Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 1 of 9

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DATO, INC., a Delaware corporation,

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Plaintiff,

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CASE NO.:
COMPLAINT FOR DECLARATORY
JUDGMENT

v.

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DATTO, INC., a Delaware corporation,

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Defendant.

JURY TRIAL DEMANDED

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Dato, Inc. (Dato) alleges as follows:

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THE PARTIES
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Dato (pronounced Day-toe), is a Delaware corporation with its principal place

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of business at 936 N 34th St., Suite 208, Seattle, Washington 98103. Dato is a machine-

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learning, or artificial intelligence, platform that provides data analytics services.

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2.

Dato is informed and believes, and therefore alleges, that Datto, Inc. (Datto)

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(pronounced Daat-toe) is a Delaware corporation with its principal place of business at 101

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Merritt 7, 7th Floor, Norwalk, Connecticut 06851. Dato is informed and believes, and therefore

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alleges, that Datto provides data storage and recovery solutions.

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3.

This action seeks a declaration that Datos use and registration of the trademark

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DATO do not, and will not, infringe upon or otherwise violate the trademark-related rights, if

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any, of Datto.

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COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 2 of 9

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JURISDICTION AND VENUE

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This court has original jurisdiction over the claim for declaratory relief under

28 U.S.C. 2201 because Dato brings the action to determine a question of actual controversy

between the parties arising under the trademark laws of the United States.

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Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because

a substantial part of the events giving rise to this complaint occurred in this judicial district.

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BACKGROUND
Datos Use of the DATO mark
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On January 8, 2015, GraphLab, Inc., founded by Dr. Carlos Guestrin, the

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Amazon Professor of Machine Learning in Computer Science & Engineering at the University

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of Washington, changed its name to Dato, Inc. to convey the full range of the companys

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machine learning tasksnot just graph analysisand to mark the evolution of the company

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into an industry leader in artificial intelligence following a successful round of funding.

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Specifically, Dato provides a machine learning platform, i.e., intelligent

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software, which engineers and data scientists use to build systems that learn to identify and

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analyze the information in databases, from tables to graphs to text to images. These intelligent

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applications provide predictions for a myriad of uses, including recommenders, sentiment

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analysis, fraud detection, churn prediction and ad targeting. Dato provides organizations of all

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sizes and across industries with advanced big data analytics, enabling them to build scalable

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data products quickly and gain better and faster insights from their big data.

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Dato is the owner of the Internet domain name <dato.com>, where Dato hosts a

website prominently featuring the DATO mark.

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Dato applied to register the mark DATO with the United States Patent and

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Trademark Office on January 28, 2015, based on its bona fide intent to use the mark in

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commerce, in connection with the following goods and services:

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[c]omputer software for machine learning in the field of transaction

processing to upload transactional data, provide statistical analysis, and
produce notifications and reports; computer software, namely, software
development tools for data analytics, data mining and machine learning in

COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 3 of 9

mobile internet applications and software for data analytics; software

development tools; computer software for the collection, editing, organizing,
modifying, book marking, analyzing, transmission, storage and sharing of data
and information; computer software for creating searchable databases of
information and data in International Class 9;

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[d]ata mining; data mining consulting services; software as a service (SAAS)

services, namely, hosting software for use by others in database management
and data analysis; providing temporary use of nondownloadable computer
software for machine learning in the field of transaction processing to upload
transactional data, provide statistical analysis, and produce notifications and
reports; providing temporary use of nondownloadable computer software
development tools for the creation of software for data analytics; software
development tools; providing temporary use of nondownloadable computer
software for the collection, editing, organizing, modifying, book marking,
analyzing, transmission, storage and sharing of data and information;
providing temporary use of nondownloadable computer software for creating
searchable databases of information and data; consulting services in the fields
of database management, data analysis and machine learning; technical
consulting services in the fields of database architecture and evaluation and
implementation of software for data analytics in International Class 42.

Datos trademark application has been assigned Serial No. 86517116 and is pending.
10.

Since its launch in January 2015, Datos DATO mark has been featured in

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prominent news reports and articles (Wired, The Wall Street Journal, The Seattle Times,

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Geekwire, etc.) across the United States and internationally. In addition, DATO has achieved

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substantial commercial success as many well-known companies already use Datos software.

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For example, Pandora uses Datos software to help drive its music recommendation service.

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Real estate database Zillow uses the software to fine-tune its estimates of how much properties

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cost in the market. Johnson & Johnson uses Datos platform to help parents find important

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pregnancy and parenting advice on their popular BabyCenter.com website. Datos other clients

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include Salesforce, Symantec, PayPal, Crosswise, Hotel Tonight, Bosch, ExxonMobil and

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Cisco, amongst others.

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Datos tools have been deployed in a broad range of areas, from fraud detection

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to analysis of customer sentiment, and have the ability to be expanded across industries and

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tailored to very specific customer needs. The data scientists and engineers who use Datos

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software typically have advanced degrees, have strong programming and mathematical skills,

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and need to integrate a wide range of software tools in order to build their applications. As
COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 4 of 9

such, Datos customers are highly sophisticated and purchase Datos products and services with

very particular uses in mind. They do not enter the decision to purchase such products without

considerable research and input across departments.

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As a result of the success of Datos unique machine learning platform and

services, when members of the general public, particularly within the artificial intelligence and

technology industries, see or hear the mark DATO, they associate it with Datos cutting edge,

artificial intelligence platform and services.

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Dato intends to continue using the DATO mark in connection with its platform

and services.
Dattos Assertion of Trademark Rights
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According to its website, Datto is a provider of data backup, recovery and

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business continuity solutions. A recent Forbes article entitled Datto: The Secret Tech

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Money-Making Machine Youve Never Heard Of describes Dattos business as the business

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of information recovery, providing data storage hardware with a subscription service that

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allows customers to revive their network instantly in the event it shuts down or is otherwise

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breached.

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So whereas Datos machine learning platform allows companies to mine their

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data, analyze it in various forms, and learn from it using artificial intelligence techniques,

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Dattos business pertains to the routine backup of data. And whereas Datos customers use its

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customizable software to mine, understand and learn from specific big data sets they have

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acquired, Datto provides its customers with physical hardware and virtual backup devices to

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store and preserve their data in raw form.

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Datos and Dattos purchasers consist of highly trained data scientists and other

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skilled technology professionals within an organizations IT department. These individuals are

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likely to research extensively the service providers they choose to analyze and to store their

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data, both of which are integral decisions for any size company, thus making it unlikely that

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any real-world confusion would occur. In addition, the relatively high prices of both Datos and
COMPLAINT FOR DECLARATORY JUDGMENT

-4-

WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 5 of 9

Dattos products do not lend themselves to impulse purchases and often require cross-

departmental approval, further eliminating any chance of actual marketplace confusion.

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On January 30, 2015, Datto sent Dato a cease and desist letter claiming

propriety rights in its DATTO mark and potential likelihood of confusion between the DATO

and DATTO marks. Datto demanded that Dato cease use of its DATO mark immediately.

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On February 20, 2015, after investigating Dattos claims, Dato responded to

Dattos letter, explaining the distinct differences between the companies services, the

sophistication of their respective customers, the relatively high prices of the companies

products, all of which clearly distinguish the companies respective marks and undermine any

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concern that the marks would be confused by those in the market looking to purchase very

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different products and services.

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On April 10, 2015, Datto replied to Datos letter, claiming that it offered a range

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of business continuity cloud services that were similar to Datos, rebuffing Datos offer to

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co-exist, even pursuant to the terms of an agreement, and demanding that Dato immediately

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cease use of its mark.

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After further exchanges between the parties, on September 17, 2015, Datto sent

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an email to Dato claiming that we just don't see a way your company can continue to use the

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DATO mark without causing confusion, that [t]his back and forth has gone on long enough

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and our position is very clear and that if Dato would not commit to stop using the DATO

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mark by September 21, that Datto would commence appropriate legal action.

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While Datto tries to characterize its business broadly, data backup hardware and

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remote backup are clearly distinct from artificial intelligence and data analytics. Datos

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sophisticated customers, who can tailor its products to suit their data analytics needs,

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understand that difference. And Dattos customers, who are in the market for data backup

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solutions, are not going to confuse Datos customizable software for data analytics with data

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backup hardware. Because there is no potential risk of real-world confusion, Dato intends to

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COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 6 of 9

continue use of its DATO mark and remains confident the two companies can comfortably

coexist.

FIRST CAUSE OF ACTION

(DECLARATORY RELIEF)

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22.

Dato realleges and incorporates by reference paragraphs 1 through 21 above as

though fully set forth herein.

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As a result of the actions and statements of Datto, there is an actual controversy

between Dato and Datto as to the parties rights and legal relations associated with each partys

use of their respective marks. This controversy between the parties is substantial, concrete, and

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immediate. Based on Dattos correspondence, Dato has a reasonable and real apprehension

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that it faces an infringement lawsuit by Datto and that Datto will challenge and seek to disrupt

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any expansion of Datos use of the DATO mark.

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Dato has and intends to continue to use the DATO mark in interstate commerce.

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Dato is informed and believes, and therefore alleges, that it is Dattos position that Datto has

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made use of the mark DATTO in a manner justifying Datto to sue Dato immediately for

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trademark infringement and other legal violations.

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Datos use of the DATO mark does not infringe on or violate any federal or state

trademark, trade name, or related rights of Datto.

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Datos use of the DATO mark will not infringe on or violate any federal or state

trademark, trade name, or related rights of Datto.

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Datos rights to the DATO mark are superior to or distinct from the rights Datto

alleges in its DATTO mark.

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An actual justiciable controversy within the meaning of 18 U.S.C. 2201 exists

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between Dato and Datto concerning the use of the DATO mark and the respective trademark

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rights of the parties. A judicial determination is necessary and appropriate at this time in order

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to resolve the issues of the trademark rights of Dato and the conflicting claims of Datto, and in

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order that the parties may ascertain their respective rights and obligations if any.
COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 7 of 9

29.

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Dato does not engage in any activities that harm or threaten any lawful rights of

Datto and is entitled to a declaration to that effect in this action.

Wherefore, Dato prays for relief as set forth below.

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PRAYER FOR RELIEF

Wherefore, Dato prays for judgment as follows:

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That this Court declare that Datos use and registration of the DATO mark do

not infringe upon, dilute, or otherwise violate any valid right of Datto under applicable federal

or state law.
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distinct from the rights Datto alleges in its DATTO mark.

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That this Court declare that Datos rights in the DATO mark are superior to or

That this Court declare that Datos activities have not caused any harm to Datto

or unjust enrichment to Dato.

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33.

That this Court declare that Dato is not liable to Datto.

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34.

That, by way of further relief, this Court grant a permanent injunction enjoining

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and restraining Datto, its officers, directors, agents, servants, employees, and attorneys, and

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those in active concert or participation with them, from directly or indirectly charging

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infringement, dilution, or other legal violation, or instituting any action for infringement,

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dilution, or other violation of alleged rights of Datto in the mark DATTO against Dato or any

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of Datos agents, direct or indirect customers, or any person, by reason of the use or registration

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of Datos DATO mark.

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That this Court award to Dato its reasonable costs, disbursements, and attorneys

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fees incurred in defending its rights to the DATO mark against the claims and allegations of

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Datto.

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36.

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and proper.

That this Court grant such other and further relief as this Court may deem just

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COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 8 of 9

/s/ Gregory L. Watts

Gregory L. Watts, WSBA #43995
Aaron D. Hendelman, WSBA #38597
WILSON SONSINI GOODRICH & ROSATI
701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Telephone: (206) 883-2500
Facsimile: (206) 883-2699
Email: gwatts@wsgr.com
Email: ahendelman@wsgr.com

Attorneys for Plaintiff Dato Inc.

Dated: September 21, 2015

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COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699

Case 2:15-cv-01502-RSL Document 1 Filed 09/21/15 Page 9 of 9

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DEMAND FOR JURY TRIAL

Dato hereby demands trial by jury of all issues triable by a jury.

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Dated: September 21, 2015

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/s/ Gregory L. Watts

Gregory L. Watts, WSBA #43995
Aaron D. Hendelman, WSBA #38597
WILSON SONSINI GOODRICH & ROSATI
701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Telephone: (206) 883-2500
Facsimile: (206) 883-2699
Email: gwatts@wsgr.com
Email: ahendelman@wsgr.com
Attorneys for Plaintiff Dato Inc.

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COMPLAINT FOR DECLARATORY JUDGMENT

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WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100
Seattle, WA 98104-7036
Tel: (206) 883-2500
Fax: (206) 883-2699