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Page 1- COMPLAINT
TRAVIS W. HALL, OSB No. 984513 Email: [email protected] AMANDA Guile-HINMAN, OSB No. 093706 Email: [email protected] BATEMAN SEIDEL MINER BLOMGREN CHELLIS & GRAM PC 888 SW 5th Avenue, Suite 1250 Portland, OR 97204 Phone: 503-972-9920 Facsimile: 503-972-9921 Attorneys for Sockeye Timberframing, LLC
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
SOCKEYE TIMBERFRAMING, LLC, an Oregon limited liability company, Plaintiff, v. SURFACE THEORY LLC, a Washington limited liability company; and Ross Burtness, an individual, Defendants.
CASE NO. 3:14-cv-649
COMPLAINT FOR COPYRIGHT INFRINGEMENT, WORK
MADE FOR HIRE, LANHAM ACT VIOLATIONS, BREACH
OF DUTY OF LOYALTY, TRADE SECRET VIOLATIONS,
TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS
JURY TRIAL REQUESTED
For its Complaint, Plaintiff Sockeye Timberframing, LLC (“Sockeye”) alleges against
Defendants Surface Theory LLC (“Surface Theory”) and Ross Burtness as follows:
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THE PARTIES
1. Sockeye is an Oregon limited liability company having its principal place of
business in McMinnville, Oregon with a show room in Portland, Oregon.
2. Surface Theory is a Washington limited liability company having its principal
place of business at 1106 N Canterbury Drive, Ellensburg, Washington, 98926.
3. Mr. Burtness upon information and belief resides in Ellensburg, Washington.
JURISDICTION AND VENUE
4. Under the United States Copyright Act (17 U.S.C. § 101, et seq.) (the “Act”) or
the Lanham Act (15 U.S.C. § 1125, et seq), this court has subject matter jurisdiction pursuant to
28 U.S.C. §§ 1338(b) and 1367. This court has supplemental jurisdiction as to the pendant state
law claims under 28 U.S.C. § 1367(a) because these state claims are so related to the copyright
claim or Lanham Act claim as to form the same case or controversy. Alternatively, this court has
jurisdiction under 28 U.S.C. 1332 as the matter in controversy exceeds $75,000 and the
controversy is between citizens of different states.
5. This court has personal jurisdiction because, upon information and belief, Surface
Theory and Mr. Burtness committed copyright or Lanham Act violations within the state of
Oregon. Additionally, Surface Theory and Mr. Burtness upon information and belief solicits
business or has done business within the state of Oregon. Surface Theory also with the aid and
assistance of Mr. Burtness has committed some of the allegations alleged below within the state
of Oregon.
6. Venue is proper in this jurisdiction under 28 U.S.C. §§ 1391 because a substantial
part of the events on which Sockeye’s claims are based occurred in this district.
/ / /
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FACTUAL ALLEGATIONS
Sockeye’s Business Model
7. Sockeye generally operates under the assumed business names of Pioneer
Millworks and New Energy Works. Sockeye is a domestic supplier of recaptured antique wood.
Sockeye acquires recaptured antique wood from old barns, buildings, derelict warehouses and
similar structures that have outlived their useful life but were constructed with old growth or
aged lumber. Sockeye then resaws the antique wood and then repurposes the fresh milled
antique wood into flooring and similar building materials.
8. Unlike fabricated wood products from fresh harvest sources, Sockeye’s
recaptured antique wood products are unique to the source of the antique wood. Products vary
significantly in color, texture, and grain.
9. Residential and commercial clients of Sockeye purchase a varietal of wood based
upon the aesthetic properties and characteristics unique to the source of the recaptured antique
wood. Sockeye’s products are not only functional; Sockeye’s clients may display the recaptured
wood as a major design feature intended to communicate the clients’ historical roots to a specific
region or period, to blend the transition between the exterior and interior of a structure, or to
create an illusion of the structures’ integration with nature.
10. Because of the geographical and historical relationship to foresting and nature, a
sizable percentage of Sockeye’s clients are located in the Pacific Northwest; specifically, Oregon
and Washington.
/ / /
/ / /
/ / /
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Sockeye Hires Mr. Burtness To Its Team
11. Sockeye employs approximately 20 people, located primarily in Oregon;
however, Sockeye employs regional sales staff to work outside of Oregon in order to develop a
relationship with a specific community or market.
12. On or about August 1, 2010, Sockeye hired Mr. Burtness as a member of its sales
staff as a west coast representative with his territory focused on Oregon, Washington and British
Columbia, Canada. Included within Mr. Burtness’ job duties was the responsibility to service
Sockeye’s clients in the Washington area and to develop Sockeye’s presence in that market.
13. Sockeye operates a highly ethical business that is socially and environmentally
responsible. Sockeye’s management philosophy is to trust its employees with the expectation
that in return its employees will be responsible and ethical. Sockeye provides its employees
direction and instruction but within that framework Employees are encouraged to use initiative
and creativity in performing their jobs.
14. As part of this philosophy, Sockeye granted Mr. Burtness discretion on how to
develop the market for Sockeye in Washington and Oregon. Sockeye supported Mr. Burtness by
encouraging his initiative and by providing him the resources necessary to carry out his
responsibilities.
15. The resources Sockeye provided to Mr. Burtness included access to confidential
business information and trade secrets. This confidential business information and trade secrets
included, but are not limited to: client lists that Sockeye spent considerable time and effort to
develop that otherwise could not be obtained through readily available sources; wholesale price
lists; contact information for suppliers of reclaimed antique wood; business marketing plans;
methods and means of resawing reclaimed antique wood; and, Sockeye’s financial information.
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Page 5- COMPLAINT
16. Sockeye also trusted Mr. Burtness by allowing him to use his personal cell phone
as his contract number for Sockeye. A consequence of Sockeye allowing Mr. Burtness to use his
personal cell phone number is that design professionals and contractors listed Mr. Burtness’
personal phone number on contracts and plans instead of Sockeye’s business number.
17. Ultimately, Sockeye’s trust in Mr. Burtness was misplaced. As alleged more fully
below, Mr. Burtness while an employee of Sockeye started a competing enterprise and on
company time began marketing his newly formed enterprise. Upon information and belief, Mr.
Burtness diverted Sockeye business to his own enterprise while still employed by Sockeye
Mr. Burtness Competes With Sockeye While In Its Employ
18. Mr. Burtness while still employed by Sockeye and during company time launched
a social media presence and a website, all under the name “Surface Theory.” Mr. Burtness did
not inform Sockeye that he was competing against Sockeye under the name of Surface Theory.
Rather than supporting Sockeye’s internet presence with marketing materials and promotions for
his area of responsibility, Mr. Burtness instead used his Surface Theory accounts while
employed by Sockeye in order to secretly and directly compete against Sockeye.
19. For example, Mr. Burtness created a Houzz account under the user name Surface
Theory no later than July 2012. Mr. Burtness on January 28, 2013 responded to a post by a
prospective client inquiring about wood flooring by posting a reply saying “Send me an email at
[email protected].” Mr. Burtness also linked on his Houzz account the Surface Theory
website no later than April 8, 2013.
20. Mr. Burtness also created a Twitter account for Surface Theory in April 2013 and
“tweeted” a link to his Houzz account. Mr. Burtness also tweeted in April 2013 that he had over
200 followers on the Surface Theory Twitter account.
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21. On Houzz, users can link projects and give reviews about work done by other
Houzz users. H2D Architecture + Design (“H2D”) posted on Houzz a project called the “Seattle
Green Custom Home” and linked Surface Theory as the material supplier of its “salvaged
hardwood flooring.” H2D posted on Houzz its Seattle Green Custom Home project on or about
August 2013. H2D on its website further represents that the Seattle Green Custom Home was
completed in the summer of 2013 and posted a link to a featured article on MSN Real Estate’s
feature article “Amazing Indoor and Outdoor Spaces.” The MSN article was published on July
5, 2013. Mr. Burtness diverted the publicity for this project from Pioneer Millworks to his
competing personal enterprise.
22. In September 2013, Mr. Burtness also created a Facebook page under the user
name “Surface Theory” and represented that the business was founded in 2010. Mr. Burtness
established an Instagram account for Surface Theory in September 2013, which was linked to the
Surface Theory Facebook page. Mr. Burtness also created a Surface Theory Pintrest account.
23. Based upon the time and date stamps of posts to the Surface Theory social media
accounts, Mr. Burtness updated, posted to, and maintained these various social media accounts
during normal work days and during normal working hours while Sockeye was paying Mr.
Burtness a salary.
24. In addition to leveraging social media in the name of a competing enterprise, upon
information and belief Mr. Burtness used his personal cell phone and contact information to
divert business from Sockeye to his own enterprise.
25. At all times relevant, Sockeye was unaware that Mr. Burtness was directly
competing against it under the name Surface Theory while Mr. Burtness was in its employ.
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Sockeye did not give permission to Mr. Burtness to operate a competing business or to use
company time to establish and develop a competing enterprise.
26. Upon information and belief, Mr. Burtness diverted substantial business
opportunities from Sockeye causing Sockeye substantial financial losses as well as a loss to its
reputation in the community.
Mr. Burtness Violates Sockeye’s Copyrights And Unfairly Competes with Sockeye
27. Sockeye ultimately terminated Mr. Burtness on or about November 22, 2013 as a
consequence of Mr. Burtness not performing his job satisfactorily. As part of the termination
process, Sockeye demanded that Mr. Burtness return all company property (not including the cell
phone). This property included an Apple iPad and a company supplied laptop computer, which
Mr. Burtness refused to return. Upon information and belief, Mr. Burtness had in his possession
and control company confidential information and trade secrets including but not limited to:
copyrighted photographs (including work made for hire); contracts; bids; drawings; plans; client
contact information; email communications; product specifications; and supplier contact
information.
28. Mr. Burtness formally organized Surface Theory on December 9, 2013 with the
Washington Secretary of State. Mr. Burtness is a member or manager of Surface Theory.
Surface Theory began competing directly and openly against Sockeye in the same business of
selling reclaimed antique wood flooring and similar building products. On January 11, 2014,
Mr. Burtness tweeted on the Surface Theory Twitter account, “We just went live with our
updated website!”
29. Sockeye ultimately discovered the Surface Theory website. Sockeye learned that
Surface Theory is using approximately 35 of Sockeye’s photographs. Sockeye in searching
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through Surface Theory’s social media accounts linked on its website discovered that Surface
Theory posted approximately 25 additional photographs that are Sockeye’s photographs.
Sockeye also learned for the first time that Mr. Burtness had been maintaining Surface Theory’s
social media accounts while still employed by Sockeye.
30. Generally, Sockeye’s copyrighted photographs publically displayed on Surface
Theory’s website and social media accounts are photographs of Sockeye’s work for clients or of
materials supplied by Sockeye to its clients.
31. Sockeye is the exclusive rights holder with respect to the reproduction and
distribution of these copyrighted photographs. To the extent that Mr. Burtness claims to be the
original author of some of the photographs, the photographs remain the exclusive rights of
Sockeye through the doctrine of “work made for hire.”
32. Upon information and belief, two of the photographs published on Surface
Theory’s website are copyrighted photos by Andrew Buchanan of Subtle Light Photographs.
Sockeye purchased a license to use these photographs from Mr. Buchanan
33. Upon discovery of Surface Theory’s unlawful reproduction, distribution and
display of Sockeye’s published but unregistered photographs, Sockeye on April 17, 2014 and
April 18, 2014 filed for registration with the United States Copyright Office two photographs as
application numbers 1-1371042069 and 1-1368745871. Sockeye reserves the right to amend this
complaint to allege the registration number of these photographs upon acceptance by the United
States Copyright Office as well as the right to amend this complaint to include any additional
future registered photographs by Sockeye.
34. In addition to its infringement of Sockeye’s copyrighted photographs, Surface
Theory also published a list of clients and projects on its website. However, at least 25 of the
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Page 9- COMPLAINT
represented clients and projects are in fact Sockeye clients and projects. Surface Theory in some
instances linked Sockeye’s copyrighted photographs to clients and projects Surface Theory
represents as its own clients and projects. After Sockeye demanded that Surface Theory cease
using its photographs and listing its clients and projects as the clients and projects of Surface
Theory, Surface Theory placed the list of represented clients and projects behind a password
protected link for “designer only.”
35. As alleged above, Sockeye had allowed Mr. Burtness to use his own cell phone
for Sockeye business; therefore, Sockeye clients that worked primarily through Mr. Burtness had
his personal cell phone as the contact number for Sockeye. Sockeye clients attempted to
communicate with Sockeye by calling Mr. Burtness unaware of Mr. Burtness’ termination.
Upon information and belief, Mr. Burtness offered bids to and negotiated contracts with Sockeye
clients without first disclosing that he no longer was employed by Sockeye. Sockeye clients
would only learn that Mr. Burtness was an employee of Surface Theory and not Sockeye upon
receiving a contract from Surface Theory.
36. In some situations, Sockeye clients upon discovering Mr. Burtness’ termination
would open bids to both Surface Theory and Sockeye. Because Mr. Burtness had
misappropriated Sockeye’s trade secrets, Mr. Burtness used these trade secrets to unfairly obtain
a competitive advantage by bidding under what he knew to be Sockeye’s price points.
37. As of the date of this Complaint, Surface Theory and Mr. Burtness refuse to cease
using Sockeye copyrighted photographs, refuse to cease misrepresenting Sockeye projects and
clients as its own, and refuse to return all property, including Sockeye’s copyrighted photographs
and trade secrets, to Sockeye.
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Page 10- COMPLAINT
38. At all times relevant, Surface Theory and Mr. Burtness committed a civil
conspiracy by acting in concert or by providing substantial aid and assistance to the other in the
commission of the unlawful acts alleged below. Except as specifically alleged, Defendants are
jointly and severally liable to Sockeye for all damages to be proven at trial.
COUNT I COPYRIGHT INFRINGEMENT – REPRODUCTION (17 U.S.C. § 106(1))
39. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
40. Sockeye is the sole owner of all exclusive rights under the Act in the published
photographs that Sockeye filed for registration with the United States Copyright Office prior to
filing this Complaint. Further, Sockeye is the sole owner of all exclusive rights under the Act of
its unpublished and unregistered photographs.
41. Defendants without authorization unlawfully made and reproduced copies of
Sockeye’s copyrighted photographs. Mr. Burtness made digital copies of the photographs prior
to Sockeye terminating Mr. Burtness’ employment. Defendants then reproduced the
photographs by storing the images on a server hosting Surface Theory’s website or by uploading
the photographs to the servers hosting its social media accounts.
42. Defendants’ actions constitute infringement of Sockeye’s copyrighted
photographs.
43. Defendants knew or had constructive knowledge that their acts constitute
infringement of Sockeye’s copyrighted photographs; further, their conduct was willful in that
their conduct was intentional and with indifference to Sockeye’s rights.
44. Defendants’ conduct infringed on Sockeye’s exclusive rights of reproduction of
the photographs that are protected under the Act.
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45. Sockeye has suffered monetary damages and damages to its reputation and
continues to be damaged by Defendants’ conduct. There is no adequate remedy at law to
compensate Sockeye fully for all damages arising from Defendants’ conduct. As Defendants’
infringement was intentional and willful, Sockeye is entitled at its election to an award of actual
damages or statutory damages pursuant to 17 U.S.C. § 504(c), exemplary damages, injunctive
relief, attorney fees, and costs.
COUNT II COPYRIGHT INFRINGEMENT – DISTRIBUTION (17 U.S.C. § 106(3))
46. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
47. Sockeye holds the exclusive rights under the Act to distribute the photographs.
48. Mr. Burtness as the founder and as a member or manager of Surface Theory
unlawfully distributed Sockeye’s photographs to Surface Theory for its use on the Surface
Theory website.
49. Mr. Burtness did not have permission to distribute a reproduction of Sockeye’s
photographs to Surface Theory. Mr. Burtness’ actions infringe on Sockeye’s copyrights and
exclusive rights under 17 U.S.C. § 106(3).
50. Mr. Burtness knew or had constructive knowledge that his acts infringed on
Sockeye’s copyright. Because Surface Theory can only act through its agents, Mr. Burtness’
knowledge is imputed upon Surface Theory in receiving an unlawful reproduction of Sockeye’s
copyrighted photographs. Defendants’ conduct was willful in that their conduct was intentional
and with indifference to Sockeye’s rights.
51. Defendants’ conduct infringed on Sockeye’s exclusive rights of distribution of the
photographs that are protected under the Act.
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Page 12- COMPLAINT
52. Sockeye has suffered monetary damages and damages to its reputation and
continues to be damaged by Defendants’ conduct. There is no adequate remedy at law to
compensate Sockeye fully for all damages arising from Defendants’ conduct. As Defendants’
infringement was intentional and willful, Sockeye is entitled at its election to an award of actual
damages or statutory damages pursuant to 17 U.S.C. § 504(c), exemplary damages, injunctive
relief, attorney fees, and costs.
COUNT III COPYRIGHT INFRINGEMENT – DISPLAY (17 U.S.C. § 106(5))
53. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
54. Sockeye holds the exclusive rights under the Act to publically display the
photographs.
55. Defendants unlawfully publically displayed Sockeye’s photographs by storing
unlawfully reproduced copies of Sockeye’s photographs on the server hosting Surface Theory’s
website and then transmitting over the internet images of the photographs to users viewing
Surface Theory’s website or social media accounts.
56. Defendants did not have and do not have permission to publically display
Sockeye’s photographs on Surface Theory’s website. Defendants’ actions infringe on Sockeye’s
copyrights and exclusive rights under 17 U.S.C. § 106(5).
57. Defendants knew or had constructive knowledge that his acts infringed on
Sockeye’s copyright. Defendants’ conduct was willful in that their conduct was intentional and
with indifference to Sockeye’s rights.
58. Defendants’ conduct infringed on Sockeye’s exclusive rights of public display of
the photographs that are protected under the United States Copyright Act.
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59. Sockeye has suffered monetary damages and damages to its reputation and
continues to be damaged by Defendants’ conduct. There is no adequate remedy at law to
compensate Sockeye fully for all damages arising from Defendants’ conduct. As Defendants’
infringement was intentional and willful, Sockeye is entitled at its election to an award of actual
damages or statutory damages pursuant to 17 U.S.C. § 504(c), exemplary damages, injunctive
relief, attorney fees, and costs.
COUNT IV WORK MADE FOR HIRE (17 U.S.C. § 201(b))
60. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
61. Sockeye employed Mr. Burtness to promote and sell its reclaimed antique wood
flooring and building products as well as develop Sockeye’s presence in the market, especially in
the states of Oregon and Washington. Mr. Burtness’ scope of employment included client and
end user relations.
62. Taking photographs of completed Sockeye projects or photographs of the use of
Sockeye’s materials in finished construction falls within Mr. Burtness’ scope of employment
with Sockeye.
63. Because any photographs taken by Mr. Burtness while employed by Sockeye fall
within the scope of his employment, Sockeye is deemed to be the author of the photographs
under 17 U.S.C. § 201(b). Therefore, Sockeye enjoys the exclusive rights of use of the
copyrighted work under the provisions of 17 U.S.C. § 106.
64. Further, since Mr. Burtness was tasked by Sockeye to develop and promote
Sockeye’s market presence, Mr. Burtness’ social media activities under the user name “Surface
Theory” through November 22, 2013 fall within the scope of his employment to the extent that
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these social media activities marketed Sockeye projects, displayed Sockeye copyrighted
photographs, referenced Sockeye clients, or promoted applications or use of reclaimed antique
wood as design elements.
65. A review of the publically available social media content Mr. Burtness posted
under the name Surface Theory shows that up to the date of his termination Mr. Burtness posted
or “tweeted” social media content during normal work days and during normal work hours.
Upon information and belief, Mr. Burtness used the company iPad or laptop to update Surface
Theory’s social media accounts.
66. The terms of usage of social media sites such as Instagram, Twitter, Facebook,
Pintrest, and Houzz are generally consistent as to the ownership of content and copyrighted
works. According to the terms of usage for these social media sites, the user owns all the content
posted to that social media site, including copyrighted works. The user of the social media
account grants the social media host through his or her use a non-exclusive license to the content
and copyrighted works.
67. Because the social media content posted by Mr. Burtness under the name Surface
Theory while employed by Sockeye falls within the scope of his employment, Sockeye is
deemed to be the author of the content. For that content that falls within the definition of
original works of authorship under 17 U.S.C. § 102(a), Sockeye enjoys the exclusive rights of
use of the copyrighted work under the provisions of 17 U.S.C. §§ 106, 201(b).
68. Sockeye has suffered monetary damages and damages to its reputation and
continues to be damaged by Defendants’ conduct to the extent Defendants claim any right of
ownership to Sockeye’s copyrighted works. There is no adequate remedy at law to compensate
Sockeye fully for all damages arising from Defendants’ conduct.
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69. Sockeye is entitled to a judgment for declaratory relief declaring that Sockeye
through the doctrine of work made for hire is the author of copyrighted works that may be
claimed by Burtness as his own copyrighted works, including but not limited to any photographs
taken by Mr. Burtness during the scope of his employment and that social media content posted
by Mr. Burtness during the scope of his employment to the extent the social media content is
original works of authorship under 17 U.S.C. § 102(a).
70. Sockeye also seeks injunctive relief pursuant to 17 U.S.C. §§ 502, 503 protecting
Sockeye from Defendants’ future infringement of Sockeye’s exclusive rights under 17 U.S.C. §
106 to any copyrighted works through the doctrine of work made for hire.
COUNT V LANHAM ACT VIOLATIONS – 15 U.S.C. § 1125
71. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
72. Defendants made false or misleading statements of fact in a commercial
advertisement about Surface Theory’s product by representing on its website a list of customers
and clients that were not clients or customers of Mr. Burtness but rather of Sockeye; further,
Defendants made false or misleading statements of fact by representing photographs of
Sockeye’s product and services as the product and services of Surface Theory.
73. Defendants’ false statements either deceived or had the capacity to deceive a
substantial segment of potential customers since the Surface Theory website is viewable to the
general public and fails to disclose the proper origin of the projects and photographs as being the
projects and photographs of its competitor, Sockeye.
74. Defendants’ deception is material as it is likely to influence a consumer’s decision
to use Surface Theory’s services or product rather than the services or product of Sockeye.
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75. Since Defendants’ website is available to customers on the internet regardless of
state residence and Surface Theory specifically markets its product anywhere in the United
States, the product is in interstate commerce.
76. Sockeye has been directly injured as a result of Defendants’ false or misleading
statements or is likely to be injured as a result.
77. Under 15 U.S.C. § 1117(a) Sockeye is entitled to recover Surface Theory’s profits
in an amount to be proved at trial as well as actual damages suffered by Sockeye, including
costs, disbursements, and post-judgment interest at the statutory rate.
78. Sockeye is also entitled under 15 U.S.C. § 1116 to injunctive relief ordering
Defendants to cease its false or misleading advertising and further ordering Defendants to
undertake corrective advertising to remedy its false or misleading statements.
79. Sockeye is entitled to its attorney fees under 15 U.S.C. § 1117(a).
COUNT VI
BREACH OF FIDUCIARY DUTY
80. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
81. During Mr. Burtness’ employment with Sockeye, Mr. Burtness owed Sockeye a
fiduciary duty of loyalty.
82. Mr. Burtness breached this duty of loyalty by diverting Sockeye business to
Surface Theory while employed by Sockeye. Mr. Burtness diverted business away from
Sockeye by maintaining social media accounts and a website in the name of Surface Theory
promoting substantially the same business as Sockeye, and by referencing Sockeye projects on
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social media accounts and its website as its work rather than properly attributing the work to his
employer.
83. Mr. Burtness knew or should have known that his conduct violated his duty of
loyalty to Sockeye.
84. As a result of Mr. Burtness’ breach of the duty of loyalty, Sockeye suffered
economic damages in wages paid to Mr. Burtness for work or services performed by Mr.
Burtness in the name Surface Theory, lost profits from work diverted by Mr. Burtness from
Sockeye to Surface Theory, and reputation losses as a consequence of Mr. Burtness promoting
Surface Theory rather than Sockeye in its social media accounts and on its website.
85. The amount of damages suffered by Sockeye will be proven at trial but Sockeye
estimates that its losses are no less than $150,000.
COUNT VII TRADE SECRET VIOLATIONS – ORS 646.461, et seq.
86. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
87. Sockeye along with its affiliated companies are the largest domestic supplier of
reclaimed antique wood and has been in business since 1988. As a pioneer in the reclaimed and
sustainable wood industry, Sockeye has acquired information over the years that is generally not
available to the public. This information includes, but is not limited to: sources of raw antique
wood; techniques and processes for repurposing antique wood into useable building materials
suitable for modern use and design; client lists not readily available to the public that Sockeye
developed over time and at substantial costs; cost data of its products; and its methods for
bidding contracts as a material supplier.
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88. As a consequence of the unique industry of reclaimed and sustainable wood
products and its rapid recent growth in the Pacific Northwest due to an increase in consumer
demand for recycled or reclaimed building materials that are sustainable and environmentally
responsible, Sockeye’s information derives actual and potential independent economic value.
89. Sockeye has taken reasonable efforts under the circumstances to maintain the
secrecy of its information.
90. Upon information and belief, Mr. Burtness misappropriated Sockeye’s trade
secrets through improper means by taking Sockeye’s trade secrets for the benefit of Surface
Theory in order to compete directly against Sockeye in the same industry. Upon information and
belief, Mr. Burtness copied electronic data containing Sockeye’s trade secrets to the company
issued iPad or laptop that he refused to return or alternatively copied electronic data of the trade
secrets to another storage device or the cloud. Mr. Burtness acquired Sockeye’s trade secrets
without Sockeye’s permission or consent and refused to return the iPad, laptop or the trade
secrets when demand was made by Sockeye for its return.
91. Since Surface Theory can only operate through its agents, Surface Theory
acquired the trade secrets from Mr. Burtness and Surface Theory is imputed to know through Mr.
Burtness that the trade secrets were acquired by improper means.
92. Sockeye has suffered losses caused by Defendants’ misappropriation and
continues to be damaged by Defendants’ conduct. Further, Sockeye is entitled to losses for the
unjust enrichment resulting from Defendants’ misappropriation equal to a reasonable royalty for
Defendants’ use of Sockeye’s trade secrets. There is no adequate remedy at law to compensate
Sockeye fully for all damages arising from Defendants’ conduct so Plaintiff is entitled to
injunctive relief under ORS 646.463(1).
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93. The amount of damages for Sockeye’s actual loss and the unjust enrichment will
be proven at trial but Sockeye estimates that its losses are no less than $150,000.
94. Defendants’ misappropriation of Sockeye’s trade secrets was willful and therefore
Sockeye is entitled to its attorney fees under ORS 646.467 and punitive damages under ORS
646.465(3).
COUNT VIII INTENTIONAL INTERFERENCE WITH ECONOMIC RELATIONS
95. Sockeye incorporates by reference the allegations contained in the preceding
paragraphs as though fully alleged herein.
96. Sockeye over a period of time has developed business relationships with its
clients by providing its clients unique and quality reclaimed antique wood and building
materials. Through these existing relationships, Sockeye has developed a prospective business
advantage.
97. Defendants intentionally interfered with Sockeye’s business relationships through
improper means by receiving calls from Sockeye’s business relations when these business
relations believed they were calling Mr. Burtness as an employee of Sockeye. Upon information
and belief, Mr. Burtness failed to disclose that he no longer was employed by Sockeye but
instead was operating a competing enterprise. Mr. Burtness then would do business with
Sockeye’s business relationships as though he was working on behalf of Sockeye by accepting
scopes of work, offering bids, and otherwise selling products substantially similar to Sockeye’s
products. Upon information and belief, Sockeye’s business relationships would work with Mr.
Burtness unaware he was doing so on behalf of Surface Theory until Mr. Burtness would present
a contract on behalf of Surface Theory rather than Sockeye. Because of the work and effort put
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into negotiating a contract, Sockeye’s business relationships would be reluctant to back out of
the prospective agreement at a late date and start the process over with Sockeye.
98. Defendants further used improper means by representing Sockeye clients as its
clients on the Surface Theory website and additionally by infringing on Sockeye’s copyrighted
photographs on Surface Theory’s website and social media. Defendants also took credit for
projects, such as the Seattle Green Custom Home, which project received an MSN review.
99. Defendants further used improper means by using misappropriated trade secrets to
obtain an unfair competitive advantage with Sockeye’s business relations.
100. Defendants’ improper means caused damage to Sockeye’s economic
relationships.
101. Sockeye has suffered losses caused by Defendants’ tortious interference with its
economic relations. There is no adequate remedy at law to compensate Sockeye fully for all
damages arising from Defendants’ conduct.
102. The amount of Sockeye’s damages will be proven at trial but Sockeye estimates
that its losses are no less than $150,000.
JURY DEMAND
103. Sockeye hereby demands a trial by jury of all issues triable by jury.
PRAYER FOR RELIEF
WHEREFORE, Sockeye Timberframing, LLC prays for judgment and relief as follows:
1) On Counts I, II, and III, a judgment in favor of Plaintiff and against Defendants
that:
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a. declares that Defendants willfully infringed upon Plaintiff’s rights in
federally registered copyrights pursuant to 17 U.S.C. § 501 and injured Plaintiff’s business and
its reputation;
b. enjoins and restrains Defendants permanently from infringing upon
Plaintiff’s exclusive rights of its copyrighted works, whether registered or unregistered, and
whether published or unpublished, including but not limited to, Plaintiff’s exclusive rights of
reproduction, distribution, and public display;
c. orders Defendants to file a report under oath with the Court within thirty
days of entry of the injunction issued above that explains in detail the manner in which
Defendants have complied with the injunction;
d. issues an order of impoundment under 17 U.S.C. §§ 503, 509(a)
impounding all infringing copies of Plaintiff’s copyrighted photographs in Defendant’s
possession and control; and,
e. orders that the injunction above extend to Defendants’ members,
managers, employees, agents, and all other persons acting for, with or through them.
2) On Counts I, II, and III, a judgment in favor of Plaintiff and against Defendants:
a. for statutory damages or actual damages in an amount to be proved at trial,
at the election of Plaintiff, for Defendants’ willful infringement of Plaintiff’s exclusive use of
copyrighted works registered before Defendants’ infringement; and,
b. actual damages in an amount to be proven at trial for Defendants’ willful
infringement of Plaintiff’s exclusive use of its copyrighted works registered after Defendants’
infringement.
3) On Count IV, a judgment in favor of Plaintiff and against Defendants:
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a. declaring under 17 U.S.C. § 201(b) that any claim by Defendants to
photographic works authored during Defendant Ross Burtness’ employment with Sockeye is
work made for hire and that Plaintiff enjoys the rights of authorship and is entitled to exclusive
use of the copyrighted works under 17 U.S.C. § 106;
b. declaring under 17 U.S.C. § 201(b) that Defendant Ross Burtness’ social
media content and Surface Theory website content published before November 22, 2013 is work
made for hire and that Plaintiff enjoys the rights of authorship to that content that the Court
determines to be original works of authorship under 17 U.S.C. § 102(a) and entitled to the
protections of the United States Copyright Act; and,
c. to the extent not enjoined under 1.b. above, an order enjoining and
restraining Defendants permanently from infringing upon Plaintiff’s exclusive rights of its
copyrighted works, whether registered or unregistered, whether published or unpublished,
including but not limited to, Plaintiff’s exclusive rights of reproduction, distribution, and public
display.
4) On Count V, a judgment in favor of Plaintiff and against Defendants for:
a. damages in an amount to proved at trial for recovery of Surface Theory’s
profits and Plaintiff’s actual damages;
b. an order enjoining and restraining Defendants and their members,
managers, employees, agents, and all other persons acting for, with or through them from making
false or misleading statements in advertising claiming Sockeye products, clients, projects,
through word or photograph, as Defendants’ products, clients or projects;
c. an order requiring Surface Theory to undertake corrective advertising to
remedy its false advertising; and,
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d. an order for Defendants to file a report under oath with the Court within
thirty days of entry of the injunction issued above that explains in detail the manner in which
Defendants have complied with the injunction.
5) On Count VI, a judgment in favor of Plaintiff and against Defendant Ross
Burtness for damages to be proven at trial.
6) On Count VII, a judgment in favor of Plaintiff and against Defendants for:
a. damages in an amount to be proven at trial for Plaintiff’s actual losses and
its losses as a consequence of Defendants’ unjust enrichment;
b. a declaration declaring Defendants willfully misappropriated Sockeye’s
trade secrets and awarding Plaintiff punitive damages under ORS 646.465(3);
c. an order enjoining and restraining Defendants and their members,
managers, employees, agents, and all other persons acting for, with or through them from using
and disclosing Plaintiff’s trade secrets;
d. an order for Defendants to file a report under oath with the Court within
thirty days of entry of the injunction issued above that explains in detail the manner in which
Defendants have complied with the injunction; and,
e. issuance of an order of impoundment impounding all of Sockeye’s trade
secrets in Defendant’s possession and control.
7) On Count VIII, a judgment in favor of Plaintiff and against Defendants for:
a. Plaintiff’s damages in an amount to be proven at trial; and,
b. an order enjoining and restraining Defendants and their members,
managers, employees, agents, and all other persons acting for, with or through them from
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publically displaying Plaintiff’s copyrighted works and misrepresenting Sockeye clients and
projects as the clients and projects of Surface Theory on its website and social media accounts.
8) For all monetary damages awarded above, Plaintiff prays for pre-judgment
interest and post-judgment interest as the law may allow.
9) An award for Plaintiff’s fees, costs, disbursements and its reasonable attorney fees
as the law may allow.
10) All other general equitable relief as the Court deems just and proper under the
circumstances.
DATED this 18th day of April, 2014.
BATEMAN SEIDEL MINER BLOMGREN CHELLIS & GRAM s/ Travis W. Hall Travis W. Hall, OSB 98451 Of Attorneys for Plaintiff Sockeye Timberframing, LLC
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