2165 S. Avenida Planeta
Tucson, Arizona 85710
Attorney Pro Se for Plaintiff Charles Carreon
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
MATTHEW INMAN, INDIEGOGO, INC., NATIONAL WILDLIFE FEDERATION, AND AMERICAN CANCER SOCIETY,
and Does 1 – 100,
KAMALA HARRIS, Attorney General of the State of California,
A Person To Be Joined If
Feasible Under F.R.Civ.P. 19.
Case No.: CV-12-3112-EMC
FIRST AMENDED COMPLAINT FOR INJUNCTIVE RELIEF TO IMPOSE CONSTRUCTIVE CHARITABLE TRUST AND REQUIRE ACCOUNTING. FOR DAMAGES FOR TRADEMARK INFRINGEMENT AND CYBERVANDALISM, AND FOR INJUNCTIVE RELIEF TO ENJOIN FURTHER INFRINGEMENT AND CYBERVANDALISM
For his first amended complaint against defendants Matthew Inman (“Inman”) and Indiegogo, Inc. (“Indiegogo”), jointly referred to sometimes herein as the “Fundraising Defendants,” and the National Wildlife Federation (“NWF”) and the American Cancer Society (“ACS”), jointly referred to sometimes herein as the “Charitable Organization defendants”, Does 1 – 100, in which Kamala Harris, Attorney General of the State of California (sometimes referred to herein as the “AG,” is named for purposes of joinder under F.R.Civ.P. 19 as a person to be joined if feasible, plaintiff Charles Carreon (“Plaintiff”), alleges:
1. This is an action for infringement of a federally registered trademark pursuant to 15 USC §1114, unfair competition under California Business & Professions Code § 17200, et. seq., and violations of the Supervision of Trustees and Fundraisers for Charitable Purposes Act as amended by the Nonprofit Integrity Act California Government Code §§ 12580, et seq. and the Charitable Solicitation Disclosure Law, California Business & Professions Code §§ 17510, et seq.
2. This Court has jurisdiction over this action pursuant to: 28 USC §§ 1331 and 1338(a) and (b), and 15 USC §1121, as an action for violations of the Lanham Act, 15 USC §§ 1051, et seq., 28 USC § 1332(a)(1), and has pendent, supplemental and ancillary jurisdiction pursuant to 28 U.S.C. § 1367 of state law claims arising from a common nucleus of operative fact joined with a substantial and related claim under the trademark laws of the United States, 15 USC §§ 1051, et seq. Further, this Court has diversity jurisdiction as the amount in controversy exceeds $75,000 and the plaintiffs and defendants are diverse. Further, this Court has jurisdiction under the United States Declaratory Judgment Act, 28 USC §§2201 and 2202.
3. Venue is proper under 28 USC § 1391(b)(2) because a substantial part of the events or omissions giving rise to the claim occurred at the premises of Indiegogo, and all of the property that is the subject of the action is situated within the Northern District of California at 301 8th Street, San Francisco, California 94117.
4. Pursuant to L.R. 3-2(c), intradistrict assignment of this Intellectual Property Action is made on a District-wide basis.
5. Plaintiff is an individual residing in Tucson, Arizona, and a member of the California State Bar Association with an Internet website at http://www.charlescarreon.com and a Twitter account at @charlescarreon. Defendant Inman is an individual residing in the State of Washington who runs a comic website at http://www.TheOatmeal.com and various related enterprises. Defendant Indiegogo is a corporation incorporated in the State of Delaware, registered to do business in the State of California pursuant to Cal. Corp. Code § 2105 as Entity No. C3054414 in the State of California, doing business in the State of California.
6. Kamala Harris is the Attorney General for the State of California, named as a party that should be joined if feasible under F.R.Civ.P. 19 because pursuant to Cal. Gov. Code § 12591, her presence is necessary, not for the establishment of a charitable trust as prayed herein, but for its termination, that will be necessary in order to conclude the action by final judgment. Section 12591 provides:
“Nothing in this article shall impair or restrict the jurisdiction of any court with respect to any of the matters covered by it, except that no court shall have jurisdiction to modify or terminate any trust of property for charitable purposes unless the Attorney General is a party to the proceedings.”
7. This Court has general personal jurisdiction over Indiegogo, that markets itself as “the world’s funding platform,” based on its corporate presence in California, its operation of the transactional Internet website at http://www.indiegogo.com (the “Indiegogo Site”) in California, and its pervasive business activity in California. This Court has general jurisdiction over Inman due to his pervasive marketing of Internet digital products through various websites, including but not limited to http://www.theoatmeal.com (“Inman’s Sites”) that are purposefully directed to California consumers, and earn many thousands of dollars in transactions with California residents. The Court has specific personal jurisdiction over Inman, because in order to accumulate the property that is the subject of this action, Inman contracted with Indiegogo as further alleged infra, and specifically directed an Internet fund-raising campaign linked to the California-based Indiegogo Site at http://www.indiegogo.com/bearlovegood (the “Bear Love” campaign) toward California consumers, and to Internet users nationwide, through the communicational instrumentalities of interstate commerce within this judicial District. The Charitable Organization defendants are registered with the Attorney General of the State of California as charitable organizations, and purposefully direct their fundraising activities at the residents of the State, taking advantages of the privilege of doing business within the jurisdiction. Wherefore all of the named defendants, and each of them, have purposely availed themselves of the laws of the State of California operative within this judicial District.
8. The contract entered into between Inman and Indiegogo is a clickwrap online agreement, the full text of which appears online at http://www.indiegogo.com/about/terms (the “Indiegogo Contract”), attached as Exhibit A. Pursuant to the Indiegogo Contract, Inman and Indiegogo each became the agents of the other, in an exchange of consideration that benefited both. Paragraphs 3 – 5 of the Indiegogo Contract set forth the financial details of the agency, in which Inman is designated as the “Project Entity” that will receive all of the “Contributions” elicited through Indiegogo’s “crowdfunding” mechanism, minus “a 9% marketplace processing fee retained by Indiegogo,” of which 5% will be rebated back to Inman when he reaches the funding goal, for a net take of 96%:
3. To receive Contributions, your Project Entity must establish an account (a "Funding Account") with the payment processor designated by Indiegogo at the time you post your Project (the "Processor"). You understand and agree that your Funding Account will be governed by your agreement with the Processor, and that Indiegogo shall have no liability for your Funding Account or your transactions or interactions with the Processor.
4. All Contributions made to a Project will be directed to the Project Entity's Funding Account, less a 9% marketplace processing fee retained by Indiegogo. All Contributions paid to a Project Entity will constitute "Project Funding," and the Indiegogo fee and all other Project Funding requirements will apply. Indiegogo is not responsible for any error or omission in the Funding Account information you provide. Unless automated by the Processor, Project Funding less 3rd party processing fees will be disbursed from the Funding Account to the Project Entity's bank account according to the Project's disbursement details (set in the Funding section of the Project Profile). All necessary fund transfers will be initiated within 5 business days of the campaign end date. It can then take up to 5 business days for the disbursed funds to arrive in your account.
5. When you reach your Campaign Deadline, your Funding Request will automatically close and no more Contributions will be accepted for your Project. You may make a new Funding Request any time after the end of your last Funding Request closes. If you reach your Campaign Goal by your Campaign Deadline, Indiegogo will pay you a 5% rebate on all funds raised during the campaign. Payments will be included in a funds transfer that will be initiated within 5 business days of the campaign end date. It can then take up to 5 business days for the disbursed funds to arrive in your account.
9. Pursuant to the Indiegogo Contract, Indiegogo provided Inman with access to its “worldwide crowdfunding system,” that includes Internet software that gave Inman “Global Exposure,” and “one-click social media integration, direct email and announcement features” that “make it easy to spread the word, raise awareness and increase funding.”
10. In keeping with its do-gooder image, the Indiegogo Contract purports to impose the following limitations on Inman’s commercial speech:
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; ….
11. Indiegogo has acquiesced in Inman’s breach of the foregoing provision, all to the detriment of the Plaintiff and the public, as alleged further herein.
12. Inman is an expert in the use of Internet mass-communication tools, and has mastered these tools as instruments of commercial profit, harnessing the global reach and scope of Internet communications to reach vast audiences with messages that, as alleged infra, are unsuitable vehicles for marketing charitable campaigns.
13. Indiegogo, as set forth in the article on the Indiegogo website, “8 Ways to Drive Traffic to Your Campaign With Social Media,” leveraged Inman’s use of mass-communication tools, who utilized them in a reciprocal agency relationship pursuant to which each was fully responsible and liable for the nature and effect of the communications that Inman formulated and Indiegogo distributed:
a. Direct Email from Indiegogo
g. Indiegogo widgets that add campaign banners to Inman’s websites
14. Indiegogo also provided Inman with Analytics tools to track the Bear Love campaign statistics.
15. Pursuant to the Indiegogo Contract, Inman agreed to indemnify Indiegogo for any breaches of the Indiegogo Contract, agreed that Indiegogo’s services are solely based in California, and agreed that any claim or dispute arising out of the Indiegogo Contract would be decided under California law and in California.
16. The full extent of the facts linking the fictitiously named defendants Does 1 through 100 with the matters alleged herein, and/or the true names or capacities, whether individual, corporate, partnership, associate, member or otherwise of said fictitiously named defendants, are unknown to Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiff is informed and believes and thereon alleges that each of the defendants designated herein as Doe 1 through 100 negligently, wantonly, recklessly, tortiously and unlawfully committed the acts that proximately caused injury and damages to Plaintiff as alleged herein. Plaintiff will hereafter seek leave of court to amend this complaint to allege said defendants’ true names and capacities when the same have been ascertained.
17. Plaintiff alleges, on information and belief, that each defendant named herein, including those named as Does, is and at all relevant times mentioned was, the agent, servant, co conspirator, advertiser, and/or employee of each of the other Defendants and, in doing the things alleged herein, was acting in the course and scope and with the knowledge of each of the other named Defendants. Plaintiff further alleges on information and belief that each Defendant named herein aided and abetted the others by authorizing and/or ratifying the acts herein alleged.
CALIFORNIA LAW GOVERNING CHARITABLE CONTRIBUTIONS
18. In 1959, California enacted the “Supervision of Trustees and Fundraisers for
Charitable Purposes Act.” Calif. Government Code Sections 12580 et seq., (the “Act”), modified by the Nonprofit Integrity Act of 2004 (the “NIA”). In 1972, the California legislature decided the best protection against solicitation fraud was to require substantial, comprehensive registration and disclosure procedures. To promote public education about charitable solicitation costs through disclosure to the donor, California passed the “Charitable Solicitation Disclosure Law.” Calif. Business & Professions Code Sections 17510 et seq. (the “CSDL”).
19. The Act requires all charitable organizations to “establish and exercise control” over their own fundraising activities, and over all fundraising activities conducted by others for their benefit. Charitable organizations operating in California must approve all written contracts for fundraising on their behalf. Cal. Govt. Code § 12599.6(b).
20. Cal. Govt. Code § 12599(a) defines commercial fundraisers:
Commercial fundraiser for charitable purposes" means any individual, corporation, unincorporated association, or other legal entity who for compensation does any of the following:
(1) Solicits funds, assets, or property in this state for charitable purposes.
(2) As a result of a solicitation of funds, assets, or property in this state for charitable purposes, receives or controls the funds, assets, or property solicited for charitable purposes.
(3) Employs, procures, or engages any compensated person to solicit, receive, or control funds, assets, or property for charitable purposes.”
21. Subsection (b) of Section 12599 provides in relevant part: “A commercial fundraiser for charitable purposes shall, prior to soliciting any funds, assets, or property … in California for charitable purposes, or prior to receiving and controlling any funds, assets, or property, including salvageable personal property, as a result of a solicitation in this state for charitable purposes, register with the Attorney General's Registry of Charitable Trusts on a registration form provided by the Attorney General.” Subsection (c) requires commercial fundraisers to file yearly accountings pursuant to subsection (d) that disclose (1) total yearly revenue, (2) the fee or commissions charged, (3) salaries paid to their officers and employees, (4) fundraising expenses, (5) distributions to the identified charitable organization or purpose, and (6) the names and addresses of any director, officer, or employee who are of charitable fundraisers that also serve as directors, officers or employees of charitable organizations.
22. Section 12599(f) provides in relevant part:
“Failure to comply with these registration or annual renewal and financial reporting requirements shall be grounds for injunction against solicitation in this state for charitable purposes and other civil remedies provided by law.” (Emphasis added.)
23. Section 12599(m) provides:
“A commercial fundraiser for charitable purposes shall not solicit in the state on behalf of a charitable organization unless that charitable organization is registered or is exempt from registration with the Attorney General's Registry of Charitable Trusts.”
24. Section 12599(f) specifically prohibits charitable fundraisers from conducting solicitation campaigns in violation of the Act, committing unfair and deceptive acts, engaging in fraudulent conduct, using any name that implies a contribution is for a particular charitable organization, falsely telling donors that a contribution is for a charitable organization, or will be used for a charitable purpose, or misrepresenting a person as having endorsements that they do not have.
25. Pursuant to Section 12599(h), “[n]ot less than ten (10) days prior to the initiation of a solicitation campaign … a commercial fundraiser for charitable purposes shall file with the Attorney General’s Registry of Charitable Trusts a notice” on a prescribed form, setting forth the following:
“(1) The name, address, and telephone number of the commercial fundraiser for charitable purposes.
(2) The name, address, and telephone number of the charitable organization with whom the commercial fundraiser has contracted.
(3) The fundraising methods to be used.
(4) The projected dates when performance under the contract will commence and terminate.
(5) The name, address, and telephone number of the person responsible for directing and supervising the work of the commercial fundraiser under the contract.”
26. Section 12599(i) requires “a commercial fundraiser for charitable purposes and a charitable organization” to enter into a written contract that shall be available for inspection by the Attorney General “for each solicitation campaign, event, or service, that shall be signed by the authorized contracting officer for the commercial fundraiser, and by an official of the charitable organization who is authorized to sign by the organization's governing body.” The requirements of such a written contract include provisions that give the charitable organization important rights of control over any campaign, including, in subsection (i)(12)(c), the right to cancel campaigns that “conduct fundraising activities in a manner that causes or could cause public disparagement of the charitable organization’s good name or good will.” (Emphasis added.)
INMAN AND INDIEGOGO ARE NOT REGISTERED WITH THE AG TO SOLICIT
ON BEHALF OF THE NATIONAL WILDLIFE FEDERATION, THE AMERICAN CANCER SOCIETY, OR ANY CHARITABLE ORGANIZATION, IN CALIFORNIA
27. Inman and Indiegogo are commercial fundraisers for charitable purposes within the meaning of Cal. Govt. Code § 12599(a).
28. Inman and Indiegogo are not registered with the Attorney General’s Registry of Charitable Trusts pursuant to § 12599(b).
29. Inman and Indiegogo have not filed the disclosures required by § 12599(c).
30. Inman and Indiegogo have not filed the annual reports required by § 12599(d).
31. Inman and Indiegogo are not exempt from registration, and therefore pursuant to subsection § 12599(m), they are prohibited from soliciting “in the state on behalf of a charitable organization.”
32. Inman and Indiegogo did not enter into the written contract with the NWF and/or the ACS, required by § 12599(i).
33. Inman and Indiegogo did not provide the ten-day notice to the Attorney General required by § 12599(h).
INMAN’S CONDUCT DISPARAGES THE IMAGE OF THE CHARITABLE DEFENDANTS AND DAMAGES CHARITABLE FUNDRAISING
34. Inman is not a fit person to design and administer charity fundraising, and Indiegogo acted unlawfully in making him its agent for the promotion of the Bear Love campaign. Inman described how he provokes his fans into sending him “massive traffic” in an online interview published January 6, 2011:
Inman: I work for myself and really no one can control what I say. So usually I tell them that I slept with their mom or I say the most vile, awful thing I can think of. If you read my Twitter account, it is like Hitler’s port-a-potty. It’s the worst thing that you’ve ever seen, just this awful stuff that I say to my critics on there. Just to troll them, mostly. So that’s usually how I respond to it. Like a drunk 15 year old, I think, is the best way to put it....
Interviewer: What about in the beginning when you were going into Digg and you knew that if you won this group of people over, they’d send you massive traffic and if you turned them into haters, they’d bury you and you wouldn’t get anything from them. At that point, weren’t you nervous?
Inman: Yeah. At that point, I wouldn’t have gotten on Digg and been like, “Hey, your mom and I made love under the stars. Ha ha ha. I liked it.” That probably wouldn’t go over so well. But now I’m kind of at this comfortable level. And part of my writing style and the persona that I have online is sort of this crass, bloated, obese, drunk monster. (Emphasis added.) http://mixergy.com/matthew-inman-oatmeal-interview/
35. Inman has announced his vindictive response to his real and imagined enemies by posting, within the source code of all of the webpages on his main website, http://www.theoatmeal.com, the following image and text, depicting himself as a pterodactyl that will “ptero-you a new asshole.”
36. Following the link to http://pterodactyl.me leads the Internet user to a page on TheOatmeal.com where a video created by Inman and Sarah Donner depicts Inman, in his character as a carnivorous, prehistoric flying reptile that first rips the intestines out of a man’s anus, then flogs him with his entrails, then steals a pineapple from a boy, tears his head off, flings it at a girl and knocks her head off, then grinds the girl’s head up in a wood-chipper, blends it with the pineapple, and drinks the grisly cocktail:
Inman’s followers are by and large technologically savvy young people eager to follow the latest trend, who embrace Inman’s brutal ideology of “tearing you a new asshole,” and believe that people who “don’t get the Internet” are properly fair game for the acts of cybervandalism alleged in the Second and Third Claims for Relief alleged hereinbelow. In addition to being an unsuitable person to run a charitable fundraising campaign, Inman is not an IRS-approved 501(c)(3) charitable organization, and thus could not issue tax-deductible donation receipts to donors. Thus, when Indiegogo and Inman launched the Bear Love campaign, naming the NWF and ACS as beneficiaries, they knew or should have known that reasonable consumers/donors would be mislead into thinking that their donations would be tax-deductible, when in fact, they both knew that donations to the Bear Love campaign would not be tax-deductible.
THE “BEAR LOVE” CAMPAIGN
37. On June 11, 2012, Defendants published the webpage now appearing at http://www.indiegogo.com/bearlovegood, as shown in Exhibit B attached hereto (the “Bear Love campaign webpage”).
38. The Bear Love campaign webpage states as follows:
“I run a comedy website called The Oatmeal.
Last year I wrote a blog post about another website called FunnyJunk which stole a bunch of my comics and hosted them on their website without giving me credit. They apparently didn’t like my blog post and recently FunnyJunk sent me a letter stating that unless I pay them $20,000 in damages they’re going to file a federal lawsuit against me. You can view the letter along with my response here.
Instead of mailing the owner of FunnyJunk the money, I'm going to send the above drawing of his mother. I'm going to try and raise $20,000 and instead send it to the National Wildlife Federation and the American Cancer Society.
I’m hoping that philanthropy trumps douchebaggery and greed.
More information here.” (Emphasis added.)
39. By making the foregoing bolded statement, Inman and Indiegogo jointly misappropriated the popularity of the NWF and ACS as reputable charitable organizations, lead donors to believe that donations to the Bear Love campaign would go exclusively to the NWF and ACS, and lead donors to believe that donations to the Bear Love campaign would be tax-deductible.
40. In order to accomplish the true purpose of the campaign, which was to initiate a hate campaign against Plaintiff, and induce donors to make donations to the NWF and ACS to express approval of Inman’s hate campaign against Plaintiff, Inman drew and Indiegogo published a misogynistic cartoon depicting an obese female dressed in her underwear, with pendulous breasts popping out of her brassiere, an enormous posterior distended by an overstretched thong, rouged cheeks, and a crudely-lipsticked mouth, calling out to an apparently disinterested brown bear half her size, “COME HURR AND LOVE MEEEE!” He described it as a “drawing of your mom seducing a Kodiak bear.” A true copy of the webpage is attached as Exhibit B.
41. Collecting funds to donate to the National Wildlife Foundation and the American Cancer Society was not Inman’s true purpose in launching the Bear Love campaign. Rather, the Bear Love campaign was launched to utilize Indiegogo’s Internet mass-communication tools to revile Inman’s legal adversaries, Plaintiff and his client, and initiate a campaign of “trolling” and cybervandalism against them which has borne abundant toxic results, including criminal misconduct by Inman’s Internet followers against Plaintiff in the form of repeated events of computer hacking and false personation in violation of Cal. Penal Code § 529, all while pulling in lots and lots of “donations.”
42. Inman made clear his intention to utilize the Charitable Organization defendants as a “human shield” for his assault on Plaintiff and his client when he summed up his attack with the following unequivocal statement:
43. Inman’s insult is much more than a profane witticism. It is a frank declaration of his wrongful, uncharitable motive. It is a non-sequitur that underscores his intent to create a toxic hybrid of malicious intent and “philanthropy.” There is no such thing as a “philanthropic, kind-spirited way” to say “F*ck off.” There is only one way to say it, and one purpose for saying it, and that purpose cannot be lawfully associated with tax-exempt charitable solicitation in the State of California.
44. A day after Inman and Indiegogo launched the Bear Love campaign, on June 12, 2012, at around 7:38 a.m., the campaign had already far exceeded its funding goal of $20,000, raising $104,029, and Plaintiff requested that Indiegogo suspend the campaign on the grounds that it violated its terms of service, sending an email through the Indiegogo website, citing the fact that Inman was violating the provisions of the Indiegogo contract quoted at paragraph 10 above. Venality triumphed over discretion and decency, however, and Indiegogo did nothing to alter the tone or manner of the campaign. Indeed, as news of Plaintiff’s efforts to “block charity” hit the Internet, the negative spin went wild, and Plaintiff was excoriated as the latest Internet victim to self-immolate due to his lack of understanding of “the ways of the Internet.”
45. The Charitable Organization defendants are both registered charitable organizations with the Office of the Attorney General who appear in the Charitable Registry. Neither NWF nor ACS have entered in the written contracts statutorily mandated by Section 12599(i) with Inman or Indiegogo, that would secure their rights to: exercise control over the Bear Love campaign; receive a pre-agreed amount of revenue from the campaign; and assure that the campaign is not conducted in a manner that could cause public disparagement of the Charitable Organization defendants’s good name and good will.
46. Although the Charitable Organization defendants were notified by Plaintiff in writing about the fact that the “Bear Love” campaign alleged infra is being conducted by Inman and Indiegogo in violation of the Act, and that the campaign is being conducted in a manner that could cause public disparagement of the Charitable Organization defendants’s good name and good will, neither the ACS or the NWF have acted to disavow their association with the Bear Love campaign, thus lending their tacit approval to the use of their names to the Bear Love campaign.
47. As of the date of this filing, neither the ACS nor the NWF have communicated with Plaintiff. Nor have either of the Charitable Organization defendants made any public statement; wherefore, the defendants, the general public, and the media have accepted the silence of the Charitable Organization defendants as tacit approval of the Bear Love campaign. On information and belief, Inman has stated that the Charitable Organization defendants approve of the Bear Love campaign, which further brings the ACS and the NWF into disrepute in the minds of right-thinking prospective donors.
48. As of June 24, 2012, Indiegogo, that receives contributions using credit card payments or PayPal, was reporting the full amount of the funds collected by the Bear Love campaign as $213,308, from over 14,136 donors, as recorded in Exhibit B. The Bear Love campaign is scheduled to continue until 11:59 p.m. on Monday, June 25, 2012, so the full amount of the funds that will be raised by the Bear Love campaign is an unascertained number well in excess of this Court’s jurisdictional requirement, hereinafter referred to as the “Charitable Fund.”
49. The purpose and effect of the actions initiated by Inman and published by Indiegogo as above-alleged has been to cloak a hate campaign in charitable appearance for purposes inimical to and inconsistent with charitable purposes by:
a. Falsely representing to donors that they had the endorsement of the Charitable Organization defendants for the Bear Love campaign;
b. Inducing the Charitable Organization defendants to grant post-hoc approval of the Bear Love campaign tacitly by public silence and privately by express encouragement of the Fundraising Defendants; and thereby
c. Bribing the Charitable Organization defendants to endorse a fundraising campaign to which neither would have lent its name if given prior notice of the purpose and manner of the campaign, and that both would have cancelled pursuant to Cal. Gov. Code § 12599(i) for operating “in a manner that causes or could cause public disparagement of the charitable organization’s good name or good will,” but for the inducement of receiving tainted money from the Charitable Fund.
50. The particular danger of Inman’s tactics is that they are wildly successful. The Bear Love campaign is on track to exceed Inman’s $20,000 goals by more than a factor of ten. Fueled with irrational hatred, it pushed into six figures in the first 48 hours, while many legitimate campaigns on Indiegogo, such as those to meet private health care needs -- raise modest four-figure sums over a much longer time period. See Exhibit D, a campaign for “My Kidney Transplant Fund” that has raised $3,570 in three weeks. If Inman’s deceptive methods, sanctioned by Indiegogo and tolerated by the Charitable Organization defendants, are given the green light simply because they get the fundraising job done, they will corrupt an already vulnerable industry. All manner of unregistered fundraisers will adopt Inman’s tactics. Needy charitable organizations will first be backed into fundraising campaigns without their knowledge, then bribed into winking at whatever bizarre, malevolent campaign will fill their treasury with spite donations. In place of legitimate charitable fundraising, unscrupulous, unregistered fundraisers like Inman will prosper as kingmakers who call the tune, inducing charitable organizations to dance to whatever grotesque melody they choose to play. Inman’s methods of fundraising will make true generosity an antiquated, outmoded reason for giving, and donating to satisfy spiteful motives, fueled by venomous Internet postings, will supplant the wholesome impulse to benefit others.
FIRST CLAIM FOR RELIEF
FOR IMPOSITION OF A CHARITABLE TRUST UPON THE PROCEEDS OF THE BEAR LOVE CAMPAIGN
SOLICITED BY VIOLATIONS OF THE ACT AND FALSE ADVERTISING IN VIOLATION OF B. & P. Code § 17500
Against Defendants Inman and Indiegogo
51. Plaintiff re alleges and incorporates by reference each and every allegation set forth herein as if set forth in full hereat.
52. The Bear Love campaign was conceived and operated in violation of California Business & Professions Code § 17500, that makes it unlawful for:
“[A]ny person … with intent directly or indirectly to dispose of … personal property or to perform services … of any nature whatsoever or to induce the public to enter into any obligation … to make or disseminate … over the Internet, any statement … connected with the proposed performance … which … by the exercise of reasonable care should be known, to be untrue or misleading ... as part of a plan or scheme with the intent not to sell … those services … as so advertised.”
53. Indiegogo and Inman are a for-profit entity and an individual operating a for-profit Internet business enterprise, acting as agents of each other. Indiegogo provided “global crowdfunding” services to Inman, in exchange for the effective 4% take set forth in paragraphs 3 – 5 of Exhibit A, with the remaining 96% to be paid directly to Inman’s “Funding Account.” Inman and Indiegogo jointly represented to donors that he was raising funds for the NWF and the ACS. In order to raise funds for the NWF and ACS, California state law required that Inman and Indiegogo be registered fundraisers, have prior authorization from NWF and ACS to conduct the fundraiser, have written contracts with the NWF and ACS, and comply with all reporting requirements, including having given the 10-day notice to the Attorney General before launching the campaign. Donors were entitled to believe, and did believe, that all Indiegogo donations were conducted lawfully. Donors therefore were likely to believe and believed that the Bear Love Campaign, with its slogan, “Bear Love Good – Cancer Bad,” was endorsed by the NWF and ACS. Indiegogo and Inman knew or should have known that the foregoing statement would mislead donors, and made the misleading statement with the intent to motivate donors to donate to the Bear Love campaign.
54. In order to induce donors to donate to the Bear Love campaign, Inman and Indiegogo, acting as each other’s agents, represented to all prospective donors that the NWF and the ACS would be the recipients of the Charitable Fund. This statement was a misrepresentation in violation of Section 12599(f), that Indiegogo and Inman had endorsements from the NWF and the ACS that they did not have.
55. Inman and Indiegogo knew or should have know that donors would reasonably infer from the misrepresentation that the campaign had the endorsement of the Charitable Defendants, that their donations to the Bear Love campaign would be tax-deductible. However, because Inman was the founder and operator of the Bear Love campaign, donations to the Bear Love campaign could not be, and were not processed through Indiegogo’s “non-profit PayPal system.” Thus, without a court order imposing a charitable trust upon the Charitable Fund, thus making them the property of the Charitable Organization defendants, donations to the Bear Love campaign will not be deemed tax deductible. As a practical matter, the way the transaction has been structured by Indiegogo, if Inman donates all of the funds to tax deductible charities, the entire benefit of the tax deduction will go to him, which would result in unjust enrichment, and deprive the donors of their fair share of the tax deductions they reasonably expected to receive when they donated to the Bear Love campaign.
56. When Inman and Indiegogo initially launched the Bear Love campaign, they identified only the NWF and the ACS as the beneficiaries of the campaign. This reasonably lead the public to believe that NWF and ACS would be the only beneficiaries of the campaign.
57. On or about June 13, 2012, Inman and Indiegogo disclosed on the “Updates” tab of the Indiegogo webpage of the Bear Love campaign that he had changed his mind and would direct some of the Charitable Fund to other charities: “I’m going to add 2 more charities to the list, in addition to the ACS and the NWF.” However, this subsequent “Update” was never announced on the main webpage for the Bear Love campaign, and indeed, was never seen by Plaintiff and other donors to the Bear Love campaign prior to their donation, as alleged infra. (Exhibit C.)
58. Thus, the initial announcement by Inman and Indiegogo not only had the tendency to mislead, but actually did mislead Plaintiff and other donors into donating to the Charitable Fund for the benefit of the ACS and the NWF, notwithstanding that Inman and Indiegogo’s contact permits Inman to dispose of the money in any manner he saw fit.
59. Plaintiff contributed to the Bear Love campaign with the intent to benefit the purposes of the NWF and the ACS, and did not intend to benefit any other unnamed charity, or to appoint Inman the selector of what charities should benefit from his largesse.  Plaintiff is acting on his own behalf and to protect the rights of all other contributors to the Bear Love campaign to fulfill their reasonable expectation of all donors that 100% of the money they contributed would go to the NWF and the ACS.
60. Indiegogo has no right to receive any portion of the Charitable Fund, and Inman is not entitled to receive any portion of the Charitable Fund, because they were not registered as a commercial fundraiser, had no written contract with the Charitable Defendants, and failed to provide the statutory notice to the Attorney General prior to its initiation of the Bear Love campaign. Further, Inman’s use of vile, despicable insinuations of bestiality directed toward the mother of Plaintiff and/or his client were unfair solicitations prohibited by Section 12599(f) of the Act, fighting words, and commercial speech published to induce financial transactions, none of which are entitled to constitutional protection, and perverted the socially-uplifiting purpose of public giving for the malicious, vindictive purpose of harassing and causing pecuniary damage to Plaintiff, as further alleged infra.
61. The funds collected by Indiegogo under the Bear Love campaign are subject to a charitable trust for the sole benefit of NWF and ACS pursuant to Section 12599(f) of the Act.
62. NFW and ACS have failed to perform their statutory duty to exercise authority over the Bear Love campaign.
63. The Fundraising Defendants and the Charitable Organization defendants are all "persons" within the meaning of California's Business and Professions Code § 17201.
64. The acts of the Fundraising Defendants as alleged hereinabove are acts of false advertising made unlawful by California's Business and Professions Code § 17500, in that, through publication on Inman’s Site and the Indiegogo site, donors to the Bear Love campaign were lead to believe that the Fundraising Defendants were authorized to solicit funds under California law for the Charitable Organization defendants, when in truth and in fact, in the exercise of reasonable care, the Fundraising Defendants should have known that this was untrue and misleading, and would tend to mislead a reasonable consumer.
65. Plaintiff and the other Bear Love campaign donors have been cheated out of their reasonable expectation that their donations to the NWF and the ACS would be tax deductible.
66. Inman has no lawful right, title or interest in the Charitable Fund, that has been gathered through violation of B. & P. Code § 17500, in defiance of the comprehensive regulatory scheme set forth at Cal. Gov. Code §§ 12580 – 12599.7, and in particular, the prophylactic strictures of Section 12599.
67. Plaintiff has made demand upon Inman to relinquish all right, title and interest to the Charitable Fund, which he has failed and refused to do; wherefore, Plaintiff and his fellow-donors have no remedy at law.
68. If not enjoined, Indiegogo will disburse the funds to Inman, who has no right, title or interest in the Charitable Fund, that was solicited in the names of the NWF and the ACS and is subject to a charitable constructive trust by operation of law.
69. Plaintiff and all other Bear Love campaign donors are entitled to receive receipts for their donations to the NWF and the ACS so that they may obtain the charitable tax deduction for donations to IRS 501(c)(3) organizations, and the NWF and the ACS should be ordered to issue receipts to each of the more than 14,000 donors.
70. After inducing donors to make donations to the Bear Love campaign, Inman induced donors to make purchases at TheOatmeal.com, exploiting the “halo effect” of his purported affiliation with the NWF and the ACS. Those purchases were therefore ill-gotten gains, subject to disgorgement.
71. Plaintiff and the other Bear Love campaign donors have no remedy at law; wherefore, injunctive relief pursuant to § 12599(f) of the Act, the imposition of a constructive trust pursuant to Cal. Gov. Code § 12599(g) and Cal. Civil Code § 2224, and Cal. Business & Professions Code § 17535 is required to secure a lawful disposition of the proceeds of the Bear Love campaign solely to the Charitable Defendants. Plaintiff requests an award of attorneys fees pursuant to Cal. Code of Civil Procedure § 1021.5 as a public attorney general benefitting the public interest in enforcement of the Act.
SECOND CLAIM FOR RELIEF
Use Of A False Designation In Violation Of Section 43(a)
of the Lanham Act, 15 U.S.C. § 1125(a)
Against Doe 1, aka “Modelista”
72. Plaintiff re alleges and incorporates by reference each and every allegation set forth herein as if set forth in full hereat.
73. Plaintiff holds a trademark on his name, Charles Carreon, USPTO Registration No. 3,749,709 for use in the provision of Legal Services, in Class 45.
74. Plaintiff has a Twitter account under the name “@charlescarreon.”
75. On June 14, 2012, Doe 1, an Internet user who goes by the name “Modelista” on the ArsTechnica.com website, registered the Twitter name “@Charles_Carreon,” and began publishing fake “tweets” on Twitter that were immediately attributed to Plaintiff. This was not only an act of trademark infringement, but also false personation in violation of California Penal Code § 529.
76. The fake tweets from @Charles_Carreon were abrasive and provoking to other Twitter users, and engendered immediate negative responses, having the effect of intensifying public hostility toward Plaintiff, and causing him irreparable harm in the marketplace for legal services. Immediately upon signing up for the @Charles_Carreon Twitter account, Modelista began slinging insults that were immediately interpreted by other Twitter users as proof that Plaintiff is a stupid and malicious lawyer bent on self-destruction.
77. On June 14, 2012, Plaintiff learned that he was being impersonated for malicious purposes when he received an email from a friendly Twitter user. Attached as Exhibit E are screencaptures of various Twitter exchanges in which Doe 1, aka Modelista, povoked other Twitter users. After receiving an authentication of identity letter from Plaintiff, on June 15, 2012, Twitter deactivated the fake Twitter account.
78. These infringements of Plaintiff’s trademark by Doe 1, aka Modelista, have actually caused confusion and mistake among consumers, have deceived consumers as to the affiliation, connection, or association of Doe 1 with Plaintiff, or alternatively and conjunctively, have confused, caused mistake among, and deceived consumers as to the affiliation, connection or association between Plaintiff and Doe 1. Such false designations have also caused confusion as to the origin, sponsorship, or approval of “tweets” attributed to “Charles_Carreon” on Twitter, and are likely to cause such confusion, mistake and/or deception among consumers in the future. Some of the tweets made by “@Charles_Carreon” were intended to, and did inflame other Twitter users to deride Plaintiff, because they were provocatively phrased for that purpose, including the following:
a. @Charles_Carreon to @Samuaraikintter: “I have backtraced the attack to Matt Inman’s Internet Address. He needs to stop the attack or I will need to escalate this.”
b. @ Charles_Carreon to @shellscape: “This comparison makes complete sense. Idiot.”
c. @ Charles_Carreon [responding to] @johnandrews: “You sir, are a dumbass. I am doing what any sane individual would do.
Another fake tweet disclosed Plaintiff’s private email address, so cybervandals could sign him up to random websites and send him hate-emails:
• @Charles_Carreon to all: “The contact form has been disabled: charlescarreon.com/temporarily-disabledun… Please contact me at email@example.com instead.
79. Inman promptly took advantage of Modelista’s fake tweets by himself tweeting:
a. Matthew Inman @Oatmeal: “It’s interesting to watch a man with his dick in a hornet’s nest try to solve the problem by tossing his balls in as well.”
80. After the Charles_Carreon account was disabled by Twitter, Doe 1, aka Modelista, by his or her own admission, willfully and with knowledge that the act was an infringement of Plaintiff’s Charles Carreon® mark, registered another Twitter name, “@CharlesCarron,” and continued publishing fake tweets that were intended to be attributed to Plaintiff, and were attributed to Plaintiff by other Twitter users.
81. By reason of the actions of Doe 1 aka Modelista, alleged herein, Plaintiff is likely to suffer irreparable injury to his business, good will and property. Plaintiff is entitled, pursuant to 15 U.S.C. § 1117, to recover from them the damages sustained and will sustain as a result of Defendants' wrongful conduct as alleged herein.
82. On information and belief, the above-alleged acts of infringement have been willful and taken without regard to the established rights of the Plaintiff.
83. Plaintiff is entitled pursuant to 15 U.S.C. § 1116, to an injunction restraining Inman and Doe 1, their officers, agents and employees, and all persons acting in concert with them, from engaging in any further acts of infringement in violation of the Lanham Act.
84. Plaintiff has no adequate remedy at law. Unless Defendants are enjoined from committing these unlawful acts as set forth above, Plaintiff will continue to suffer irreparable harm.
85. This is an exceptional case; wherefore Plaintiff is entitled to an award of reasonable attorney’s fees incurred in the prosecution of this action, pursuant to 15 U.S.C. § 1117.
THIRD CLAIM FOR RELIEF
Cybervandalism In the Nature of
Trespass to Chattels, False Personation, and Identity Theft
Against Does 2 - 100
86. Plaintiff realleges and incorporates herein by reference each and every allegation set forth herein as if set forth fully hereat.
87. Cybervandalism is the act of invading, trespassing upon, and damaging the personal digital property of another, invading a person’s privacy, and entangling them involuntarily in embarrassing, harassing, commercial and social transactions without their consent that expose them to further damage and, as alleged hereinbelow, even the risk of criminal prosecution and imprisonment. Cybervandalism is neither trivial nor innocent, and poses greater risks than ordinary vandalism, that usually stops with the destruction of personal or real property.
88. On June 13, 2012, at 9:28 p.m., one or more of the persons named as Does 2 – 100 engaged in the act of trespass to chattels as made unlawful in Thriftytel v. Bezenek, 46 Cal.App. 4th 1559, 1566 (1996), cracking the password on Plaintiff’s website at http://www.charlescarreon.com.
89. Plaintiff discovered the trespass immediately after it occurred because he was sitting looking at his computer screen when he received an email from the website software system, and was able to retain control of the website by immediately changing the password using the hyperlink in the email.
90. Plaintiff suffered damages due to the trespass in the form of expenses incurred as payments to his System Administrator and webdesigner to secure all of the necessary computers, and to migrate the http://www.charlescarreon.com website from its previous servers at Plaintiff’s office to a more secure facility off-site.
91. As of the time of this filing, in part due to the Twitter posting, and in part due to other postings of his email address on the Internet by Inman and or Does 2 – 100, Plaintiff has been signed up to the following websites using the firstname.lastname@example.org email address by Does 1 – 100. These signups are all without Plaintiff’s consent or knowledge, and count is presumably still rising. By creating these fake accounts, Does 2 – 100 will have the ability to continue infringing Plaintiff’s name and engaging in identity theft by creating user profiles and ordering goods and services for which third parties will hold Plaintiff responsible:
a. Saboom.com (pornography website)
b. Tube8.com (pornography site that spread malware including Trojan-PSW.Win32launch, Hack Tool:Win32/Welevate.A, and Adware.Win32.Fraud)
c. Dell.com (computer hardware website)
d. IFWNewsletters.com (newsletter website)
e. Baselinemag.com (newsletter website)
f. Club Nintendo
h. Olive Garden Newsletter
i. Mormon.org, Church of Jesus Christ of the Latter Day Saints
j. Ancestral Scotland
92. Plaintiff has received signup emails from all of the above companies, which are a nuisance. Plaintiff has also received a followup phone call from the Mormons, offering to personally deliver him a copy of the Book of Mormon. Plaintiff has received very large numbers of hate emails, some wishing him death by cancer, and many more forecasting the complete destruction of his professional life. Plaintiff has received voicemails from Dominos pizza wanting to confirm his ordering of pizzas that he in fact did not order. Plaintiff never experienced any such invasions of his privacy and quiet enjoyment before the Bear Love campaign.
93. Far more grave than the foregoing invasions of privacy, however, is the shadow of danger cast by the first two involuntary signups listed above. These present the risk of genuine legal peril requiring disclosure of the identities of the anonymous perpetrators, and the issuance of injunctive relief to bar them from future such conduct. These are the “Tube89.com” and “Saboom.com” signups.
94. The Tube89.com and Saboom.com signups pose a particular hazard to Plaintiff, because they are online sex sites in which fake users, posing as Plaintiff, could manufacture evidence of criminal conduct and conduct that constitutes evidence of moral turpitude that could be devastating to Plaintiff’s freedom and professional licensure. 
95. For example, on Tube8.com, members are allowed to “upload” explicit sexual images and video. Thus, Does 2 -100 have the ability to upload child pornography to Tube8.com, using Plaintiff’s name, that could lead to his criminal prosecution. Criminal prosecution for child pornography is swift and devastating, often resulting in the seizure of a defendant’s computers, the total destruction of their livelihood, long terms of imprisonment, and the total ruination of the defendant’s life. Indeed, filing this action is the only way to prove, conveniently and quickly to investigating law enforcement, that Plaintiff is not a Tube8.com user.
96. Similarly, on Saboom.com, Does 2 - 100 have the power to involve Plaintiff’s name with “Interactive porn – the ultimate sex game,” to establish a “profile with your own news feed” in Plaintiff’s name, and to “message other members & experience new adventures.” Plaintiff has been married to the same woman since 1974, has never signed up to a dating site, and does not want to have his name bandied about in an online forum peopled with “hot men and women.” Such a situation could result in serious embarrassment, legal entanglements and other cyber-nightmares.
97. The full extent of Plaintiff’s damage due to such conduct is unknown and will be subject to calculation as this action proceeds, and the complaint shall be supplemented to allege an amount susceptible of proof at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests entry of judgment in its favor and against Defendants as follows:
A. A permanent injunction:
1. Imposing a constructive trust under Cal. Civil Code § 2224 upon the Charitable Fund as a res gathered by the Fundraiser Defendants by means of misrepresentation, mistake and false advertising made unlawful under Cal. B. & P. Code § 17500;
2. Imposing a constructive trust under Cal. Gov. Code § 12599(g) upon the Charitable Fund as a res gathered by a the Fundraiser Defendants pursuant to solicitation for charitable purposes;
3. Enjoining Inman and Indiegogo from disbursing any of the Charitable Fund for any purpose without prior order from this Court pursuant to Cal. B. & P. Code § 17535;
4. Directing Indiegogo and Inman to pay the Charitable Fund into Court pursuant to Cal. B. & P. Code § 17535;
5. Directing Indiegogo and Inman to file an accounting of all the moneys in the Charitable Fund with the Attorney General;
6. Disbursing fifty-percent (50%) of the Charitable Fund to the National Wildlife Foundation;
7. Disbursing fifty-percent (50%) of the Charitable Fund to the American Cancer Society;
8. Ordering Indiegogo to halt all ongoing campaigns on the Indiegogo site currently operating in violation of California law and hold all funds in a charitable trust until Indiegogo registers with the California Attorney General as a charitable fundraiser and in all other ways complies with California law regulating charitable fundraising;
9. Ordering Indiegogo to cease any charitable fundraising that is unlawful under California law;
10. Ordering the National Wildlife Federation and the American Cancer Society to affirmatively require written contracts with all commercial fundraisers in the State of California, and to police the activities of fundraisers in order to prevent future abuses, false advertising, and unfair practices;
11. Requiring the National Wildlife Federation and the American Cancer Society to issue donation receipts to all of the Bear Love donors for purposes of obtaining a tax write-off for the amount of their donations;
12. Barring Inman from engaging in any activity as a charitable fundraiser in the State of California for a period of no less than three years;
13. Barring Doe 1, aka Modelista, from falsely personating Charles Carreon or using the Charles Carreon registered mark alone or in combination with other words, symbols or designs in any manner;
14. Barring Does 2 – 100, or so many of them as are discovered to be engaging in trespass to chattels, false personation, and identity theft, to cease and desist from such conduct, subjecting them to such civil penalties as may be warranted, and taking such other remedial action as the Court deems appropriate to remedy any harm caused;
B. An award of actual damages against Does 1 – 100, as suffered by Plaintiff in such amount as shall be established by proof, for damages caused due to the conduct alleged against said fictitiously-named defendants in the Second and Third Claims for Relief;
C. An accounting and disgorgement of Inman’s ill-gotten gains from all sales to Bear Love donors on TheOatmeal.com during the time period when the Bear Love campaign was actively soliciting donations on the Indiegogo website and directing donors to TheOatmeal.com for commercial purposes;
D. A finding that the infringements by Does 1 – 100 were willful, and/or that Plaintiff’s recovery is inadequate based on Defendants’ profits; wherefore treble damages are warranted pursuant to 15 U.S.C. § 1117(a);
E. A finding that this is an exceptional case, and that an award to Plaintiff of its full costs and reasonable attorney’s fees is therefore warranted pursuant to 15 U.S.C § 1117;
F. An order pursuant to 15 U.S.C. § 1116(a), requiring Inman, Indiegogo, the NWF, and the ACS to file with the Court and serve on Plaintiff within thirty (30) days after service of an injunction order as requested herein, a report in writing, under oath, setting forth in detail the manner and form in which they have complied with the Court's Order;
G. Punitive damages against Does 1 – 100 pursuant to California Civil Code § 3294; and,
H. Such other and further relief that this Court may deem just and proper.
Dated: July 23, 2012 CHARLES CARREON, ESQ.
By: CHARLES CARREON (127139)
Attorney Pro Se for Plaintiff
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a jury trial.
Dated: June 25, 2012 CHARLES CARREON, ESQ.
By: CHARLES CARREON (127139)
Attorney for Pro Se for Plaintiff
1. Virtually all the campaigns on Indiegogo are legally-conducted for worthy causes, aside from Indiegogo’s failure to register with the Attorney General. Plaintiff contributed to two other campaigns that appear to be in compliance with law. The Bear Love campaign is the exception.
2. As a former Oregon Deputy DA (Jackson County 1993-1995), and Federal Public Defender (CJA Panel, District of Oregon 1996 – 2000), Plaintiff has prosecuted and defended hundreds of criminal defendants, seen the inside of many Federal and State prisons, and is familiar with the draconian penalties attached to many cyber-crimes, so such perils are not at all speculative.