PLAINTIFF'S THIRD AMENDED COMPLAINT Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ADVERTISING CONSULTING
SERVICES, INC. d/b/a COLLEGE GUIDE
MAGAZINE,

Plaintiff,

v.

THE CAMPUS PAGES LLC, MY
LONESTAR PAGES INC., KELLY
MURRAY, and KELLY MURRAY d/b/a
MURRAY CREATIVE SOLUTIONS,

Defendants.


















CIVIL ACTION NO. 4:14-cv-00476-
RC-ALM


DEMAND FOR JURY TRIAL


PLAINTIFF'S THIRD AMENDED COMPLAINT

Plaintiff Advertising Consulting Services, Inc. d/b/a College Guide Magazine files this
Third Amended Complaint against The Campus Pages LLC ("Campus Pages"), My Lonestar
Pages Inc. ("Lonestar Pages"), Kelly Murray ("Murray"), and Kelly Murray d/b/a Murray
Creative Solutions ("Creative Solutions") (collectively, "Defendants") and states as follows:
PARTIES

1. Plaintiff is a Texas corporation with its principal place of business located at 529
Malone Street, Denton, Texas 76201.
2. Defendant The Campus Pages LLC is a Texas limited liability company and has
appeared in this case.
3. Defendant My Lonestar Pages Inc. is a Texas corporation and has appeared in this
case.
4. Defendant Kelly Murray is a Texas resident who has appeared in this case.
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5. Defendant Kelly Murray d/b/a Murray Creative Solutions is an individual doing
business as Murray Creative Solutions who has appeared in this case.
JURISDICTION AND VENUE

6. This Court has jurisdiction over the subject matter of this dispute because it arises
under 15 U.S.C. 1121(a). Therefore, original jurisdiction exists pursuant to 28 U.S.C. 1331
and 1338. For any claims over which the Court does not have original jurisdiction, if any, the
Court has subject matter jurisdiction pursuant to 28 U.S.C. 1367(a).
7. This Court has personal jurisdiction over Campus Pages and Lonestar Pages
because, among other things, their principal places of business are in Denton and Flower Mound,
Texas, respectively. This Court has personal jurisdiction over Murray and Creative Solutions
because they are citizens, residents, and are domiciled in Texas. Defendants have also
purposefully availed themselves to the laws of Texas by, among other things, committing the
acts complained of below in Texas and this District. Defendants have also submitted to this
Court's jurisdiction by actions taken in the Texas state court proceeding.
8. Venue is proper in this District under 28 U.S.C. 1391(b)(1) and (2).
FACTUAL BACKGROUND

A. Plaintiff and Its Trademark
9. Plaintiff
publishes College Guide Magazinea magazine directed at college students in the Denton area,
namely, students of the University of North Texas, Texas Women's University, and North
Central Texas College. College Guide Magazine is published seven times per year and contains
local advertisements, coupons, live music news, movie reviews, fraternity and sorority event
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PLAINTIFF'S THIRD AMENDED COMPLAINT Page 3
listings, photos of local college students, and various articles targeting Denton-area college
students.
10. Plaintiff began publishing College Guide Magazine in or around late 1996 and has
done so continuously since then in the Denton area. Plaintiff currently distributes approximately
119,000 magazines per year to Denton-area businesses, free of charge. Plaintiff has spent
hundreds of thousands of dollars, and thousands of hours promoting, marketing, and advertising
College Guide Magazine. As a result of Plaintiff's long, continuous use and promotion of
College Guide Magazine throughout the Denton area, the COLLEGE GUIDE MAGAZINE mark
(hereinafter, the "Mark") has acquired secondary meaning in at least Denton County, Texas.
11. On July 12, 1996, Plaintiff received an assumed name certificate for College
Guide Magazine. Plaintiff renewed its assumed name certificate on January 18, 2007.
12. Plaintiff is the senior user of the Mark throughout at least Denton County, Texas.
Plaintiff owns the Mark as applied to its services, which encompasses services offered by
Defendant in the same geographic area directed to the same consumer market, as outlined below.
The Mark is legally protectable because it is either inherently distinctive or has acquired
distinctiveness through secondary meaning.
B. Defendants and Their Infringing Activities and Bad Faith Conduct
13. Defendants publish The Campus Pages Magazine, which is promoted as a
monthly full color, full gloss magazine geared toward students and brought to Denton by the
publishers of My LoneStar GO! Pages MagazineDefendant Lonestar Pages. Defendants claim
The Campus Pages Magazine is hand delivered to the University of North Texas, Texas
Women's University, and North Central Texas College campuses and over 50 apartment
complexes, dorms, school organizations and many area businesses throughout Denton County.
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The Campus Pages Magazine contains local advertisements, coupons, live music news, photos of
local college students, event listings for local fraternities and sororities, and various articles
targeting Denton-area college students.
14. On January 14, 2012, Murray registered the domain
<www.thecampuspages.com> (hereinafter, "Defendants' Domain").
15. Eleven days later, on January 25, 2012, Murray registered the domain
<www.collegeguidemagazine.com> (hereinafter, the "Infringing Domain").
16. On January 25, 2012, Murray created the Twitter handle "@CampusPages".
17. "@CampusPages" is the Twitter handle of The Campus Pages Magazine.
18. To capitalize on the goodwill established by Plaintiff's commercial use of the
Mark, Defendants coded the Infringing Domain to redirect users to Defendants' Domain, which
contains Defendants' website promoting The Campus Pages Magazine.
19. On information and belief, the Infringing Domain has, since its registration,
redirected users to Defendants' website. Recently, however, sometime after June 24, 2014, on
information and belief, Defendants "parked" the Infringing Domain.
20. On information and belief, Defendants created a Facebook account under the
name "The Campus Pages" on January 16, 2012, located at the domain
<www.facebook.com/thecampuspages> (hereinafter, "Defendants' Facebook Page"). On
information and belief, merely nine days later, on January 25, 2012, Defendants created another
Facebook account under the name "College-Guide-Magazine" (hereinafter, the "Infringing
Facebook Page"). The Infringing Facebook Pagewhich was deactivated by Facebook on
December 6, 2012, due to a complaint from Plaintiffwas located at the domain
<www.facebook.com/#1/pages/college-guide-magazine/366923129988567>. On information
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and belief, to capitalize on Plaintiff's goodwill and reputation built up through its use of the
Mark, on April 17, 2012, Defendants began posting content to the Infringing Facebook Page,
including, but not limited to, references, photos, and links to Defendants' Domain and
Defendants' Facebook Page.
21. On October 9, 2012, Murray posted the statement: "Don't forget to like our main
page at www.facebook.com/thecampuspages" on the Infringing Facebook Page.
22. On October 20, 2012, Murray posted the statement: "Remember to like our
official page at www.facebook.com/thecampuspages" on the Infringing Facebook Page.
23. On April 17, 2013, "@CampusPages" retweeted a tweet from the Twitter handle
"@ikickmoons" that stated: "Clearly college guide can not (sic) compete with Campus pages".
24. Therefore, at least as early as April 17, 2013, Defendants had knowledge of
Plaintiff's use of the Mark in connection with a competing product and/or service.
25. On information and belief, Defendants began providing print publication of The
Campus Pages Magazine to the public on or about April 12, 2012.
26. On information and belief, Defendants have never referred to themselves or The
Campus Pages Magazine as "College Guide Magazine." Their unauthorized use of the Mark is
in bad-faith with the intent to confuse consumers. Defendants' unauthorized use of the Mark is
with full knowledge of Plaintiff's use. Indeed, at least as early as April 17, 2013the date
Defendants retweeted a tweet from "@ikickmoons"Defendants were aware of Plaintiff and its
use of the Mark in connection with competing products and/or services. Defendants
intentionally used both the Infringing Domain and the Infringing Facebook Page to capitalize on
the goodwill developed by Plaintiff and to confuse consumers.


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CAUSES OF ACTION

Count 1: Cybersquatting under 15 U.S.C. 1125(d)

27. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
28. Plaintiff's Mark is protectable because it is either inherently distinctive or has
acquired distinctiveness through secondary meaning.
29. Defendants registered the Infringing Domain on January 25, 2012. At the time of
registration, the Infringing Domain was identical to the Mark.
30. At the time of registration, Defendants had a bad-faith intent to profit from the
Mark. Indeed, on information and belief, Defendants have never referred to themselves or their
magazine as "College Guide Magazine." They had no rights in the Mark; rather, they registered
the Infringing Domain simply to redirect users to their website promoting a competing product.
This diversion of consumers was intended to harm the goodwill represented by the Mark with an
intent to receive a commercial gain by creating a likelihood of confusion as to the source,
sponsorship, affiliation, and endorsement of the website. Defendants' "parking" of the Infringing
Domain is further evidence of a bad-faith intent to profit from the Markhad the Infringing
Domain had any value outside of Plaintiff's Mark, presumably Defendants would not have
"parked" the corresponding website.
31. Defendants' actions have and continue to damage Plaintiff by, at least, preventing
Plaintiff from establishing an Internet presence under its desired name, either through a domain
name or Facebook page. This damages Plaintiff not only because it prevents Internet marketing,
but also because many customerspotential and currentrequest Plaintiff to have an Internet
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presence before either purchasing, renewing, or increasing their advertisements with Plaintiff.
This results in Plaintiff losing profits. Defendants' actions have also damaged Plaintiff by
misleading customers to the website located at Defendants' Domain and to Defendants' Facebook
Page. Plaintiff has lost opportunities, including additional sales, due to Defendants' actions.
32. Under 15 U.S.C. 1117(a), Plaintiff is entitled to recover from Defendants: (i)
Defendants' profits; (ii) the damages sustained by Plaintiff; and (iii) the costs of this action.
Given the knowing, willful, and intentional nature of Defendants' actions, Plaintiff seeks treble
damages and its reasonable attorneys' fees. Plaintiff also seeks a transfer of the Infringing
Domain to Plaintiff under 15 U.S.C. 1125(d)(1)(C), or, alternatively, forfeiture or cancellation
of the Infringing Domain.
Count 2: Trademark Infringement under 15 U.S.C. 1125(a)

33. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
34. Plaintiff's Mark is protectable because it is either inherently distinctive or has
acquired distinctiveness through secondary meaning.
35. Plaintiff began using the Mark in commerce at least as early as late 1996 and has
done so continuously since then in at least Denton County, Texas. Defendants began
commercial use of the Mark, if at all, on or about January 16, 2012. Plaintiff is the senior user of
the Mark in at least Denton County, Texas.
36. College Guide Magazine and The Campus Pages Magazine provide identical
products and services in an identical geographic area to an identical customer market. The mark
used by Defendants is identical to Plaintiff's Mark. Defendants' use of the Mark creates a
likelihood of confusion in the minds of potential customers as to the source, affiliation, or
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sponsorship of Defendants' products and services. Through the infringing use of the Mark,
Defendants are harming Plaintiff by, among other things, diverting sales and advertisements that
would otherwise go to Plaintiff.
37. Defendants' trademark infringement is willful and intentional.
38. Under 15 U.S.C. 1117(a), Plaintiff is entitled to recover from Defendants: (i)
Defendants' profits; (ii) the damages sustained by Plaintiff; and (iii) the costs of this action.
Given the knowing, willful, and intentional nature of Defendants' actions, Plaintiff seeks treble
damages and its reasonable attorneys' fees.
Count 3: Common Law Trademark Infringement

39. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
40. Plaintiff's Mark is protectable because it is either inherently distinctive or has
acquired distinctiveness through secondary meaning.
41. Plaintiff began using the Mark in commerce at least as early as late 1996 and has
done so continuously since then in at least Denton County, Texas. Defendants began
commercial use of the Mark, if at all, on or about January 16, 2012. Plaintiff is the senior user of
the Mark in at least Denton County, Texas.
42. College Guide Magazine and The Campus Pages Magazine provide identical
products and services in an identical geographic area to an identical customer market. The mark
used by Defendants is identical to Plaintiff's Mark. Defendants' use of the Mark creates a
likelihood of confusion in the minds of potential customers as to the source, affiliation, or
sponsorship of Defendants' products and services. Through the infringing use of the Mark,
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Defendants are harming Plaintiff by, among other things, diverting sales and advertisements that
would otherwise go to Plaintiff.
43. Defendants' trademark infringement is willful and intentional.
44. Plaintiff is entitled to recover actual damages, including lost profits, caused by
Defendants' trademark infringement. Due to the knowing, intentional, and purposeful nature of
Defendants' conduct, Plaintiff seeks exemplary damages.
Count 4: Common Law Unfair Competition

45. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
46. Defendants have engaged in commerce in at least Denton County, Texas by
marketing, offering to sell, and selling Defendants' competing services. Defendants have
advertised their services through intentionally redirecting users from the Infringing Domain to
Defendants' Domain as well as through posts and links on the Infringing Facebook Page.
47. Defendants have competed unfairly in violation of Texas law by misrepresenting
or misleading the public to believe their services are sponsored by, approved by, affiliated with,
associated with, or originated by Plaintiff.
48. Defendants' actions have damaged Plaintiff. Under Texas common law, Plaintiff
is entitled to recover actual damages, including lost profits, caused by Defendants' unfair
competition. Due to the knowing, intentional, and purposeful nature of Defendants' conduct,
Plaintiff seeks exemplary damages.
Count 5: Injury to Business Reputation / Dilution under TEX. BUS. & COM. CODE 16.103

49. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
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50. As set forth above, Plaintiff has established valuable rights in the Mark. The
Mark is famous and distinctive, inherently or through acquired distinctiveness, in at least Denton
County, Texas.
51. Defendants' commercial use of the Mark began after it became famous and
distinctive. Defendants' use of the Mark, without authorization from Plaintiff, is likely to injure
the business reputation or to dilute the distinctive quality of the Mark. Defendants' use of the
Mark has caused a diminution in uniqueness and individuality of the Marki.e., "blurring."
Defendants' use of the Mark has also caused injury to Plaintiff resulting from Defendants' use in
a manner that tarnishes and/or appropriates the goodwill and reputation associated with
Plaintiff's Marki.e., "tarnishment." These acts constitute dilution in violation of TEX. BUS. &
COM. CODE 16.103. They were committed with full knowledge of Plaintiff's rights and with
the intent of deceiving and misleading the Denton-area public and causing harm to Plaintiff.
52. Under TEX. BUS. & COM. CODE 16.103(c) and 16.104, because Defendants
willfully intended to cause dilution of the Mark, Plaintiff is entitled to recover actual damages,
including Defendants' profits, as well as treble damages and its reasonable attorneys' fees.
Count 6: Common Law Unjust Enrichment

53. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
54. As set forth above, Defendants have used the Mark and Plaintiff's goodwill as an
integral step of Defendants' sales and services. On information and belief, Defendants have
received a direct pecuniary benefit from these unlawful acts. Defendants are therefore unjustly
enriched to Plaintiff's detriment. As a result, Plaintiff is entitled to recover its actual damages
caused by Defendants' unjust enrichment.
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Count 7: Declaratory Judgment under TEX. CIV. PRAC. & REM. CODE 37.001 et seq.

55. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
56. A justiciable controversy exists as to the rights and status of Plaintiff and
Defendants, namely, who owns the rights to the Mark.
57. Pursuant to the Uniform Declaratory Judgments Act, Plaintiff seeks a declaration
the Mark is a valid common law trademark, Plaintiff has superior rights to the Mark in at least
Denton County, Texas, and Defendants have no right to use the Mark in connection with the
products and services offered by Defendants in Denton, County, Texas, and areas of Plaintiff's
natural expansion.
58. Pursuant to TEX. CIV. PRAC. & REM. CODE 37.009, Plaintiff is entitled to its
costs and reasonable attorneys' fees.
Count 8: Common Law Invasion of Privacy by Misappropriation

59. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
60. As outlined above, Defendants appropriated Plaintiff's name, i.e., the Mark, for
the value associated with it, including, among other things, the Mark's commercial and
reputational value. Plaintiff can be identified from the Infringing Domain and the Infringing
Facebook Page. Defendants gained an advantage or benefit from the misappropriation by,
among other things, increasing their website traffic and profits.
61. Plaintiff suffered damages as a proximate result of Defendants' unlawful acts.
Plaintiff seeks actual damages.


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Count 9: Civil Conspiracy

62. Plaintiff realleges and incorporates by reference the preceding paragraphs as if
fully set forth herein.
63. Defendants are members of a combination of two or more persons. During the
course of the conspiracy, Murray acted in a capacity other than as a corporate agent of Campus
Pages, Lonestar Pages, or Creative Solutions and/or for personal purposes.
64. The object of the combination was to accomplish an unlawful purpose or a lawful
purpose by unlawful means as described in detail above. Defendants had a meeting of the minds
on the object or course of actionthey had knowledge of the object and purpose of the
conspiracy and had an agreement or understanding between each other to damage Plaintiff.
65. Defendants, through Murray, were involved in at least the overt acts of registering
and redirecting the Infringing Domain to Defendants' Domain, and creating the Infringing
Facebook Page and posting content intended to redirect users to Defendants' Facebook Page.
66. Plaintiff suffered damages as a proximate result of Defendants' unlawful acts
underlying the conspiracy. Plaintiff seeks actual and exemplary damages.
DEMAND FOR JURY TRIAL

67. Plaintiff demands a trial by jury on its claims against Defendants.
PRAYER FOR RELIEF

68. Accordingly, Plaintiff respectfully requests the Court:
a. Award Plaintiff its actual, treble, and exemplary damages;
b. Order Defendants to provide an accounting of all sales, revenues, and profits
related to Defendants' products and services that infringe the Mark;
c. Award Plaintiff treble damages and Defendants' profits pursuant to 15 U.S.C.
1117(a);
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d. Order transfer of the Infringing Domain to Plaintiff pursuant to 15 U.S.C.
1125(d)(1)(C), or, alternatively, order forfeiture or cancellation of the
Infringing Domain;
e. Pursuant to 15 U.S.C. 1117(a), find this case to be exceptional in Plaintiff's
favor and award Plaintiff its reasonable attorneys' fees and costs;
f. After a trial on the merits, issue a permanent injunction enjoining Defendants
and their officers, agents, servants, employees, and franchisees, if any, and all
persons in active concert or participation with Defendants from the acts
described in this Complaint;
g. Award Plaintiff pre- and post-judgment interest; and
h. Award Plaintiff such further and other relief, in law or in equity, as the Court
deems just and equitable.






























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PLAINTIFF'S THIRD AMENDED COMPLAINT Page 14
Dated: October 8, 2014 Respectfully submitted,


KLEMCHUK KUBASTA LLP


/s/ Michael C. Barbee
Kelly J. Kubasta
Texas Bar No. 24002430
Michael C. Barbee
Texas Bar No. 24082656
8150 North Central Expressway, 10th Floor
Dallas, Texas 75206
Telephone: (214) 367-6000
Facsimile: (214) 367-6001
Kelly.Kubasta@kk-llp.com
Michael.Barbee@kk-llp.com

-and-

JAMES H. HORTON LAW FIRM, PC
James. H. Horton
Texas Bar No. 10020500
David A. Lowrance
Texas Bar No. 12636850
101 South Locust, Suite 700
Denton, Texas 76201
Telephone: (940) 382-1561
Facsimile: (940) 484-2128
jhhorton@verizon.net
dalowrance@verizon.net

COUNSEL FOR PLAINTIFF



CERTIFICATE OF SERVICE

The undersigned certifies the foregoing document was filed electronically in compliance
with Local Rule CV-5(a). As such, this document was served on all counsel of record on
October 8, 2014.

/s/ Michael C. Barbee
Michael C. Barbee
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