WEST VIRGINIA RECORD

BECKLEY -- A Fayette County company has filed suit against a Pennsylvania company it accuses of infringing its software.

Greenbrier Graphics claims it developed a software program called Data Plotter in 1987. The program is usually used by attorneys, surveyors, banks, real estate professionals and others who need to analyze, confirm and verify legal descriptions of real property, according to the complaint filed March 5 in U.S. District Court for the Northern District of West Virginia.

Since its initial development of the Data Plotter, Greenbrier Graphics has improved and enhanced the program and developed sequel products called Data Plott Series II and Data Plotter + Series III, the suit states. Greenbrier Graphics currently offers a similar product called Net Deed Plotter, which is the fifth version of its software, the complaint says.

Greenbrier Graphics protects all of its software with federal trademarks issued by the United States Patent and Trademark Office, it claims.

So when Greenbrier Graphics found another Web site, run by defendant Informatik, that sells a similar computer software mapping system it calls MapDraw Deed Plotter, Greenbrier contacted the company about patent infringement.

"After being notified of its infringing activities in December, 2009, and refusing to accede to Plaintiff's demand that it 'cease and desist' from further infringement of its valid and protectable trademarks, Defendant actually increased the level of its infringing activities through certain changes to its website made in total disregard of Plaintiff's known rights as set forth herein," the complaint says. "As late as December 14, 2009, Defendant included the words 'Deed Plotter' in parentheses on its product description page. However, after being notified of its infringing conduct in December 2009, Defendant removed the infringing words from parentheses, and strategically, intentionally and conspicuously placed the words 'Deed Plotter' adjacent to and following the word 'MapDraw' making the 'Deed Plotter' words, and thereby the Deed Plotter trademark, a part of the name of its MapDraw product."

Some of Greenbrier Graphics' former clients have mistaken Informatik's product for Greenbrier Graphics' merchandise because of the similar name, thus causing Greenbrier Graphics to lose business and profits, according to the complaint.

"Plaintiff has no control over the quality of the goods sold by the Defendant, and because of the confusion as to the source caused by the Defendant, the Plaintiff's valuable goodwill in respect to its aforesaid trademarks is subject to Defendant's conduct, all to Plaintiff's irreperable harm and Defendant's unlawful profit," the suit states.

In its six-count complaint, Greenbrier Graphics alleges infringement of federally registered trademarks, common law trademark infringement, false designation of origin and unfair competition, dilution of mark and injury to business reputation, unfair competition and injunctive relief.

The Fayette County company is seeking a permanent injunction restraining the defendant from infringing on its common law trademarks, from using the words "Deed Plotter" in advertising its products, from representing itself as the owner or authorized user of the "Deed Plotter" software, from performing any actions that would cause the public confusion over the defendant's software and its own and from using any trade practice that unfairly competes with or injures Greenbrier Graphics' business. It is also wanting the court to order Informatik's use of the words "Deed Plotter" from its Web site, title tag and other metatags. It seeks the money that Informatik made from its infringement of Greenbrier Graphics' business, statutory damages, attorney's fees and other relief the court deems just.

Andrew G. Fusco, Paul E. Parker III and Jason M. Walls of Bowles, Rice, McDavid, Graff and Love in Morgantown will be representing Greenbrier Graphics.

U.S. District Court case number: 1:10-cv-37