Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA1070403 Filing date: 07/24/2020
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Notice of Opposition
Notice is hereby given that the following party opposes registration of the indicated application. Opposer Information
Name Lynwood Investments CY Limited Granted to Date 07/25/2020 of previous ex- tension Address SAIFI, 1, PORTO BELLO, FLOOR 3 FLAT 302 LIMASSOL, 3042 CYPRUS
Attorney informa- JEFFREY P. WEINGART tion MEISTER SEELIG & FEIN LLP 125 PARK AVENUE, 7TH FLOOR NEW YORK, NY 10017 UNITED STATES Primary Email: [email protected] Secondary Email(s): [email protected], [email protected] 212-655-3500
Docket Number Applicant Information
Application No. 88778862 Publication date 05/26/2020 Opposition Filing 07/24/2020 Opposition Peri- 07/25/2020 Date od Ends Applicant F5 Networks, Inc. 801 5TH AVE SEATTLE, WA 981041663 UNITED STATES Goods/Services Affected by Opposition
Class 009. First Use: 2017/09/22 First Use In Commerce: 2017/09/22 All goods and services in the class are opposed, namely: Downloadable Server software for use in- web serving, reverse proxying, caching,load balancing, application delivery and media streaming; Downloadable computersoftware for controlling and managing web servers; Downloadable computer software for use in HTTP and reverse proxy servers and mail proxy servers, namely, forcontrolling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; Downloadable software for providing data analysis, analytics, and reporting of information concerning web server performance; computer hardware Grounds for Opposition
Applicant not rightful owner of mark for identified Trademark Act Section 1 goods or services Fraud on the USPTO In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938 (Fed. Cir. 2009)
Related Proceed- Lynwood Investments CY Limited v. Maxim Konovalov et al., 3:20-cv-03778 in ings the United States District Court, Northern District of California; Opposition No. 91256286
Attachments Lynwood Notice of Opposition - N and Green Design Trademark - 8877886 2.pdf(208322 bytes ) Exhibit A - Notice of Opposition - Lynwood v. F5 - 88778862.pdf(1060070 bytes ) Exhibit B - Notice of Opposition - Lynwood v. F5 - '862.pdf(1323102 bytes ) Exhibit C - Notice of Opposition - Lynwood v. F5 - '862.pdf(212762 bytes ) Exhibit D - Notice of Opposition - Lynwood v. F5 - '862.pdf(4461449 bytes ) Exhibit E - Notice of Opposition - Lynwood v. F5 - '862.pdf(1137781 bytes )
Signature /Susan M. Schlesinger/ Name Susan M. Schlesinger Date 07/24/2020 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
In the Matter of Application Serial No. 88/778,862 For the Mark: N and Green Design Published in the Official Gazette on May 26, 2020
------X Lynwood Investments CY Limited, : Opposer, : : v. : Opposition No.: : F5 Networks, Inc., : Applicant. : ------X
NOTICE OF OPPOSITION
Lynwood Investments CY Limited (“Opposer”) believes that it will be damaged by
registration of the mark shown in U.S. Application Serial No. 88/778,862 and hereby opposes
same. The grounds for the opposition are as follows:
COUNT I
1. Opposer is a limited company organized and existing under the laws of Cyprus having an address at Saifi, 1, Porto Bello, Floor 3, Flat 302, 3042, Limassol, Cyprus.
2. Opposer is the owner of the NGINX trademark and the associated stylizations and
design elements used in connection with such trademark, including the use of the color green.
3. NGINX is the trademark of the well-known web server software which was first
conceived of, developed as a work for hire and used by Rambler Internet Holding LLC
(“Rambler”) in Russia.
4. The first use of the NGINX trademark, as both a word mark and in a stylized form
in the color green, dates back to at least 2002, and the first use in U.S. commerce of the NGINX trademark, as both a word mark and in a stylized form in the color green, dates back to at least
2004 when the NGINX software was first publicly deployed. Such uses of the NGINX trademark
and the goodwill that arose from such uses inured to the benefit of Rambler.
5. Opposer subsequently obtained rights in the NGINX trademark in all forms and all
related intellectual property, including the software, by assignment from its predecessor-in-
interest, Rambler.
6. Upon information and belief, Applicant, F5 Networks, Inc. (“Applicant”) is a
Washington corporation with an address of 801 5th Avenue, Seattle, Washington 98104.
7. Applicant filed an application to register the (the “N and Green
Design”) trademark on a use basis, pursuant to Section 1(a) of the Trademark Act, on January 30,
2020, which was assigned U.S. Application Serial No. 88/778,862 for: “Downloadable Server
software for use in web serving, reverse proxying, caching, load balancing, application delivery
and media streaming; Downloadable computer software for controlling and managing web servers;
Downloadable computer software for use in HTTP and reverse proxy servers and mail proxy
servers, namely, for controlling and managing server applications in the nature of http and reverse
proxy servers and mail proxy servers; Downloadable software for providing data analysis,
analytics, and reporting of information concerning web server performance; computer hardware”
in Class 9. The date of first use and date of first use in commerce claimed by Applicant for the N
and Green Design trademark is September 22, 2017.
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8. The N and Green Design trademark depicted in U.S. Application No. 88/778,862 consists of a six-sided shape in the color green with the letter “N” appearing in white font within the green six-sided shape.
9. The letter “N” in the N and Green Design trademark stands for the NGINX trademark. As demonstrated by the specimen submitted by Applicant in support of showing use of the N and Green Design trademark, Applicant is using the N and Green Design trademark as an interchangeable symbol for the NGINX trademark. A true and correct copy of Applicant’s specimen is attached hereto as Exhibit A.
10. The use of a six-sided shape in connection with the NGINX trademark dates back to at least 2002 and first use in U.S. commerce to 2004 in connection with Rambler’s use of the
NGINX (Stylized) trademark: . Notably, the outer portion of the letter
“G” in the NGINX (Stylized) trademark was depicted as having six-sides and the mark was displayed in the exact same shade of green (as shown above) as the six-sided design in the N and
Green Design trademark now claimed by Applicant. See (Exhibit A).
11. On June 8, 2020, Opposer filed a civil action against Applicant and other defendants which is currently pending in the United States District Court for the Northern District of
California, Case No.: 3:20-cv-03778 (the “District Court Case”). A true and correct copy of the
Complaint filed in the District Court Case is attached hereto as Exhibit B.
12. As alleged in the Complaint, certain, former employees of Rambler (the “Former
Employees”) misappropriated the NGINX trademark in all forms, the software and the related
intellectual property owned by Rambler (the “Stolen NGINX Intellectual Property”). These
Former Employees subsequently left Rambler and formed new companies to impermissibly use
and commercialize the Stolen NGINX Intellectual Property. The Stolen NGINX Intellectual
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Property was then purportedly acquired by Applicant as part of a merger involving the Former
Employees and their companies (the “Merger”). See (Exhibit B, ¶¶ 1, 4-5, 9, 48, 389-417).
13. The Former Employees had been bound by employment and confidentiality
agreements during their employment with Rambler such that they could not have obtained any
ownership interest in the intellectual property that they stole from Rambler because ownership of
all intellectual property was with Rambler.
14. While the Former Employees were still employed with Rambler, they formed
Nginx Software, Inc. and filed an application to register the NGINX trademark, which was
assigned U.S Application Serial No. 85/312,802, and filed an application to register the NGINX
(Stylized) trademark, which was assigned U.S. Application Serial No. 85/312,806. Attached as
Exhibit C are true and correct copies of the applications.
15. The alleged dates of first use and first use in commerce of the NGINX and NGINX
(Stylized) trademarks are claimed as of May 1, 2002 and May 1, 2004, respectively. See (Exhibit
C). These dates coincide with the Former Employees being employed at Rambler. See (Exhibit
B, ¶¶ 184, 310, 319, 696-697). Uses of the NGINX and NGINX (Stylized) trademarks would
have inured to the benefit of Rambler as the owner.
16. There was no transfer of rights in the NGINX trademark or NGINX (Stylized)
trademark from Rambler to the Former Employees of Rambler, or, subsequently, to Nginx
Software, Inc. to form the basis of filing applications for the trademarks, or claiming ownership
of, or claiming the alleged dates of first use of, those trademarks. See (Exhibit B, ¶¶ 762, 777-
779).
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17. Undeterred by the lack of ownership in the NGINX trademark and NGINX
(Stylized) trademark, the Former Employees went on to file additional NGINX-formative trademark applications through another company of theirs, Nginx, Inc. See (Exhibit B, ¶¶ 333-
379).
18. There was no transfer of rights in the NGINX trademark or NGINX (Stylized) trademark from Rambler to the Former Employees of Rambler, or, subsequently, to Nginx, Inc. to form the basis of the claim of ownership of the other NGINX-formative trademarks. See (Exhibit
B, ¶¶ 339, 351, 363, 374, 795, 799, 812, 824, 839).
19. Applicant, therefore, did not acquire any NGINX-related trademark rights through the Merger because the Former Employees and their companies did not own the trademark rights such that they could have subsequently transferred any trademark rights to Applicant. See (Exhibit
B, ¶¶ 332, 342, 351, 363, 374, 769, 785, 799, 812, 824, 839).
20. Applicant’s claimed date of first use and date of first use in commerce of the N and
Green Design trademark is as of September 22, 2017, which is prior to the May 8, 2019 closing date of the Merger. Applicant has, therefore, sought to impermissibly claim rights that it could not have obtained from the Merger because the Former Employees and their companies had no right to use the NGINX trademark or any symbolic representations of it.
21. Applicant is not the rightful owner of the N and Green Design trademark where it is not the rightful owner of the NGINX trademark or the NGINX (Stylized) trademark and, therefore, cannot maintain an application to register the N and Green Design trademark, which is an interchangeable symbol of and stands for the NGINX trademark.
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COUNT II
22. Opposer realleges and incorporates by reference the allegations contained in paragraphs 1 through 21 as though fully set forth and repeated herein.
23. Applicant conducted extensive due diligence in early 2019 in connection with the
Merger and knew prior to the consummation of the Merger that the Former Employees of Rambler had taken the Stolen NGINX Intellectual Property from Rambler. See (Exhibit B, ¶¶ 390-400,
438, 658).
24. Among the claims alleged by Opposer in the District Court Case are claims to seek cancellation of the NGINX and NGINX-formative trademark registrations that are currently owned in the name of Applicant on the basis of fraud upon the U.S. Patent and Trademark Office.
See (Exhibit B, ¶¶ 307 – 379, 751 – 843).
25. The trademark registrations at issue for cancellation in the District Court Case are the following: U.S. Registration No. 4,196,757 for the NGINX trademark; U.S. Registration No.
4,200,791 for the NGINX (Stylized) trademark; U.S. Registration No. 4,837,175 for the NGINX
PLUS trademark; U.S. Registration No. 5,973,515 for the NGINX trademark; U.S. Registration
No. 5,973,527 for the NGINX CONTROLLER trademark; and U.S. Registration No. 5,978,630 for the NGINX UNIT trademark (collectively, the “Prior NGINX Registrations”). See (Exhibit B,
¶¶ 751 – 843).
26. Specifically, cancellation of the Prior NGINX Registrations is sought because
Nginx Software, Inc. and Nginx, Inc. (the “Prior Applicants”) and Applicant made knowingly false statements to the U.S. Patent and Trademark Office during prosecution of the Prior NGINX
Registrations and in continuing the maintenance of the relevant Prior NGINX Registrations. The
Prior Applicants and Applicant knew that the NGINX trademark was the property of Rambler.
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27. By signing the requisite declarations for the Prior NGINX Registrations, the Prior
Applicants and Applicant made knowingly false statements to the U.S. Patent and Trademark
Office that no one else had the right to use the NGINX trademark. This was not true where
Rambler had rights in the NGINX trademark.
28. The fact that the Prior Applicants knew of Rambler’s trademark rights is evidenced
by the dates of first use claimed by the Prior Applicants that date back to before the Prior
Applicants were in existence and use of the NGINX trademark inured to the benefit of Rambler.
See (Exhibit B, ¶¶ 307-310, 317-319, 752-755, 760, 773-774, 777).
29. Applicant continued the nefarious practice of relying on rights, which were actually
Rambler’s rights, and by fraudulently presenting such rights as its own to the U.S. Patent and
Trademark Office in the Statement of Use that was filed by Applicant on December 11, 2019 for the NGINX trademark, U.S. Registration No. 5,973,515. See (Exhibit B, ¶¶ 807-809).
30. In the Statement of Use, Applicant claimed a date of first use as of December 14,
2009 and a date of first use in U.S. commerce as of April 12, 2011. Attached as Exhibit D is a true and correct copy of the Statement of Use for U.S. Registration No. 5,973,515. The foregoing dates coincide with the Former Employees still being employed with Rambler and use of the NGINX
trademarks inuring to the benefit of Rambler. See (Exhibit B, ¶¶ 54, 97, 348-350, 393, 516).
31. Despite the knowledge Applicant gained from its pre-Merger due diligence
regarding the lack of rights that the Prior Applicants had with respect to the NGINX trademark,
Applicant continues to fraudulently assert that the NGINX-formative trademarks in the Prior
NGINX Registrations are owned by it. Further, Applicant continues to rely on first-use dates documented to be dates when the Former Employees were still at Rambler, bound by their respective employment and confidentiality agreements confirming that Rambler owned all such
7
intellectual property rights. Applicant has similarly asserted first-use dates in U.S. Application
No. 88/778,862, which are also contrary to the facts, since the Former Employees and their companies did not obtain rights to the NGINX trademark or NGINX (Stylized) trademark and could not, therefore, claim to own the N and Green Design mark which is a representation of the
NGINX trademark.
32. The Merger closed on May 8, 2019, over half a year before Applicant filed U.S.
Application Serial No. 88/778,862, and which was well after Applicant had conducted its pre-
Merger due diligence.
33. On the foregoing improper basis, Applicant undertook filing the subject application
for the N and Green Design trademark which stands for and is an interchangeable symbol with the
NGINX trademark.
34. Applicant filed U.S. Application Serial No. 88/778,862 for the N and Green Design
trademark with an intent to continue deceiving the Trademark Office where Applicant knew of
Rambler’s rights in the NGINX trademark and NGINX (Stylized) trademark prior to filing the
application.
35. The declaration in U.S. Application Serial No. 88/778,862 (the “Declaration”) states in relevant part:
To the best of the signatory's knowledge and belief, no other persons, except, if applicable,
concurrent users, have the right to use the mark in commerce, either in the identical form
or in such near resemblance as to be likely, when used on or in connection with the
goods/services of such other persons, to cause confusion or mistake, or to deceive. To the
best of the signatory's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, the allegations and other factual contentions made
8
above have evidentiary support. The signatory being warned that willful false statements
and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and
that such willful false statements and the like may jeopardize the validity of the application
or submission or any registration resulting therefrom, declares that all statements made of
his/her own knowledge are true and all statements made on information and belief are
believed to be true.
Attached as Exhibit E is a true and correct copy of U.S. Application Serial No. 88/778,862
filed with the Trademark Office which includes the Declaration.
36. Upon information and belief, based on Applicant’s knowledge of the history of the
NGINX trademark, generally, and the Prior NGINX Registrations, Applicant made a false representation to the U.S. Patent and Trademark Office by causing its attorney to sign the
Declaration on the N and Green Design trademark application where Applicant knew of Rambler’s prior rights in the NGINX trademark.
37. Upon information and belief, Applicant made the false representation to the U.S.
Patent and Trademark Office with the intent to deceive, so that a registration would ultimately issue to Applicant for the N and Green Design mark because the U.S. Patent and Trademark Office
would have relied on Applicant’s Declaration that no other person or entity has the right to use the
mark in “identical form” or “near resemblance.”
38. Applicant is not entitled to seek registration of the N and Green Design trademark
because Rambler previously had the exclusive right to use the NGINX trademark in any form,
which would include any symbolic representation of the mark at the time Applicant filed U.S.
Application Serial No. 88/778,862, and, now, Opposer, as Rambler’s successor-in-interest by
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assignment, has the exclusive right to use the NGINX trademark in any stylization or symbolic
manner.
39. Applicant has committed fraud on the U.S. Patent and Trademark Office by filing
U.S. Application Serial No. 88/778,862 and by knowingly affirming in the Declaration that no one
else has the right to use the mark when Rambler, and, now by assignment, Opposer, has the
exclusive right as owner to use the NGINX trademark and any stylization and design elements that
serve to identify the NGINX brand.
WHEREFORE, Opposer respectfully requests that this Opposition be sustained and that
Applicant’s application to register N and Green Design as a trademark be denied in all respects.
Dated: July 24, 2020 Respectfully Submitted,
MEISTER SEELIG & FEIN LLP
/Jeffrey P. Weingart/ Jeffrey P. Weingart Susan M. Schlesinger Robert Feinland 125 Park Avenue, 7th Floor New York, NY 10017 Telephone: 212-655-3500 E-mail: [email protected] [email protected] [email protected]
Attorneys for Opposer
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CERTIFICATE OF FILING
The undersigned hereby certifies that a copy of the foregoing Notice of Opposition was filed with the Trademark Trial and Appeal Board on the date indicated below online through the
ESTTA system of the United States Patent and Trademark Office.
Dated: July 24, 2020
/Susan M. Schlesinger/ Susan M. Schlesinger
11
EXHIBIT A
EXHIBIT B Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 1 of 140
1 Douglas W. Dal Cielo (CA Bar No. 157109) [email protected] 2 Brian M. Affrunti (CA Bar No. 227072) 3 [email protected] BURKE, WILLIAMS & SORENSEN, LLP 4 60 South Market Street, Suite 1000 San Jose, CA 95113 5 Telephone: (408) 606-6300 Fax: (408) 606-6333 6
7 Alexander D. Pencu (pro hac vice to be filed) [email protected] 8 Christopher J. Major (pro hac vice to be filed) [email protected] 9 Jeffrey P. Weingart (pro hac vice to be filed) 10 [email protected] MEISTER SEELIG & FEIN LLP 11 125 Park Avenue, 7th Floor New York, NY 10017 12 Telephone: (212) 655-3500 Fax: (646) 539-3649 13 14 Attorneys for Plaintiff
15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA
17 LYNWOOD INVESTMENTS CY LIMITED, Case No. 18 Plaintiff, COMPLAINT 19 vs. 20 DEMAND FOR JURY TRIAL MAXIM KONOVALOV, IGOR SYSOEV, 21 ANDREY ALEXEEV, MAXIM DOUNIN, GLEB SMIRNOFF, ANGUS ROBERTSON, NGINX, 22 INC. (BVI), NGINX SOFTWARE, INC., NGINX, INC. (DE), BV NGINX, LLC, RUNA CAPITAL, 23 INC., EVENTURE CAPITAL PARTNERS II LLC and F5 NETWORKS, INC., 24 Defendants. 25
26
27
28
COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 2 of 140
1 COMPLAINT 2 Plaintiff Lynwood Investments CY Limited (“Lynwood” or “Plaintiff”), as the assignee of
3 Rambler Internet Holding LLC and its affiliates, brings this action against Defendants, and hereby
4 alleges as follows:
5 INTRODUCTION
6 1. Defendants Igor Sysoev and Maxim Konovalov, along with their co-conspirators, 7 brazenly stole an entire popular web server enterprise from their employer Rambler Internet Holding
8 LLC (“Rambler”) in Russia, where the computer software, known as NGINX (pronounced “Engine-
9 X”), was conceived, developed as a work for hire, and first publicly deployed.
10 2. The conspirators achieved the object of their conspiracy when they ultimately sold 11 the purloined NGINX-based enterprise in 2019 for $670 million to Defendant F5 Networks, Inc.
12 (“F5”), a publicly traded United States company with annual revenue of approximately $2.24 billion.
13 3. The conspirators, former high-level officers and employees of Rambler, the company 14 that developed and deployed the web server technology in Russia – planned to seek, and specifically
15 sought out, Silicon Valley to monetize their theft because they rightly assumed a large and profitable
16 United States technology company would bid a high price.
17 4. The conspirators fraudulently concealed their conduct from their former employer 18 Rambler in a highly-coordinated manner, including by hiding the true utility and value of the NGINX
19 software and associated business opportunities that they had developed while employed at Rambler.
20 5. The conspirators covered up their scheme by, among other things, being purposefully 21 opaque about their plans following their mass exit from Rambler, and by deleting electronic
22 communications and stealing and destroying Rambler servers containing evidence of their unlawful
23 conduct.
24 6. The defendants in this action, including the co-conspirators, Runa Capital, Inc. 25 (“Runa Capital”), EVenture Capital Partners II LLC, formerly known as BV Capital (“E. Ventures”),
26 and F5, which aided and abetted the conspiracy, all acted unlawfully and with knowledge of the
27 conspiracy detailed herein.
28 2 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 3 of 140
1 7. Rambler and its assignee, Lynwood, which along with its affiliated companies 2 formerly owned 50% of Rambler, having been alerted to the scheme detailed below by a
3 whistleblower in April 2019, conducted an extensive investigation into the defendants’ conduct.
4 8. After learning of the scope and effect of the conspirators’ unlawful scheme, Lynwood 5 moved with all deliberate speed to investigate the conspirators’ conduct and misdeeds. The
6 investigation was hampered by the conspirators’ extensive concealment of their wrongful actions,
7 including the deletion of emails and other materials from the Rambler computer network, and their
8 unauthorized removal of computer servers from Rambler’s premises that contained evidence of the
9 conspirators’ disloyal and illicit actions.
10 9. The extensive investigation, which required forensic recovery of numerous smoking 11 guns that the conspirators had gone to great lengths to attempt to hide and destroy, revealed that the
12 conspirators engaged in a massive and sophisticated conspiracy and cover-up to hijack an immensely
13 valuable business enterprise designed around the NGINX web server software that today is used by
14 more than 450 million websites worldwide.
15 10. Accordingly, Plaintiff files this action to vindicate its rights to the highly innovative 16 and valuable NGINX web server software and the business opportunities associated with that
17 technology, and to recover the extensive and ongoing damages caused by the Defendants’ unlawful
18 conduct.
19 11. The life of the popular web server software that has become known worldwide as 20 NGINX (the “NGINX Software”) began on October 23, 2001 when Sysoev wrote his first line of
21 NGINX Software code. On this date, Sysoev had already been employed at Rambler for
22 approximately one year and had signed his employment agreement with Rambler as a Systems
23 Administrator three months earlier wherein he was tasked by the company with developing programs
24 to solve Rambler-specific issues related to handling large volumes of web server traffic.
25 12. Sysoev was a programming talent at Rambler and was compensated accordingly with 26 frequent pay raises and outsized bonuses tied to his work on developing NGINX. Moreover, Sysoev
27 was insulated from Rambler senior management and board oversight by his co-conspirators
28 Konovalov and Smirnoff who were his direct supervisors at Rambler. As Rambler’s Chief 3 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 4 of 140
1 Technology Officer (“CTO”), Konovalov enabled Sysoev and the other conspirators to operate
2 clandestinely within Rambler to develop the NGINX Enterprise (as defined below) on Rambler’s
3 dime, using Rambler equipment, infrastructure, resources and talent while simultaneously closely
4 guarding the software’s technical and commercial development and value from discovery by
5 Rambler’s senior management.
6 13. For the next 10 years, until the conspirators orchestrated their resignations from 7 Rambler and stole the enormous business enterprise based on the NGINX Software that they had
8 hidden and nurtured for themselves, Sysoev, who claims to have written ninety-seven (97) percent
9 of the NGINX Software himself during those years, did so during regular Rambler business hours at
10 the Rambler office in Moscow, with extensive assistance from other Rambler employees, using
11 Rambler equipment and software, and utilizing Rambler’s large-scale Internet traffic and
12 infrastructure as a convenient, no-cost software test bed.
13 14. In carrying out their sophisticated conspiracy, the conspirators violated multiple 14 duties to Rambler that are enumerated in their employment agreements, internal Rambler policies
15 and codes of ethics, as well as applicable Russian law.
16 15. Like Konovalov and the other former Rambler employees with whom Sysoev 17 conspired, when arriving at Rambler, Sysoev signed employment agreements with Rambler that
18 explicitly provided that what he developed while employed at Rambler constituted works for hire
19 that Rambler automatically owned, in all respects.
20 16. Rambler was also fastidious in promulgating and maintaining internal employment 21 policies, handbooks and a code of ethics when the conspirators were employed there which expressly
22 provided that employee work product such as computer software and other technology would be
23 owned by Rambler and which clearly stated that Rambler employees were obligated to maintain the
24 strict confidentiality thereof.
25 17. Rambler also maintained extensive conflict-of-interest policies during the tenures of 26 Sysoev, Konovalov and the other co-conspirators that explicitly restricted them from engaging in
27 activities that could result in conflicts of interest with their employer Rambler.
28 4 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 5 of 140
1 18. Additionally, Russian law in effect at the time that the conspirators were employed 2 by Rambler conferred on Rambler ownership of work product generated by its employees and
3 imposed duties of loyalty on all Rambler employees, including the conspirators.
4 19. Sysoev, Konovalov and their co-conspirators violated their obligations imposed by 5 their Rambler employment and separation agreements, Rambler’s written code of ethics,
6 employment policies and handbooks, conflict-of-interest policies that they received, reviewed and
7 acknowledged in writing, and applicable Russian law that protected Rambler’s intellectual property
8 rights and imposed duties of loyalty on the co-conspirators.
9 20. Instead of complying with their legal obligations to Rambler, Sysoev, Konovalov and 10 the other conspirators saw a huge financial opportunity in the NGINX Software and related business
11 opportunities, and rather than inform Rambler of it, they executed a covert scheme to misappropriate
12 it for themselves.
13 21. After Sysoev released the NGINX Software in 2004 as open source code, without 14 authorization from Rambler, it quickly surged in popularity among operators of large Web sites in
15 Russia and soon, around the world.
16 22. While Sysoev had released the NGINX Software under a simple “BSD-style” open 17 source license for the world to use, the conspirators, with Konovalov at the helm after his arrival at
18 Rambler in 2008 as CTO, soon identified a lucrative new business enterprise (the “NGINX
19 Enterprise”), which they decided to exploit for themselves, rather than for the benefit of Rambler.
20 23. Cognizant of their multi-layered legal obligations to Rambler and Rambler’s 21 ownership rights to the NGINX Enterprise, secrecy was paramount; and Sysoev, Konovalov and the
22 other co-conspirators at Rambler were in a perfect position to achieve it. Together, with Konovalov
23 as CTO, they were able to freely operate below the radar and without drawing scrutiny from Rambler
24 management. Indeed, the conspirators were able to carry out their scheme without Rambler’s
25 knowledge by virtue of Konovalov’s high-level position as CTO, which he used to conceal from
26 Rambler the true extent of Sysoev’s software development at Rambler and the related business
27 opportunities that resulted therefrom.
28 5 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 6 of 140
1 24. The conspirators’ vision of the NGNIX Enterprise was simple and elegant: They 2 would draw on the growing momentum and popularity of the NGINX Software among operators of
3 large commercial Web sites around the world by developing, licensing and servicing proprietary,
4 fee-based software, in executable form only, to provide paying customers with NGINX-related
5 functionality that did not exist in the open-source NGINX Software project.
6 25. It was the perfect plan. No one in the world knew more about the NGINX Software 7 than Sysoev, its principal architect and coder. He had become the NGINX Software guru and a
8 worldwide technology celebrity, all at Rambler’s expense. He and his conspirators had free reign to
9 determine what would be in the next public release of the NGINX Software, and, more importantly,
10 what new improvements and features could be held back and released only as executable code to
11 paying customers. Once released, no one but Sysoev and his conspirators would have the source
12 code for those proprietary extensions and be able to effectively charge service fees, on top of license
13 and/or subscription fees, to implement, debug and maintain them.
14 26. In short, the open source NGINX Software was the razor, and proprietary NGINX 15 extensions and add-ons were the razor blades. The conspirators fully recognized that the value was
16 in the blades and orchestrated a scheme to monetize it for themselves.
17 27. By 2008, Konovalov had arrived at Rambler and as CTO oversaw the company’s 18 entire technological product development. Konovalov recognized the potential for the NGINX
19 Enterprise, and convinced Sysoev that they could enrich themselves by stealing it from Rambler.
20 28. As the popularity of the open source NGINX Software surged, the conspirators were 21 able to surreptitiously attract venture capital investors to help them launch the NGINX Enterprise
22 away from Rambler for their own enrichment.
23 29. With Sysoev’s focus on the software, and Konovalov taking point with potential 24 investors (while simultaneously misrepresenting to Rambler senior management that the company’s
25 NGINX Software assets were worthless), the scheme could not fail.
26 30. By early 2010, nearly two years before Sysoev exited Rambler, execution of the 27 conspirators’ covert scheme was well underway, under the protective cover of Konovalov and his
28 6 COMPLAINT, Case No.
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1 tightknit circle of senior team leaders within Rambler’s Network Operation Center (“NOC”) – the
2 department where Sysoev and the conspirators (with the exception of Konovalov) were employed.
3 31. By February 2010, the conspirators started to move on a key part of the plan that they 4 referred to as “NGINX Plus,” sometimes referred to in the early days as “NGINX+.” “NGINX Plus”
5 or “NGINX+” is proprietary commercial software functioning as extensions of the NGINX Software,
6 which Sysoev had already begun quietly developing at Rambler without the company’s knowledge.
7 32. That is when Sysoev and Konovalov enlisted the help of the whistleblower in this 8 case, Alexander Germanovich Korotkov (“Korotkov”), who had served as Rambler Director of
9 Management Information Systems (the “CIO”) from August 23, 2007 until June 29, 2009, to help
10 lay the groundwork for misappropriating the NGINX Enterprise that was conceived and developed
11 at Rambler for the conspirators’ personal enrichment.
12 33. Sysoev and Konovalov needed a conspirator outside of Rambler to lay the 13 groundwork for stealing the NGINX Enterprise. They found their man in former Rambler employee
14 Korotkov who served as the intermediary between the conspirators (all of whom were still employed
15 at Rambler) and the venture capital community willing to finance a new company the conspirators
16 planned to form that would be anchored by the stolen intellectual property and business opportunities
17 conceived and developed at Rambler.
18 34. In an effort to avoid leaving their fingerprints behind, Sysoev and Konovalov solicited 19 Korotkov to join the conspiracy and directed him to start executing on their scheme by first
20 registering the Internet domain name “NGINXPLUS.COM”.
21 35. While he had exited Rambler seven months earlier, Korotkov, who initially was part 22 of the conspiracy until Sysoev and Konovalov snubbed him, tried to position himself as the lead deal
23 maker of the group. Korotkov had moved to Silicon Valley to work in the tech industry but continued
24 to assist Sysoev and Konovalov in their efforts to shop the NGINX Enterprise to Silicon Valley
25 investors in order to finance the fledgling business and increase the financial exit reward down the
26 road. Of course, Rambler could have incubated the NGINX Enterprise if only the conspirators had
27 informed Rambler of its existence. But the conspirators wanted to steal the NGINX Enterprise; so
28 they surreptitiously went outside Rambler. 7 COMPLAINT, Case No.
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1 36. Korotkov assisted the conspirators in promoting the NGINX Plus model to select 2 venture capital investors. He also developed and populated a Web site, NGINXPLUS.COM, which
3 promoted “NGINX+” (the “Korotkov Site”). A snapshot of the Korotkov Site which he submitted
4 to the United States Patent and Trademark Office in support of a trademark application for the
5 NGINX trademark filed on March 16, 2011 – shortly before Konovalov left Rambler and nine
6 months before Sysoev exited the company – reveals that the conspirators were already carrying out
7 their plan to monetize NGINX Plus.
8 37. The Korotkov Site shows that it was located at Internet URL nginxplus.com. In 9 addition, it prominently displayed the term “nginx+”. Further, the page from the Korotkov Site
10 shows that the group had already included a category called “Pricing” on the site.
11 38. The Korotkov Site also revealed, in bold letters, that there were already 12,547 12 “ACTIVE APPLICATIONS” of “nginx+” “DEPLOYED,” which were “[r]unning on the Nginx
13 Hosted Platform.”
14 39. In his trademark application, Korotkov included a statement that the NGINX 15 trademark had been first used on February 1, 2010, and first used in commerce March 1, 2011, even
16 though Sysoev and Konovalov were still Rambler employees at those times and did not disclose their
17 early marketing and commercialization of the NGINX Enterprise to their employer.
18 40. Additionally, Korotkov included in his identification of goods and services for the 19 NGINX trademark the following identification of services in International Class 42: “Computer
20 services, namely, providing virtual and non virtual application servers, web servers, file servers, co-
21 location servers, load balancing servers, redundancy servers, media servers and database servers of
22 variable capacity to third party computing and data storage facilities; Platform as a service (PAAS)
23 featuring computer software platforms for web applications, web server applications, web server
24 frameworks, cloud computing; Software as a service (SAAS) services featuring software in the field
25 of web applications, web server applications, web server frameworks, cloud computing.”
26 41. In other words, according to Korotkov’s own sworn statements to the United States 27 Patent and Trademark Office, by no later than March 1, 2011, the conspirators had already kicked
28 off their new NGINX Plus business based on a fee-based license or subscription model that had 8 COMPLAINT, Case No.
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1 already deployed at least 12,547 active applications without informing Rambler, the true owner of
2 the NGINX Enterprise.
3 42. Korotkov’s identification of goods and services and the information contained in the 4 Korotkov Site go well beyond the model that Sysoev was using for open-source NGINX Software
5 that consisted merely of posting on the Internet and maintaining a library of open source NGINX
6 Software for download by third parties pursuant to a two-paragraph open source BSD-type license.
7 43. As Rambler and Lynwood would discover only in late 2019 and early 2020, Sysoev 8 and the conspirators were hard at work conceiving and developing NGINX Plus product offerings
9 well before they departed Rambler in 2011.
10 44. Indeed, in the course of their respective investigations, Rambler and Lynwood 11 discovered that the conspirators and Korotkov spent 2010 and 2011 not only registering domain
12 names and filing a trademark application in an effort to position NGINX Plus product offerings as
13 their own but they also formed their own business entities and secured outside investors to launch
14 the NGINX Enterprise for themselves by misappropriating it from Rambler where they had
15 developed both the open source and proprietary NGINX software code as work made for hire using
16 Rambler’s resources.
17 45. Co-Defendants Runa Capital and E.Ventures, Silicon Valley venture capital firms, 18 knew of Sysoev’s and Konovalov’s duties owed to Rambler and that Rambler maintained the
19 ownership rights to the NGINX Software, NGINX Plus and the NGINX Enterprise. Nevertheless,
20 Runa Capital and E. Ventures assisted and encouraged Sysoev and Konovalov while they were still
21 employees at Rambler, to breach their duties to Rambler and to misappropriate the NGINX
22 Enterprise for the benefit of the fledgling business that Sysoev and Konovalov were forming and that
23 Runa Capital and E. Ventures intended on funding and ultimately did fund.
24 46. The pre-exit work that Sysoev and the conspirators devoted to NGINX Plus 25 specifically, and to the NGINX Enterprise more generally, while still employed at Rambler, enabled
26 the conspirators to quickly roll out commercial NGINX Plus products through their newly formed
27 company, defendant NGINX, Inc. (“NGINX BVI”), in 2013, only 21 months after Sysoev departed
28 from Rambler. 9 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 10 of 140
1 47. From 2013 to 2019, when NGINX BVI merged with Defendant F5, NGINX Plus was 2 the primary driver of revenue for the company and the reason that the company raised approximately
3 $100 million in venture funding. In short, NGINX Plus was the crown jewel of the NGINX
4 Enterprise. But for the conspirators’ breaches of their contractual and fiduciary duties as officers
5 and employees of Rambler and their subsequent concealment of same, NGINX Plus and the NGINX
6 Enterprise would have remained at Rambler as work made for hire and Rambler would have enjoyed
7 the fruits of its investments.
8 48. NGINX Plus was also one the primary drivers of the F5 merger. In its 10K filing for 9 2019 following the merger, F5 touted the NGINX acquisition, stating: “Under the NGINX brand we
10 offer: NGINX Plus, an all-in-one load balancer, web server, content cache, and API gateway for
11 modern applications. NGINX Controller, which provides centralized monitoring and management
12 for NGINX Plus.”
13 49. F5 has continued to aggressively market and sell NGINX Plus, including under a paid 14 subscription model, in the year since the merger. F5’s message to the software world is stated very
15 simply on its website: “If You Like NGINX, You’ll Love NGINX Plus.”
16 50. F5’s website also states: “NGINX Plus is a software load balancer, web server, and 17 content cache built on top of open source NGINX. NGINX Plus has exclusive enterprise-grade
18 features beyond what’s available in the open source offering, including session persistence,
19 configuration via API, and active health checks. Use NGINX Plus instead of your hardware load
20 balancer and get the freedom to innovate without being constrained by infrastructure.”
21 51. F5 conducted extensive due diligence in early 2019 in connection with the NGINX, 22 Inc. merger and F5 was aware prior to the consummation of the merger that the conspirators had
23 stolen the NGINX Enterprise from Rambler, including such assets as NGINX Plus and the NGINX
24 Software.
25 52. For example, in its own filings with the United States Patent and Trademark Office 26 following the merger, F5 recognized and confirmed that use by the conspirators of the NGINX
27 trademark in commerce, including in connection with the software-as-a-service-type model that
28 10 COMPLAINT, Case No.
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1 Korotkov had revealed in his previous trademark application, had predated the conspirators’
2 departure from Rambler.
3 53. F5 took over a trademark application from NGINX BVI for the NGINX trademark 4 originally filed on June 14, 2017 by having F5’s legal counsel file a Statement of Use which claims
5 that the first use of the NGINX trademark was in connection with not only server software, but also
6 in connection with various commercial software-as-a-service offerings.
7 54. In the Statement of Use, the F5 attorney swore that the first use of the NGINX 8 trademark in connection with such goods and services took place on December 14, 2009, and that
9 the first use in commerce took place on April 12, 2011. These dates not only closely align with the
10 date of first use (February 1, 2010) and the date of first use in commerce (March 1, 2011) cited by
11 Korotkov on his own trademark application on behalf of the conspirators, but also clearly
12 demonstrate that F5 knew that NGINX Plus was developed by the conspirators while employed at
13 Rambler and in furtherance of the scope of their employment responsibilities.
14 55. F5 proceeded with the merger despite such knowledge, in total disregard of how the 15 conspirators had repeatedly violated Rambler’s rights resulting in vast damages to Rambler, and in
16 turn, to Rambler’s assignee Lynwood.
17 THE PARTIES
18 56. Plaintiff Lynwood is a Cyprus limited company with a principal place of business 19 located at Saifi, 1, Porto Bello, Floor 3, Flat 302 3042, Limassol, Cyprus. Until January 2015,
20 Lynwood was known as A&NN Holdings Limited.
21 57. Lynwood is prosecuting this action in its capacity as assignee of all rights and interests 22 of Rambler and its affiliates, which are located in Moscow, Russia.
23 58. Defendant Maxim Olegovich Konovalov (“Konovalov”) is a citizen of the Russian 24 Federation who resides in Moscow, Russia.
25 59. Defendant Igor Vladimirovich Sysoev (“Sysoev”) is a citizen of the Russian 26 Federation who resides in Moscow, Russia.
27 60. Defendant Andrey Alexeev (“Alexeev”) is a citizen of the Russian Federation who 28 resides in Moscow, Russia. 11 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 12 of 140
1 61. Defendant Maxim Dounin (“Dounin”) is a citizen of the Russian Federation who 2 resides in Moscow, Russia.
3 62. Defendant Gleb Alexandrovich Smirnoff (“Smirnoff”) is a citizen of the Russian 4 Federation who resides in Los Gatos, California.
5 63. Defendant NGINX BVI is a British Virgin Islands corporation incorporated by 6 Konovalov, Alexeev, and Sysoev on July 6, 2011. NGINX BVI is now a wholly-owned subsidiary
7 of Defendant F5 Networks, Inc. NGINX BVI maintains its principal place of business at 795 Folsom
8 Street, 6th Floor, San Francisco, California 94107. F5 refers to this office as “NGINX San
9 Francisco.” NGINX BVI previously maintained an office at 85 Federal Street, San Francisco,
10 California 94107.
11 64. Defendant NGINX Software, Inc. (“NGINX Software, Inc.”) is a Delaware 12 corporation with a principal place of business located at 795 Folsom Street, Suite 600, San Francisco,
13 California. NGINX Software, Inc. was incorporated in Delaware on May 4, 2011. NGINX Software,
14 Inc. opened an office in San Francisco, California around that time. As part of registering to do
15 business in California, on May 23, 2011 NGINX Software, Inc. filed a Statement and Designation
16 by Foreign Corporation. The Statement and Designation by Foreign Corporation appointed an agent
17 for service of process in California and it was executed on behalf of NGINX Software, Inc. by
18 Konovalov as its Chief Executive Officer (“CEO”). NGINX Software, Inc. has appointed CT
19 Corporation System as its agent for service in the State of California.
20 65. Defendant NGINX, Inc. is a Delaware corporation (“NGINX DE”) with a principal 21 place of business located at 795 Folsom Street, Suite 600, San Francisco, California. NGINX DE
22 was incorporated on August 8, 2011. Upon information and belief, NGINX DE did not register to
23 do business in California.
24 66. Defendant BV NGINX, LLC (“BV NGINX”) is a Delaware limited liability company 25 with a principal place of business located at 795 Folsom Street, Suite 600, San Francisco, California.
26 67. Defendant Angus “Gus” James Bruce Robertson (“Robertson”) is a citizen of the 27 State of Florida, and resides at 300 South Point Drive, Apartment 2706, Miami Beach, Florida 33139.
28 Robertson joined NGINX as CEO in 2012. Robertson joined F5 as a result of the merger between 12 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 13 of 140
1 F5 and NGINX BVI, and like Konovalov and Sysoev, received restricted F5 stock as part of the
2 transaction. Robertson is Senior Vice President and General Manager of NGINX at F5.
3 68. Defendant Runa Capital is a Delaware corporation engaged in the business of 4 providing venture capital, headquartered at 459 Hamilton Avenue, Suite 306, Palo Alto, California
5 94301.
6 69. Defendant E. Ventures is a Delaware limited liability company engaged in the 7 business of providing venture capital, headquartered at 600 Montgomery Street, 43rd Floor, San
8 Francisco, California 94111.
9 70. Defendant F5 is a Washington corporation headquartered at 801 5th Avenue, Seattle, 10 Washington 98104. F5 is publicly traded on the NASDAQ exchange under the symbol FFIV. F5 is
11 registered to do business in the State of California, does business in the State of California, and has
12 appointed CT Corporation System as its agent for service of process in California.
13 JURISDICTION AND VENUE
14 71. This action arises under the Copyright Laws of the United States, 17 U.S.C. §§ 1, et 15 seq., and the Lanham Act, 15 U.S.C. §§ 1051, et seq. as well as under the Berne Convention for the
16 Protection of Literary and Artistic Works (the “Berne Convention”). This Court therefore has subject
17 matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338.
18 72. This Court also has supplemental jurisdiction over the remaining claims pursuant to 19 28 U.S.C. § 1367, as the remaining claims form part of the same case or controversy.
20 73. This Court has personal jurisdiction over Defendants under Cal. Code Civ. Proc. 21 § 410.10 and the United States Constitution because Defendants regularly and systematically
22 conduct business in California, including by maintaining headquarters, offices, and conducting
23 commerce within California. Moreover, Defendants committed a substantial portion of the
24 misconduct described in this Complaint in California.
25 74. In addition, NGINX Software, Inc. and F5 are registered to do business in California 26 and have appointed agents for service of process in California.
27 75. Runa Capital and E. Ventures both have their headquarters in California and regularly 28 to business in California. 13 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 14 of 140
1 76. Smirnoff resides in California.
2 77. NGINX BVI, NGINX DE, and BV NGINX have maintained their headquarters in 3 California and regularly conducted business in California and therefore should have registered to do
4 business in California and appoint an agent for service of process in California. By default, NGINX
5 BVI, NGINX DE, and BV NGINX have appointed the California Secretary of State as their agent
6 for service of process in California.
7 78. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(1) because 8 multiple defendants reside in this District and, additionally, pursuant to 28 U.S.C. § 1391(b)(2)
9 because a substantial part of the events giving rise to the claims set forth herein occurred in this
10 District.
11 FACTS COMMON TO ALL COUNTS
12 79. Rambler is a limited liability company organized and existing under the laws of the 13 Russian Federation and headquartered in Moscow, Russia.
14 80. Rambler is one of the largest media companies and web portals in Russia. Rambler 15 was also the largest technology company and search engine in Russia during Sysoev’s employment
16 with the company.
17 81. Lynwood with its affiliated companies owned 50% of Rambler up until December 18 2014.
19 82. Defendants Konovalov, Sysoev and Smirnoff (the “Disloyal Employees”) all worked 20 together at Rambler where they hatched and began executing their conspiracy to use Rambler’s
21 resources to develop the NGINX Enterprise and sell it to a third party for their own ill-gotten profit
22 and to the exclusion of Rambler. Co-Defendants Alexeev and Dounin were third-party acquaintances
23 of the Disloyal Employees who joined their conspiracy at the outset. Dounin was himself a former
24 Rambler employee from November 1, 2004 until September 14, 2007, during which time he served
25 as the Head of Rambler’s Programming Department and worked with Sysoev on a variety of projects,
26 including development of the NGINX Software. After he left Rambler, Dounin reconnected with
27 Sysoev and the other Disloyal Employees to carry out the conspiracy. Accordingly, the Disloyal
28 Employees along with Alexeev and Dounin are collectively referred to as the “Team.” 14 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 15 of 140
1
2 Defendant Konovalov’s Employment with Rambler
3 83. Konovalov was employed by Rambler from March 18, 2008 until April 29, 2011.
4 84. Konovalov was appointed CTO of Rambler on March 18, 2008.
5 85. On March 18, 2008, Rambler and Konovalov entered into a written employment 6 agreement, which is identified as Contract No. 27/08 (the “Konovalov Employment Agreement”).
7 The Konovalov Employment Agreement contained restrictions prohibiting the disclosure of
8 Rambler’s proprietary information.
9 86. Specifically, the Konovalov Employment Agreement required Konovalov to: 10 2.3.11 not disclose information constituting a trade secret owned by the employer and his
11 counteractants, and not to use this information for personal purposes without their consent;
12 2.3.12 not disclose information constituting an official and/or commercial secret held by the
13 Employer and his contractors after the termination of the Employment Contract within the period
14 stipulated by the agreement between the employee and the employer concluded during the term of
15 the Employment Contract, or within three years after the termination of the Employment Contract,
16 if the specified agreement has not been concluded;
17 2.3.13 compensate the damage caused to the Employer, if the Employee has been guilty of divulging
18 information constituting an official and/or commercial secret, which became known to him in
19 connection with the performance of his labor duties;
20 2.3.14 transfer to the Employer the material information media used by the Employee containing
21 information constituting official and/or commercial secrets, as well as all documents generated
22 during the performance of the work, and material and technical means transferred to him by the
23 Employer for the performance of labor duties upon termination of the Employment Contract.
24 87. The Konovalov Employment Agreement also contains works for hire protection for 25 Rambler. Specifically, Section 5.1 of the Konovalov Employment Agreement provides: “As part of
26 the Employee’s performance of his duties, he may be entrusted with the Legal Entity’s administration
27 or its authorized person to create the works being the objects of copyright, such as computer
28 15 COMPLAINT, Case No.
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1 programs, databases, photographs, videos, books, ringtones, articles and other works that are objects
2 of copyright.”
3 88. In addition, Section 5.2 of the Konovalov Employment Agreement provides that 4 “[t]he exclusive right to a computer program or database created by the Employee in connection with
5 the performance of labor duties or on the instructions of the Employer shall belong to the Legal
6 Entity, unless otherwise provided by an agreement between him or it and the Employee.”
7 89. The Board of Directors of Rambler Media Limited on September 14, 2007 adopted a 8 “Rambler Code of Ethics” (the “Code of Ethics”), which expressly recites that “…it is the policy of
9 Rambler Media Limited and all subsidiaries (the ‘Company’) that the Company’s management (the
10 ‘Management’) adhere to and advocate the following principles governing their conduct in the
11 fulfillment of their responsibilities with the Company.”
12 90. Konovalov, as CTO, and therefore part of Management, signed and dated a copy of 13 the Code of Ethics on March 19, 2008.
14 91. Konovalov’s signature appears on a one-page attachment to the Code of Ethics, 15 entitled “Rambler Code of Ethics Compliance Statement” in which he states: “1. I have read and
16 understand the Code of Ethics of Rambler Media Limited and affiliates (the “Company”). 2. I have
17 been given and instructed to retain a copy of the Code of Ethics for my future reference. 3. I agree
18 to abide by the Code of Ethics, as amended from time to time by written notice, and any other
19 guidelines adopted by the Company.”
20 92. Section 1 of the Rambler Code of Ethics is entitled “Honest and Ethical Conduct.” 21 The introductory paragraph of such paragraph states as follows: “Management must conduct
22 themselves honestly and ethically, and must strive to avoid the appearance of improper behavior in
23 the conduct of their duties. This Code does not cover every issue that may arise, but sets out basic
24 principles.”
25 93. In the same section, the subsection entitled “Conflict of Interest” provides, in part, as 26 follows: “Management must make business decisions based on the best interest of the Company and
27 must not allow his or her personal interest to influence such decisions.” That section further provides
28 16 COMPLAINT, Case No.
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1 “Management must avoid even the appearance of dishonest or unethical behavior in the conduct of
2 their duties.”
3 94. In the same section, the subsection entitled “Corporate Opportunities” provides as 4 follows:
5 “Management is prohibited from taking personal opportunities that are discovered through the use
6 of corporate property, information or position without the consent of the Company. Management
7 may not use corporate property, information or position for improper personal gain, and may not
8 compete with the Company directly or indirectly.”
9 95. In the same section, the subsection entitled “Confidentiality” provides as follows: 10 Management must take reasonable measures to maintain the confidentiality of confidential
11 information entrusted to them by the Company or its customers or suppliers, except when disclosure
12 is authorized or required by laws or regulations. Confidential information includes all non-public
13 information that might be of use to competitors, or harmful to Company or its customers or suppliers,
14 if disclosed. The obligation to preserve confidential information continues even after employment
15 ends.
16 96. Lastly, Section 6 of the Rambler Code of Ethics provides as follows: “This Code is a 17 policy of the Company. Management will be held responsible for any violation of this Code by the
18 Company, which could include being relieved of his or her duties or termination of employment.”
19 Defendant Sysoev’s Employment with Rambler
20 97. Sysoev is a former employee of Rambler. As detailed below, Sysoev was the central 21 figure in the development of the NGINX Software for Rambler. Sysoev was employed by Rambler
22 from November 14, 2000 until December 1, 2011.
23 98. In 2000, Rambler hired Sysoev as a System Administrator. Sysoev was highly 24 talented, and rose steadily within Rambler. As part of his employment duties, Sysoev was tasked
25 with developing software to address technical issues experienced by Rambler at the time.
26 99. On August 1, 2003, Rambler affiliate Rambler Telecom LLC (“Rambler Telecom”) 27 hired Sysoev on an external part time basis as System Administrator for its Engineering Department.
28 17 COMPLAINT, Case No.
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1 100. As of December 29, 2004, Rambler promoted Sysoev to Lead Specialist of the 2 Telecommunications Department/Server and Technology Network.
3 101. Beginning in December 2004 and continuing until Sysoev’s separation from Rambler 4 in December 2011, Rambler paid Sysoev regular outsized bonuses on either a quarterly or semi-
5 annual basis in recognition of his work in developing the NGINX Software for Rambler and the
6 software code’s utility in solving the company’s various issues at that time.
7 102. On January 10, 2006, Rambler Telecom transferred Sysoev from the Engineering 8 Department to the Network Control Division effective as of January 1, 2006, where he also served
9 as System Administrator.
10 103. On September 14, 2006, Rambler transferred Sysoev to the position of Programmer 11 within the DRT/Searching Systems Department.
12 104. Sysoev separated from his part time position with Rambler Telecom at his request on 13 October 2, 2006. Sysoev continued his employment with Rambler.
14 105. From October 1, 2007 until May 23, 2011, Sysoev was Lead System Administrator 15 for Rambler’s Server and Technology Network.
16 106. In April 2011, while Sysoev was, unbeknownst to Rambler, scheming to launch a new 17 company using Rambler’s NGINX Software, Sysoev advised Rambler that he wished to terminate
18 his employment contract with Rambler.
19 107. On May 20, 2011, Sysoev separated from Rambler as a full-time employee.
20 108. Given how integral Sysoev was to Rambler’s operations, Rambler requested and 21 Sysoev agreed to continue employment with Rambler on a part-time basis. On May 23, 2011,
22 Rambler engaged Sysoev on a part-time basis as the Lead System Administrator for Rambler’s
23 Server and Technology Network.
24 109. On December 1, 2011, Sysoev separated entirely from Rambler and terminated his 25 part-time employment.
26 110. In connection with his employment with Rambler, Sysoev entered into multiple 27 agreements with Rambler.
28 18 COMPLAINT, Case No.
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1 111. Sysoev and Rambler entered into an employment agreement on August 9, 2001, 2 identified as Contract No. 43 (as amended and supplemented, the “Sysoev Employment
3 Agreement”).
4 112. Section 1.4 of the Sysoev Employment Agreement, contains the following non- 5 disclosure covenant:
6 The Employee shall undertake not to disclose information constituting the Business Entity’s official
7 and commercial secret, which became known to the Employee in connection with the performance
8 of his labor duties, both during and after the term of the employment relations with the Business
9 Entity. In addition, in the case of the implementation of reimbursable activities of other enterprises,
10 organizations, institutions, the Employer shall notify the Business Entity in writing about this.
11 113. Section 7.1 of the Sysoev Employment Agreement grants Rambler the following 12 works for hire protection:
13 As part of the Employee’s performance of his official duties, he may be entrusted with the Business
14 Entity’s administration or his or her authorized person to create works that are objects of copyright,
15 such as computer programs and databases. Such works is an official work. The exclusive property
16 rights of such works belong to the Business Entity.
17 114. Section 12.3 of the Sysoev Employment Agreement confirms that Sysoev’s 18 nondisclosure obligations survive the termination of his employment with Rambler:
19 The termination hereof shall not entail the termination of the obligation of the Employee not to
20 disclose information constituting an official or commercial secret of the Business Entity, which
21 became known to the Employee in connection with the performance of his labor duties, as long as
22 the specified information has been an official or commercial secret of the Business Entity by virtue
23 of the civil legislation of the Russian Federation.
24 115. Similarly, Section 12.4 of the Sysoev Employment Agreement provides: 25 In the event of termination hereof before receipt of the work book and settlement, the Employee shall
26 be obligated to transfer to the Employer all the property and documents of the Business Entity owned
27 by the Employee in connection with the performance of labor duties. The indicated property and
28 19 COMPLAINT, Case No.
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1 documents shall also include documents, programs, databases, and their developments on magnetic
2 media created as part of the Employee’s performance of his duties.
3 116. On August 9, 2001, Sysoev and Rambler entered into a Supplementary Employment 4 Agreement (the “Sysoev Supplementary Agreement”). Section 2.1 of the Sysoev Supplementary
5 Agreement states as follows:
6 An Employee admitted to documentary or other carriers of confidential information and trade
7 secrets shall be obliged:
8 --to keep the carriers of confidential data and trade secrets separate from other media;
9 --to ensure the impossibility of their loss;
10 --to ensure the impossibility of unauthorized access to the media;
11 --to destroy, in the prescribed manner, drafts and other storage media used to create draft documents;
12 --in case of employment termination, surrender all carriers of confidential data and trade secrets
13 within one business day to the head of the structural unit or to the head of the Company.
14 117. Section 2.2 of the Sysoev Supplementary Agreement states: “An employee admitted 15 to the carriers of confidential data shall be obligated to immediately inform the Company
16 management of the fact of the loss of media or unauthorized access to them by third parties, as well
17 as in relation to certificates, passes, seals, keys to office premises and safes.”
18 118. Section 2.3 of the Sysoev Supplementary Agreement states: “The employee must not 19 disclose the confidential data in any form during the entire term of the labor agreement with the
20 Company and within two years after its termination.”
21 119. Section 3.1 of the Sysoev Supplementary Agreement states: “Unauthorized access 22 and/or disclosure of confidential information shall be a gross violation of the Employer’s duties.”
23 120. Section 3.2 of the Sysoev Supplementary Agreement states: “For unauthorized access 24 and/or disclosure of confidential information, the Employee may be disciplined.”
25 121. Section 3.4 of the Sysoev Supplementary Agreement states: “An employee of the 26 Company who unauthorizedly discloses confidential information and/or who has allowed access to
27 confidential information or commercial information of other person is obliged to compensate the
28 20 COMPLAINT, Case No.
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1 Company in full, including real damage and lost profits, losses incurred by the Company and its
2 counteractants by the fact of disclosure.”
3 122. On November 1, 2004, Sysoev and Rambler entered into an Amendment to the 4 Sysoev Employment Agreement (“Sysoev 2004 Supplemental Agreement”), which granted Sysoev
5 a raise in salary and reaffirmed that “[t]he remaining conditions of the previously concluded
6 Employment Contract that have not been affected by this amendment shall not be subject to revision,
7 and the parties shall confirm their obligations.”
8 123. On September 14, 2006, in connection with Rambler’s transfer of Sysoev to the 9 position of Programmer within the DRT/Searching Systems Department, Sysoev and Rambler
10 entered into a Supplementary Agreement (the “Sysoev September 2006 Supplemental Agreement”).
11 124. The Sysoev September 2006 Supplemental Agreement granted Sysoev a raise in 12 salary and reaffirmed that “[t]he remaining conditions of the previously concluded Employment
13 Contract that have not been affected by this amendment shall not be subject to revision, and the
14 parties shall confirm their obligations.”
15 125. As of July 2, 2007, Sysoev and Rambler entered into a Supplementary Agreement 16 (the “Sysoev July 2007 Supplemental Agreement”), which granted Sysoev a large raise in salary and
17 reaffirmed that “[t]he remaining conditions of the previously concluded Employment Contract that
18 have not been affected by this amendment shall not be subject to revision, and the parties shall
19 confirm their obligations.”
20 126. On October 1, 2007, in connection with Rambler’s appointment of Sysoev as Lead 21 System Administrator for Rambler’s Server and Technology Network, Sysoev and Rambler entered
22 into a Supplementary Agreement (the “Sysoev October 2007 Supplemental Agreement”).
23 127. The Sysoev October 2007 Supplemental Agreement reaffirmed that “[t]he remaining 24 conditions of the previously concluded Employment Contract that have not been affected by this
25 amendment shall not be subject to revision, and the parties shall confirm their obligations.”
26 128. As of July 31, 2009, Sysoev and Rambler entered into a Supplementary Agreement 27 (the “Sysoev July 2009 Supplemental Agreement”), which granted Sysoev a large raise in salary and
28 reaffirmed that “[t]he remaining conditions of the previously concluded Employment Contract that 21 COMPLAINT, Case No.
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1 have not been affected by this amendment shall not be subject to revision, and the parties shall
2 confirm their obligations.”
3 129. In April 2011, Sysoev advised Rambler that he wished to separate from Rambler and 4 terminate the Sysoev Employment Agreement.
5 130. Effective May 20, 2011, Sysoev separated as a full-time employee from Rambler, and 6 the Sysoev Employment Agreement was terminated.
7 131. Of course, provisions of the Sysoev Employment Agreement that expressly survived 8 termination of Sysoev’s employment remained in effect.
9 132. On May 23, 2011, Rambler appointed Sysoev on a part-time basis as the Lead 10 Systems Administrator of Rambler’s server-technological complex (“Lead System Administrator”),
11 and Rambler and Sysoev entered into a new employment agreement.
12 133. This new employment agreement between Sysoev and Rambler was effective as of 13 May 18, 2011 (the “2011 Sysoev Employment Agreement”).
14 134. Section 1.3 of the 2011 Sysoev Employment Agreement states: “The work under the 15 Contract is the external part-time work for the Employee.”
16 135. Section 2.1.3 of the 2011 Sysoev Employment Agreement states as follows: 17 During the term of execution and after the termination of the Employee’s work with the Employer,
18 the Employee shall be required to observe the strictest secrecy in relation to all information and/or
19 documents that may become known to him, relating to the affairs, interests or operations of the
20 Employer and any of its employees, customers or other persons or business partners associated with
21 the Employer, and shall be obligated not to disclose such information, except upon receipt of the
22 appropriate authority from the Employer, and as well as not use it for his personal purposes or for
23 any purpose of the third party. The Employee shall comply with the business secrets non-disclosure
24 obligation (Appendix 1).
25 136. Appendix No. 1 to the 2011 Sysoev Employment Agreement, entitled “Commitment 26 of Business Secret Non-Disclosure,” requires Sysoev to:
27
28 22 COMPLAINT, Case No.
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1 1. Refrain from disclosing the information that constitutes the Company’s business secret, which will
2 be conferred upon me [Sysoev] or will become known to me in the course of performance of the job
3 duties;
4 2. Refrain from transfer to third parties and from public disclosures of the information that constitutes
5 the Company’s business secrets;
6 …
7 5. Refrain from using the Company’s business secret for carrying out any business that may be
8 prejudicial to the Company as a competitive action;
9 6. If any third parties try to get any information on the Company’s business secret from me, promptly
10 notify the Company’s top management thereof.
11 137. Sysoev separated entirely from Rambler effective December 1, 2011.
12 138. As of November 28, 2011, Sysoev and Rambler entered into a separation agreement 13 terminating the 2011 Sysoev Employment Agreement and memorializing the terms on which Sysoev
14 separated from Rambler (the “Sysoev Separation Agreement”).
15 139. The Sysoev Separation Agreement recited that the 2011 Agreement would terminate 16 as of December 1, 2011.
17 140. Importantly, the Sysoev Separation Agreement contained, among other things, the 18 following terms:
19 3. The Employee shall transfer all of the Company’s assets and documents being in the Employee’s
20 possession in connection with the Employee’s performance of the employment duties, including
21 documents, software, databases and their developments in magnetic media, which were created as
22 part of performance of job duties, to the Employer’s representative on or before December 1, 2011.
23 …
24 8. The Employee recognizes and confirms that the Employee will regard the provisions of this
25 Agreement as strictly confidential and will not disclose them to any persons whatsoever. The
26 Employee recognizes and confirms his/her obligation to comply with the confidential information
27 provisions with respect to the Employer, including, but not limited to, the Employer’s confidential
28 information (the Confidential Information under this Termination Agreement means any information 23 COMPLAINT, Case No.
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1 pertaining to Rambler Group of Companies, including but not limited to, its documents, products,
2 plans, customers, customer list, employees, strategy, marketing plans and strategy, pricing policy,
3 business processes, intellectual property, business secret, product development plans, corporate and
4 financial information), of which the Employee receives information in the course of his/her business
5 operations and the companies, for which the Employer is a legal successor, and shall not disclose
6 this information other than to the representative of the Employer, Rambler Group of Companies, by
7 any method, either before or after signing hereof.
8 …
9 9. This Agreement shall supersede all oral and/or written agreements concluded by the Parties before
10 signing hereof.
11 …
12 11. This Agreement shall be governed by and construed in accordance with the laws of the Russian
13 Federation.
14 Defendant Smirnoff’s Employment with Rambler
15 141. Smirnoff is a former employee of Rambler who was employed at the company from 16 September 21, 2006 until his resignation on November 12, 2012.
17 142. During his employment with Rambler, Smirnoff served as the Head of Rambler’s 18 Network Operations Center (“NOC”). Smirnoff was Sysoev’s immediate supervisor. Smirnoff
19 reported directly to Konovalov.
20 143. Smirnoff remained an employee of Rambler for approximately eleven months longer 21 than Sysoev before he resigned to join Konovalov and Sysoev at NGINX BVI .
22 144. Among the contractual obligations imposed on Smirnoff under his Rambler 23 Employment Agreement, dated September 21, 2006 (“Smirnoff Employment Agreement”) were:
24 2.3.1 Employee shall comply with the internal labor regulations of the Company.
25 2.3.2 Employee shall honestly and in good faith fulfill the labor duties assigned to him by the
26 Employment Contract and job description, demonstrate the necessary initiative and perseverance in
27 work constantly improving his professional qualification.
28 24 COMPLAINT, Case No.
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1 2.3.4 Employee shall take care of the property of the Employer and other employees; comply with
2 the established procedure for the storage of material assets and documents.
3 2.3.5 Employee shall immediately inform the Company management of any theft of and damage
4 to the Company’s property.
5 2.3.13 Employee shall compensate for damages caused to the Employer, if the Employee is guilty
6 of disclosing information constituting professional and/or trade secrets, which became known to him
7 during performance of his labor duties.
8 2.3.14 Employee shall upon termination of the Employment Contract hand over to the Employer
9 the material storage media used by the Employee and containing information constituting
10 professional and/or trade secrets, as well as all documents created during the performance of work,
11 as well as the material and technical means given to him by the Employer to perform his labor duties.
12 145. In addition, the Smirnoff Employment Agreement explicitly contained “Work Made 13 For Hire” provisions including
14 5.1 As part of the Employee’s official duties, he may be instructed by the Company
15 management or its authorized person to create works protected by copyright, such as computer
16 programs, databases, photographs, videos, books, ringtones, articles, and other works protected by
17 copyright.
18 5.2 The exclusive right to a computer program or database created by the Employee during
19 performance of his labor duties or as instructed by the Employer shall belong to the Company,
20 unless otherwise provided by an agreement between the Company and the Employee
21 Rambler’s Internal Labor Rules and Regulations
22 146. In addition to the contractual obligations set out above, Rambler established a written 23 set of rules and regulations governing its employees’ conduct, which the Disloyal Employees agreed
24 to abide by in connection with their Rambler employment.
25 147. As of September 1, 2008, Rambler issued a document entitled “Internal Labor Rules 26 and Regulations” (the “Rambler Regulations”).
27 148. Article 18 of the Rambler Regulations provides: 28 25 COMPLAINT, Case No.
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1 “Each employee is obliged to maintain the confidentiality in relation to everything
2 that relates to the facts and information of an economic, commercial nature, the
3 know-how of the Company, which he became aware of during the performance or
4 in connection with the performance of his labor duties. The management of the
5 Company informs each employee of a list of information that is confidential. Any
6 use outside the employer’s duties or transfer to third parties of any documents and
7 information relating to the activities of the Company is strictly prohibited.”
8 149. Annex 1 to the Rambler Regulations is entitled “List of Confidential Information” 9 and comprises a list of what is deemed to be Rambler’s confidential information including:
10 10. Technologies used in the Company ... 15. Information contained in computer
11 programs and databases related to the Company’s activities. This information,
12 including information contained in computer programs and databases for PC,
13 ORACLE, CRC, ADMIN, PILOT, Access, OASIS, ACS, as well as reports and
14 queries received from these programs and databases. … 18. Information about the
15 created objects of copyright and related rights, their elements … 21. Any special
16 knowledge, including practical experience of employees, involved specialists,
17 applied not only in production, but also in other areas of entrepreneurial activity:
18 trade, marketing, management, having commercial value and the disclosure of
19 which may result in damage to the Company.
20 150. Article XIV of the Rambler Regulations, entitled “Conflict of Interest,” states, in 21 pertinent part: “In order to exclude the possibility of a conflict of interest, any employee of the
22 Company who will be forced to assume obligations with respect to a competitor, supplier or client
23 on terms that could damage his position in the Company should immediately notify his/her
24 immediate boss or the HR department.”
25 151. In addition, the Rambler Regulations provide “[c]arrying out other professional 26 activities by an employee shall not harm his work in the Company. Other professional activities
27 should not compete with work in the Company or cause a conflict of interest.”
28 26 COMPLAINT, Case No.
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1 152. Rambler issued various iterations of the Rambler Regulations beginning as early as 2 2000, as well as in 2005. Each of those versions published and distributed to Rambler employees
3 contained provisions which were similar in scope, and similarly protective of Rambler’s rights, as
4 those provisions contained in the September 1, 2008 Rambler Regulations.
5 The Development of the NGINX Software and Related Business Opportunities
6 153. Sysoev spent years developing the NGINX Software for Rambler while he was a 7 Rambler employee as part of his official duties at Rambler, and with the assistance of Rambler
8 infrastructure, personnel, resources, and Internet traffic. When the Disloyal Employees with the
9 assistance of Alexeev and Dounin, realized how valuable the NGINX Software had become, they
10 faithlessly turned on Rambler and misappropriated the NGINX Enterprise for their own commercial
11 use.
12 154. Sysoev is widely credited with developing the NGINX Software. He developed the 13 NGINX Software during his 2000 through 2011 tenure as an employee of Rambler. Specifically,
14 Sysoev wrote his first line of NGINX Software code on October 23, 2001 while employed at
15 Rambler.
16 155. Sysoev started working on NGINX to solve problems with Rambler’s utilization of 17 the widely used open source web server known as Apache.
18 156. Apache was first released in 1995.
19 157. Webservers are an integral part of the Internet, and everyone from Fortune 50 20 companies to startups and individuals utilize webservers to allow users to navigate their websites.
21 158. Web pages are comprised of HTML documents. The Internet works by allowing the 22 visitor (or “web surfer”) to request a document from a given web address, with domain name servers
23 (i.e., a “DNS Server”) and an Internet provider (“IP”) system forwarding that request to the computer
24 that hosts the requested web page. The computer that hosts the requested web page then “serves”
25 the requested web page back to the visitor. To be able to serve different web pages to visitors, the
26 “serving” computer requires a server program. That is where Apache and more recently the NGINX
27 Software come in.
28 27 COMPLAINT, Case No.
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1 159. Apache’s open source web server software handles requests, analyzes them, and then 2 delivers the requested web page (or HTML document) to the web surfer.
3 160. And since 2004, NGINX has done the same thing. NGINX now enjoys a larger 4 market share than Apache.
5 161. While web server software like Apache and the NGINX Software are provided on an 6 open-source basis, the software is commercialized primarily by offering proprietary fee-based
7 enhanced enterprise features, functionality and services relating to the web server software.
8 162. Companies use the web server software to enable efficient access to their websites, 9 which of course have become increasingly more complex over time.
10 163. In the early 2000’s, technical experts and businesses alike began to worry about the 11 ability of the Internet and websites to accommodate exponentially increasing traffic.
12 164. The open source portion of the NGINX Software was first released on the Internet in 13 2004 by Sysoev, without authorization from Rambler, after being made available to a small
14 commercial software audience in Russia.
15 165. The NGINX web server was originally created as a scaling tool for Rambler’s 16 Internet-related properties and services.
17 166. After its open source release, the NGINX Software was mostly used as a load balancer 18 or reverse proxy in front of or on top of the Apache web server. However, as the NGINX Software
19 and Internet evolved, websites began employing the NGINX Software in lieu of Apache.
20 167. The NGINX Software now comes in two versions: open source licensed under 21 Berkeley Software Distribution license (“BSD license”), and a proprietary commercial product,
22 made available only in executable form, known as NGINX Plus and related commercial software
23 products, which are licensed by defendants NGINX BVI and F5 to paying customers on a
24 subscription basis and include fee-based support and additional revenue-generating enterprise
25 features.
26 168. Numerous goods and services have been built off of the NGINX Software, and the 27 opportunities for commercializing proprietary extensions to the NGINX Software that Sysoev wrote
28 for Rambler are virtually infinite. 28 COMPLAINT, Case No.
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1 169. Following Sysoev’s public release of the open source portion of the NGINX Software 2 in 2004, without authorization from Rambler, he spent the next seven years, during the time he was
3 employed at Rambler (and some years also part-time at Rambler Telecom), working on further
4 developing, testing, improving and releasing the NGINX Software all with the assistance of other
5 Rambler engineers, using Rambler resources, infrastructure and Rambler Internet traffic, during
6 regular Rambler business hours.
7 170. During that time, Sysoev received significant and ongoing technical assistance in this 8 NGINX-focused endeavor to continuously test and improve the code from a number of senior
9 Rambler computer/network department heads, software engineers and other technical staff,
10 including, but certainly not limited to, his co-conspirators.
11 171. Following the 2004 public release of the NGINX Software, the open source 12 community began to quickly embrace the solution, and it became viable as a web server solution by
13 2007.
14 172. The birth of the smart phone market led to a massive growth of mobile Internet users, 15 which in turn highlighted the problem of optimizing network sockets to handle large numbers of
16 clients simultaneously – the so-called “C10k problem.” At that moment, the NGINX Software was
17 poised to help programmers and system administrators solve this problem, as an alternative to the
18 then market-leading Apache web server.
19 173. By 2010, the NGINX Software already had six percent of the market share among all 20 web servers.
21 174. Sysoev has maintained that he authored ninety-seven percent of the NGINX Software 22 as of 2011.
23 Sysoev Developed NGINX For Rambler Using Rambler’s Resources
24 175. One of Sysoev’s primary employment responsibilities as a Rambler employee was to 25 develop the NGINX Software as a key component of Rambler infrastructure.
26 176. In software development parlance, the term “commit” means when a software 27 developer finalizes revisions to software code and saves them to the revision history of a body of
28 29 COMPLAINT, Case No.
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1 software residing in a designated code repository, which functions as a version control tool, such as
2 Mercurial or GitHub.
3 177. During the period from 2004 to mid-2011, all commits to the open source NGINX 4 Software were performed by Sysoev. The first commit made by someone other than Sysoev was
5 done on August 9, 2011, by Ruslan Ermilov ([email protected]). Thus, at least until that date, i.e.,
6 nearly his entire tenure as an employee of Rambler, Sysoev exclusively authored the NGINX
7 Software code.
8 178. An analysis of Sysoev’s work during normal Rambler business hours demonstrates 9 that his primary occupation was developing and testing the NGINX Software on Rambler servers.
10 Specifically, the time stamps of the Mercurial repository reveal that Sysoev spent nine years of his
11 Rambler employment working primarily on the NGINX Software and related development.
12 179. The open source software (OSS) code repositories (Mercurial and Github mirror) 13 show that a significant number of modifications to the NGINX Software were made by Sysoev
14 during normal business hours (M-F 10:00-19:00). The repositories show 3,629 total changes from
15 the start of January 1, 2004 through December 31, 2010. Narrowing the window to Monday-Friday,
16 during the UTC time of 07:00-16:00 (+3:00 for Moscow Time), 2174 changes were committed, all
17 by Sysoev. This shows that approximately 60% of the code commits were done by Sysoev during a
18 standard business-hours workday window at Rambler.
19 180. Sysoev tested his changes, and then actually announced “Nginx Releases” once they 20 were tested on the entirety of Rambler’s infrastructure.
21 181. Sysoev regularly and systematically used Rambler’s resources, including 22 infrastructure, Internet traffic, money, and human resources to develop, test, and improve the NGINX
23 Software.
24 182. As Owen Garrett of NGINIX BVI and now F5 wrote: “NGINX was written 25 specifically to address the performance limitations of Apache web servers. It was created in 2002
26 by Igor Sysoev, a system administrator for a popular Russian portal site (Rambler.ru), as a scaling
27 solution to help the site manage greater and greater volumes of traffic. It was open sourced in
28 October 2004, on the 47th anniversary of the launch of Sputnik.” 30 COMPLAINT, Case No.
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1 183. In a February 22, 2006 email to his NGINX list service, Sysoev disclosed that he 2 originally wrote the NGINX Software to solve Rambler-related problems utilizing the open source
3 Apache code, stating: “It was implement[ed], Nginx was planned not for mass-virtual hosting, but
4 first of all for rambler.ru – what I did not like as an admin in Apache, is done differently in Nginx.”
5 184. By his own admissions, Sysoev’s development of the NGINX Software was within 6 the scope of his employment with Rambler. In early 2012, a few months after leaving Rambler,
7 Sysoev admitted, this time in a media interview, that he had developed the NGINX Software to solve
8 Rambler-related problems:
9 I started the initial work in 2002, and in 2004 I opened NGINX to the public. Back
10 then, I was trying to overcome certain barriers of scaling the web infrastructure of a
11 large online media company I worked for.1 In particular, the difficulties of handling
12 many concurrent connections, reducing latency and offloading static content, SSL
13 and persistent connections were my main interest. There weren’t any reliable
14 production quality web server software to crack so-called C10K problem (handling
15 of at least 10,000 of concurrent connections, outlined by Dan Kegel). So in a sense I
16 decided to solve both practical and “academic” problems. I was very curious and
17 excited to try it out and I’m really happy it turned to be a successful attempt and that
18 NGINX is now used by the over 50,000,000 web sites on the Internet.
19 185. A slide deck presentation for potential venture funders that Sysoev and his co- 20 conspirators on the Team created in March and April 2011, before the Disloyal Employees left
21 Rambler with the NGINX Enterprise, contained an even more blunt admission that the NGINX
22 Software was specifically developed for the benefit of Rambler.
23 186. The slide deck, under the heading “history of development,” stated the NGINX 24 Software was “crafted to handle 500 million page requests per day for a Russian search
25 engine/portal” – an obvious reference to Rambler.
26
27
28 1 Sysoev’s reference to a large online media company is obviously his employer Rambler. 31 COMPLAINT, Case No.
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1 187. Dounin’s email correspondence with Sysoev regarding NGINX Software-related 2 topics date from as early as 2005. For example, regarding Rambler mail, Dounin wrote “…I have
3 good news – Nginx today worked as a por3 proxy for Rambler mail.”
4 188. Regarding patches in the NGINX Software, Dounin wrote to Sysoev: “Hello! I rolled 5 out the patched Nginx….”
6 189. Regarding test loads of NGINX output, Dounin wrote: “But after receiving the 7 finished patch, in 1-2 days we update Nginx in battle and another 1-2 days – we write and roll out
8 the changes to send the information to the Runner” and “add a sample line to the end, then test the
9 nginix configuration and send it to the HUP master if everything is fine. If necessary, all this also
10 can be attached to mail.rambler.ru.”
11 190. These examples of emails are demonstrative of the fact that the Disloyal Employees 12 and Dounin were actively working for Rambler, at Rambler’s expense, to develop the NGINX
13 Software in furtherance of their employment responsibilities at Rambler.
14 191. Sysoev regularly received enhanced compensation in the form of bonuses and 15 outsized raises from Rambler for his work developing the NGINX Software for Rambler beginning
16 in 2004 until his separation from Rambler in December 2011.
17 The Team Agrees to Conspire to Steal the NGINX Enterprise from Rambler and to Sell it to a
18 Third Party for Their Own Ill-Gotten Profit
19 192. The Team and other Rambler employees conspired with one another to steal the 20 valuable NGINX Enterprise and monetize it for themselves and at the exclusion of Rambler by
21 selling it to a third-party.
22 193. The Team, namely Sysoev, Konovalov, Alexeev, Dounin, and Smirnoff agreed that 23 together they would start their own company in San Francisco, California to commercialize the
24 NGINX Software, through NGINX Plus and other means, and then sell the entire NGINX Enterprise.
25 194. In slide presentations made to potential investors in 2011 before the Disloyal 26 Employees left Rambler, Sysoev, Konovalov, Alexeev and Dounin referred to themselves as “The
27 Team” as Plaintiff does in this Complaint with the addition of Smirnoff.
28 32 COMPLAINT, Case No.
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1 195. While still employed by Rambler, Sysoev, Konovalov and Smirnoff planned for 2 months with Alexeev and Dounin to set up their new company, attract investors, abscond with the
3 NGINX Enterprise, and monetize NGINX Plus and other enhancements of the NGINX Software and
4 related services.
5 196. The Team had specific and identified roles.
6 197. Co-conspirator Sysoev was billed as “author, founder, principal architect.” Sysoev 7 was the programming genius and lead architect of the NGINX Software, and worked on publicizing
8 the NGINX Software and later meeting with potential investors.
9 198. Co-conspirator Konovalov was the chief executive and mastermind of the plot; 10 Alexeev was charged with business development and establishing relationships with potential
11 investors; and Dounin was the senior developer.
12 199. Co-conspirator Alexeev focused on business development and infrastructure for the 13 NGINX Enterprise.
14 200. Co-conspirator Dounin assisted Sysoev on NGINX-related software coding by 15 contributing to the code base after Sysoev left Rambler.
16 201. Co-conspirator Smirnoff was left behind at Rambler for approximately eleven months 17 after Sysoev resigned from Rambler by December 2011. Smirnoff’s early role before he ultimately
18 joined his co-conspirators at NGINX BVI was the Team’s “clean-up guy” charged with evidence
19 destruction, including the wiping of electronic data at Rambler that contained evidence of the Team’s
20 conspiracy and misconduct. As detailed below, Smirnoff also went so far as to steal and destroy
21 Rambler servers that hosted the NGINX-related information so as to conceal the Team’s conspiracy
22 from any future discovery by Rambler.
23 202. The Team received assistance from the whistleblower Korotkov.
24 203. Rambler hired Korotkov as its CIO on August 23, 2007.
25 204. Korotkov was terminated by Rambler on June 29, 2009 as part of a staff reduction.
26 205. After his termination from Rambler, Korotkov served as a conduit throughout 2010 27 and 2011 between the Team and various outside Russian and American venture capital firms looking
28 to fund the Team and their misappropriated NGINX Enterprise. During this time, the Disloyal 33 COMPLAINT, Case No.
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1 Employees were still employed at Rambler, but were actively executing their scheme to launch a
2 new business outside Rambler that would be built on the shoulders of the NGINX Enterprise
3 developed at Rambler and which they intended to misappropriate.
4 206. Sysoev claims that he did not immediately conceive of commercializing the NGINX 5 Software. In a March 12, 2019 article published by medium.com, Sysoev stated: “People wanted to
6 make something with NGINX, to create a company … But I refused because in general I am not a
7 businessman. At last I began to understand that something should be done, because I could not just
8 go on alone…”
9 207. Konovalov, was Sysoev’s boss at the end of their Rambler tenure, and the Rambler 10 CTO with oversight and responsibility for all of the company’s technical departments tasked with
11 developing new products. Konovalov was the leader of the Team.
12 208. Konovalov reported to and was answerable only to the CEO of Rambler. 13 Konovalov’s key senior management position at Rambler enabled him to provide Sysoev beginning
14 in 2008 with an ecosystem within Rambler that was free from oversight or accountability. Indeed,
15 Konovalov surrounded Sysoev with the Disloyal Employees. For example, co-defendant Smirnoff
16 was Sysoev’s immediate supervisor and “Team Leader” in the Server Technologies Department, the
17 Rambler department responsible for the design and development of a variety of operating system
18 management and other software products. In turn, Smirnoff reported directly to Konovalov.
19 209. The Disloyal Employees were a tight-knit group, which allowed them to keep their 20 planned misappropriation of the NGINX Enterprise a secret while still utilizing Rambler’s full array
21 of resources and infrastructure to continue testing, developing and refining the NGINX Software to
22 ensure the financial success of their planned releases of NGINX Plus and other related commercial
23 improvements, enhancements and related products.
24 210. Konovalov drove the effort to split off from Rambler, steal the NGINX Enterprise, 25 solicit Silicon Valley investors, and destroy evidence of the Team’s conspiracy.
26 211. By the time Konovalov resigned from Rambler effective April 29, 2011, the Team 27 was already underway to executing on its plan to covertly misappropriate the entire NGINX
28 Enterprise. 34 COMPLAINT, Case No.
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1 212. By the time Sysoev separated from Rambler in December 2011, the Team had already 2 secretly formed NGINX BVI, filed the first trademark application for the “NGINX” trademark,
3 solicited and obtained outside venture capital investment to fund the Team, and garnered its first
4 customer (Netflix, Inc.).
5 213. As the CTO of Rambler, Konovalov enjoyed substantial autonomy and the ability to 6 conceal information from Rambler about the work Sysoev was performing for Rambler, particularly
7 the conception and development of what would become the centerpiece of the NGINX Enterprise –
8 namely, NGINX Plus.
9 214. Konovalov was thus able to, and did, conceal, and suppress from Rambler the content 10 and value of the code development Sysoev was leading for Rambler, using Rambler’s infrastructure,
11 and at Rambler’s expense.
12 215. The open source NGINX Software was not a secret. But the Disloyal Employees 13 successfully hid from Rambler the fact that development of the NGINX Software was the principal
14 occupation of Sysoev at Rambler. Most importantly, the Disloyal Employees concealed from
15 Rambler the massive investment of time and resources that the Disloyal Employees were undertaking
16 at Rambler’s expense in developing the open source NGINX Software as the foundation for
17 launching NGINX Plus and other commercial products, as well as on the development of NGINX
18 Plus itself.
19 216. The Disloyal Employees realized that the growing popularity of the open source 20 NGINX Software was what would open the door to monetizing NGINX Plus; hence, the more
21 Rambler-financed effort that went into enhancing and maintaining the open source NGINX Software,
22 the more web site operators would become dependent on it, and that “sticky” dependency would
23 drive demand for fee-based NGINX Plus and related support services.
24 217. Unlike typical technology startups, the resources that the Disloyal Employees could 25 devote to the foundation of their enterprise, were virtually unlimited, because Rambler was
26 unwittingly funding the development program. At the same time, the Disloyal Employees were
27 collecting generous Rambler salaries and bonuses. Thus, there was only upside for the Disloyal
28 Employees. In short, the situation was every entrepreneur’s dream come true. 35 COMPLAINT, Case No.
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1 218. Once the open source NGINX Software was sufficiently popular, and once the 2 conception and development of NGINX Plus and related enhancements had been sufficiently
3 advanced, all of which was made possible only with the financial, personnel and infrastructure
4 resources of Rambler, the time would be right to cut the cord with Rambler and spin out the NGINX
5 Enterprise, solely for the Team’s own benefit.
6 219. Konovalov worked fast. He joined Rambler as CTO in March 2008 but by the 7 summer of 2008, he had already recognized the value of the NGINX Software and conceived of the
8 NGINX Enterprise. Despite his senior management role and duties as CTO of Rambler, Konovalov
9 abused his power and authority to lead the conspirators with laying plans to steal the NGINX
10 Enterprise from Rambler.
11 220. The Team agreed to form a conspiracy pursuant to which they would continue to use 12 Rambler’s resources to develop the NGINX Software and NGINX Plus, and in turn, the NGINX
13 Enterprise.
14 221. The Disloyal Employees agreed that they would defraud Rambler by concealing the 15 true nature and value of the NGINX Software, NGINX Plus, and the NGINX Enterprise that they
16 were building at Rambler’s cost, but without Rambler’s knowledge.
17 222. The Disloyal Employees agreed that they would flagrantly violate their statutory and 18 contractual obligations to Rambler and steal the NGINX Enterprise and sell it to a third party for
19 their own ill-gotten gains.
20 223. The Team further agreed that they would conceal their unlawful activity from 21 Rambler by concealing their work and, even, destroying evidence.
22 224. The Team agreed that they would secretly raise capital for the NGINX Enterprise, 23 even while the Disloyal Employees were still employed by Rambler, to start a new business without
24 Rambler’s participation built on the software that the Team knew Rambler rightfully owned as works
25 made for hire.
26 225. The Disloyal Employees, utilizing Konovalov and his lofty position as camouflage, 27 agreed to and did block the flow of information to Rambler about the immensely valuable open
28 36 COMPLAINT, Case No.
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1 source and proprietary NGINX Software project and the Team’s scheme to steal the NGINX
2 Enterprise.
3 226. The Disloyal Employees agreed that they would exploit profitable business 4 opportunities based upon the NGINX Software, including the proprietary code and concepts that
5 would become NGINX Plus and other commercial products.
6 227. The Team agreed to launch the business in San Francisco to enhance their capital 7 raising potential and ultimate sale prospects, all to the exclusion of Rambler, the rightful owner of
8 the NGINX Enterprise.
9 228. The Team agreed they would conceal from Rambler the causes of action for which 10 the Team was and would become liable to Rambler as a result of their unlawful conduct.
11 229. With their conspiracy formed, the Team set about establishing their new business 12 around the NGINX Software, NGINX Plus and other proprietary NGINX extensions and derivations,
13 as well as various valuable business opportunities comprising the NGINX Enterprise.
14 230. Meanwhile, as further cover to the Team’s secret conspiracy, Sysoev continued to 15 portray himself to the world as a savant coder, when in reality he was an unethical businessman
16 scheming to make his fortune on business opportunities he knew Rambler resourced and owned.
17 The Team Launches the NGINX Enterprise and Raises Capital for Their Conspiracy
18 231. By early 2010, unbeknownst to Rambler, the efforts by Korotov and the Team to steal 19 the NGINX Enterprise from Rambler and monetize it for themselves were well underway.
20 232. On February 20, 2010, nearly two years before Sysoev exited Rambler in December 21 2011, Korotkov first registered the Internet domain name NGINXPLUS.com.
22 233. Upon registering the NGINXPLUS.com domain name, Korotkov promptly began 23 populating a Web site at the Internet address which promoted what he referred to as “Nginx+” (i.e.,
24 the Korotkov Site).
25 234. Plaintiff Lynwood only discovered the NGINXPLUS.com domain and the Korotkov 26 Site during its investigation in 2020 after the whistleblower Korotkov came forward to implicate the
27 Disloyal Employees in 2019.
28 37 COMPLAINT, Case No.
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1 235. Lynwood and Rambler only discovered the Disloyal Employees’ actions in 2 misappropriating NGINX Software, NGINX Plus and the NGINX Enterprise while in the
3 employment of Rambler after Lynwood and Rambler undertook and completed an outside forensic
4 investigation after Korotkov’s revelations, which resulted in the recovery of a small amount of the
5 total electronic evidence that had been deleted and wiped by the Disloyal Employees before they left
6 Rambler.
7 236. The documents and correspondence identified below evidencing the Team’s scheme 8 to misappropriate Rambler’s NGINX Enterprise with the knowledge and assistance of Runa Capital
9 and E. Ventures comprise a portion of the Disloyal Employees’ communications on Rambler
10 company email that were recovered in late 2019 by Lynwood and Rambler in the course of their
11 investigation.
12 237. When Korotkov blew the whistle on the Disloyal Employees, he failed to mention 13 that he, too, had been directly involved in the scheme before being snubbed by the Team.
14 238. While the Korotkov Site is now inaccessible, one page of that site which Korotkov 15 submitted to the United States Patent and Trademark Office in support of a U.S. trademark
16 application for the NGINX trademark that he filed on March 16, 2011 prominently displayed the
17 term “nginx+” and includes a category called “Pricing.”
18 239. Further, the Korotkov Site also reveals, in bold letters, that as of March 16, 2011, 19 there were already 12,547 “ACTIVE APPLICATIONS” of “nginx+” “DEPLOYED”, that were
20 “[r]unning on the Nginx Hosted Platform.”
21 240. Korotkov’s application to register the trademark NGINX provides additional 22 evidence that by early 2010, Korotkov and the Team had already begun to execute their plan to steal
23 the NGINX Enterprise.
24 241. Korotkov claimed in his NGINX trademark filing that the first use of the NGINX 25 mark by his closely held company Infosens Inc., the applicant, in connection with the goods and
26 services he described therein was February 1, 2010, and that the first use in commerce of same was
27 March 1, 2011.
28 38 COMPLAINT, Case No.
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1 242. Acting on behalf of the Team, in his application to register the NGINX trademark 2 (which he eventually abandoned), in addition to identifications of computer software in Class 9,
3 Korotkov also included an identification of services in Class 42. That identification of services was
4 as follows: “Computer services, namely, providing virtual and non-virtual application servers, web
5 servers, file servers, co-location servers, load balancing servers, redundancy servers, media servers
6 and database servers of variable capacity to third-party computing and data storage facilities;
7 Platform as a service (PAAS) featuring computer software platforms for web applications, web
8 server applications, web server frameworks, cloud computing; Software as a service (SAAS) services
9 featuring software in the field of web applications, web server applications, web server frameworks,
10 cloud computing.”
11 243. Korotkov’s identifications of goods and services and the information contained in the 12 Korotkov Site go well beyond the open source model for NGINX Software that the Disloyal
13 Employees were using as a ploy to divert Rambler’s attention away from the true value of the NGINX
14 Enterprise.
15 244. Meanwhile, around the time of Korotkov’s February 2010 registration of the 16 NGINXPLUS.com domain and the February 1, 2010 date of first use of the NGINX trademark
17 Korotkov claimed in his NGINX trademark application, he, Alexeev and Konovalov, each became
18 active in surreptitiously communicating with various third-parties to potentially fund the NGINX
19 Enterprise.
20 245. In June 2010, for example, Korotkov, whose employment with Rambler, had been 21 terminated approximately one year earlier, solicited investors Mathias Schilling and Thomas
22 Gieselmann, partners of BV Capital based in New York, New York. BV Capital changed its name
23 to E.Ventures in 2012.
24 246. In a joint email to Schilling dated June 6, 2010, Sysoev and Korotkov provided the 25 following description of the Team and its intention to monetize the NGINX Software and related
26 business opportunities:
27 We have worked out a comprehensive plan how to take NGINX to the next level:
28 39 COMPLAINT, Case No.
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1 It basically involves not only commercializing some of the NGINX advanced
2 features, but also building more comprehensive infrastructure platform with several
3 network layers around NGINX. (As well as CDN and Private Cloud application
4 which Igor is really adamant about). Eucalyptus.com would be a good and
5 successful example.
6 …
7 The NGINX team currently consists of a group of founders and developers with a
8 passion to grow NGINX with adjacent technologies:
9 - Alex Korotkoff
10 - Igor Sysoev (inventor)
11 - Kurk McKusick (BSD UNIX founder and guru)
12 With a group of talented developers:
13 - Igor Golovko (works for OpenTable.com startup in SF)
14 - Leo Golubev (contracted for a long time for Hewlett Packard and CISCO in network
15 dev.)
16 - Vladimir Venediktov (worked for many years for server dev. At UBS/Zurich, and
17 now works for PIMCO)
18 -Andrei Kurzhonkov – a master of Erlang, Macros dev. and a network dev. pro
19 247. The June 6, 2010 joint email from Sysoev and Korotkov was revelatory of the scope 20 of the Team’s scheme and the enterprise possibilities and value that the Team was concealing from
21 Rambler:
22 In short, Igor has actually been contacted by BV Capital in the past, but he was
23 reluctant to pursue the development path for NGINX which was offered – basically
24 just trying to commercialize it with support contracts/subscriptions. While this can
25 be done at the initial phase, this doesn’t reveal the full potential of NGINX – Igor
26 and me have a much broader vision for NGINX as part of a Network Infrastructure
27 stack for Real-Time Web and Wireless Acceleration of web content. (emphasis
28 added). 40 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 41 of 140
1 248. Korotkov and Sysoev’s emphasis in their joint email on “NGINX as part of a Network 2 Infrastructure stack ….” was consistent with Korotkov’s later May 27, 2011 registration of the
3 Internet domain name “NGINXSTACK.com” – one of at least twelve domain name registrations that
4 Korotkov obtained on behalf of the Team and which included the term “NGINX.”
5 249. In addition, the June 6, 2010 joint email from Sysoev and Korotkov shows the Team’s 6 fixation on offshoring the Russian-created NGINX Enterprise to the United States for
7 commercialization:
8 “We’ve been recently approached by several US/Russian Venture Funds who are eager to invest in
9 us – but Igor wants NGINX to be a purely US, Silicon Valley Start-Up with its full potential
10 realized in the US market.”
11 250. Approximately one month later, in July 2010, Korotkov stressed to Gieselmann the 12 need for secrecy, particularly in matters involving Sysoev: “For some reason he’s either afraid or
13 unwilling or driven by some not known consideration to meet for a ‘US funded startup’ in Moscow.
14 That is what [Sysoev] briefly told me. He’s actually becoming increasingly uncomfortable
15 discussing things on the phone/skype.”
16 251. Korotkov stated to Gieselmann: “we significantly underestimated the amount of close 17 attention and spotlight Igor has been getting recently from Russian startup ‘dealers.’ We really
18 should have been more careful with communication channels.”
19 252. Notwithstanding Korotkov’s early efforts at becoming involved with the founding 20 and funding of the NGINX Enterprise, he was ultimately ejected by the Team, and thereafter,
21 Alexeev and Konovalov took the lead on securing funding and corporate formation.
22 253. Being discarded stuck with Korotkov, as he would later blow the whistle on the Team 23 in 2019 to Rambler, sparking an investigation by Rambler and Plaintiff, and ultimately, this lawsuit.
24 254. The aforementioned slide deck presentations to attract potential venture funders that 25 Alexeev, together with Sysoev and Konovalov, created in March and April 2011, before the Disloyal
26 Employees left Rambler with the NGINX Enterprise, emphasized what would become NGINX Plus
27 as a primary driver of revenue for the purloined NGINX Enterprise. Like all of the other
28 41 COMPLAINT, Case No.
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1 communications identified herein, these slide presentations were deleted by the Disloyal Employees
2 but forensically recovered by Lynwood and Rambler in late 2019.
3 255. The Team’s slide presentations, under the heading Business Model, explicitly 4 referenced, in addition to fees from technical support, “new infrastructure products based on nginx”
5 including “distributed storage”, “high performance content filtering and manipulation”, and “media
6 server functionality.” Another page of the slides, referring to “commercial products”, referenced
7 “paid services and products” and “new paid features (modules, custom features)”
8 256. The slides further pointed to the open source NGINX Software as the key driver of 9 demand for proprietary commercial products designed to enhance the utility of the NGINX Software,
10 such as NGINX Plus. For example, one slide stated: “open source user community is key factor”
11 and “community actively promotes nginx by word of mouth and makes the brand highly valuable.”
12 257. That is, the Team acknowledged that the underlying value of the NGINX Enterprise 13 was the installed user base, notoriety and goodwill that had been generated over the years by the
14 open source NGINX Software – a fundamental asset that Rambler had funded on its own since the
15 day that Sysoev began working at the company.
16 258. The Team’s March 2011 pitches to potential investors in Moscow and New York City 17 regarding the revenue-generation capability of proprietary extensions to the open source NGINX
18 Software in the form that would come to be marketed under the NGINX Plus rubric were effective.
19 By April 2011, the Team signed a funding term sheet with United States-based venture capital firms
20 Greycroft Partners II L.P.(“Greycroft”), BV Capital and affiliates (“BV Capital”) and Runa Capital.
21 259. Runa Capital and BV Capital took the lead in advising the Team on how to navigate 22 through the thorny issues surrounding the Disloyal Employees’ contractual and fiduciary duties to
23 their employer Rambler and the core issue of Rambler’s ownership rights to the NGINX Software,
24 NGINX Plus, and the NGINX Enterprise.
25 260. Indeed, Runa Capital’s leadership team of Serguei Beloussov, Dmitry Chikhachev 26 and Dmitry Galperin and BV Capital’s team of Gieselmann and Schilling became involved in the
27 granular details of the Team’s plans to misappropriate the NGINX Enterprise from Rambler and
28 launch it under the banner of a new company formed by the Team and funded by their capital partners 42 COMPLAINT, Case No.
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1 – Runa Capital, BV Capital and Greycroft – who would then become shareholders of the Team’s
2 newly formed entity. For Runa Capital and BV Capital, the initial investment term sheet represented
3 the first step in positioning Rambler’s NGINX Enterprise for an acquisition by an established Silicon
4 Valley company – an objective the Team shared at the outset of their conspiracy.
5 261. In furtherance of the Team’s, Runa Capital’s and BV Capital’s interest in closing the 6 definitive funding transaction, Runa Capital’s Chikhachev introduced Konovalov, Sysoev and
7 Alexeev to Leonard Grayver at the Torrance, CA law firm of Greenberg, Whitcombe & Takeuchi,
8 LLP on April 14, 2011 to handle the legal issues surrounding the formation of the new entities,
9 funding documents and related due diligence issues.
10 262. The Team’s Alexeev responded to Grayver on the same day and copying Runa 11 Capital’s Chickhachev and Galperin as well as Sysoev and Konovalov and stating, among other
12 things:
13 In brief, we need the following:
14 1. Incorporation in Delaware, U.S. (all standard procedure), including help with
15 office/postal contacts – Nginx, Inc.
16 2. Registration of the trademark (Nginx)
17 3. Additional legal opinion on some essential matters related to former employment
18 and non-conflict with Nginx, Inc.
19 4. Legal support for investment round (issuing/selling securities to Greycroft)
20 5. Help with amending standard incorporation papers with the bylaws in accordance
21 with investment/termsheet
22 6. Interaction with the Russian attorneys
23 7. Possibly also legal advice on a few matters related to work permits/immigration
24 questions (optional)
25 Overall, we don’t have anything now (no company, no IP anywhere, no bank
26 account, no office etc.). We need to establish a company in the U.S. and register IP
27 (trademark, just this – nothing else) in the U.S./Internationally for the first time.
28 We’re not going to register any IP in Russia (and the software has been open 43 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 44 of 140
1 source/freeware/BSD license since the day one). Next we’ll be establishing a
2 Russian legal entity that won’t be a subsidiary or a branch, just a separate company
3 that will be doing services (software development) for the U.S. one, again without
4 any transfer of IP, just implementation works in full accordance with the
5 specifications provided by the “U.S. company.”
6 263. Konovalov, then still Rambler’s CTO, was at the forefront of negotiating and 7 finalizing the Term Sheet for Series A Preferred Stock Financing of the future NGINX entity with
8 Runa Capital, BV Capital and Greycroft to raise a total of $3 million in Series A funds (the “Term
9 Sheet”).
10 264. In March of 2011, Kirill Sheynkman, Venture Partner at Greycroft began transmitting 11 drafts of the Term Sheet to Konovalov. A March 31, 2011 draft of the Term Sheet set the pre-money
12 valuation of the NGINX Enterprise at $5 million.
13 265. Rambler’s ownership rights to NGINX Software, NGINX Plus and the NGINX 14 Enterprise loomed over the Term Sheet negotiations as the investors were aware that the foregoing
15 constituted Rambler property rights.
16 266. Nevertheless, the Term Sheet was executed on or about April 6, 2011.
17 267. The investors’ concerns over Rambler’s ownership rights to the NGINX Software, 18 NGINX Plus and the NGINX Enterprise persisted and both the Team and Runa Capital, BV Capital
19 and Greycroft continued scheming to find a workaround to Russia’s black-letter law concerning
20 employer “work made for hire.”
21 268. Indeed, on April 15, 2011, Grayver, communicated to the Team two fundamental 22 legal concerns on behalf of the investors following the execution of the Term Sheet:
23 The investors are particularly concerned about: 1. Your obligations to your
24 current/former employers. I said that we would be prepared to submit a legal opinion
25 from Russian counsel. For your information, we use our Russian affiliate – Salomons
26 Partners (www.salomons.ru) for such tasks. 2. The issue with the open source. The
27 investors want the company to make a representation and warranty that the open
28 source applications in the company’s software won’t present any problems… 44 COMPLAINT, Case No.
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1 269. Grayver’s email was not surprising to the Team as they were already aware of their 2 obligations to Rambler and they had previously sought advice from another attorney, Leon Zilber,
3 in responding to the Series A investors’ demand for some assurances that Rambler would not assert
4 its rights to the NGINX Enterprise. Specifically, on April 6, 2011, Konovalov wrote Zilber as
5 follows:
6 Leon, for your consideration: attached is the termsheet we signed with Greycroft. I
7 think it’s pretty usual for you but would like to mention one important point. If you
8 look at “Conditions to Close” section, page 4, you will find a paragraph GC [i.e.,
9 Greycroft] worries more about and they need an official document regarding this
10 issue: 3. A legal opinion of Company counsel, satisfactory to the … It’s about our
11 current employer, Rambler. They want to be sure that Rambler will claim no rights
12 for nginx and derived products. [Emphasis added].
13 270. The Term Sheet section to which Konovalov referred in his email provided in Section 14 3 under Conditions to Closing, as follows: “A legal opinion of the Company counsel, satisfactory to
15 the Investors, shall be delivered to the Investors stating that the Founders’ activities with the
16 Company do not and will not conflict with any agreement, commitment or other encumbrance placed
17 on them by their current or former employer.”
18 271. Like the rest of documents identified above, Konovalov’s email of April 6, 2011 along 19 with the Term Sheet were recovered from Konovalov’s deleted Rambler emails by Lynwood and
20 Rambler in late 2019 and unquestionably demonstrate that the Team and the Series A investors knew
21 of Rambler’s ownership rights to the NGINX Software, NGINX Plus and NGINX Enterprise.
22 272. The Series A investors’ concern in closing on the Series A financing without 23 assurances or efforts made by the Team to minimize Rambler’s future intervention to protect its
24 ownership rights loomed large. This concern contributed to the Team’s coverup at Rambler that
25 Konovalov directed so as to minimize the likelihood of Rambler discovering that the Team had
26 misappropriated the NGINX Enterprise.
27 273. On May 4, 2011, the Team formed NGINX Software. The Team then formed NGINX 28 BVI on July 6, 2011 and NGINX DE in August 2011. 45 COMPLAINT, Case No.
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1 274. As of May 4, 2011, NGINX Software, Inc. established its initial headquarters at 600 2 Montgomery Street, 43rd Floor, San Francisco, California 94111.
3 275. Sysoev duplicitously remained an employee of Rambler accepting his salary and 4 benefits while he actively stole the NGINX Enterprise from Rambler.
5 276. On July 18, 2011, Sysoev announced to his list service recipients that he was going 6 to “establish nginx as a company to fully dedicate [himself] to the [nginx] project.” However, Sysoev
7 stayed on as a part-time employee of Rambler until December 2011.
8 277. While the Team was busy laying the groundwork for misappropriating the NGINX 9 Enterprise from Rambler and concealing their actions, Greycroft pulled out of the Series A financing
10 shortly before it was scheduled to close in October 2011.
11 278. Upon information and belief, Greycroft pulled out of the closing because its concerns 12 over Rambler’s ownership of the NGINX Software, NGINX Plus and, more generally, the NGINX
13 Enterprise remained unsatisfactorily addressed. In contrast, Runa Capital and BV Capital went
14 forward and closed on the Series A financing on or about October 23, 2011 after conducting their
15 own due diligence, with full knowledge that Rambler was the legal owner of the entire NGINX
16 Enterprise and assuming the risk that one day there would be a dispute over the ownership of the
17 NGINX Enterprise.
18 279. In sum, while Sysoev and Smirnoff were still employed at Rambler, the Team had 19 incorporated its company, opened a San Francisco office, closed its first round of venture capital,
20 and signed up its first customer (Netflix).
21 280. Sysoev did not separate from Rambler until December 2011 and Smirnoff did not 22 separate from Rambler until November 2012.
23 281. Notably, the Disloyal Employees misrepresented to Rambler the reasons for their 24 separation from the company and their future intentions. Sysoev and Konovalov each misrepresented
25 to Rambler that they were separating from Rambler to form a new company that would provide
26 support services to the existing open source NGINX Software for third-parties. Sysoev and
27 Konovalov characterized their intentions as purely an open source project that was not a profitable
28 enterprise. 46 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 47 of 140
1 282. For years Konovalov had been listing the open source NGINX Software on Rambler’s 2 books and records as virtually worthless.
3 283. Sysoev and Konovalov fraudulently concealed from Rambler that they were 4 contemplating the prospect of potentially providing add-on services to the NGINX Software in the
5 future. In an attempt to avoid triggering suspicion at Rambler, Sysoev and Konovalov couched their
6 statements as aspirational and deeply prospective in nature. Sysoev and Konovalov did so because
7 they were cognizant of the fact that all of the proprietary information concerning the NGINX
8 Enterprise belonged to Rambler.
9 284. In reality, the Disloyal Employees were already executing their scheme to lift the 10 entire NGINX Enterprise away from Rambler and transfer it to their newly formed NGINX BVI
11 entity. The Disloyal Employees never disclosed to Rambler that they misappropriated the proprietary
12 software code that would be publicly released as “NGINX Plus” only twenty-one months later by
13 NGINX BVI or that the Team had already filed a trademark application for the “NGINX trademark”
14 in furtherance of their plan to misappropriate the entire NGINX Enterprise from Rambler for their
15 own benefit. Nor did the Disloyal Employees disclose that Korotkov had already registered the
16 domain name NGINXPLUS.com and populated a Web site at that address that promoted Nginx+.
17 285. Nor did Sysoev (or any of the other Disloyal Employees) ever notify or claim to 18 Rambler that Sysoev was the owner of the proprietary rights to the NGINX Software itself. The
19 Team’s silence on this point is in keeping with Sysoev’s numerous public statements in which he
20 merely claimed that he wrote, and was the author of, the NGINX Software (as per the author-
21 ownership dichotomy provided for under Russian law).
22 286. After departing from Rambler and after forming the various NGINX entities the 23 Disloyal Employees and Team continued to quietly raise outside capital in pursuit of the ultimate
24 object of their conspiracy – a sale of Rambler’s NGINX Enterprise to a large American technology
25 company for the Team’s own ill-gotten gains, without any remuneration to Rambler.
26 287. Runa Capital and BV Capital (now E.Ventures), which became shareholders in 27 NGINX BVI as of October 23, 2011, knowingly participated in multiple future rounds of financing
28 to grow the NGINX entities and set the table for the Merger transaction with F5 in 2019. The two 47 COMPLAINT, Case No.
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1 venture capital firms were anything but passive investors. In addition to Runa Capital and BV
2 Capital’s participation in future rounds of financing in October 2013, December 2014 and April
3 2016, Runa Capital’s Dmitry Chikhachev and BV Capital’s Thomas Gieselmann also held board
4 seats on NGINX BVI’s board of directors up to the time of the company’s merger with F5 during
5 which time Chikhachev and Gieselmann participated in material decisions undertaken by NGINX
6 BVI including its rollout of NGINX Plus that was owned by Rambler.
7 The Team Concealed its Misconduct from Rambler
8 288. In addition to concealing from Rambler that the Disloyal Employees had actively 9 been preparing to steal the NGINX Enterprise from Rambler, Konovalov also made affirmative
10 misrepresentations to Rambler during his tenure as CTO with respect to the NGINX Software and
11 the Disloyal Employees more generally. As the CTO of Rambler, Konovalov was responsible for
12 generating regular internal reviews of Rambler’s pipeline of technological products for the CEO and
13 Board.
14 289. Even though Konovalov and the rest of the Disloyal Employees were fixated on 15 misappropriating the NGINX Enterprise, which they viewed as a highly valuable business,
16 Konovalov uniformly gave the NGINX Software a rating of “1” on a scale of “1-5” with “1” being
17 deemed “worthless” or “no value.” Konovalov’s designations were designed to and did lull Rambler
18 into complacency with respect to the value of the NGINX Software and to maintain the status quo at
19 Rambler whereby the Disloyal Employees continued to operate in their own ecosystem, protected by
20 Konovalov from any serious oversight by Rambler’s senior management or board of directors.
21 290. By way of example, on April 5, 2011, when Konovalov was negotiating the investor 22 Term Sheet for the Team and in the process of resigning from Rambler, Rambler’s chief accountant
23 asked Konovalov to provide a report on Rambler’s “Innovations, Patterns & Protections of IP
24 Rights.” As part of this request, the accountant requested that Konovalov fill out the form once again
25 identifying what software programs belonged to Rambler, and rate them in importance on a scale of
26 one to five.
27 291. After delaying his response to the inquiry, Konovalov finally submitted a response in 28 mid-April 2011 in which he fraudulently declined to identify the NGINX Software as Rambler- 48 COMPLAINT, Case No.
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1 owned software. Instead, Konovalov ranked all NGINX software programs with an “1” for
2 insignificant or no tangible value or importance.
3 292. Konovalov fraudulently ranked the NGINX software programs with an “1” even 4 though less than two weeks earlier he had emailed Sysoev an excel spreadsheet on March 30, 2011
5 with his own internal projections forecasting that he, Sysoev and Alexeev stood to conservatively
6 earn roughly $30 million from the misappropriated NGINX Enterprise if the Team went through two
7 projected rounds of venture capital financing and then sold the NGINX Enterprise for $100 million.
8 This email and the accompanying spreadsheet were additional documents recovered from
9 Konovalov’s deleted emails by Rambler and Lynwood in 2019 after Korotkov’s revelations sparked
10 their investigations.
11 293. Konovalov was Rambler’s CTO and the executive responsible for overseeing Sysoev 12 and his efforts at developing and improving the NGINX Software. Thus, it was incumbent on
13 Konovalov to advise Rambler what it had with the NGINX Software, including all of the work
14 product (including existing and software code in development), proprietary information, future
15 business plans and an honest assessment of the NGINX Software and its enterprise value.
16 294. However, in furtherance of the conspiracy, Konovalov concealed the nature, 17 commercial possibilities, and value of the NGINX Software, as well as the revenue-generating
18 potential of proprietary extensions to the open source NGINX Software that would come to be
19 marketed and sold under the NGINX Plus umbrella. Konovalov’s fraudulent misrepresentations to
20 Rambler and fraudulent concealment from Rambler was simultaneous with his and the Team’s
21 presentations to potential venture capital backers in which they promoted such commercial
22 extensions as a fundamental driver of revenue for the NGINX Enterprise.
23 295. Konovalov’s fraudulent duplicity in his dealings with Rambler were driven by a 24 simple, selfish objective – he wanted the Team to fly below the radar at Rambler so that he and the
25 rest of the Team could quietly steal the NGINX Enterprise from Rambler without raising the alarm,
26 solely to enrich himself and the other members of the Team at Rambler’s expense.
27 296. The Team went to great lengths to conceal their scheme by destroying evidence after 28 they left Rambler. 49 COMPLAINT, Case No.
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1 297. Virtually all of Konovalov’s emails related to NGINX’s formation were deleted.
2 298. The vast majority of Sysoev’s email folders were deleted.
3 299. The vast majority of Smirnoff’s emails were deleted.
4 300. Rambler and Lynwood were able to recover a small portion of the Disloyal 5 Employees’ emails as part of their investigation following Korotkov’s 2019 revelations to Rambler.
6 In emails from late 2011/early 2012, which Rambler recovered in late 2019, the Disloyal Employees
7 expressed concern over the “unique data” left on the servers.
8 301. Perhaps most revealing of the Disloyal Employees’ consciousness of guilt was the 9 destruction of Rambler’s servers hosting Sysoev’s work at Rambler concerning NGINX.
10 302. When Konovalov became CTO of Rambler, he provided Sysoev with Rambler owned 11 servers to host and store all of Sysoev’s work product and proprietary information concerning the
12 NGINX Software. These servers were the digital repositories of Sysoev’s activities concerning the
13 NGINX Software and related companion proprietary code in development at Rambler.
14 303. Following their separation from Rambler, Sysoev and Konovalov instructed Smirnoff 15 to destroy the servers containing Sysoev’s NGINX Software work product, which was, of course,
16 Rambler’s property by virtue of the work being made for hire. Following Sysoev’s resignation from
17 Rambler, Smirnoff removed and destroyed the servers, which were located in Rambler’s server
18 hardware center (Data Center) at the address: 10 Vostochnaya Street, Moscow.
19 Sysoev Coyly Only Asserts Authorship, Not Ownership of the Open Source Portion of the
20 NGINX Software
21 304. From the beginning, Sysoev has been purposefully vague about Rambler’s role in the 22 development of the NGINX Software and what rights, if any, he was claiming in the software or the
23 basis of that claim. Neither Sysoev nor any of the other co-conspirators ever communicated to
24 Rambler or its representatives or successors to claim ownership rights in the NGINX Software.
25 Moreover, Sysoev in multiple interviews with major media outlets throughout the world, repeatedly
26 claimed that he wrote the NGINX Software while working at Rambler, but was always silent on the
27 subject of ownership.
28 50 COMPLAINT, Case No.
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1 305. Sysoev’s downplaying of ownership rights, if any, he may claim in the NGINX 2 Software began in late September 2004 as he prepared to release the NGINX Software on October
3 4, 2004 pursuant to the terms of a FreeBSD version of the so-called 2 paragraph Berkeley Software
4 Distribution (BSD) open source license. After two years of working on the code as part of his
5 Rambler responsibilities, Sysoev, for the first time, inserted a copyright notice in a read-me file for
6 the NGINX Software that contained his name and creation dates to show his authorship of the code.
7 Russian law distinguishes between authorship and ownership rights to a work. Sysoev’s choice of
8 words were clearly designed to avoid a confrontation with Rambler over the NGINX Software
9 ownership rights.
10 306. Sysoev chose to use a FreeBSD version of the BSD license terms for the NGINX 11 Software that contains no reference to the term “copyright holder”, a term that is included in more
12 popular BSD-style license terms, such as those published by the Open Source Initiative. The open
13 source license language selected by Sysoev states that the NGINX Software “… IS PROVIDED BY
14 THE AUTHOR AND CONTRIBUTORS ‘AS IS’…” and that “IN NO EVENT SHALL THE
15 AUTHOR OR CONTRIBUTORS BE LIABLE FOR” consequential damages, etc. (emphasis added).
16 In contrast, the Open Source Initiative 2-paragraph BSD open source license states that the software
17 in question “IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS ‘AS IS’,
18 and that “IN NO EVENT SHALL THE COPYRIGHT HOLDERS OR CONTRIBUTORS BE
19 LIABLE FOR” consequential damages, etc. (emphasis added). In this manner, Sysoev could take
20 authorship credit for the NGINX Software, in accordance with Russian law, while avoiding an
21 express assertion that he was the holder of copyright rights in the NGINX Software.
22 NGINX Software, Inc. Fraudulently Seeks to Register Trademarks
23 307. On May 4, 2011, while Sysoev was still employed at Rambler, the Team incorporated 24 NGINX Software, Inc. in Delaware.
25 308. That same day, May 4, 2011, NGINX Software, Inc. filed an application to register 26 the NGINX trademark on a use basis, pursuant to 15 U.S.C. § 1051(a), in the United States Patent
27 and Trademark Office (the “USPTO”), which was assigned U.S. Application Number 85/312,802.
28 51 COMPLAINT, Case No.
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1 309. As of May 4, 2011, NGINX Software, Inc. disclosed its headquarters as 600 2 Montgomery Street, 43rd Floor, San Francisco, California.
3 310. In the application, NGINX Software, Inc. alleged that the date of first use of the 4 trademark was May 1, 2002, while Sysoev was employed by Rambler, and that the date of first use
5 in commerce was May 1, 2004, while Sysoev was employed by Rambler.
6 311. U.S. Application Number 85/312,802 covers the following goods in Class 9: 7 “Computer software for HTTP and reverse proxy servers and mail proxy servers, namely, for
8 controlling and managing server applications in the nature of HTTP and reverse proxy servers and
9 mail proxy servers.”
10 312. In U.S. Application Number 85/312,802 to register the NGINX trademark, Nginx 11 Software, Inc. signed the application declaration through its attorney, Grayver.
12 313. The declaration in the NGINX trademark application stated, in relevant part: “to the 13 best of his/her knowledge and belief no other person, firm, corporation, or association has the right
14 to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto
15 as to be likely, when used on or in connection with the goods/services of such other person, to cause
16 confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge
17 are true; and that all statements made on information and belief are believed to be true.”
18 314. This statement as applied to the NGINX trademark was false and known to be false 19 by Sysoev and the other members of the Team who authorized Grayver to make that representation
20 on behalf of NGINX Software, Inc.
21 315. The NGINX trademark was registered in the name of NGINX Software, Inc. on 22 August 28, 2012 under U.S. Registration Number 4,196,757.
23 316. The NGINX trademark was then purportedly assigned to F5 on January 22, 2020, 24 which was recorded in the USPTO on February 6, 2020 at reel/frame 006858/0385.
25 317. On May 5, 2011, NGINX Software, Inc. filed an application to register the NGINX 26 (Stylized) trademark on a use basis, pursuant to 15 U.S.C. § 1051(a), in the USPTO, which was
27 assigned U.S. Application Number 85/312,806.
28 52 COMPLAINT, Case No.
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1 318. As of May 5, 2011, NGINX Software, Inc. disclosed its headquarters as 600 2 Montgomery Street, 43rd Floor, San Francisco, California.
3 319. In the application for the NGINX (Stylized) trademark, NGINX Software, Inc. 4 alleged that the date of first use of the trademark was May 1, 2002, while Sysoev was employed by
5 Rambler, and that the date of first use in commerce was May 1, 2004, while Sysoev was employed
6 by Rambler.
7 320. The application for the NGINX (Stylized) trademark covers the following goods in 8 Class 9: “Computer software for HTTP and reverse proxy servers and mail proxy servers, namely,
9 for controlling and managing server applications in the nature of HTTP and reverse proxy servers
10 and mail proxy servers.”
11 321. In the application to register the NGINX (Stylized) trademark, Nginx Software, Inc. 12 signed the application declaration through its attorney, Grayver.
13 322. The declaration in the NGINX (Stylized) trademark application stated, in relevant 14 part: “to the best of his/her knowledge and belief no other person, firm, corporation, or association
15 has the right to use the mark in commerce, either in the identical form thereof or in such near
16 resemblance thereto as to be likely, when used on or in connection with the goods/services of such
17 other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of
18 his/her own knowledge are true; and that all statements made on information and belief are believed
19 to be true.”
20 323. This statement as applied to the NGINX (Stylized) trademark was false and known to 21 be false by Sysoev and the other members of the Team who authorized Grayver to make that
22 representation on behalf of NGINX Software, Inc.
23 324. The NGINX (Stylized) trademark was registered in the name of NGINX Software, 24 Inc. on September 4, 2012 under U.S. Registration Number 4,200,791.
25 325. The NGINX (Stylized) trademark was then purportedly assigned to F5 on January 22, 26 2020, which was recorded in the USPTO on February 6, 2020 at reel/frame 006858/0385.
27 326. Sysoev was still working for Rambler when the NGINX trademark, U.S. Application 28 Number 85/312,802 and the NGINX (Stylized) trademark, U.S. Application No. 85/312,806 were 53 COMPLAINT, Case No.
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1 filed, and he and the rest of the Team knew well that Sysoev, the self-proclaimed ninety-seven
2 percent (97%) author of the NGINX Software, developed the NGINX Software for Rambler using
3 Rambler’s resources and that the NGINX trademarks had been misused by the Defendants to falsely
4 indicate that NGINX Software, Inc., not Rambler, was the source of the NGINX Software.
5 327. The Sysoev employment agreements, Sysoev Separation Agreement, the Rambler 6 Code of Ethics and Rambler Regulations explicitly provided that Sysoev’s work product for Rambler
7 was the property of Rambler and required Sysoev to disclose and turnover his work to Rambler.
8 328. To the Team, Rambler’s rights to the NGINX Software and associated trademarks 9 were clearly established.
10 329. NGINX Software, Inc. engaged Grayver as its legal counsel for the trademark 11 applications. Grayver is a Silicon Valley lawyer. Upon information and belief, Grayver advised
12 NGINX Software, Inc., and the Team of the importance of the representations they were making to
13 the USPTO.
14 330. Moreover, the Team was mindful of Russian law concerning work made for hire as 15 demonstrated in their false public statements implying they did not get separately compensated for
16 the development of the NGINX Software by Rambler and that the work was somehow outside the
17 scope of their Rambler duties. These statements, while false and based on an incomplete and
18 inaccurate understanding of the relevant Russian law, demonstrate that the Team knew Rambler had
19 a claim to the NGINX Software and associated business opportunities, such as the trademarks.
20 331. Despite this knowledge, and more directly despite their knowledge that the NGINX 21 Software and associated trademarks were properly owned by Rambler because they developed the
22 assets for Rambler as part of their duties as Rambler employees, NGINX Software, Inc. fraudulently
23 represented to the USPTO that no other person or entity had any rights to the NGINIX trademarks.
24 332. Of course, without having any legitimate rights in the NGINX or NGINX (Stylized) 25 trademarks, NGINX Software, Inc. could not legally assign rights in those marks to F5.
26 NGINX DE and NGINX BVI Fraudulently Seek to Register Trademarks 27
28 54 COMPLAINT, Case No.
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1 333. On April 30, 2013, NGINX DE filed an application to register the NGINX PLUS 2 trademark on an intent-to-use basis, pursuant to 15 U.S.C. §1051(b), in the USPTO, which was
3 assigned U.S. Application Number 85/918,273. NGINX DE engaged Grayver to file the application.
4 334. The application for the NGINX PLUS trademark covers the following goods in Class 5 9: “Computer software for HTTP and reverse proxy servers and mail proxy servers, namely, for
6 controlling and managing server applications in the nature of HTTP and reverse proxy servers and
7 mail proxy servers.”
8 335. In the application for the NGINX PLUS trademark, NGINX DE subsequently filed a 9 Statement of Use and alleged that the date of first use of the trademark was April 13, 2013 and that
10 the date of first use in commerce was August 22, 2013.
11 336. Both the application declaration to register the NGINX PLUS trademark and 12 declaration in support of the Statement of Use were signed by NGINX DE through its attorney,
13 Grayver.
14 337. The declaration in the NGINX PLUS application stated, in relevant part: 15 The undersigned, being hereby warned that willful false statements and the like so
16 made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section
17 1001, and that such willful false statements, and the like, may jeopardize the
18 validity of the application or any resulting registration, declares that he/she is
19 properly authorized to execute this application on behalf of the applicant; he/she
20 believes the applicant to be the owner of the trademark/service mark sought to be
21 registered, or, if the application is being filed under 15 U.S.C. Section 1051(b),
22 he/she believes applicant to be entitled to use such mark in commerce; to the best
23 of his/her knowledge and belief no other person, firm, corporation, or association
24 has the right to use the mark in commerce, either in the identical form thereof or in
25 such near resemblance thereto as to be likely, when used on or in connection with
26 the goods/services of such other person, to cause confusion, or to cause mistake, or
27 to deceive; and that all statements made of his/her own knowledge are true; and that
28 all statements made on information and belief are believed to be true…. 55 COMPLAINT, Case No.
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1 338. These statements as applied to the NGINX PLUS trademark were false and known to 2 be false by Sysoev and the other members of the Team who authorized Grayver to make the
3 representations on behalf of NGINX DE.
4 339. There was no transfer of trademark rights from Rambler to Sysoev in the NGINX 5 trademark such that any such rights could have been subsequently transferred to NGINX DE giving
6 them a right to seek registration of NGINX PLUS.
7 340. The NGINX PLUS trademark was fraudulently registered in the name of NGINX DE 8 on October 20, 2015 under U.S. Registration Number 4,837,175.
9 341. Subsequently, on December 14, 2017, Sally M. Abel, Esq. of Fenwick & West LLP, 10 filed a Section 7 Request form claiming that Grayver had mistakenly listed NGINX DE as the
11 applicant and asked that the registrant be changed to NGINX BVI. The Section 7 Request form
12 incorrectly states that the registrant should be changed to NGINX BVI because NGINX DE did not
13 exist as of the registration filing date. In reality, NGINX DE was incorporated in Delaware on August
14 8, 2011 (four months before Sysoev left Rambler’s employment) and remains in existence as of May
15 2020.
16 342. The NGINX PLUS trademark was then purportedly assigned from NGINX BVI to 17 F5 on November 27, 2019, which assignment was recorded with the USPTO on December 3, 2019
18 at reel/frame number 006807/0517. Not having any legitimate rights in the NGINX PLUS
19 trademark, NGINX BVI could not assign rights in the mark to F5.
20 343. On June 14, 2017, NGINX BVI filed an application to register the NGINX trademark 21 on an intent-to-use basis, pursuant to 15 U.S.C. § 1051(b), in the USPTO, which was assigned U.S.
22 Application Number 87/487,184.
23 344. U.S. Application Number 87/487,184 covers the following goods and services:
24 Class 9: Server software for use in web serving, reverse proxying, caching, 25 load balancing, application delivery and media streaming; computer software for
26 controlling and managing web servers; computer software for use in HTTP and
27 reverse proxy servers and mail proxy servers, namely, for controlling and managing
28 server applications in the nature of http and reverse proxy servers and mail proxy 56 COMPLAINT, Case No.
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1 servers; software for providing data analysis, analytics, and reporting of
2 information concerning web server performance; computer hardware; parts and
3 fittings for all of the aforesaid.
4 Class 42: Software as a service (SaaS) featuring software for use in web 5 serving, reverse proxying, caching, load balancing, application delivery, media
6 streaming and controlling and managing web servers; platform as a service
7 featuring computer platforms for web serving, reverse proxying, caching, load
8 balancing, application delivery and media streaming; Software as a service (SaaS)
9 services featuring software for use in HTTP and reverse proxy servers and mail
10 proxy servers, namely, for controlling and managing server applications in the
11 nature of http and reverse proxy servers and mail proxy servers; computer services,
12 namely, providing web servers and load balancing servers; software as a service
13 (SaaS) services featuring software for providing data analysis, analytics, and
14 reporting of information concerning web server performance; design and
15 development of computer hardware and software; information, consultancy and
16 advisory services relating to all of the aforesaid.
17 345. The declaration in U.S. Application Number 87/487,184 for the NGINX trademark 18 stated in relevant part:
19 If the applicant is filing the application based on an intent to use the mark in
20 commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory
21 believes that the applicant is entitled to use the mark in commerce; The applicant
22 has a bona fide intention to use the mark in commerce on or in connection with the
23 goods/services in the application; and To the best of the signatory's knowledge and
24 belief, the facts recited in the application are accurate. To the best of the signatory's
25 knowledge and belief, no other persons, except, if applicable, concurrent users,
26 have the right to use the mark in commerce, either in the identical form or in such
27 near resemblance as to be likely, when used on or in connection with the
28 goods/services of such other persons, to cause confusion or mistake, or to deceive. 57 COMPLAINT, Case No.
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1 To the best of the signatory's knowledge, information, and belief, formed after an
2 inquiry reasonable under the circumstances, the allegations and other factual
3 contentions made above have evidentiary support. The signatory being warned that
4 willful false statements and the like are punishable by fine or imprisonment, or both,
5 under 18 U.S.C. § 1001, and that such willful false statements and the like may
6 jeopardize the validity of the application or submission or any registration resulting
7 therefrom, declares that all statements made of his/her own knowledge are true and
8 all statements made on information and belief are believed to be true.
9 346. These statements were false and known to be false by Sysoev and the other members 10 of the Team when such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI
11 347. U.S. Application Number 87/487,184 was purportedly assigned from NGINX BVI to 12 F5 on November 27, 2019, which assignment was recorded with the USPTO on December 3, 2019
13 at reel/frame number 006807/0517.
14 348. Subsequently, on December 11, 2019, a Statement of Use was filed by F5.
15 349. F5 recited the following in the Statement of Use: “The mark was first used by the 16 applicant, or the applicant's related company, licensee, or predecessor in interest at least as early as
17 12/14/2009, and first used in commerce at least as early as 04/12/2011, and is now in use in such
18 commerce.”
19 350. The date of first use claimed as of December 14, 2009 was while Sysoev was still 20 employed by Rambler, and the date of first use in commerce claimed as of April 12, 2011 was also
21 while Sysoev was still employed by Rambler. In fact, all of the Disloyal Employees were still
22 employees at Rambler as of April 12, 2011.
23 351. Further, there had been no transfer of trademark rights from Rambler to Sysoev such 24 that any rights could have been subsequently transferred to NGINX BVI and then to F5. 25 352. The declaration in the Statement of Use stated in relevant part: 26 For a trademark or service mark application, the mark is in use in commerce on or
27 in connection with all the goods/services in the application or notice of allowance,
28 or as subsequently modified…The specimen(s) shows the mark as used on or in 58 COMPLAINT, Case No.
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1 connection with the goods/services/collective membership organization in
2 commerce. To the best of the signatory’s knowledge and belief, no other persons,
3 except, if applicable, authorized users, members, and/or concurrent users, have the
4 right to use the mark in commerce, either in the identical form or in such near
5 resemblance as to be likely, when used on or in connection with the
6 goods/services/collective membership organization of such other persons, to cause
7 confusion or mistake, or to deceive.
8 To the best of the signatory's knowledge, information, and belief, formed after an
9 inquiry reasonable under the circumstances, the allegations and other factual
10 contentions made above have evidentiary support. The signatory being warned that
11 willful false statements and the like are punishable by fine or imprisonment, or both,
12 under 18 U.S.C. § 1001, and that such willful false statements and the like may
13 jeopardize the validity of the application or submission or any registration resulting
14 therefrom, declares that all statements made of his/her own knowledge are true and
15 all statements made on information and belief are believed to be true.
16 353. The declaration was signed on behalf of F5 by its attorney, Eugene Beliy.
17 354. The Statement of Use declaration statements were false as applied to the NGINX 18 trademark where such trademark rights were with Rambler, given the dates of first use and first use
19 in commerce.
20 355. The NGINX trademark was fraudulently registered in the name of F5 on January 28, 21 2020 under U.S. Registration Number 5,973,515.
22 356. On July 28, 2017, NGINX BVI filed an application to register the NGINX 23 CONTROLLER trademark on an intent-to-use basis, pursuant to 15 U.S.C. §1051(b), in the USPTO,
24 which was assigned U.S. Application Number 87/547,319. The word “controller” in the trademark
25 was required to be disclaimed because it is descriptive as to the goods and services. The predominant
26 portion of the trademark is NGINX.
27 357. The NGINX CONTROLLER trademark covers the following goods and services: 28 59 COMPLAINT, Case No.
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1 Class 9: Server software for use in web serving, reverse proxying, caching, load 2 balancing, application delivery and media streaming; computer software for
3 controlling and managing web servers; computer software for use in HTTP and
4 reverse proxy servers and mail proxy servers, namely, for controlling and managing
5 server applications in the nature of http and reverse proxy servers and mail proxy
6 servers; software for providing data analysis, analytics, and reporting of information
7 concerning web server performance; computer hardware; parts and fittings for all of
8 the aforesaid.
9 Class 42: Software as a service (SaaS) featuring software for use in web serving, 10 reverse proxying, caching, load balancing, application delivery, media streaming and
11 controlling and managing web servers; platform as a service featuring computer
12 platforms for web serving, reverse proxying, caching, load balancing, application
13 delivery and media streaming; Software as a service (SaaS) services featuring software
14 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
15 controlling and managing server applications in the nature of http and reverse proxy
16 servers and mail proxy servers; computer services, namely, providing web servers and
17 load balancing servers; software as a service (SaaS) services featuring software for
18 providing data analysis, analytics, and reporting of information concerning web server
19 performance; design and development of computer hardware and software;
20 information, consultancy and advisory services relating to all of the aforesaid.
21 358. The declaration in the NGINX CONTROLLER trademark application stated in 22 relevant part:
23 If the applicant is filing the application based on an intent to use the mark in commerce
24 under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory believes that
25 the applicant is entitled to use the mark in commerce; The applicant has a bona fide
26 intention to use the mark in commerce on or in connection with the goods/services in
27 the application; and To the best of the signatory’s knowledge and belief, the facts
28 recited in the application are accurate. To the best of the signatory's knowledge and 60 COMPLAINT, Case No.
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1 belief, no other persons, except, if applicable, concurrent users, have the right to use
2 the mark in commerce, either in the identical form or in such near resemblance as to
3 be likely, when used on or in connection with the goods/services of such other persons,
4 to cause confusion or mistake, or to deceive. To the best of the signatory's knowledge,
5 information, and belief, formed after an inquiry reasonable under the circumstances,
6 the allegations and other factual contentions made above have evidentiary support.
7 The signatory being warned that willful false statements and the like are punishable
8 by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false
9 statements and the like may jeopardize the validity of the application or submission or
10 any registration resulting therefrom, declares that all statements made of his/her own
11 knowledge are true and all statements made on information and belief are believed to
12 be true.
13 359. This statement was false and known to be false by Sysoev and the other members of 14 the Team when such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI.
15 360. The NGINX CONTROLLER trademark application was purportedly assigned from 16 NGINX BVI to F5 on November 27, 2019, which assignment was recorded with the USPTO on
17 December 3, 2019 at reel/frame number 006807/0517.
18 361. Subsequently, on December 11, 2019, a Statement of Use was filed by F5 claiming a 19 date of first use of use and date of first use in commerce as of June 26, 2018.
20 362. The NGINX CONTROLLER trademark covers the exact same goods and services as 21 the NGINX trademark, U.S. Registration No. 5,973,515, which claimed a date of first use as of
22 December 14, 2009, while Sysoev was still employed by Rambler, and a date of first use in commerce
23 claimed as of April 12, 2011 also while Sysoev and all the other Disloyal Employees were still
24 employed by Rambler.
25 363. There had been no transfer of trademark rights in the NGINX trademark from 26 Rambler to Sysoev such that any rights could have been subsequently transferred to NGINX BVI
27 and then to F5 to support seeking to register the NGINX CONTROLLER trademark.
28 61 COMPLAINT, Case No.
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1 364. The NGINX CONTROLLER trademark was fraudulently registered in the name of 2 F5 on January 28, 2020 under U.S. Registration Number 5,973,527.
3 365. F5 is not the rightful owner of the NGINX CONTROLLER trademark.
4 366. On July 28, 2017, NGINX BVI filed an application to register the NGINX UNIT 5 trademark on an intent-to-use basis, pursuant to 15 U.S.C. §1051(b) in the USPTO, which was
6 assigned U.S. Application Number 87/547,328. The word “unit” was required to be disclaimed in
7 the trademark because it is descriptive of the goods and services. The predominant portion of the
8 trademark is NGINX.
9 367. The NGINX UNIT trademark application covers the following goods and services:
10 Class 9: Server software for use in web serving, reverse proxying, caching, load 11 balancing, application delivery and media streaming; computer software for
12 controlling and managing web servers; computer software for use in HTTP and
13 reverse proxy servers and mail proxy servers, namely, for controlling and managing
14 server applications in the nature of http and reverse proxy servers and mail proxy
15 servers; software for providing data analysis, analytics, and reporting of information
16 concerning web server performance; computer hardware; parts and fittings for all of
17 the aforesaid.
18 Class 42: Software as a service (SaaS) featuring software for use in web serving, 19 reverse proxying, caching, load balancing, application delivery, media streaming and
20 controlling and managing web servers; platform as a service featuring computer
21 platforms for web serving, reverse proxying, caching, load balancing, application
22 delivery and media streaming; Software as a service (SaaS) services featuring software
23 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
24 controlling and managing server applications in the nature of http and reverse proxy
25 servers and mail proxy servers; computer services, namely, providing web servers and
26 load balancing servers; software as a service (SaaS) services featuring software for
27 providing data analysis, analytics, and reporting of information concerning web server
28 62 COMPLAINT, Case No.
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1 performance; design and development of computer hardware and software;
2 information, consultancy and advisory services relating to all of the aforesaid.
3 368. The declaration in the NGINX UNIT application stated in relevant part: 4 If the applicant is filing the application based on an intent to use the mark in
5 commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory
6 believes that the applicant is entitled to use the mark in commerce; The applicant
7 has a bona fide intention to use the mark in commerce on or in connection with the
8 goods/services in the application; and To the best of the signatory’s knowledge and
9 belief, the facts recited in the application are accurate. To the best of the signatory's
10 knowledge and belief, no other persons, except, if applicable, concurrent users,
11 have the right to use the mark in commerce, either in the identical form or in such
12 near resemblance as to be likely, when used on or in connection with the
13 goods/services of such other persons, to cause confusion or mistake, or to deceive.
14 To the best of the signatory's knowledge, information, and belief, formed after an
15 inquiry reasonable under the circumstances, the allegations and other factual
16 contentions made above have evidentiary support. The signatory being warned that
17 willful false statements and the like are punishable by fine or imprisonment, or both,
18 under 18 U.S.C. § 1001, and that such willful false statements and the like may
19 jeopardize the validity of the application or submission or any registration resulting
20 therefrom, declares that all statements made of his/her own knowledge are true and
21 all statements made on information and belief are believed to be true.
22 369. These statements were false and known to be false by Sysoev and the other members 23 of the Team when such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI.
24 370. The NGINX UNIT trademark application was assigned from NGINX BVI to F5 on 25 November 27, 2019, which assignment was recorded with the USPTO on December 3, 2019 at
26 reel/frame number 006807/0517.
27 371. Subsequently, on December 10, 2019, a Statement of Use was filed by F5 which 28 stated in relevant part: “The mark was first used by the applicant, or the applicant’s related company, 63 COMPLAINT, Case No.
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1 licensee, or predecessor in interest at least as early as 09/22/2017, and first used in commerce at least
2 as early as 09/22/2017, and is now in use in such commerce.”
3 372. Further, the declaration in the Statement of Use stated in relevant part: 4 The signatory believes that the applicant is the owner of the mark sought to be
5 registered. For a trademark or service mark application, the mark is in use in
6 commerce on or in connection with all the goods/services in the application or
7 notice of allowance, or as subsequently modified…The specimen(s) shows the
8 mark as used on or in connection with the goods/services/collective membership
9 organization in commerce. To the best of the signatory’s knowledge and belief, no
10 other persons, except, if applicable, authorized users, members, and/or concurrent
11 users, have the right to use the mark in commerce, either in the identical form or in
12 such near resemblance as to be likely, when used on or in connection with the
13 goods/services/collective membership organization of such other persons, to cause
14 confusion or mistake, or to deceive. To the best of the signatory's knowledge,
15 information, and belief, formed after an inquiry reasonable under the
16 circumstances, the allegations and other factual contentions made above have
17 evidentiary support. The signatory being warned that willful false statements and
18 the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001,
19 and that such willful false statements and the like may jeopardize the validity of the
20 application or submission or any registration resulting therefrom, declares that all
21 statements made of his/her own knowledge are true and all statements made on
22 information and belief are believed to be true.
23 373. The NGINX UNIT trademark covers the exact same goods and services as the 24 NGINX trademark, U.S. Registration No. 5,973,515, which claimed a date of first use as of
25 December 14, 2009 while Sysoev was still employed by Rambler, and a date of first use in commerce
26 claimed as of April 12, 2011 also while Sysoev and all the Disloyal Employees were still employed
27 by Rambler.
28 64 COMPLAINT, Case No.
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1 374. There had been no transfer of rights from Rambler to Sysoev in the NGINX trademark 2 such that any rights could have been subsequently transferred to NGINX BVI and then to F5.
3 375. The NGINX UNIT trademark was fraudulently registered in the name of F5 on 4 February 4, 2020 under U.S. Registration Number 5,978,630.
5 376. F5 is not the rightful owner of the NGINX UNIT trademark.
6 377. By using and fraudulently registering the aforementioned NGINX trademarks, the 7 Team has misappropriated the valuable name recognition and goodwill associated with that mark –
8 goodwill that, in the absence of such misappropriation, would have inured to the benefit of Rambler,
9 and by assignment, to Lynwood.
10 378. Through the Team’s misuse and wrongful appropriation of the NGINX trademark and 11 brand, in its various iterations, and the name recognition and goodwill attendant thereto, the Team
12 deliberately maximized the value of the stolen enterprise in order to make it as attractive as possible
13 for potential acquisition by a large U.S. technology company.
14 379. Because of the notoriety of the NGINX trademark, F5 recognized that it would 15 automatically have a compelling business case for completing the merger with NGINX BVI, as well
16 as an engine for monetizing years of forthcoming commercial releases of NGINX Plus. By acquiring
17 and deploying the NGINX trademark(s), F5 would instantly raise its profile and financial value
18 across a broad audience of the software development world, from the largest Internet and networking
19 companies to the smallest software development companies.
20 The Trademarks Used by Defendants Are Confusingly Similar
21 380. The NGINX and NGINX (Stylized) trademarks used by Defendants are exactly the 22 same in appearance sound and commercial impression to the NGINX trademarks owned by Lynwood
23 as the successor-in-interest to Rambler’s trademark rights.
24 381. The NGINX and NGINX (Stylized) trademarks used by Defendants are used in 25 connection with the exact same software goods and related services as used by Rambler.
26 382. The NGINX PLUS trademark used by Defendants is confusingly similar in sound, 27 appearance and commercial impression to the NGINX trademarks owned by Lynwood as Rambler’s
28 successor-in-interest. Further, the goods and services are the same as or are closely related to or are 65 COMPLAINT, Case No.
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1 the same as the goods and services provided in connection with the NGINX and NGINX (Stylized)
2 trademarks of Rambler (now Lynwood).
3 383. The NGINX CONTROLLER trademark used by Defendants is confusingly similar 4 in sound, appearance and commercial impression to the NGINX trademarks owned by Lynwood as
5 Rambler’s successor-in-interest. Further, the goods and services are the same as or are closely related
6 to or are the same as the goods and services provided in connection with the NGINX and NGINX
7 (Stylized) trademarks of Rambler (now Lynwood).
8 384. The NGINX UNIT trademark used by Defendants is confusingly similar in sound, 9 appearance and commercial impression to the NGINX trademarks owned by Lynwood as Rambler’s
10 successor-in-interest. Further, the goods and services are the same as or are closely related to or are
11 the same as the goods and services provided in connection with the NGINX and NGINX (Stylized)
12 trademarks of Rambler (now Lynwood).
13 The Team Adds Robertson to Help Achieve the Ultimate Object of their Conspiracy – A Sale
14 to a Large United States Technology Company
15 385. In 2012, the Team engaged Robertson to act as the CEO of NGINX Software, Inc., 16 NGINX DE, and later NGINX BVI.
17 386. Robertson readily joined the Team’s conspiracy, taking an equity stake in the scheme 18 so he would personally profit when the ultimate object of the conspiracy – a sale to a large technology
19 company – was achieved.
20 387. Through his nearly 7-year tenure with the NGINX entities, Robertson gained in-depth 21 knowledge that the NGINX Software, and all proprietary software modules developed to enhance its
22 functionality, including the commercial code known as NGINX Plus, that Sysoev developed during
23 his employment with Rambler, as well as the NGINX Enterprise and all related business
24 opportunities, belonged to, and were stolen from, Rambler.
25 388. Despite this knowledge, Robertson proceeded to spearhead the unlawful commercial 26 exploitation and ultimate sale of the NGINX Enterprise to the exclusion of its rightful owner,
27 Rambler.
28 The Team Sells the NGINX Enterprise to F5 Through a Merger 66 COMPLAINT, Case No.
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1 389. On March 9, 2019, F5 entered into a Merger Agreement (the “Merger Agreement”) 2 with NGINX BVI, Neva Merger Sub Limited, a British Virgin Islands company and a wholly owned
3 subsidiary of F5 (“Merger Sub”), and Fortis Advisors LLC, a Delaware limited liability company,
4 as security holder representative (the “Securityholder Representative”), pursuant to which, Merger
5 Sub merged with and into NGINX BVI (the “Merger”), with NGINX BVI surviving the Merger and
6 becoming a wholly-owned subsidiary of F5.
7 390. Before the Merger, F5 conducted extensive due diligence concerning the NGINX 8 entities and its principals.
9 391. Most importantly, F5 conducted extensive due diligence concerning the NGINX 10 Software and its proprietary companion code and their origins, which of course revealed that Sysoev
11 developed the NGINX Software and NGINX Plus modules for Rambler and with Rambler’s
12 resources while he was employed there.
13 392. F5 reviewed and analyzed the NGINX Software and NGINX Plus software itself, and 14 therefore F5 knew that Sysoev wrote much of the NGINX Software and NGINX Plus software during
15 normal working hours while employed by Rambler – a fact which confirmed that, the NGINX
16 Software and NGINX Plus software were works made for hire that Rambler owned. Moreover, as
17 to the NGINX Software, F5, based on its due diligence, knew that Sysoev and/or the NGINX entities
18 had never taken the overt position that they owned the open source NGINX Software.
19 393. F5’s review and analysis of the NGINX Software also revealed that the NGINX 20 Software released publicly by Sysoev between 2004 and 2011 while employed by Rambler was still
21 in the NGINX Software as of 2019 and, indeed, remained the core code driving the functionality of
22 the NGINX Software. In fact, more than 75 percent of the source code contained in the open source
23 NGINX Software today consists of software code that Sysoev wrote as works for hire while he was
24 employed by Rambler.
25 394. Moreover, F5’s review and analysis of the NGINX Plus software and the financials 26 of the NGINX Enterprise necessarily revealed that (i) the NGINX Plus software was conceived of,
27 designed and/or written by Sysoev while he was employed by Rambler, and (ii) that NGINX Plus’s
28 67 COMPLAINT, Case No.
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1 core architecture, functionality and commercial success, are completely dependent on the core open
2 source code NGINX Software.
3 395. F5 reviewed and analyzed the NGINX Software itself, and therefore F5 knew that 4 Sysoev and NGINX entities never overtly asserted a proprietary interest in the NGINX Software,
5 either to Rambler or Lynwood or otherwise.
6 396. Instead, F5’s due diligence revealed that Sysoev and the NGINX entities only asserted 7 authorship of the NGINX Software under Russian law, a claim that is consistent with the NGINX
8 Software being a work made for hire that Rambler owned.
9 397. F5 also had the opportunity to review Sysoev’s admissions that he developed the 10 NGINX Software for Rambler to solve Rambler problems with Apache which impeded Rambler’s
11 ability to handle large quantities of web data and related user traffic.
12 398. F5’s due diligence revealed that Sysoev and the other Disloyal Employees designed 13 and developed the NGINX Plus software while in the employment of Rambler using Rambler
14 resources and in furtherance of their employment responsibilities thereby making NGINX Plus a
15 work made for hire that Rambler owned.
16 399. F5’s due diligence thus revealed that the Team was seeking to sell a business that 17 properly belonged to Rambler, not the Team.
18 400. After conducting all its due diligence, F5, both legally and ethically, should have 19 declined to close on the Merger transaction so as to not aid and abet the Team’s conspiracy to steal
20 the NGINX Enterprise and related business opportunities from Rambler.
21 401. Instead, with knowledge of the Team’s conspiracy, F5 proceeded to provide the Team 22 with substantial assistance toward the end goal of the Team’s conspiracy – selling Rambler’s
23 NGINX-related business opportunity. F5 was motivated by its own financial gain in acquiring
24 control of the highly valuable NGINX Enterprise.
25 402. The Merger closed on May 8, 2019, as announced by F5.
26 403. The result of the Merger is that (i) NGINX BVI became the wholly owned subsidiary 27 of F5, (ii) Merger Sub was merged out of existence and with and into NGINX BVI, (iii) NGINX,
28 BVI was the “surviving corporation” in the Merger and, thus, the separate legal existence of NGINX 68 COMPLAINT, Case No.
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1 BVI survived, and continues following, the Merger, and (iv) all of the assets (including property),
2 rights, privileges, powers and franchises of NGINX BVI and Merger Sub and all claims, debts,
3 liabilities and duties of NGINX BVI and Merger Sub becomes the debts, liabilities and duties of
4 NGINX BVI.
5 404. Subject to the terms and conditions of the Merger Agreement, F5 paid an aggregate 6 amount of consideration worth approximately $670,000,000 in cash, subject to certain adjustments
7 set forth in the Merger Agreement, for all of the outstanding shares of NGINX BVI (excluding shares
8 (i) owned by NGINX BVI or any subsidiary of NGINX BVI and (ii) held by NGINX BVI
9 shareholders who perfected their dissenters’ rights with respect to the Merger) and all of the other
10 outstanding equity securities of NGINX BVI (the “Merger Consideration”).
11 405. In its Form 10-K filing with the U.S. Securities and Exchange Commission for the 12 fiscal year ended September 30, 2019, F5 allocated what it referred to as the total purchase price of
13 $643,414,000 as follows: $44,494,000 to net tangible assets, $62,500,000 to developed technologies,
14 $12,000,000 to customer relationships, $14,500,000 to trade name, and $509,414,000 to goodwill.
15 406. The terms of the Merger Agreement make apparent that F5 was cognizant of the legal 16 risks associated with the history of the NGINX Software and NGINX Plus having been developed
17 by Sysoev and the other Disloyal Employees, while they were employed by Rambler, during work
18 hours and with the resources and facilities of Rambler.
19 407. In its 8-K SEC filing in connection with the Merger, F5 described how, upon 20 consummation of the Merger, “certain of Nginx’s former security holders will undertake certain
21 indemnity obligations.”
22 408. In addition, F5 stated, “at the closing of the Merger, F5 will deposit with an escrow 23 agent (i) $2,000,000 of the Merger Consideration to fund potential payment obligations of certain
24 former securityholders of NGINX BVI with respect to a post-closing purchase price adjustment, and
25 (ii) 1% of the Merger Consideration to fund potential post-closing indemnification obligations of
26 certain former securityholders of NGINX BVI, on the terms and conditions set forth in the Merger
27 Agreement.” F5 added that it had obtained an insurance policy “[t]o supplement the potential post-
28 69 COMPLAINT, Case No.
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1 closing indemnification obligations for breaches of Nginx’s representations and warranties and
2 certain other matters….”
3 409. The Merger Agreement also recites that as a condition and inducement to F5’s 4 willingness to enter into the agreement, each of the “Founders”, “Key Executives” and “Key
5 Employees” was simultaneously entering into employment agreements with F5, “(including
6 proprietary information and inventions assignment agreements)”. As a further condition of F5
7 entering into the Merger Agreement, each of the Founders and Key Executives also entered into a
8 “Holdback Agreement” with F5.
9 410. Defendant Konovalov, co-founder of NGINX BVI, is now Vice President of 10 Engineering for F5.
11 411. Defendant Sysoev, co-founder of NGINX BVI, is now a Senior Architect at F5.
12 412. Defendant Alexeev, co-founder of NGINX BVI, is listed as the Product Owner for 13 NGINX Amplify.
14 413. Defendant Robertson, NGINX BVI’s CEO, is a Senior Vice President of F5 and 15 General Manager of the NGINX business for F5.
16 414. Defendant Dounin, a longtime employee of NGINX BVI, is now a Principal Software 17 Engineer for F5.
18 415. The Merger Agreement contains a number of representations and warranties provided 19 by NGINX BVI to F5 and the “Merger Sub” concerning intellectual property-related matters. For
20 example, NGINX BVI represents and warrants that each person who contributed to “Company IP”
21 has executed an irrevocable assignment of intellectual property to NGINX BVI; that “no Employee
22 or former employer of any Employee has any claim, right or interest in or to any Company IP; and
23 that “no employee or independent contractor of the Company or any Subsidiary is in breach of any
24 Contract with any former employer or other Person concerning Intellectual Property Rights or
25 confidentiality.”
26 416. A number of the representations and warranties in the Merger Agreement involve or 27 encompass what the agreement defines as “Company Product”, a term that is defined as “…each and
28 every product or service marketed, licensed, or sold by the Company or any Subsidiary at any time 70 COMPLAINT, Case No.
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1 and any product or service currently under development by the Company or any subsidiary, including
2 nginx (open source), NGINX, NGINX Plus, NGINX Amplify, NGINX Controller, NGINX Unit.”
3 417. Article IX of the Merger Agreement is entitled “Post-Closing Indemnification.” 4 Section 9.1 provides, among other things, that representations and warranties regarding intellectual
5 property matters survive the closing of the transaction for four years.
6 F5 Heavily Markets and Monetizes the NGINX Software and NGINX Plus
7 418. In announcing its acquisition of NGINX, F5 announced it “will maintain the brand 8 with current NGINX CEO, Gus Robertson, and founders, Igor Sysoev and Maxim Konovalov,
9 joining F5 to continue to lead NGINX.”
10 419. F5 further stated: “Together, F5 and NGINX will enable multi-cloud application 11 services across all environments, providing the ease-of-use and flexibility developers require while
12 also delivering the scale, security, reliability and enterprise readiness network operations teams
13 demand.”
14 420. F5 stated it was “committed to continue innovation & investment in the NGINX open 15 source project.”
16 421. F5 noted that at the time of the merger, “375 million sites globally run on NGINX,” 17 including “60% of the busiest 100k sites run on NGINX.”
18 422. F5 further stated that NGINX BVI “founded in 2011,” had collected approximately 19 $26 million in revenue in calendar year 2018, which represented a sixty-five percent growth in
20 revenue levels from the previous calendar year.
21 423. F5 has publicly stated that “NGINX…extends our reach to cloud-native and 22 microservices environments and extends our role into application servers, web servers, and API
23 gateways.”
24 424. According to F5: 25 Under the NGINX brand we offer: * NGINX Plus, an all-in-one load balancer, web
26 server, content cache, and API gateway for modern applications. * NGINX Controller,
27 which provides centralized monitoring and management for NGINX Plus. We believe
28 the combined forces of F5 and NGINX will enable multi-cloud application services 71 COMPLAINT, Case No.
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1 across a broader range of environments than either company could have addressed
2 independently, providing the ease-of-use and flexibility developers require while also
3 delivering the scale, security, reliability, and enterprise readiness network operations
4 teams demand.
5 425. F5 is exploiting the newly acquired NGINX Enterprise in a number of ways.
6 426. One way is through licenses to customers, on a subscription basis or per-instance 7 basis, of what F5 refers to as NGINX PLUS.
8 427. According to F5, NGINX PLUS is a software load balancer, web server, and content 9 cache built on top of open source NGINX. NGINX Plus has exclusive enterprise-grade features
10 beyond what's available in the open source offering, including session persistence, configuration via
11 API, and active health checks. As F5 advertises, “[u]se NGINX Plus instead of your hardware load
12 balancer and get the freedom to innovate without being constrained by infrastructure.”
13 428. NGINX CONTROLLER is a cloud-native, secure, and high-performance application 14 delivery platform.
15 429. NGINX UNIT is an App server, HTTP server, and reverse proxy that is designed from 16 scratch around the needs of distributed applications.
17 430. NGINX Open Source is an open source web server that powers 400 million websites.
18 431. NGINX WAF is an App firewall providing security software for Apps by stopping 19 SQL injection, LFI, RFI, and almost any Layer 7 attack—based on the widely used ModSecurity
20 open source software.
21 432. The scope of F5’s market share in the open-source web server space, particularly after 22 its acquisition of NGINX, is massive. As F5 states in its Corporate Flyer, “[w]hen you combine F5’s
23 and NGINX’s expertise powering more than half of the world’s applications across all types of
24 environments, with Shape’s insight from mitigating one billion application attacks per day, you have
25 a company that knows how to deliver and secure more applications, and more value, than any
26 company in the industry.”
27 433. F5 describes NGINX Plus as “a software load balancer, web server, and content cache 28 built on top of open source NGINX.” 72 COMPLAINT, Case No.
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1 434. NGINX Plus has “exclusive enterprise-grade features beyond what’s available in the 2 open source offering, including session persistence, configuration via API, and active health checks.”
3 The NGINX Software and NGINX Plus Software Now Being Exploited and Monetized by F5
4 Contains the Code Developed by the Team (Primarily Sysoev) at and for Rambler and at
5 Rambler’s Expense
6 435. The NGINX Software and NGINX Plus software deployed today by F5 contains the 7 NGINX Software and proprietary commercial code that Rambler owned and that Lynwood now
8 owns.
9 436. More than seventy-five percent (75%) of the current iteration of the open source 10 NGINX Software consists of the open source NGINX Software that Sysoev developed and released
11 prior to his exit from Rambler, during regular work hours and utilizing Rambler’s facilities,
12 employees, financial resources, and Internet traffic.
13 437. NGINX Plus, consisting of commercial extensions and companion modules to the 14 open source NGINX Software, is substantially dependent on the open-source software platform that
15 Sysoev developed while an employee at Rambler. This is shown repeatedly in the NGINX Plus
16 release statements, benchmark tests, documentation, and other descriptive sources. Moreover,
17 Sysoev and the other Disloyal Employees had already developed substantial portions of the NGINX
18 Plus software while still employed at Rambler and using Rambler resources and infrastructure.
19 Through Its Own Trademark Filings in The U.S. Patent and Trademark Office, F5 Has
20 Confirmed That It Was Aware Prior To The Merger That the Team Had Begun To
21 Commercialize The NGINX Software And NGINX PLUS Software While The Disloyal
22 Employees Were Still At Rambler
23 438. In its own filings with the United States Patent and Trademark Office following the 24 Merger, F5 confirmed, based on its own pre-Merger diligence, that it knew the Team had begun
25 using the NGINX trademark, including in connection with the software-as-a-service-type model that
26 Korotkov had claimed in his own trademark application, while the Disloyal Employees were still
27 employed at Rambler.
28 73 COMPLAINT, Case No.
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1 439. In December 2019, F5 took over a trademark application for the NGINX trademark 2 originally filed on June 14, 2017. In connection with such application, F5 caused its legal counsel
3 to file a Statement of Use in which he identified the dates of first use and first use in commerce of
4 the NGINX trademark in connection with not only server software, but also in connection with
5 various commercial software-as-a-service offerings.
6 440. In the Statement of Use, F5’s attorney declared that the first use of the NGINX 7 trademark in connection with such goods and services took place on December 14, 2009, and that 8 the first use in commerce took place on April 12, 2011. These dates of first use closely track the date 9 of first use (February 10, 2010) and the date of first use in commerce (March 1, 2011) cited by 10 Korotkov on his own trademark application in furtherance of his participation in the conspiracy with 11 the Team as discussed above. 12 441. In the trademark application, originally filed by NGINX BVI, F5 claims such dates 13 of first use and first use in commerce apply to certain software-related products in Class 9, and also 14 to certain services in Class 42. 15 442. The identification of goods claimed in the F5 trademark application are as follows: 16 Class 9 Server software for use in web serving, reverse proxying, caching, load 17 balancing, application delivery and media streaming; computer software for 18 controlling and managing web servers; computer software for use in HTTP and 19 reverse proxy servers and mail proxy servers, namely, for controlling and managing 20 server applications in the nature of http and reverse proxy servers and mail proxy 21 servers; software for providing data analysis, analytics, and reporting of information 22 concerning web server performance; computer hardware; parts and fittings for all of 23 the aforesaid. 24 443. The identification of services claimed in the F5 trademark application are as follows: 25 Class 42: Software as a service (SaaS) featuring software for use in web serving, 26 reverse proxying, caching, load balancing, application delivery, media streaming and 27 controlling and managing web servers; platform as a service featuring computer 28 74 COMPLAINT, Case No.
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1 platforms for web serving, reverse proxying, caching, load balancing, application
2 delivery and media streaming; Software as a service (SaaS) services featuring software
3 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
4 controlling and managing server applications in the nature of http and reverse proxy
5 servers and mail proxy servers; computer services, namely, providing web servers and
6 load balancing servers; software as a service (SaaS) services featuring software for
7 providing data analysis, analytics, and reporting of information concerning web server
8 performance, design and development of computer hardware and software
9 information, consultancy and advisory services relating to all of the aforesaid.
10 444. Thus, F5, which had conducted extensive due diligence in early 2019 in connection 11 with the Merger, was well aware prior to the consummation of the Merger that the Team had taken
12 concrete steps to steal the NGINX Enterprise from Rambler, and develop assets such as NGINX
13 Plus, in furtherance of their monetization of the NGINX Enterprise, years before Sysoev exited
14 Rambler to launch the Team’s turnkey NGINX Software and NGINX Plus-based business enterprise.
15 445. Indeed, F5’s own counsel confirmed with the United States Patent and Trademark 16 Office that the Team’s use in conjunction with the NGINX trademark of the described goods and
17 services – the scope of which goes far beyond the mere development and maintenance of the NGINX
18 Software open source repository – had first occurred two years before Sysoev exited Rambler.
19 446. Nevertheless, despite its possession of such information and knowledge, F5 20 proceeded with the Merger, in disregard of the fact that the Team were violating Rambler rights.
21 F5 Has Falsely Asserted Ownership of Trademarks That Are Rightfully Owned By Lynwood
22 447. Since the 2019 merger, F5 has regularly and systematically used, exploited, and 23 monetized the trademarks fraudulently obtained by the Team and the other defendants, and
24 derivatives thereof. Specifically, F5 unlawfully asserts that it owns the following trademarks:
25 NGINX; NGINX (Stylized); NGINX PLUS; NGINX CONTROLLER and NGINX UNIT.
26 448. In view of the assignments recorded on December 3, 2019 and February 6, 2020 in 27 the USPTO, F5 now asserts that it owns the suite of NGINX trademarks, the first application for
28 75 COMPLAINT, Case No.
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1 which was fraudulently filed by Sysoev (through NGINX Software, Inc.) on May 4, 2011 while he
2 was employed by Rambler.
3 449. Despite its due diligence revealing, and therefore its knowledge, that the trademarks 4 were fraudulently and unlawfully obtained by NGINX Software, Inc., NGINX DE, and NGINX BVI,
5 F5 readily availed itself of the fraudulently obtained trademarks and has since been monetizing them.
6 450. F5 is listed as the current Registrant of the following trademarks of which Lynwood 7 should be identified as the rightful owner: NGINX (in Class 9); NGINX (Stylized); NGINX (in
8 Classes 9 and 42); NGINX PLUS; NGINX CONTROLLER; and NGINX UNIT.
9 451. In addition, on December 10, 2019, F5 filed an application to register NGINX APP 10 PROTECT as a trademark, on an intent-to-use basis, pursuant to 15 U.S.C. § 1051(b), in the USPTO,
11 which was assigned U.S. Application No. 88/721,611.
12 452. The application to register the NGINX APP PROTECT trademark was published for 13 opposition on May 12, 2020.
14 453. The goods identified in the NGINX APP PROTECT trademark application are as 15 follows: Class 9: “Web application security software, namely, downloadable software for ensuring
16 security of applications communicating across networks and across related products; downloadable
17 software for securing applications communicating over networks; downloadable software for use in
18 thwarting and mitigating application layer attacks, bot-based attacks, malware activity, and other
19 application security attacks.”
20 454. The NGINX APP PROTECT application filed by F5 is based upon the prior 21 fraudulently registered trademarks of Sysoev and the other Team members through the various
22 NGINX entities, as evidenced by the recitation of prior registration numbers in the application.
23 A Whistleblower Comes Forward to Rambler Revealing “the Team’s” Conspiracy
24 455. In the wake of the F5 Merger, during the late spring of 2019 Rambler was approached 25 by Korotkov.
26 456. Korotkov, having been cut from the Team despite his early efforts on their behalf, 27 blew the whistle on the conspiracy and scheme.
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1 457. Korotkov informed Rambler that the Disloyal Employees conspired to conceal from 2 Rambler that NGINX Software and NGINX Plus were developed by Sysoev and the Disloyal
3 Employees while they were still employed at Rambler and at Rambler’s expense.
4 458. Korotkov informed Rambler that the Disloyal Employees conspired to conceal from 5 Rambler the value of the NGINX Software and NGINX Plus and more generally the NGINX
6 Enterprise.
7 459. Korotkov further informed Rambler that the Disloyal Employees actively concealed 8 their work on the NGINX Software and NGINX Plus software both during and after their
9 employment with Rambler.
10 460. Korotkov also explained that Konovalov’s position as CTO facilitated the Disloyal 11 Employees’ concealment of their work on the NGINX Software and NGINX Plus software as well
12 as the pervasive concealment of the true utility and value of the NGINX Enterprise to Rambler.
13 461. Korotkov also disclosed to Rambler that during their employment with Rambler, the 14 Disloyal Employees conspired to and consistently did conceal from Rambler the commercialization
15 and monetization they recognized for the NGINX Software and NGINX Plus and were planning to
16 exploit.
17 462. Korotkov further disclosed to Rambler that the Disloyal Employees developed the 18 NGINX Software and NGINX Plus during their work hours utilizing Rambler’s infrastructure.
19 463. In addition, Korotkov disclosed to Rambler that, in furtherance of their conspiracy, 20 the Team directed Smirnoff who stayed behind at Rambler to help the Team cover their tracks, to
21 misappropriate and then destroy the servers in the hope that it would conceal their scheme to steal
22 the NGINX Enterprise from Rambler.
23 464. Prior to Korotkov’s disclosures, Rambler did not have reason to, and did not, 24 understand the scope or value of the Disloyal Employees’ work on the NGINX Software and NGINX
25 Plus code, which was conducted for, and at the expense and risk of, Rambler, but under the office of
26 Konovalov.
27 465. With the cover of reporting to Konovalov, the Disloyal Employees were able to 28 successfully conceal the utility, scope, and value of the NGINX Enterprise from Rambler. 77 COMPLAINT, Case No.
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1 466. Immediately after Korotkov’s disclosures, Rambler and Lynwood conducted 2 extensive investigations regarding the whistleblower’s assertions.
3 467. Rambler and Lynwood’s extensive investigations confirmed the veracity of the 4 whistleblower’s assertions, and this lawsuit followed.
5 Lynwood Acquires Rambler’s Rights to the NGINX Intellectual Property and The Claims
6 Asserted Herein
7 468. Lynwood’s former name prior to January 2, 2015 was A&NN Holdings Limited 8 (“A&NN Holdings”). From 2013 until December 2014, A&NN Holdings indirectly owned 25% of
9 Rambler while another 25% of Rambler was owned by A&NN Holdings’ sister companies. A&NN
10 Holdings and its sister companies together formed a part of A&NN group of companies (“A&NN
11 Group”). From 2013, A&NN Group was not only a 50% shareholder of Rambler but also a managing
12 partner of Rambler.
13 469. In January 2015, Lynwood ceased to be an indirect shareholder but A&NN Group 14 remained a 50% shareholder of Rambler and would go on to increase its ownership stake to 100% in
15 2017. Tekso Holdings Limited (one of the companies that comprised part of A&NN Group in 2017)
16 currently owns approximately 50% of Rambler.
17 470. Lynwood is a seasoned holding company that invests in a variety of industries across 18 Europe.
19 471. In January 2015, after Sysoev appeared in industry specific media outlets to give 20 interviews concerning his authorship of the open-source NGINX Software, which was gaining
21 popularity, Rambler and Lynwood prophylactically entered into an Assignment Agreement, dated
22 January 15, 2015 and amended on January 23, 2015 (the “2015 Assignment”), which assigned
23 Rambler’s employment and intellectual property rights to Lynwood for enforcement in the event
24 Sysoev or Konovalov would ever claim an ownership right to the NGINX Software or had previously
25 engaged in any illicit or wrongful conduct vis-à-vis their employment obligations or Russian law as
26 it concerned Rambler and its proprietary information and products.
27 472. At that time, however, neither Rambler nor Lynwood were aware that the Disloyal 28 Employees had conceived and developed the NGINX Enterprise, including NGINX Plus while in 78 COMPLAINT, Case No.
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1 the employment of Rambler. Moreover, neither Sysoev nor any of the other Disloyal Employees
2 had ever claimed to Rambler that Sysoev owned (as opposed to authored) the NGINX Software.
3 473. At that time, Rambler and Lynwood were also unaware of the value of the NGINX 4 Enterprise precisely because Konovalov had consistently given it a “1” or worthless value in his
5 internal reports as the company CTO responsible for product development and because neither
6 Konovalov nor Sysoev ever disclosed the scope and magnitude of the NGINX Software project the
7 Disloyal Employees were working on at Rambler; and also because the Disloyal Employees removed
8 the servers containing the NGINX-related work product in 2012 before Smirnoff left Rambler.
9 474. Rambler reasonably understood it had lost considerable technical talent with Sysoev’s 10 departure, but it reasonably did not suspect that talent was working on a massive heist from Rambler
11 that would play out over the next several years.
12 475. It was not until Korotkov blew the whistle on the Team in April 2019 and explained 13 to Rambler and Lynwood how the Team was able to orchestrate and execute their misappropriation
14 scheme including by identifying the manner in which all relevant evidence was destroyed, that
15 Lynwood and Rambler knew they would need to perform forensic investigations, including by
16 bringing an outside firm to recover and restore what remained of the servers in Rambler’s custody
17 and to restore the Disloyal Employees’ previously deleted emails.
18 476. Korotkov’s disclosure was the spark that lead Rambler and Lynwood to investigate 19 his assertions and the possibility that Rambler (now Lynwood) had potential claims against the Team
20 and potentially other participants. Rambler and Lynwood did not simply take Korotkov at his word.
21 They assumed Korotkov had an axe to grind toward the Team. However, Korotkov provided
22 Rambler and Lynwood with specific information about the extent to which the Team went to conceal
23 the NGINX Enterprise and their misconduct from Rambler. Thus, Rambler and Lynwood
24 investigated Korotkov’s allegations.
25 477. It was only after the completion of these time-consuming and expensive forensic 26 investigations that Rambler and Lynwood independently verified and corroborated the information
27 Korotkov provided them in April 2019. Based on their own forensic investigatory findings and an
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1 internal investigation within Rambler, a new assignment agreement was entered into by Rambler and
2 Lynwood to replace and supersede the 2015 Assignment.
3 478. On April 20, 2020, Rambler and Lynwood entered into an Assignment Agreement 4 (the “Assignment”), pursuant to which Rambler on behalf of itself and its affiliates irrevocably
5 assigned to Lynwood any and all rights to the NGINX Software, derivative works derived therefrom
6 and related business opportunities as well as any and all claims for damages arising out of or relating
7 to Rambler’s rights in or to the NGINX Software, NGINX Plus and related business opportunities or
8 to otherwise enforce all rights Rambler holds with respect to the NGINX-related intellectual property
9 and/or the legal and contractual duties owed to Rambler by Rambler’s former employees. The
10 Assignment was authorized unanimously by the Rambler Board of Directors.
11 479. By virtue of the Assignment, Lynwood owns the causes of action asserted in this 12 Complaint, and Lynwood is the proper Plaintiff to maintain this action against Defendants.
13 Under Russian Law, Rambler Owned the NGINX Software, NGINX Plus and Related Business
14 Opportunities
15 480. Under Russian law, the NGINX Software and NGINX Plus were owned ab initio by 16 Rambler, the employer of Sysoev, from the moment of its creation, as a work made for hire. The
17 applicable Russian law to the Defendants’ conduct is law of the Russian Federation from July 9,
18 1993 “On Copyright and Neighboring Rights” (the “1993 Law”) as well as the Law of the Russian
19 Federation from September 23, 1992 No. 3523-1 “On Legal Protection of Computer’s Programs and
20 Databases” (the “1992 Law”).
21 481. Both the 1992 Law and the 1993 Law were in effect at the time Sysoev first wrote 22 NGINX Software for Rambler in 2001, and continued to govern the Disloyal Employees’ misconduct
23 as employees and Rambler’s ownership rights (and thus Lynwood’s ownership rights) throughout
24 the relevant time period in this Complaint.
25 482. While Sysoev could rightfully claim under Russian law the right to be identified as 26 the author of the NGINX Software or NGINX Plus, neither he nor any other member of the Team
27 could claim the proprietary copyright thereto, which always belonged to Sysoev’s employer,
28 Rambler, and is now owned by Lynwood. 80 COMPLAINT, Case No.
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1 483. Sysoev’s unauthorized release of the NGINX Software to the public, under the BSD 2 open source license, and the Team’s continued commercial exploitation thereof, eventually through
3 NGINX Software, Inc. and NGINX BVI, and now through F5, constituted a gross violation under
4 Russian law of Sysoev’s and the Disloyal Employees’ obligations as employees of Rambler as well
5 as violations of the Rambler Code of Conduct, the Rambler Regulations and Russian civil law
6 provisions governing “works made for hire.”
7 484. Section 2 of the 1992 Law and Section 7 of the 1993 Law includes programs for 8 computational devices (“computer programs”) in literary works and recognizes them as objects of
9 copyright.
10 485. Rights related to computer programs arise from the mere fact of their creation (and 11 from the moment of their creation) and do not require separate registration with a relevant
12 government authority (in Russia, – RosPatent).
13 486. Section 11 of the 1992 Law and Section 16 of the 1993 Law provides for the owner 14 of copyright to exclusively use and/or dispose of such rights in any way that he or she deems
15 appropriate, provided such use or disposal does not otherwise violate the law.
16 487. Copyright under Russian law consists of two elements: (i) the authorship right and 17 (ii) the “exclusive proprietary right” to exploit the work.
18 488. Under Section 13 of the 1992 Law, the copyright for a computer program can be 19 registered with RosPatent at any time, but failure to do so does not cancel or undermine the owner’s
20 rights.
21 489. Under Russian law, protection of the proprietary rights/right of usage of the computer 22 program applies to the program codes, as distinct from the authorship right, and may be assigned,
23 passed on under contract, inherited, or otherwise transferred.
24 490. Pursuant to Section 9 of the 1993 Law and Section 13 of the 1992 Law, if the author 25 of the computer program is employed at the time of the computer program creation, then the
26 employer holds the proprietary rights to the program, unless the employee and the employer agree
27 otherwise. The program then becomes a copyrighted object made while in employment and is then
28 regulated by the applicable provisions of the Russian civil law. 81 COMPLAINT, Case No.
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1 491. Sections 12 of the Russian Civil Code, Sections 18 & 20 of the 1992 Laws, and 2 Sections 48-49.1 of the 1993 Law provide remedies for the legitimate copyright owner in the event
3 of the breach of copyright, including the recognition of rights, the restitution of the rights as they
4 existed prior to the breach, compensatory damages, and the recovery of damages based on a violation
5 of moral rights.
6 492. In addition, Section 20 of the 1992 Law and Section 50 of the 1993 Law provide 7 protection of computer programs by authorizing the issuance of a preliminary protective court order
8 or general civil law compensation provisions.
9 493. The basis for filing of the corresponding claim is the actual damage caused to the 10 claimant per Section 15 of the Russian Civil Code and may be recovered in full.
11 494. Under Russian law, recoverable damages include costs that the person whose right is 12 breached has incurred and will have to incur in order to remedy the breached right, loss or damage
13 to the property of such person as well as unrealized profits gains that such person should have
14 received if his or right was not violated.
15 495. Russia, like the United States, is a signatory to the Berne Convention.
16 496. Article 5 of the Berne Convention provides: “Authors shall enjoy, in respect of works 17 for which they are protected under this Convention, in countries of the Union other than the country
18 of origin, the rights which their respective laws do now or may hereafter grant to their nationals,”
19 but the “extent of protection, as well as the means of redress afforded to the author to protect his
20 rights, shall be governed exclusively by the laws of the country where protection is claimed.” Berne
21 Convention Art. 5(l )–5(2).
22 497. Accordingly, with valid copyright claims in hand under Russian law against 23 Defendants, U.S. Copyright law applies to a copyright infringement claim against those parties
24 brought in United States federal courts based on infringing activity that occurs within the United
25 States.
26 498. Plaintiff meets the standing test of 17 U.S.C. § 501(b), “which accords standing only 27 to the legal or beneficial owner of an ‘exclusive right.’”
28 82 COMPLAINT, Case No.
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1 499. Where a work was created in a foreign country, the plaintiff’s ownership of the 2 copyright in the work is governed by the law of the jurisdiction where the work was “‘created’ and
3 ‘first published.’”
4 500. The NGINX Software and NGINX Plus software were created and first published 5 and/or deployed in the Russian Federation, and therefore Russian law is the applicable law to
6 determine issues of ownership of rights.
7 501. Under Russian law, Rambler was the owner of the NGINX Software and NGINX 8 Plus copyrights when they were developed and when the Team formed NGINX Software, Inc. in
9 2011.
10 502. Sysoev developed the NGINX Software and NGINX Plus while Sysoev was a full- 11 time employee of Rambler.
12 503. The Sysoev Employment Agreement with Rambler, in pertinent part, states as 13 follows: “7. WORKS FOR HIRE. As part of the Employee’s performance of his official duties, he
14 may be entrusted with the Business Entity’s administration or his or her authorized person to create
15 works that are objects of copyright, such as computer programs and databases. Such works is an
16 official work. The exclusive property rights of such works belong to the Business Entity.”
17 504. The Sysoev Employment Agreement with Rambler contains the standard set of rights 18 and obligations under Russian law that replicate the provisions of the Russian Labor Code. Under
19 Russian law, the copyright in a work made for hire belongs to the employer.
20 505. As a matter of Russian intellectual property law, the exclusive proprietary right to 21 work made for hire (in Russian, this is phrased sluzhebnoye proizvedeniye) belongs to the employer
22 from the moment the work is created by the employee.
23 506. Under Section 14 of the 1993 Law and Section 12 of the 1992 Law, the legal tests for 24 determining the existence of a work made for hire are: (i) whether the work was made in the course
25 of performance by the employee of his or her employment duties or (ii) by a job direction
26 (instruction) issued to the employee by the employer.
27
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1 507. Pursuant to Russian law, if the relevant work was created by the employee while in 2 the employer’s employment, the exclusive right to commercially exploit the work will therefore
3 automatically pass to the employer regardless of the payment of compensation for such work.
4 508. Over nearly 10 years of employment with Rambler, Sysoev had several job titles, all 5 of which at various periods of time involved “programming” and “system administration.”
6 509. In Russia, employers often rely on general descriptions of the employee’s duties and 7 responsibilities provided in the supporting sources such as the Unified Qualifications Register
8 (“EKS”).
9 510. EKS provides a very detailed account of Sysoev’s job description, in particular, when 10 addressing the functions of “Engineer – System Programmer” and “Administrator of the Computer
11 Network.”
12 511. This description for System Programmer as found in EKS includes “development and 13 tuning of applied program software,” “development of software components,” “modernization of
14 standard software configurations, devices, networks, protocols and programs,” and “participation in
15 the development and [...] design of the new technical media.”
16 512. For Computer Network Administrator, the EKS description includes “support and, 17 where necessary further work on the program media; development of programs for support of
18 computer networks and network applications.”
19 513. As even Sysoev has admitted, he developed the NGINX Software to solve issues he 20 observed with Rambler’s use of Apache.
21 514. Konovalov has previously proclaimed in statements made to the Russian open source 22 community that Rambler is the “Alma Mater of the popular NGINX web-server.”
23 515. Sysoev developed, tested, and used the NGINX Software during his normal working 24 hours and within the scope of his employment duties to Rambler.
25 516. The nginx.org website was hosted on the server hardware belonging to Rambler and 26 at IP addresses belonging to Rambler, including (a) during the period from September 8, 2005 until
27 October 24, 2009, IP address: 81.19.69.70; and (b) during the period from October 24, 2009 until
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1 July 28, 2011, at IP address: 81.19.68.137; (both of the aforementioned IP addresses belonged to
2 Rambler).
3 517. The websites “sysoev.ru” and “nginx.org” were actually hosted on a Rambler server 4 with the inventory number 2779, which from 2002 to 2012, was located in Rambler’s server
5 hardware center (Data Center) at the address: 10 Vostochnaya Street, Moscow.
6 518. The first public version of the NGINX Software was released by Sysoev in October 7 2004 without Rambler’s authorization, while Sysoev was working full time for Rambler.
8 519. The NGINX Software was developed in response to the professional tasks and 9 challenges Rambler faced at a time when approximately twenty percent of overall Russian Internet
10 traffic was routed via Rambler servers.
11 520. By that time, Rambler had launched many on-line products (ranging from photo apps 12 to news to specialized mailing services) that required high levels of website responsiveness and lack
13 of denials of service. The NGINX Software was an important tool that Rambler used to provide
14 adequate throughput and scalability to address this issue.
15 521. The NGINX Plus software was also designed and developed by Sysoev with 16 assistance from the Disloyal Employees all of whom were employed by Rambler and utilized
17 Rambler’s infrastructure and resources in the development of the NGINX Plus software.
18 522. Although substantially completed, the NGINX Plus software was not fully developed 19 by Sysoev or the Disloyal Employees while employed at Rambler. Under Russian law, the fact that
20 the employees did not complete the development of the software program does not invalidate an
21 employer’s proprietary right to the code as a work made for hire particularly where, as here, the
22 NGINX Plus software was derivative of the original work made for hire, the NGINX Software. In
23 addition, here the Disloyal Employees deliberately delayed the completion of the NGINX Plus
24 software so they could continue concealing its existence and prevent Rambler from discovering and
25 utilizing it so that they could execute on their scheme of misappropriating the entirety of the NGINX
26 Enterprise. Under such faithless-servant situations, Russian law provides that Rambler retains the
27 ownership rights to NGINX Plus and any derivative works from the NGINX Software.
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1 523. Accordingly, under Russian law, Rambler was the owner of all proprietary copyright 2 rights in and to the NGINX Software, NGINX Plus and the related business opportunities comprising
3 the NGINX Enterprise, and now Lynwood owns the NGINX Software, NGINX Plus and the NGINX
4 Enterprise by virtue of the assignment from Rambler to Lynwood.
5 FIRST CLAIM FOR RELIEF 6 Civil Conspiracy Among the Team, Robertson, Runa Capital, E. Ventures,
7 NGINX BVI, NGINX DE, NGINX Software, Inc., and BV NGINX
8 524. Plaintiff realleges and incorporates by reference the allegations contained in 9 paragraphs 1 through 523 above as if fully set forth and repeated herein.
10 525. Konovalov joined Rambler as its CTO in 2008, at which time he began supervising 11 Sysoev, including Sysoev’s ongoing development of the NGINX Software.
12 526. The Team recognized that the open source portion of the NGINX Software was 13 gaining recognition and use in Russia and internationally.
14 527. The Team further recognized that there were highly valuable business opportunities 15 associated with the open source portion of the NGINX Software, including the proprietary portion
16 of the companion code to the NGINX Software (i.e. NGINX Plus) already under development by
17 Sysoev, additional enhancements and commercial applications that could be licensed on subscription
18 and other fee bases, support services, and the intellectual property rights inherent in the NGINX
19 Software, NGINX Plus, NGINX trademarks, and the overall NGINX Enterprise.
20 528. The Team knew that the NGINX Software, the NGINX Plus software, business 21 opportunities and therefore the NGINX Enterprise were owned by Rambler and not Sysoev or any
22 member of the Disloyal Employees or Team.
23 529. However, the Disloyal Employees wished to cash in on the NGINX Enterprise to the 24 exclusion of their employer.
25 530. Specifically, by the summer of 2008, the Disloyal Employees in conjunction with 26 Alexeev and Dounin, agreed that they would violate their duties to Rambler and divest Rambler of
27 the highly valuable NGINX Enterprise, move its epicenter to Northern California, and ultimately sell
28 86 COMPLAINT, Case No.
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1 the enterprise to a large American technology company for their own ill-gotten profit and at the
2 exclusion of their employer, Rambler.
3 531. The sale to a large Silicon Valley-type company was always the end goal of the 4 Team’s conspiracy.
5 532. The Team recognized and agreed that they could use Konovalov’s position as 6 Rambler’s CTO and supervisor of Sysoev, as well as Rambler’s lack of institutional understanding
7 of Sysoev’s work and the possibilities of the various NGINX software code products to plan, execute,
8 and ultimately conceal their theft of the NGINX Enterprise, which is exactly what the Team did as
9 Rambler and Plaintiff’s investigation in 2019 and 2020 confirms.
10 533. Konovalov fraudulently represented to Rambler as its CTO that the NGINX Software 11 was virtually worthless, painting it as a pet project of Sysoev despite the fact that the Team knew it
12 was the overwhelming majority of Sysoev’s work for Rambler, was highly valuable and gaining
13 mass recognition within the technical community, and that the NGINX Enterprise inclusive of both
14 the open source NGINX Software and the proprietary NGINX Plus had vast promise as a lucrative
15 business.
16 534. The Team recognized and agreed that in addition to concealing the value and 17 opportunities associated with the NGINX Enterprise, they would need to conceal their activities in
18 secretly launching their new company.
19 535. The Team concealed their activity by, among other things, enlisting former Rambler 20 employee Korotkov to solicit investors, destroying evidence, concealing from Rambler that the
21 NGINX Software, NGINX Plus and related business opportunities were the predominant work
22 Sysoev performed for Rambler, concealing their intention to offshore the NGINX Software, NGINX
23 Plus and related business opportunities to the United States to ultimately sell the NGINX Enterprise
24 to a large American technology company, lying to Rambler about the value and commercialization
25 of the NGINX Software and related corporate opportunities, fraudulently misrepresenting to
26 Rambler that their only intentions with NGINX were to support an open source project, and
27 concealing from Rambler that instead of working for Rambler and in Rambler’s interests they were
28 87 COMPLAINT, Case No.
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1 really scheming against Rambler so they could eventually steal from Rambler what they knew to be
2 an extremely valuable business in the NGINX Enterprise.
3 536. While members of the Team remained employees of Rambler, the Team engaged 4 California legal counsel to form NGINX Software, Inc. on May 4, 2011 and formed NGINX BVI on
5 July 6, 2011, NGINX DE in August 2011 and BV NGINX on August 2, 2011.
6 537. These entities joined the conspiracy as co-conspirators with the Team.
7 538. The intra-corporate conspiracy doctrine is inapplicable to NGINX Software, Inc., 8 NGINX DE, NGINX BVI, and BV NGINX (collectively, the “NGINX Conspirators”) because the
9 entities were incorporated after the formation of the conspiracy and thus cannot constitute single
10 actors.
11 539. During the time when the Disloyal Employees remained employees of Rambler, 12 NGINX Software, Inc. established its headquarters in San Francisco, California.
13 540. While members of the Disloyal Employees remained employees of Rambler, NGINX 14 Software, Inc. engaged California legal counsel to facilitate NGINX Software, Inc.’s fraudulent
15 filing of an application to register the trademark NGINX, which in reality was owned by Rambler.
16 541. From the headquarters in San Francisco, California, the conspirators continued to 17 execute their plan of further building out, funding, and then selling to a large American technology
18 company the NGINX Enterprise the Team was hijacking from Rambler.
19 542. The Team was able to and did operate out of the view of Rambler. Based on the 20 Disloyal Employees’ affirmative misrepresentations that the NGINX Software was virtually
21 worthless and not susceptible to meaningful commercialization, and their concealment of their efforts
22 to the contrary, including the wholesale concealment of NGINX Plus, Rambler had no reason to track
23 the Team and the NGINX Conspirators’ progress.
24 543. The Team hid from Rambler the true nature of what it owned – a valuable enterprise 25 built around the NGINX Software – and therefore Rambler reasonably did not know to investigate
26 (or even where to investigate) when it went missing until Korotkov came forward and the F5 Merger
27 occurred.
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1 544. In late March 2011, the Team invited Runa Capital and BV Capital (now E.Ventures) 2 to join the conspiracy by soliciting their outside investment in exchange for an ownership stake in
3 the NGINX Conspirators and the opportunity to actively participate in growing the NGINX
4 Conspirators with Rambler’s stolen intellectual property for the ultimate objective of selling the
5 NGINX Enterprise to a large American technology company.
6 545. Runa Capital and BV Capital knowingly joined the conspiracy in April 2011 by 7 agreeing to financially invest in the Team and becoming the Series A investors for NGINX BVI.
8 Runa Capital and BV Capital also advised the Team on how to misappropriate the NGINX Enterprise
9 while the Disloyal Employees remained employed at Rambler and how to quietly lay the groundwork
10 for the formation of the NGINX Conspirators without triggering Rambler’s attention.
11 546. Runa Capital and BV Capital remained in the conspiracy from April 2011 until the 12 objective of the conspiracy was completed in the form of the Merger transaction with F5. Runa
13 Capital and BV Capital made investments in NGINX BVI in October 2011, October 2013, December
14 2014, and April 2016 and became active in the management of NGINX BVI by each securing a board
15 seat on the company through Chikhachev and Gieselmann.
16 547. In 2012, the Team invited Robertson to join the conspiracy by hiring Robertson as the 17 CEO of the NGINX Enterprise.
18 548. Robertson had experience working in a startup that culminated in a sale to Microsoft. 19 He also more recently had been Vice President of Business Development for leading open source
20 software vendor Red Hat. That made Robertson appealing to the Team in achieving the ultimate
21 object of their conspiracy.
22 549. Robertson, who was fully familiar with the origins of the NGINX Software, NGINX 23 Plus and the Team’s conspiracy, willingly joined as a co-conspirator.
24 550. As Robertson boasts on F5’s website: “Robertson joined NGINX as CEO in 2012 25 when the company had no commercial offerings or revenue and a staff of 8. Over the next 6 years,
26 he grew NGINX to more than 250 employees and raised over $100 million in venture capital from
27 such investors as Goldman Sachs and NEA.”
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1 551. Throughout Robertson’s reign as CEO, NGINX BVI continued to grow market share 2 and develop commercial products and service offerings that made it poised for high profitability and
3 the ultimate object of the conspirators’ conspiracy – a sale of Rambler’s NGINX Enterprise.
4 552. In 2019, the conspirators achieved the ultimate object of their conspiracy when they 5 sold Rambler’s NGINX Enterprise to F5 through the Merger for $670 million. The NGINX
6 Enterprise, which Konovalov repeatedly represented to Rambler as being worthless was, as the
7 conspirators knew all along, immensely valuable.
8 553. Under California law, the Team, the NGINX Conspirators, Runa Capital, BV Capital 9 (now E.Ventures) and Robertson are guilty of carrying out a civil conspiracy, and therefore are
10 jointly and severally liable to Plaintiff for all damages caused to Plaintiff through the conduct
11 described in the causes of action Plaintiff pleads below.
12 SECOND CLAIM FOR RELIEF 13 Breach of Employment Obligations Owed by Konovalov to Rambler
14 554. Plaintiff realleges and incorporates by reference the allegations contained in 15 paragraphs 1 through 553 above as if fully set forth and repeated herein.
16 555. Konovalov is bound by the obligations set forth in the Konovalov Employment 17 Agreement, the Rambler Code of Ethics and the Rambler Regulations.
18 556. Rambler performed all of its obligations under the Konovalov Employment 19 Agreement and otherwise as Konovalov’s employer.
20 557. Konovalov owed Rambler duties of loyalty and honesty in carrying out his duties as 21 an officer and employee of Rambler.
22 558. As the CTO of Rambler, Konovalov had heightened duties of loyalty and honesty to 23 Rambler.
24 559. Konovalov breached his obligations to Rambler under the Konovalov Employment 25 Agreement, the Rambler Code of Ethics, the Rambler Regulations and in his capacity as an executive
26 of Rambler, by lying to Rambler about the value and utility of the NGINX Software, NGINX Plus
27 and their associated business opportunities.
28 90 COMPLAINT, Case No.
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1 560. Konovalov breached his obligations to Rambler under the Konovalov Employment 2 Agreement, the Rambler Code of Ethics, the Rambler Regulations and in his capacity as an executive
3 of Rambler, by concealing from Rambler the Team’s scheme to steal and then sell the NGINX
4 Enterprise in the United States.
5 561. Konovalov breached his obligations to Rambler under the Konovalov Employment 6 Agreement, the Rambler Code of Ethics, the Rambler Regulations and in his capacity as an executive
7 of Rambler, by encouraging, assisting, and persuading Sysoev and Smirnoff to breach their
8 obligations to Rambler and hijack Rambler’s business opportunities which Rambler resourced and
9 for which Rambler compensated the Disloyal Employees to create.
10 562. Konovalov breached his obligations to Rambler under the Konovalov Employment 11 Agreement, the Rambler Code of Ethics, the Rambler Regulations and in his capacity as an executive
12 of Rambler, by failing to protect Rambler’s rights in the various intellectual property associated with
13 Rambler’s NGINX Enterprise, but on the contrary by actively subverting those rights, including by
14 fraudulently seeking and/or assisting in the seeking of dominion and control over Rambler’s
15 intellectual property rights for the benefit of himself, Sysoev, the NGINX Conspirators, and F5.
16 563. Konovalov breached his obligations to Rambler under the Konovalov Employment 17 Agreement, the Rambler Regulations, the Rambler Code of Ethics, and in his capacity as an executive
18 of Rambler, by selling Rambler’s NGINX Enterprise for his own ill-gotten profits at the exclusion
19 of Rambler.
20 564. Konovalov’s breaches of his obligations to Rambler under the Konovalov 21 Employment Agreement, the Rambler Code of Ethics, the Rambler Regulations and in his capacity
22 as an executive of Rambler have caused Rambler vast damages, and Lynwood is entitled to collect
23 damages in an amount to be determined at trial but presently believed to be well in excess of $750
24 million.
25 THIRD CLAIM FOR RELIEF 26 Breach of Employment Obligations Owed by Sysoev to Rambler
27 565. Plaintiff realleges and incorporates by reference the allegations contained in 28 paragraphs 1 through 564 above as if fully set forth and repeated herein. 91 COMPLAINT, Case No.
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1 566. Sysoev is bound by the obligations set forth in the Sysoev Employment Agreement2, 2 Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler Regulations.
3 567. Rambler performed all of its obligations under the Sysoev Employment Agreement 4 and otherwise as Sysoev’s employer.
5 568. Sysoev owed Rambler duties of loyalty and honesty in carrying out his duties as an 6 employee of Rambler.
7 569. As Lead System Administrator for Rambler’s Server and Technology Network of 8 Rambler, Sysoev had heightened duties of loyalty and honesty to Rambler.
9 570. Sysoev breached his obligations to Rambler under the Sysoev Employment 10 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
11 and in his capacity as a high-level employee of Rambler, by lying to Rambler about the value and
12 utility of NGINX Software and its associated business opportunities.
13 571. Sysoev breached his obligations to Rambler under the Sysoev Employment 14 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
15 and in his capacity as a high-level employee of Rambler, by concealing from Rambler the Team’s
16 scheme to steal and then sell the NGINX Enterprise in the United States.
17 572. Sysoev breached his obligations to Rambler under the Sysoev Employment 18 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
19 and in his capacity as a high-level employee of Rambler, by conspiring with the other Team members
20 to breach their obligations to Rambler and hijack Rambler’s business opportunities which Rambler
21 resourced and for which Rambler compensated the Team to create.
22 573. Sysoev breached his obligations to Rambler under the Sysoev Employment 23 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
24 and in his capacity as a high level employee of Rambler, by failing to protect Rambler’s rights in the
25 various intellectual property associated with Rambler’s NGINX Enterprise, but on the contrary
26 2 The “Sysoev Employment Agreement” hereinafter defined includes the Sysoev Employment Agreement, the Supplementary Agreement, the Sysoev 2004 Supplemental Agreement, the Sysoev 27 2006 Supplemental Agreement, the Sysoev July 2007 Supplemental Agreement, the Sysoev October 2007 Supplemental Agreement, the Sysoev July 2009 Supplemental Agreement, the 2011 Sysoev 28 Employment Agreement. 92 COMPLAINT, Case No.
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1 actively subverting those rights including by fraudulently seeking and/or assisting in the seeking of
2 dominion and control over Rambler’s intellectual property rights for the benefit of himself,
3 Konovalov, the NGINX Conspirators, and F5.
4 574. Sysoev breached his obligations to Rambler under the Sysoev Employment 5 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
6 and in his capacity as a high-level employee of Rambler, by selling Rambler’s NGINX Enterprise
7 for his own ill-gotten profits at the exclusion of Rambler.
8 575. Sysoev’s breaches of his obligations to Rambler under the Sysoev Employment 9 Agreement, Sysoev Separation Agreement, the Rambler Code of Ethics, the Rambler Regulations
10 and in his capacity as a high-level employee of Rambler have caused Rambler vast damages and
11 Lynwood is entitled to collect damages in an amount to be determined at trial but presently believed
12 to be well in excess of $750 million.
13 FOURTH CLAIM FOR RELIEF 14 Breach of Employment Obligations Owed by Smirnoff to Rambler
15 576. Plaintiff realleges and incorporates by reference the allegations contained in 16 paragraphs 1 through 575 above as if fully set forth and repeated herein.
17 577. Smirnoff is bound by the obligations set forth in the Smirnoff Employment 18 Agreement, Rambler Code of Ethics and Rambler Regulations.
19 578. Rambler performed all of its obligations as Smirnoff’s employer.
20 579. Smirnoff owed Rambler duties of loyalty and honesty in carrying out his duties as an 21 officer of Rambler, namely the Head of the NOC.
22 580. Smirnoff breached his obligations to Rambler under the Smirnoff Employment 23 Agreement, Rambler Code of Ethics and Rambler Regulations by concealing from Rambler the
24 Team’s scheme to steal and then sell the NGINX Enterprise in the United States.
25 581. Smirnoff breached his obligations to Rambler under the Smirnoff Employment 26 Agreement, Rambler Code of Ethics and Rambler Regulations by providing substantial assistance to
27 the Team and himself participating in the Team’s conspiracy to steal and then sell the NGINX
28 Enterprise in the United States. 93 COMPLAINT, Case No.
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1 582. Smirnoff breached his obligations to Rambler under the Smirnoff Employment 2 Agreement, Rambler Code of Ethics and Rambler Regulations by conspiring with the other Team
3 members to breach their obligations to Rambler and hijack Rambler’s business opportunities which
4 Rambler resourced and for which Rambler compensated the Team to create.
5 583. Smirnoff breached his obligations to Rambler under the Smirnoff Employment 6 Agreement, Rambler Code of Ethics and Rambler Regulations by failing to protect Rambler’s rights
7 in the various intellectual property associated with Rambler’s NGINX Enterprise, but on the contrary
8 actively subverting those rights including by providing substantial assistance to the Team and
9 NGINX Conspirators in fraudulently seeking and/or assisting in the seeking of dominion and control
10 over Rambler’s intellectual property rights for the benefit of himself, Sysoev, Konovalov, the
11 NGINX Conspirators, and F5.
12 584. For example, Smirnoff stayed behind at Rambler and helped the Team destroy 13 evidence of their ongoing conspiracy.
14 585. Smirnoff breached his obligations to Rambler under the Smirnoff Employment 15 Agreement, Rambler Code of Ethics and Rambler Regulations by providing substantial assistance to
16 the Team and the NGINX Conspirators in selling Rambler’s NGINX Enterprise for their own ill-
17 gotten profits at the exclusion of Rambler.
18 586. Smirnoff’s breaches of his obligations to Rambler under the Smirnoff Employment 19 Agreement, Rambler Code of Ethics and Rambler Regulations have caused Rambler vast damages
20 and Lynwood is entitled to collect damages in an amount to be determined at trial but presently
21 believed to be well in excess of $750 million.
22 FIFTH CLAIM FOR RELIEF 23 Breach of Konovalov’s Duty to Act Fairly and Honestly With Rambler
24 587. Plaintiff realleges and incorporates by reference the allegations contained in 25 paragraphs 1 through 586 above as if fully set forth above and repeated herein.
26 588. Konovalov in his capacity as CTO of Rambler was a high-level officer of Rambler. 27 As such, he owed Rambler a heightened duty under Russian statutory law to behave in a fair and
28 94 COMPLAINT, Case No.
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1 reasonable way vis-à-vis Rambler in accordance with the Rambler Regulations and Article 53.3 of
2 the Russian Civil Code.
3 589. Konovalov had a duty under Article 53.3 to pursue the NGINX Enterprise for the 4 financial benefit of Rambler, to timely and accurately disclose to Rambler the value of the NGINX
5 Enterprise, to refrain from misappropriating the NGINX Enterprise and to refrain from participating
6 in the Team’s subsequent acts of concealment wherein the Team destroyed evidence of its fraud
7 perpetrated against Rambler.
8 590. Konovalov breached his duties to act fairly, reasonably and in the best interests of 9 Rambler by concealing from Rambler the scope of the NGINX Enterprise developed by the Disloyal
10 Employees while they were still employed at Rambler, by participating in the conspiracy with the
11 Team whereby the Team misappropriated Rambler’s NGINX Enterprise and by covering up their
12 actions through the destruction of evidence so as to prevent Rambler and Lynwood from timely
13 discovering the Team’s misconduct.
14 591. Konovalov’s breaches of his duties of fairness and reasonableness under Article 53.3 15 of the Russian Civil Code have caused Rambler vast damages and Lynwood is entitled to collect 16 damages in an amount to be determined at trial but presently believed to be well in excess of $750 17 million. 18 SIXTH CLAIM FOR RELIEF 19 Breach of the Duty to Act Fairly and Honestly With Rambler As To Sysoev and Smirnoff 20 592. Plaintiff realleges and incorporates by reference the allegations contained in 21 paragraphs 1 through 591 above as if fully set forth above and repeated herein. 22 593. Sysoev was treated uniquely at Rambler. He was the company’s top talent in terms 23 of product and software development. In recognition of his value and importance to the company, 24 Rambler compensated Sysoev accordingly by regularly providing him with substantial raises and 25 bonuses tied to his work, including the development of the NGINX Software. As such, he owed 26 Rambler a heightened duty under Russian statutory law to behave in a fair and reasonable way vis- 27
28 95 COMPLAINT, Case No.
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1 à-vis Rambler in accordance with the Rambler Regulations and Article 53.3 of the Russian Civil
2 Code.
3 594. During his employment at Rambler, Smirnoff served as the company’s Head of the 4 NOC Department. As such, Smirnoff owed Rambler a heighted duty under Russian statutory law to
5 behave in a fair and reasonable way vis-à-vis Rambler in accordance with the Rambler Regulations
6 and Article 53.3 of the Russian Civil Code.
7 595. Sysoev and Smirnoff owed Rambler duties under Article 53.3 to pursue the NGINX 8 Enterprise for the financial benefit of Rambler, to timely and accurately disclose to Rambler the
9 value of the NGINX Enterprise, to refrain from misappropriating the NGINX Enterprise and to
10 refrain from participating in the Team’s subsequent acts of concealment wherein the Team destroyed
11 evidence of its fraud perpetrated against Rambler.
12 596. Sysoev and Smirnoff breached their duties to act fairly, reasonably and in the best 13 interests of Rambler by concealing from Rambler the scope of the NGINX Enterprise developed by
14 the Disloyal Employees while they were still employed at Rambler, by participating in the conspiracy
15 with the Team whereby the Team misappropriated Rambler’s NGINX Enterprise and by covering
16 up their actions through the destruction of evidence so as to prevent Rambler and Lynwood from
17 timely discovering the Team’s misconduct.
18 597. Sysoev’s and Smirnoff’s breaches of their duties of fairness and reasonableness under 19 Article 53.3 of the Russian Civil Code have caused Rambler vast damages and Lynwood is entitled
20 to collect damages in an amount to be determined at trial but presently believed to be well in excess
21 of $750 million.
22 SEVENTH CLAIM FOR RELIEF 23 Aiding and Abetting by Alexeev and Dounin of the Disloyal Employees’ Breaches of Their
24 Duties of Honesty and Loyalty to Rambler
25 598. Plaintiff realleges and incorporates by reference the allegations contained in 26 paragraphs 1 through 597 above as if fully set forth and repeated herein.
27 599. Alexeev and Dounin were longtime acquaintances of Konovalov and Sysoev. Dounin 28 had even worked with Sysoev at Rambler up until 2007. 96 COMPLAINT, Case No.
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1 600. Prior to joining the Team, Alexeev and Dounin were informed of by Konovalov and 2 Sysoev of their employment obligations to Rambler and Russian law concerning “works made for
3 hire.” Moreover, in the course of the Team’s efforts at securing financing from various potential
4 venture capital investors, including Runa Capital, BV Capital and Greycroft, Alexeev and Dounin
5 were informed by the venture capital investors themselves and the Team’s own lawyers that their
6 plans concerning the misappropriation of the NGINX Enterprise was violative of the Disloyal
7 Employees’ employment duties and obligations to their employer Rambler and ran afoul of Russian
8 law.
9 601. Nevertheless, Alexeev and Dounin went forward and provided substantial assistance 10 to Konovalov, Sysoev and Smirnoff in breach their duties of honesty and loyalty to Rambler by
11 collaborating with Runa Capital and BV Capital in securing funding, aiding the Disloyal Employees
12 and Korotkov in pursuing trademarks for the NGINX Enterprise and working with the Disloyal
13 Employees in forming the Team’s various NGINX entities and simultaneously pursuing customers
14 for the NGINX Enterprise. Alexeev and Dounin engaged in this conduct with knowledge that the
15 Disloyal Employees were disclosing Rambler’s confidential and proprietary information to venture
16 capital firms, including Runa Capital, BV Capital and Greycroft and ultimately F5, and with
17 knowledge that the Disloyal Employees were acting in contravention of Rambler’s intellectual
18 property rights.
19 602. Rambler was harmed by the Disloyal Employees’ breaches of their obligations to 20 Rambler and Alexeev and Dounin’s aiding and abetting thereof.
21 603. Alexeev and Dounin were substantial factors in causing the harm suffered by 22 Rambler.
23 604. As a result of Alexeev and Dounin’s aiding and abetting of the Disloyal Employees’ 24 wrongful conduct, Rambler was harmed and Lynwood is entitled to collect damages in an amount to
25 be determined at trial but presently believed to be well in excess of $750 million.
26
27
28 97 COMPLAINT, Case No.
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1 EIGHTH CLAIM FOR RELIEF 2 Aiding and Abetting by Runa Capital and E.Ventures of the Team’s Fraud and the Disloyal
3 Employees’ Breaches of Their Duties of Honesty and Loyalty to Rambler
4 605. Plaintiff realleges and incorporates by reference the allegations contained in 5 paragraphs 1 through 604 above as if fully set forth and repeated herein.
6 606. Runa Capital and BV Capital (now E.Ventures) conducted extensive due diligence 7 leading up to their Series A investment in October 2011 concerning the Team and the Disloyal
8 Employees’ contractual obligations to Rambler and the development of the NGINX Software,
9 NGINX Plus and the NGINX Enterprise more generally.
10 607. As a result of the due diligence, Runa Capital and BV Capital knew about the Disloyal 11 Employees’ obligations to Rambler and the Team’s fraudulent conduct against Rambler.
12 608. As sophisticated entities with international offices, Runa Capital and BV Capital also 13 knew that the Disloyal Employees’ obligations were ongoing. Indeed, the Disloyal Employees’
14 obligations to Rambler and the Russian law protecting Rambler’s rights as the employer to the
15 NGINX Enterprise were extensively discussed by Runa Capital and BV Capital with the Team prior
16 to the initial Series A investment.
17 609. Moreover, Runa Capital and BV Capital knew that the Disloyal Employees would be 18 violating those obligations to Rambler by misappropriating the NGINX Enterprise from Rambler
19 and that the Team would succeed in its fraudulent scheme aimed at victimizing Rambler if the Team
20 were able to misappropriate the NGINX Enterprise for themselves for the purpose of then selling the
21 NGINX Enterprise to a large Silicon Valley company in the near future.
22 610. Nevertheless, Runa Capital and BV Capital sought to cash in on Rambler’s Enterprise 23 so they provided the Disloyal Employees and Team with substantial assistance in achieving the
24 ultimate goal of their conspiracy – the misappropriation of Rambler’s NGINX Enterprise and its
25 ultimate sale to F5 for their own ill-gotten profits at the exclusion of Rambler.
26 611. Indeed, Runa Capital and BV Capital not only advised the Team on how to execute 27 on their conspiracy for misappropriating the NGINX Enterprise from Rambler beginning in March
28 2011 but fueled the conspiracy through their financings from 2011 through 2016 and active 98 COMPLAINT, Case No.
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1 participation on NGINX BVI’s board of directors up to and including 2019 when they along with
2 the Team ultimately achieved their objective – the sale of the NGINX Enterprise to F5 via the Merger
3 transaction.
4 612. As Runa Capital and BV Capital intended and knew would happen as a result of their 5 assistance, the Disloyal Employees violated their ongoing obligations to Rambler, including by,
6 without limitation, divesting Rambler of the NGINX Enterprise, disclosing Rambler’s confidential
7 information to third-parties, including other venture capital investors and later F5, and acting in
8 contravention of Rambler’s intellectual property rights.
9 613. Rambler was harmed by the Disloyal Employees’ breaches of their obligations to 10 Rambler and Runa Capital and BV Capital’s aiding and abetting thereof.
11 614. Runa Capital and BV Capital’s conduct were substantial factors in causing the harm 12 suffered by Rambler.
13 615. As a result of Runa Capital and BV Capital’s aiding and abetting of the Disloyal 14 Employees’ wrongful conduct and the Team’s fraudulent conduct, Rambler was harmed and
15 Lynwood is entitled to collect damages in an amount to be determined at trial but presently believed
16 to be well in excess of $750 million.
17 NINTH CLAIM FOR RELIEF 18 Aiding and Abetting by F5 of the Team’s Fraud and the Disloyal Employees’ Breaches of Their
19 Duties of Honesty and Loyalty to Rambler
20 616. Plaintiff realleges and incorporates by reference the allegations contained in 21 paragraphs 1 through 615 above as if fully set forth and repeated herein.
22 617. F5 conducted extensive due diligence leading up to the Merger concerning the Team 23 and the Disloyal Employees, including with respect to the Disloyal Employees’ contractual
24 obligations to Rambler and the development of the NGINX Software, NGINX Plus and the NGINX
25 Enterprise more generally.
26 618. As a result of the due diligence, F5 knew about the Disloyal Employees’ obligations 27 to Rambler and the Team’s fraudulent conduct against Rambler.
28 99 COMPLAINT, Case No.
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1 619. As a sophisticated entity with international offices, F5 also knew that the Disloyal 2 Employees’ obligations were ongoing and postdated their respective separations from Rambler.
3 620. Moreover, F5 knew that the Disloyal Employees would be violating those obligations 4 to Rambler by selling Rambler’s NGINX Enterprise to F5 and that the Team would succeed in its
5 fraudulent scheme aimed at enriching themselves and victimizing Rambler if the Team were able to
6 sell the NGINX Enterprise to F5.
7 621. Nevertheless, F5 sought to seize Rambler’s NGINX Enterprise so it provided the 8 Disloyal Employees and Team with substantial assistance in achieving the ultimate goal of their
9 conspiracy – a sale of Rambler’s NGINX Enterprise to a large American technology company like
10 F5 for their own ill-gotten profits at the exclusion of Rambler.
11 622. As F5 intended and knew would happen as a result of its assistance, the Disloyal 12 Employees violated their ongoing obligations to Rambler, including by, without limitation, divesting
13 Rambler of the NGINX Enterprise and selling the NGINX Enterprise to F5, disclosing Rambler’s
14 confidential and proprietary information to F5, and acting in contravention of Rambler’s intellectual
15 property rights.
16 623. Rambler was harmed by the Disloyal Employees’ breaches of their obligations to 17 Rambler and F5’s aiding and abetting thereof.
18 624. F5’s conduct was a substantial factor in causing the harm suffered by Rambler.
19 625. As a result of F5’s aiding and abetting of the Disloyal Employees’ wrongful conduct, 20 Rambler was harmed and Lynwood is entitled to collect damages in an amount to be determined at
21 trial but presently believed to be well in excess of $750 million.
22 TENTH CLAIM FOR RELIEF
23 Tortious Interference with Contract Against Konovalov, Robertson, NGINX Software, Inc.,
24 NGINX BVI, NGINX DE, and BV NGINX
25 626. Plaintiff realleges and incorporates by reference the allegations contained in 26 paragraphs 1 through 625 above as if fully set forth and repeated herein.
27
28 100 COMPLAINT, Case No.
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1 627. Sysoev and Rambler were parties to and bound by the Sysoev Employment 2 Agreement, the Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler
3 Regulations.
4 628. As Sysoev’s superior, Konovalov knew about the Sysoev Employment Agreement, 5 the Rambler Code of Ethics and the Rambler Regulations. Konovalov also knew that Sysoev and
6 Rambler entered into the Sysoev Separation Agreement.
7 629. Konovalov knew Sysoev’s obligations to Rambler under the Sysoev Employment 8 Agreement, the Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler
9 Regulations.
10 630. Konovalov knew that Sysoev’s obligations to Rambler under the Sysoev Employment 11 Agreement, the Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler
12 Regulations survived his separation from Rambler in December 2011.
13 631. As of its incorporation on May 4, 2011, Konovalov became the CEO of NGINX 14 Software, Inc. which was headquartered in California, and Konovalov became the CEO of NGINX
15 BVI when it was incorporated on July 6, 2011. Konovalov also became the CEO of NGINX DE and
16 BV NGINX when they were incorporated in August 2011.
17 632. Robertson became CEO of the NGINX Conspirators in 2012.
18 633. Konovalov’s knowledge concerning Sysoev’s ongoing obligations to Rambler is 19 imputed onto the NGINX Conspirators and/or the NGINX Conspirators otherwise knew of Sysoev’s
20 ongoing obligations.
21 634. In addition, based on his knowledge of Sysoev’s employment history, the conspiracy, 22 concerns raised by investors over the fact that Sysoev developed the NGINX Software at Rambler,
23 and his own experience in business, Robertson knew of Sysoev’s ongoing obligations to Rambler.
24 635. Beginning in the summer of 2008 and continuing through 2019, Konovalov actively 25 encouraged and persuaded Sysoev to breach his obligations to Rambler by concealing the true utility
26 and value of the NGINX Software, concealing the existence of NGINX Plus as a work made for hire
27 and related business opportunities from Rambler, refusing to assist Rambler in protecting its
28 intellectual property rights associated with the NGINX Enterprise, secretly planning to divest 101 COMPLAINT, Case No.
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1 Rambler of the NGINX Enterprise so the Team could sell it to a third-party for their own ill-gotten
2 profits, and disclosing Rambler’s confidential and proprietary information.
3 636. Beginning in May 2011 and continuing through 2019, the NGINX Conspirators and 4 (beginning in 2012) Robertson actively encouraged and persuaded Sysoev to breach his obligations
5 to Rambler by concealing the true utility and value of the NGINX Software, concealing the existence
6 of NGINX Plus as a work made for hire and related business opportunities from Rambler, refusing
7 to assist Rambler in protecting its intellectual property rights associated with the NGINX Enterprise,
8 secretly planning to divest Rambler of the NGINX Enterprise so the Team and Robertson could sell
9 it to a third-party for their own ill-gotten profits, and disclosing Rambler’s confidential and
10 proprietary information.
11 637. Konovalov, Robertson, and the NGINX Conspirators intended to cause Sysoev to 12 breach his obligations to Rambler so that they could profit from the unlawful sale of Rambler’s
13 NGINX Enterprise and reap ill-gotten profits for themselves to the exclusion of Rambler.
14 638. Konovalov, Robertson, and the NGINX Conspirators knew that as a result of their 15 conduct disruption of Sysoev’s performance of his ongoing obligations to Rambler was certain or
16 substantially certain to occur.
17 639. Sysoev breached his ongoing obligations to Rambler, including by, without 18 limitation, concealing the true utility and value of the NGINX Software, concealing the existence of
19 the NGINX Plus software as a work made for hire and related business opportunities from Rambler,
20 refusing to assist Rambler in protecting its intellectual property rights associated with the NGINX
21 Enterprise, secretly planning to divest Rambler of the NGINX Enterprise so the Team could sell it
22 to a third party for their own ill-gotten profits, and disclosing Rambler’s confidential and proprietary
23 information.
24 640. Rambler was harmed by Sysoev’s breaches of his obligations to Rambler and 25 Konovalov, Robertson, and the NGINX Conspirators’ tortious interference.
26 641. Konovalov, Robertson, and the NGINX Conspirators’ conduct was a substantial 27 factor in causing the harm suffered by Rambler.
28 102 COMPLAINT, Case No.
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1 642. As a result of Konovalov, Robertson, and the NGINX Conspirators’ tortious 2 interference with contract, Rambler was harmed and Lynwood is entitled to collect damages in an
3 amount to be determined at trial but presently believed to be well in excess of $750 million.
4 ELEVENTH CLAIM FOR RELIEF
5 Tortious Interference with Contract Against Runa Capital and E. Ventures
6 643. Plaintiff realleges and incorporates by reference the allegations contained in 7 paragraphs 1 through 642 above as if fully set forth and repeated herein.
8 644. Sysoev and Rambler were parties to and bound by the Sysoev Employment 9 Agreement, the Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler
10 Regulations.
11 645. Konovalov and Rambler were parties to and bound by the Konovalov Employment 12 Agreement, the Rambler Code of Ethics and the Rambler Regulations.
13 646. Smirnoff and Rambler were parties to the Rambler Code of Ethics and Rambler 14 Regulations.
15 647. Leading up to their Series A investment, Runa Capital and BV Capital (later renamed 16 E. Ventures) conducted extensive due diligence concerning the Team and the Disloyal Employees,
17 including the Disloyal Employees’ contractual obligations to Rambler and the development of the
18 NGINX Software, NGINX Plus and related business opportunities. As a result of the due diligence,
19 Runa Capital and BV Capital knew about the Disloyal Employees’ contractual obligations to
20 Rambler. Moreover, Runa Capital and BV Capital knew that the Disloyal Employees would be
21 breaching those obligations to Rambler by misappropriating Rambler’s NGINX Enterprise.
22 648. Runa Capital and BV Capital intended to cause the Disloyal Employees to breach 23 their contractual obligations to Rambler so that they could capitalize on the misappropriated NGINX
24 Enterprise by investing in the Team and the NGINX Conspirators with an exit strategy of selling the
25 NGINX Enterprise to a large American technology company for a substantial profit and to the
26 detriment and exclusion of Rambler.
27
28 103 COMPLAINT, Case No.
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1 649. Runa Capital and BV Capital knew that as a result of their conduct disruption of the 2 Disloyal Employees’ performance of their ongoing obligations to Rambler was certain or
3 substantially certain to occur.
4 650. As Runa Capital and BV Capital intended and knew would happen as a result of their 5 interference, the Disloyal Employees breached their ongoing obligations to Rambler, including by,
6 without limitation, divesting Rambler of the NGINX Enterprise and ultimately selling the NGINX
7 Enterprise to F5, disclosing Rambler’s confidential and proprietary information to various other
8 venture capital investors and F5, and acting in contravention of Rambler’s intellectual property
9 rights.
10 651. Rambler was harmed by the Disloyal Employees’ breaches of their obligations to 11 Rambler, and by Runa Capital’s and BV Capital’s tortious interference.
12 652. Runa Capital’s and BV Capital’s conduct were substantial factors in causing the harm 13 suffered by Rambler.
14 653. As a result of Runa Capital’s and BV Capital’s tortious interference with contract, 15 Rambler was harmed and Lynwood is entitled to collect damages in an amount to be determined at
16 trial but presently believed to be well in excess of $750 million.
17 TWELFTH CLAIM FOR RELIEF
18 Tortious Interference with Contract Against F5
19 654. Plaintiff realleges and incorporates by reference the allegations contained in 20 paragraphs 1 through 653 above as if fully set forth and repeated herein.
21 655. Sysoev and Rambler were parties to and bound by the Sysoev Employment 22 Agreement, the Sysoev Separation Agreement, the Rambler Code of Ethics and the Rambler
23 Regulations.
24 656. Konovalov and Rambler were parties to and bound by the Konovalov Employment 25 Agreement, the Rambler Code of Ethics and the Rambler Regulations.
26 657. Smirnoff and Rambler were parties to the Rambler Code of Ethics and Rambler 27 Regulations.
28 104 COMPLAINT, Case No.
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1 658. Leading up to the Merger, F5 conducted extensive due diligence concerning the 2 Team, NGINX Conspirators and the Disloyal Employees, including the Disloyal Employees’
3 contractual obligations to Rambler and the development of the NGINX Software, NGINX Plus and
4 related business opportunities. As a result of the due diligence, F5 knew about the Disloyal
5 Employees’ contractual obligations to Rambler. Moreover, F5 knew that the Disloyal Employees
6 would be breaching those obligations to Rambler by selling Rambler’s NGINX Enterprise to F5.
7 659. F5 intended to cause the Disloyal Employees to breach their contractual obligations 8 to Rambler so that F5 could seize Rambler’s NGINX Enterprise.
9 660. F5 knew that as a result of its conduct disruption of Disloyal Employees’ performance 10 of their ongoing obligations to Rambler was certain or substantially certain to occur.
11 661. As F5 intended and knew would happen as a result of its interference, the Disloyal 12 Employees breached their ongoing obligations to Rambler, including by, without limitation,
13 divesting Rambler of the NGINX Enterprise and selling the NGINX Enterprise to F5, disclosing
14 Rambler’s confidential and proprietary information to F5, and acting in contravention of Rambler’s
15 intellectual property rights.
16 662. Rambler was harmed by the Disloyal Employees’ breaches of their obligations to 17 Rambler and F5’s tortious interference.
18 663. F5’s conduct was a substantial factor in causing the harm suffered by Rambler.
19 664. As a result of F5’s tortious interference with contract, Rambler was harmed and 20 Lynwood is entitled to collect damages in an amount to be determined at trial but presently believed
21 to be well in excess of $750 million.
22 THIRTEENTH CLAIM FOR RELIEF 23 Tortious Interference with Prospective Business Advantage Against All Defendants
24 665. Plaintiff realleges and incorporates by reference the allegations contained in 25 paragraphs 1 through 664 above as if fully set forth and repeated herein.
26 666. Plaintiff’s predecessor-in-interest, Rambler, had a prospective economic advantage in 27 the form of the NGINX Enterprise that, but for Defendants’ unlawful conduct detailed herein,
28 Rambler could have and would have sold for a massive profit. 105 COMPLAINT, Case No.
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1 667. Defendants knew full well the existence and value of Rambler’s prospective 2 economic advantage with the NGINX Enterprise and that it could be sold for a massive profit.
3 668. Defendants engaged in repeated illegal conduct as detailed herein in order to interfere 4 with Rambler’s prospective economic advantage with the NGINX Enterprise, including, without
5 limitation, breaches of the Disloyal Employees’ duties of honesty and loyalty to Rambler; aiding and
6 abetting those breaches; fraud; aiding and abetting fraud; fraud on the USPTO; tortious interference
7 with contract; false advertising; copyright infringement; fraudulent concealment, and civil
8 conspiracy.
9 669. Defendants engaged in this unlawful activity intending to interfere with Rambler’s 10 prospective economic advantage or knew that this unlawful activity was substantial certain to
11 interfere with Rambler’s prospective economic advantage.
12 670. Defendants’ unlawful activity did in fact disrupt and interfere with Rambler’s 13 prospective economic advantage with the NGINX Enterprise.
14 671. Rambler was harmed by Defendants’ interference with Rambler’s prospective 15 economic advantage with the NGINX Enterprise.
16 672. Defendants’ misconduct was a substantial factor in causing the harm suffered by 17 Rambler.
18 673. As a result of Defendants’ tortious interference with Rambler’s prospective business 19 advantage, Rambler was harmed and Lynwood, through its assignment from Rambler, is entitled to
20 collect damages in an amount to be determined at trial but presently believed to be well in excess of
21 $750 million.
22 FOURTEENTH CLAIM FOR RELIEF 23 Fraud Against the Disloyal Employees, NGINX Software, Inc.,
24 NGINX DE, NGINX BVI, and BV NGINX
25 674. Plaintiff realleges and incorporates by reference the allegations contained in 26 paragraphs 1 through 673 above as if fully set forth and repeated herein.
27
28 106 COMPLAINT, Case No.
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1 675. The Disloyal Employees engaged in a continuous campaign of fraud against Rambler 2 that culminated with the Disloyal Employees, Alexeev, Dounin and the NGINX Conspirators selling
3 Rambler’s NGINX Enterprise to F5 in 2019.
4 676. Substantial acts and concealments in furtherance of the Disloyal Employees’ fraud 5 campaign occurred in California after they moved Rambler’s NGINX Enterprise to California in the
6 spring of 2011 unbeknownst to Rambler.
7 677. The Disloyal Employees intentionally misrepresented to Rambler the value of the 8 NGINX Software and related business opportunities both before and after the incorporation and
9 headquartering of NGINX Software, Inc. in San Francisco. The Disloyal Employees also
10 fraudulently concealed the existence of the NGINX Plus that had been developed by Sysoev with the
11 assistance of the Disloyal Employees as part of their employment with Rambler and utilizing
12 Rambler’s infrastructure and resources.
13 678. The Disloyal Employees fraudulently concealed from Rambler the existence of the 14 lucrative business opportunities associated with the NGINX Software and NGINX Plus both before
15 and after the incorporation and headquartering of NGINX Software, Inc. in San Francisco.
16 679. The Disloyal Employees fraudulently concealed from Rambler the existence and 17 ongoing development of the proprietary, commercial enhancements and extensions to the NGINX
18 Software including the proprietary, commercial NGINX Plus software, as well as the existence of
19 the NGINX Enterprise, both before and after the incorporation and headquartering of NGINX
20 Software, Inc. in San Francisco.
21 680. The Disloyal Employees fraudulently induced Rambler to continue investing 22 resources in the NGINX Software and NGINX Plus both before and after the incorporation and
23 headquartering of NGINX Software, Inc. in San Francisco despite the fact that the Disloyal
24 Employees were already executing their plan to divest Rambler of the NGINX Enterprise and sell it
25 to a third-party American company.
26 681. Even after Sysoev separated from Rambler, the Disloyal Employees brazenly and 27 unlawfully stole server equipment from Rambler and had it destroyed to cover up their unlawful
28 activities. 107 COMPLAINT, Case No.
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1 682. The Disloyal Employees and the NGINX Conspirators engaged in the fraud by 2 directing the theft of Rambler’s equipment and destruction of evidence. In addition, the NGINX
3 Conspirators are also vicariously liable for the fraudulent acts and concealments conducted by the
4 Disloyal Employees.
5 683. The Disloyal Employees and the NGINX Conspirators fraudulently concealed 6 Rambler’s causes of action against them by hiding the true nature, utility, and value of the NGINX
7 Software, the existence of the NGINX Plus software and the existence and value of the NGINX
8 Enterprise; misrepresenting their true intentions to commercialize products and services relating to
9 the NGINX Software and then sell that enterprise to an American company; and stealing and
10 destroying evidence of their unlawful activities.
11 684. By concealing the true nature, utility, and value of the NGINX Software, NGINX 12 Plus and the NGINX Enterprise more generally, Rambler was never on notice, until the
13 whistleblower came forward, that it had such a valuable suite of assets that warranted protection or
14 that the Disloyal Employees could be embarking on such a nefarious conspiracy that would justify
15 Rambler undertaking an investigation.
16 685. As a direct and proximate cause of the Disloyal Defendants’ and the NGINX 17 Conspirators’ fraud, Rambler has been damaged and Lynwood is entitled to collect damages in an
18 amount to be determined at trial but presently believed to be well in excess of $750 million.
19 686. In addition, the Disloyal Defendants and the NGINX Conspirators’ actions as alleged 20 herein were willful, fraudulent, and malicious and were done with the intent to injure and oppress
21 Rambler and improve their own economic opportunities. Thus, Lynwood should be awarded
22 punitive damages in an amount to be determined at trial to punish these defendants and deter similar
23 unlawful conduct by others in the future.
24 FIFTEENTH CLAIM FOR RELIEF 25 Berne Convention for the Protection of Literary and Artistic Works and the Copyright Act (17
26 U.S.C. § 101, et seq.) based on Direct Copyright Infringement Against all Defendants
27 687. Plaintiff realleges and incorporates by reference the allegations contained in 28 paragraphs 1 through 686 above as if fully set forth and repeated herein. 108 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 109 of 140
1 688. The Berne Convention for the Protection of Literary and Artistic Works (the “Berne 2 Convention”) Article 5(1) provides that “[a]uthors shall enjoy, in respect of works for which they
3 are protected under this Convention, in countries of the Union other than the country of origin, the
4 rights which their respective laws do now or may hereafter grant to their nationals, as well as rights
5 specifically granted by this Convention.”
6 689. The Berne Convention provides further that “[t]he enjoyment and exercise of those 7 rights shall not be subject to any formality; such enjoyment and such exercise shall be independent
8 of the existence of protection in the country of origin of the work.” Berne Convention, Article 5(2).
9 690. For infringing acts occurring in the U.S., ownership of a copyright right is determined 10 based on the jurisdiction of the creation (i.e., Russia); whether infringement has occurred is evaluated
11 under U.S. copyright law.
12 691. According to Section 2 of the 1992 Law and Section 7 of the 1993 Law, “programs 13 for computational devices” (“computer programs”) are protected under the same copyright
14 regulations as literary works and are entitled to copyright protection. Rights related to computer
15 programs arise from the mere fact of their creation (and from the moment of their creation) and do
16 not require separate registration or any other formality (i.e., registration with RosPatent).
17 692. Section 10 of the 1992 Law and Section 16 of the 1993 Law provides for the owner 18 of a copyright to exclusively use, copy and/or dispose of such rights in any way that the copyright
19 owner, similar to the exclusive rights of a copyright owner set out in the United States Copyright
20 Act, 17 U.S.C. § 106, which rights include the exclusive rights to reproduce the copyrighted work,
21 prepare derivative works based on the copyrighted work, distribute copies of the copyrighted work
22 to the public, and/or display the copyrighted work publicly, provided such use or disposal does not
23 otherwise violate the law.
24 693. Under Sections 9-10 of the 1992 Law and Sections 15-16 of the 1993 Law, copyright 25 under Russian law consists of two rights: (i) the authorship right and (ii) the “exclusive proprietary
26 right” to exploit the work. Unlike the authorship right, the exclusive proprietary right may be
27 transferred, assigned or inherited. The authorship right under Russian law, on the other hand, is
28 personal to the author and may never be transferred, assigned or inherited. 109 COMPLAINT, Case No.
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1 694. Pursuant to Section 12 of the 1992 Law, if the author of the computer program is 2 employed at the time of the computer program creation, then the employer holds the proprietary
3 rights to the program, absent an explicit agreement otherwise. The program then becomes a
4 copyrighted object made while in employment and is then regulated by the applicable provisions of
5 the Russian civil law, 1992 Law, and 1993 Law.
6 695. Sysoev, Konovalov and the other Disloyal Employees signed, and were legally bound 7 under Russian law, to employment agreements with Rambler, and Rambler internal policies and
8 procedures, which designated everything that they worked on or produced in connection with their
9 job responsibilities to Rambler during their tenure with the company as confidential works made for
10 hire owned entirely by Rambler.
11 696. Sysoev developed the NGINX Software and NGINX Plus pursuant to his job duties 12 at Rambler in Russia and first made the source code for the NGINX Software available internally to
13 Rambler and on Rambler-owned servers located in Moscow, Russia, as early as 2002, and therefore,
14 Rambler owned the NGINX Software, NGINX Plus and the Copyrighted Works (as defined below)
15 based on his employment agreement and/or Russian law.
16 697. Sysoev then elected to release the NGINX Software as publicly available open source 17 on his own volition and without authorization from Rambler in 2004.
18 698. Sysoev continued to test and improve the NGINX Software using Rambler resources, 19 infrastructure, personnel and Internet traffic, during normal business hours, in connection with the
20 further development of NGINX Software and NGINX Plus, as first revealed through the
21 Rambler/Lynwood investigations following Korotkov’s revelations in 2019.
22 699. As Korotkov’s promotion of NGINX Plus beginning in early 2010 confirms, and as 23 Korotkov’s and F5’s trademark filings re-confirm, by late 2009 or early 2010 at the latest, the
24 Disloyal Employees and the Team had already commenced their promotion and rollout of NGINX
25 Plus, which itself was, and still is, heavily reliant, both technically and commercially, on the open
26 source NGINX Software that Rambler paid Sysoev to develop.
27 700. The Disloyal Employees held back the NGINX Plus modules that Sysoev had 28 conceived and developed at Rambler as part of his employment duties at Rambler prior to Sysoev’s 110 COMPLAINT, Case No.
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1 departure from Rambler so that the Team could quickly kick-start their commercial operation with
2 the introduction of such proprietary products to the market promptly after their departure from
3 Rambler.
4 701. The Team used the promise of forthcoming NGINX Plus to help sell their business 5 plan to potential investors. The venture capital investors such as Runa Capital and BV Capital bought
6 into the plan and funded it, and within twenty-one (21) months of Sysoev’s departure from Rambler,
7 with only a skeleton development crew, the Team introduced their first tranche of commercial
8 NGINX Plus products, which was the purloined commercial NGINX code initially conceived and
9 developed by Sysoev while employed at Rambler.
10 702. Based on the Disloyal Employees’ employment and separation agreements with 11 Rambler, Rambler internal policies and procedures, and applicable Russian law, Rambler, which has
12 assigned its rights to Lynwood, was the owner, and Lynwood is now the owner by assignment, of all
13 right, title and interest in and to: (i) the open source NGINX Software conceived and/or developed
14 from 2001 until the end of 2011; (ii) all NGINX Plus software modules conceived and/or developed
15 before the end of 2011; (iii) all of the foregoing software, in source code and executable form, to the
16 extent that such software comprises, or is included in, any or all post-2011 versions, releases,
17 improvements and/or derivations of: (a) the open source NGINX Software; and/or (b) any
18 commercial products licensed or sold by the Defendants, including without limitation, NGINX Plus,
19 NGINX Amplify, NGINX Controller, and NGINX Unit; and (iv) all copyright rights and other
20 intellectual property rights inherent therein or appurtenant thereto (all of the foregoing is hereinafter
21 collectively referred to as the “Copyrighted Works”).
22 703. NGINX Plus is based to a large extent on the open source NGINX Software. This 23 dependency is evidenced repeatedly in NGINX Plus release statements, benchmark tests,
24 documentation, and other descriptive sources. Indeed, in his own Twitter feed, Sysoev has publicly
25 admitted that “[t]he two products have a lot of overlap.”
26 704. Up until the time that the Disloyal Employees left Rambler with the NGINX 27 Enterprise secreted away for themselves, the NGINX Software was used by Rambler in Russia to
28 111 COMPLAINT, Case No.
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1 conduct its business and such software resided on Rambler-owned servers located in Moscow,
2 Russia.
3 705. Sysoev made Release 0.1.0 of the NGINX Software available to the public in early 4 October 2004, without authorization from Rambler. Sysoev has claimed in various media interviews
5 that, prior to such publication, without Rambler’s knowledge or authorization, the NGINX Software
6 was deployed on the Russian Internet music portal located at the Web address zvuki.ru.
7 706. The Rambler and Lynwood investigations in 2019 and 2020 following Korotkov’s 8 disclosures revealed email communications indicating that as to the alleged zvuki.ru implementation
9 of the NGINX Software, such use involved Sysoev’s then colleague at Rambler, Andrey Kopeyko,
10 the Head of Network Operations, who publicly stated on May 10, 2004, in an email from his Rambler
11 email address, that he had “been using nginx on http://www.zvuki.ru for almost a year*.mp3”.
12 707. Soon after Kopeyko was hired by Rambler Telecom on or about August 1, 2003, he 13 began communicating extensively with Sysoev via email to and from their rambler-co.ru email
14 accounts, during regular business hours, regarding NGINX Software code development. Topics of
15 such communications include NGINX-related beta testing, debugging, algorithms, functionality,
16 syntax, processing, deployment and uses of the NGINX Software within Rambler. At one point, in
17 an email dated July 22, 2005, Kopeyko exclaimed: “I look – all around in Rambler nginxs are used
18 everywhere ….”
19 708. The Copyrighted Works and the NGINX Software were used by Rambler and stored 20 on Rambler-owned servers located in Moscow, Russia, including the creation of DNS-zones
21 “nginx.org” and “sysoev.ru” from at least 2002 until shortly after Sysoev’s separation from Rambler.
22 709. In light of Sysoev’s alleged first deployment and publication of the NGINX Software, 23 with the involvement of other Rambler employees, on the Russian music portal zvuki.ru in Russia,
24 and Rambler’s heavy use of the NGINX Software in Moscow prior to Sysoev’s October 2004 public
25 general release, and given the admitted significant overlap between open source NGINX Software
26 and NGINX Plus, pursuant to the terms of the Berne Convention, the NGINX Software and NGINX
27 Plus are foreign works that are exempt from registration in the United States Copyright Office as a
28 prerequisite to Lynwood commencing this action for copyright infringement. 112 COMPLAINT, Case No.
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1 710. Rambler has assigned to Plaintiff all of its rights, including all intellectual property 2 rights and the right to sue for past and present infringement, and to seek and collect damages, with
3 respect to the Copyrighted Works.
4 711. 17 U.S.C. § 106 provides a list of exclusive rights the owner of a copyright holds, 5 including the right to copy the work, prepare derivative works, to distribute copies, and other acts.
6 712. 17 U.S.C. § 501 provides that the owner of a copyright may bring a cause of action 7 against a party who violates the owner’s exclusive rights under § 106.
8 713. Defendants have engaged in and are engaging in reckless, blatant, willful, and 9 repeated infringement of Plaintiff’s Copyrighted Works under both international and U.S. law.
10 714. The Defendants have reproduced, distributed, offered for sale and/or license, sold or 11 licensed, and developed derivative works of, the Copyrighted Works, in an unauthorized manner for
12 commercial use, in violation of Rambler’s, and now Plaintiff’s, exclusive rights, in violation of 17
13 U.S.C. § 106.
14 715. Such infringement has occurred both in the United States and internationally, 15 including because individuals and entities in the United States have downloaded the Copyrighted
16 Works, distributed the Copyrighted Works, copied the Copyrighted Works, and/or created derivative
17 works based on the Copyrighted Works without the Plaintiff’s or Rambler’s authorization.
18 716. Further, upon information and belief, the NGINX Conspirators and F5 have 19 downloaded the Copyrighted Works, distributed the Copyrighted Works, copied the Copyrighted
20 Works, and/or created derivative works based on the Copyrighted Works from their respective
21 offices and servers located in the US and have imported to and/or exported from such infringing
22 works to others throughout the world without authorization.
23 717. Further, upon information and belief, between 2013 – 2019, the NGINX Conspirators, 24 and since the Merger, F5, have introduced 20 or more commercial releases of NGINX Plus and
25 related extensions that are based on, and to a significant degree are derived from and/or dependent
26 upon, the open source NGINX Software and/or the NGINX Plus software that Sysoev and the
27 Disloyal Employees conceived and/or developed prior to their departure from Rambler.
28 113 COMPLAINT, Case No.
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1 718. Defendants’ conduct has been without the permission, consent, or license of Plaintiff 2 or the previous owner of the Copyrighted Works, Rambler.
3 719. Defendants have, by virtue of the above-described acts, directly infringed upon 4 Plaintiff’s Copyrighted Works in violation of 17 U.S.C. § 101 et seq., including 17 U.S.C. § 501.
5 720. Defendants’ acts of infringement have been willful, intentional, and purposeful, in 6 disregard of, and with indifference to, the rights of Rambler and now Plaintiff.
7 721. Defendants will continue their infringing activity throughout the course of this action, 8 further demonstrating its reckless disregard of Plaintiff’s intellectual property rights.
9 722. As a direct and proximate result of Defendants’ infringement of the Copyrighted 10 Works, Plaintiff is entitled to the election of its actual damages or to statutory damages pursuant to
11 17 U.S.C. § 504(c). Plaintiff is further entitled to its attorneys’ fees and costs pursuant to 17 U.S.C.
12 § 505.
13 723. Defendants’ infringements were committed “willfully” within the meaning of 17 14 U.S.C. § 504(c)(2), and any statutory damages against Defendants should be enhanced in accordance
15 with that section.
16 724. As a result of Defendants’ acts of infringement of the Copyrighted Works, Plaintiff 17 has suffered injury to its business and property in an amount to be determined at trial as damages
18 pursuant to 17 U.S.C. § 504, presently believed to be well in excess of $750 million, and will continue
19 to suffer damages in the future.
20 725. Defendants’ conduct is causing, and, unless enjoined and restrained by this Court, 21 will continue to cause Plaintiff great and irreparable injury that cannot be fully compensated or
22 measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §§’s 502 and
23 503, Plaintiff is entitled to injunctive relief prohibiting Defendants from further infringement of the
24 Copyrighted Works, and ordering Defendants to destroy all copies of the Copyrighted Works made
25 in violation of Plaintiff’s exclusive rights.
26 726. Unless an injunction pursuant to 17 U.S.C. § 502 is issued enjoining Defendants and 27 their officers, agents, servants, employees, and attorneys, and all those persons in active concert or
28 114 COMPLAINT, Case No.
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1 participation with them from directly or indirectly infringing the Copyrighted Works, Plaintiff will
2 suffer irreparable injury for which there is no adequate remedy at law.
3 SIXTEENTH CLAIM FOR RELIEF 4 Berne Convention for the Protection of Literary and Artistic Works and the Copyright Act (17
5 U.S.C. § 101, et seq.) based on Contributory Copyright Infringement Against All Defendants
6 727. Plaintiff realleges and incorporates by reference the allegations contained in 7 paragraphs 1 through 726 above as if fully set forth and repeated herein.
8 728. As detailed above, the Berne Convention allows the owner of a foreign copyright to 9 bring infringement claims in the U.S.
10 729. Upon information and belief, Defendants enable various third parties, including but 11 not limited to individual users and companies who download copies of the NGINX Software and
12 purchase fee-based subscriptions and licenses to NGINX Plus and other components of the
13 Copyrighted Works (“collectively, “Affiliates”), including the open source code that Defendants
14 made available pursuant to a BSD-style open source license at http://nginx.org/en/download.html, to
15 use, reproduce, distribute, and make derivative works of the Copyrighted Works in an unauthorized
16 manner.
17 730. Upon information and belief, the Affiliates have infringed and continue to infringe 18 Plaintiff’s exclusive rights in the Copyrighted Works in an unauthorized manner through such
19 Affiliates’ own unauthorized use, reproduction and distribution of the Copyrighted Works, and/or
20 the development of derivative works of the Copyrighted Works.
21 731. Defendants enabled, induced, facilitated, and materially contributed to each act of 22 infringement by the Affiliates.
23 732. Defendants have and continue to have actual and constructive knowledge that 24 Affiliates engaged in unauthorized use of the Copyrighted Works and that such acts constituted
25 infringement. Acting with this actual and constructive knowledge, Defendants enabled, facilitated,
26 and materially contributed to Affiliates’ copyright infringements, which could not occur without
27 Defendants’ enablement.
28 115 COMPLAINT, Case No.
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1 733. Defendants are liable as contributory copyright infringers for the infringing acts of 2 the Affiliates.
3 734. Defendants’ acts of contributory infringement have been willful, intentional, and 4 purposeful, in disregard of, and with indifference to, the rights of Plaintiff.
5 735. As a direct and proximate result of Defendants’ contributory infringement of the 6 Copyrighted Works, Plaintiff is entitled to the election of its actual damages or to statutory damages
7 pursuant to 17 U.S.C. § 504(c). Plaintiff is further entitled to its attorneys’ fees and costs pursuant
8 to 17 U.S.C. § 505.
9 736. Defendants’ contributory infringements were committed “willfully” within the 10 meaning of 17 U.S.C. § 504(c)(2), and any statutory damages against Defendants should be enhanced
11 in accordance with that section.
12 737. As a result of Defendants’ acts of contributory infringement of the Copyrighted 13 Works, Plaintiff has suffered injury to its business and property in an amount to be determined at
14 trial as damages pursuant to 17 U.S.C. § 504, presently believed to be well in excess of $750 million,
15 and will continue to suffer damages in the future.
16 738. Defendants’ conduct is causing, and, unless enjoined and restrained by this Court, 17 will continue to cause Plaintiff great and irreparable injury that cannot be fully compensated or
18 measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §§ 502 and 503,
19 Plaintiff is entitled to injunctive relief prohibiting Defendants from further contributing to the
20 infringement of the Copyrighted Works, and ordering Defendants to destroy all copies of the
21 Copyrighted Works made in violation of Plaintiff’s exclusive rights.
22 SEVENTEENTH CLAIM FOR RELIEF 23 Berne Convention for the Protection of Literary and Artistic Works and the Copyright Act (17
24 U.S.C. § 101, et seq.) based on Vicarious Copyright Infringement Against All Defendants
25 739. Plaintiff realleges and incorporates by reference the allegations contained in 26 paragraphs 1 through 738 above as if fully set forth and repeated herein.
27 740. As detailed above, the Berne Convention allows the owner of a foreign copyright to 28 bring infringement claims in the U.S. 116 COMPLAINT, Case No.
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1 741. Upon information and belief, the Affiliates have infringed and continue to infringe 2 Plaintiff’s exclusive rights in the Copyrighted Words by reproducing, distributing, and making
3 derivative works of the Copyrighted Works in an unauthorized manner.
4 742. Upon information and belief, Defendants had and continue to have the right and 5 ability to supervise and/or control Affiliates’ infringing conduct and could have prevented Affiliates
6 from infringing the Copyrighted Works. Upon information and belief, Affiliates’ copyright
7 infringements were carried out in furtherance of Defendants’ interests, including Defendants’
8 financial interests, and subject to Defendants’ terms of use and license requirements.
9 743. Upon information and belief, the Affiliates have infringed and continue to infringe 10 Plaintiff’s exclusive rights in the Copyrighted Works in an unauthorized manner through such
11 Affiliates own use, reproduction, distribution, and/or derivative works on behalf of Defendants.
12 744. Defendants significantly and directly benefited from the widespread infringement of 13 Plaintiff’s Copyrighted Works by the Affiliates which have continued until the present time,
14 including substantial financial benefit to Defendants.
15 745. Defendants are vicariously liable for the infringing acts of the Affiliates.
16 746. Defendants’ acts of vicarious infringement have been willful, intentional, and 17 purposeful, in disregard of, and with indifference to, the rights of Plaintiff.
18 747. As a direct and proximate result of Defendants’ vicarious infringement of the 19 Copyrighted Works, Plaintiff is entitled to the election of its actual damages or to statutory damages
20 pursuant to 17 U.S.C. § 504(c). Plaintiff is further entitled to its attorneys’ fees and costs pursuant
21 to 17 U.S.C. § 505.
22 748. Defendants’ vicarious infringements were committed “willfully” within the meaning 23 of 17 U.S.C. § 504(c)(2), and any statutory damages against Defendants should be enhanced in
24 accordance with that section.
25 749. As a result of Defendants’ acts of vicarious infringement of the Copyrighted Works, 26 Plaintiff has suffered injury to its business and property in an amount to be determined at trial as
27 damages pursuant to 17 U.S.C. § 504, presently believed to be well in excess of $750 million, and
28 will continue to suffer damages in the future. 117 COMPLAINT, Case No.
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1 750. Defendants’ conduct is causing, and, unless enjoined and restrained by this Court, 2 will continue to cause Plaintiff great and irreparable injury that cannot be fully compensated or
3 measured in money. Plaintiff has no adequate remedy at law. Pursuant to 17 U.S.C. §§ 502 and 503,
4 Plaintiff is entitled to injunctive relief prohibiting Defendants from further vicariously infringing the
5 Copyrighted Works, and ordering Defendants to destroy all copies of the Copyrighted Works made
6 in violation of Plaintiff’s exclusive rights.
7 EIGHTEENTH CLAIM FOR RELIEF
8 Cancellation of NGINX Trademark Registration, U.S. Reg. No. 4,196,757 and Payment of
9 Damages for Fraud, 15 U.S.C. §§ 1064, 1119, 1120, as to NGINX Software, Inc. and F5
10 751. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 11 750 above as is fully repeated and realleged herein.
12 752. On May 4, 2011, while Sysoev was still employed by Rambler, the Team incorporated 13 NGINX Software, Inc. in Delaware.
14 753. That same day, May 4, 2011, NGINX Software, Inc. filed an application to register 15 the trademark NGINX on a use basis, pursuant to 15 U.S.C. § 1051(a), in the USPTO, which was
16 assigned U.S. Application Number 85/312,802 .
17 754. As of May 4, 2011, NGINX Software, Inc. disclosed its headquarters as 600 18 Montgomery Street, 43rd Floor, San Francisco, California.
19 755. In the application, NGINX Software, Inc. alleged that the date of first use of the 20 trademark was May 1, 2002, while Sysoev was employed by Rambler, and that the date of first use
21 in commerce use was May 1, 2004, while Sysoev was employed by Rambler.
22 756. The NGINX trademark application, U.S. Application Number 85/312,802 covers the
23 following goods in Class 9: “Computer software for HTTP and reverse proxy servers and mail proxy 24 servers, namely, for controlling and managing server applications in the nature of HTTP and reverse
25 proxy servers and mail proxy servers.”
26 757. In U.S. Application Number 85/312,802, Nginx Software, Inc. signed the application 27 declaration through its attorney Leonard Grayver.
28 118 COMPLAINT, Case No.
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1 758. The declaration in the NGINX trademark application stated in relevant part: “to the 2 best of his/her knowledge and belief no other person, firm, corporation, or association has the right
3 to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto
4 as to be likely, when used on or in connection with the goods/services of such other person, to cause
5 confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge
6 are true; and that all statements made on information and belief are believed to be true.”
7 759. This statement was false as applied to the NGINX trademark and known to be false 8 by Sysoev and the other members of the Team who authorized Grayver to make that representation
9 on behalf of NGINX Software, Inc.
10 760. Sysoev was still working for Rambler at that time U.S. Application Number 11 85/312,802 was filed for the NGINX trademark, and he and the rest of the Team knew well that
12 Sysoev, the self-proclaimed 97% author of the NGINX Software, developed the NGINX Software
13 for Rambler using Rambler’s resources.
14 761. The Sysoev Employment Agreement explicitly provided that Sysoev’s work product 15 for Rambler was the property of Rambler and required Sysoev to disclose and turnover his work to
16 Rambler.
17 762. There was no transfer of trademark rights from Rambler to Sysoev in the NGINX 18 trademark such that any such rights could have been subsequently transferred to NGINX Software,
19 Inc. giving it a right to seek registration of the NGINX trademark.
20 763. To the Team, Rambler’s rights to the NGINX Software and associated trademarks 21 were clearly established.
22 764. NGINX Software Inc. engaged Grayver as its legal counsel for the trademark 23 application. Grayver is a Silicon Valley lawyer. Upon information and belief, Grayver advised
24 NGINX Software Inc. and the Team of the importance of the representation they were making to the
25 USPTO.
26 765. Moreover, the Team was mindful of Russian law concerning work made for hire as 27 demonstrated in their false public statements implying that the Disloyal Employees did not get
28 separately compensated for the development of the NGINX Software by Rambler and that the work 119 COMPLAINT, Case No.
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1 was somehow outside the scope of the Disloyal Employees’ duties while employed at Rambler.
2 These statements, while false and based on an incomplete and inaccurate understanding of the
3 relevant Russian law, demonstrate that the Team knew Rambler owned the NGINX Software, the
4 NGINX Enterprise, and associated business opportunities such as the trademarks associated
5 therewith.
6 766. Despite this knowledge, and more directly despite the Disloyal Employees’ 7 knowledge that the NGINX Software and associated trademarks were properly owned by Rambler
8 because they developed it for Rambler as part of their duties as Rambler employees, NGINX
9 Software, Inc. fraudulently represented to the USPTO that no other person or entity had any rights
10 to the NGINX trademark, with an intent to deceive the USPTO and to claim such trademark rights
11 for itself.
12 767. The NGINX trademark was registered in the name of NGINX Software, Inc. on 13 August 28, 2012 under U.S. Registration Number 4,196,757.
14 768. The NGINX trademark was then purportedly assigned to F5 on January 22, 2020, 15 which assignment was recorded in the USPTO on February 6, 2020 at reel/frame 006858/0385.
16 769. Not having any legitimate rights in the NGINX trademarks, NGINX Software, Inc. 17 could not assign rights in the mark to F5.
18 770. U.S. Registration Number 4,196,757 should be cancelled in view of the fraudulent 19 representation of ownership of the NGINX trademark to the USPTO.
20 771. Defendants NGINX Software, Inc. and F5 should pay Plaintiff all damages caused by 21 the fraudulent registration of the NGINX trademark in an amount to be determined at trial.
22 NINETEENTH CLAIM FOR RELIEF
23 Cancellation of NGINX (Stylized) Trademark Registration, U.S. Reg. No. 4,200,791 and
24 Payment of Damages for Fraud, 15 U.S.C. §§ 1064,1119, 1120 as to
25 NGINX Software, Inc. and F5
26 772. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 27 771 above as is fully repeated and realleged herein.
28 120 COMPLAINT, Case No.
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1 773. On May 5, 2011, NGINX Software, Inc. filed an application to register the NGINX 2 (Stylized) trademark on a use basis, pursuant to 15 U.S.C. 1051(a), in the USPTO, which was
3 assigned U.S. Application Number 85/312,806.
4 774. As of May 5, 2011, NGINX Software, Inc. disclosed its headquarters as 600 5 Montgomery Street, 43rd Floor, San Francisco, California.
6 775. The declaration in the NGINX (Stylized) trademark application stated in relevant part: 7 “to the best of his/her knowledge and belief no other person, firm, corporation, or association has the
8 right to use the mark in commerce, either in the identical form thereof or in such near resemblance
9 thereto as to be likely, when used on or in connection with the goods/services of such other person,
10 to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own
11 knowledge are true; and that all statements made on information and belief are believed to be true.”
12 776. This statement as applied to the NGINX (Stylized) trademark was false and known to 13 be false by Sysoev and the other members of the Team who authorized Grayver to make that
14 representation on behalf of NGINX Software, Inc.
15 777. Sysoev was still working for Rambler at that time the U.S. Application Number 16 85/312,806 was filed for the NGINX (Stylized) trademark, and he and the rest of the Team knew
17 well that Sysoev, the self-proclaimed 97% author of the NGINX Software, developed the NGINX
18 Software for Rambler using Rambler’s resources.
19 778. The Sysoev Employment Agreement explicitly provided that Sysoev’s work product 20 for Rambler was the property of Rambler and required Sysoev to disclose and turnover his work to
21 Rambler.
22 779. There was no transfer of trademark rights from Rambler to Sysoev in the NGINX 23 (Stylized) trademark such that any such rights could have been subsequently transferred to NGINX
24 Software, Inc. giving it a right to seek registration of the NGINX (Stylized) trademark.
25 780. To the Team, Rambler’s rights to the NGINX Software and associated trademarks 26 were clearly established. NGINX Software, Inc. engaged Grayver as their legal counsel for the
27 trademark application. Grayver is a Silicon Valley lawyer. Upon information and belief, Grayver
28 121 COMPLAINT, Case No.
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1 advised NGINX Software Inc. and the Team of the importance of the representation they were
2 making to the USPTO.
3 781. Moreover, the Team was mindful of Russian law concerning work made for hire as 4 demonstrated in their false public statements implying that the Disloyal Employees did not get
5 separately compensated for the development of the NGINX Software by Rambler and that the work
6 was somehow outside the scope of their duties while employed at Rambler. These statements, while
7 false and based on an incomplete and inaccurate understanding of the relevant Russian law,
8 demonstrate that the Team knew Rambler owned the NGINX Software, the NGINX Enterprise, and
9 associated business opportunities such as the trademarks associated therewith.
10 782. Despite this knowledge, and more directly despite the Disloyal Employees’ 11 knowledge that the NGINX Software and associated trademarks were properly owned by Rambler
12 because they developed it for Rambler as part of their duties as Rambler employees, NGINX
13 Software, Inc. fraudulently represented to the USPTO that no other person or entity had any rights
14 to the NGINX (Stylized) trademark and had an intent to deceive the USPTO to claim such trademark
15 rights for itself.
16 783. The NGINX (Stylized) trademark was registered in the name of NGINX Software, 17 Inc. on September 4, 2012 under U.S. Registration Number 4,200,791.
18 784. The NGINX (Stylized) trademark was then purportedly assigned to F5 on January 22, 19 2020, which was recorded in the USPTO on February 6, 2020 at reel/frame 006858/0385.
20 785. Not having any legitimate rights in the NGINX (Stylized) trademarks, NGINX 21 Software, Inc. could not assign rights in the mark to F5.
22 786. U.S. Registration Number 4,200,791 should be cancelled in view of the fraudulent 23 representations of ownership of the NGINX (Stylized) trademark to the USPTO.
24 787. Defendants NGINIX Software, Inc. and F5 should pay Plaintiff all damages caused 25 by the fraudulent registration of the NGINX (Stylized) trademark in an amount to be determined at
26 trial.
27
28 122 COMPLAINT, Case No.
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1 TWENTIETH CLAIM FOR RELIEF
2 Cancellation of NGINX PLUS Trademark Registration, U.S. Reg. No. 4,837,175 and Payment
3 of Damages for Fraud, 15 U.S.C. §§ 1064, 1119, 1120
4 as to NGINX DE, NGINX BVI and F5
5 788. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 6 787 above as is fully repeated and realleged herein.
7 789. On April 30, 2013, NGINX DE filed an application to register the NGINX PLUS 8 trademark on an intent-to-use basis, pursuant to 15 U.SC. § 1051(b), in the USPTO, which was
9 assigned U.S. Application Number 85/918,273. NGINX DE engaged Grayver to file the application.
10 790. The application for the NGINX PLUS trademark covers the following goods in Class 11 9: “Computer software for HTTP and reverse proxy servers and mail proxy servers, namely, for
12 controlling and managing server applications in the nature of HTTP and reverse proxy servers and
13 mail proxy servers.”
14 791. In the application for the NGINX PLUS trademark, NGINX DE subsequently filed a 15 Statement of Use and alleged that the date of first use of the trademark was April 13, 2013 and that
16 the date of first use in commerce was August 22, 2013.
17 792. Both the application declaration to register the NGINX PLUS trademark and 18 declaration in support of the Statement of Use were signed by NGINX DE through its attorney,
19 Grayver.
20 793. The declaration in the application for the NGINX PLUS application stated in relevant 21 part: “to the best of his/her knowledge and belief no other person, firm, corporation, or association
22 has the right to use the mark in commerce, either in the identical form thereof or in such near
23 resemblance thereto as to be likely, when used on or in connection with the goods/services of such
24 other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of
25 his/her own knowledge are true; and that all statements made on information and belief are believed
26 to be true.”
27 794. These statements were false and known to be false by Sysoev and the other members 28 of the Team who authorized Grayver to make the representations on behalf of NGINX DE. 123 COMPLAINT, Case No.
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1 795. There was no transfer of trademark rights from Rambler to Sysoev in the NGINX 2 trademark such that any such rights could have been subsequently transferred to NGINX DE giving
3 it a right to seek registration of NGINX PLUS.
4 796. The NGINX PLUS trademark was fraudulently registered in in the name of NGINX 5 DE on October 20, 2015 under Registration Number 4,837,175.
6 797. Subsequently, on December 14, 2017, Sally M. Abel, Esq. of Fenwick & West LLP, 7 filed a Section 7 Request form claiming that Grayver had mistakenly listed NGINX DE as the
8 applicant and asked that the registrant be changed to NGINX BVI. The Section 7 Request form
9 incorrectly states that the registrant should be changed to NGINX BVI because NGINX DE did not
10 exist as of the registration filing date. In reality, NGINX DE was incorporated in Delaware on August
11 8, 2011 and remains in existence as of May 2020.
12 798. The NGINX PLUS trademark was then purportedly assigned from NGINX BVI to 13 F5 on November 27, 2019, which assignment was recorded with the USPTO on December 3, 2019
14 at reel/frame number 006807/0517.
15 799. As there was no transfer of trademark rights from Rambler to Sysoev in the NGINX 16 trademark such that any such rights could have been subsequently transferred to NGINX DE by
17 which it would have had the right to register the NGINX PLUS trademark, there were no rights that
18 could have subsequently been transferred to NGINX BVI and then to F5.
19 800. U.S. Registration Number 4,837,175 should be cancelled in view of the fraudulent 20 representations of ownership of the NGINX PLUS trademark to the USPTO.
21 801. Defendants NGINX DE, NGINX BVI and F5 should pay Plaintiff all damages caused 22 by the fraudulent registration of the NGINX PLUS trademark in an amount to be determined at trial.
23 TWENTY-FIRST CLAIM FOR RELIEF
24 Cancellation of NGINX Trademark Registration, U.S. Reg. No. 5,973,527 and Payment of
25 Damages for Fraud, 15 U.S.C. §§ 1064,1119, 1120 as to NGINX BVI and F5
26 802. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 27 801 above as is fully repeated and realleged herein.
28 124 COMPLAINT, Case No.
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1 803. On June 14, 2017, NGINX BVI applied to register the NGINX trademark, on an 2 intent-to-use basis, pursuant to 15 U.S.C. § 1051(b), in the USPTO, which was assigned U.S.
3 Application Number 87/487,184.
4 804. U.S. Application Number 87/487,184 covers the following goods and services:
5 Class 9: Server software for use in web serving, reverse proxying, caching, load 6 balancing, application delivery and media streaming; computer software for
7 controlling and managing web servers; computer software for use in HTTP and
8 reverse proxy servers and mail proxy servers, namely, for controlling and managing
9 server applications in the nature of http and reverse proxy servers and mail proxy
10 servers; software for providing data analysis, analytics, and reporting of information
11 concerning web server performance; computer hardware; parts and fittings for all of
12 the aforesaid.
13 Class 42: Software as a service (SaaS) featuring software for use in web serving, 14 reverse proxying, caching, load balancing, application delivery, media streaming and
15 controlling and managing web servers; platform as a service featuring computer
16 platforms for web serving, reverse proxying, caching, load balancing, application
17 delivery and media streaming; Software as a service (SaaS) services featuring software
18 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
19 controlling and managing server applications in the nature of http and reverse proxy
20 servers and mail proxy servers; computer services, namely, providing web servers and
21 load balancing servers; software as a service (SaaS) services featuring software for
22 providing data analysis, analytics, and reporting of information concerning web server
23 performance; design and development of computer hardware and software;
24 information, consultancy and advisory services relating to all of the aforesaid.
25 805. The declaration in U.S. Application No. 87/487,184 for the NGINX trademark stated 26 in relevant part:
27 If the applicant is filing the application based on an intent to use the mark in commerce
28 under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory believes that 125 COMPLAINT, Case No.
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1 the applicant is entitled to use the mark in commerce; The applicant has a bona fide
2 intention to use the mark in commerce on or in connection with the goods/services in
3 the application; and To the best of the signatory's knowledge and belief, the facts
4 recited in the application are accurate. To the best of the signatory's knowledge and
5 belief, no other persons, except, if applicable, concurrent users, have the right to use
6 the mark in commerce, either in the identical form or in such near resemblance as to
7 be likely, when used on or in connection with the goods/services of such other persons,
8 to cause confusion or mistake, or to deceive. To the best of the signatory's knowledge,
9 information, and belief, formed after an inquiry reasonable under the circumstances,
10 the allegations and other factual contentions made above have evidentiary support.
11 The signatory being warned that willful false statements and the like are punishable
12 by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false
13 statements and the like may jeopardize the validity of the application or submission or
14 any registration resulting therefrom, declares that all statements made of his/her own
15 knowledge are true and all statements made on information and belief are believed to
16 be true.
17 806. These statements were false and known to be false by Sysoev and the Team when 18 such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI.
19 807. U.S. Application Number 87/487,184 was assigned from NGINX BVI to F5 on 20 November 27, 2019, which assignment was recorded with the USPTO on December 3, 2019 at
21 reel/frame number 006807/0517. Subsequently, on December 11, 2019, a Statement of Use was filed
22 by F5.
23 808. F5 recited the following in the Statement of Use: “The mark was first used by the 24 applicant, or the applicant's related company, licensee, or predecessor in interest at least as early as
25 12/14/2009, and first used in commerce at least as early as 04/12/2011, and is now in use in such
26 commerce.”
27 809. The date of first use claimed as of December 14, 2009 was while Sysoev and all of 28 the Disloyal Employees were still employed by Rambler, and the date of first use in commerce 126 COMPLAINT, Case No.
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1 claimed as of April 12, 2011 was also while Sysoev and all the Disloyal Employees were still
2 employed by Rambler.
3 810. The declaration in the Statement of Use stated in relevant part: 4 For a trademark or service mark application, the mark is in use in commerce on or in
5 connection with all the goods/services in the application or notice of allowance, or as
6 subsequently modified…The specimen(s) shows the mark as used on or in connection
7 with the goods/services/collective membership organization in commerce. To the best
8 of the signatory’s knowledge and belief, no other persons, except, if applicable,
9 authorized users, members, and/or concurrent users, have the right to use the mark in
10 commerce, either in the identical form or in such near resemblance as to be likely,
11 when used on or in connection with the goods/services/collective membership
12 organization of such other persons, to cause confusion or mistake, or to deceive.
13 To the best of the signatory’s knowledge, information, and belief, formed after an
14 inquiry reasonable under the circumstances, the allegations and other factual
15 contentions made above have evidentiary support. The signatory being warned that
16 willful false statements and the like are punishable by fine or imprisonment, or both,
17 under 18 U.S.C. § 1001, and that such willful false statements and the like may
18 jeopardize the validity of the application or submission or any registration resulting
19 therefrom, declares that all statements made of his/her own knowledge are true and all
20 statements made on information and belief are believed to be true.
21 811. The declaration was signed on behalf of F5 by its attorney, Eugene Beliy.
22 812. The Statement of Use declaration statements were false as applied to the ownership 23 of the NGINX trademark where such trademark rights were with Rambler and never assigned to
24 Sysoev or anyone else on the Team. Neither NGINX BVI nor F5 had the right to register the NGINX
25 trademark.
26 813. The NGINX trademark was fraudulently registered in the name of F5 on January 28, 27 2020 under U.S. Registration Number 5,973,515.
28 127 COMPLAINT, Case No.
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1 814. U.S. Registration Number 5,973,515 should be cancelled in view of the fraudulent 2 representations of ownership of the NGINX trademark to the USPTO.
3 815. Defendants NGINX BVI and F5 should pay Plaintiff all damages caused by the 4 fraudulent registration of the NGINX trademark in an amount to be determined at trial.
5 TWENTY-SECOND CLAIM FOR RELIEF
6 Cancellation of NGINX CONTROLLER Trademark Registration, U.S. Reg. No. 5,973,527
7 and Payment of Damages, 15 U.S.C. §§ 1064, 1119, 1120, as to NGINX BVI and F5
8 816. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 9 815 above as is fully repeated and realleged herein. 10 817. On July 28, 2017, NGINX BVI filed an application to register the NGINX 11 CONTROLLER trademark, on an intent-to-use basis, pursuant to 15 U.S.C. § 1051(b), in the 12 USPTO, which was assigned U.S. Application Number 87/547,319. The word “controller” in the 13 Trademark was required to be disclaimed because it is descriptive of the goods and services. The 14 predominant portion of the trademark is NGINX. 15 818. The NGINX CONTROLLER trademark covers the following goods and services: 16 Class 9: Server software for use in web serving, reverse proxying, caching, load 17 balancing, application delivery and media streaming; computer software for 18 controlling and managing web servers; computer software for use in HTTP and 19 reverse proxy servers and mail proxy servers, namely, for controlling and managing 20 server applications in the nature of http and reverse proxy servers and mail proxy 21 servers; software for providing data analysis, analytics, and reporting of information 22 concerning web server performance; computer hardware; parts and fittings for all of 23 the aforesaid. 24 Class 42: Software as a service (SaaS) featuring software for use in web serving, 25 reverse proxying, caching, load balancing, application delivery, media streaming and 26 controlling and managing web servers; platform as a service featuring computer 27 platforms for web serving, reverse proxying, caching, load balancing, application 28 128 COMPLAINT, Case No.
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1 delivery and media streaming; Software as a service (SaaS) services featuring software
2 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
3 controlling and managing server applications in the nature of http and reverse proxy
4 servers and mail proxy servers; computer services, namely, providing web servers and
5 load balancing servers; software as a service (SaaS) services featuring software for
6 providing data analysis, analytics, and reporting of information concerning web server
7 performance; design and development of computer hardware and software;
8 information, consultancy and advisory services relating to all of the aforesaid.”
9 819. The declaration for the NGINX CONTROLLER application stated in relevant part: 10 “If the applicant is filing the application based on an intent to use the mark in
11 commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory
12 believes that the applicant is entitled to use the mark in commerce; The applicant has
13 a bona fide intention to use the mark in commerce on or in connection with the
14 goods/services in the application; and To the best of the signatory’s knowledge and
15 belief, the facts recited in the application are accurate. To the best of the signatory's
16 knowledge and belief, no other persons, except, if applicable, concurrent users, have
17 the right to use the mark in commerce, either in the identical form or in such near
18 resemblance as to be likely, when used on or in connection with the goods/services of
19 such other persons, to cause confusion or mistake, or to deceive. To the best of the
20 signatory’s knowledge, information, and belief, formed after an inquiry reasonable
21 under the circumstances, the allegations and other factual contentions made above
22 have evidentiary support. The signatory being warned that willful false statements
23 and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001,
24 and that such willful false statements and the like may jeopardize the validity of the
25 application or submission or any registration resulting therefrom, declares that all
26 statements made of his/her own knowledge are true and all statements made on
27 information and belief are believed to be true.
28 129 COMPLAINT, Case No.
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1 820. These statements were false and known to be false by Sysoev and the Team when 2 such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI.
3 821. The NGINX CONTROLLER trademark application was purportedly assigned from 4 NGINX BVI to F5 on November 27, 2019, which assignment was recorded with the USPTO on
5 December 3, 2019 at reel/frame number 006807/0517.
6 822. Subsequently, on December 11, 2019, a Statement of Use was filed by F5 claiming a 7 date of first use of use and date of first use in commerce as of June 26, 2018.
8 823. The NGINX CONTROLLER trademark covers the exact same goods and services as 9 the NGINX trademark, U.S. Registration No. 5,973,515, which claimed a date of first use as of
10 December 14, 2009, while Sysoev and the other Disloyal Employees were still employed by
11 Rambler, and a date of first use in commerce claimed as of April 12, 2011 also while Sysoev and all
12 the Disloyal Employees were still employed by Rambler.
13 824. There had been no transfer of trademark rights in the NGINX trademark from 14 Rambler to Sysoev such that any rights could have been subsequently transferred to NGINX BVI
15 and then to F5 to support seeking to register the NGINX CONTROLLER trademark.
16 825. The NGINX CONTROLLER trademark was fraudulently registered in the name of 17 F5 on January 28, 2020 under U.S. Registration Number 5,973,527, in view of the assignment
18 recorded on December 3, 2019 transferring alleged ownership of the trademark from NINX BVI to
19 F5.
20 826. F5 is not the rightful owner of the NGINX CONTROLLER trademark.
21 827. U.S. Registration Number 5,973,527 should be cancelled in view of the fraudulent 22 representations of ownership of the NGINX CONTROLLER trademark to the USPTO.
23 828. Defendants NGINX BVI and F5 should pay Plaintiff all damages caused by the 24 fraudulent registration of the NGINX CONTROLLER trademark in an amount to be determined at
25 trial.
26
27
28 130 COMPLAINT, Case No.
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1 TWENTY-THIRD CLAIM FOR RELIEF
2 Cancellation of NGINX UNIT Trademark Registration, U.S. Reg. No. 5,978,630 and Payment
3 of Damages for Fraud, 15 U.S.C. §§ 1064,1119, 1120 as to NGINX BVI and F5
4 829. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 5 828 above as is fully repeated and realleged herein.
6 830. On July 28, 2017, NGINX BVI filed an application to register the NGINX UNIT 7 trademark on an intent-to-use basis pursuant to 15 U.S.C., which was assigned U.S. Application
8 Number 87/547,328 The word “unit” was required to be disclaimed in the trademark because it is
9 descriptive of the goods and services. The predominant portion of the trademark is NGINX.
10 831. The NGINX UNIT trademark application covers the following goods and services:
11 Class 9: Server software for use in web serving, reverse proxying, caching, load 12 balancing, application delivery and media streaming; computer software for
13 controlling and managing web servers; computer software for use in HTTP and
14 reverse proxy servers and mail proxy servers, namely, for controlling and managing
15 server applications in the nature of http and reverse proxy servers and mail proxy
16 servers; software for providing data analysis, analytics, and reporting of information
17 concerning web server performance; computer hardware; parts and fittings for all of
18 the aforesaid.
19 Class 42: Software as a service (SaaS) featuring software for use in web serving, 20 reverse proxying, caching, load balancing, application delivery, media streaming and
21 controlling and managing web servers; platform as a service featuring computer
22 platforms for web serving, reverse proxying, caching, load balancing, application
23 delivery and media streaming; Software as a service (SaaS) services featuring software
24 for use in HTTP and reverse proxy servers and mail proxy servers, namely, for
25 controlling and managing server applications in the nature of http and reverse proxy
26 servers and mail proxy servers; computer services, namely, providing web servers and
27 load balancing servers; software as a service (SaaS) services featuring software for
28 providing data analysis, analytics, and reporting of information concerning web server 131 COMPLAINT, Case No.
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1 performance; design and development of computer hardware and software;
2 information, consultancy and advisory services relating to all of the aforesaid.
3 832. The declaration in the NGINX UNIT trademark application stated in relevant part: 4 If the applicant is filing the application based on an intent to use the mark in commerce
5 under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e): The signatory believes that
6 the applicant is entitled to use the mark in commerce; The applicant has a bona fide
7 intention to use the mark in commerce on or in connection with the goods/services in
8 the application; and To the best of the signatory’s knowledge and belief, the facts
9 recited in the application are accurate. To the best of the signatory’s knowledge and
10 belief, no other persons, except, if applicable, concurrent users, have the right to use
11 the mark in commerce, either in the identical form or in such near resemblance as to
12 be likely, when used on or in connection with the goods/services of such other persons,
13 to cause confusion or mistake, or to deceive. To the best of the signatory’s knowledge,
14 information, and belief, formed after an inquiry reasonable under the circumstances,
15 the allegations and other factual contentions made above have evidentiary support.
16 The signatory being warned that willful false statements and the like are punishable
17 by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false
18 statements and the like may jeopardize the validity of the application or submission or
19 any registration resulting therefrom, declares that all statements made of his/her own
20 knowledge are true and all statements made on information and belief are believed to
21 be true.
22 833. These statements were false and known to be false by Sysoev and the other members 23 of the Team when such declaration was signed by Mark Elchinoff, CFO, of NGNIX BVI.
24 834. The NGINX UNIT trademark application was purportedly assigned from NGINX 25 BVI to F5 on November 27, 2019, which assignment was recorded with the USPTO on December
26 3, 2019 at reel/frame number 006807/0517.
27 835. Subsequently, on December 10, 2019, a Statement of Use was filed by F5 which 28 stated in relevant part: “The mark was first used by the applicant, or the applicant’s related company, 132 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 133 of 140
1 licensee, or predecessor in interest at least as early as 09/22/2017, and first used in commerce at least
2 as early as 09/22/2017, and is now in use in such commerce.”
3 836. Further, the declaration in the Statement of Use stated in relevant part: 4 The signatory believes that the applicant is the owner of the mark sought to be
5 registered. For a trademark or service mark application, the mark is in use in
6 commerce on or in connection with all the goods/services in the application or notice
7 of allowance, or as subsequently modified…The specimen(s) shows the mark as used
8 on or in connection with the goods/services/collective membership organization in
9 commerce. To the best of the signatory’s knowledge and belief, no other persons,
10 except, if applicable, authorized users, members, and/or concurrent users, have the
11 right to use the mark in commerce, either in the identical form or in such near
12 resemblance as to be likely, when used on or in connection with the
13 goods/services/collective membership organization of such other persons, to cause
14 confusion or mistake, or to deceive. To the best of the signatory’s knowledge,
15 information, and belief, formed after an inquiry reasonable under the circumstances,
16 the allegations and other factual contentions made above have evidentiary support.
17 The signatory being warned that willful false statements and the like are punishable
18 by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false
19 statements and the like may jeopardize the validity of the application or submission or
20 any registration resulting therefrom, declares that all statements made of his/her own
21 knowledge are true and all statements made on information and belief are believed to
22 be true.
23 837. The declaration in support of the Statement of Use stated in relevant part: “The mark 24 was first used by the applicant, or the applicant's related company, licensee, or predecessor in interest
25 at least as early as 09/22/2017, and first used in commerce at least as early as 09/22/2017, and is now
26 in use in such commerce.”
27 838. The NGINX UNIT trademark covers the same goods and services as the NGINX 28 trademark, U.S. Registration No. 5,973,515, which claimed a date of first use as of December 14, 133 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 134 of 140
1 2009 while Sysoev and the other Disloyal Employees were still employed by Rambler, and a date of
2 first use in commerce claimed as of April 12, 2011, also while Sysoev and all the Disloyal Employees
3 were still employed by Rambler.
4 839. There had been no transfer of trademark rights in the NGINX trademark from 5 Rambler to Sysoev such that any rights could have been subsequently transferred to NGINX BVI
6 and then to F5 to support registration of the NGINX UNIT trademark.
7 840. The NGINX UNIT trademark was fraudulently registered in the name of F5 on 8 February 4, 2020 under U.S. Registration Number 5,978,630.
9 841. F5 is not the rightful owner of the NGINX UNIT trademark.
10 842. U.S. Registration Number 5,978,630 should be cancelled in view of the fraudulent 11 representations of ownership of the NGINX UNIT trademark to the USPTO.
12 843. Defendants NGINX BVI and F5 should pay Plaintiff all damages caused by the 13 fraudulent registration of the NGINX UNIT trademark in an amount to be determined at trial.
14 TWENTY-FOURTH CLAIM FOR RELIEF
15 False Advertising, 15 U.S.C. § 1125(a)(1)(B) as to All Defendants
16 844. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 17 843 above as is fully repeated and realleged herein.
18 845. Plaintiff is Rambler’s successor-in-interest to the NGINX Software, the copyright 19 protection of the NGINX Software, NGINX PLUS, the Copyrighted Works, and the NGINX suite
20 of trademarks.
21 846. Defendants have marketed the NGINX Software and NGINX Plus, the copyright 22 protection of the NGINX Software and NGINX PLUS, and the NGINX suite of trademarks as if they
23 were the rightful owners.
24 847. By Sysoev’s own admissions, the NGINX Software was developed within the scope 25 of his employment at Rambler. In addition, the NGINX PLUS software was also developed by
26 Sysoev with assistance from the Disloyal Employees within the scope of their employment
27 responsibilities at Rambler and using Rambler resources and infrastructure. Hence, both software
28 134 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 135 of 140
1 products and all the Copyrighted Works are works made for hire and are thereby protected from
2 infringement by Russian and U.S. copyright law.
3 848. The Sysoev Employment Agreement mandates that the NGINX Software, NGINX 4 PLUS, the NGINX Enterprise, and all related corporate opportunities were and are owned by
5 Rambler and now Lynwood.
6 849. Rambler, and now in turn Lynwood, have been denied the advertising value and 7 goodwill that would come from the public knowledge of the NGINX Software and NGINX PLUS
8 having been Rambler’s and now Lynwood’s.
9 850. Consumers have been harmed by this deception where they have not known the true
10 source of the NGINX Software, NGINX PLUS and the associated business opportunities.
11 851. Defendants have violated the Lanham Act by falsely and misleadingly designating
12 the NGINX suite of trademarks, the NGINX Software and NGINX PLUS as their own in advertising.
13 852. Defendants’ false and misleading designation of the NGINX suite of trademarks, the
14 NGINX Software, and NGINX PLUS as their own were material.
15 853. Defendants’ false and misleading designation of the NGINX suite of trademarks, the
16 NGINX Software, and NGINX PLUS as their own occurred in interstate commerce.
17 854. As a result of Defendants’ false and misleading advertising, Rambler, and Plaintiff as 18 its assignee, has suffered vast economic damages in an amount to be determined at trial, but presently
19 believed to be well in excess of $750 million.
20 TWENTY-FIFTH CLAIM FOR RELIEF
21 Infringement of the NGINX Trademark, 15 U.S.C. §§ 1125(a)(1)(A) as to All Defendants
22 855. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through 23 854 above as if fully repeated and realleged herein.
24 856. Plaintiff is the legitimate owner of the NGINX trademark and any associated and 25 derivative trademarks by assignment from its predecessor-in-interest, Rambler.
26 857. The NGINIX trademark is a valid trademark.
27 858. NGNIX is a coined term and is known worldwide in connection with the software and 28 related services offered in connection with such trademark. 135 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 136 of 140
1 859. Defendants have been using the NGINX trademark, NGINX (Stylized) trademark, 2 NGINX PLUS trademark, NGINX UNIT trademark and NGINX CONTROLLER trademark in
3 United States commerce in connection with the NGINX Software and related services in violation
4 of Rambler’s and now Lynwood’s rights.
5 860. Such uses have caused confusion, mistake, and deception where Lynwood is the 6 actual owner of the NGINX trademark.
7 861. Lynwood is the legitimate owner of the NGINX trademark; the NGINX and NGINX 8 (Stylized) trademarks of Defendants are identical in sound, appearance, and commercial impression
9 to Lynwood’s NGINX trademark.
10 862. Lynwood is the legitimate owner of the NGINX trademark; the NGINX PLUS, 11 NGINX CONTROLLER and NGINX UNIT trademarks of Defendants are confusingly similar in
12 sound, appearance, and commercial impression to Lynwood’s NGINX trademark.
13 863. The goods and services offered in connection with the NGINX trademarks by 14 Defendants are identical to the NGINX Software and NGINX Plus and/or are closely related as to
15 the NGINX Software and NGINX Plus.
16 864. Consumers are actually confused because consumers have been deceptively told and 17 have been misled to believe that Sysoev, NGINX Software, Inc., NGINX DE, NGINX BVI, and/or
18 F5 were or are the owners of the NGINX trademarks and software offered in connection therewith,
19 when in fact Rambler, and now Lynwood, is the legitimate owner.
20 865. Consumers continue to be actually confused because Defendant F5 has continued the 21 false designation of the origin of the NGINX trademarks, the NGINX Software and NGINX Plus
22 after having acquired NGINX BVI through the Merger and purportedly having the NGINX, NGINX
23 (Stylized), NGINX PLUS, NGINX CONTROLLER, and NGINX UNIT trademarks assigned to it.
24 866. Defendant NGINX Software, Inc.’s and the Team’s intent in selecting the mark was 25 in bad faith, including because the Team knew they were stealing the NGINX trademark from
26 Rambler as part of their conspiracy to sell Rambler’s NGINX Enterprise for their own ill-gotten
27 profit.
28 136 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 137 of 140
1 867. Defendant NGINX Software, Inc.’s and the Team’s intent in selecting the mark was 2 in bad faith, including because the Team knew they used the mark and registered the mark in direct
3 contravention of their employment obligations with Rambler.
4 868. Lynwood has been damaged by the years of unauthorized use of the NGINX 5 trademark, NGINX (Stylized) trademark, NGINX PLUS trademark, NGINX CONTROLLER
6 trademark and NGINX UNIT trademark by NGINX BVI, NGINX DE, NGINX Software, Inc. and
7 now F5, and the other Defendants in an amount to be determined at trial, but presently believed to
8 be well in excess of$750 million.
9 869. Defendants should be permanently enjoined from further use of the NGINX 10 trademark, the NGINX (Stylized) trademark, the NGINX PLUS trademark, the NGINX
11 CONTROLLER trademark, the NGINX UNIT trademark, the NGINX APP PROTECT trademark
12 and from any other trademark that includes the NGINX trademark, and any trademark confusingly
13 similar therewith.
14 TWENTY-SIXTH CLAIM FOR RELIEF
15 Unjust Enrichment as to All Defendants
16 870. Plaintiff incorporates and realleges the allegations contained in paragraphs 1 through
17 869 above as if fully repeated and realleged herein.
18 871. By their wrongful acts and omissions, Defendants were unjustly enriched at the 19 expense of and to the detriment of Rambler, and by assignment, Plaintiff.
20 872. All revenues and profits earned by the Defendants from their misconduct were at the 21 expense of Rambler, and by assignment, Plaintiff.
22 873. Accordingly, Plaintiff, as the assignee of Rambler’s claims against the Defendants, is 23 entitled to a recovery against the Defendants in an amount, to be determined at trial, equal to the
24 benefits and profits the Defendants have unjustly received as a result of their aforementioned actions,
25 which amount is presently believed to be in excess of $750 million.
26
27
28 137 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 138 of 140
1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiff prays for judgment and relief against the Defendants, jointly and 3 severally, as follows:
4 A. Compensatory damages in an amount to be determined at trial but presently believed to be 5 well in excess of $750 million;
6 B. Enhanced damages based on the willfulness of Defendants’ wrongful acts;
7 C. Disgorgement of all profits earned by Defendants through their wrongful acts;
8 D. Punitive damages in an amount to be determined at trial;
9 E. A declaration that Lynwood owns all copyright rights and/or other rights in and to the 10 NGINX Software, NGINX Plus, all of the other Copyrighted Works, and all related business
11 opportunities comprising the NGINX Enterprise;
12 F. A permanent injunction prohibiting Defendants from further infringement of the NGINX 13 Software, NGINX Plus and all of the other Copyrighted Works, and ordering Defendants to destroy
14 all copies of such works made in violation of Plaintiff’s exclusive rights;
15 G. Cancellation of the fraudulent trademarks registered by Defendants;
16 H. A permanent injunction prohibiting Defendants from use of the NGINX trademark, the 17 NGINX (Stylized) trademark, the NGINX PLUS trademark, the NGINX CONTROLLER trademark,
18 the NGINX UNIT trademark, the NGINX APP PROTECT trademark and any other trademark that
19 includes NGINX or any mark confusingly similar therewith;
20 I. A declaration that Lynwood owns the NGINX trademark, the NGINX (Stylized) trademark, 21 the NGINX PLUS trademark, the NGINX CONTROLLER trademark, the NGINX UNIT trademark,
22 the NGINX APP PROTECT trademark and any other trademark that includes NGINX;
23 J. Plaintiff’s Attorneys’ Fees and costs; and
24 K. A grant to Plaintiff of such other and further relief as the Court may deem just and proper. 25
26 27
28 138 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 139 of 140
Dated: June 8, 2020 1 By: /s/ Douglas W. Dal Cielo 2 /s/ Brian M. Affrunti
3 Douglas W. Dal Cielo (CA Bar No. 157109) [email protected] 4 Brian M. Affrunti (CA Bar No. 227072) [email protected] 5 BURKE, WILLIAMS & SORENSEN, LLP 6 60 South Market Street, Suite 1000 San Jose, CA 95113 7 Telephone: (408) 606-6300 Fax: (408) 606-6333 8 Alexander D. Pencu (pro hac vice to be filed) 9 [email protected] 10 Christopher J. Major (pro hac vice to be filed) [email protected] 11 Jeffrey P. Weingart (pro hac vice to be filed) [email protected] 12 MEISTER SEELIG & FEIN LLP 125 Park Avenue, 7th Floor 13 New York, NY 10017 14 Telephone: (212) 655-3500 Fax: (646) 539-3649 15 16 Attorneys for Plaintiff
17
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28 139 COMPLAINT, Case No.
Case 3:20-cv-03778 Document 1 Filed 06/08/20 Page 140 of 140
1 JURY DEMAND 2 Plaintiff demands a trial by jury of all issues so triable pursuant to Rule 38 of the Federal
3 Rules of Civil Procedure.
4 Dated: June 8, 2020 By: /s/ Douglas W. Dal Cielo 5 /s/ Brian M. Affrunti 6 Douglas W. Dal Cielo (CA Bar No. 157109) 7 [email protected] Brian M. Affrunti (CA Bar No. 227072) 8 [email protected] BURKE, WILLIAMS & SORENSEN, LLP 9 60 South Market Street, Suite 1000 10 San Jose, CA 95113 Telephone: (408) 606-6300 11 Fax: (408) 606-6333
12 Alexander D. Pencu (pro hac vice to be filed) [email protected] 13 Christopher J. Major (pro hac vice to be filed) 14 [email protected] Jeffrey P. Weingart (pro hac vice to be filed) 15 [email protected] MEISTER SEELIG & FEIN LLP 16 125 Park Avenue, 7th Floor New York, NY 10017 17 Telephone: (212) 655-3500 18 Fax: (646) 539-3649
19 Attorneys for Plaintiff 20
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27
28 140 COMPLAINT, Case No.
9384\2\7971432.v1
EXHIBIT C PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011) Trademark/Service Mark Application, Principal Register TEAS Plus Application
Serial Number: 85312802 Filing Date: 05/04/2011
NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.
The table below presents the data as entered.
Input Field Entered TEAS Plus YES MARK INFORMATION
*MARK Nginx
*STANDARD CHARACTERS YES
USPTO-GENERATED IMAGE YES
LITERAL ELEMENT Nginx The mark consists of standard characters, without claim to any *MARK STATEMENT particular font, style, size, or color. REGISTER Principal APPLICANT INFORMATION
*OWNER OF MARK Nginx Software Inc.
*STREET 600 Montgomery St 43 floor c/o BV Cap
*CITY San Francisco
*STATE California (Required for U.S. applicants)
*COUNTRY United States
*ZIP/POSTAL CODE 94111 (Required for U.S. applicants only) LEGAL ENTITY INFORMATION
*TYPE CORPORATION
* STATE/COUNTRY OF INCORPORATION Delaware GOODS AND/OR SERVICES AND BASIS INFORMATION
*INTERNATIONAL CLASS 009 Computer software for HTTP and reverse proxy server and IDENTIFICATION a mail proxy serves
*FILING BASIS SECTION 1(a)
FIRST USE ANYWHERE DATE At least as early as 05/01/2002
FIRST USE IN COMMERCE DATE At least as early as 05/01/2004 SPECIMEN \\TICRS\EXPORT11\IMAGEOUT FILE NAME(S) 11\853\128\85312802\xml1\ FTK0003.JPG
SPECIMEN DESCRIPTION print-out from web site ADDITIONAL STATEMENTS SECTION
*TRANSLATION (if applicable)
*TRANSLITERATION (if applicable)
*CLAIMED PRIOR REGISTRATION (if applicable)
*CONSENT (NAME/LIKENESS) (if applicable)
*CONCURRENT USE CLAIM (if applicable) The mark has become distinctive of the goods/services through the applicant's substantially exclusive and continuous use in SECTION 2(f) commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement. ATTORNEY INFORMATION
NAME Leonard Grayver
FIRM NAME Greenberg Whitcombe & Takeuchi LLP
STREET 21515 Hawthorne Blvd Suite 450
CITY Torrance
STATE California
COUNTRY United States
ZIP/POSTAL CODE 90503
PHONE 310-540-2000
FAX 310-540-6609
EMAIL ADDRESS [email protected]
AUTHORIZED TO COMMUNICATE VIA EMAIL Yes CORRESPONDENCE INFORMATION
*NAME Leonard Grayver
FIRM NAME Greenberg Whitcombe & Takeuchi LLP
*STREET 21515 Hawthorne Blvd Suite 450
*CITY Torrance
*STATE California (Required for U.S. applicants)
*COUNTRY United States
*ZIP/POSTAL CODE 90503
PHONE 310-540-2000
FAX 310-540-6609
*EMAIL ADDRESS [email protected] *AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION
NUMBER OF CLASSES 1
FEE PER CLASS 275
*TOTAL FEE PAID 275 SIGNATURE INFORMATION
* SIGNATURE /lgrayver/
* SIGNATORY'S NAME Leonard Grayver
* SIGNATORY'S POSITION Attorney of record, California bar member
* DATE SIGNED 05/04/2011 PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011)
Trademark/Service Mark Application, Principal Register
TEAS Plus Application
Serial Number: 85312802 Filing Date: 05/04/2011 To the Commissioner for Trademarks:
MARK: Nginx (Standard Characters, see mark) The literal element of the mark consists of Nginx. The mark consists of standard characters, without claim to any particular font, style, size, or color.
The applicant, Nginx Software Inc., a corporation of Delaware, having an address of 600 Montgomery St 43 floor c/o BV Cap San Francisco, California 94111 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:
For specific filing basis information for each item, you must view the display within the Input Table. International Class 009: Computer software for HTTP and reverse proxy server and a mail proxy serves
In International Class 009, the mark was first used at least as early as 05/01/2002, and first used in commerce at least as early as 05/01/2004, and is now in use in such commerce. The applicant is submitting one specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n) print-out from web site. Specimen File1
The mark has become distinctive of the goods/services through the applicant's substantially exclusive and continuous use in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement.
The applicant's current Attorney Information: Leonard Grayver of Greenberg Whitcombe & Takeuchi LLP 21515 Hawthorne Blvd Suite 450 Torrance, California 90503 United States
The applicant's current Correspondence Information: Leonard Grayver Greenberg Whitcombe & Takeuchi LLP 21515 Hawthorne Blvd Suite 450 Torrance, California 90503 310-540-2000(phone) 310-540-6609(fax) [email protected] (authorized)
A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es).
Declaration The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.
Signature: /lgrayver/ Date Signed: 05/04/2011 Signatory's Name: Leonard Grayver Signatory's Position: Attorney of record, California bar member
RAM Sale Number: 8514 RAM Accounting Date: 05/05/2011
Serial Number: 85312802 Internet Transmission Date: Wed May 04 23:54:19 EDT 2011 TEAS Stamp: USPTO/FTK-XX.XXX.XXX.XX-2011050423541935 6878-85312802-480cf236193e39d9f889aa9f8e e8476f6a-CC-8514-20110504232503594792
PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011) Trademark/Service Mark Application, Principal Register TEAS Plus Application
Serial Number: 85312806 Filing Date: 05/05/2011
NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.
The table below presents the data as entered.
Input Field Entered TEAS Plus YES MARK INFORMATION \\TICRS\EXPORT11\IMAGEOUT *MARK 11\853\128\85312806\xml1\ FTK0002.JPG
*SPECIAL FORM YES
USPTO-GENERATED IMAGE NO
LITERAL ELEMENT Nginx
*COLOR MARK YES
*COLOR(S) CLAIMED The color(s) green is/are claimed as a feature of the mark. (If applicable)
*DESCRIPTION OF THE MARK The mark consists of graphic representation of the word Nginx (and Color Location, if applicable) with a reverse letter N in green color.
PIXEL COUNT ACCEPTABLE NO
PIXEL COUNT 121 x 32 REGISTER Principal APPLICANT INFORMATION
*OWNER OF MARK Nginx Software Inc.
*STREET 600 Montgomery St 43 Fl c/o BV Capital
*CITY San Francisco
*STATE California (Required for U.S. applicants)
*COUNTRY United States
*ZIP/POSTAL CODE 94111 (Required for U.S. applicants only) LEGAL ENTITY INFORMATION
*TYPE CORPORATION
* STATE/COUNTRY OF INCORPORATION Delaware GOODS AND/OR SERVICES AND BASIS INFORMATION *INTERNATIONAL CLASS 009 Computer software for HTTP and reverse proxy server and IDENTIFICATION a mail proxy server
*FILING BASIS SECTION 1(a)
FIRST USE ANYWHERE DATE At least as early as 05/01/2002
FIRST USE IN COMMERCE DATE At least as early as 05/01/2004
SPECIMEN \\TICRS\EXPORT11\IMAGEOUT FILE NAME(S) 11\853\128\85312806\xml1\ FTK0003.JPG
SPECIMEN DESCRIPTION web site print out ADDITIONAL STATEMENTS SECTION
*TRANSLATION (if applicable)
*TRANSLITERATION (if applicable)
*CLAIMED PRIOR REGISTRATION (if applicable)
*CONSENT (NAME/LIKENESS) (if applicable)
*CONCURRENT USE CLAIM (if applicable) ATTORNEY INFORMATION
NAME Leonard Grayver
FIRM NAME Greenberg Whitcombe Takeuchi LLP
STREET 21515 Hawthorne Blvd Suite 450
CITY Torrance
STATE California
COUNTRY United States
ZIP/POSTAL CODE 90503
PHONE 310-540-2000
FAX 310-540-6609
EMAIL ADDRESS [email protected]
AUTHORIZED TO COMMUNICATE VIA EMAIL Yes CORRESPONDENCE INFORMATION
*NAME Leonard Grayver
FIRM NAME Greenberg Whitcombe Takeuchi LLP
*STREET 21515 Hawthorne Blvd Suite 450
*CITY Torrance
*STATE California (Required for U.S. applicants)
*COUNTRY United States
*ZIP/POSTAL CODE 90503
PHONE 310-540-2000 FAX 310-540-6609
*EMAIL ADDRESS [email protected]
*AUTHORIZED TO COMMUNICATE VIA EMAIL Yes FEE INFORMATION
NUMBER OF CLASSES 1
FEE PER CLASS 275
*TOTAL FEE PAID 275 SIGNATURE INFORMATION
* SIGNATURE /lgrayver/
* SIGNATORY'S NAME Leonard Grayver
* SIGNATORY'S POSITION Attorney of record, California bar member
* DATE SIGNED 05/04/2011 PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011)
Trademark/Service Mark Application, Principal Register
TEAS Plus Application
Serial Number: 85312806 Filing Date: 05/05/2011 To the Commissioner for Trademarks:
MARK: Nginx (stylized and/or with design, see mark)
The literal element of the mark consists of Nginx. The color(s) green is/are claimed as a feature of the mark. The mark consists of graphic representation of the word Nginx with a reverse letter N in green color. The applicant, Nginx Software Inc., a corporation of Delaware, having an address of 600 Montgomery St 43 Fl c/o BV Capital San Francisco, California 94111 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:
For specific filing basis information for each item, you must view the display within the Input Table. International Class 009: Computer software for HTTP and reverse proxy server and a mail proxy server
In International Class 009, the mark was first used at least as early as 05/01/2002, and first used in commerce at least as early as 05/01/2004, and is now in use in such commerce. The applicant is submitting one specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n) web site print out. Specimen File1
The applicant's current Attorney Information: Leonard Grayver of Greenberg Whitcombe Takeuchi LLP 21515 Hawthorne Blvd Suite 450 Torrance, California 90503 United States
The applicant's current Correspondence Information: Leonard Grayver Greenberg Whitcombe Takeuchi LLP 21515 Hawthorne Blvd Suite 450 Torrance, California 90503 310-540-2000(phone) 310-540-6609(fax) [email protected] (authorized)
A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es).
Declaration The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.
Signature: /lgrayver/ Date Signed: 05/04/2011 Signatory's Name: Leonard Grayver Signatory's Position: Attorney of record, California bar member
RAM Sale Number: 8528 RAM Accounting Date: 05/05/2011
Serial Number: 85312806 Internet Transmission Date: Thu May 05 00:07:27 EDT 2011 TEAS Stamp: USPTO/FTK-XX.XXX.XXX.XX-2011050500072769 1123-85312806-480364b371fb4f40255b959e8c 6da9e419-CC-8528-20110504235649729315
EXHIBIT D Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1553 (Rev 09/2005) OMB No. 0651-0054 (Exp 12/31/2020) Trademark/Service Mark Statement of Use (15 U.S.C. Section 1051(d))
The table below presents the data as entered.
Input Field Entered SERIAL 87487184 NUMBER LAW OFFICE LAW OFFICE 104 ASSIGNED EXTENSION OF NO USE MARK SECTION
MARK https://tmng-al.uspto.gov/resting2/api/img/87487184/large
LITERAL NGINX ELEMENT
STANDARD YES CHARACTERS
USPTO- GENERATED YES IMAGE
MARK STATEMENT The mark consists of standard characters, without claim to any particular font style, size or color. MISCELLANEOUS STATEMENTS SECTION
MISCELLANEOUS Assignment of interest recorded 12/03/2019 STATEMENT OWNER SECTION (current)
NAME Nginx, Inc.
INTERNAL Wickhams Cay I, PO Box 3140 ADDRESS
STREET Commerce House
CITY Road Town, Tortola
ZIP/POSTAL CODE VG1110
COUNTRY British Virgin Islands OWNER SECTION (proposed)
NAME F5 Networks, Inc.
STREET 801 5th Ave
CITY Seattle
STATE Washington
ZIP/POSTAL CODE 98104-1663
COUNTRY United States ATTORNEY SECTION (current)
NAME Brian E. Lewis
ATTORNEY BAR MEMBERSHIP NOT SPECIFIED NUMBER
YEAR OF NOT SPECIFIED ADMISSION
U.S. STATE/ COMMONWEALTH/ NOT SPECIFIED TERRITORY
FIRM NAME ROSEN LEWIS, PLLC
STREET 120 Lakeside Ave Suite 100
CITY Seattle
STATE Washington
POSTAL CODE 98122
COUNTRY United States
PHONE 2062049660
EMAIL [email protected]
AUTHORIZED TO COMMUNICATE Yes VIA EMAIL ATTORNEY SECTION (proposed)
NAME Brian E. Lewis
ATTORNEY BAR MEMBERSHIP XXX NUMBER
YEAR OF XXXX ADMISSION
U.S. STATE/ COMMONWEALTH/ XX TERRITORY
FIRM NAME ROSEN LEWIS, PLLC
STREET 120 Lakeside Ave Suite 100
CITY Seattle
STATE Washington
POSTAL CODE 98122
COUNTRY United States
PHONE 2062049660
EMAIL [email protected]
AUTHORIZED TO COMMUNICATE Yes VIA EMAIL
OTHER APPOINTED Eugene Beliy ATTORNEY CORRESPONDENCE SECTION (current) NAME Brian E. Lewis
FIRM NAME ROSEN LEWIS, PLLC
STREET 120 Lakeside Ave Suite 100
CITY Seattle
STATE Washington
POSTAL CODE 98122
COUNTRY United States
PHONE 2062049660
EMAIL [email protected]
AUTHORIZED TO COMMUNICATE Yes VIA EMAIL CORRESPONDENCE SECTION (proposed)
NAME Brian E. Lewis
FIRM NAME ROSEN LEWIS, PLLC
STREET 120 Lakeside Ave Suite 100
CITY Seattle
STATE Washington
POSTAL CODE 98122
COUNTRY United States
PHONE 2062049660
EMAIL [email protected]
AUTHORIZED TO COMMUNICATE Yes VIA EMAIL GOODS AND/OR SERVICES SECTION
INTERNATIONAL 009 CLASS Server software for use in web serving, reverse proxying, caching, load balancing, application delivery and media streaming; computer software for controlling and managing web servers; computer software for use in HTTP and CURRENT reverse proxy servers and mail proxy servers, namely, for controlling and managing server applications in the IDENTIFICATION nature of http and reverse proxy servers and mail proxy servers; software for providing data analysis, analytics, and reporting of information concerning web server performance; computer hardware; parts and fittings for all of the aforesaid
GOODS OR KEEP ALL LISTED SERVICES
FIRST USE 12/14/2009 ANYWHERE DATE
FIRST USE IN 04/12/2011 COMMERCE DATE
SPECIMEN FILE NAME(S)
ORIGINAL PDF SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_Specimen_AWS_offering_NGINX_software.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0002.JPG (1 page) ORIGINAL PDF SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_Specimen_Product_Solutions_1.16.45_PM.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0003.JPG (1 page)
ORIGINAL PDF SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Product_Suite_Visualization.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0004.JPG (1 page)
ORIGINAL PDF SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Support_Levels.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0005.JPG (1 page)
ORIGINAL PDF SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Release_Date.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0006.JPG (1 page)
SPECIMEN specimens are screenshots of the software available on AWS.com, and screenshots on the NGINX website of the DESCRIPTION product description, offerings, overview, and release date.
INTERNATIONAL 042 CLASS Software as a service (SaaS) featuring software for use in web serving, reverse proxying, caching, load balancing, application delivery, media streaming and controlling and managing web servers; platform as a service featuring computer platforms for web serving, reverse proxying, caching, load balancing, application delivery and media streaming; Software as a service (SaaS) services featuring software for use in HTTP and reverse proxy servers and CURRENT IDENTIFICATION mail proxy servers, namely, for controlling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; computer services, namely, providing web servers and load balancing servers; software as a service (SaaS) services featuring software for providing data analysis, analytics, and reporting of information concerning web server performance; design and development of computer hardware and software; information, consultancy and advisory services relating to all of the aforesaid
GOODS OR KEEP ALL LISTED SERVICES
FIRST USE 12/14/2009 ANYWHERE DATE
FIRST USE IN 04/12/2011 COMMERCE DATE
SPECIMEN FILE NAME(S)
ORIGINAL PDF SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Product_Suite_Visualization.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0007.JPG (1 page)
ORIGINAL PDF SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Release_Date.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0008.JPG (1 page)
ORIGINAL PDF SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Support_Levels.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0009.JPG (1 page) ORIGINAL PDF SPN1-7325413218-20191211160903503099_._NGINX_US_42_Specimen_Professional_Services.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\874\871\87487184\xml21\SOU0010.JPG (1 page)
SPECIMEN specimens are screenshots on the NGINX website of the product description, offerings, overview, release date, and DESCRIPTION professional services offered..
REQUEST TO NO DIVIDE PAYMENT SECTION
NUMBER OF 2 CLASSES IN USE
SUBTOTAL AMOUNT 200 [ALLEGATION OF USE FEE]
TOTAL AMOUNT 200 SIGNATURE SECTION
DECLARATION /EB/ SIGNATURE
SIGNATORY'S Eugene Beliy NAME
SIGNATORY'S Of counsel, Rosen Lewis PLLC, Washington Bar Member POSITION
DATE SIGNED 12/11/2019
SIGNATORY'S 206 204 9660 PHONE NUMBER FILING INFORMATION
SUBMIT DATE Wed Dec 11 17:24:27 EST 2019 USPTO/SOU-XX.XXX.XXX.XX-2 0191211172427861252-87487 184-7007f276cd2ad79a4bc48 TEAS STAMP d1d2607a148be2ced14b4db24 861c7bd28ec20db183234-CC- 24245643-2019121116090350 3099 Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1553 (Rev 09/2005) OMB No. 0651-0054 (Exp 12/31/2020)
Trademark/Service Mark Statement of Use (15 U.S.C. Section 1051(d)) To the Commissioner for Trademarks: MARK: NGINX(Standard Characters, see https://tmng-al.uspto.gov/resting2/api/img/87487184/large) SERIAL NUMBER: 87487184
The applicant, F5 Networks, Inc., having an address of 801 5th Ave Seattle, Washington 98104-1663 United States is submitting the following allegation of use information:
For International Class 009: Current identification: Server software for use in web serving, reverse proxying, caching, load balancing, application delivery and media streaming; computer software for controlling and managing web servers; computer software for use in HTTP and reverse proxy servers and mail proxy servers, namely, for controlling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; software for providing data analysis, analytics, and reporting of information concerning web server performance; computer hardware; parts and fittings for all of the aforesaid
The mark is in use in commerce on or in connection with all of the goods/services, or to indicate membership in the collective organization listed in the application or Notice of Allowance or as subsequently modified for this specific class.
The mark was first used by the applicant, or the applicant's related company, licensee, or predecessor in interest at least as early as 12/14/2009, and first used in commerce at least as early as 04/12/2011, and is now in use in such commerce. The applicant is submitting one specimen for the class showing the mark as used in commerce on or in connection with any item in the class, consisting of a(n) specimens are screenshots of the software available on AWS.com, and screenshots on the NGINX website of the product description, offerings, overview, and release date..
Original PDF file: SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_Specimen_AWS_offering_NGINX_software.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_Specimen_Product_Solutions_1.16.45_PM.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Product_Suite_Visualization.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Support_Levels.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN0-1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Release_Date.pdf Converted PDF file(s) (1 page) Specimen File1
For International Class 042: Current identification: Software as a service (SaaS) featuring software for use in web serving, reverse proxying, caching, load balancing, application delivery, media streaming and controlling and managing web servers; platform as a service featuring computer platforms for web serving, reverse proxying, caching, load balancing, application delivery and media streaming; Software as a service (SaaS) services featuring software for use in HTTP and reverse proxy servers and mail proxy servers, namely, for controlling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; computer services, namely, providing web servers and load balancing servers; software as a service (SaaS) services featuring software for providing data analysis, analytics, and reporting of information concerning web server performance; design and development of computer hardware and software; information, consultancy and advisory services relating to all of the aforesaid
The mark is in use in commerce on or in connection with all of the goods/services, or to indicate membership in the collective organization listed in the application or Notice of Allowance or as subsequently modified for this specific class.
The mark was first used by the applicant, or the applicant's related company, licensee, or predecessor in interest at least as early as 12/14/2009, and first used in commerce at least as early as 04/12/2011, and is now in use in such commerce. The applicant is submitting one specimen for the class showing the mark as used in commerce on or in connection with any item in the class, consisting of a(n) specimens are screenshots on the NGINX website of the product description, offerings, overview, release date, and professional services offered...
Original PDF file: SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Product_Suite_Visualization.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Release_Date.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN1-7325413218-20191211160903503099_._NGINX_US_9_42_Specimen_Support_Levels.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPN1-7325413218-20191211160903503099_._NGINX_US_42_Specimen_Professional_Services.pdf Converted PDF file(s) (1 page) Specimen File1
The applicant is not filing a Request to Divide with this Allegation of Use form.
MISCELLANEOUS STATEMENTS Assignment of interest recorded 12/03/2019
The applicant's current attorney information: Brian E. Lewis. Brian E. Lewis of ROSEN LEWIS, PLLC, is located at
120 Lakeside Ave Suite 100 Seattle, Washington 98122 United States
The phone number is 2062049660.
The email address is [email protected]
The applicants proposed attorney information: Brian E. Lewis. Other appointed attorneys are Eugene Beliy. Brian E. Lewis of ROSEN LEWIS, PLLC, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, and the attorney(s) is located at
120 Lakeside Ave Suite 100 Seattle, Washington 98122 United States
The phone number is 2062049660.
The email address is [email protected]
Brian E. Lewis submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory. The applicant's current correspondence information: Brian E. Lewis. Brian E. Lewis of ROSEN LEWIS, PLLC, is located at
120 Lakeside Ave Suite 100 Seattle, Washington 98122 United States
The phone number is 2062049660.
The email address is [email protected]
The applicants proposed correspondence information: Brian E. Lewis. Brian E. Lewis of ROSEN LEWIS, PLLC, is located at
120 Lakeside Ave Suite 100 Seattle, Washington 98122 United States
The phone number is 2062049660.
The email address is [email protected]
A fee payment in the amount of $200 will be submitted with the form, representing payment for the allegation of use for 2 classes.
Declaration
The signatory believes that the applicant is the owner of the mark sought to be registered. For a trademark or service mark application, the mark is in use in commerce on or in connection with all the goods/services in the application or notice of allowance, or as subsequently modified. For a collective trademark, collective service mark, collective membership mark application, the applicant is exercising legitimate control over the use of the mark in commerce by members on or in connection with all the goods/services/collective membership organization in the application or notice of allowance, or as subsequently modified. For a certification mark application, the applicant is exercising legitimate control over the use of the mark in commerce by authorized users on or in connection with the all goods/services in the application or notice of allowance, or as subsequently modified, and the applicant is not engaged in the production or marketing of the goods/services to which the mark is applied, except to advertise or promote recognition of the certification program or of the goods/services that meet the certification standards of the applicant. The specimen(s) shows the mark as used on or in connection with the goods/services/collective membership organization in commerce. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, authorized users, members, and/or concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services/collective membership organization of such other persons, to cause confusion or mistake, or to deceive. To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary support. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true.
Signature: /EB/ Date Signed: 12/11/2019 Signatory's Name: Eugene Beliy Signatory's Position: Of counsel, Rosen Lewis PLLC, Washington Bar Member Signatory's Phone: 206 204 9660
Mailing Address: ROSEN LEWIS, PLLC
120 Lakeside Ave Suite 100 Seattle, Washington 98122
RAM Sale Number: 87487184 RAM Accounting Date: 12/11/2019
Serial Number: 87487184 Internet Transmission Date: Wed Dec 11 17:24:27 EST 2019 TEAS Stamp: USPTO/SOU-XX.XXX.XXX.XX-2019121117242786 1252-87487184-7007f276cd2ad79a4bc48d1d26 07a148be2ced14b4db24861c7bd28ec20db18323 4-CC-24245643-20191211160903503099
EXHIBIT E Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2021) Trademark/Service Mark Application, Principal Register
Serial Number: 88778862 Filing Date: 01/30/2020
The table below presents the data as entered.
Input Field Entered SERIAL 88778862 NUMBER MARK INFORMATION
*MARK \\TICRS\EXPORT17\IMAGEOUT 17\887\788\88778862\xml1\ RFA0002.JPG
SPECIAL FORM YES
USPTO- GENERATED NO IMAGE
LITERAL N ELEMENT
COLOR MARK YES
COLOR(S) CLAIMED The color(s) green is/are claimed as a feature of the mark. (If applicable)
*DESCRIPTION OF THE MARK The mark consists of white N in green hexagon. (and Color Location, if applicable)
PIXEL COUNT YES ACCEPTABLE
PIXEL COUNT 735 x 400 REGISTER Principal APPLICANT INFORMATION
*OWNER OF MARK F5 Networks, Inc.
*STREET 801 5th Ave
*CITY Seattle
*STATE (Required for U.S. Washington applicants)
*COUNTRY United States
*ZIP/POSTAL CODE (Required for U.S. and certain 98104-1660 international addresses) LEGAL ENTITY INFORMATION
TYPE corporation
STATE/COUNTRY OF Washington INCORPORATION GOODS AND/OR SERVICES AND BASIS INFORMATION
INTERNATIONAL 009 CLASS Server software for use in web serving, reverse proxying, caching, load balancing, application delivery and media streaming; computer software for controlling and managing web servers; computer software for use in HTTP and reverse proxy servers and mail proxy *IDENTIFICATION servers, namely, for controlling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; software for providing data analysis, analytics, and reporting of information concerning web server performance; computer hardware; parts and fittings for all of the aforesaid
FILING BASIS SECTION 1(a)
FIRST USE At least as early as 09/22/2017 ANYWHERE DATE
FIRST USE IN At least as early as 09/22/2017 COMMERCE DATE
SPECIMEN FILE NAME(S)
ORIGINAL PDF SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Acquisition_QA.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\887\788\88778862\xml1\RFA0003.JPG (1 page)
ORIGINAL PDF SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_User_Interface.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\887\788\88778862\xml1\RFA0004.JPG (1 page)
ORIGINAL PDF SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_N_Installation.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\887\788\88778862\xml1\RFA0005.JPG (1 page)
ORIGINAL PDF SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Planet_N.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\887\788\88778862\xml1\RFA0006.JPG (1 page)
ORIGINAL PDF SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Video_Guide.pdf FILE
CONVERTED PDF FILE(S) \\TICRS\EXPORT17\IMAGEOUT17\887\788\88778862\xml1\RFA0007.JPG (1 page)
SPECIMEN Specimens are images of the Nginx.com website showing use of the mark for server software, with versions and installation instructions, DESCRIPTION and an image of the User Interface with the mark in the upper left corner. ATTORNEY INFORMATION
NAME Eugene Beliy
ATTORNEY BAR MEMBERSHIP XXX NUMBER
YEAR OF XXXX ADMISSION
U.S. STATE/ COMMONWEALTH/ XX TERRITORY FIRM NAME Rosen Lewis PLLC
STREET 120 Lakeside Avenue, Suite 100
CITY Seattle
STATE Washington
COUNTRY United States
ZIP/POSTAL CODE 98122
PHONE 206-204-9660
EMAIL ADDRESS [email protected]
AUTHORIZED TO COMMUNICATE Yes VIA EMAIL CORRESPONDENCE INFORMATION
NAME Eugene Beliy
FIRM NAME Rosen Lewis PLLC
STREET 120 Lakeside Avenue, Suite 100
CITY Seattle
STATE Washington
COUNTRY United States
ZIP/POSTAL CODE 98122
PHONE 206-204-9660
*EMAIL ADDRESS [email protected]
*AUTHORIZED TO COMMUNICATE Yes VIA EMAIL FEE INFORMATION
APPLICATION TEAS RF FILING OPTION
NUMBER OF 1 CLASSES
APPLICATION FOR REGISTRATION 275 PER CLASS
*TOTAL FEE DUE 275
*TOTAL FEE PAID 275 SIGNATURE INFORMATION
SIGNATURE /EB/
SIGNATORY'S Eugene Beliy NAME
SIGNATORY'S Attorney of Record, Washington Bar member POSITION
SIGNATORY'S 206-204-9660 PHONE NUMBER
DATE SIGNED 01/30/2020
Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number. PTO Form 1478 (Rev 09/2006) OMB No. 0651-0009 (Exp 02/28/2021)
Trademark/Service Mark Application, Principal Register
Serial Number: 88778862 Filing Date: 01/30/2020 To the Commissioner for Trademarks:
MARK: N (stylized and/or with design, see mark) The literal element of the mark consists of N. The color(s) green is/are claimed as a feature of the mark. The mark consists of white N in green hexagon. The applicant, F5 Networks, Inc., a corporation of Washington, having an address of 801 5th Ave Seattle, Washington 98104-1660 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:
International Class 009: Server software for use in web serving, reverse proxying, caching, load balancing, application delivery and media streaming; computer software for controlling and managing web servers; computer software for use in HTTP and reverse proxy servers and mail proxy servers, namely, for controlling and managing server applications in the nature of http and reverse proxy servers and mail proxy servers; software for providing data analysis, analytics, and reporting of information concerning web server performance; computer hardware; parts and fittings for all of the aforesaid
In International Class 009, the mark was first used by the applicant or the applicant's related company or licensee or predecessor in interest at least as early as 09/22/2017, and first used in commerce at least as early as 09/22/2017, and is now in use in such commerce. The applicant is submitting one(or more) specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods/services, consisting of a(n) Specimens are images of the Nginx.com website showing use of the mark for server software, with versions and installation instructions, and an image of the User Interface with the mark in the upper left corner..
Original PDF file: SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Acquisition_QA.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_User_Interface.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_N_Installation.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Planet_N.pdf Converted PDF file(s) (1 page) Specimen File1 Original PDF file: SPE0-2601600818051c0994350f7804632b-20200129135841045185_._N__and_Green_Design__US_9_Specimen_Video_Guide.pdf Converted PDF file(s) (1 page) Specimen File1
The applicant hereby appoints Eugene Beliy. Eugene Beliy of Rosen Lewis PLLC, is a member of the XX bar, admitted to the bar in XXXX, bar membership no. XXX, is located at 120 Lakeside Avenue, Suite 100 Seattle, Washington 98122 United States 206-204-9660(phone) [email protected] (authorized).
Eugene Beliy submitted the following statement: The attorney of record is an active member in good standing of the bar of the highest court of a U.S. state, the District of Columbia, or any U.S. Commonwealth or territory.
The applicant's current Correspondence Information: Eugene Beliy Rosen Lewis PLLC 120 Lakeside Avenue, Suite 100 Seattle, Washington 98122 206-204-9660(phone) [email protected] (authorized).
Email Authorization: I authorize the USPTO to send email correspondence concerning the application to the applicant, the applicant's attorney, or the applicant's domestic representative at the email address provided in this application. I understand that a valid email address must be maintained and that the applicant or the applicant's attorney must file the relevant subsequent application-related submissions via the Trademark Electronic Application System (TEAS). Failure to do so will result in the loss of TEAS Reduced Fee status and a requirement to submit an additional processing fee of $125 per international class of goods/services.
A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es).
Declaration
Basis: If the applicant is filing the application based on use in commerce under 15 U.S.C. § 1051(a):
The signatory believes that the applicant is the owner of the trademark/service mark sought to be registered; The mark is in use in commerce on or in connection with the goods/services in the application; The specimen(s) shows the mark as used on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate.
And/Or If the applicant is filing the application based on an intent to use the mark in commerce under 15 U.S.C. § 1051(b), § 1126(d), and/or § 1126(e):
The signatory believes that the applicant is entitled to use the mark in commerce; The applicant has a bona fide intention to use the mark in commerce on or in connection with the goods/services in the application; and To the best of the signatory's knowledge and belief, the facts recited in the application are accurate. To the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive. To the best of the signatory's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions made above have evidentiary support. The signatory being warned that willful false statements and the like are punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, and that such willful false statements and the like may jeopardize the validity of the application or submission or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all statements made on information and belief are believed to be true. Declaration Signature
Signature: /EB/ Date: 01/30/2020 Signatory's Name: Eugene Beliy Signatory's Position: Attorney of Record, Washington Bar member Payment Sale Number: 88778862 Payment Accounting Date: 01/30/2020
Serial Number: 88778862 Internet Transmission Date: Thu Jan 30 13:11:16 EST 2020 TEAS Stamp: USPTO/BAS-XXXX:XXX:XXXX:XXXX:XXXX:XXXX:X XXX:XXXX-20200130131116258680-88778862-7 002271842f69427aa0748fe3b0b3f2ccf17eaab4 e1e5273cb283eecb77caf396e5-CC-11149229-2 0200130125737521733