November 15, 2007
VIA EXPRESS MAIL AND EMAIL
Attn: Richard Kyanka
webmaster@somethingawful.com
RE:
Infringement of ASSASSINS CREED Mark and Jade Raymonds Personal, Privacy, and Publicity Rights
Dear Mr. Kyanka:
We are counsel to Ubisoft Entertainment S.A. (Ubisoft), publisher of the popular video game ASSASSINS CREED and employer of Ms. Jade Raymond (Ms. Raymond). Ubisoft is also the owner of the following U.S. trademark applications for the ASSASSINS CREED mark (the Mark): Serial No. 78850944; Serial No. 78866696; and Serial No. 78850968. In consequence of Ubisofts extensive efforts and expenditures, substantial goodwill has been built up for Ubisoft and the products and services sold under the Mark, and the ASSASSINS CREED game is one of the most widely anticipated games of the year.
Ubisoft has recently learned that the extremely offensive pornographic image (the Image) accessible at
http://sabretooth.mirror.waffleimag...dd47ceb2a5.jpg, a copy of which is attached hereto, is being used on your website located at
http://www.somethingawful.com and/or other related sites, including, but not limited to,
http://forums.somethingawful.com (collectively, the Site). Such Image and misuse of the ASSASSINS CREED mark constitute trademark infringement, dilution, and unfair competition in violation of common law trademark rights, the Lanham Act, 15 U.S.C. §§1125(a) and 1125(c), and state law.
Furthermore, the Images blatant, vile, and unauthorized misappropriation of Ms. Raymonds name and likeness, and your conduct in using the Image on your Site, have caused immeasurable harm to Ms. Raymonds reputation and career, and constitute an egregious infringement of Ms. Raymonds personal rights and privacy rights. The Image and your conduct also constitute an egregious unauthorized commercial exploitation of Ms. Raymonds rights of publicity in violation of, without limitation, her common law rights of publicity and California Civil Code §3344, which provides in relevant part:
Any person who knowingly uses anothers name, .., photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such persons prior consent
shall be liable for any damages sustained by the person or persons injured as a result thereof.
It is well established that a person who commercially exploits the name or likeness of someone without their consent is liable for all of the damages caused thereby. Additionally, the Image and your conduct in using the Image on the Site constitute unfair business practices and false advertising in violation of the California Business and Professions Code; intentional infliction of emotional distress; a violation of the Lanham Act, 15 U.S.C. §1125(a); and harassment, which is a criminal offense.
Please also note that any failure to comply with applicable privacy laws may result in direct action against you by the Federal Trade Commission, in addition to other litigation.
Ubisoft hereby demands that you immediately: (1) permanently remove the Image from your Site, databases and servers and prevent any further uploading or display thereof; (2) permanently cease and desist all unauthorized use and hosting of images using the ASSASSINS CREED mark and Ms. Raymonds name and/or likeness; (3) provide us with the name and contact information of the person who originally created and/or posted the Image; and (4) complete, execute, and return to me the enclosed Declaration by November 16, 2007 to confirm that you are complying with Ubisofts demand.
While Ubisoft hopes to resolve this matter quickly and without resort to further legal action, Ubisoft reserves all rights to seek appropriate legal relief, including attorneys fees, injunctive relief, statutory damages, costs, and enhanced damages.
Sincerely,
David Anderson
for Nixon Peabody LLP
Dave Anderson
Nixon Peabody LLP
555 West 5th Street, 46th Floor
Los Angeles, CA 90013
(t) 213-629-6095
(f) 866-532-8491
dlanderson@nixonpeabody.com
