, IN CLASS 42 (U.S. CLS. 100 AND 101).

FIRST USE 2-27-2012;

IN COMMERCE

2-27-2012.

THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY

PA R

TICULAR FONT, STYLE, SIZE, OR COLOR.

OWNER OF U.S. REG. NO.

3,936,441.

SER.

NO.

85-564,448,

FILED 3-8-2012.

PAM

WILLIS, EXAMINING

ATTORNEY


22/59

EXHIBIT

3

VZy* Wnitds &tate* patent an* ^ratremarfe Office ^ f.

ShopKeepPOS

Reg. No. 4,376,632 shopkeep.com, inc.(Delawarecorporation)

5 5 BROAD STREET

Registered

July 30,2013

oth floor

NEW

YORK, NY 10004

In t . CL: 3 5

SERV ICE MARK

PRINCIPAL REG I STER

FOR:

BUSINESS

SERVICES,NAMELY, DATA

PROCESSING

OF

BUSINESS MANAGEMENT

DATA, NAMELY, SALES TRANSACTION DATA, INVENTORY MANAGEMENT DATA,

CONTACT MANAGEMENT

DATA, PAYROLL

MANAGEMENT

DATA, VENDOR

PAYMENT

MANAGEMENT

DATA,

MARKETING

DATA

AND SCHEDULING

DATA, IN

CLASS

35

(U.S.

CLS.

100, 101 AND 102).


THE MARK CONS ISTS OF STANDARD CHARACTERS WITHOUT CLA IM TO ANY PAR

TICULAR FONT, STYLE, SIZE,

OR

COLOR.

OWNER

OF U.S.

REG.

NO. 3,936,441.

SER. NO. 85-977,483, FILED

3-8-2012.

PAM WILLIS,

EXAMINING

ATTORNEY

Atttaf

Directoraffile

United

SlatesPatent and

Tradeniarit Oflke


23/59

Certificate

ofRegistration

d>:***

J 8 7 0

This Certificate issued

under

the seal

of

the Copyright

Office in accordancewithtitle 17, United States Code,

atteststhat registrationhasbeen made for thework

identified below.

The

information on this certificate has

been made apartofthe

Copyright

Office

records.

7%u*l

x

&

M z

Register ofCopyrights, UnitedStates ofAmerica

Ti t le

Tide of

Work:

ShopKeep Register for iPad

Completion/Publication

EXHIBIT

4

Registration

Number

PA 1-762-902

Effective

date

o f

registration:

November 28,2011

Year

of

Completion: 2011

Date of 1st Publication:

August 5, 2011

Nation o f

1st

Publication: United States

Author

Author: Ronald Reeser

Au tho r Created: audiovisual material

Work made f o r h i re: Yes

Citizen

of : United

States

Author:

Jason

Richelson

Author

Created:

audiovisual material

Work

made

f o r h i re:

Yes

Citizen

of :

United States

Author:

MattCullin

Author Created: audiovisual material

Work

made

fo r

hire: Ye s

Citizen of : United States

Domiciled

in :

United

States

Domiciled

in : United States

Domiciled

in :

United

States

Copyright claimant

Copyright Claimant:

ShopKeep.com, Inc.

55 Broad Street,

New

York, NY, 10004, United States

Transfer Statement:

By written agreement

Rights and Permissions

Page 1of 2


24/59

Organization Name:

Sabety+ Associates PLLC

Certi f ication

Telephone:

Address:

Name:

Date:

212-481-8686

8 West 40th Street, 12th Floor

New York, NY 10018 United States

TedSabety,Esq.

November 28,2011

Page 2

of

2


25/59

Registration

#: PA0001762902

Service Request #: 1-691208254

Sabety + Associates PLLC

TedSabety

8 West

40th

Street,

12th Floor

New York, NY

10018

United

States


26/59

IN

THE

UNITED STATES

D I ST R IC T COURT

FOR THE SOUTHERN DISTR ICT

OF

NEW

YORK

SHOPKEEP.COM, INC.,

Plaintiff, Case No.

v

PAYVIDA SOLUTIONS INC.,

Def endan t .

DECLARAT ION

OF

NORM MERR I T T

EXHIBIT

5

Norm Merritt hereby states as follows:

1. I a m

N o r m

Merrit t .

2. I am Co-CEO and President ofShopkeep.com, Inc.

3. I make this declaration based on my personal knowledge.

4. Attached as Exhibit A is a true and correct copy

of

screenshots

of

a webpage from

the Defendant's website, specifically (referred to

herein as the Payvida website ), as retrieved on November 24, 2014.

5. Attached as Exhibit B is a true and correct Certificate ofRegistration for U.S.

Copyright Registration No. PA 1-762-902.

6. Attached as Exhibit C is a true and correct copy

of

the deposit for registration PA 1-

762-902.

7. Shopkeep.com, Inc. is the owner

of

U.S. Copyright Registration PA 1-762-902.

8. Shopkeep.com, Inc. is the owner of all copyright interest in the display imagerythat

depicts its software user interface and all other text and imagery that appears on its website,

www.shopkeep.com.


27/59

9. Exhibit D is a true and correct screenshot of the home page www.shopkeep.com,

dated May 2, 2013 archived at

. The home page

includes the copyright notice ShopKeep.com, Inc. All Rights Reserved.

10. The Payvida website as shown in Exhibit A contains at least 6 instances

of

unauthorized copies, transmissions or unauthorized derivative works of Shopkeep.com's

copyrighted user interface.

11. The unauthorized images

of

Shopkeep.com's copyrighted user interface that appear

on the Payvida website are identical to and extracted from an earlier version

of

Shopkeep.com's

website that was published on and made publicly available on Shopkeep.corn's website,

www.shopkeep.com.

12. One page of the Payvida Website presented in Exhibit A, sheet 4, includes an image

of

a person alongside the text Hi,

I'm

Josh I'll be your dedicated POS Specialist during your 30-

day trial. Feel free to contact me for helpful tips and tricks and any questions you have about

POS. A magnified portion is presented on sheet 5

of

Exhibit A.

13. The person identified as Josh on the PayVida webpage presented in Exhibit A is

Josh Jasper.

14. Josh Jasper is an employee ofShopkeep.com, Inc. and his current title is Point Of

Sale Specialist.

15. Josh Jasper did not authorize Payvida to use his image or likeness.

16. The image of the person identified as Josh in the PayVida webpage presented in

Exhibit A is identical to a picture

of

Josh Jasper that was published on and made publicly available

on Shopkeep.com's website, www.shopkeep.com.

17. Shopkeep.com, Inc. owns all copyright in the image

of

Josh Jasper and the

accompanying text that appears on the Shopkeep.com website, www.shopkeep.com.

18. Shopkeep.com, Inc. did not authorize Payvida to copy, transmit, publicly perform,

create derivativeworks of or otherwise use its copyrighted user interface imagery or any imagery

obtained from Shopkeep.com, Inc.'s website www.shopkeep.com or those of its authorized

distr ibutors.

19. Access and verbatim copying is demonstrated by Exhibit E, which is a true and

correct screenshot from Payvida's website. It shows content reproduced from the Shopkeep

website. This is demonstrated byExhibit F, which shows a zoom-in image

of

the screenshot in

Exhibit E, where Payvida's attempt to obscure Shopkeep's trademark failed and Shopkeep's

trademark readily appears.

[Remainder of Page Blank]


28/59

I declare under penalty of perjury that the foregoing is true and correct.

Executed on l^-f lyj^Q^

Declaration

o f

Norm

Merritt


29/59

E X H I B I T A

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PayVida's iPad POS Makes Sales Simple


30/59


31/59

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Cash :

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32/59

C B * mpep uspto.govpetition to revive issue fee P ^ ft &

n e e u u u u i t J i lu(j LtMiiniicn

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business

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BackOffice & Clearsight Reports


33/59

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34/59

Simple. Reliable

An d Efficient Wired

&

Wireless

Point

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S a l e

Solutions T h a t

Offer

The Latest Chip Card

L e ar n M o re

Now Anyone Can

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Payments Anywhere.

Anytime. Accept Credit

Ca rd s On

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barcodes,

take cash or

credit, print or email

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35/59

Certificate ofRegistration

AzSZSSz-.

This Certificate issued under theseal oftheCopyright

Officein accordance with title 17, United

States

Code,

attests that registration hasbeenmade for the work

identified below.

The

information on this certificate has

been

made

apartofthe

Copyright

Office records.

uu

x Rk

Wt

Register

ofCopyrights, United

States

of

America

Title

Tide of

Work: ShopKeepRegister for iPad


EXHIBIT

B

Registration Number

PA 1-762-902

Effect ive

date

o f

registration:

November 28,2011

Year

ofComplet ion: 2011

Date of 1st Publication: August 5,2011

Nat ion o f 1st Publication: United States

Author

Author: Ronald Reeser

Au tho r

Crea ted:

audiovisual materia l

Work

made

fo r

hire: Ye s

Citizen

of : United States

Author: Jason Richelson

Author Created: audiovisual mater ial

Work made f o r h ir e :

Ye s

Citizen

of : United States

Author:

Matt

Cullin

Author Created: audiovisual materia l

Work

made

fo r

hire:

Ye s

Citizen

of : United

States

Copyright claimant

Domici led in : United States

Domici led

in :

United

States

Domiciled in : United

States

Copyright

Claimant:

ShopKeep.com, Inc.

55 Broad Street, New York, NY, 10004, United States

Transfer Statement: By written agreement

Rights

and Permissions

^^^__^_^__^^^_

Page 1 of 2


36/59

Organization Name: Sabety+AssociatesPLLC

Telephone: \

212-481-8686

Address: | 8West 40th

Street,

12th Floor

iNewYork, NY10018

United States

Certi f ication

Name :

Date:

TedSabety, Esq.

November 28,2011

Page 2 of 2


37/59

Registration #: PAOOO1762902

Service

Request

#: 1-691208254

Sabety + Associates

PLLC

TedSabety

8

West

40th Street, 12th Floor

New York, NY

10018 United States


38/59

E X H I B I T

C

ShopKecp:Jason

Description

Qty Unit Price Sub to ta l

jMSinjtifl

Total

Esptesso

Roberta's

sBcfcybun

Coffee Mactfifetto

Butter+Lov

e

C o o k i e s

appuccin E&fe Caffe

CofcfcSirew

Mocha NQfcQ

Drip Sairaftwche

o f f e e S O S

C a s h

Stegte

Espresso


39/59

C a sh T e n d e r

5 .98

1 2

3

4

5

6

7

8

9

0

0

0

E n t e r

2 0 . 0 0


40/59

Description

Sandw i che s

Macch ia to

Bu t t e r+Love

Cook i e s

Drip Cof fee SO

ShopKeep:

Jason

Qty Unit Price

Subtotal

|2jgg

2

5.49 10.98

1

3.25 3.25

1

1.50

1.50

10.98 T

3 .25 T

1 .50

3 .50 T

S u b t o t a l 1 9 . 2 3

D i s c o u n t 0 . 0 0

Coffee

Mafcfififeto

iGaffe Caffe OofefcSrew T

tiHK Mocha ' {US Hot.ea

CiSfflffirate

P a in s a u Almond

Ctiocolat C r o i s s a n t s

B u t t e t + t o v

e CotStoes

Drip Sanfltefehe

Sip^te-

Espresso


41/59


42/59


43/59

EXHIBIT D

jie E di t iew History Eoofcmarfcs

IooUHelpJ

iPad

POS

System

j

Cloud Point

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A htp -

artftitjOfg.v.e&,'2CliO:

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captures

1Apr

01-20

Nov14

1HU

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41

elegant

easy-to-use iPad. By combining an iPad

register with our cloud-based BackOffice

reporting, you have the ability to generate

powerful analysisof inventory, sales and

customer relationship managementwith a

service that

neve rbecomes

outdated .

up customers, print or email receipts, popthe personal store online. Our powerful

cash drawer,accept creditcards, print to the reporting suite allows you to slice and

kitchen, scan items, manageyour inventory, dice your data easily and extract the

updatepricing and havereal timeaccess to infonnation thatis really meaningful to

sales numbers from anywhere. Try the demo, your business. ShopKeep POS is the

signup. thengo liveinminutes.Havea simplestway tomakesmarter business

question or concern? Call us. decisions.

S H O P K E E P P O S

i

Why ShopKeep POS

Ho w

it

Works

Customer

Reviews

Pricing

SignUp

Hardware

Introduction t o POS

Don't

hesitate to

call

us.

We're

a friendly

bunch

800-820-9814

work

wrm us

C 2013 ShopKeep.com.Inc. All Rights Reserved.

iPad isa registered trademark ofApple. Inc.

Patent pending.

Tenns

o f

Service

PrivacyPol icy

Rilling policy

M m f t f t

User License Agreement

Blog

Press

Jobs

C o n t a ct U s

PayPal Partnership

LevelUp Integration

Merchant Services Providers55

Broad

Street.9th Floor,

New

York,

NY

10004

Value Added Resellers

Affiliates

Merchants

800-820-9814

M a d e i n NY C i

Facebook

Twit ter

RSPA,

Innovative SolutionAwards

Close m


44/59

E X H I B I T

E

file Edit

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45/59

EXHIBIT F

J o h n Srciilh

c*oek


46/59

( ;

H|

Sabety+associates pllc

I

Law, Technology and Electronic Media

Robert J. Ronning

President

& CEO

PayVida Solutions, Inc.

221-3011 Louie Drive

WestbankBCV4T3E3

Canada

Fax: 855,346.8432

EXHIBIT

6

0

SWesi 40th Street. 12th Floor

NewYork.NYI00IB

Pi 212481 .8686

Fi

646.349.2782

EMAILi

[email protected]

URL:

www.tibety.net

December 6,2013

Dear Mr. Ronning,

I represent Shopkeep.com, Inc., locatedin NewYorkCity ( ShopKeep ). I understand that

you contactedmy client in May of this year ostensiblyto procure a referral code and becomea

value

added

reseller.

However, myunderstanding is thatyour

company never

signed the

referralagreementthat you requestednor procuredanycustomers. Therefore, there is no

contract between your company and ShopKeep.

Shopkeep.com

owns

several copyright

registrations for its

software code,

including a

registered

copyright

foritsuser

interface.

I have

been

alerted

to thefact that

your company

sells

software

thatpresents a user interface that infringes Shopkeep'scopyrights. I attachhere the relevant

copyright

registrations. In particular the

attached

screenshot fromthe PayVida

website shows

a

userinterface that is virtuallyidentical to theuserinterface thatShopKeep.com created and

registered with theU.S.Copyright Officetwoyearsago. It is galling to seethat youhave

placed the

PayVida

trademark onto the

images

of theuserinterface of ShopKeep's software.

The identical appearance of theuserinterface is itselfblatant copyright

infringement.

But the

identical

nature

of theuser interface suggests thatPayVidaobtained a copyof ShopKeep's

tabletPOSprogram codebypretending to bea ShopKeep customerand,withoutauthorization,

used ShopKeep's softwarecode in violationof theShopKeepend user license.

UnderU.S. andCanadian law, it is copyright infringement to makecopiesof,distribute, or

createderivations of copyrighted workswithout permission from the copyright owner.

Therefore,

theuse,creationand transmission of the infringing user interface and the infringing

software code

areactionable bothin the

U.S.

andin

Canada

under the respective

copyright

laws

ofboth

countries.

Thetransmission of the

infringing

screenshots

from

thePayVida website are

equally

actionable

both in theU.S. andin Canada. In addition, theassociation of the

PayVida

logowithShopKeep'sdistinctive user interface design raisesclaimsof trade dress infringement

and unfair competition,


47/59

To the

extent you think

there is a contract between your

company

and

ShopKeep, consider

this

letter

termination on

notice, due

to

your

company's

infringement

ofShopKeep's

intellectual

property, pursuant toSection 5 ofthatunsigned document. Furthermore,

any rights

in

Shopkeep's trademarks

or

copyrights granted

by

such document

are

granted

at

will, pursuant

to

Section

9, So

consider this letter

revocation

and termination

of

such

rights

on

notice,

Therefore, as ofnow there isno doubt your company has no rights to

the

intellectual property of

Shopkeep.

On behalfofShopkeep.com, I demand that PayVida cease and desist

from

any

further

use,

creation ordistribution of

any software

code that (i)isderived from

ShopKeep's

program

code

or

(ii) displays

the infringing user interface and that

PayVida cease

and desist from any further

use, copying or

transmission

of

the

infringing

images.

I also demand that PayVida cease

associating

its

name

with

any

ShopKeep intellectual property, including user interface designs,

website

images

and/or ShopKeep's

trademarks.

I alsodemand that

PayVida

disclose the

number of customers who have

received

thePayVida software, the

amount

of revenues

received

and the

country

of

their residence.

If I

do

not get confirmation

back from

PayVida within

5

days that il intends to

comply with

these

demands,

orif

PayVida

does not comply within 10

days, ShopKeep

is

prepared

to(i)

take legal action against your company, seeking damages,

attorney's

fees

and an injunction preventing PayVida from further distribution of its software in

Canada and/or

the

U.S.,

(ii)

take legal action against your website hosting provider

to

have

the

infringing website taken down and (iii)

inform

PayVida's

credit

card

partners that

PayVida

intentionally infringes ShopKeep's intellectual property, putting such

partners

at risk.

Shopkeep reservesall of its rights anddefensesin this matter.


48/59


mo

This Certificate

Issued

under the

seal of

the Copyright

Office

inaccordance withtitle

17, United

States

Code,

atteststhat

registration

hasbeenmade

for

thework

Identifiedbelow.The information on this certificatehas

been made apart oftheCopyright Office

records

iTLMLA hk

u

Register ofCopyrights, United States of

America

Ti t le ^^^^

Title ofWork: ShopKeepRegister

for iPad


Year of Completion:

2011

DateOf1stPublication; August5,2031

Registration Number

TX 7-482-937

Effective

date of

^

registration:

February

9,2012

Nation

of

1st Publication: United Stales

Au thor

Author. Ronald

Reeier

Author Created: computerprogram

Work

made for

hire:

Ye s

Citizen of :

United States

Author: Jason Rtchelson

Author Created: computer program

Work

made

for hire: Ye s

CJt izci ro f; United States

Author: MattCullin

AuthorCreated;

computer

program

Work made

for hire:

Ye s

Citizen

of :

United States

Domiciled id: United States

Domiciled

in: United States

Domiciled in: United States

Copyright claimant

CopyrightClaimant:

ShopKeep

corn,

the

55

Broad Street,

NewYork, NY,

10004,

United States

TransferStatement Bywrittenagreement

Rights

and

Permissions

1 ;

i i

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, v

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51/59

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'-:'.0-y'>( '--^''A 'r-';JJ^


52/59

( ^

( :


^p-gf*I*fr. Tnls

Certificate

issued

under

theseal oftheCopyright

* c Office inaccordancewith title

17,

United States Code,

attests thatregistration hasbeenmadefor thework

identified below. The information

on

this certificate has

been made a

part

of the Copyright Office

records.

Register

ofCopyrights, UnitedStates of

America

Title

Title

of

Work: ShopKeepRegisterfor

iPad


Registration Number

PA 1-762-902

Effective

date

o f

registration:

November 28,2011

Year of Completion: 2011

Date of1st Publication: August5,2011

Nation o f 1s t Publication: United States

Author

Author:

RonaldReeser

Author Created: audiovisual material

Work made fo r hire Ye s

Citizen of : United

States

Author: Jason

Richelson

Author Created: audiovisual

material

Work

made

fo r hire: Yes

Citizen o f: Uni te d S ta te s

Author;

MattCullln

Author Crea

t ed ; aud io vi sual material

Work

made

fo r hlrci Yes

Citizen o f: Uni te d S ta te s

Copyright

claimant

Domici led in: United States

Domici led i n : Uni ted

States

Domiciled in:

United States

Copyright Claimant: ShopKeep.com,Inc,

55Broad Street,New York, NY, 10004,United States

Transfer Statement: By written agreement

Rights and

Permissions

Page J of 2


53/59

Organization

Name:

jSabety +

Associates

PLLC

Telephone:

;

212-481-8686

i

Addrm: 8 West 40th Street, 12th Floor

Certi f ication

Name:

Date:

New York,NY 10018 United States

Ted

Sabety,

Esq.

November28,2011

Page 2

of

2


54/59

Registration H:

PAOOO

1762902

Service Request ft 1-691208254

Sabety+Associates PLLC

TedSabety

8 West

40lh

Street, 12th Floor

New York, NY 10018 United States


55/59

Tablet

&

iPad

Point of Sale

Payment Solutions

-PayVida Solutions

Inc.

http://www.payvida.ca/lablet-pos-solulions.hlml

I o f 5

E S t 3 f f i 5 3 3 S r a i

4 ^

PayVida*

HOME ABOUT PRODUCTS BENEFITS

WORKWITH US

CONTACT

US

Meet Your

New

Rockstar Business Manager

PayVida's iPad POS Makes Sales Simple

A dd

I tems:

Add

itemsby tapping, searching byname, or using the

bar-code scanner. Easily adjust quantities or apply discounts.

Pick A Payment Type:

Accept

cash, swipe

credit

cardsor debit

(debit

is

through

a

separate PayVida terminal).

Add A

Tip:

Invite tippingwith the preset tip icons.

Complete The

Sale:

Let yourcustomerssign

right

onyouriPad and thenyoucan

either print their receipt or email it to them.

^'V:

Tailor Your iPad Register to YOU

Customize yourhardware setup to theexact noeds ofyour business

12/3/2013 3:56

PM


56/59

Tablet iPad Point of Sale

Payment

Solutions - PayVida Solutions Inc.

htlp://www,payvida.ca/lablet-pos-solutions.html

2 of 5

Takethe basic setup to the next

level with

additional hardware

Bar-code

scanner :

Improveyour checkout speed to

focus on interacting with

your customer.

Remote

Printer:

Print orders straight to the bar,

kitchen or Batista for increased

efficiency.

Scale s :

Diversify your offerings and

sell any itemby

weight,

easily

with more accuracy.

Modify With Ease

Cheeseburger, hold the kelehtip,

add fried

onions...

No

Problem

Configure groups (e.g. welldone, medium,

and rare) oradd-ons (e.g. lettuce or

tomatoes) forany item, then tap thai itemon

your PayVida register to open up its options.

Completelycustomize (heorder for your

customers andwlrelessley send itstraightto

the kitchen orbar printer.

Accept Any Payment

Take cash

or credit

cards,

or

debit

12/3/2013 3;56PM


57/59

Tablet

& iPad Point ofSale

Payment

Solutions - PayVida Solutions Inc.

hUp://www.payvida.ca/lablet-pos-solulions,html

3 o f 5

C a s h :

When your customer pays,

the cash drawer pops open.

Store your cash safely and keep it

organized.

All Major

Credit

Card.s:

Swipe

any major credit card

through the PayVida card swiper

attached to your iPad.

Debi t Cards:

The iPad does not accept debit

because

o f t he

EMV/Pin in Canada.

But, PayVida provides you witha

free counter top terminal for your

debit transactions.

The Most Powerful Tools To Manage Your

B u s i n e s s

Make

smarter business

decisions from any web browser with our

BackOffice & Clearsight Reports

inventory management:

Add

Items: Track your entire

Inventory, Including pricingand

quantities. Have choices with

th e

modifiers

an d know when (o

order more product or supplies.

Customize your

layout:

Choose exactly how your items

are arranged on your iPad

register, so you can assure that

popular

items

are easy to find,

Employee management:

Control

access:

Assign

Individual sign Incodes toyour

employees, offering them

cashier, manager orback

office permissions.

Manager dashboard:

Managers can open and close

shifts, se e the dally totals,

create payouls and print

reports.

12/3/2013 3:56

PM


58/59

Tablet &

iPad Point

of SalePayment Solutions - PayVida Solutions Inc,

htlp.7Avww.payvlda.ca/lablet-pos-solulions.html

4 o f 5

Raw Goods: Keep trackof

Individual Ingredients that go

Into your productsto ensure

re-ordering

when

supplies are

running low.

Time clock: Easilytrack

employee hours foreasier

payrolland shift management

when Ihey clock inand clock

ou t

on th e iPad.

Customize receipts;

Customer Loyalty:

Customize store details;

Encourage customers to

remember you with a

customized printreceipt

featuring

your company name,

slogan, contact and social

media info.

Offer digital receipts: Save

lime and trees by offeringemail

receipts and the abilityfor

customers to sign and tip for

their orders right on the display

s c r e e n .

Get to

know

your

customers: Save customer

information on every

purchase and greet regulars

wilh their favorite items.

Send marketing emails:

Contact your PayVida iPad

customers wilh

information

about special events,

promotions and

much

more.

Robust

Reporting

UiKioi'stcind your business better than ever with our Clearln&ight Reports

A report for everything

Use the powerand

flexibility

of oureasy-to-understand Clearinsight Reports to make smarterbusiness decisions.

A range of reports

Cj Summary Report

b Sa les by Date

CjSales by Hour

L Sales by DateRange

f_j

Sales byTender

Cj Sales by

Department

Plus, plenty of useful exports

CjTop

Selling

items

Cj QulckBooks

Cj Sales

D

So ld I tems

Cj

Slock

Items

Cj Modifiers Report

Cj InventoryValue Report

Ci Reorder Report

Cj TaxReport

Cj Drop/Payouls/lnventory

Cj Inventory Adjustment

Report

Cj Returns

Cj Returned Items

L>

LoyaltyProgramVouchers

G

Order

from

Sales

Cj

What do

I

need

to

order?

All In th e Cloud

Payvida POS Isa cloud-based

point

of sale

system, meaning

no

more

local

servers,

easy

upgrades, and data thai Is

always available and accessible

from anywhere,

Safe, Easy, Fast

Safe

and Secure

. All PayVida POS transactions are

- ( protected by several layers of

securily and no card dala Isever

louched. stored, orshared Inany

way. The register Bvenworte

when you are offline.

Keep track from

W4.-,[Mt.vJ

shopkeep v. payvida complaint.pdf

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