IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF EDMONTON

BETWEEN:

1.

The Plaintiff, WEST EDMONTON MALL PROPERTY INC. is a duly incorporated company in Alberta, with its principal office in Edmonton, Alberta, which operates the West Edmonton Mall in Edmonton, Alberta.

2.

So far as is known to the Plaintiff, Stuart Martin is the sole proprietor of a business named Infosource Canada, operating in Calgary, Alberta, and engaged in business activities related to the Internet computer network (the "Internet").

3.

So far as is known to the Plaintiff, Stuart Martin, John Davies, and Chris Hooymans are partners in a partnership named Websight West, operating in Calgary, Alberta, and engaged in business activities related to the Internet computer network (the "Internet").

4.

A part of the Internet known popularly as the "World Wide Web" ("WWW") features innumerable "websites" or "webpages" which are created and maintained by individuals, businesses, and organizations for purposes including disseminating of information, entertainment, and advertising. Each website has a uniqe address (known as a "Universal Resource Locator", or "URL") by which it can be reached and viewed by any computer user in the world having access to the Internet.

5.

A URL can be obtained by any party through various organizations charged with the issuance of these addresses, in much the same way one would obtain a trade name registration in Alberta. The only requirements for issuance of a new URL are the payment of a nominal fee, and that the requested URL is not identical to an already issued URL.

6.

On or about April 5, 1995, the Plaintiff applied for and obtained the entitlement to use the URL "westedmall.com" from the issuer Network Solutions.

7.

On or about May 3, 1995, the Defendants, or some of them, without the knowledge or consent of the Plaintiff, applied for and obtained the entitlement to use the URL "westedmontonmall.com" from the issuer Network Solutions.

8.

To the knowledge of the Plaintiff, none of the Defendants operate a mall of any kind, in Edmonton or otherwise, and have no connection with the Plaintiff's business.

9.

The Plaintiff has used the name "WEST EDMONTON MALL" as a trade mark in relation to shopping, entertainment, and hotel services since at least as early as 1981 and through the extensive marketing efforts of the Plaintiff, that trade mark enjoys worldwide recognition in association with the services offered by the Plaintiff.

10.

The Plaintiff has operated a website on the WWW at the URL "westedmall.com" since September 1, 1995, and has used the trade mark "westedmall.com" in relation to the services of providing information on the WWW regarding West Edmonton Mall since that date. The URL "westedmall.com" was selected by the Plaintiff so that the public would recognize it as associated with the West Edmonton Mall, and therefore seek out the website to find information regarding the Plaintiff's activities.

11.

On or about March 3, 1997, the Plaintiff became aware of the existence of the "westedmontonmall.com" URL on the WWW, and that the web site at that URL was operated and controlled by the Defendants. The Plaintiffs notified the Defendant Stuart Martin immediately in writing that the use of such a URL by another party was a violation of the trade mark rights of the Plaintiff, and the Defendants should cease such use immediately.

12.

The Defendant Stuart Martin responded by offering to sell the registration to the "westedmontonmall.com" URL to the Plaintiff for $3,8000.00. During this period, the Defendants programmed their website so that the WWW users using the URL "westedmontonmall.com" would be automatically directed to the Plaintiff's website at "westedmall.com".

13.

The Plaintiff refused to purchase the registration to the "westedmontonmall.com" URL from the Defendants.

14.

On or about July 25, 1997, the Plaintiff became aware, through complaints from potential customers of the Plaintiff, that any person seeking the website of the Plaintiff, and using the URL "westedmontonmall.com" on the WWW would be exposed to a web page advertising pornographic materials, including the display of pornographic images.

15.

To the knowledge of the Plaintiffs, the display of the pornographic material in association with the westedmontonmall.com" continues to the date of this Statement of Claim. The Plaintiff has received complaints from persons who were offended by the content found at this URL when they were attempting to contact the Plaintiff's business for the purposes of obtaining information about hotel accommodation and shopping.

16.

The Defendants sought and obtained the registration of the "westedmontonmall.com" URL for the purpose of providing information on the WWW, and did know, or ought to have known that the public would mistakenly believe the Defendant's website was operated by, or associated with the Plaintiff, and that such website would provide information in relation to the West Edmonton Mall.

17.

Further, or in the alternative, the Defendants sought and obtained the registration of the "westedmontonmall.com" URL for the sole purpose of achieving economic gain by attempting to obtain payment from the Plaintiff, knowing or believing the Plaintiff would want to avoid the use of a confusing URL on the WWW.

18.

As a result of the Defendants' actions, members of the public have been, and will be led to the false belief that:

a)

the Defendants are associated with the Plaintiff;

b)

the Defendants' website is associated with, operated by, or authorized by the Plaintiff; and

c)

the Plaintiff's business is associated with pornographic materials.

19.

The Defendants, by obtaining the URL "westedmontonmall.com", and providing a website at the address, and by directing users of that site to pornographic materials have:

a)

made and are making a representation to the public that is false or misleading in a material respect;

b)

directed and are directing attention to their business in such a way as to cause and be likely to cause confusion with the business of the Plaintiff;

c)

defamed and are defaming the Plaintiff;

d)

diminished and are diminishing the goodwill associated with the Plaintiff's business, and its trade marks, "WEST EDMONTON MALL", and "westedmall.com";

and the Plaintiff has suffered, and continues to suffer damage as a result.

20.

The Plaintiff proposes that the trial of this action be held at the Law Courts in Edmonton, Alberta.

21.

WHEREFORE THE PLAINTIFF CLAIMS:

a)

An interim and permanent injunction against the Defendants preventing use of the "westedmontonmall.com" website address;

b)

Damages in the amount of $50,000.00 for defamation and damage to business interests;

c)

Damages in the amount of $50,000.00 for infringement of the trade marks of the Plaintiff, and for loss of goodwill in, and dilution of, the Plaintiff's trade marks;

d)

Punitive damages in the amount of $50,000.00;

e)

Costs on a solicitor and his own client basis;

f)

Interest pursuant to the Judgment Interest Act, R.S.A. 1980, c.J-0.5, and regulations thereto; and

g)

Such other and further relief as this Honorable Court deems appropriate.

22.

The Plaintiff also pleads and relies on the provisions of the Trade Marks Act, R.S.C. 1985, c.T-3, as am., and of the Competition Act, R.S.C. 1985, c.C-34, as am.

ISSUED out of the Office of the Clerk of the Court of Queen's Bench of Alberta, Judicial District of Edmonton, this 31st day of July, A.D. 1997.

JOHN BACHINSKI   (SEAL)

CLERK OF THE COURT OF QUEEN'S BENCH OF ALBERTA