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SECURITIES EXCHANGE AND COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 6, 2000, (November 27, 2000)
Evoke Communications, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State of Incorporation)
000-31045 84-1407805
(Commission File Number) (IRS Employer Identification No.)
1157 Century Drive, Louisville, Colorado 80027
(Address of principal executive offices and Zip Code)
(800) 878-7326
(Registrant's telephone number, including area code)
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Item 5. Other Events.
Legal Proceedings
From time to time, we have been subject to legal proceedings and claims in
the ordinary course of business. On March 17, 2000, Evoke Software Corporation,
a California corporation, filed a claim against us in the United States District
Court for the Northern District of California, alleging trademark and service
mark infringement, among other claims, such as trademark and service mark
dilution and unfair competition. Evoke Software seeks punitive and compensatory
damages, an injunction barring us from continuing to use the brand Evoke and
attorneys' fees and costs. We believe that we have meritorious defenses to these
claims and intend to defend against them. On May 10, 2000, we filed our answer
to the complaint, denying all material allegations. On August 22, 2000, Evoke
Software Corporation filed a motion for preliminary injunction seeking, among
other things, to require us to immediately discontinue using the mark Evoke, the
domain name evoke.com and the ticker symbol EVOK, pending a trial date set for
May 7, 2001. On August 24, 2000, we filed a motion with the court for leave to
file an amended answer to add affirmative defenses and counterclaims along with
the amended answer, all of which were granted. On August 24, 2000, we also filed
a motion to enforce a settlement agreement and related promises and to dismiss
the complaint. At a hearing on our August 24, 2000 motion held on November 2,
2000, the judge partially denied our motion to enforce a settlement agreement
and related promises. In a November 27, 2000 order (which we received on
November 28, 2000), the judge issued a ruling on Evoke Software's preliminary
injunction motion. In a detailed opinion, the judge denied the broad injunction
requested by Evoke Software and allowed us to continue use of the name and mark
Evoke Communications, the domain name evoke.com, and the ticker symbol EVOK, but
ordered us to take the following steps: (1) bring our advertising campaign to an
orderly halt within forty-five days, (2) post a very prominent disclaimer on the
first page of our web page informing visitors that we are not affiliated with
Evoke Software, (3) ensure that the word "evoke" does not appear alone on our
website or invoices (or anywhere else) to identify us, but instead is
accompanied by the word "communications" and (4) not name any new products or
services with the word "evoke" and then a descriptive word for the product or
service, although we may continue to call our existing products or services by
their established brand names. The judge required that Evoke Software post a
$5,000,000 bond to protect us in the event that the trial court rules in our
favor. The judge also stayed the enforcement of the order until January 12, 2001
to allow us to appeal the order, provided we file a notice of appeal within ten
days and diligently prosecute the appeal. In a separate order also dated
November 27, 2000, the court denied the remaining portion of our motion to
enforce a settlement agreement and related promises that we filed on August 2,
2000. The defense of this lawsuit has resulted in significant legal fees and
expenses, and, as the case continues, will result in our incurring additional
significant legal fees and expenses. We intend to file a notice of appeal of the
preliminary injunction order by December 7, 2000, and seek clarification from
the court regarding its meaning of the term "advertising campaign." Loss at
trial, or a strict interpretation by the court of the term "advertising
campaign", with no reversal or reduction upon appeal, or settlement of the
dispute could result in substantial additional expenses and could substantially
impair our business operations, materially and adversely affect our results of
operations, diminish our goodwill among customers, employees and investors, and
could
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adversely affect the market price of our common stock. This litigation is still
at an early stage, and it is therefore not possible to predict the outcome of
the litigation with any degree of certainty. Other than this matter, we are not
currently involved in any material legal proceedings.
Item 7. Financial Statements and Exhibits
(None required)
2.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: December 6, 2000
EVOKE COMMUNICATIONS, INC.
By: /s/ Terence G. Kawaja
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Terence G. Kawaja
Its: Executive Vice President and
Chief Financial Officer
