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8/3/2019 CA Complaint
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-1-Complaint and Demand for Jury Trial
Richard P. Sybert, Bar No. 80731email [email protected] C. Amato, Bar No. 261453email [email protected] & REES LLP101 W. Broadway, Suite 1600
San Diego, California 92101tel (619) 696-6700 / fax (619) 696-7124
Attorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH andSOFTMAKER ENTWICKLUNGS GMBH
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SOFTMAKER SOFTWARE GMBH, a Germanlimited liability company, and SOFTMAKERENTWICKLUNGS GMBH, a German limitedliability company,
Plaintiffs,
vs.
THIRD SCROLL PRODUCTS LLC, an Indianalimited liability company, SONNEY COLFAX, anindividual, and DOES 1 through 10, inclusive,
Defendants.
)))))))))))))))
CASE NO. ______________________
COMPLAINT AND DEMAND FORJURY TRIAL
Plaintiffs SoftMaker Software GmbH (SoftMaker), and SoftMaker Entwicklungs
GmbH (SEG), referred to collectively herein as Plaintiffs, state and allege as follows for
their complaint against defendants Third Scroll Products, LLC (Third Scroll), Sonney Colfax
(Colfax), and Does 1 through 10, inclusive (collectively, the Does), all referred to
collectively hereinafter as Defendants.
NATURE OF THE ACTION
1. This is an action for willful violations of Plaintiffs intellectual property rights,
including copyright infringement, trademark infringement, and unfair competition, all arising out
'11CV1577 RBBBTM
Case 1:11-cv-01574-JMS-DKL Document 1 Filed 07/18/11 Page 1 of 19 PageID #: 1
Provided by:Overhauser Law Offices LLCwww.iniplaw.orgwww.overhauser.com
mailto:[email protected]:[email protected]://www.iniplaw.org/http://www.iniplaw.org/http://www.overhauser.com/http://www.overhauser.com/http://www.iniplaw.org/mailto:[email protected]8/3/2019 CA Complaint
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of Defendants production, importation, distribution, sale, and offer for sale of unauthorized,
hacked copies of Plaintiffs software bearing Plaintiffs marks.
THE PARTIES
2. Plaintiff SoftMaker is a company formed under the laws of Germany with its
principal place of business in Nuremberg, Germany.
3. Plaintiff SEG is a company formed under the laws of Germany with its principal
place of business in Nuremberg, Germany.
4. On information and belief, Defendant Third Scroll is an Indiana limited liability
company with its principal place of business in Indianapolis, Indiana, which does business using
the Internet and interstate mail.
5. On information and belief, Defendant Colfax is an individual who resides in
Indianapolis, Indiana. On information and belief, Colfax is an officer, shareholder, director,
and/or agent of Third Scroll and otherwise controls Third Scroll; Colfax personally participated
in and/or had the right and ability to supervise, direct, and control the wrongful conduct alleged
in this Complaint and derived financial benefit from that conduct.
6. On information and belief, the Does are either entities or individuals subject to the
jurisdiction of this Court. The true names and capacities, whether individual, corporate,
associate, or otherwise, of the Does are unknown to Plaintiffs, who therefore sue the Does, and
each of them, by such fictitious names, and Plaintiffs will seek leave of the Court to amend this
Complaint to allege such true names and capacities when the same are ascertained.
7. On information and belief, each of the Defendants was the agent, employee,
and/or alter-ego of each of the other remaining Defendants and, at all times relevant herein, acted
within the course and scope of such agency and/or employment.
JURISDICTION AND VENUE
8. Jurisdiction of these claims arise under the copyright laws of the United States as
set forth in 17 U.S.C. 101, et seq. (the Copyright Act), and under the trademark laws of the
United States as set forth in 15 U.S.C. 1051 et seq. (the Lanham Act).
///
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9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
1331 (federal question), 28 U.S.C. 1332 (diversity), and 28 U.S.C. 1338 (copyrights and
trademarks).
10. This Court is a proper venue pursuant to 28 U.S.C. 1391(b)(1) and (b)(2) in that
a substantial portion of the events giving rise to the claim occurred in this District, and
Defendants do business in and therefore is deemed to reside in this District under 28 U.S.C.
1391(c). This Court is also a proper venue pursuant to 28 U.S.C. 1400(b) for the same
reasons.
11. This Court has personal jurisdiction over the Defendants by virtue of the fact that
they have availed themselves of the forum by doing business here, by virtue of their actions of
infringement by sales of infringing product to California customers, and by having conducted the
acts giving rise to these claims in the State of California and the Southern District of California.
FACTUAL ALLEGATIONS
Introduction
12. Plaintiffs are in the business of, and have made and continue to make substantial
investments of time, effort, and expense in, designing, developing, testing, manufacturing,
publishing, marketing, distributing, and licensing a variety of software products recorded on
various media, including without limitation optical disks, for use on computers. Plaintiffs have
gained a worldwide reputation for quality and reliability respecting their computer software
products.
13. In connection with Plaintiffs software products, Plaintiffs own copyrights and
licenses of foreign works that through established international treaties are subject to protection
under the United States Copyright Act (Copyright Act), and Plaintiff SoftMaker owns
trademarks that are the subject of registrations with the United States Patent and Trademark
Office (USPTO).
14. Widespread sales of illegal copies of Plaintiffs software products, commonly
known as software piracy, and widespread unauthorized use of SoftMakers trademarks, or
marks confusingly similar thereto, in connection with such sales, commonly known as
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counterfeiting, cause significant harm to Plaintiffs, undermine Plaintiffs investments in their
products, diminish Plaintiffs goodwill, and cause substantial harm to consumers who are falsely
led to believe they are acquiring Plaintiffs licensed genuine software products.
15. Plaintiffs bring this action as a result of Defendants unauthorized copying,
reproduction, and/or distribution of certain of Plaintiffs software products, Defendants
circumvention of technological copyright protection measures incorporated into those software
products, and Defendants unauthorized use of certain of SoftMakers trademarks and/or marks
confusingly similar thereto, through sales conducted over the Internet, including via the website
previously accessible through the domain name http://www.ezbookpc.com/ (the Website), and
through interstate mail. Defendants actions complained of herein were and continue to be
undertaken willfully and intentionally and have caused and continue to cause substantial damage
to Plaintiffs and the software industry.
16. Defendants actions complained of herein constitute willful violation of Plaintiffs
rights under the Copyright Act and SoftMakers rights under the Lanham Act. Plaintiffs
respectfully request the Court enter an injunction against Defendants and award Plaintiffs
damages, costs, and attorneys fees as allowed by statute.
Plaintiffs Software Products and Copyrights
17. Three of Plaintiffs software products include Textmaker 2008 software,
Planmaker 2008 software, and Softmaker Presentations 2008 software, distributed together
as the Softmaker Office 2008 office suite. Plaintiffs package and distribute the aforenamed
software products together with associated user instruction manuals, end-user license
agreements, and other documentation. The aforenamed software products along with their user
instruction manuals are referred to collectively hereinafter as the Plaintiffs Products.
18. Plaintiffs Products were created and first published in Germany. Germany and
the United States are members of several international copyright treaties, including the Berne
Convention for the Protection of Literary and Artistic Works, the Universal Copyright
Convention, Geneva Act, the Universal Copyright Convention, Paris Act, the WIPO Copyright
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Treaty, and the Agreement on Trade-Related Aspects of Intellectual Property Rights
(International Agreements).
19. Plaintiffs Products contain a large amount of material wholly original with
Plaintiffs, which material is copyrightable subject matter under the laws of the United States
pursuant to 17 U.S.C. 102(a)(6) and 104(b)(2). Because Plaintiffs Products are not United
States works as defined by 17 U.S.C. 101, registration of Plaintiffs Products with the
Copyright Office is not a prerequisite to filing suit for infringement under 17 U.S.C. 411(a).
20. At all times herein relevant, Plaintiffs complied in all respects with the applicable
copyright laws where the Plaintiffs Products were developed and have thereby in accordance
with the International Agreements and the Copyright Act, secured the exclusive rights and
privileges in and to the copyrights in the Plaintiffs Products (collectively, the Plaintiffs
Copyrights).
21. Since the creation of the Plaintiffs Copyrights, the Plaintiffs Products have been
published and distributed by Plaintiffs, or under their authority, in compliance with the
applicable international and national laws, the International Agreements and the Copyright Act.
22. Plaintiffs have not authorized Defendants to: (a) copy, reproduce, or distribute
the Plaintiffs Products; or (b) circumvent the technological copyright protection measures in the
Plaintiffs Products that control access to the Plaintiffs Products.
SoftMakers Trademarks
23. At all times herein relevant, SoftMaker has owned trademarks registered in
accordance with the Lanham Act with the USPTO, for which SoftMaker has received
Certificates of Registration. SoftMakers trademarks include, without limitation,
SOFTMAKER (U.S. Trademark Registration No. 3,051,159), which registered on January 24,
2006, and TEXTMAKER (U.S. Trademark Registration No. 3,104,183), which registered on
June 13, 2006, both of which are maintained on the Principal Register (collectively, the
SoftMaker Trademarks).
24. SoftMaker has continuously used each of the SoftMaker Trademarks from the
date of registration thereof, or earlier, until the present and at all times relevant to the claims
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alleged herein. As a result of extensive use, advertising, and sales, together with longstanding
consumer acceptance, the SoftMaker Trademarks have come to identify to consumers and the
public that SoftMaker is the source of origin for authorized copies of the Plaintiffs Products.
The SoftMaker Trademarks have acquired throughout the United States and the world, secondary
meaning in the minds of consumers, who associate the SoftMaker Trademarks with SoftMaker
and its quality products. By virtue of SoftMakers advertising and distribution of the Plaintiffs
Products in connection with the SoftMaker Trademarks, together with consumer acceptance and
recognition, the SoftMaker Trademarks identify SoftMaker and the Plaintiffs Products, and
distinguish the same from, respectively, other entities and their products. The SoftMaker
Trademarks have become, and are, valuable assets symbolizing SoftMaker, its quality goods, and
its goodwill.
25. SoftMaker has not authorized Defendants to use the SoftMaker Trademarks in
connection with the Plaintiffs Products.
The Business and Infringing Activities of Defendants
26. Without authorization by any one or more of Plaintiffs, Defendants and/or their
agents have: (a) copied and reproduced the Plaintiffs Products; (b) circumvented technological
copyright protection measures associated with all authorized copies of the Plaintiffs Products to
make and distribute unauthorized copies of the Plaintiffs Products; (c) used the Internet,
including without limitation the Website, and interstate mail to advertise, sell, and distribute such
unauthorized copies of the Plaintiffs Products to consumers throughout the United States; and
(d) used and distributed unauthorized reproductions, counterfeits, and/or copies of the SoftMaker
Trademarks, or marks confusingly similar thereto, including without limitation on the Website
and on the unauthorized copies of the Plaintiffs Products that Defendants copied, reproduced,
sold, and distributed, some of which were installed on laptop computers called EZ Books.
27. On information and belief, Defendants have engaged willfully and intentionally in
the conduct complained of above.
28. In or around October 2010, Plaintiffs discovered that Defendants were marketing,
selling, and/or distributing copies of Plaintiffs Products and using SoftMakers trademarks, or
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marks confusingly similar thereto, without authorization of any one or more of Plaintiffs.
Through undersigned counsel, Plaintiffs instructed Third Scroll in writing to cease and desist
from further similar unauthorized activities. Counsel for Third Scroll responded in writing once,
but then ceased all further communications. While Defendants removed access to the Website,
on information and belief, Defendants subsequently: (a) sold and distributed illegal copies of
certain of Plaintiffs software products, including, without limitation, the Plaintiffs Products;
and (b) used in commerce and without authorization certain of SoftMakers trademarks,
including, without limitation, the SoftMaker Trademarks.
FIRST CLAIM FOR RELIEF
Copyright Infringement
29. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations
of the preceding paragraphs above.
30. Defendants acts constitute infringement of Plaintiffs Copyrights in violation of
the Copyright Act, 17 U.S.C. 501.
31. On information and belief, Defendants unauthorized copying, reproduction, and
distribution of the Plaintiffs Products was deliberate, willful, malicious, oppressive, and without
regard to the Plaintiffs proprietary rights, including without limitation the Plaintiffs Copyrights.
32. Defendants copyright infringement has caused, and will continue to cause,
Plaintiffs to suffer substantial injuries, loss, and damage to their proprietary and exclusive rights
to, and copyrights in, the Plaintiffs Products and, further, has damaged Plaintiffs respective
business reputations and goodwill, diverted Plaintiffs trade, and caused Plaintiffs to lose profits,
all in an amount not yet ascertained.
33. Defendants copyright infringement, and the threat of continuing infringement by
Defendants, have caused, and will continue to cause, Plaintiffs to suffer repeated and irreparable
injury. It would be difficult to ascertain the amount of money damages that would afford
Plaintiffs adequate relief at law for Defendants continuing acts, and a multiplicity of judicial
proceedings would be required. Plaintiffs remedy at law is not adequate to compensate
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Plaintiffs for the injuries already inflicted and further threatened by Defendants. Therefore,
Defendants should be restrained and enjoined pursuant to the Copyright Act.
34. On information and belief, Defendants infringing acts have been knowing,
intentional, wanton, and willful, entitling Plaintiffs to enhanced statutory damages, profits,
attorneys fees and costs pursuant to 17 U.S.C. 504-505 in this Courts discretion.
SECOND CLAIM FOR RELIEF
Circumvention of Copyright Protection Measures
35. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations
of the preceding paragraphs above.
36. Plaintiffs Products contain technological measures that effectively control access
to the Plaintiffs Products (collectively, the Access Control Technology).
37. Defendants used without Plaintiffs authorization one or more technologies,
products, services, devices, components, or parts thereof to willfully and intentionally
circumvent the Access Control Technology contained in the Plaintiffs Products, for the purpose
of engaging in the unauthorized copying, reproduction, and distribution of the Plaintiffs
Products.
38. Defendants circumvented the Access Control Technology without Plaintiffs
authorization in violation of 17 U.S.C. 1201(a).
39. Defendants unauthorized circumvention of the Access Control Technology in the
Plaintiffs Products has caused, and will continue to cause, Plaintiffs to suffer substantial
injuries, loss, and damage to their proprietary and exclusive rights to, and copyrights in, the
Plaintiffs Products and, further, has damaged Plaintiffs respective business reputations and
goodwill, diverted their trade, and caused a loss of profits, all in an amount not yet ascertained.
40. Defendants unauthorized circumvention of the Access Control Technology in the
Plaintiffs Products, and the threat of continuing circumvention, has caused, and will continue to
cause, Plaintiffs to suffer repeated and irreparable injury. It would be difficult to ascertain the
amount of money damages that would afford Plaintiffs adequate relief at law for Defendants
continuing acts complained of herein, and a multiplicity of judicial proceedings would be
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required. Plaintiffs remedy at law is not adequate to compensate it for the injuries already
inflicted and further threatened by Defendants. Therefore, pursuant to the Copyright Act,
Defendants should be restrained and enjoined and any device or product in Defendants custody
or control that enabled or was involved in the circumvention should be impounded pursuant to
the Copyright Act, 17 U.S.C. 1203(b).
THIRD CLAIM FOR RELIEF
Trademark Infringement and Counterfeiting
41. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations
of the preceding paragraphs above.
42. Defendants acts constitute infringement of the SoftMaker Trademarks in
violation of Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. 1114(1) and 1125(a).
43. Defendants infringing acts alleged above have caused, and will continue to
cause, a likelihood of, and actual, confusion, mistake, and/or deception among consumers as to
the source, quality, and nature of the unauthorized, unlicensed, and infringing copies of the
Plaintiffs Products made, advertised, sold, and distributed by Defendants.
44. Defendants unauthorized use of the SoftMaker Trademarks competes directly
with SoftMakers distribution of authorized copies of the Plaintiffs Products, diverts trade from
SoftMaker, and diminishes SoftMakers goodwill.
45. Defendants infringing acts alleged above have and will lead consumers to believe
erroneously that the unauthorized copies of the Plaintiffs Products made, advertised, sold, and
distributed by Defendants are being offered for distribution by SoftMaker or with SoftMakers
authorization.
46. Defendants use of the SoftMaker Trademarks on the Internet, in interstate mail,
in marketing materials, and/or on unauthorized copies of the Plaintiffs Products has caused, and
is likely to continue to cause confusion amongst consumers, threatens injury to SoftMakers
business reputation and the goodwill associated with the SoftMaker Trademarks, and constitutes
fraud on the public.
///
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47. Defendants have used reproductions, counterfeits, copies, or colorable imitations
of the SoftMaker Trademarks in commerce in connection with Defendants distribution of
unauthorized copies of the Plaintiffs Products.
48. On information and belief, Defendants used the SoftMaker Trademarks knowing
that such use was counterfeit.
49. Defendants counterfeit use of the SoftMaker Trademarks was in connection with
the same or related categories of goods or services as are covered by SoftMakers federal
registrations of those trademarks as maintained by the USPTO.
50. Defendants actions alleged above have created, and will continue to create,
among members of the general public a likelihood of confusion, mistake, or deception, and
actual confusion, mistake, or deception, as to Defendants purported affiliation, connection,
and/or association with SoftMaker and as to the purported origin, sponsorship, and/or approval
by SoftMaker of the distributed goods and activities of Defendants complained of above.
51. As a result of Defendants acts complained of above, SoftMaker has suffered
damage to its business reputation and goodwill, a diversion of trade, and a loss of profits, all in
an amount not yet ascertained and for which SoftMaker is entitled to recover damages pursuant
to 15 U.S.C. 1117.
52. As a result of the damage suffered by SoftMaker in connection with its business
reputations and goodwill, the diversion of its trade, and the loss of its profits as caused by
Defendants infringement and counterfeiting of the SoftMaker Trademarks, all in an amount not
yet ascertained, SoftMaker is entitled to recover damages pursuant to 15 U.S.C. 1117.
53. On information and belief, Defendants infringing acts have been knowing,
intentional, wanton, and willful, entitling Plaintiffs to treble damages, profits, attorneys fees and
costs pursuant to 15 U.S.C. 1117 in this Courts discretion.
54. Further, Defendants trademark infringement and counterfeiting, and the threat of
continuing infringement and counterfeiting, have caused, and will continue to cause SoftMaker
repeated and irreparable injury. It would be difficult to ascertain the amount of money damages
that would afford SoftMaker adequate relief at law for Defendants continuing acts, and a
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multiplicity of judicial proceedings would be required. SoftMakers remedy at law is not
adequate to compensate SoftMaker for the injuries already inflicted and further threatened by
Defendants. Therefore, Defendants should be restrained and enjoined pursuant to the Lanham
Act, 15 U.S.C. 1051, et seq., including without limitation 15 U.S.C. 1116, et seq.
FOURTH CLAIM FOR RELIEF
False Designation of Origin
55. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations
of the preceding paragraphs above.
56. This claim for relief arises under Section 43(a) of the Lanham Act, 15 U.S.C.
1125(a).
57. Defendants have used the SoftMaker Trademarks, have made false descriptions or
representations regarding the Plaintiffs Products, have distributed unauthorized copies of the
Plaintiffs Products in interstate commerce, and have caused said unauthorized copies to enter
interstate commerce.
58. Defendants actions alleged above have created, and will continue to create,
among members of the general public a likelihood of confusion, mistake, or deception, and
actual confusion, mistake, or deception, as to Defendants purported affiliation, connection,
and/or association with SoftMaker and as to the purported origin, sponsorship, and/or approval
by SoftMaker of the distributed goods and activities of Defendants.
59. Defendants actions complained of above constitute unfair competition with
SoftMaker, and as a result of Defendants acts complained of above, SoftMaker has have
suffered damage to its business reputation and goodwill, a diversion of trade, and a loss of
profits, all in an amount not yet ascertained and for which SoftMaker is entitled to recover
damages pursuant to 15 U.S.C. 1117.
60. On information and belief, Defendants infringing acts have been knowing,
intentional, wanton, and willful, entitling Plaintiffs to treble damages, profits, attorneys fees and
costs pursuant to 15 U.S.C. 1117 in this Courts discretion.
///
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61. Further, Defendants false designation of origin and unfair competition, and the
threat of continuing false designation of origin and unfair competition, have caused, and will
continue to cause, SoftMaker repeated and irreparable injury. It would be difficult to ascertain
the amount of money damages that would afford SoftMaker adequate relief at law for
Defendants continuing acts, and a multiplicity of judicial proceedings would be required.
SoftMakers remedy at law is not adequate to compensate SoftMaker for the injuries already
inflicted and further threatened by Defendants. Therefore, Defendants should be restrained and
enjoined pursuant to the Lanham Act, 15 U.S.C. 1051, et seq., including without limitation 15
U.S.C. 1116.
FIFTH CLAIM FOR RELIEF
Unfair Competition Under Cal. Bus. & Prof. Code 17200 et seq.
62. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations
of the preceding paragraphs above.
63. California Business & Professions Code 17200 provides that unfair competition
means and includes any unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue, or misleading advertising.
64. By and through Defendants conduct, including the conduct detailed above,
Defendant has engaged in activities that constitute unlawful, unfair, and fraudulent business
practices prohibited by Business & Professions Code 17200 et seq.
65. Defendants acts of intentional and willful copyright and trademark infringement
as alleged above constitute unfair competition actionable under the laws of the State of
California as unlawful business acts or practices in that, inter alia, said acts violate the Copyright
Act and the Lanham Act.
66. Defendants acts of intentional and willful copyright and trademark infringement
as alleged above constitute unfair competition actionable under the laws of the State of
California as unfair business acts or practices in that, inter alia, said acts are immoral, unethical,
oppressive, and unscrupulous.
///
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67. Defendants acts of intentional and willful copyright and trademark infringement
as alleged above constitute unfair competition actionable under the laws of the State of
California as fraudulent business acts of practices in that, inter alia, said acts are likely to
confuse the public as to the origin of the infringing products.
68. Defendants acts of intentional and willful copyright and trademark infringement
as alleged above constitute unfair competition actionable under the laws of the State of
California as deceptive and false advertising in that, inter alia, said acts are likely to cause
confusion, mistake, and deception.
69. The above described acts and omissions are unlawful, unfair, fraudulent,
deceptive, misleading, and untrue, and constitute a violation of Business & Professions Code
17200 et seq. Plaintiffs reserve the right to identify additional violations by Defendant as may
be established through discovery.
70. As a result of Defendants said acts of unfair competition, Plaintiffs have suffered
and will continue to suffer irreparable harm. Unless the acts of unfair competition are enjoined
by this Court, Plaintiffs will continue to suffer irreparable harm.
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that this Court grant relief as follows:
1. A preliminary and permanent injunction enjoining and restraining Defendants,
and each of them, and their respective agents, servants, employees, successors and assigns, and
all other persons acting in concert or conspiracy with Defendants or affiliated with Defendants,
from:
(a) Copying, reproducing, distributing, or using any unauthorized copies of
Plaintiffs copyrighted software products;
(b) Otherwise infringing any of Plaintiffs copyrights;
(c) Using any technologies, products, services, devices, components, or parts
thereof to circumvent technological copyright protection measures associated with any of
Plaintiffs software products;
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(d) Copying, reproducing, advertising, offering for sale, distributing, or using
any software products under or in connection with any of the SoftMaker Trademarks or any
other marks confusingly similar thereto;
(e) Using in any manner any of the SoftMaker Trademarks, or any marks
confusingly similar thereto, in connection with any of Defendants goods in such a manner that is
likely to create the erroneous belief that said goods are authorized by, sponsored by, licensed by,
or are in some way associated with SoftMaker;
(f) Otherwise infringing any of the SoftMaker Trademarks; and
(g) Destroying or altering any copies of software or other products, materials,
technologies, services, devices, components, documents, or electronically stored data or files that
relate or pertain in any way to:
(i) The copying, reproduction, distribution, or use of Plaintiffs
software products;
(ii) The circumvention of technological copyright protection measures
associated with any of Plaintiffs software products;
(iii) The use of the SoftMaker Trademarks, or any trademarks
confusingly similar thereto, on or in connection with the advertisement, sale, or distribution of
goods; or
(iv) The infringement of Plaintiffs copyrights; or
(v) The infringement of SoftMakers trademarks.
2. A preliminary and permanent injunction ordering the impound of any device or
product in Defendants custody or control that has been involved in Defendants circumvention
of technological copyright protection measures associated with any of Plaintiffs software
products;
3. That Plaintiffs be awarded for Defendants copyright infringement either:
(a) actual damages in an amount to be determined at trial, together with the
profits derived from Defendants unlawful infringement of Plaintiffs copyrighted Plaintiffs
Products; or
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(b) statutory damages for each act of infringement in an amount provided by
law, as set forth in 17 U.S.C. 504, at Plaintiffs election before the entry of a final judgment.
4. That Plaintiffs be awarded for Defendants circumvention of technological
copyright protection measures either: (a) actual damages in an amount to be determined at trial,
together with the profits derived from Defendants circumvention; or (b) statutory damages for
each violation in an amount provided by law, as set forth in 17 U.S.C. 1203(c), at Plaintiffs
election before the entry of a final judgment;
5. That SoftMaker be awarded for Defendants infringement of the SoftMaker
Trademarks, false designation of origin, and unfair competition, as set forth in 15 U.S.C.
1117(a), the profits obtained by Defendants and the damages sustained by SoftMaker by reason
of Defendants unlawful acts alleged herein, and that such amounts be trebled pursuant to 15
U.S.C. 1117(b);
6. That SoftMaker be awarded for Defendants trademark counterfeiting, as set forth
in 15 U.S.C. 1117(c), and at SoftMakers election before the entry of the final judgment, either:
(a) actual damages in an amount to be determined at trial, together with Defendants profits
derived from the unlawful counterfeiting of SoftMakers registered trademarks; or (b) statutory
damages for each registered trademark in an amount provided by law based on a determination
that Defendants trademark counterfeiting was willful;
7. That the Court issue an order requiring Defendants to file with this Court and
serve on Plaintiffs within thirty (30) days after service of an injunction a report, in writing, under
oath, setting forth in detail the manner and form in which Defendants have complied with the
injunction;
8. That the Court issue an order upon judgment requiring Defendants to destroy any
and all infringing copies in Defendants possession, custody, or control of Plaintiffs Products
and any materials bearing the SoftMaker Trademarks without SoftMakers authorization;
9. That the Court issue an order upon judgment requiring Defendants to destroy any
device or product involved in Defendants circumvention of technological copyright protection
measures associated with any of Plaintiffs Products;
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10. That the Court award Plaintiffs their reasonable attorneys fees pursuant to 17
U.S.C. 505 and 1203(b) and 15 U.S.C. 1117(a)(3);
11. That the Court award Plaintiffs their costs of suit incurred herein; and
12. That the Court grant such other and further relief as it deems just and proper.
Dated: July 18, 2011 Respectfully submitted,
GORDON & REES LLP
by s/Richard P. Sybert/Richard P. SybertYuo-Fong C. AmatoAttorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH and
SOFTMAKER ENTWICKLUNGSGMBH
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DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury for all claims triable by a jury.
Dated: July 18, 2011 Respectfully submitted,GORDON & REES LLP
by s/Richard P. Sybert/Richard P. SybertYuo-Fong C. AmatoAttorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH andSOFTMAKER ENTWICKLUNGSGMBH
OFTM/1067785/10150784v.1
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44 Reverse (Rev. 12/07)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for thf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comled. The attorney filing a case should complete the form as follows:
(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, g
oth name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thef filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation
he county of residence of the defendant is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, nn this section (see attachment).
I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X if the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.
ederal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment onstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, an
or 2 should be marked.iversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship
ifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
II. Residence (citizenship) of PrincipalParties. This section of the JS 44 is to be completedif diversity of citizenship was indicated above. Mark this sor each principal party.
V. Nat ur e o f Suit. Place an X in the appropriate box. If the nature of suit cannot be determined,be sure the cause of action, in Section VI below, is suffo enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, he most definitive.
. Origin. Place an X in one of the seven boxes.
riginal Proceedings. (1) Cases which originate in the United States district courts.
emoved from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the peor removal is granted, check t his box.
emanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.einstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
ransferred from Another District. (5) For cases transferred under Title 28 U .S.C. Section 1404(a). Do not use this for within district transfers or multidtigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thchecked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.
I. Cause of Act io n. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional stnless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
II. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.
emand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
ury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
III. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numnd the corresponding judge names for such cases.
ate and Attorney Signature. Date and sign the civil cover sheet.
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