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Case 1:10-cv-00426

Document 1

Filed 01/21/10

Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JELLYVISION, INC.,

)

JURY DEMAND

)

Plaintiff,

)

)

v.

)

)

AFLAC INCORPORATED,

)

)

Defendant.

)

COMPLAINT

Plaintiff Jellyvision, Inc. (“Jellyvision”), for its Complaint against Defendant Aflac

Incorporated (“Aflac”), alleges as follows:

Nature Of Action

1. This action arises from Aflac’s unauthorized use of YOU DON’T KNOW QUACK in

connection with an online game. Such use constitutes infringement of Jellyvision’s federally

registered trademark YOU DON’T KNOW JACK, which Jellyvision has used for more than 15

years for games.

2. As set forth more fully herein, Aflac has recently begun using YOU DON’T KNOW QUACK

for a game accessible on its website. Aflac’s use is unauthorized by Jellyvision and represents an

effort to trade on the valuable goodwill and reputation associated with Jellyvision and its YOU

DON’T KNOW JACK mark.

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3. Aflac’s use of YOU DON’T KNOW QUACK has caused, and is likely to continue to cause,

confusion with regard to the affiliation or connection between Aflac and Jellyvision, and with

regard to the source, sponsorship, or approval of Aflac’s game, resulting in the unjust

enrichment of Aflac.

4. Jellyvision seeks, among other remedies, injunctive and monetary relief for injuries that

have been, and will continue to be, caused by Aflac’s unauthorized use of YOU DON’T KNOW

QUACK, in violation of the Lanham Act (15 U.S.C. §§1051 et seq .) and related Illinois laws.

Jurisdiction and Venue

5. This Court has personal jurisdiction over Aflac because Aflac has engaged in business

activities in, and directed to, the State of Illinois and within this Judicial District, and because

Aflac has knowingly committed tortious acts aimed at, and causing harm within, the State of

Illinois and this Judicial District.

6. This Court has jurisdiction over the claims in this Complaint pursuant to 15 U.S.C. §1121

and 28 U.S.C. §§1331, 1338 and 1367.

7. Venue is proper in this Judicial District under 28 U.S.C. §1391(b) and (c) because

Jellyvision and Aflac reside in this District, because Jellyvision and Aflac transact business in this

District, and because a substantial part of the events giving rise to Jellyvision’s claims have

occurred, and are occurring, within this District. Furthermore, the damage to Jellyvision and its

intellectual property described herein continues to occur in this District.

Parties

8. Jellyvision is an Illinois corporation with its principal place of business in Chicago, Illinois.

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9. Aflac is a Georgia corporation with its principal place of business in Columbus, Georgia.

Jellyvision’s YOU DON’T KNOW JACK Mark

10. Jellyvision creates and develops original interactive and non interactive experiences.

One of Jellyvision’s core products is a game that it sells under the mark YOU DON’T KNOW

JACK. The game, first released in 1995, entails players answering humorous multiple choice

questions.

11. Jellyvision’s YOU DON’T KNOW JACK game has enjoyed enormous commercial and

critical success. The game can be played on computers, in either CD ROM or online format, as

well as on the Sony PlayStation system. Jellyvision’s YOU DON’T KNOW JACK game has won

more than 50 awards from the interactive industry. Since 1995, over 5 million units of YOU

DON’T KNOW JACK games have been sold. In the summer of 2001, the ABC television network

premiered a prime time television show version of YOU DON’T KNOW JACK, under license from

Jellyvision.

12. The phrase YOU DON’T KNOW JACK is used in the game itself, on the packaging of the

game, and in advertisements for the game. Since the inception of the product line, the YOU

DON’T KNOW JACK mark has consistently taken the visual form of the words YOU DON’T KNOW

sitting on top of the work JACK, which is two to three times as tall, and equally as wide, as YOU

DON’T KNOW; thus:

of the work JACK, which is two to three times as tall, and equally as wide,

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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 4 of 12 13. Jellyvision has promoted its YOU

13. Jellyvision has promoted its YOU DON’T KNOW JACK game through various media,

including print, electronic, television, and radio. Since 1995, Jellyvision and its licensees have

spent millions of dollars promoting Jellyvision’s YOU DON’T KNOW JACK mark, brand, and

games. Jellyvision’s efforts have resulted in millions of aural and visual consumer impressions of

the YOU DON’T KNOW JACK mark, thus reinforcing the association of YOU DON’T KNOW JACK

games with a single source.

14. Jellyvision’s use and promotion of the YOU DON’T KNOW JACK mark in connection with

games, in interstate commerce, began in 1995 and has been substantially continuous and

exclusive since then.

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15. Through its expenditure of substantial time, resources, and effort in continuously using

and promoting the YOU DON’T KNOW JACK mark in connection with games, Jellyvision has

created substantial recognition, goodwill, and secondary meaning, and has acquired significant

intellectual property rights, in its YOU DON’T KNOW JACK mark as used in connection with

games.

16.

The US Patent and Trademark Office has awarded to Jellyvision US Trademark

Registration No. 2,027,323 for YOU DON’T KNOW JACK for use in connection with computer

game programs recorded on CD ROMS ( see Exhibit A).

17. The Registration is incontestable pursuant to Section 15 of the Lanham Act (15 U.S.C.

§1065). As a result, the mark is valid, the Registration for the mark is valid, Jellyvision owns the

mark, and Jelly has the exclusive right to use the mark in commerce in connection with games

(15 U.S.C. §1115).

Aflac’s Unauthorized Use Of YOU DON’T KNOW QUACK

18. On information and belief, Aflac’s primary business is supplemental insurance

underwriting. As part of its promotional efforts to support its business, Aflac has recently begun

offering its customers and potential customers an online game. Aflac promotes the game under

the mark: YOU DON’T KNOW QUACK. The mark is used on (among other things) a website

operated by Aflac that itself uses YOU DON’T KNOW QUACK as the entirety of the domain

name: www.youdontknowquack.com . The home page of that site shows the following:

5

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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 6 of 12 (The same screen shows up at

(The same screen shows up at another Aflac site, www.getquack.com .) From there, one is

presented with a series of three questions with multiple choice responses available to the

player of the game.

19. Aflac’s promotion of its game is also accessible through third parties’ web sites,

including (among others) such heavily trafficked sites as those operated by the New York Times

and CNN. A screen shot from the New York Times’ home page, as accessed on January 10, 2010,

is attached at Exhibit B.

20. The words used by Aflac differ from Jellyvision’s YOU DON’T KNOW JACK mark only by

the substitution of the letter “q” for the letters “ja”. The substitution produces the word

“quack,” which is very similar to the word “jack.” And the visual presentation of the words used

by Aflac mimics Jellyvision’s YOU DON’T KNOW JACK mark in its stacking and proportional

treatment of YOU DON’T KNOW in relation to QUACK.

21. The game offered by Aflac under YOU DON’T KNOW QUACK is at least related in nature

and kind to Jellyvision’s YOU DON’T KNOW JACK game.

22. Aflac has applied to register YOU DON’T KNOW QUACK as a trademark with the US

Patent and Trademark Office for use in connection with insurance underwriting in the field of

health insurance. The application, Serial Number 77805819, is pending.

6

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23. Aflac’s unauthorized use of, and attempt to register, YOU DON’T KNOW QUACK for a

game are willful and intentional acts and are intended to trade on the reputation and goodwill

of Jellyvision, to confuse and deceive consumers, and to unfairly compete with Jellyvision.

24. On information and belief, before Aflac began using YOU DON’T KNOW QUACK, Aflac

had actual knowledge of Jellyvision’s YOU DON’T KNOW JACK mark and/or Registration.

25. Since Aflac began using YOU DON’T KNOW QUACK, but before January 21, 2010, Aflac

had actual knowledge of Jellyvision’s YOU DON’T KNOW JACK mark and/or Registration.

26. Before Aflac began using YOU DON’T KNOW QUACK, Aflac had constructive notice of

Jellyvision’s claim of ownership of YOU DON’T KNOW JACK for computer game programs

recorded on CD ROMs, pursuant to 15 U.S.C. §1072.

27. On information and belief, Aflac is deliberately and willfully using, in interstate

commerce, the mark YOU DON’T KNOW QUACK in connection with a game in an attempt to

trade on the goodwill, reputation, and marketing power created by Jellyvision under its YOU

DON’T KNOW JACK mark.

28. Aflac’s unauthorized use of YOU DON’T KNOW QUACK deprives Jellyvision of the ability

to control consumer perception of the quality of goods offered under marks that are identical

or confusingly similar to Jellyvision’s YOU DON’T KNOW JACK mark. This places Jellyvision’s

valuable reputation and goodwill in the hands of Aflac, over whom Jellyvision has no control.

29. Jellyvision has been, is now, and will be irreparably harmed by Aflac’s aforementioned

acts and, unless enjoined by the Court, Aflac will continue to engage in its unlawful acts. There

is no adequate remedy at law for the harm caused by Aflac’s unlawful acts alleged herein.

7

Case 1:10-cv-00426

Document 1

COUNT I

Filed 01/21/10

Page 8 of 12

Trademark Infringement in Violation of Section 32(1) of the Lanham Act, 15 U.S.C. §1114(1)

30. Jellyvision incorporates by reference Paragraphs 1 through 29, above, as though fully set

forth herein.

31. Aflac’s unauthorized use of YOU DON'T KNOW QUACK in connection with a game is

likely to cause confusion, mistake, and/or deception.

32. The aforementioned acts of Aflac constitute infringement of a federally registered mark,

in violation of 15 U.S.C. §1114.

COUNT II

Unfair Competition in Violation of Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a)

33. Jellyvision incorporates by reference Paragraphs 1 through 32, above, as though fully set

forth herein.

34. Aflac’s unauthorized use in commerce of YOU DON’T KNOW QUACK constitutes a false

designation of origin that is likely to cause confusion, mistake, or deception as to the affiliation,

connection, or association between Aflac and Jellyvision, or as to the origin, sponsorship, or

approval of Aflac’s game or commercial activities by Jellyvision, in violation of Section 43(a) of

the Lanham Act, 15 U.S.C. §1125(a).

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Case 1:10-cv-00426

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COUNT III

Page 9 of 12

Violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/17

35. Jellyvision incorporates by reference Paragraphs 1 through 34, above, as though fully set

forth herein.

36. Aflac’s unauthorized use YOU DON’T KNOW QUACK is likely to cause confusion or

misunderstanding as to the source, sponsorship, approval, or certification of Aflac’s game,

and/or otherwise creates a likelihood of confusion or misunderstanding.

COUNT IV

Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/112

37. Jellyvision incorporates by reference Paragraphs 1 through 36, above, as though fully

set forth herein.

38. Aflac’s unauthorized use of YOU DON’T KNOW QUACK is a deceptive act or practice, on

which it intends consumers to rely, and is in the course of conduct involving trade or

commerce.

39. Aflac’s conduct involves trade practices that are directed to the market generally and

that implicate consumer protection concerns.

9

Case 1:10-cv-00426

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COUNT V

Page 10 of 12

Common Law Unfair Competition and Trademark Infringement

40. Jellyvision repeats and realleges the allegations of paragraphs 1 through 39, above, as

though fully set forth herein.

41. Aflac’s unauthorized use of YOU DON’T KNOW QUACK constitutes common law unfair

competition and trademark infringement because such use is likely to cause confusion, mistake,

or deception as to the source, sponsorship, or approval by Jellyvision of Aflac’s game. The

public is, for example, likely to believe that Aflac’s YOU DON’T KNOW QUACK game originates

with Jellyvision, is licensed by Jellyvision, and/or is sponsored by, connected with, or related to

Jellyvision.

WHEREFORE, Jellyvision prays:

A. That Aflac, its officers, agents, servants, employees and attorneys, and all those

in active concert or participation with them (hereinafter collectively “Aflac”), be

preliminarily and permanently enjoined and restrained from:

1. Using YOU DON’T KNOW QUACK as, or as part of, any mark in connection with a game;

2. Using any other term or phrase as, or as part of, a mark in connection with a game, where such use is likely to result in the mistaken belief that Aflac or its game is in any way affiliated, connected or associated with Jellyvision or its YOU DON’T KNOW JACK game; and

3. Otherwise unfairly competing with Jellyvision in any manner whatsoever.

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B. That Aflac be required to expressly abandon its federal trademark application for

YOU DON’T KNOW QUACK, Serial No. 77805819, pursuant to 37 C.F.R. §2.68.

C. That Aflac be required to assign to Jellyvision all of Aflac’s right, title, and interest

in and to the domain name www.youdontknowquack.com .

D. That, pursuant to 15 U.S.C. §1118, Aflac be required to deliver to the Court or to

Jellyvision for destruction all labels, packages, brochures, wrappers,

advertisements, promotions, letterhead, and all other physical materials in the

custody or under the control of Aflac bearing the YOU DON’T KNOW QUACK

mark, as used in connection with a game. This includes the deletion of any and

all electronic data, information, and/or computer files bearing any form of the

YOU DON’T KNOW QUACK mark in any manner, including any such files on

websites, computers, hard drives, or other storage media that are operated by,

or under the control of, Aflac and its agents and contractors.

E. That, pursuant to 15 U.S.C. §1116, Aflac be directed to file with the Court and

serve upon Jellyvision within thirty (30) days after issuance of an injunction that

incorporates the aforementioned relief (as well as any other injunctive relief) a

report in writing and under oath setting forth in detail the manner and form in

which Aflac has complied with the injunction.

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F. That Jellyvision be awarded monetary relief in an amount to be fixed by the

Court in its discretion, including (but not limited to):

1. All profits received by Aflac as a result of its unlawful actions, said amount to be trebled due to Aflac’s willful misconduct; and

2. All damages sustained by Jellyvision as a result of Aflac’s unlawful acts, said amount to be trebled due to Aflac’s willful actions; and/or

3. Punitive damages.

G. That the Court award to Jellyvision all reasonable attorneys’ fees, costs and

disbursements incurred by Jellyvision as a result of this action.

H. That the Court require Aflac to pay prejudgment interest on any and all

monetary awards (in whatever form) to which Jellyvision is entitled.

I. That the Court order all other and further relief that it deems proper and just.

Jellyvision demands a trial by jury on all issues so triable.

DATED: _January 21, 2010

Kurt J. Hirsch (Illinois Bar No. 6276283) Jellyvision, Inc. 848 W Eastman Street, Suite 104 Chicago, IL 60622 (312) 2660606

Respectfully submitted,

JELLYVISION, INC., through its Attorneys

_/s/ Joshua S. Frick

John T. Gabrielides (Illinois Bar No. 6198323) Philip A. Jones (Illinois Bar No. 6217213) Joshua S. Frick (Illinois Bar No. 6292843) Brinks Hofer Gilson & Lione 455 N. Cityfront Plaza Drive, Suite 3600 Chicago, IL 60611 (312) 3214200

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"Up" shoots for Academy upset "Avatar" and the suspense-free shortlist

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Analysis: For Jets, Success Far Beyond One Playoff

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N.Y. / REGION » Analysis: For Jets, Success Far Beyond One Playoff THEATER »    
N.Y. / REGION » Analysis: For Jets, Success Far Beyond One Playoff THEATER »    
 

Teaching Green, Beyond Recycling

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Theater Review | 'Once and

 

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for All We’re Gonna Tell You Who We Are So Shut Up and Listen': In a Playpen of Adolescence, Angst Not

 

Jet Makes Emergency Landing at Newark Airport

Art Clokey, Animator Who Created Gumby, Dies at 88

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Click here to enjoy the convenience of home delivery of The Times for 50% off.

 

M.T.A. to Unveil a Makeover of Its Web Home

Ray Solomonoff, Pioneer in

Artificial Intelligence, Dies at

Included

 
to Unveil a Makeover of Its Web Home Ray Solomonoff, Pioneer in Artificial Intelligence, Dies at
to Unveil a Makeover of Its Web Home Ray Solomonoff, Pioneer in Artificial Intelligence, Dies at
 

83

 

Bringing Torture Home to Chicago’s South Side

 

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Herbert Spiegel, Doctor Who Popularized Hypnosis, Dies

Feeling That Cold Wind? Here’s Why.

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Threesome: Husband,

at

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Wife, Shakespeare

Cancer Risks Debated for Type of X-Ray Scan

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TELEVISION »

 

The 31 Places to Go in 2010

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China Tries a New Tack to Go Solar

36 Hours in New York City

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Chicagoland Chevy Dealer

 

Large Price Jumps Reported for Small but Vital Drugs

The Role of a Lifetime

Chevrolet Selection at Its Finest TriState Chevy Hotline 708-429

 

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Using a Pfizer Grant, Courses Aim to Avoid Bias

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Ford Liquidation Event

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All Remaining '09 Models Must Sell! See Prices from Overstocked Dealers

 

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The Minimalist: Tri-Tip: A Steak Worth the Hunt

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Teaching Green, Beyond Recycling

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On The Cheap: The Rocky Road Home

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Wimp or a Warrior?

Recession Spurs Interest in Graduate, Law Schools

The Terrorist Mind: An

Seen: Recalling I.D., a Beacon in Design

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The Children of Cyberspace:

Old Fogies by Their 20s

 

Yours for Under $1 Million

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THE HUNT: A Place With a Certain Something

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If

Peter Orszag Is So Smart,

 

What Will He Do Now?

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The New Age Cavemen and the City

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The Americanization of

Brooklyn: The Leader of the Cheers

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Harrington: Finally, All the Beer Is His

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Detroit Auto Show: Ford

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Sweeps Car and Truck of the

Year

 

Global Tables | Stellar Sushi

Detroit Auto Show: Ford Launches Global Focus

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Case 1:10-cv-00426

Document 1-2

Filed 01/21/10

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