Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

___________________________________________ ) ) ) Plaintiff, ) ) v. ) ) SCARAB ACQUISITION LLC, ) ) Defendant. ) ___________________________________________ ) EVIDOX CORPORATION,

Civil Action No. 11-11702

COMPLAINT Plaintiff Evidox Corporation (Evidox), for its Complaint against defendant Scarab Acquisition LLC, alleges as follows: Introductory Statement 1. This is an action for injunctive relief and damages arising out of defendants

unlawful infringement of plaintiffs federal-registered trademarks, unfair competition, tortious interference with plaintiffs existing and prospective customer relations, and unfair and deceptive business acts and practices. Defendant Scarab Acquisition LLC, a direct competitor of plaintiff Evidox, has just announced the change of its trade name from Scarab Consulting to Evidex, a name that, aurally and visually, is confusingly similar to plaintiffs registered trademark EVIDOX. 2. Evidox seeks preliminary and permanent injunctions barring defendants use of

the trade name Evidex or any other name that is confusingly similar to plaintiffs EVIDOX trademark, damages for the economic harm caused by defendants misappropriation of the good

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 2 of 11

will associated with plaintiffs EVIDOX mark, multiple damages under the Lanham Act and Chapter 93A, and attorneys' fees and costs. The Parties 3. Evidox Corporation is a corporation organized and existing under the laws of the

Commonwealth of Massachusetts with a principal place of business at 207 South Street in Boston, Suffolk County, Massachusetts. Founded in 2006, Evidox is a leading provider of litigation consulting and support services to corporations and law firms, including electronic discovery, ediscovery collection, ediscovery processing, ediscovery hosting, litigation technology consulting, electronic trial support, and related services. It owns two United States trademark registrations for its trade name EVIDOX. 4. Defendant Scarab Acquisition LLC is a limited liability company organized and

existing under the laws of the State of Texas with a principal place of business at 3724 Dacoma Street, Houston, Texas. Previously known as Scarab Consulting, it adopted the trade name Evidex yesterday, September 26, 2011. Like Evidox, it provides litigation consulting and support services to corporations and law firms, including electronic discovery, ediscovery collection, ediscovery processing, ediscovery hosting, litigation technology consulting, electronic trial support, and related services. Jurisdiction and Venue 5. This Court has subject matter jurisdiction pursuant to Section 39 of the Trademark

Act of 1946, 15 U.S.C. 1121; 28 U.S.C. 1338(a), and principles of supplementary jurisdiction codified at 28 U.S.C. 1367. 6. Venue lies in this District pursuant to 28 U.S.C. 1391(b) as the defendant

residesin this District and a substantial part of plaintiffs claims arose in this District. 2

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 3 of 11

Facts 7. Evidox was founded in 2006. Evidox provides litigation consulting and

ediscovery support services to corporations and their law firms, including numerous national law firms. The services it offers include: ediscovery collection (preserving and harvesting electronic document repositories from mail servers, file servers, local computers, etc.); ediscovery processing (deduplication, keyword filtering, conversion of source data to a review database; ediscovery hosting (loading processed data into a hosting environment for attorney review); ediscovery production (conversion of reviewed data to a suitable production format with control numbers and confidentiality legends); related ediscovery services (scanning paper documents to electronic format; OCR, coding, printing, etc.); consulting on ediscovery project management and cost control; consulting on internal investigations; consulting on litigation preparedness and document retention; consulting with litigators, in-house counsel, and corporations on costeffective uses of technology to reduce cost and increase efficiency; assisting litigation counsel with ediscovery obligations under the rules of civil procedure; assisting law firms and corporations in setting up litigation-support database systems and trial presentation systems; providing administrative support, training, and help-desk support for litigation-support database and review systems; providing secure on-line hosting of litigation documents; consulting with trial attorneys on the effective and cost-efficient use of trial technology; developing electronic demonstratives; presenting electronic evidence in court, and related litigation support services. 8. Evidox was founded by a former litigation attorney at an AmLaw 100 firm who

has an extensive background in litigation technology and ediscovery, and a former litigation paralegal at the same firm who has an extensive background in ediscovery support systems. Together they had run one of the largest in-house litigation support and ediscovery facilities in 3

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 4 of 11

New England. They founded Evidox to provide "legal-centric" litigation support services based on the model that their deep familiarity with litigation practice would allowed them to take a consultative approach to limit the scope and cost of ediscovery from the outset. 9. Evidox has become well known both in and outside of Massachusetts. Its

clientele is nationwide and includes some of the countrys largest law firms. These firms have multiple offices and enjoy national practices. 10. Evidox has law firm clients in the State of Texas, the state in which defendant has

its principal place of business. Evidox has law firm clients and an office in New York City, where defendant also has an office. Evidox has law firm clients in Washington DC, where Evidex also has an office. 11. Evidox is the owner of United States Trademark Registration No. 3,416,232 for

the mark EVIDOX, for among other things, litigation consulting and litigation support services. Evidox also owns United States Trademark Registration No. 3,416,233 for the mark EVIDOX with associated logo, also for litigation consulting and litigation support services. Each of these registrations is valid and exists on the Principal Register of the United States Patent and Trademark Office. 12. Evidox has used its EVIDOX trademarks continuously, without abandonment,

since the companys inception. It has consistently and continuously invested significant resources into the development of its litigation consulting and litigation support services and the good will associated with its EVIDOX marks. 13. Evidox owns the domain name "evidox.com" and has used it continuously since

2006 to host its website, www.evidox.com, and for the email addresses of its employees. Evidox uses the EVIDOX trademark to promote itself at seminars, tradeshows, Continuing Legal 4

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 5 of 11

Education events, print advertisements, hardcopy materials, letterhead, business cards, and the like. 14. Until yesterday, September 26, 2011, defendant conducted its business as Scarab

Consulting. In a press release issued on September 26, 2011, defendant announced that, effective immediately, it was adopting the trade name Evidex. 15. In connection with changing its name to "Evidex," defendant launched a web site

at www.evidex.com. The Evidex web site indicates that the services offered by Evidex include: "ediscovery services"; "data collection"; "culling and keyword searching"; "hosted review"; "TIFFing and PDFing for production"; "scanning and coding of paper documents"; and related litigation support services. The Evidex web site indicates that Evidex provides ediscovery "consulting services" that include "discovery strategy planning" and "discovery management" with an emphasis on using a consultative approach to limit the scope and cost of ediscovery from the outset. 16. Evidex is a direct competitor of Evidox. Both firms focus their efforts on

litigation consulting and support with an emphasis on electronic evidence. Evidex offers, or plans through the strategic initiative that purportedly led to the change in its name to offer, the same litigation support and consulting services that Evidox currently provides. Both firms market their services to corporations and the nations largest law firms. The nature of their services, involving work with electronic documents and the provision of web-based document hosting solutions, allows them to market and provide a full range of services outside of their immediate geographical areas. 17. Evidox learned of the Evidex change of name yesterday, which was the same day

it was announced by Evidex. Evidox initiated contact with defendant that same afternoon, calling 5

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 6 of 11

attention to Evidox's prior use of the trade name in a directly competing business with the same client base, as well as Evidox's federal trademark registrations and the likelihood of consumer confusion if Evidex went forward with using its new trade name. By bringing these issues to the attention of Evidex within hours of the announcement of the name change, Evidox provided Evidex with an opportunity to return to the use of its prior name with minimal expense and minimal disruption to its business. 18. Upon information and belief, defendant changed its name to Evidex with full

knowledge of Evidoxs registration and successful use of its EVIDOX trademark and intends to continue using the name Evidex with such knowledge. Upon information and belief, the new Evidex trade name was intentionally adopted to trade upon the reputation and goodwill of the previously established EVIDOX trademark. 19. The Evidox and Evidex names are almost identical. Particularly given that they

are invented names, being used in the context of very similar services, the likelihood that a consumer of litigation support services will be confused is high. 20. Defendants' use of the trade name Evidex to market and sell litigation support and

litigation consulting services upon information and belief has caused and, unless enjoined by this Court, will continue to cause irreparable injury both to Evidox and to the consuming public. COUNT I (Infringement of a Federal Trademark -- Lanham Act) 21. Plaintiff repeats and incorporates by reference the allegations of paragraphs 1

through 20 of the Complaint.

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 7 of 11

22.

Evidox is the owner of registered trademarks in the word EVIDOX and in the

EVIDOX logo, as applied to a broad range of services including litigation support services and litigation consulting services. 23. Evidex is using Evidox registered trademarks without permission, consent, or

acquiescence, to market and sell litigation consulting and litigation support services within the same geographical areas, through the same means, including in particular dynamic web sites, and to the same customer bases as Evidox. This activity infringes the EVIDOX trademarks, is deceptive, and is likely to cause confusion as to the source of defendants litigation consulting and litigation support services. 24. As a result of defendants actions, plaintiff has suffered, and will continue to

suffer, economic damages which it is entitled to recover as provided by law, in addition to the costs of this action. 25. Upon information and belief, defendants acts constitute infringement that is

willful and wanton, undertaken with full notice of Evidoxs superior trademark rights. 26. 27. This is an exceptional case pursuant to 15 U.S.C. 1117. Defendants acts of infringement have caused and continue to cause mistake or

confusion and to deceive the public. The resulting confusion has irreparably damaged and will continue to damage irreparably the reputation and good will associated with the EVIDOX mark and Evidoxs litigation consulting and litigation support services. Plaintiff has no adequate remedy at law for the irreparable injury caused by defendants acts and, unless those acts are restrained by the Court, defendant will continue such acts and plaintiff will continue to suffer great and irreparable injury. Plaintiff is therefore entitled to injunctive relief in accordance with principles of equity and as provided by federal law. 7

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 8 of 11

COUNT II (False Designation of Origin -- Lanham Act) 28. Plaintiff repeats and incorporates by reference the allegations of paragraphs 1

through 27 of the Complaint. 29. Evidox is the owner of the trademark EVIDOX as used for a variety of law-

related services including litigation consulting and litigation support. Defendants acts as described above, are deceptive and falsely designate the origin of goods and services, constituting unfair competition within the meaning of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 30. As a result of defendants actions, plaintiff has suffered, and will continue to

suffer, economic damages which it is entitled to recover as provided by law, in addition to the costs of this action. 31. Defendants conduct has been willful and wanton.This is an exceptional cause

within the meaning of 15 U.S.C. 1117. 32. Defendants deceptive acts of infringement have caused and continue to cause

mistake or confusion to the consuming public. The resulting confusion has irreparably damaged and will continue to damage irreparably the reputation and good will that Evidox has built for its litigation consulting and litigation support services. Plaintiff has no adequate remedy at law for the irreparable injury caused by defendants acts and, unless those acts are restrained by the Court, defendant will continue such acts and plaintiff will continue to suffer great and irreparable injury. Plaintiff is therefore entitled to injunctive relief in accordance with principles of equity and as provided by federal law.

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 9 of 11

COUNT III (Tortious Interference with Business Advantage) 33. Plaintiff repeats and incorporates by reference the allegations of paragraphs 1

through 32 of the Complaint. 34. By the intentional and unprivileged conduct described above, defendant has

interfered with plaintiffs existing and prospective business relationships with consumers of litigation consulting and support services. Defendant knows that plaintiff has invested substantial time and effort in creating the goodwill associated with the EVIDOX marks yet, even after being notified by plaintiff that its conduct is unlawful, has intentionally acted to disrupt plaintiffs existing and prospective relationships for its own economic benefit. 35. As a direct and proximate result of the defendants tortious misconduct, plaintiff

has been injured, in an amount to be proved at trial. COUNT IV (Unfair and Deceptive Trade Practices -- Chapter 93A) 36. Plaintiff repeats and incorporates by reference the allegations of paragraphs 1

through 35 of the Complaint. 37. Defendants aforesaid acts constitute unfair and deceptive trade acts or practices

within the meaning of G.L. c. 93A, 2. 38. Defendants' aforesaid acts were committed intentionally and willfully, entitling

plaintiffs to treble their damages pursuant to G.L. c. 93A, 2 and 11. 39. These unfair and deceptive acts and practices occurred primarily and substantially

within the Commonwealth of Massachusetts. WHEREFORE, plaintiff requests that the Court: 9

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 10 of 11

1.

Enter a preliminary injunction enjoining and restraining defendant, its officers,

agents, servants, employees, attorneys, and all those persons in active concert or participation with them, from using any trade name or trademark that includes any word aurally or visually similar to plaintiffs EVIDOX trademarks, including but not limited to the EVIDEX trade name disclosed in defendants press release and on its new web site; 2. Enter a permanent injunction enjoining defendant, its officers, agents, servants,

employees, attorneys, and all those persons in active concert or participation with them, from: (a) identifying themselves or any parents, subsidiaries, or affiliates by a corporate or trade name that includes any words aurally or visually similar to plaintiffs EVIDOX trademarks, including but not limited to the EVIDEX trade name disclosed in defendants press release and on its new web site; or (b) identifying any product or service which it offers with the any trade name or trademark that includes any word aurally or visually similar to plaintiffs EVIDOX trademarks, including but not limited to the EVIDEX trade name disclosed in defendants press release and on its new web site; 3. Enter a permanent injunction requiring defendants to cease and desist from the

use of the evidex.com domain and to remove the word EVIDEX from its web site; to cease using the word EVIDEX, or any words aurally or visually similar to plaintiffs EVIDOX trademarks, on any labels, signs, prints, packages, wrappers, receptacles, and advertisements and to collect any such items in its possession or control with any words aurally or visually similar to plaintiffs trademark, including but not limited to the EVIDEX name, and deliver them to the Court or offer the Court proof of the destruction thereof;

10

Case 1:11-cv-11702-GAO Document 1

Filed 09/27/11 Page 11 of 11

4.

Order that defendant disgorge and pay to plaintiff any profits it has earned as a

result of any product or service associated with its misuse of the EVIDOX trademarks; 5. Award plaintiff its actual damages suffered as a result of the infringement by

defendant of its trademarks, its unfair competition, or its other tortious conduct; 6. 7. Treble plaintiffs' actual damages pursuant to 15 U.S.C. 1117 and G.L. c. 93A; Award plaintiffs' prejudgment interest, their reasonable attorneys' fees, and their

costs of suit; and 8. Award such other and further relief as the Court may deem just and appropriate.

PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE. EVIDOX CORPORATION By its attorneys,

____/s/ Paula M. Bagger______________ Paula M. Bagger (BBO#547703) COOKE, CLANCY & GRUENTHAL LLP One Liberty Square Boston, MA 02109 (617) 428-6800

Dated: September 27, 2011

11