IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Karen Dudnikov and Michael Meadors,
	
                          Plaintiffs,

    v.

[DEFENDANT], 

                          Defendant.
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Case No. 

COMPLAINT FOR DECLARATORY JUDGMENT OF COPYRIGHT NONINFRINGEMENT AND TRADEMARK NONINFRINGEMENT, TORTIOUS INTERFERENCE WITH A PROSPECTIVE BUSINESS RELATION, AND PRODUCT DISPARAGEMENT
JURY TRIAL DEMANDED
	
 Plaintiffs Karen Dudnikov and Mike Meadors allege and aver as follows:

PARTIES
1. Plaintiffs Karen Dudnikov and her husband, Mike Meadors, are Colorado residents who run an unincorporated business out of their home under the name of TabberOne. Karen and Mike make and sell collectible hand-made fabric crafts, such as aprons, blankets, pot holders, and placemats.
2. Defendant [name of defendant] is a [state of incorporation] corporation with its principal place of business at [headquarters address]. Upon information and belief, defendant is the owner of certain copyright and trademark rights in [whatever].

JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over plaintiffs' Copyright Act and Lanham Act claims under 28 U.S.C. §§ 1331, and 2201. This Court has supplemental subject matter jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367(a). This Court has personal jurisdiction over Defendants under the test established in Calder v. Jones, 465 US 783 (1984), applying Colo. Rev. Stat. § 13-1-124. Venue is proper in this District under 28 U.S.C. § 1391(b).

GENERAL ALLEGATIONS
Plaintiffs' Business
4. Karen and Mike run a home-based business under the name TabberOne. The business is named after their family cat, Tabber. Karen and Mike make and sell hand-made collectible fabric crafts, such as aprons, blankets, pot holders, and placemats.
5. Karen and Mike sell these collectibles through their website, www.tabberone.com, and through eBay.
6. eBay is a popular Internet auction site accessible at http://www.ebay.com/. The eBay site allows users to post items for sale, on which other users may place bids. When the time allotted for the auction is complete, the site informs the highest bidder that he or she has "won" the auction, and informs the seller of the identity and contact information of the highest bidder. After the buyer and seller complete their transaction, the eBay site offers both parties the opportunity to leave "feedback" on the quality of the goods and the speed and smoothness of the transaction.
7. Since they began selling items on eBay in 1999, Karen and Mike have sold over 5,100 items through the site. eBay sales have become an important source of financial support for Plaintiffs. Plaintiffs sell high-quality manufactured goods, and nearly half of their sales have been to repeat customers. Out of the over 2,800 individuals who have purchased items from Plaintiffs and left feedback, 99.8% have indicated satisfaction with the transaction.
8. Karen and Mike make many of their collectibles out of fabric pre-printed with cartoon characters and logos. These fabrics are sold at retail fabric and craft stores to consumers. Karen and Mike do not themselves print any cartoon characters or logos on the crafts they sell. 
9. On information and belief, the fabric Karen and Mike purchase has been manufactured under the authorization of the owner of copyright and trademark rights in the characters or logos. 
10. TabberOne auction listings on eBay consistently inform prospective buyers that the craft for sale is not a product of the copyright or trademark holder. For example, a recent auction of an apron made from licensed fabric imprinted with images of characters from the Peanuts comic strip bore the notice, "This is not a licensed Peanuts product. It is, however, hand-crafted with care from licensed Peanuts fabrics. Tabberone is not affiliated with Peanuts."
eBay's VeRO Program
11. In order to prevent the sale of goods that infringe copyright and trademark rights through its site, eBay has established the Verified Rights Owner Program (VeRO).
12. This program allows owners of intellectual property rights to halt ongoing auctions selling infringing goods. In order to halt an ongoing auction, the rights owner must file a "Notice of Claimed Infringement" representing, under penalty of perjury, that they have a good faith belief that the items offered in that auction are infringing. After receipt of these representations, eBay summarily halts the auction without further investigation. eBay instructs sellers whose auctions have been halted due to a complaint from a rights-holder to contact the rights-holder to resolve the dispute. eBay will reinstate the halted auction only if the rights-holder gives its permission.
13. Because eBay offers no opportunity for sellers to prove the lawfulness of their crafts in the face of rights-holder complaints, Plaintiffs have no recourse but to sue.
Defendant's Acts
14. Karen and Mike initiated auction number [number] (the "Auction") on [date]. The item to be sold (the "Item") was [item]. 
15. The Item was made from fabric which Plaintiffs purchased at retail at [store] on or about [date]. The fabric . . . [describe the cartoon character or logo here].
16. On information and belief, this fabric was manufactured under a valid license from Defendant.
17. On [date], Defendant transmitted to eBay a Notice of Claimed Infringement which stated under penalty of perjury that Defendant had a good faith belief that the sale of the Item via the Auction infringed its intellectual property rights.
18. When they received this notice, eBay halted the Auction.
19. At the time the auction was halted, [number of bids] bids had been made on the item. [Only include this if bids had been made.] 
20. When eBay halted the Auction, Plaintiffs received notice of Defendant's complaint from eBay via email. This email stated that the auction had been ended because [reason].
21. Because of Defendant's complaint, Plaintiffs suffered a loss of revenue from the Auction and from similar auctions which were blocked by eBay due to the same complaint.

COUNT ONE: 
DECLARATORY JUDGMENT - COPYRIGHT
(17 U.S.C. 101 et seq.)
22. Plaintiffs repeat and reallege paragraphs 1 though 21 as if fully set forth in this Paragraph.
23. There is a real and actual controversy between Plaintiffs and Defendant regarding whether Plaintiffs' actions constitute copyright infringement.
24. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201 - that making and selling crafts from materials bearing copyrighted content when the materials from which the crafts are made were manufactured under authority of the copyright holder is not an infringement of copyright

COUNT TWO: 
DECLARATORY JUDGMENT - TRADEMARK
(15 U.S.C. 1051 et seq.)
25. Plaintiffs repeat and reallege paragraphs 1 though 24 as if fully set forth in this Paragraph.
26. There is a real and actual controversy between Plaintiffs and Defendant regarding whether Plaintiffs' actions constitute trademark infringement.
27. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201, holding that:
a) making solely descriptive use of trademarked words or phrases in connection with the sale of the crafts is not an infringement of trademark rights; and
b) making and selling crafts from materials bearing copyrighted content when the materials from which the crafts are made were manufactured under authority of the trademark holder is not an infringement of trademark rights.

COUNT THREE:
TORTIOUS INTERFERENCE WITH A PROSPECTIVE BUSINESS RELATION
(Colorado Common Law)
28. Plaintiffs repeat and reallege paragraphs 1 through 27 as if fully set forth in this Paragraph.
29. Defendants intentionally and improperly interfered with the progress of the Auction.
30. This interference prevented the formation of a contract between Defendant and the high bidder at the time the auction was halted. [Note: you can only allege this if there really were bids at the time the auction was halted. If there were no bids at the time the auction was halted, you should not sue for tortious interference with a prospective business relation.]
31. Plaintiffs have suffered damage as a result of this interference
COUNT FOUR:
PRODUCT DISPARAGEMENT
(Colorado Common Law)
32. Plaintiffs repeat and reallege paragraphs 1 through 31 as if fully set forth in this Paragraph.
33. Defendant's statement to eBay in the Notice of Claimed Infringement stating a good-faith belief that the Auction constituted infringement was false.
34. This statement was published to a third party when Defendant transmitted the Notice of Claimed Infringement to eBay.
35. This statement was derogatory to Plaintiff's business in general, to the title to his property, or its quality.
36. Defendant recognized or should have recognized that this statement was likely to cause harm to Plaintiff's pecuniary interest.
37. This statement was made with malice.
38. Plaintiffs have suffered special damages as a result of this statement.

WHEREFORE, Plaintiffs Karen Dudnikov and Michael Meadors request that this Court enter judgment as follows:
1. A declaratory judgment, holding that:
a) Making and selling crafts from materials bearing copyrighted content when the materials from which the crafts are made were manufactured under authority of the copyright holder is not an infringement of copyright;
b) Making and selling crafts from materials bearing copyrighted content when the materials from which the crafts are made were manufactured under authority of the trademark holder is not an infringement of trademark rights;
c) Displaying photographs of the crafts in connection with their sale is not an infringement of trademark rights; and
d) Making solely descriptive use of trademarked words or phrases in connection with the sale of the crafts is not an infringement of trademark rights;
2. An order restraining Defendant, its agents, servants, employees, successors, and assigns, and all others in concert and privity with them, from bringing any lawsuit or threat against Plaintiffs or any other person or entity for copyright or trademark infringement in connection with the manufacturing, marketing, and sale of articles as described above;
3. An order restraining Defendant, its agents, servants, employees, successors, and assigns, and all others in concert and privity with them, from representing to any third party that the manufacturing, marketing, and sale of articles as described above constitutes copyright or trademark infringement;
4. Damages for intentional interference with a contractual relationship, tortious interference with a prospective business relation, negligent misrepresentation, and fraudulent misrepresentation; and
5. Such other and further relief as the Court shall find just and proper.
DATED: [date]
						By ______________________________________
							Karen Dudnikov
							Michael Meadors
							[street address]
							Hartsel, CO 80449
							[phone number]
						Plaintiffs Pro Se
							JURY TRIAL DEMANDED


COMPLAINT
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