Case 4:15-cv-05011-EFS

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Filed 03/04/15

Scott W. Johnson
MENDOZA & JOHNSON, P.S.
Attorneys at Law
7135 W. Hood Place
Kennewick, WA 99336
(509) 374-1554
Attorney for Plaintiff
ALAN WHITE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Document 10

NO. 15-cv-05011-EFS

ALAN WHITE d/b/a Its Pawsible,

Plaintiff,

VS.

FIRST AMENDED COMPLAINT

FOR DECLARATORY
JUDGMENT OF NONINFRINGEMENT

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WAYNE PARKS,
ELIZABETH OSTROWSKI-PARKS,
and
"Its Pawsible Dog Training Center,
Inc.
Defendants.

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For its complaint, Plaintiff, Alan White (White), by and through his attorney Scott W.
Johnson, avers as follows:
THE PARTIES

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1. Alan White is an individual who operates the sole proprietorship Its Pawsible

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and Als Pawsible Dog Training (hereinafter Whites Its Pawsible) a dog training

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business organized and licensed under the laws of the State of Washington, with its

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principal place of business in Pasco, Washington, which is within the Eastern District of

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Washington. Whites Its Pawsible is, and was at all times herein mentioned, qualified

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to do business in the State of Washington. Whites Its Pawsible provides dog training

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to clients in the Tri-Cities area of Washington State. Whites Its Pawsible operates a

Case 4:15-cv-05011-EFS

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website for information about its dog training services in the Tri-Cities area of
Washington State. Whites Its Pawsible does not engage in internet marketing and

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does not sell products from its internet site.

2. Defendants Wayne Parks and Elizabeth Ostrowski-Parks are individuals who operate

Its Pawsible Dog Training Center Inc. (hereinafter Parks Its Pawsible) based in

Westhampton, Massachusetts.

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3. Parks Its Pawsible is a domestic for profit corporation organized under the laws of
the State of Massachusetts. Based on information and belief, Parks Its Pawsible is
engaged in the business of dog training in Massachusetts and internet retail sales of dog

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training supplies. The internet retail marketing and sales are available to people within
the jurisdiction of this Court.
VENUE AND JURISDICTION
4. Jurisdiction is proper in this court because this litigation arises under federal law,

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namely 17 U.S.C. 1051 et seq. (Lanham Act). The Court has jurisdiction over this

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action under 28 U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (trademarks), and

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28 U.S.C. 2201 (Declaratory Judgment Act).

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5. This Court has personal jurisdiction over Wayne Parks, Elizabeth Ostrowski-Parks, and
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Parks Its Pawsible because, on information and belief, Parks Its Pawsible

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conducts business in the State of Washington and within this district by marketing of its

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products through the Internet to Washington residents.

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6. Venue is proper in this district under 28 U.S.C. 1391(b) and 1391(c).

7. An actual case or controversy has arisen between the parties. Wayne Parks, Elizabeth

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Ostrowski-Parks, and Parks Its Pawsible has threatened litigation against Alan White

and Whites Its Pawsible, and has asserted that Alan White and Whites Its

Pawsible use of the Its Pawsible and Als Pawsible names constitute trademark

infringement. These statements threaten injury to Alan White and Whites Its

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Pawsible.

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GENERAL ALLEGATIONS

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I. Background

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8. Alan White and Whites Its Pawsible incorporates by reference the allegations

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contained in paragraphs 1 through 7, inclusive.

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9. Alan White started his dog training business, Its Pawsible in 2007. At the time Mr.

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White started Its Pawsible in 2007, he registered the name Its Pawsible with the

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Washington State Secretary of States Office effective September 1, 2007.

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10. Mr. Whites business provides dog training to clients in the Tri-City area of

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Washington State. Mr. White maintains a web site under the name Als Pawsible dog

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training. The web site has general information on dog training and animal behavior, a
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schedule of classes, and a cost sheet. The web site does not offer products for sale on the

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internet. The web site does not market to anyone outside the Tri-Cities area of

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Washington State.

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11. Mr. White has never received an email message, phone call, or any other
communication from a person mistaking his business for Wayne Parks and Elizabeth

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Ostrowski-Parks and Parks Its Pawsible. Mr. White is aware that since 2007 he has

had two customers mistake Wayne Parks and Elizabeth Ostrowski-Parks and Parks Its

Pawsible for his business. There is no evidence of any damages to Wayne Parks and

Elizabeth Ostrowski-Parks and Parks Its Pawsible in the two times they were

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contacted by persons looking for Whites Its Pawsible.

12. Based on information and belief Parks Its Pawsible registered a federal trademark
on November 13, 2007 and had a Massachusetts trademark that expired on August 8,

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2008. The federal trademark is for ITS PAWSIBLE all in capital letters.

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13. Based on information and belief the only business that Parks Its Pawsible has

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conducted in the State of Washington is internet marketing. There is no available

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information if Parks Its Pawsible has sold any products from its internet site to

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Washington residents. Parks Its Pawsible does not conduct any actual live training,
boarding, or day camping in Washington State.

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II. The Present Dispute

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14. On January 9, 2015, Alan White received a form email from Wayne Parks informing

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Mr. White that Its Pawsible was Mr. Parks registered trademark. Mr. Parks requested

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that Mr. White change the name of his business.

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15. On January 10, 2015, Mr. White called Mr. Parks and left a message acknowledging
Mr. Parks email and asking Mr. Parks, amongst other things, to give Mr. White time to

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research the issues.

16. On January 22, 2015 Mr. White emailed Mr. Parks and informed Mr. Parks that he

did not believe he was required to stop using the name Its Pawsible.

17. On January 23, 2015 Mr. Whites attorney, Scott Johnson called and spoke with Mr.

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Parks. Mr. Johnson called in an attempt to work with Mr. Parks to resolve the issue. Mr.
Parks was unwilling to work to resolve the issue and stated that he would file a lawsuit
against Mr. White for trademark infringement.

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18. On January 23, 2015, after speaking with Mr. Johnson, Mr. Parks sent Mr. White an

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email with an attached Cease and Desist letter that threatened a lawsuit and damages to

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include reimbursement of legal fees if Mr. White continued to use the names Its

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Pawsible or Als Pawsible Dog Training.

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CLAIMS FOR RELIEF

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CLAIM ONE (Declaratory Judgment of Non-infringement of Trademarks, 15 U.S.C.

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1051 et seq.)

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19. Alan White and Whites Its Pawsible incorporates by reference the allegations

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contained in paragraphs 1 through 18, inclusive.

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20. Wayne Parks and Elizabeth Ostrowski-Parks and Parks Its Pawsible has claimed
that Alan White and Whites Its Pawsible use of Its Pawsible constitutes trademark

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infringement, and has threatened to bring a lawsuit against Alan White and Whites Its

Pawsible on this basis.

21. An actual, present and justiciable controversy has arisen between Alan White and

Whites Its Pawsible and Wayne Parks and Elizabeth Ostrowski-Parks and Parks

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Its Pawsible concerning Alan White and Whites Its Pawsible right to use the
names Its Pawsible and Als Pawsible.
22. Alan White and Whites Its Pawsible seeks declaratory judgment from this Court

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that the use by Alan White of Its Pawsible and Als Pawsible does not constitute
trademark infringement.

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PRAYER FOR RELIEF

WHEREFORE, Alan White and Whites Its Pawsible respectfully requests that the

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Court:

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23. Enter judgment according to the declaratory relief sought;

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24. Award Alan White and Whites Its Pawsible its costs in this action;

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25. Enter such other further relief to which Alan White and Whites Its Pawsible may
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be entitled as a matter of law or equity, or which the Court determines to be just and

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proper.

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DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Alan White and Whites Its

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Pawsible hereby demands a jury trial on all issues so triable.

DATED this 4th day of MARCH, 2015.

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Respectfully submitted,
s/Scott W. Johnson_____________
SCOTT W. JOHNSON, #27839
Attorney for Alan White

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CERTIFICATE OF SERVICE

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I declare under penalty of perjury under the laws of the State of Washington, that
on March 4, 2015 I electronically filed the foregoing with the Clerk of the Court using the
CM/ECF System which will send notification of such filing to the following: David
Grossman and Mona Geidl, Minnick-Hayner, 249 W. Alder Street, Walla Walla, Wa
99362

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DATED this 4th day of MARCH, 2015.

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s/Scott W. Johnson
SCOTT W. JOHNSON #27839
Attorney for KYLE A. HAGEN
MENDOZA & JOHNSON, P.S.
Attorneys at Law
7135 W. Hood Place
Kennewick, WA 99336
(509) 374-1554
Fax: (509) 374-8124
scott@mendozajohnson.com

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