Patently Mobile reported yesterday that Microsoft had launched a Copyright lawsuit against Ocean Enterprises and Alex Sumetsky in Minnesota. We noted that in the bigger picture, Microsoft's case was really about waging war against software piracy. That particular report also provided readers with the latest statistics from The Software Alliance (BSA) that was only published last week. The BSA's membership includes Microsoft, Apple, Oracle, and others. Today we report on Microsoft's second such case within the last week. This time it's against EZPC and its owner Miguel Bautista. Will more cases be filed in the coming weeks ahead? Only time will tell.
Overview of Microsoft's Complaint
Microsoft Corporation ("Microsoft") brings this action against Defendants EZPC Recycling, Inc., a California corporation, and Miguel Bautista, an individual, ("Defendants") alleging that Defendants engaged in copyright and trademark infringement, false designation of origin, false description and representation, and unfair competition. Microsoft seeks damages, an accounting, the imposition of a constructive trust and injunctive relief.
According to Microsoft's formal complaint before the court, "Defendant EZPC Recycling, Inc. is a California corporation that does business on the Internet and in Santa Ana, California and is engaged in the business of advertising, marketing, installing, offering, and distributing computer hardware and software, including purported Microsoft software.
Defendant Miguel Bautista is an officer, director, shareholder, and/or manager who owns, operates, or otherwise controls EZPC Recycling, Inc. Upon information and belief, Miguel Bautista (a) personally participated in and/or had the right and ability to direct and control the wrongful conduct alleged in this Complaint, and (b) derived direct financial benefit from that wrongful conduct. Upon information and belief, Miguel Bautista resides and transacts substantial business in this district."
Microsoft's Registered Trademarks and Service Mark
Microsoft's formal complaint before the court establishes the trademarks and service mark involved in this case as follows: "Microsoft has also duly and properly registered a number of trademarks and a service mark in the United States Patent and Trademark Office on the Principal Register, including, but not limited to:
A. "MICROSOFT," Trademark and Service Mark Registration No. 1,200,236, for computer programs and computer programming services;
B. "MICROSOFT," Trademark Registration No. 1,256,083, for computer hardware and software manuals, newsletters, and computer documentation;
C. WINDOWS, Trademark Registration No. 1,872,264 for computer programs and manuals sold as a unit; and
D. COLORED FLAG DESIGN, Trademark Registration No. 2,744,843, for computer software;
The Heart of the Complaint against EZPC (Defendants)
According to Microsoft's formal complaint before the court we see that in the bigger picture, this case is about software piracy, the second such case brought by Microsoft against alleged software pirates.
In this case, Microsoft states that the "Defendants advertised, marketed, installed, offered and distributed unauthorized copies of Microsoft software after Microsoft warned Defendants of the consequences of infringing Microsoft's copyrights, trademarks and/or service mark.
On information and belief, Defendants advertise that the computers that they sell come pre-installed with Microsoft software. In the advertisements, Defendants misappropriate and/or infringe Microsoft's copyrights, advertising ideas, style of doing business, slogans, trademarks and/or service mark.
The computers sold by Defendants actually have infringing copies of Microsoft software installed.
By letter dated March 17, 2014, Microsoft warned Defendants that it violates copyright and trademark laws to make and distribute unauthorized copies of Microsoft software programs on computer systems. Microsoft also informed Defendants of the consequences of such infringement. Nevertheless, in or about May 2014, Defendants distributed to an investigator computer systems with unauthorized copies of Windows Vista installed.
On information and belief, this is not an isolated incident. Rather, Defendants have been and continue to be involved in advertising, marketing, installing, offering, and/or distributing counterfeit and infringing copies of Microsoft's software and/or related components to unidentified persons or entities.
On information and belief, Defendants have committed and are continuing to commit acts of copyright and trademark infringement against Microsoft. On information and belief, at a minimum, Defendants were willfully blind and acted in reckless disregard of Microsoft's registered copyrights, trademarks and service marks.
On information and belief, Microsoft has been harmed by Defendants' advertising activities, including the unauthorized use of Microsoft's copyright protected material, and the unauthorized use of Microsoft's marks to describe the items that Defendants are distributing.
Microsoft's Six Counts against the Defendants
1. Copyright Infringement
2. Trademark Infringement
3. False Designation of Origin, False Description and Representation of Microsoft Packaging
4. California Common Law Unfair Competition
5. For Imposition Of A Constructive Trust Upon Illegal Profit
The amount of money due from Defendants to Microsoft is unknown to Microsoft and cannot be ascertained without a detailed accounting by Defendants of the precise number of units of infringing material advertised, marketed, installed, offered or distributed by Defendants.
Microsoft's Prayer for Relief In-Part
As part of Microsoft's prayer for relief they're asking the court to issue injunctive relief against Defendants, and that Defendants, any directors, principals, officers, agents, representatives, servants, employees, attorneys, successors and assigns, and all others in active concert or participation with Defendants, be enjoined and restrained from:
(a) imitating, copying, or making any other infringing use or infringing distribution of the software programs, components , end user license agreements ("EULA"), certificates of authenticity ("COAs") and/or items protected by the following copyright Certificate Registration No .TX-6-508-905 ("Windows Vista") [the other software is noted above regarding Microsoft's trademarks and service mark]
(b) manufacturing, assembling, producing, distributing, offering for distribution, circulating, selling, offering for sale, advertising, importing, promoting, or displaying any software program, component, EULA, COA and/or item bearing any simulation, reproduction, counterfeit, copy, or colorable imitation of any of Microsoft's registered trademarks, service mark, or copyrights, including, but not limited to, the Trademark, Service Mark, and Copyright Registration Numbers listed above.
Using any simulation, reproduction, counterfeit, copy, or colorable imitation of Microsoft's registered trademarks, service mark, or copyright including, but not limited to the Trademark, Service Mark, and Copyright Registration Numbers listed in Section (2)(a) above, in connection with the manufacture, assembly, production, distribution, offering for distribution, circulation, sale, offering for sale, import, advertisement, promotion, or display of any software program, component, EULA, COA, and/or item not authorized or licensed by Microsoft;
(d) using any false designation of origin or false or misleading description or false or misleading representation that can or is likely to lead the trade or public or individuals erroneously to believe that any software program, component, and/or item has been manufactured, assembled, produced, distributed, offered for distribution, circulation, sold, offered for sale, imported, advertised, promoted, displayed, licensed, sponsored, approved, or authorized by or for Microsoft, when such is not true in fact;
(e) engaging in any other activity constituting an infringement of any of Microsoft's trademarks, service mark and/or copyrights, or of Microsoft's rights in, or right to use or to exploit, these trademarks, service mark, and/or copyrights; and assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to.
The patent infringement case presented in today's report was filed in the California Central District Court. At present, no Judge has been assigned to the case.
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