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COMPLAINT

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HARVEY SISKIND LLP
LAWRENCE J. SISKIND (SBN 85628)
Email: siskind@harveysiskind.com
DONALD A. THOMPSON (SBN 260076)
Email: dthompson@harveysiskind.com
JANE A. LEVICH (SBN 293299)
Email: jlevich@harveysiskind.com
Four Embarcadero Center, 39
th
Floor
San Francisco, California 94111
Telephone: (415) 354-0100
Facsimile: (415) 391-7124

Attorneys for Plaintiff
APP ANNIE INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA



APP ANNIE INC.
a Delaware corporation,

Plaintiff,

v.

APPTOPIA, INC.
a Delaware corporation,

Defendant.




Case No.

COMPLAINT FOR FALSE ADVERTISING,
UNFAIR COMPETITION, TRADE LIBEL,
AND INTENTIONAL INTERFERENCE
WITH PROSPECTIVE ECONOMIC
ADVANTAGE


DEMAND FOR JURY TRIAL






Case3:14-cv-03370-JCS Document1 Filed07/24/14 Page1 of 14

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COMPLAINT

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Plaintiff App Annie Inc. (App Annie or Plaintiff), for its Complaint against Defendant
Apptopia, Inc. (Apptopia or Defendant), alleges:
THE PARTIES
1. Plaintiff App Annie Inc. is a Delaware corporation with a principal place of business in
the City and County of San Francisco, California.
2. On information and belief, Defendant Apptopia, Inc. is a Delaware corporation with a
principal place of business in the City of Boston, County of Suffolk, Massachusetts.
JURISDICTION
3. This Court has subject matter jurisdiction under 28 U.S.C. 1331 and 1338 because this
action arises under the Lanham Act, 15 U.S.C. 1051, et seq. The Court has supplemental jurisdiction
over App Annies state law claims under 28 U.S.C. 1367.
4. This Court has personal jurisdiction over Apptopia because, on information and belief,
Apptopia maintains an office in Palo Alto, California, and its acts have caused App Annie the injuries
alleged herein in this district.
VENUE
5. Venue is proper in the Northern District of California under 28 U.S.C. 1391(b) and (c)
because the claims arise in this district, App Annie resides in this district, Apptopia resides in this district,
and a substantial part of the events or omissions giving rise to this action occurred here.
INTRADISTRICT ASSIGNMENT
6. This intellectual property action shall be assigned on a district-wide basis pursuant to
Civil L.R. 3-2(c).
NATURE OF ACTION
7. App Annie provides the leading mobile analytics platform. For over four years, mobile
app developers and publishers have relied on App Annies analytics platform to track sales, downloads,
and reviews of their apps, as well as mobile ad revenues and expenses. Featuring a team of 250+, App
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COMPLAINT

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Annie has attracted the attention of industry watchers like VentureBeat, which recently named it one of
the ten fastest movers in the mobile app industry,
1
and national publications like The Wall Street Journal,
which recently noted that 270,000 registered users have connected over 600,000 apps to App Annies
analytics platform.
2

8. App Annie is the industry leader because it has a proven track record of applying world-
class data science to an unmatched data setnamely, data from the unrivaled network of developers
who have connected their apps to its analytics platform. That data is transformed through sophisticated
statistical models and powers App Annies market intelligence service, which customers trust to inform
their most important strategic decisions about the mobile ecosystem.
9. App Annie uses the trademark APP ANNIEshown in U.S. Trademark Registration No.
4,493,458 and U.S. Trademark Application No. 85,777,175to signify its reputation and goodwill in the
United States.
10. Apptopia is best known as an online broker of mobile applications. In an attempt to
diversify into other business models, Apptopia recently began offering an analytics platform and market
intelligence service similar to App Annie. As noted above, App Annies competitive advantage stems
from its extensive network of connected developers. Lacking that advantage, Apptopia has instead
resorted to unsavory marketing practices to promote its product and service.
11. This action arises because Apptopia is unlawfully diverting and deceiving current and
prospective App Annie customers by improperly exploiting the APP ANNIE name and brandin
violation of laws against false advertising, unfair competition, trade libel, and intentional interference
with prospective business advantage.

1
See http://venturebeat.com/2014/06/23/10-of-the-fastest-movers-in-the-38b-mobile-apps-and-ads-
market/
2
See http://blogs.wsj.com/venturecapital/2014/05/28/app-annie-raises-17m-acquires-app-analytics-
competitor-distimo/
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12. Apptopia is diverting App Annie customers by placing paid advertisements atop search
engine results for App Annie. For example, searching for App Annie on Google can bring up the
following paid advertisement from Apptopia:


















13. Apptopia is deceiving App Annie customers by featuring false and misleading statements
in its paid advertisements, at the website linked to by those advertisements (try.apptopia.com), on its
homepage (www.apptopia.com), and elsewhere.
14. For example, statements featured in Apptopias advertisement aboveBetter than App
Annie Accurate app market data insights help you make the best decisionsand Apptopias
homepage belowThe Most Comprehensive and Actionable App Store Dataare false and
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misleading because Apptopia has vastly less comprehensive, less accurate, and less actionable data than
App Annie. App Annie is able to offer the leading market intelligence service because it has the most
extensive network of connected developers. Apptopia, as a recent entrant into this space, cannot come
close. It is deceiving App Annie consumers (and unjustly harming App Annie) by claiming otherwise.




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COMPLAINT

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15. Apptopia is also deceiving App Annie customers with false and misleading statements in
the following comparison table, which is presented to consumers who search Google for App Annie
and click the resulting advertisement for Apptopia.
























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COMPLAINT

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16. This comparison table is deceptive in numerous respects. Most blatantly, the placement
of asterisks on the left side of the table (below App Annie Intelligence) and absence of asterisks on the
right side of the table (below Apptopia Insights) conveys the false and misleading message that
various featuresincluding access to download data and estimates, access to revenue data and estimates,
access to active user data and estimates, access to customized data reports, access to publisher contact
information, and access to international datamay vary depending upon case with App Annie but not
Apptopia. If anything, the opposite is true because App Annie has greater access to proprietary data.
Moreover, Apptopia has provided no context or explanation for its deceptive disclaimer.
17. The juxtaposition of blue checkmarks on the left side of the table against a similar
background and green checkmarks on the right side of the table against a contrasting background
reinforces the false and misleading message that various features may vary depending upon case with
App Annie but not Apptopia. Again, if anything, the opposite is true.
18. The juxtaposition of red x marks on the left side of the tablewith the comment [App
Annie] aim[s] more towards presenting you the data as it isand green check marks on the right side
of the tablewith the comments [Apptopia] make[s] a data-science-oriented approach, [Apptopia]
data scientists work hard to make sure your data is both accurate and informative, and [Apptopia tries]
to make the most actionable data so that you can instantly apply our data to your decisionsconveys
the false and misleading message that App Annie does not take a data-science-oriented approach, does
not provide access to data specialists, and does not present accurate, informative, and actionable data.
In truth, App Annie employs a dedicated customer success team whose sole focus is helping customers
interpret, understand, and act upon App Annie data. Moreover, App Annie offers sophisticated statistical
models, powerful data interpretation, and robust visualization tools rather than simply presenting the data
as it is. Despite Apptopias wishes to the contrary, deceptive buzzwords are no substitute for actual
experience, years of engineering effort, rich historical data, and continuous R&D investment.
19. The juxtaposition of three red dollar signs on the left side of the tablewith the comment
[App Annie] targets enterprise-level companies for enterprize-level [sic] pricingand a green dollar
sign on the right side of the tablewith the comments [Apptopia] believe[s] the data should be
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COMPLAINT

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available to everybody, not just the top 5% and [Apptopia] data is affordable conveys the false and
misleading message that App Annie has a one-size fits all pricing strategy intended only for enterprise
businesses. In reality, App Annie has a flexible pricing strategy suitable for many different types of
customers, including small- and medium-size businesses. Moreover, unlike Apptopia, App Annie offers
certain market intelligence features (e.g., App Annie Store Stats) for free. Those features are available at
no cost to any type of userfrom individuals to Fortune 100 companiesfurther cementing the
deceptiveness of Apptopias claim.
20. An earlier version of this comparison table claimed that Apptopia and App Annie offer
the same data, which is false and misleading because App Annie has vastly more proprietary data than
Apptopia by virtue of a vastly greater network of connected developers. Even if Apptopia and App
Annie employ similar techniques to absorb data provided by developers, the disparity in the number of
developers on each platform ensures that they do not have the same data.
21. To recap, someone who searches Google for App Annie often encounters deceptive
advertisingpurchased by Apptopiaproclaiming that Apptopia is better than App Annie because it
has accurate app market data insights. Anyone who clicks on that advertisement will encounter a
deceptive table comparing App Annie and Apptopia. Anyone who visits the Apptopia homepage will
encounter the deceptive statement that Apptopia has The Most Comprehensive and Actionable App
Store Data.
22. App Annie cannot tolerate the unlawful use of its name and brand to deceive customers
and the public; App Annie accordingly asserts the causes of action noted below.
FIRST CAUSE OF ACTION
False Advertising and Unfair Competition Under Federal Law
(15 U.S.C. 1125(a))

23. Plaintiff incorporates the above allegations here.
24. The activities of Defendant complained of herein constitute unfair competition and false
advertising in violation of 15 U.S.C. 1125(a)(1)(B).
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COMPLAINT

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25. Plaintiff is informed and believes that Defendant has and will continue to make false or
misleading statements or representations of fact in commercial advertisements or promotions that
misrepresent the nature, characteristics, and qualities of Defendants and Plaintiffs goods or services;
26. Defendants false or misleading statements or representations have deceived and/or have
a tendency to deceive a substantial segment of the relevant public.
27. Defendants representations have influenced and/or are likely to influence the purchasing
decisions of relevant consumers.
28. Plaintiff has been or is likely to be damaged by such acts.
29. By reason of the foregoing, Defendant has intentionally and willfully violated 15 U.S.C.
1125(a)(1)(B).
30. As an actual and proximate result of Defendants willful and intentional actions, Plaintiff
has suffered damages in an amount to be proven at trial.
31. As a result of this unfair competition, Plaintiff has also suffered and will continue to
suffer irreparable injury unless and until Defendants misconduct is enjoined.
32. Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to recover: damages in an amount to be
determined at trial, profits made by Defendant, and the costs of this action. Furthermore, because
Defendants actions were undertaken willfully and maliciously, Plaintiff is entitled to recover treble
damages as well as attorneys fees.
SECOND CAUSE OF ACTION
Unfair Competition Under California Law
(Cal. Bus. & Prof. Code 17200)
33. Plaintiff incorporates the above allegations here.
34. Defendants conductwhich is likely to cause confusion, or to cause mistake, or to
deceiveconstitutes unfair competition under California Business and Professions Code 17200.
35. Defendants conduct is unlawful, unfair, and/or fraudulent.
36. As a result of this unfair competition, Plaintiff has suffered damages in an amount to
be determined at trial.
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COMPLAINT

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37. As a result of this unfair competition, Plaintiff has also suffered, and will in the future
suffer, irreparable injury to its business, reputation, and goodwill. Plaintiff will suffer such
irreparable injury unless and until Defendants misconduct is enjoined by the Court.
THIRD CAUSE OF ACTION
California False Advertising
(Cal. Bus. & Prof. Code 17500 et seq.)
38. Plaintiff incorporates the above allegations here.
39. Defendants acts constitute untrue and misleading advertising in violation of
California Business and Professions Code 17500, et seq.
40. Defendant has publicly made or disseminated and continues to publicly make or
disseminate untrue or misleading statements in California with the intent to induce members of the
public to purchase goods or services from Defendant.
41. As a direct and proximate result of the foregoing conduct, Plaintiff has suffered
damages, including damage to reputation, lost goodwill, disruption to business, and lost profits, and
is entitled to restitution of all profits unjustly gained by Defendant, or alternatively, all sums lost by
Plaintiff.
42. Defendants wrongful acts, unless and until enjoined and restrained by order of this
Court, will cause irreparable injury to Plaintiff. Plaintiff has no adequate remedy at law in that
damages may be difficult to ascertain, and monetary damages alone will be inadequate to compensate
Plaintiff for the harm caused by the Defendant.
FOURTH CAUSE OF ACTION
Common Law Unfair Competition
43. Plaintiff incorporates by reference the above allegations here.
44. These acts by Defendant constitute unfair competition under California common law.
45. Plaintiff is entitled to injunctive relief prohibiting Defendant from unfairly competing
with Plaintiff.
46. Plaintiff is entitled to monetary damages.
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COMPLAINT

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FIFTH CAUSE OF ACTION
Trade Libel Under California Law
(California Civ. Code 45, 45a)
47. Plaintiff incorporates the above allegations here.
48. The above acts by Defendant constitute trade libel under California Civil Code 45
and 45a.
49. Plaintiff is entitled to injunctive relief prohibiting Defendant from making such false
statements and misrepresentations.
50. Plaintiff is entitled to compensation for monetary losses suffered as a result of the
libelous statements.
51. Plaintiff is entitled to punitive damages.
SIXTH CAUSE OF ACTION
Intentional Interference With Prospective Economic Advantage

52. Plaintiff incorporates the above allegations here.
53. By virtue of its reputation, goodwill, and hard work, Plaintiff has developed valuable
business relationships with its customers as well as prospective opportunities that are likely to benefit
Plaintiff in the future.
54. At all relevant times, Defendant was aware of Plaintiffs economic and business
relationships with various customers. In spite of that knowledge, Defendant appropriated Plaintiffs
economic advantage by misleading Plaintiffs actual and prospective customers with false and
misleading representations concerning the properties of the parties goods and services, in an effort to
interfere with existing and prospective business relationships between customers and Plaintiff.
55. The above acts by Defendant constitute intentional interference with prospective
economic advantage under California law.
56. Plaintiff is entitled to injunctive relief prohibiting Defendant from making such false
statements and misrepresentations.
57. Plaintiff is entitled to compensation for monetary losses suffered as a result of
Defendants acts.
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COMPLAINT

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PRAYER FOR RELIEF
WHEREFORE, App Annie prays for relief as follows:
1. That Defendant and its officers, affiliates, agents, servants, employees, successors,
licensees, and assigns, and all others in concert and privity with them, be preliminarily and
permanently enjoined from using in any manner, in connection with advertising or otherwise, the
statements referenced in paragraphs 13 through 21 above, or other statements with the same or
similar meanings;
2. That Defendant be ordered to recall and destroy all written and electronic material,
including, but not limited to, advertising and promotional material, and related items containing the
misrepresentations complained of herein;
3. That Defendant be ordered to disseminate corrective advertising in a form approved
by the Court to acknowledge its violations of law and to ameliorate the acts complained of herein;
4. That Defendant, within thirty (30) days after having been served with judgment, with
notice of entry upon it, be required to file with this Court and to serve upon Plaintiff, a written report,
under oath, setting forth in detail, the manner in which Defendant has complied with the judgment;
5. That Defendant be ordered to pay Plaintiff its actual damages suffered as a result of
Defendants wrongful acts in an amount to be determined at trial, but believed to be in excess of
$1,000,000, trebled on grounds that this is an exceptional case;
6. That Defendant be ordered to account to Plaintiff, and to pay to Plaintiff, all of
Defendants profits and all amounts by which Defendant has been unjustly enriched from the acts and
practices complained of herein;
7. That Defendant be ordered to pay Plaintiff its attorneys fees and costs incurred herein
on the grounds that this is an exceptional case;
8. That Defendant be ordered to pay Plaintiff prejudgment interest;
9. That Defendant be ordered to pay Plaintiff exemplary damages; and
10. Such further relief as the Court deems just and proper.
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COMPLAINT

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Dated: July 24, 2014 Respectfully submitted,

HARVEY SISKIND LLP
LAWRENCE J. SISKIND
DONALD A. THOMPSON
JANE A. LEVICH


By: /s/
Donald A. Thompson

Attorneys for Plaintiff
APP ANNIE INC.
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COMPLAINT

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DEMAND FOR JURY TRIAL
App Annie hereby demands a trial by jury on all issues so triable.
Dated: July 24, 2014 Respectfully submitted,

HARVEY SISKIND LLP
LAWRENCE J. SISKIND
DONALD A. THOMPSON
JANE A. LEVICH


By: /s/
Donald A. Thompson

Attorneys for Plaintiff
APP ANNIE INC.
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