EXHIBIT 2 

Case 3:17-cv-00359-WHA Document 20-3 Filed 02/06/17 Page 1 of 14
Case No. COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

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Basil P. Fthenakis, Esq. (88399)

CRITERION LAW

2225 E. Bayshore Road, Suite 200

Palo Alto, California 94303

Tel. (650) 352-8400

Fax. (650) 352-8408

bpf@criterionlaw.com

Of counsel:

David S. Godkin

James E. Kruzer 

BIRNBAUM & GODKIN, LLP

280 Summer Street

Boston, MA 02210

(617) 307-6100

godkin@birnbaumgodkin.com

kruzer@birnbaumgodkin.com

Attorneys for Plaintiff,

SIX4THREE, LLC, a Delaware

limited liability company

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SIX4THREE, LLC, a Delaware limited 

liability company,

Plaintiff, 

v.

FACEBOOK, INC., a Delaware corporation,

Defendant. 

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Case No. 

COMPLAINT FOR DECLARATORY 

JUDGMENT AND INJUNCTIVE

RELIEF

DEMAND FOR JURY TRIAL

///

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PRELIMINARY STATEMENT

Plaintiff six4three, LLC (“643” or “Plaintiff”) brings this action for declaratory judgment 

and injunctive relief against Defendant Facebook, Inc. (“Facebook” or “Defendant”).

NATURE OF ACTION AND RELIEF SOUGHT

1. This is a civil action for declaratory and injunctive relief to vindicate the rights of 

643 in connection with a gripe site maintained at FacebooksAppEconomy.com (the “Site”). 

FacebooksAppEconomy.com serves as an information resource for software developers, and in 

particular small businesses, (“Developers”) that have been impacted by Facebook's unfair and 

deceptive practices. Small businesses that have been impacted can use the website to sign up for 

updates that follow the course of ongoing litigation and learn how they may protect their rights.

The Site also serves as a forum for increased public awareness of the harm caused by a 

lack of regulation in application economies. This is an issue of great importance to the public, the 

legal system and the global economy. Today, some of the largest economies in the world have 

their rules made and monitored by companies who also get to play in the game. This aligns 

incentives naturally toward anti-competitive behavior that detrimentally impacts both small 

businesses and consumers.

Facebook's application economy in particular has experienced a series of anti-competitive 

transfers of wealth. The Site focuses on a major one that impacted thousands of businesses, 

people and families: the closing of the Open Graph announced on April 30, 2014 in which 

Facebook gave itself a monopoly on building applications spanning numerous industries after 

promising for years that Developers could build the same applications and compete on neutral 

terms.

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The Site offers a proposal for regulating Facebook's $227 billion economy in order to 

prevent events like this from happening again. The Site’s proposal seeks to establish a basic set 

of rights and obligations for everyone participating in Facebook's application economy with the 

goal of minimizing perverse incentives towards anti-competitive behavior, which harms the 

public interest and threatens the long-term viability of the economy itself. In doing so, the Site

seeks to engage the public and legal community not only to support the proposal but also to 

participate in its evolution.

2. 643 is an image recognition software startup that built an application integrated 

with Facebook’s operating system, known as Facebook Platform. Like many Developers, 643 

invested substantial sums of time, money and resources in building an application on Facebook 

Platform. In doing so, 643 reasonably relied upon years of explicit promises from Facebook 

regarding its commitment to neutrality, fairness and competition on Facebook Platform. On April 

30, 2014, Facebook broke the promises it had made to Developers for many years and closed off 

their access to many types of applications that they had already made substantial investments in 

building and maintaining. Many companies were affected by this “bait and switch” tactic, and as 

noted by The Wall Street Journal, a substantial number of these companies were forced to shut 

down.1

3. In April 2015, 643 filed a complaint in the Superior Court of California, County 

of San Mateo (“Ongoing Litigation”). In June 2016, the Court denied Facebook’s demurrer as to 

four causes of action promulgated by 643, including a cause of action under California’s Unfair 

Competition Law (UCL) and scheduled the matter for trial in Spring 2017. In a court-mandated 

mediation on 8 November 2016, 643 proposed that Facebook implement a series of policy 

 

1 See: “Facebook’s Restrictions on User Data Cast a Long Shadow,” The Wall Street Journal, at 

http://www.wsj.com/articles/facebooks-restrictions-on-user-data-cast-a-long-shadow-1442881332

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changes as part of a settlement proposal to promote fairness and competition in Facebook’s 

application economy. Facebook refused to discuss these measures with 643. In an effort to raise 

awareness of this important issue of anti-competitive behavior in application ecosystems, 643 

notified Facebook of the Site, including its intention to engage the developer community around 

this issue to garner support for its proposal.

4. On 11 November 2016, Facebook sent a Notice of Facebook Trademark 

Infringement to 643, attached hereto as Exhibit A. In its Notice, Facebook claims that 643’s 

registration and use of the Site violates the Lanham Act (15 U.S.C. § 1051 et seq.) and infringes 

and dilutes the famous Facebook trademark. The Notice requests that 643 remove the Site and let 

its domain registration lapse or Facebook “will have no choice but to pursue all available 

remedies against [643]”. See Exhibit A. 

5. 643 therefore brings this declaratory relief action to clarify the rights of the 

parties, and to refute the baseless assertions of trademark infringement and trademark dilution 

finally and definitively. Plaintiff seeks a declaratory judgment holding that the Site does not 

infringe any trademarks held by Defendant and is protected by the Fair Use Doctrine, 

California’s Anti-SLAPP Law (Cal. Civ. Proc. Code § 425.16), and the First Amendment of the 

United States Constitution. 643 also seeks an injunction enjoining Defendant from any efforts to 

enforce any trademark in the Facebook trademark against 643 and the Site, including through the 

use of DMCA takedown notices, WIPO arbitration, or otherwise.

THE PARTIES

6. Plaintiff 643 is a Delaware limited liability company with a principal place of 

business at 535 Mission Street, 14th Floor, San Francisco, California.

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7. Upon information and belief, Defendant Facebook, Inc. is a Delaware 

Corporation with a principal place of business at One Hacker Way, Menlo Park, California.

JURISDICTION AND VENUE

8. This is an action for declaratory judgment arising under the Federal Declaratory 

Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has subject matter jurisdiction over 

Plaintiff’s federal claims pursuant to 15 U.S.C. §§ 1121, and 28 U.S.C. §§ 1331 and 1338 in that 

this Complaint raises federal questions arising under the Lanham Act, 15 U.S.C. § 1125, arising 

out of interstate commerce.

9. This Court has personal jurisdiction over the Defendant because it resides in and 

is doing business in the State of California. Defendant has purposefully availed itself of the 

privilege of conducting activities in this State and the Northern District. Defendant has sold 

billions of dollars of advertising in this State. Further, Defendant has intentionally engaged in 

acts targeted at the Northern District. Plaintiff resides in this District and manages the domain 

and the Site in this District. Defendant’s false assertions of infringement and dilution were and 

are directed at Plaintiff in this District.

10. Venue is proper in the Northern District of California under 28 U.S.C. §

1391(b)(2) because a substantial part of the events giving rise to Plaintiff’s claims has occurred 

and will continue to occur in the Northern District of California.

FACTUAL ALLEGATIONS

11. Plaintiff 643 is an image recognition software company that has alleged it was 

harmed by Defendant Facebook’s unfair and deceptive business practices. 643 invested in 

software that can automatically search and organize photos based on their contents in order to 

provide a more advanced photo sharing service for Facebook’s users. For years, Facebook 

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promised Developers like 643 access to Facebook user photos so long as the user and their 

friends permitted Developers’ applications to access them. On April 30, 2014, Facebook 

removed Developer access to Facebook user photos. As a result, Facebook became the only 

company that could intelligently search and sort Facebook user photos. 643 was forced to shut 

down its initial application and lost its investment of time, capital and labor in building its initial 

application. Many other small businesses were similarly impacted by Facebook’s decision to 

monopolize this market.

12. To raise awareness of this issue of important public interest regarding the lack of 

regulation in one of the largest economies in the world, 643 created the Site. The Site is 

evidently a gripe site and is entirely non-commercial in nature. The domain of the Site, 

FacebooksAppEconomy.com, clearly does not communicate any intent to sell any good or 

service. 

13. The main navigation of the Site includes a “thumbs-down” image and the words 

“Our Demands” and “Join Litigation”. The primary content above the fold on the site is a call to 

action to Facebook Developers to join an effort to increase awareness among lawmakers and 

regulators, like the Federal Trade Commission, of the importance of this issue to small 

businesses and consumers. Users of the Site can send a letter to the Federal Trade Commission

(FTC) and California Attorney General. Further, users can watch a documentary video 

recounting the history of Facebook Platform, including Facebook’s “bait and switch” behavior 

that has harmed thousands of businesses, people and families. 

14. The Site does not offer any good or service for sale, has no ability to take 

payment information, and does not include or display any advertisements. 643 has no intention 

of selling the domain or the Site. 643 is not profiting and will not profit from the Site as it has no 

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commercial purpose whatsoever and this lack of commercial purpose is evident prior to even 

entering the Site. As such, it is hard to imagine how the Site could result in consumer confusion 

or dilute the Facebook’s trademark. 

15. Rather, the Site addresses a matter of great public interest. It is estimated that 

Facebook’s application ecosystem produced $227 billion of economic activity and supported 4.5 

million jobs in 2014 alone.2 This application ecosystem currently operates in the absence of 

regulation. Facebook sets the rules of the game and is also one of its largest players. Facebook 

has taken advantage of this fact to effectuate large transfers of wealth from small businesses and 

consumers to itself by engaging in a series of “bait and switch” tactics that violate Section 5 of 

the Federal Trade Commission Act (FTCA) and California’s Unfair Competition Law (UCL).

Application ecosystems, or App Economies, are new and innovative industries critical to the 

global economy as a whole. 

16. The rule of law has yet to catch up to these innovative economies, but many in the 

legal community have begun to take notice of the immense harm caused by a failure to regulate. 

As recently as 19 October 2016, Representative Henry C. “Hank” Johnson, the Ranking Member 

of the Antitrust Subcommittee of the House Judiciary Committee, called on the FTC to 

investigate anti-competitive behavior in App Economies. Johnson wrote: “It is critical that we 

promote and defend competition, even in markets that are highly innovative, to ensure that small 

entrants aren’t squeezed out through needlessly restrictive conditions and policies.... I strongly 

encourage the FTC to give this issue the close attention that it deserves.”3 The Site serves a 

critical function in exposing how App Economies are manipulated in the absence of regulation. 

 

2 See: “New Deloitte Report Looks at Facebook’s Impact on Global Economy, Jobs,” 20 January 2015, at 

http://newsroom.fb.com/news/2015/01/new-deloitte-report-looks-at-facebooks-impact-on-global-economy-jobs/. 3 See: “Johnson Leads Bipartisan Call for Investigation of Anticompetitive Practices in the App Marketplace,” 19 

October 2016, at https://hankjohnson.house.gov/media-center/press-releases/johnson-leads-bipartisan-callinvestigation-anticompetitive-practices.

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In doing so, the Site also identifies what we can do as a public and legal community to promote 

fairness and competition in these economies in order to ensure their long-term stability and

protect businesses and consumers.

17. Upon information and belief, Facebook sent its Notice of Trademark Infringement 

to 643 with full knowledge of the intended purpose of the Site, a purpose that is evidently both 

non-commercial in nature and of great importance to the business and legal communities.

Facebook knew of this intended purpose because 643 communicated it to Facebook in advance 

of and during a court-mandated mediation on 8 November 2016. As such, Facebook’s Notice 

was designed to create a “chilling effect” intended to suppress 643’s free speech and activities in 

furtherance of a matter of great importance to the public. The First Amendment to the 

Constitution of the United States and California’s Anti-SLAPP law (Cal. Civ. Proc. Code §

425.16) prohibit conduct intended to create this kind of “chilling effect” around issues of great 

public importance, particularly when the activities are in connection with a judicial proceeding 

and an overt campaign to raise awareness among lawmakers and regulators of a great injury to 

small software businesses founded and operating in the United States. In an effort to prevent 643

from raising awareness of this issue, Facebook has lashed out and accused 643 of trademark 

infringement and dilution. There exists a justiciable controversy regarding 643’s right to make a 

fair use of the Facebook trademark free of any allegations by Defendant that such conduct 

constitutes an infringement of any trademark owned by Defendant.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment – Non-Infringement of Trademark)

18. Plaintiff re-alleges and incorporates each and every foregoing paragraph as 

though fully set forth herein.

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19. An actual justiciable controversy exists as to whether the Site infringes any 

trademark owned by the Defendant.

20. Plaintiff is entitled to a declaratory judgment that its use of the Facebook 

trademark is protected by the Fair Use Doctrine, California’s Anti-SLAPP Law and the First 

Amendment of the Constitution of the United States.

SECOND CLAIM FOR RELIEF

(Declaratory Judgment – Non-Dilution of Trademark)

21. Plaintiff re-alleges and incorporates each and every foregoing paragraph as 

though fully set forth herein.

22. An actual justiciable controversy exists as to whether the Site dilutes any 

trademark owned by the Defendant.

23. Plaintiff is entitled to a declaratory judgment that its use of the Facebook 

trademark is protected by the Fair Use Doctrine, California’s Anti-SLAPP Law and the First 

Amendment of the Constitution of the United States.

THIRD CLAIM FOR RELIEF

(Declaratory Judgment – Fair Use)

24. Plaintiff re-alleges and incorporates each and every foregoing paragraph as 

though fully set forth herein.

25. An actual justiciable controversy exists as to whether Plaintiff’s use of any 

materials to which Defendant holds trademark or copyright is protected by the Fair Use Doctrine.

26. Plaintiff is entitled to a declaratory judgment that its use of the Facebook 

trademark is protected by the Fair Use Doctrine, California’s Anti-SLAPP Law and the First 

Amendment of the Constitution of the United States.

PRAYER FOR RELIEF

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WHEREFORE Plaintiff seeks judgment awarding it the following relief:

Plaintiff demands a trial by jury as to all issues so triable.

DATED: November 21, 2016

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a)

b)

c)

d)

e)

An order declaring that Plaintiff does not infringe or dilute any valid trademark

owned by Defendant;

An order declaring that any alleged use by Plaintiff of any materials to which

Defendant holds trademark or copyright is privileged under, and protected by, the

Fair Use Doctrine;

An order enjoining Defendant from asserting any alleged trademarks or

copyrights against Plaintiff in connection with the Site and She-related activities;

An order awarding attorneys' fees, costs, and expenses incurred in connection

with this action to Plaintiff;

An order awarding such other and further relief as this Court deems just and

proper.

JURy DEMAND

CRITERION LAW

BIRNBAUM & GODKIN

BY:~

BasITP. Fthenakis, Esq.

David S. Godkin

James E. Kruzer

Attorneys for Plaintiff

Six4Three, LLC

28 Case No. COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

9

Case 3:17-cv-00359-WHA Document 20-3 Filed 02/06/17 Page 11 of 14 Case 3:16-cv-06716-JCS Document 1 Filed 11/21/16 Page 10 of 12
Exhibit A

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Case 3:17-cv-00359-WHA Document 20-3 Filed 02/06/17 Page 13 of 14 Case 3:16-cv-06716-JCS Document 1 Filed 11/21/16 Page 12 of 12
JS.CAND 44 (Re\'. 07116) ClVlL COVER SHEET

The JS.CAND 44 civil cover sheel and the information contained herein neither replace nor supplement the filing and service of pleading." or other papers as required by law,

except as provided by local fules of court. This fonll. appro\'cd in its original fonn by the Judicial Conference anile United SlOtesin September 1974, is required for the Clerk of

Court to initiaic the civil docket sheet. (f\HE INSTRUCTIONS ON NEXT PAC;!:' 0,.. THIS FORM.)

1. (a) PLAINTIFFS

SIX4THREE, LLC, a Delaware limited liability company

DEFENDANTS

FACEBOOK, INC., a Delaware corporation

(b) Count)' of Residence of First Listed Plaintiff [IS~'~"~I'~","~'Gi""~C~~~"~"~tL'~:':':':':':':':':'=11

(EXCHl>7'IN U.s. J>I.AINTIFFCAS/:',~J

CountyofResidenceof FirstListedDefendant .~IS~'~"~'~i'~"~"~Co~,,"~'~Y=====

(IN U.S./'LAIN'J'IFFCASHSONI,Y)

NOTE: IN LANoCONDEMNAT10N CASES. USE THE LOCATION OF

ruE TRACT OF LAND INVQL VED.

Attorneys (IIKI/nll'n)

UJ I U.S. Go\'enllllenl

PlaintifT

U.S, Govemment

Defeudnnt

[!) 3 Fcdcl"lllQuestion

(U.s. GOI'('mmcIII Nfli a "orly)

Diversity

(Illdirolc Citizellsh,p t!f I'anit'.f iI/item II/)

III. CITIZENSHII) OF PRINCIPAL PARTIES (flocculi uX" i"One 8(}.f;jilrl'luinfiff

W(lr Dil'('r,f/~vClue.t ()tlM and One 8M:fi,r n,'/cll(lom)

PTF nEF 1>'1'''' UEi"

Citi2'c:n oflnis Stale m L:J t Incorpol"llted (lr Principal Place 0' 1Bl4

ofnusiness In This Statc

Citi1.ell of Another Stille Ii:] 2 If] 2 Ineorpol"llled alld Prineipnl Plnee [lS IQS

of Business In Allother Stale

Citi7.en or Subject of a

la' [lJ Foreign Nation [l' IE!'

Fon:ign Countl)'

IV. NATURE OF SUIT

CO~TRACT

1

110InSlllllllee

'. 120 Mnrine

~ 130 ~'liller Aet

'_ 140 Negotiable InstOllnenl

- 150 Reco\'eryofO\'erpAvment

OfVetenm's Iknefits

~ 151 Meditare Act u:J 152 Reco\'el)' of Defaulted

Studentl.olllls

(Excludes Vetemns)

[fi 153 Reco\'cl)'ofOveTPlI)'menl

ofVeternn's Benefits

~

160 $tockholden;' Suits

19fi Other Contrncl

I. 195 Contrnct Product Liability

~ 196 Fronchise

nl-:i\L I'ROI''':RT\'

I

210 Land ,Condemnation

220 Foreclosure

• 230 Rent Lease &. Ejectmcnt

, 240 Tons 10 Land

-. 245 Ton Product Liability

.- 290 All Other Reol Property

(Placc on "X" In Olle Bdx O"'y)

TORTS

PERSO:'iAL IN.IURY PERSO;"o;AI, INJURY

Ej 310 Airplane ([)365 Personal Injury-

[I 315 Airplanc Product Product Liability

Liability la367 Health Cnre!

([) 320 Assaul!. Libel & Phllm18ceulical

Slander PmonllllnjuT)'

II) 330 Fcdernl Employers' Product LiAbilily

Liahility [[)368 Asbcstos Personal

lEI 340 Marinc InjUl)' Product

EI 345 Mltrille Product Liahility

Liabilily rEllSONAL I'RorERT'!'

[E] 350 Motor Vehicle ~. 370 Olher Froud

Uj 355 Motor Vthicle . 371 Truth in Lending

Product Linbility • 3S0 Othcr Personal [3 360 Other Personal Propcny Damage

InjuT)' (t]3S5 Propeny Damllgc

~ 362 PersonAl hUIU)" Product Liability

Medical Mnlpmctice

CIVIL RIGIITS I'RISONER PE1'll'IO:'\'S

440 Otber Chil Rights Habells Corpus:

441 Voting la463 Alien Detainee

442 Emplo)"Illent 0510 Motions 10 VlIcale

443 Housing! Sentence

AccommodAtions n:J530 Genernl

([j 445 All'lCf.wlDis:abilitie,<l-IE) 535 Denth PenAlty

Employment Otht'r:

lEI 446 Aml.'f,wlDisabiliticr m-- 5,10 Mtlndnmus & Other

Other 550 Civil Rights

lD 44S Education • 555 Prison Condition

• 560 Ch'illktninecCondilions of

Confinenu:nt

FORn:lTlIRi":JPE:\'"A LTl'

G]62~ Drug Rclnu:d Scirun,:

ofPropeny21 USC * 881

0690 Other

1.••. \ lion

;. 710 Fair Labor Stllndards

Act fa 720 Lnbor/Mnnl'lgellll:1Il

Relntions

ffi740 RnilwBy l..nbor Act

1:J7~1 FOlllily nnd Medicnl

Leo\'e Act

~ 790 Othcr Lnbor Litiglltion

[;EI791 Employee Relin,:ment

Incomc Security Act

IM:\.IlGRATIO;"o;

462 Nnlumlizotion f\pplicalion

465 Ollter lntmigmlion

AClions

IlANKRtJPTCl'

(:3122 Appcal2R USC ~ 158

l::}23 Withdrownl

28 USC 9 157

I'ROPt:R"" HTS

20 Copyrights

;,. 830 Pntent

)l 40 TmdelllllrX

SOCIAI.SI-:ClJRITY

61 HIA (I395m

62 Black Lung (923)

, 863 DlWCIDIWW (405(g)

.• 64 SSID Title XVI

" 865 RSI (405(g))

FI-:nERAL TAX SUITS

70 TlIxes (U,S, Plnintin'

or Defendant)

~71IRS-Third Party

26 USC 9 7609

OTIlER STATIJTES

~ 375 Fn1.~cClnims Act

E:] 376 Qui Tnm (31 USC

~ 3729(a»

1

400State Reapportionment

• 410 Antilmsl

• 430 Bmtks and Banking

• 450 Commerce

~ 460 Oeponntion

470 Racketeer Influenced III1d

COmJpt O!):.taniZlltions

~

480 Consumer Credit

490 C'nblelSAt 1V

• 850 SecuritieYCommoditiesl

Exchlll1ge

~.

'... 890 Olber Statutory Actions

891 Agriculturnl Acts

893 En\ironmentnl Mattcrs

895 Frttdom of Infomtation

Aol Ia 896 Arbilmtion

E] R99Administrntive Procedun:

Act/Review or Appetll of

Agency Decision

[il 950 ConSl.itutionality of

State Slnlllles

V. ORIGIN (PlOCCflf/ "X"'"OnrHnXOIlM [E) 1 Original IIi 2 Removed from

Proceeding State Court

o 3 Remanded from

Appellate Court

[[1 4 Reinstaled or

Reopened

[EJ 6 Multidistriet [ZJ 8 Multidistriel

Litigation-Tmnsfcr Litigation-Direct File

VI. CAUSE OF ACfION

CHECK YES only if demanded in complaint:

JURY DEMt\NJ>: [ij Yes El No

DOCKET NUMBER

If'lSAN JOSE [l EUREKA-M

DEMAN» S

SIGNATURE OF ATTORNEY OF RECORD:

o CHECK IF T1iIS IS A Cl.ASS ACfION

UNDER RULE 23, Fed. R. Civ. P,

DATE: 1112t/2016

(plnee an "X" in Ont Bo,' Onl)')

VII. REQUESTED IN

COMPLAtNT:

VIII. RELATED CASE(S),

IF Al\ry (Set ''',tlnICI/OII,I): JUDGE

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)

IElSAN FRANCISCO/OAKLAND

Case 3:17-cv-00359-WHA Document 20-3 Filed 02/06/17 Page 14 of 14 Case 3:16-cv-06716-JCS Document 1-1 Filed 11/21/16 Page 1 of 1