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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK

Diversity Jurisdiction; Computer fraud; Trademark; Tortious Interference; Civil Conspiracy; Product disparagement; Linking Defamation; False Light; Invasion Of Privacy; Intentional Infliction Of Emotional Distress harassment; Libel; Trade Libel; Compensatory And Punitive Damages; injunctive Relief.

Robert Novak, d/b/a Petswarehouse.com, brings this diversity action for Computer fraud; Trademark; Tortious Interference; Civil Conspiracy; Product disparagement, Defamation; False Light; Invasion Of Privacy; Intentional Infliction Of Emotional Distress, Harassment; Libel; Trade Libel; Compensatory And Punitive Damages; Injunctive Relief against Active Window Publications, Inc., Mark Rosenstein, Cynthia S. Powers, Thomas Barr "John Doe" and "Mary Roe" jointly and severally, seeking compensatory and punitive and special damages and injunctive relief.

Nature of the Act

Linking can also create potential problems if the site doing the linking creates a false impression about their relationship to the site linked. Additionally, the linked site may complain If the link misrepresents the nature of the linked site or casts it in an unfavorable way.

Robert Novak is bringing this action to protect his right in the trademark Pets Warehouse and the Internet business Petswarehouse,com against the defendant's libelous and defamatory statements as published and disseminated via the Internet, more particularly the Interactive websites actwin.com, in the dilution of plaintiff's mark by said defamatory statements and conspiracy actions.

Jurisdiction and Venue

1. Venue is proper in this judicial district pursuant to 28 U.S.C, (section)1391(a)(2) & (3).

2. This Court has personal jurisdiction over the defendants under the New York State Long Arm Statute, Sections 302(a)(1) and 302(a)(3)(i) of the CPLR.

3. This Court has jurisdiction over this cause pursuant to 18 U.S.C. (Section) 1030(g) and 28 U.S.C. (Section) 1331 (federal question).

4. This Court has jurisdiction over this cause pursuant to Wiretap Act, 18 USC (sections) 510-2520, and the Stored Communications Act, 18 USC (sections) 2701-2710.

5. This Court has Jurisdiction over the state Iaw claims alleged in this Complaint pursuant to 28 U.S.C. (Section) 1367 (supplemental jurisdiction).

6. Venue is proper in this District pursuant to 28 U.S.C. (Section) 1391, because most of the Defendants transacted business within this District, a substantial number of the transactions complained of in this Complaint occurred in this District, and Defendant's acknowledged New York as the location of jurisdiction when accepting the terms and conditions of sale at the time of the transactions, and their orders were processed and shipped from within this District. Defendants actively and voluntarily accessed the web site Petswarehouse.com in this District. In addition, Robert Novak maintains its principal office in this District at 1350 Sunrise Hwy, Copiague, New York 11726. As such, a substantial part of the events giving rise to the claims set forth below, and the injuries suffered there from, occurred in this District.

7. This Complaint sets forth claims for trademark infringement, dilution false description and unfair competition under the Lanham Act, (section) 43 (a), (c), (d) and 15 U.S.C. (Section) 1051 et seq., and copyright infringement under the federal Copyright Act, 17 U.S.C. (Section) 101 et seq.

8. This Court has jurisdiction over the subject matter of these claims pursuant to 28 U.S.C. (Section) 1331 and 15 U.S.C. (Section) 1121 (action arising under the Lanham Act) and 28 U.S.C. (Section) 1 338(a) and (b) (action arising under an Act of Congress relating to copyrights, trademarks and related unfair competition claims).

9. This Court has supplemental jurisdiction over the subject matter of the remaining claims of this action pursuant to 28 U.S. C. (Section) 1367.

10. In addition and/or alternatively, this Court has diversity jurisdiction over the subject matter of this action pursuant to 28 U.S.C. (Section) 1332 in that the parties are citizens of different states and the amount In controversy exceeds $75,000.

11. Venue is proper under 28 U.S.C. (Section) 1391(b) because a substantial part of the events giving rise to Robert Novak's claims occurred in this District, including but not limited to, the Defendants: (i) intentionally committing computer Fraud and abuse to Robert Novak's computer servers hosting the Petswarehouse.com web site located in this district; (ii) intentionally publishing through the Internet defamatory statements regarding Petswarehouse.com into this District; (iii) tortiously interfering or attempting to interfere with the contractual and business relations of existing and prospective affiliates and consumers of Petswarehouse.com residing in this District; (iv) causing a decrease in sales at Petswarehouse.com's principal sales office which is located in this District; (v) causing the dilution and tarnishment of the Pets Warehouse mark In this District; and (vi) causing the infringement of Pets warehouse mark in this District, and (via) raising significant sums of money in New York as part of their plan and scheme to hurt Pets Warehouse.

12. Events involved in the litigation have occurred in numerous jurisdictions throughout the United States, New York and specifically this District are directly involved in this suit as the Defendants' actionable conduct has either been produced, or electronically published to New York residents and/or has been knowingly published by one or all of the Defendants into New York. Moreover, Robert Novak and his Petswarehouse.com business in its principal sales office that is located in this District have felt most of the impact of the Defendants' actionable conduct.

OVERVIEW

13. Defendants have conspired to, and have joined together into an illegal agreement to, intentionally injure the business and goodwill of Petswarehouse.com by a variety of tortious and other unlawful acts. Each member of the illegal conspiracy has economic incentives for their actions, all of which are at the expense of Robert Novak and Pets Warehouse mark

The Parties

14. Plaintiff Robert Novak is an individual with his principal office and place of business at 1550 Sunrise Highway, Copaigue, New York doing business as Petswarehouse.com, an Internet pet and pet supplier which among other items sells aquatic plants. Plaintiff licenses the trademark "Pets Warehouse" to several entities including Petswarehouse.com among others. For which he receives royalties and commissions for its use.

15. Upon information and belief, Defendant, Active Window Productions, Inc., is a domestic corporation organized under the laws of Massachusetts with its principal place of business in Cambridge, Massachusetts. The defendant corporation owns, operates, disseminates and publishes the website actwin.com, Aquatic Plants Digest (AWP) a subscriber based mail list operated within the domain name of actwin.com/fish/aquatic-plants/index.php a fish and aquatic plant published mail list.

16. Upon information and belief, Defendant Mark Rosenstein resides in Massachusetts is the editor and officer of Active Window Publications, Inc. operating the aquatic chat room, within actwin.com.

17. Upon information and belief, Defendant Cynthia S. Powers resides at 5617 Tyler St., New Colony, Texas and is the owner, editor, moderator, "listmom" officer and publisher of the Aquatic Plants Digest (AWP) a subscriber based mail list operated within the domain name of actwin.com/fish/aquatic-plants/index.php and uses the Internet screen name cyn@metronet.com.

18. Upon information and belief, Defendant Thomas Barr resides in San Rafael, California and uses the Internet screen name of tcbiii@earthlink.net.

19. Upon information and belief Robert Hudson resides at 1200 Rencero Way, #53, San Jose, CA d/b/a aquaticbotanic.com operating an e-commerce site using the screen name of "RobertH" among others.

20. Upon information and belief, Vince Chan resides at 420 Columbus Ave., Valhalla N.Y. using the screen name "arakis13" among others, having website and d/b/a My Aquascape Journal.

21. Upon information and belief, Ann Hahn resides at 1411 Cherokee trail, Conley, Georgia she uses the screen name of "offy" and has a website Offy's Place.

22. Upon information and belief, at all times hereinafter mentioned, defendants "John Doe" and "Mary Roe" are subscribers to chat rooms. Further they are any and all individuals who participated in the unlawful conduct complained of herein Computer fraud; Trademark; Tortious Interference; Civil Conspiracy; Product disparagement; Linking; Defamation; False Light; Invasion Of Privacy; Intentional Infliction Of Emotional Distress, Harassment; Libel; and Trade Libel.

The Internet

23. At all times relevant to the allegations of this Complaint, persons obtained access to the Internet through many different networks linked directly to the Internet, including but not limited to those networks operated by employers, schools, community organizations, libraries, any small commercial establishments.

24. At all times relevant to the allegations of this complaint, over one hundred and fifty million computers in the United States were linked directly to the Internet.

25. At all times relevant to the allegations of this Complaint, persons accessed information on the Internet via chat rooms, newsgroups, bulletin boards, e-mail, and subscriber based news groups mail lists and herein after "chat rooms'.

26. At all times relevant to the allegations of this Complaint, information posted in newsgroups, bulletin boards, subscribed mail lists and chat rooms was available to persons subscribing to such services as well as to persons accessing such services on an ad hoc basis.

27. At all times relevant to the allegations of this Complaint, the "World Wide Web" (hereinafter the "Web") consists of a vast number of documents stored in different computers all over the United States and the world containing information formatted according to Web publishing standards.

28, At all times relevant to the allegations of this Complaint, the Information on the Web was located at millions of separate "Web sites" that displayed content provided by particular persons or organizations.

29. At all times relevant to the allegations of this complaint, Web sites usually contain a "home page," which displays basic information about the publisher of the Web site and the information that publisher offered.

30. At all times relevant to the allegations of this Complaint, each Web site and its originating computer were connected to the Internet by means of protocols that permitted each Web site to become part of a single body of information accessible by all Web visitors through search engines and search directories.

31. At all times relevant to the allegations of this Complaint, persons viewed a Web site through "browser" software, which allowed the persons to display, download, and print out Information from the Web.

32. At all times relevant to the allegations of this Complaint, every Web site had an address by which it was accessed.

33. At all times relevant to the allegations of this Complaint, persons accessed a given Web site directly by typing the Web site name and going directly to that site.

34. At all times relevant to the allegations of this Complaint, persons who did not know the address or specific name of a given Web site, or who conducted generalized searches, accessed Web sites by means of a "search engine/directory," which found the Web sites by using a word or strings of words to locate these sites.

35. At all times relevant to the allegations of this Complaint, persons also "surfed" the Web by "linking" from one Web site to another, which they did by clicking on to "links," which were segments of text or "banner" images in one Web site that referred to another Web site.

36. At all times relevant to the allegations of this Complaint, information accessible on the Internet through the various methods described In this Complaint was taken from the location at which the information originally was accessed and published to the world wide web.

37. At all times relevant to the allegations of this Complaint, information accessible on the Internet through the various methods described in this Complaint was downloaded and printed in "hard copy," i.e., on paper.

38. At all times relevant to the allegations of this Complaint, persons communicated via the Internet directly to one or more other persons by transmitting messages to such other persons through electronic mail, also known as "e-mail."

39. At all times relevant to the allegations of this Complaint, more than one hundred and fifty million persons had access to the Internet and used that access.

40. Messages entered for publication to a chat room are placed in a form online or emailed to a specific e-mail address. These messages are referred to as "posts"

Factual Background

41. Plaintiff does not seek to restrain defendants or anyone's speech that is critical of PetsWarehouse.com's products or services, the focus of the suit is on the defendants' allegedly false speech, computer fraud, tortious interference, trademark infringement and the damage it has caused.

42. Defendants castigate and vilify Robert Novak and his mark. Most appallingly, defendant's actions are knowingly malicious and false.

43. As set forth herein, Defendants acts which victimize, disparage, defame and/or tarnish Pets Warehouse as an essential part of the schemes through a pattern of deliberate and malicious lies and repeated interferences with the Pets Warehouse trademark, all of which causes great damage to Robert Novak.

44. Using a pattern of messages posted to pet related chat rooms, infringing advertising banners placed on numerous web sites additionally linking to a defamatory web site, with deception and flat-out lies, the defendants have conspired to damage Robert Novak and his mark by, inter alia, (i) tortiously interfering with Robert Novak's mark licensed to existing contracts with customers; (ii) tortiously interfering with Robert Novak's prospective contracts with investors and customers; (iii) threatening boycotts of Pets Warehouse trademark used in conjunction with Petswarehouse.com and Pets Warehouse; (iv) threatening disparagement of plaintiffs mark; (v) threatening to harm future business of the Pets Warehouse mark; (vi) disparaging Robert Novak's trademark used in conjunction with Pets warehouse.com and Pets Warehouse selling pets, pet supplies and related products. The mark provides hobbyists pursuant to its Pets Warehouse brand, which is the third most popular pet-related web site in the world; (vii) diluting the significant goodwill and value Robert Novak has developed in its Pets Warehouse mark.

45. The defendants' portrayal of Petswarehouse.com as a bully that "sues its customers" for stating opinion. When in truth the opinions are factually false. Plaintiff notified users of the chat rooms when brought to his attention that their statements were inaccurate or factually false, requesting that they cease desist and/or remove or retract the libelous comments. Defendants claim in numerous messages posted that putting anyone on notice constitutes a threat, or bullying, rather than a notice of incorrect information allowing the poster to mitigate their possible damages.

46. Banners links

47. Upon information and belief, in June 2001 Defendants became increasingly frustrated faced with the costs of defending their actions and need to raise money they embarked on a fundraising campaign.

48. Defendants developed a new strategy to run an advertising banner program much the way an e-commerce site draws traffic to generate sales. In this case the commerce was fund raising. Banners are much like a billboard found on the highway to advertise a product or service.

49. Defendants interfered with websites advertising the Pets Warehouse banner and had placed banners similar with the "Pets Warehouse" name boldly displayed within the banner, thereby infringing plaintiff's mark.

50. Defendants recruited any website related to pets or aquariums to help them raise funds, they created a new untruth form the untruths of their own libelous remarks which gave rise to this action. They claimed they were only voicing their opinion about Pets Warehouse when in fact their statements were factually false. They place a new spin on their actions saying that the plaintiff wishes to stop them forum stating their opinions. Defendants do not have, and never had, any factual basis to support such claims and knew such claims were false. Plaintiff only raised objection to the statements, which were factually false never to truthful opinions.

51. Defendants instead of using their own website conspired with yet another website operator and lawyer John Benn who operates Petsforum.com and a chat forum in partnership with CompuServe.com both of which are e-commerce sites.

52. The banners when clicked on with the users mouse would not take them to a Pets Warehouse promotion link rather one of the disparaging hate commerce site disfavoring Petswarehouse which accepts money for allegedly the defense of the defendants.

53. Thereby receiving the financial benefit of infringing on plaintiffs mark in receiving monies in a fundraising effort. According to post by the fund administrator $10,000 was paid to a New York attorney and the terms of the settlement agreement stated the fund was exhausted. Therefore approximately $10,000 was collected by defendants' efforts since June 2001. Those funds were collected by the infringement of the Pets Warehouse mark.

54. Defendants coerced current and potential customers and affiliates of Pets Warehouse by besieging them with blatant misrepresentations and flat-out lies to disparage and tarnish Pets Warehouse in several newsgroups and chat forums that view such websites and the electronic transmission of e-mails through AWP.

55. Defendants willful, systematically and maliciously used all of these chat rooms to create a false impression, directly and/or by inference, that the Defendants requested any reader to boycott Pets Warehouse goods and services. Defendants exploited their false impression or "spin" that plaintiff wished to halt negative opinions this is factually incorrect.

56. This pattern of activity continues to date.

57. Defendants willfully made these defamatory statements to financially hurt the Pets Warehouse and to increase Petsforum.com fundraising and Petsforum.com's notoriety.

58. In May 2001, defendants sent e-mails to any one supporting Petswarehouse.com on any chat rooms. Requesting them not to say anything about this case "you will become a Defendant" and encourage them not to place questions that may place plaintiff in a positive light.

59. On or about July 29, 2001, AWP published on their plant related chat room website a statement from John Benn ("Benn") an attorney in Alabama, who set up a web site on the request of the defendants claiming that "Petswarehouse.com sues it's customers for voicing their opinions" relating to customer service targeting anyone who may say anything positive. Benn serves largely as a spokesman for the Defendants' schemes and campaigns, including those set forth in this Complaint and maintains a blind trust account on behalf of any defendants.

60. The following commercially defamatory statements were or republished, published and/or displayed "of and concerning" Robert Novak and the Pets Warehouse mark by defendants.

61. On or about July 14, 2001, Petsforum.com posted a statement on its internet site, which was disseminated throughout the world from "The Better Business Bureau of metropolitan New York, Inc. has provided an unsatisfactory rating, the Bureau's lowest, for PetsWarehouse.com. Then miss quotes the report.

62. The Defendants web site Petsforum.com operated by Benn were advised that the report was inaccurate, it does not reference pets Warehouse.com rather a licensee in Bohemia, Plaintiff upon being advised of the complaints terminated the license to use the mark and the business at that location ceased operation immediately.

63. Also displayed "PetsWarehouse Gomez Rating The Petswarehouse.com web site claims that it has a "High Pass" rating from Gomez. The current rating from Gomez (12-28-01) provides a three star rating. This is factual. However, the statement "The actual PetsWarehouse.com profile indicates that it ranks 14th in the "Overall" category of Pet Supply web sites. For Customer Confidence, the site ranks 11th" is factually false.

64. Defendants all knew or should have known through reasonable investigation that these statements were factually false they willfully made these defamatory statements to financially hurt Robert Novak Pets Warehouse's mark and Internet e-commerce web site and increase defendants fundraising and notoriety in concert with the website Petsforum.com.

65. On or about March 2002, the defendant AWP developed a "psw-lawsuit-news" newsletter to its users purporting to respond to this lawsuit. They then falsely accused Plaintiff and its employees of bullying and threatening anyone posting opinions about the Plaintiff these defamatory statements to financially hurt Robert Novak Pets Warehouse's mark and Internet e-commerce web site and increase defendants fundraising and notoriety in concert with the website Petsforum.com.

66. As part of its campaign against Pets Warehouse to "let everybody know", the defendants engaged in concert with others the following: "Tell a Friend" and C. Powers used editorial content on the AWP chat room to aid in the fundraising activities of the defendants asking for donations.

67. Defendants used advertising banners and links to a commercial commerce web site "petsforum.com" and others. The Petsforum.con site is operated by an attorney John Benn located in Alabama, he accepts credit cards into his blind trust account. The defendants claim to have raised over of $10,000 however the receipts and expenditures are not made public but secreted.

68. Defendants used advertising banners and links to a commercial commerce web site "petsforum.com". This site operated by an attorney John Benn located in Alabama, he accepts credit cards into his blind trust account. The defendants claim to have raised over of $10,000 however the receipts and expenditures are not made public but secreted.

69. AWP March 4, 2002 republished the following posted statement by Alan Kaufman "Upon learning today of Mr. Novak's self-representation I telephoned the IRS's Criminal Investigations division and reported him for probable tax fraud. I explained to them that I was confident that he was using costs of his suit as a business expense deduction and it was questionable due to his personal involvement and his personal attacks on others. I offered that another possible avenue of investigation would be his reporting of expenses, as he was self-representing. Their interest definitely seem to increase when I mentioned that over $10,000 had already been spent in defense and that I assumed his claimed deductions would be at least as much.... I asked if further calls from other parties would increase the likelihood of their starting an investigation and was told that input from more then one source their investigating almost a certainty. Their number is 1-800-829-0433. Why don't you call too? It can be anonymous if you wish. Remember, actions speak louder then words. Alan"

70. AWP has published with actual malice, that is, with the knowledge of falsity or reckless disregard of the truth of and concerning Robert Novak and the mark Pets Warehouse in all of the statements in posts made by the defendants and while fundraising from the public. As will be show below, the Defendants developed other schemes and lies to further harm Robert Novak and his Pets Warehouse mark.

71. I immediately faxed Robert Folks the law firm representing AWP with the content of the message by Kaufman and asked that it be removed, I never received a reply. Later that day this message was republished by AWP to New York subscribers and the rest of the world.

72. The response, after it was republished by AWP March 5, 2002 in part from Rosenstien "a recent posting on this list advocates reporting Robert Novak of Pets Warehouse to the IRS for tax fraud... if you have reason to believe that tax fraud has been committed, then by all means call the IRS and report this... Alan thinks it likely that there is fraud. I really don't know. Mark Rosenstein Editor, FINS" AWP took no steps to remove the offending material.

73. AWP is grossly negligent in not responding when notified to delete posts which defame, harass, infringes any trademark, abuse, threaten or otherwise violate the legal rights of others.

74. Defendants rely on their PetsWarehouse attacks, to champion themselves and to raise the profile of their cause so their proponents would keep financially supporting a successful group. This would allow them to continue the concerted efforts to harm Plaintiff. Defendants' ultimate goal is to raise money. Also the effect of their actions had an adverse impact on commerce Negatively affecting the Petswarehouse e commerce business. In so doing the defendants speech is commercial.

75. AWP is not immune and is liable for their actions or inactions. Immunity from suit and liability found in the Communications Decency Act, 47 U.S.C. (Section) 230 does not offer AWP a safe haven of immunity. While it may protect them to some degree to make available messages of others on the actwin.com web site, it does not protect them from (i) trademark infringement or (ii) content they create or the (iii) electronic re-publishing world wide of the posts they receive. Moreover immunity provision of the CDA should not be construed in a matter that would "limit or expand any law pertaining to intellectual property including commercial speech.

76. On March 1, 2002 Judge Hurley "So Ordered" a settlement agreement with previous named parties. One of the provisions of that settlement was that the parties delete any posts in any chat room that pertains to the Plaintiffs. Joann Vandersarl one of the settling parties in attempting to comply with the terms and conditions was successful with every other such cat rooms and forums except AWP. When the request was made on March 20, 2002 by Joann Vandersarl defendant Rosenstein replied to her "I assume you're referring to postings made via the aquatic-plants mailing list. The web archive of this list is a recording of a public discussion which has taken place. It is the policy of FINS not to edit or censor such archives..

We're sorry, but these postings will remain online. -Mark Rosenstein, Editor"

77. Interestingly no such policy is published anywhere on actwin.com. AWP should comply with the wishes of a poster, rather than abuse her rights. Especially when the removal was "So Ordered". A position entirely inconsistent with the forum operators as an example AOL and Goggle which run the largest such chat groups have automated ways for any user to delete their own posts. AWP is declining to comply with the removal of these defamatory statements to financially hurt Robert Novak and the Pets Warehouse mark and Internet e-commerce web site Pets Warehouse.com thereby increasing defendant's fundraising ability and allow the search engines to index the pages of the AWP when doing a search on the keyword "petswarehouse" infringing on its mark.

78. Robert Novak and pets Warehouse received obscene emails, some containing viruses that wound up destroying more than one computer system. There were threats of violence and even death threats against Robert Novak and the staff.

79. Beginning on July 7, 2001 thru July 24, 2001 Plaintiff's computer servers were comprised by the defendants and others hacking into Robert Novak's computer server farm which contains the website and its contents, committing computer fraud to harm the Internet e-commerce web site Petswarehouse.com.

80. This pattern of computer fraud continues, on March 5, 2002 Alan Kaufman in an mail to petswarehouse.com cc'd to defendant T. Barr threatened to damage the web servers of Robert Novak stating "Get ready for my next move. You will really like this one. But it might hurt in the pocket. As a kindness I suggest you go out and buy the best firewall you can find... not that it will help.".

81. On March 5, 2002 another threat by Edward Venn stated "It's amazing what some Filipino hackers can do while your on the web .. havoc with your credit by now." Both of these threats were reported to the FBI and sent to forums to expose the threats.

82. Defendants knew or should have known that their activities were illegal.

83. As a direct and proximate result of Defendants' acts described herein, Robert Novak has been injured.

Claim One - Trademark Under (Section) 43 of the Lanham Act Infringement, Dilution, False Description and Unfair Competition

84. Each of the foregoing allegations is incorporated herein by reference as though fully set forth at length.

85. Defendants are deriving direct revenue by infringing the Mark Pets Warehouse with its miss leading use in banner advertisements linked to among others petsforum.com e-commerce fundraising web site. The core element of trademark infringement is the likelihood of confusion, i.e., whether the similarity of the marks is likely to confuse customers about the source of the products.

86. Since 1974, Robert Novak has been using the Mark "Pets Warehouse" to identify itself in connection with goods and services it offers to pet hobbyists. The Plaintiff is the exclusive owner of all rights, title, and interest in the "Pets warehouse" Mark. As such, Robert Novak does not authorize or permit any individual or corporation to use the Mark without written permission or authorization.

87. Robert Novak has numerous agreements with commercial entities that permit the use of the mark to promote certain goods and services marketed by such entities. Revenue generated from these agreements is paid to Robert Novak as royalties and or commissions.

88. The primary agreement pertaining to this action is with petswarehause.com operating a web site at this Internet address commencing in July 1997. Petswarehouse.com provides information about keeping and maintaining pets in general, engages in interstate commerce selling pets and related supplies. In 1999 through a consumer study achieved national prominence in becoming the 4th most visited pet web site in the USA, therefore plaintiff's mark Is famous.

89. PetsWarehouse.com acquired secondary meaning in the minds of the consuming public linking the Mark to a source of pets and pet suppiles.

90. Defendants AWP V. Chan, A Hahn, R. Hudson and C. Powers intentionally copied or plagiarized the Mark in their advertising banners "linking" to Petsforum.com, defensefund.com and CompuServe.com's web sites and HTML code.

91. It was precisely the reconcilability of the Pets Warehouse mark that led defendants to adopt its use of it. Many persons searching for Pets Warehouse's web site, but unaware of its precise address, would attempt to access it by typing the Pets Warehouse Mark into a search engine, or the Internet commonly uses advertising banners located on web pages to direct consumers to other web sites for what consumers believe to be related material. Clicking on an advertising banner with the PetsWarehouse Mark, those persons seeking plaintiff's site with the intention of viewing pet related Information and or supplies to purchase - but who are diverted to the Petsforum.com and other fundraising sites by means of the false designation of origin in Defendants AWP, Vince Chan (Chan), Hahn, Hudson and Powers placing commerce advertising banners or the Pets Warehouse Mark in the sites code, consumers would be confused to find a web site http://www.petsforum.com containing unwholesome, unsavory context likely to evoke unflattering thoughts defaming and or otherwise negative Information placing the Pets Warehouse in false light.

92. The Defendant AWP Chan, Hahn, Hudson and Powers links to the petsforum.com and CompuServe are maliciously designed to infringe the Mark Pets Warehouse, confuse, defame, disparage and divert consumer's, tortiously interfering with prospective contracts. Linking to this site knowingly with malicious intent sought to Infringe Plaintiff's Mark. Defendants could not have reasonably thought that its usage was not barred by statute.

93. Defendants AWP Chan, Hahn, Hudson and Powers sites compete for the same audience namely, an Internet user who are searching for a web site seeking pets and or pet supplies that uses plaintiff's Mark as it address, or direct name in advertising banners.

94. This confusion as to the source, sponsorship, affiliation, or endorsement of the site is acknowledged by the telephone calls and e mails from consumers and in fact from several defendants as more fully described below.

95. Defendants AWP Chan, Hahn, Hudson and Powers use of the mark in their banners to divert citizens, raises the possibility that the mark will be "blurred" losing its ability to serve as a unique identifier of Plaintiff's services.

96. Defendants AWP Chan, Hahn, Hudson and Powers misused the Pets Warehouse Mark with malicious intent to falsely describe by using a capital "S" the mark as such "petsSwarehouse". They also used the term PetSWEARhouse" stating, "because if you buy from them you will be swearing".

97. Plaintiff's mark Is "tarnished" as used by the Defendants. It is linked and portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the Pets Warehouse products and services. Moreover reducing the trademark's reputation and standing in the eyes of consumers as a wholesome identifier.

98. Defendant's Intent to divert consumers to site that harmed the goodwill represented by the Mark for commercial gain and with the intent to tarnish and disparage the Mark.

99. Defendant Hudson is promoting his own service. Since his out spoken role relating to this case in chat rooms, his own website has benefited, Hudson reports 30,000 unique visitors a month now come to his e-commerce web site.

100. The defendants have collected monies based on the trademarks misuse. Moreover these funds are being used to pay for the legal services in defense to this very complaint.

101. "Initial interest confusion" by the use of the word or words "petswarehouse" in links and banner advertisements.

102. Initial Interest contusion is a brand of confusion particularly applicable to the Internet. Confusion may result when a user conducts a search using a trademark term and the results of the search include websites not sponsored by the holder of the trademark search term, but rather of sites competing for the same traffic as competitors. That the user may be diverted to an un-sponsored site, and only realize that she has been diverted upon arrival at the competitor's site. Confusion does not require the customer to be actually deceived upon arriving at the site: It is sufficient to show that being drawn into the site in the first Instance deceived the customer. The underlying premise of trademark and unfair competition law is that no one should be permitted to trade and profit off the good name or mark of another. Once there, however, even though the user is confused he/she is not in the site initially sought, she may stay. In that way, the defendants have captured the trademark holder's potential visitors or customers.

103. Analogized the capture of unsuspecting Internet users by a competitor to highways and billboards: Suppose a Pets Warehouse's competitor puts up a billboard on a highway reading—"PetsWarehouse 2 miles ahead at Exit 4"—where PetsForum.com is really located at Exit 4 but Petswarehouse is located at Exit 5. Customers looking for Petswarehouse store will pull off at Exit 4 and drive around looking for it. Unable to locate PetsWarehouse, but seeing the PetsForum.com store right by the highway entrance, they may simply shop there.

104. Although the customer is not confused as to where he/she ultimately makes a purchase, PetsForum.com has misappropriated Pets warehouse's goodwill through causing Initial consumer confusion. The customer has been captured by the competitor in much the same way that Defendants AWP Chan, Hahn, Hudson and Powers capture Internet users looking for plaintiff's web site only to find Petsforum.com site which is commercially fundraising monies, goods and services based on the original use of the PetsWarehouse Mark.

105. In this case actual confusion was admitted In the posts to the AWP chat room. On August 11, 2001 Defendant Hudson stated "I am also getting comments from my readers that the "Petswarehouse defense" banner/link is worded in such a way that it sounds like its in support of Pets warehouse, not the people who are being sued. Perhaps a little re wording? Robert Paul H http://www.aquabotanic.com.

106. August 12, 2001 defendant Powers posted "As for people thinking the fund is to benefit PSW - hmmmm . . . Thanks for letting us know. Cynthia

107. August 1s, 2001 defendant Hudson stated "Now realize I am only talking about the wording of the banner ad.. not what they see if they click on it. I've had three people ask me why I am supporting Pets Warehouse in this.,.when I told them to click on the banner...their response was, oh, duh! Some people have the banner linked to CompuServe, others to a Usenet posting of Johns email, and others to the krib, none of which I have seen a link to the list of contributors. Robert Paul H.

108. On August 16, 2001 R. Sexton posted in that same chat room Change the banner ad then. If 3 people write that means 1500 were similarly confused and didn't write If the net is true to form. Why even mention PetSwharehouse in the banner?

109. Defendants use of the mark confused consumers thinking there Is a connection with the trademark owner. Defendants have used the plaintiff's mark willfully, fraudulently, and in bad faith, improperly benefiting from the goodwill developed In his mark, reaping improperly benefiting from the plagiarism for their own economic goals.

110. Plaintiff's PetsWarehouse mark was and continues to be diluted lessening of the capacity of a its mark to identify and distinguish Pets Warehouse's goods and services 15 U.S.C. (Section) 1127. Defendants have made use of a Plaintiff's mark sufficiently similar to the mark to evoke in a relevant universe of consumers a mental association of the two that has caused actual economic harm to the mark's economic value by lessening its former selling power as an advertising agent for Its goods and services additionally by blurring the trademark association, thus weakening it, or by tarnishing the trademark, giving it a bad association along with its original trademark association,. Consumers still associate the trademark with its owner, but that association is blurred making the mark weaker than before or a negative connotation of tarnlshment Is added to the mark.

111. As a willful, systematic and malicious disparagement direct and proximate result of Defendants willful, systematic and malicious conspiracy to dIsparage the Pets Warehouse Mark which has caused the dilution tarnishment and blurring of the distinctive quality of the Pets Warehouse Mark, Pets Warehouse.com and the products and services sold under that Mark. Robert Novak has been injured. In violation of Section 43 of the Lanham Act.

112. Plaintiff seeks disgorgement of all monies acquired in Defendants fundraising efforts received in violation of Section 43 of the Lanham Act.

113. As a direct and proximate result of Defendants' acts described herein, Robert Novak has been Injured.

Claim Two - False Description and Unfair Competition Under Section 43(a) of the Lanham Act

114. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

115. Defendants' descriptions of fact and representations of fact alleged herein, including, inter alia, the statements alleged in Claim Six below, are factually false.

116. Defendants use of such false and/or misleading descriptions of fact and false and misleading representations of fact in commercial advertising and/or promotion misrepresented the nature, characteristics and/or quality of Pets Warehouse.com's commercial activities and the goods and services provided pursuant to the Pets Warehouse brand.

117. Defendants' use of such false and/or misleading descriptions of fact and false and/or misleading representations of fact in commercial advertising and/or promotion are in violation of Section 43(a) of the Lanham Act

118. As a direct and proximate result of Defendants' acts described herein, Pets Warehouse has suffered commercial injury to its mark, business, reputation and goodwill.

Claim Three - As and for a claim against Defendants Active Window Publications. Inc., Mark Rosensteln and Cynthia Powers

119. Each of the foregoing allegations Is incorporated herein by reference and reasserted as though fully set forth at length.

120. The publication and re-publication circulation of the Statements or posts by the defendants AWP, Rosenstein and Powers concerning the plaintiff were false and defamatory.

121. The Statements/messages are libelous per se since they falsely accuse the plaintiff's company of fraudulent acts and accuse Pets Warehouse and the plaintiff of conducting a disreputable and dishonest online business.

122. By reason of the publication and circulation of the Statements/messages the plaintiff has been publicly disgraced and humiliated and has been injured in his good name and reputation in the community in which he resides and does business and throughout the entire country in which the publication and circulation of the Statements/messages occurred.

123. At the time defendants AWP, Rosenstein and Powers published and republished the defamatory matter, namely the Statements/posts, defendant knew, or had reason to know, that the statements were false, or failed to take the proper steps to ascertain their accuracy and, instead, published the Statements/messages with reckless disregard whether the Statements/messages were true or not.

124. In publishing and circulating the statements/messages and refusing to allow the plaintiff to refute same, defendants AWP, Rosenstein and Powers acted with malice, and intent to injure the plaintiffs' business and reputation.

125. Robert Novak attempted to make rebuttals in reference to Defendants posts. However ADP maliciously blocked the e-mails sent to the mail list by the plaintiff thus not affording him an opportunity to defend himself.

126. After several attempts and e-mails directly to defendants AWP and Rosenstein of the inability of Robert Novak as a subscriber since 1997 had in getting his posts published by AWP, the response from Mr. Rosenstein was "calm down". AWP offered no assistance in removing the posts in question or getting our side of the issues published in rebuttal some way.

127. AWP is not Immune and is liable for their actions or inactions. Immunity from suit and liability found in the Communications Decency Act, 47 U.S.C. (Section) 230 does not offer AWP a safe haven of Immunity. While it may protect them to some degree to make available messages of others on the AWP web site, it does not protect from (i) trademark infringement or (ii) content they create or the (iii) electronic re-publishing world wide of the statement/posts they receive. Moreover immunity provision of the CDA should not be construed in a matter that would "limit or expand any law pertaining to intellectual property Including commercial speech.

128. Defendants AWP, Rosensteln and Powers further humiliated plaintiff by posting in AWP chat rooms that I was unaware of how to post to the chat room, and I attempted by adding an attachment to my attempted rebuttal post on May 15, 2001. Their response was factually false.

129. Being blocked -plaintiff's reputation cannot be repaired by counter speech, how ever persuasive or effective. The image was done.

130. AWP's software used in their chat room can block messages. Defendant Powers is the owner-moderator attested to that fact that blocking is possible several times.

131. The statements pertaining to plaintiff's' business practices and the quality of the goods sold by the plaintiff are false and were known, or defendants had reason to know, to be false by defendants when the statements/messages were published and circulated. Defendant's tortuously interfered with the e-mail transmissions. As a result of the foregoing, plaintiff has sustained severe damage to his good name and reputation and to his business interests, in the excess of $1 Million Dollars.

Claim Four - Tortious Interference with Contractual Relations and Prospective Business Relations

132. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

133. Pets Warehouse maintained valid contracts with various third parties as commissioned affiliated sellers, these sellers having websites which advertise and link to the Pets Warehouse.com web site for sales of pets and pet supplies.

134. Defendants intentionally sought to induce such third parties to terminate their contracts with Petswarehouse.com. Defendants acted with malicious purpose and/or dishonest, unfair or improper means to harm plaintiff. As a result numerous contracts of sale were cancelled.

135. Defendants intentionally interfered by attempting to induce and urge consumers, being prospective customers, to avoid doing business with Petswarehouse.com.

136. On June 15, 2001 defendant Chan using the screen name arakis13 posted "I've also contacted once popular aquarist website who I've seen carrying the petSwearehouse ad banner and inform them about this matter. Turns out that the site manager is an friend of the ListMom and he immediately agreed to terminate relationship with petSwarehouse."

137. Again on June 16, 2001 defendant Chan posted "I realize Petwarehouse engaged in an "Affiliate" program and have their link all over the place. Also, many private aquarist sites have links to them as well. An effective way to boycott these people would be to remove as many links to them as possible: Go on the Google.com Search for "PetSwarehouse" Email a plea to each of the hits. Explain what's going on and urge them to support their fellow hobbyists and remove links to Petswarehouse.com"

138. Karen Randall on July 6, 2001 posted the following message "strong sense of community has developed .... natural to warn your friends", "the more noise we make".

139. Defendant Hudson 2002-03-12 Are you in Long Island New York? Pets Warehouse runs a full page ad in their newsletter. Perhaps you could persuade them to think more seriously about continuing to run their ad and to look at this case more closely.... What I meant to say was PetsWarehouse runs a full page ad in the Long Island Aquarium Club newsletter. Perhaps you could ask the club why???

140. Plaintiff was in fact contacted by LI Aquarium Club and damaged Plaintiff advertising contract.

141. The chat rooms of AWP, CompuServe's Aquaria Fish Forum, TomsBoard, FishlinkCentral and Aquarists & the Law all disseminated through the Web these numerous posts similar Tortious Interfering statements.

142. By example the effect of which November 21, 2001 on AWP chat room published this post by Hank norsek2@yahoo.com after asking about ordering live plants from Pets Warehouse.com "Oops .... I just checked the archives .... so we won't go there!" Meaning he found in AWP database the defamatory posts of and concerning Pets Warehouse.

143. Pets Warehouse.com received over one hundred cancellations of existing orders and received a like amount of e-mail saying they would not purchase based on what was on the AWP chat room.

144. Pets Warehouse.com had lost the participation of numerous affiliates. (Affiliates are web sites which advertise goods and services on a commission basis which are affiliated with Pets Warehouse.com's commerce)

145. Defendants interfered with Pets Warehouse.com's relations with such perspective third parties with such malicious purpose and or using dishonest, unfair or improper means to harm plaintiff. Plaintiff's business relation with such parties has been injured.

146. As a direct and proximate result of defendant's unlawful conduct Robert Novak and Petswarehouse.com have been injured.

Claim Five - Product Disparagement and Trade Libel

147. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

148. Defendant's intent to divert consumers to several sites that harmed the goodwill represented by the Pets Warehouse Mark, for commercial gain and with the intent to tarnish and disparage the Mark, by confusing as to the source, sponsorship, affiliation, or endorsement of the site.

149. Defendants have disparaged pets Warehouse brand products and services pursuant to its Pets Warehouse Mark by falsely misrepresenting Pets Warehouse business practices. As a result of Defendants disparagement and cybersmearing campaign and falsely inferring that the company has inept and discourteous customer service, is dishonest and does not fulfill it's customer's orders.

150. Defendants have disparaged petswarehouse.com products and services provided pursuant to its Pets Warehouse brand claiming plaintiffs "sued its customers for stating their opinions", inter alia, at least the following statements: "unhappy customers .... have posted on the AWP many times" Cynthia Powers July 27th. This statement is factually false. The characterization of C. Powers many times is grossly inaccurate. In searching the database of AWP prior to May 15, 2001 I found about six so-called unhappy customer posts. Given Pets Warehouse.com processes thousands of orders annually this statement was made with reckless disregard for the truth, but the post made by AWP was electronically e-mailed world wide to libel and disparage Plaintiff's goods and services.

151. Defendants continually with reckless disregard impeach and reflect Plaintiffs honesty, integrity, virtue, and sanity by defendant's statements and wrongful acts.

152. Defendants have published intentional numerous disparaging remarks in chat rooms posting those statements to third parties.

153. These statements now appear on the Internet in a permanent form accessible to millions. As exemplified in Claim Six.

154. As a direct and proximate result of defendants statements relating to plaintiff has been injured.

Claim Six - The Libel, CyberLibel, Commercial defamation, False Light and Libel Per Se of the Defendants.

155. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

156. On May 15, 2001 Dan Resler sent an e-mail message to defendant AWP at it's website aquatic-plants@actwin.com knowing that that message would be posted to the news groups website to be seen by anyone coming to that website and knowing that his statements would be e-mailed to all subscribers of that plant digest and further harassed plaintiff knowing that other search engines/indexes, news groups would automatically pick up, index and disseminate that message to numerous websites, news groups, and chat rooms. Mr. Resler's e-mail made the following statements of and concerning Plaintiff and the Mark: "Thinking of buying plants from Pet Warehouse? Don't. What is crappy is their service! And they're maybe even A bit dishonest." "To clarify: Pet warehouse OK, Pets Warehouse NOT" also on May 18, 2001 "note deliberate use of name so search engines will pull this message up"

157, Mr. Resler's e-mail was responded to by over fifteen hundred (1500) individual e-mails sent to chat rooms such as AWP, CompuServe and Petsforum "of and concerning" Plaintiff and the Mark "pets Warehouse":

Sean Carney May 16, 2001 "I believe they call that deceptive advertising. Or bait-and-switch. Take your pick." "Stay away from them" Jared Weinberger - May 21, 2001 "as a source for purchasing plants, they do not have a good reputation" Dan Resler - May 18, 2001 "But you don't have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it's only your time and money, right?" Defendant Barr - May 17, 2001 "I think I have the record with these nit wits. I've talked to Bob Novak several times etc (the owner). A number of years back they did have a person that could do the job well, Donna. But they drove her off fast. I've been through some 5 or more order folks there now. There will not be a 6th. Also the only one that gave decent service, owner included. They claim to fill 90% of the orders. Well, I can tell everyone it's more like 20%. or less. If it at all. I order from them every 2 weeks for about 2 years ... Didn't matter if you order 300$ worth of plants or 25$ worth of plants. Every sized order is ignored equally. The high shipping cost are a complete joke.... and certainly the customer is last rather than first.... but many years and 5 different service employees?? They get Tom's official: Worse service award of any plant MO place. And they deserve every bit of it beyond any reasonable doubt. Regards, Tom Barr." Defendant Hudson - May 18, 2001 don't allow Bob under any circumstances to have anything to do with any of your customers. In fact, don't even admit to anyone he is the President of your company. Improve customer access. Have someone that checks your email more than once a week. Get someone to answer your phone. And teach your people good phone manners. People should sound professional on the phone, not like a street vendor in the Bronx. "Hey.. Adrian...yo" What they don't want is to be given bold faced lies. Sean Carney May 22, 2001 "Remember petSWEARhouse, buy their plants and you'll be swearing!" Defendant Hudson 2001-06-16 "Some people are just mentally challenged, we shouldn't discriminate against those that can not fend for themselves. There are many company presidents out there that are mentally handicapped." Defendant Barr June 30, 2001 "PSW has little (no) honor" Defendant Hahn-July 3, 2001 "dissatisfied customers now need to fear lawsuits for the headaches a business owner caused himself from the handling of customer service" Defendant Powers - July 6, 2001 "do you want to lose your right to complain about the bad service you receive from a company. Because doing that appears to be what petsWarehouse wants to accomplish? Defendant Barr July 6, 2001 "So don't be intimadated!!!.... Say what you will" Defendant Hudson 29 Jul 2001 "I noticed Jared has put a banner link on his WEB site to Cynthias post. I would suggest anyone with a high traffic WEB site follow his example." Defendant Hudson 2001-12-11 "I humbly encourage everyone to donate whatever you can. If the suit continues, some people will not be able to put their kids through college, or pay for cancer surgery, or pay off student loans, and small businesses may be in jeopardy. In the end if some of the WEB sites go away, it will be for lack of funds. This is no joke. This is the hard reality of our legal system which allows anyone like Novak to force people to spend their life's savings just to defend themselves." Defendant Barr November 23, 2001 "It really shows that PSW is blatantly lying to their customers about the security of their online web site.... it says they have secure on line ordering, yet do not." Defendant Hudson 2002-03-12 "Are you in Long Island New York? Pets Warehouse runs a full page ad in their newsletter. Perhaps you could persuade them to think more seriously about continuing to run their ad and to look at this case more closely.... What I meant to say was PetsWarehouse runs a full page ad in the Long Island Aquarium Club newsletter. Perhaps you could ask the club why???"

158. All the defendants on AWP, Tom's Board, CompuServe, Petsforum.com, fishlinkcentral and others, made numerous other commercially defamatory e-mails.

159. Defendants AWP, Rosenstein and Powers received and posted/published and re-published via electronic e-mail on/from their web site at AWP, subject to being viewed by millions of internet users.

160. The publication and circulation of the statements or messages by defendants concerning the plaintiffs were "defamatory falsehoods", factually and knowingly false.

161. The Statements are libelous per se since they falsely accuse the plaintiff of bad business practice, fraud, dishonesty and bad customer service.

162. By reason of the re-publication of the Statements/posts now deemed the content of AWP which is assembled in a daily e-mail to various aquarium owners and others being third parties does not offer AWP a safe haven of immunity from suit and liability found in the Communications Decency Act, 47 U.S.C. (Section) 230.

163. The plaintiff has been publicly disgraced and humiliated, and has been injured in its good name and reputation in the business community in which its business are located and throughout the entire country and internationally in which the publication and re-publication of the Statements/posts occurred.

Further the publication of the Statemets/posts have placed the plaintiff, Robert Novak and the entitles that bears the mark Pets Warehouse in a false light in the public eye and constitutes an invasion of privacy.

As a direct and proximate result of Defendants' acts described herein, Robert Novak and the mark Pets Warehouse has been injured.

Claim Seven - Computer Fraud and Abuse Act, 18 U.S.C. (Section) 1030

164. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

165. Robert Novak maintains a computer system for its Petswarehouse.com web site in conjunction with interstate commence its customers who are New York citizens and citizens of other states. The computer system contains "protected computers" as defined in 18 U.S.C. 1030(3)(1)(2)(B) because they are used in interstate commerce and communication.

166. Defendants have intentionally "exceeded authorized access" as defined in 18 U.S.C. 1030(e)(6).

167. Defendants harvesting and collected the customer files of Petswarehouse.com. Defendants have obtained information via interstate communication to which he was not entitled. These actions constitute violations of 18 U.S.C. 1030(a)(2).

168. On information and belief defendants in concert with others had the computer knowledge to break into the web server and disable the password protected safeguards.

169. On information and belief defendants "hacked/cracked" through the security firewalls of Petswarehouse.com's web server systems located in Copaigue, New York.

170. Defendants acted in concert each accessing the Petswarehouse.com's web site violating 18 U.S.C. 1030 and New York's Computer Crimes Act, (Section) 156.

171. Robert Novak suffered damage as a result of Defendants violation of any password through which a computer may be accessed without authorization, as defined in 18 U.S.C. 1030 (a)(6)(B).

172. On July 7th 2001 defendant Hahn also known by the screen names "Offy" or "OffyM" made the following statement in a chat room: "I do have Mr. Novak's password", indicating that she has the password to the Petswarehouse.com password protected site.

173. Defendant Barr August 14, 2001 "any Internet user who typed the right alphanumeric characters in address line of his browser-displayed Dr. Resler's credit card number unencrypted. I have direct proof of this"

174. Defendant Barr November 23, 2001 "It really shows that PSW is blatantly lying to their customers about the security of their online web site... it says they have secure on line ordering, yet do not."

175. Defendants knowingly caused the network and communication settings of such computers to be altered or impaired such that its password protections were completely comprised, therefore allowing access to its databases.

176. Defendants repeatedly and without authorization, have entered Robert Novak's protected computers database since the filing of this Complaint. On each occasion of entry they deleted altered copied or otherwise compromised the web server, they knew that their intrusion would impair the operation of Robert Novak's protected computer facilities and Robert Novak's ability to provide e-commerce services to its users.

177. Defendants accessed secured unauthorized files, perusing and deleting transactions and numerous other transactions.

178;. On information and belief this break in took place on or about July 7, 2001 through July 26, 2001. This was done in part to attempt to formulate some type of defense or cover-up in this action. It was also done to undermine consumers' confidence to shop at petswarehouse.com Web site because Defendants bragged about their ability to see all customers' credit card information.

179. On information and belief defendants conceived and devised a fraudulent plan whereby he would disseminate internet access codes to others, making representations including but not limited to that such access was easy, and that the Petswarehouse.com sensitive data was unprotected.

180. On information and belief defendants in concert conspired to damage Robert Novak's computers.

181. This allegation is based on the fact that those Defendants internet IP addresses were found in our web servers log files (each time a user accesses a web site a log file is created identifying the source of the connection and what pages were visited through that connection. The pages visited are contained in what is referred to as password protected pages and files. Ordinary users of the web site cannot access these pages and files.)

182. A formal complaint has been filed with the FBI computer crimes unit. This unit has requested copies of Petswarehouse.com log files in order that they may investigate this matter to the fullest extent of the law.

183. Defendants intentionally caused damage without authorization in the form of impairment of access to the data, systems and networks of Plaintiff.

184. Robert Novak suffered damage as a result of Defendants violation of 18 U.S.C. (Section ) 1030(a)(5)(A) in that they suffered impairment to the integrity or availability of a program or system, recklessly caused damage, incurred expenses for technical support, lost customers and goodwill.

185. Pursuant to this fraudulent plan Defendants with intent to defraud accessed the protected computers of the Plaintiff by means of such access furthered the intended abuse, in that the password settings of Plaintiffs server computers were disabled. In doing so allowed anyone to enter the customer files with the banking information or Credit Card numbers. Also the sales of the company were made public.

186. Defendant's access was without authorization, in that authorization was obtained fraudulently and was therefore void, or in excess of authorized access.

187. Defendants unauthorized access and review of the contents of a password protected web site constitutes violations of both the Wiretap Act, 18 U.S.C. (Sections) 2510-2520, and the Stored Communications Act, 18 USC (Sections) 2701-2710.

188. Robert Novak suffered damage as a result of Defendants violation of 18 U.S.C. (Section) 1030(a)(4), (g) in that they suffered impairment to the integrity or availability of a program or system, incurred expenses for technical support, lost customers and goodwill. Robert Novak's damages individually, and the aggregate damages of petswarehouse.com, exceeded $5,000.

Claim Eight - Offenses Against Computer Users in Violation of New York's Computer Crimes Act.

189. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

190. Defendants willfully, knowingly, and without authorization , have been associated with an unlawful enterprise through a pattern of accessing or causing to be accessed Robert Novak's computers and computer system in violation of New York's Computer Crimes Act, (Section ) 156.05, Unauthorized use of a computer, (Section) 156.10 Computer trespass, and (Section) 156.30 Unlawful duplication of computer related material, (Section) 156.20 computer tampering in the second degree, (Section) 156.25 computer tampering in the first degree, (Section) 156.30 Unlawful duplication of computer related material.

191. Defendant's actions in associating themselves with an unlawful enterprise have damaged Robert Novak's computers and computer system thereby damaging Robert Novak.

Claim Nine - Trespass to Personal property or Chattels in Violation of Common Law

192. Each of the foregoing allegations in incorporated herein by reference and reasserted as though fully set forth at length.

193. The computers and computer system that comprise Robert Novak's computer systems system are the personal property or chattels of Robert Novak.

194. Defendants have intentionally and repeatedly obtained access to and made use of this personal property in order to defame Plaintiff's for their own economic benefit.

195. Through their practice and pattern of repeatedly accessing Robert Novak's personal property, Defendants have wrongfully exercised dominion over Robert Novak's personal property in denial of Robert Novak's rights to its personal property.

196. Defendant's dominion over Robert Novak's computer system has deprived Robert Novak and Petswarehouse.com's customers of the legitimate use of this commercially valuable personal property.

197. Defendants constitute trespass to personal property or chattels in violation of common law.

198. Defendant's action shave caused Robert Novak damages in addition to immediate and irreparable harm for which it has no adequate remedy at law.

Defendants' actions have been undertaken with malice, oppression, and fraud. Punitive damages accordingly are justified.

Claim Ten - Conspiracy to Commit Product Disparagement and Trade Libel; Computer Fraud;
Concerted Action; Libel and Slander; and Tortious Interference.

199. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

200. Defendants shared an understanding, either expressed or implied to participate in a common plan or design by entering into an agreement to unlawfully harm Robert Novak, by, inter alia, (i) willfully, systematically, and maliciously disparaging and or defaming Robert Novak and the products and services provided pursuant to Robert Novak's Pets Warehouse Mark; (ii) mutually supporting each other in the perpetuation of; (iii) tortiously interfering with Pets Warehouse existing and prospective business relations with third parties who sue and make purchases on the Petswarehouse.com web site and stores; (iv) diluting and or tarnishing the value and goodwill of the Pets Warehouse Mark; (v) to disable Robert Novak's computer network web server and destroy the web server containing the Pets Warehouse.com web site. (vi) otherwise harming Robert Novak through the unlawful conduct alleged herein. Each of the defendants committed one or more overt acts pursuant to and in furtherance of Defendant's conspiracy to unlawfully harm Robert Novak.

201. Each of the Defendants committed one or more overt acts pursuant to and in furtherance of Defendants' conspiracy to unlawfully harm pets Warehouse, including, inter alia, (i) willfully, systematically and maliciously disparaging and/or defaming Pets Warehouse and the products and services provided pursuant to Pets Warehouse.com's and Pets Warehouse mark as described herein; (ii) creating commercial banner advertisements infringing on the mark and raising monies from those commerce campaigns for the continual conspiracy to support the illegal and tortious acts alleged herein; (iii) making public posts on various chat rooms, republishing them daily and media outlets to publicize the false and defamatory statements alleged herein; (iv) meeting among all Defendants to discuss the unlawful conduct alleged herein; and Developing in concert with others web sites purposely cybersmearing PetsWarehouse.com and Robert Novak; (v) unlawfully hacking/cracking into Robert Novak's computer network web server and viewing, tampering, deleting and other acts not yet determined to the Petswarehouse.com website.

202. Pursuant to and in furtherance of Defendants' conspiracy, Defendants have disparaged pets Warehouse.com's products and services provided pursuant to its Pets Warehouse brand.

203. Defendants have disparaged Pets Warehouse.com's products and services provided pursuant to its Pets Warehouse brand by, inter alia, the tortious conduct complained of herein, including, inter alia, the tortious conduct alleged in Claim One, Two, Three, Four, Five, Seven and Ten.

204. Such tortious conduct, included specifically, inter alia, the defamatory and disparaging statements alleged Claim Six above, which allegations are specifically incorporated herein by reference and made a part hereof.

205. Each these defamatory and disparaging statements are factually false, were published to third parties, were made with actual malice and/or knowledge of the falsity of such statements to harm pets Warehouse, published with ill will and hatred towards Pets Warehouse.

206. Pursuant to and in furtherance of the conspiracy, Defendants have interfered with Pets Warehouse.com's current and prospective contracts.

207. As a direct and proximate result of the publication of Defendants' defamatory statements described herein, trade libels, and contractual interferences, Pets Warehouse.com has suffered commercial injury to its business, reputation, and goodwill, including, inter alia, general and special damages in the form of loss of sales and loss of goodwill and reputation.

Claim Eleven - Three Intentional Infliction of Emotional Distress; Robert Novak

208. Each of the foregoing allegations is incorporated herein by reference and reasserted as though fully set forth at length.

209. The acts and omissions of defendants, jointly and severally, in publishing false information about plaintiff Robert Novak with knowledge that the information was false, or with reckless disregard for whether it was false, constituted extreme and outrageous conduct.

210. As a direct and proximate result of the acts and omissions of defendants, jointly and severally, plaintiff, Robert Novak suffered severe emotional distress, including but not limited to headaches, nausea, nervousness, anxiety, embarrassment, humiliation, and mental distress. Wherefore, plaintiff Robert Novak demands judgment against defendants, jointly and severally, in the form of damages in the amount of One Dollar ($1.00) in nominal damages, One Million Dollars ($1,000,000.00) in compensatory damages, and One Million Dollars ($1,000,000.00) in punitive damages; and in the form of an award to plaintiff Robert Novak of his costs in this action and such further relief as justice requires.

WHEREFORE, Robert Novak respectfully requests judgment on Claim One, Claim Two and Claim Three as stated, that this Honorable Court enter judgment in favor of Robert Novak and award Robert Novak additionally the following relief:

(1) Actual damages suffered by Robert Novak as a result of the unlawful conduct complained of herein; (2) Disgorgement of all monies, including, but not limited to, all monies obtained by fundraising schemes which diluted Pets Warehouse's mark as a necessary part of the scheme, raised by Defendants as a result of the unlawful conduct complained of herein; (3) Statutory damages, as permitted by the Lanham Act and Copyright Act, augmented as a result of Defendants' willful and unlawful conduct complained of herein; (4) Punitive damages, as permitted by law, as a result of Defendants' willful and malicious conduct complained of herein; (5) A permanent injunction enjoining Defendants' further unlawful conduct; (6) Attorneys' fees; (7) Costs; and (8) Such other and further relief as this Court deems just and appropriate.

Special damages

JURY TRIAL DEMANDED

Respectfully submitted,

Robert Novak, Plaintiff
1550 Sunrise Highway
Copaigue, New York 11726
1-631-789-5400 / FAX 78.9340

Dated: Copaigue, New York
March 25, 2002