Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 1 of 35 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION § TRILLER, INC., § Case No. 6:20cv693 § Plaintiff, § vs. § JURY TRIAL DEMANDED § BYTEDANCE LTD., BYTEDANCE INC., § TIKTOK INC., and TIKTOK PTE. LTD. § § Defendants. § FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT Triller, Inc. (“Triller”) files its First Amended Complaint in this patent infringement action against Defendants ByteDance Ltd. (“BDL”), ByteDance Inc. (“BDI”), TikTok Inc. (“TTI”), and TikTok Pte. Ltd. (“TTPL”), sometimes collectively referred to hereinafter as “Defendants.” NATURE OF THE CLAIMS 1. This is an action for patent infringement. Triller alleges that BDL, BDI, TTI, and TTPL infringe U.S. Patent No. 9,691,429 titled “Systems and methods for creating music videos synchronized with an audio track” (“the ’429 Patent,” attached as Exh. 1) (the “Asserted Patent”). 2. Triller is the developer and distributor of the innovative Triller social video platform application for iOS and Android. The Triller application is a leading entertainment platform built for creators in the social video community. The Triller application allows its users to create and share their own music video creations; its platform is built around innovative technology and intellectual property that provides users with the ability to create flawless, synchronized videos and to share those videos with other users in just seconds. Triller has invested enormous time and resources building its social platform and took particular care to protect its 1 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 2 of 35 intellectual property. Examples of Triller’s innovative platform and social video interface are reproduced below: • • • Source: https://apps.apple.com/us/app/triller-social-video-platform/id994905763. 3. BDL, BDI, TTI, and TTPL directly and indirectly infringe the Asserted Patent by making, using, offering for sale, selling, importing, and/or inducing others to use the popular iOS and Android software application known as the “TikTok” app. Source: https://apps.apple.com/lc/app/tiktok-make-your-day/id835599320 2 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 3 of 35 THE PARTIES 4. Plaintiff Triller, Inc. is a Delaware Corporation with offices in Los Angeles at 2121 Avenue of the Stars, Suite 2320, Los Angeles, CA 90067. Triller is the owner of the ’429 Patent. 5. On information and belief, BDL is a Cayman Islands corporation. 6. On information and belief, BDI is a Delaware corporation. 7. On information and belief, TTI is a California corporation. 8. On information and belief, TTPL is a Singapore corporation. THE RELATIONSHIPS AMONG THE DEFENDANTS, THE TIKTOK APP, TIKTOK USERS, AND THIS DISTRICT 9. BDL is the ultimate parent and owner of TTI, BDI, and TTPL.1 10. On information and belief, BDL controls the majority of the shares or other ownership units of TTI, BDI, and TTPL and controls or attempts to control the activities of each of them. 11. On information and belief, BDL shares common officers and/or directors with TTI. For example, Vanessa Pappas has testified that she is the “head of TikTok, Inc. and interim head of the global TikTok business for ByteDance Ltd.,”2 and purports to speak on behalf of TTI and BDL. Roland Cloutier has testified that he is the Global Chief Security Officer for TTI and that he provides cyber risk and data security support for both TTI and BDL, and purports to speak for 1 Exh. 2, https://www.bytedance.com/en/ 2 Exh. 3, Declaration of Vanessa Pappas, ¶ 1, in TikTok Inc. and ByteDance Ltd. v. Donald J. Trump and Wilbur L. Ross, Jr., Civil Case No. 20-cv-2658, U.S. District Court for the District of Columbia (hereinafter the “DC Litigation”), Dkt No. 15-3. 3 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 4 of 35 both.3 Erich Andersen is the Global General Counsel for BDL and TTI.4 On information and belief, BDL’s founder, Zhang Yiming is an officer or director, directly or through a surrogate, of each of the Defendants. On information and belief, Defendants share additional officers and employees. 12. BDL developed the TikTok app and operates and controls the TikTok app in the United States through subsidiaries and affiliates such as TTI, BDI, and TTPL.5 13. BDL operates the TikTok app throughout the United States, including within this District.6 14. On information and belief, BDL controls the general policies and administration of TTI, BDI, and TTPL. 15. On information and belief, TTI, BDI, and/or TTPL are alter egos of BDL. 16. BDL is the owner of a number of U.S. trademark registrations and applications, including, but not limited to, registrations nos. 6069518, 5981213, 5981212, 5653614 and 5974902 and applications serial nos. 88386254, 88386243, and 88260950. All of these registrations and applications were filed in the name of BDL, all include variants of the “TikTok” name, and all claim use in commerce in the United States by BDL or by “[BDL’s] related company or licensee . .”7 17. TTI, BDI, and TTPL all use the TikTok marks as agents for BDL in the 3 Exh. 4, Declaration of Roland Cloutier, Dkt No. 15-2, ¶¶ 1-3 from DC Litigation. Among other things, Mr. Cloutier testified that BDL personnel provide TTI engineering functions that allow BDL personnel to access encrypted TikTok user data. Id. at ¶¶ 10, 14. 4 Exh. 5, https://www.linkedin.com/in/erich-andersen-b001ba84/ 5 Exh. 6, Complaint, TikTok Inc. and ByteDance Ltd. v. Donald J. Trump et al., Civil Case No. 1:20-cv-2658, Dkt No. 1, ¶¶ 13, 20. See, also, https://support.tiktok.com/en/using-tiktok. 6 Id. ¶ 1 (“TikTok [is] a mobile software application that 100 million Americans use”), ¶ 13. 7 The registrations are attached hereto as Exhs. 7-11 and the applications are attached as Exhs. 12-14. 4 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 5 of 35 manufacture, sale, offer for sale, and/or use of the TikTok app and in the inducement of others to use the TikTok app, including in this District. 18. Through its agents TTI, BDI, and TTPL, BDL actively encourages and induces users to download and use the TikTok app according to instructions for such use made available to users by Defendants. 19. The TikTok app has been widely distributed in this District by BDL through its agents TTI and TTPL using the Apple and Android App stores. For example, in July 2020, Baylor University announced that it had a TikTok account:8 20. In July 2020, San Antonio Magazine reported on a number of local teens who have become famous using TikTok.9 On September 1, 2020, MY SA reported on “5 TikTok accounts 8 Exh. 15 https://www2.baylor.edu/baylorproud/2020/07/introducing-baylors-tiktok-account-a- new-fun-way-to-engage-with-future-bears/. 9 Exh. 16 https://www.sanantoniomag.com/local-teens-seek-stardom-in-tiktok/. 5 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 6 of 35 to follow for San Antonio flavor.”10 Use of the TikTok app in this District is extensive.11 21. Use of the TikTok app in this District constitutes direct infringement of one or more of the claims of the ’429 patent. 22. TTI operates the TikTok app in the United States, including within this District.12 23. On July 8, 2020, the Apple App Store listed TTI as the seller of the TikTok app:13 10 Exh. 17, https://www.mysanantonio.com/guidetosa11/slideshow/5-local-TikTok-accounts-to- follow-for-SA-flavor-207992.php. 11 Exh. 18, https://allfamous.org/people/andre-swilley-19980516.html; Exh. 19, https://allfamous.org/people/owen-bodnar-20030729.html; Exh. 20, https://allfamous.org/people/damnitsriley-19971110.html; Exh. 21, https://allfamous.org/people/josh-horton-19900524.html; Exh. 22, https://allfamous.org/people/madison-harrelson-20010205.html; Exh. 23, https://allfamous.org/people/demetri-garcia-20001205.html. 12 Exh. 6, Complaint in DC Litigation, Dkt. No. 1, ¶¶ 1, 20. 13 https://web.archive.org/web/20200708064126if_/https://apps.apple.com/lc/app/tiktok-make- your-day/id835599320 6 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 7 of 35 24. Clicking on the “Privacy Policy” link on the July 8, 2020 archive.org copy of the TikTok page on the Apple App Store” brings up a page stating that the TikTok app is provided and controlled by TTI and that references to “TikTok” are references to TTI:14 14 https://web.archive.org/web/20200708054104if_/https://www.tiktok.com/legal/privacy- policy?lang=en 7 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 8 of 35 25. On the same page as the “Privacy Policy” link, there is a link entitled “Terms of Service.” Clicking on the “Terms of Service” link brings up another page which confirms that references to “TikTok” are references to TTI:15 26. The Terms of Service further provide that the Terms “form a legally binding agreement between you and [TTI],” that the user can access the TikTok app only in compliance 15 https://web.archive.org/web/20200708054107if_/https://www.tiktok.com/legal/terms-of- use?lang=en 8 Case 6:20-cv-00693-ADA Document 32 Filed 11/24/20 Page 9 of 35 with the Terms of Service, and that by using the TikTok app the user agrees to the Terms of Service. The Terms of Service expressly grant the user the right to access and use the TikTok app.