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COMPLAINT OF PLAINTIFF XTIME

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Calvin L. Litsey (SBN 289659)

Calvin.Litsey@FaegreBD.com

Helen Chacon (SBN 293067)

Helen.Chacon@FaegreBD.com

FAEGRE BAKER DANIELS LLP

1950 University Avenue, Suite 450

East Palo Alto, California 94303

Phone: (650) 324-6700 

Fax: (650) 324-6701

Joel D. Sayres (SBN 223399)

Joel.Sayres@FaegreBD.com 

FAEGRE BAKER DANIELS LLP

3200 Wells Fargo Center 

1700 Lincoln Street

Denver, CO 80203

Phone: (303) 607-3500

Fax: (303) 607-3600

Attorneys for Plaintiff Xtime, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Xtime, Inc.,

Plaintiff,

vs.

Mobile Productivity, LLC d/b/a 

AutoPoint,

Defendant.

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Case No. 3:17-cv-96

COMPLAINT

Demand for Jury Trial

For its Complaint against Defendant Mobile Productivity, LLC d/b/a 

AutoPoint (“AutoPoint”), Plaintiff Xtime, Inc. (“Xtime”) states and alleges as 

follows:

THE PARTIES

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COMPLAINT OF PLAINTIFF XTIME

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1. Plaintiff Xtime is a California corporation with its principal place of 

business in Redwood City, California.

2. Defendant AutoPoint is, on information and belief, a Nevada limited 

liability company with its principal place of business in South Jordan, Utah.

JURISDICTION AND VENUE

3. This is an action for federal trademark and service mark infringement 

and false designation of origin under the provisions of the Lanham Act, 15 U.S.C. 

§§ 1051 et seq., and for unfair and deceptive trade practices under California 

Business and Professions Code §§ 17200 and 17500.

4. This Court has subject matter jurisdiction over the Lanham Act claims 

pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338(a), and over the 

state law claims pursuant to 28 U.S.C. §§ 1338(b) and 1367.

5. The exercise of in personam jurisdiction over Defendant AutoPoint 

comports with the laws of the State of California and the constitutional 

requirements of due process at least because AutoPoint is, on information and 

belief, advertising, offering for sale, and providing services under the Infringing 

Mark (as hereafter defined) in California and to California residents, thereby 

engaging in wrongful conduct in California. In addition, AutoPoint engaged in this 

wrongful conduct intentionally, with knowledge that it would cause harm to Xtime 

in California and is in fact causing such harm.

6. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 

(c) and 1400(a) because AutoPoint is subject to personal jurisdiction in this 

District, resides in this District, and a substantial part of the events giving rise to 

the asserted claims occurred in this District. 

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COMPLAINT OF PLAINTIFF XTIME

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GENERAL ALLEGATIONS

Xtime and its Infinity Marks

7. Plaintiff Xtime is one of this country’s leading providers of software 

services for the motor vehicle industry, including software services for 

appointment and reservation scheduling, dealership automation, time inventory 

management, resources management and workforce management. Xtime’s 

offerings include Xtime Spectrum, the automotive industry’s first fully-integrated, 

cloud-based customer retention system. Xtime Spectrum includes, among other 

things, software services allowing online, mobile or in-dealership scheduling and 

booking of appointments; service parts and labor menu pricing; dealership service 

time inventory management; service lane reception; service marketing including 

customer two-way text messaging; vehicle inspection products; and a variety of 

other customer retention solutions for dealerships.

8. For many years, Xtime has made extensive use of its well-known 

Infinity Logo in connection with the above-identified services to the motor vehicle 

industry. One such use is depicted below as a part of Xtime’s U.S. Trademark 

Registration No. 2,862,550 (the “’550 Registration”). Xtime’s ’550 Registration 

was filed on December 9, 2002, with a date of first use at least as early as February 

7, 2000. The ’550 Registration is valid and subsisting and it is incontestable under 

15 U.S.C. § 1065.

9. Xtime also has frequently used the Infinity Logo in connection with 

its software services separate and apart from the text “xtime.” Xtime has therefore 

obtained common law trademark rights in the Infinity Logo in connection with its 

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COMPLAINT OF PLAINTIFF XTIME

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offerings as a software service provider, including, for example, in the manner 

depicted below:

10. Over the years, Xtime’s Infinity Logo and the mark set forth in the 

’550 Registration (collectively, the “Infinity Marks”) have come to be widely 

recognized by the general consuming public as designations of source for Xtime’s 

services. This is, at least in part, a result of extensive advertising, publicity and 

sales under the Infinity Marks. 

Defendant and Its Infringing Activities

11. Defendant AutoPoint is, like Xtime, a provider of similar software 

services for the motor vehicle industry. AutoPoint’s services are in direct 

competition with those offered by Xtime under the Infinity Marks. 

12. AutoPoint has, on information and belief, recently commenced use of 

a confusingly similar design (the “Infringing Mark”) in connection with software 

services that it offers in competition with Xtime. A comparison of Xtime’s Infinity 

Logo, and AutoPoint’s Infringing Mark, is provided below: 

Xtime’s Infinity Logo AutoPoint’s Infringing Mark

13. On information and belief, AutoPoint commenced use of the 

Infringing Mark after Xtime had adopted its Infinity Marks and obtained the ’550 

Registration.

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COMPLAINT OF PLAINTIFF XTIME

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14. On information and belief, AutoPoint commenced use of the 

Infringing Mark with knowledge of Xtime’s Infinity Marks and the services Xtime 

offered under its Infinity Marks. 

15. On information and belief, AutoPoint commenced use of the 

Infringing Mark with an intent to trade on the goodwill and consumer recognition 

that had been built up in Xtime’s Infinity Marks.

16. AutoPoint’s use of the Infringing Mark is likely to cause confusion 

and mistake among consumers as to the source or origin of AutoPoint’s services 

and/or as to an affiliation between AutoPoint’s operations under the Infringing 

Mark and Xtime’s operations under the Infinity Marks.

17. Xtime has informed AutoPoint of Xtime’s trademark rights and of 

AutoPoint’s confusing and wrongful use of the Infringing Mark, demanding that 

AutoPoint cease and desist from that use. Notwithstanding this demand, AutoPoint 

has declined to cease and desist from its use of the Infringing Mark and even today 

continues to use the Infringing Mark.

18. By using the Infringing Mark, AutoPoint is willfully and intentionally 

trading upon the goodwill that Xtime has, at its considerable expense and effort, 

developed in the Infinity Marks. AutoPoint thereby has caused and is causing 

Xtime substantial and irreparable harm and injury. 

FIRST CLAIM FOR RELIEF

Infringement of Federally Registered Mark

(15 U.S.C. § 1114)

19. Xtime repeats, realleges, and incorporates by reference all preceding 

paragraphs as if fully set forth herein.

20. Xtime’s federal registration for the ’550 Registration evidences 

Xtime’s exclusive right to use the mark in connection with the services identified 

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COMPLAINT OF PLAINTIFF XTIME

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therein. 

21. On information and belief, Xtime commenced use of the mark in the 

’550 Registration in interstate commerce in connection with software services prior 

to AutoPoint’s commencement of use of the Infringing Mark. 

22. AutoPoint is not authorized to use the Infringing Mark or any mark 

confusingly similar or that in any way represents or implies that AutoPoint and/or 

its services are in any way associated with Xtime and/or the services offered under 

the ’550 Registration. 

23. AutoPoint’s unauthorized use of the Infringing Mark in connection 

with its services constitutes trademark infringement in violation of Section 32 of 

the Lanham Act, 15 U.S.C. § 1114. AutoPoint’s use of the Infringing Mark is 

likely to cause confusion, mistake, and/or deception in the marketplace as to the 

source or origin of AutoPoint’s services, and falsely suggests that AutoPoint and/or 

its services are sponsored by or otherwise affiliated with Xtime.

24. As a direct and proximate result of AutoPoint’s knowing, deliberate, 

and willful infringement of Xtime’s marks, Xtime has suffered, and will continue 

to suffer, irreparable harm to its business, reputation, and goodwill, unless and 

until AutoPoint’s actions as alleged herein are enjoined. Xtime is therefore entitled 

to injunctive relief and to a monetary recovery consistent with 15 U.S.C. § 1117(a) 

in an amount to be proven at trial.

25. AutoPoint’s infringement of the rights of Xtime has been knowing, 

willful, and in deliberate disregard of federal law. Accordingly, this is an 

exceptional case and Xtime is entitled to enhanced damages and reasonable 

attorneys’ fees under 15 U.S.C. § 1117(a). 

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COMPLAINT OF PLAINTIFF XTIME

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SECOND CLAIM FOR RELIEF

False Designation of Origin 

(15 U.S.C. § 1125(a))

26. Xtime repeats, realleges, and incorporates by reference all preceding 

paragraphs as if fully set forth herein.

27. AutoPoint’s use of the Infringing Mark is so similar to Xtime’s 

Infinity Marks that AutoPoint’s use is likely to cause confusion, to cause mistake, 

or to deceive as to the origin, sponsorship, or approval of the parties’ respective 

offerings, and/or as to the affiliation, connection, or association between AutoPoint 

and/or its services and Xtime and/or its services.

28. AutoPoint has used and continues to use the Infringing Mark in 

connection with the services AutoPoint distributes, advertises, offers for sale 

and/or sells in interstate commerce in a manner that is likely to cause confusion, or 

to cause mistake, or to deceive as to the affiliation, connection, or association of 

AutoPoint with Xtime and/or as to the origin, sponsorship, or approval of 

AutoPoint’s services or commercial activities by Xtime.

29. AutoPoint is, pursuant to 15 U.S.C. § 1125(a), liable to Xtime for 

AutoPoint’s acts of false designation of origin.

30. No adequate remedy exists at law for the irreparable harm 

AutoPoint’s acts of false designation of origin have caused and are causing Xtime. 

Xtime is therefore entitled to preliminary and permanent injunctive relief.

31. AutoPoint’s acts of false designation of origin have caused and 

continue to cause damage and harm to Xtime. Xtime is therefore entitled to a 

monetary recovery consistent with 15 U.S.C. § 1117(a) in an amount to be proven 

at trial.

32. AutoPoint’s acts of false designation of origin have been knowing, 

willful and in deliberate disregard of Xtime’s rights and of AutoPoint’s obligations 

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COMPLAINT OF PLAINTIFF XTIME

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under federal law. Accordingly, this is an exceptional case and Xtime is entitled to 

enhanced damages and reasonable attorneys’ fees under 15 U.S.C. § 1117(a). 

THIRD CLAIM FOR RELIEF

Unfair Business Practices

(Cal. Bus. & Prof. Code §§ 17200 & 17500)

33. Xtime repeats, realleges, and incorporates by reference all preceding 

paragraphs as if fully set forth herein.

34. AutoPoint’s use of the Infringing Mark in the course of its business 

constitutes unlawful, unfair and/or fraudulent business practices in violation of 

Cal. Bus. & Prof. Code § 17200.

35. AutoPoint’s use of the Infringing Mark in the course of its business 

constitutes untrue and misleading statements, which is known or which by the 

exercise of reasonable care should be known, to be untrue or misleading in 

violation of Cal. Bus & Prof Code §17500.

36. AutoPoint’s use of the Infringing Mark in the course of its business 

misrepresents the character and nature of its business in violation of Cal. Bus & 

Prof Code §17505.

37. Xtime is entitled to an injunction pursuant to Cal. Bus & Prof Code 

§17203.

PRAYER FOR RELIEF

WHEREFORE, Xtime prays that this Court:

A. Issue a preliminary and permanent injunction enjoining AutoPoint and 

its agents, licensees, officers, employees, successors, and anyone acting in concert 

or privity with AutoPoint from using the Infringing Mark or any other mark or 

designation confusingly similar to Xtime’s Infinity Marks.

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COMPLAINT OF PLAINTIFF XTIME

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B. Award Xtime a monetary recovery consistent with 15 U.S.C. § 

1117(a) in an amount to be proven at trial.

C. Enter judgment ordering AutoPoint to pay Xtime its reasonable 

taxable costs and attorney’s fees in this action in a sum and manner deemed 

appropriate by this Court pursuant to 15 U.S.C. § 1117(a) and/or other applicable 

law.

D. Grant Xtime such other equitable and legal relief as the Court deems 

appropriate.

Respectfully submitted,

January 9, 2017 /s/ Calvin L. Litsey 

Calvin L. Litsey (SBN 289659) 

Calvin.Litsey@FaegreBD.com

Helen Chacon (SBN 293067)

Helen.Chacon@FaegreBD.com

FAEGRE BAKER DANIELS LLP

1950 University Avenue, Suite 450

East Palo Alto, California 94303

Phone: (650) 324-6700 

Fax: (650) 324-6701

Joel D. Sayres (SBN 223399)

Joel.Sayres@FaegreBD.com 

FAEGRE BAKER DANIELS LLP

3200 Wells Fargo Center 

1700 Lincoln Street

Denver, CO 80203

Phone: (303) 607-3500

Fax: (303) 607-3600

Attorneys for Plaintiff

Xtime, Inc.

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COMPLAINT OF PLAINTIFF XTIME

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DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38(b), plaintiff Xtime Inc. 

respectfully demands a trial by jury.

Dated: January 9, 2017 /s/Calvin L. Litsey

Calvin L. Litsey (SBN 289659) 

Calvin.Litsey@FaegreBD.com

Helen Chacon (SBN 293067)

Helen.Chacon@FaegreBD.com

FAEGRE BAKER DANIELS LLP

1990 S. Bundy Drive, Suite 620

Los Angeles, California 90025

Phone: (650) 324-6700 

Fax: (650) 324-6701

Joel D. Sayres (SBN 223399)

Joel.Sayres@FaegreBD.com 

FAEGRE BAKER DANIELS LLP

3200 Wells Fargo Center 

1700 Lincoln Street

Denver, CO 80203

Phone: (303) 607-3500

Fax: (303) 607-3600

Attorneys for Plaintiff

Xtime, Inc.

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