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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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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 2 of 12
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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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 3 of 12
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:
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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 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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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 5 of 12
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:
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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 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.
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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 7 of 12
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.
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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 8 of 12
COUNT I
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 Document 1 Filed 01/21/10 Page 9 of 12
COUNT III
Violation of the Illinois Uniform
Deceptive Trade Practices Act, 815 ILCS 510/1‐7
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 505/1‐12
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.
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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 10 of 12
COUNT V
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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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 11 of 12
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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Case 1:10-cv-00426 Document 1 Filed 01/21/10 Page 12 of 12
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_______ Respectfully submitted,
JELLYVISION, INC., through its Attorneys
_/s/ Joshua S. Frick__________
Kurt J. Hirsch (Illinois Bar No. 6276283) John T. Gabrielides (Illinois Bar No. 6198323)
Jellyvision, Inc. Philip A. Jones (Illinois Bar No. 6217213)
848 W Eastman Street, Suite 104 Joshua S. Frick (Illinois Bar No. 6292843)
Chicago, IL 60622 Brinks Hofer Gilson & Lione
(312) 266‐0606 455 N. Cityfront Plaza Drive, Suite 3600
Chicago, IL 60611
(312) 321‐4200
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