`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO 0:20-CV-62165
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`CRICKET WIRELESS LLC, AT&T
`MOBILITY LLC, and AT&T
`INTELLECTUAL PROPERTY II, L.P.,
`
`
`Plaintiff,
`
`v.
`
`NOELTHETECHEXPERTS, LLC, NOEL
`BROWN, and JOHN DOES 1-20,
`
`
`Defendants.
`
`
`
`
`COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
`
`Plaintiffs Cricket Wireless LLC (“Cricket” or “Cricket Wireless”), AT&T Mobility LLC
`
`(“AT&T PREPAID”) and AT&T Intellectual Property II, L.P. (collectively “AT&T” or
`
`“Plaintiffs”), hereby file this Complaint for Damages and Injunctive Relief against Defendants
`
`Noel Brown, NoelTheTechExperts, LLC, and John Does 1-20 (collectively “Defendants”) and
`
`state:
`
`PARTIES
`
`1.
`
`Cricket Wireless LLC is a Delaware limited liability company with its principal
`
`place of business at 1025 Lenox Park Boulevard, NE, Atlanta, Georgia 30319.
`
`2.
`
`AT&T Mobility LLC is a Delaware limited liability company with its principal
`
`place of business at 1025 Lenox Park Boulevard, NE, Atlanta, Georgia 30319.
`
`3.
`
`AT&T Intellectual Property II, L.P. is a Nevada limited partnership with a place
`
`of business at 754 Peachtree Street, NE, Atlanta, Georgia 30319.
`
`1
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 2 of 53
`
`4.
`
`Defendant NoelTheTechExperts, LLC is a Florida limited liability company with
`
`its principal place of business and mailing address at 2330 SW 163rd Terrace, Miramar, Florida
`
`33027.
`
`5.
`
`Defendant Noel Brown (“Brown) is an individual who is a resident of Florida and
`
`who conducts business transactions in this District as alleged herein. Upon information and
`
`belief, Noel Brown is the owner and the registered agent for NoelTheTechExperts, LLC. Upon
`
`information and belief, Mr. Brown is located at 2330 SW 163rd Terrace, Miramar, Florida
`
`33027.
`
`6.
`
`Upon information and belief, Defendants John Does 1-20 are individuals and co-
`
`conspirators who participate in other aspects of the Prepaid Phone Trafficking Conspiracy set
`
`forth below, including but not limited to purchasing and reselling AT&T Phones (as defined
`
`below in paragraph 10), obtaining and supplying unlocking codes, providing phone unlocking
`
`services, and/or reselling and shipping AT&T Phones overseas.
`
`JURISDICTION AND VENUE
`
`7.
`
`Jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1331, 1332, and 1338
`
`because AT&T’s claims for violation of the United States Trademark Act, Title 15 of the United
`
`States Code, the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq., and the United
`
`States Copyright Act, Title 17 of the United States Code, arise under federal law. This Court has
`
`supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over AT&T’s state law claims because
`
`those claims are so related to the federal claims that they form part of the same case or
`
`controversy. This Court also has jurisdiction because diversity exists between the parties and the
`
`amount in controversy exceeds $75,000.00 exclusive of costs, fees, and interest.
`
`2
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 3 of 53
`
`8.
`
`Defendant NoelTheTechExperts, LLC is subject to the personal jurisdiction of
`
`this Court because it is a Florida company with its principal place of business in the State of
`
`Florida. The individual Defendants are subject to the personal jurisdiction of this Court because
`
`they have conducted, engaged in and carried out business ventures within the State of Florida,
`
`including unlocking new AT&T Phones without authorization, or have committed tortious acts
`
`within the State of Florida, and have engaged in substantial and not isolated activity within the
`
`State of Florida.
`
`9.
`
`Venue is proper pursuant to 28 U.S.C. § 1391(b) because the Defendants either
`
`reside in this district and/or a substantial part of the events or omissions giving rise to the claims
`
`occurred in this judicial district.
`
`NATURE OF ACTION
`
`10.
`
`AT&T PREPAID™ (f/k/a AT&T GoPhone) sells new prepaid wireless phones
`
`and other mobile devices under the AT&T brand. Cricket Wireless sells new prepaid wireless
`
`phones and other mobile devices under the Cricket brand. These devices (collectively “AT&T
`
`Phones” or “Phones”) are intended for use with SIM cards from the AT&T Mobility or Cricket
`
`Wireless networks (collectively, the “AT&T Authorized Networks”), and are sold at prices lower
`
`than the wholesale price of the Phones as sold to AT&T to make them more widely accessible to
`
`consumers. The Phones are physically branded with AT&T’s registered trademarks and are
`
`preloaded with AT&T proprietary software. AT&T sells its Phones directly from the AT&T
`
`PREPAID and Cricket Wireless websites, from retail stores owned by AT&T, through
`
`authorized AT&T and Cricket dealers (“Authorized Dealers”), and through AT&T approved
`
`national retail chains such as Best Buy, Walmart, or Target (“National Retailers”).
`
`3
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 4 of 53
`
`11.
`
`Defendants and their co-conspirators are perpetrators of an unlawful conspiracy
`
`(the “Conspiracy” or “Prepaid Phone Trafficking Conspiracy”) to profit from the illegal
`
`acquisition, unlocking and resale of new bulk AT&T Phones by misappropriating the substantial
`
`financial investment that AT&T makes in its Phones, and converting that investment for their
`
`own profit and to the detriment of AT&T and its customers. Defendants profit directly by
`
`providing unlocking services and unlock codes to their co-conspirators for a fee.
`
`12.
`
`Upon information and belief, the Prepaid Phone Trafficking Conspiracy involves
`
`Defendants’ co-conspirators directly or indirectly acquiring new, locked AT&T Phones,
`
`ineligible for unlocking, directly from AT&T, at National Retailers, and/or at AT&T and Cricket
`
`Authorized Dealers. As part of this Conspiracy, the Phones, which may be purchased and resold
`
`multiple times, are ultimately resold to someone other than a consumer with whom AT&T has a
`
`business relationship. These Phones are not activated in an authorized manner on an AT&T
`
`Authorized Network. Instead, Defendants provide their co-conspirators with services in either
`
`illicitly circumventing, or causing to circumvent, a technological protection measure, or by
`
`providing co-conspirators with an unlock code specific for each individual new AT&T Phone for
`
`permanently unlocking the phone without authorization. Once the new Phones are unlocked,
`
`they can operate on other carriers’ wireless networks. Upon information and belief, Defendants’
`
`co-conspirators then offer for sale AT&T Phones that they represent to be new. Upon
`
`information and belief, the ultimate users of the Phones may even be located overseas, in a
`
`country where the wireless service provider does not subsidize the cost of new phones.
`
`13.
`
`Defendants’ Prepaid Phone Trafficking Conspiracy takes advantage of AT&T’s
`
`investment in its Phones to reduce the costs for its consumers. Defendants and their co-
`
`conspirators directly or indirectly obtain, and conspire to obtain the new AT&T Phones under
`
`4
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 5 of 53
`
`false or fraudulent pretenses that they will be utilizing the phones on the AT&T Authorized
`
`Networks, but then unlock and resell or divert them to other markets. The Prepaid Phone
`
`Trafficking Conspiracy converts AT&T’s investment dollars into substantial profits for
`
`Defendants and their co-conspirators. In addition, Phones resold by Defendants are materially
`
`different from AT&T Phones sold through legitimate channels, as they are unlocked, and/or sold
`
`without warranty information, original packaging and accessories. While Defendants’ role in the
`
`Conspiracy may not involve each step of the Conspiracy, each of Defendants’ acts is a violation
`
`of AT&T’s rights and causes significant damage to AT&T. Additionally, as participants in the
`
`conspiracy, Defendants are liable for the harm caused to AT&T by the entire Conspiracy.
`
`14.
`
`The Prepaid Phone Trafficking Conspiracy causes tremendous harm to AT&T and
`
`to consumers. In addition to the pecuniary losses caused by AT&T’s misappropriated
`
`investment in the Phones, lost sales and market expenses, and lost expected customer revenue,
`
`Defendants’ misconduct has harmed AT&T’s relationships with its customers, Authorized
`
`Dealers, National Retailers, and others. Defendants’ Prepaid Phone Trafficking Conspiracy also
`
`involves unlawfully accessing AT&T’s protected computers; trafficking of AT&T’s protected
`
`and confidential computer passwords; willful infringement of AT&T’s trademarks; and/or
`
`misappropriating AT&T’s investment in subsidizing new mobile devices. AT&T Phones
`
`fraudulently acquired and resold under Defendants’ Prepaid Phone Trafficking Conspiracy have
`
`also caused substantial damage to AT&T’s brand, image and reputation.
`
`15.
`
`AT&T seeks to recover damages for the harm caused by Defendants’ Prepaid
`
`Phone Trafficking Conspiracy, and to obtain an injunction prohibiting Defendants from
`
`continuing to perpetrate the Prepaid Phone Trafficking Conspiracy.
`
`5
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 6 of 53
`
`FACTS COMMON TO ALL CLAIMS FOR RELIEF
`
`I.
`
`AT&T’s Prepaid Phone Business
`
`16.
`
`AT&T is one of the largest providers of prepaid wireless service in the United
`
`States, and markets its service under the AT&T PREPAID and Cricket marks. AT&T currently
`
`serves millions of customers nationwide and has developed a highly regarded business reputation
`
`in the public and amongst its customers for deploying innovative technologies and services for
`
`its customers.
`
`17.
`
`AT&T PREPAID and Cricket customers can choose from a variety of prepaid
`
`monthly voice and data plans for use on cutting edge devices on the AT&T Mobility or Cricket
`
`Wireless networks. In addition to availability online, over the phone through authorized
`
`customer service representatives, and at retail stores owned by AT&T, AT&T Phones and
`
`wireless service are sold through Authorized Dealers and National Retailers across the country.
`
`18.
`
`AT&T’s prepaid business model depends on AT&T’s ability to deliver high-
`
`quality phones at affordable prices. AT&T sells the Phones for substantially less than what
`
`AT&T pays to the manufacturers for the Phones in order to attract legitimate customers of
`
`AT&T Phones for use on the AT&T Mobility or Cricket Wireless networks.
`
`19.
`
`AT&T is able to subsidize the cost of the Phones based on expected wireless
`
`service revenue. Except in limited circumstances not applicable here, AT&T Phones must be
`
`used on an AT&T Authorized Network for the first six months after activation (the “AT&T
`
`Service Period”) before they can be legitimately unlocked by AT&T and used on any other
`
`network. Each of the prepaid AT&T Phones is locked to the AT&T Authorized Networks until
`
`unlocked.
`
`6
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 7 of 53
`
`20.
`
`In addition to subsidizing AT&T Phones, AT&T also offers discounts, rebates,
`
`and other incentive programs to its customers, such as discounts for customers who are
`
`transferring an existing phone number, or discounts to customers who add additional lines for
`
`friends and family on the same account. Upon information and belief, telecommunications
`
`carriers outside the United States do not offer substantial subsidies and investment programs for
`
`prepaid mobile phones. Instead, their consumers must pay the full price for the phones to
`
`purchase the phone from manufacturers.
`
`21.
`
`AT&T requires its customers to review and agree to Terms and Conditions when
`
`using AT&T Phones. The Terms and Conditions are a valid and binding contract between
`
`AT&T and each of its customers. As set forth below, the packaging for prepaid AT&T Phones
`
`provides notice of the Terms and Conditions, directs customers to the full text of the Terms and
`
`Conditions, and indicates that by purchasing an AT&T Phone, they are agreeing to comply with
`
`the conditions set forth in the Terms and Conditions.
`
`22.
`
`AT&T’s business model in offering its customers Phones at substantially reduced
`
`prices is viable only if the Phones are activated and used as intended on an AT&T Authorized
`
`Network during the AT&T Service Period. AT&T requires manufacturers that produce wireless
`
`phones for AT&T to install software known as a “SIM Lock” on the AT&T Phones. This SIM
`
`Lock is intended to prevent the Phones from being accessed or used outside the AT&T
`
`Authorized Networks during the AT&T Service Period unless AT&T receives a valid request
`
`from a legitimate AT&T customer, and unlocks the Phone or provides the customer with an
`
`unlock code.
`
`23.
`
`To maintain its standing as a leader in a competitive industry, AT&T expends
`
`substantial resources to provide its vast and reliable nationwide wireless network, and to ensure
`
`7
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 8 of 53
`
`that its customers are able to acquire high-quality phones at affordable prices for use on the
`
`AT&T Authorized Networks. AT&T prepaid phone subsidies and discounts are essential to
`
`AT&T’s ability to offer affordable, high-quality phones to its customers. In turn, to be able to
`
`offer such subsidies and support its wireless network, AT&T depends on legitimate customers
`
`activating and using their Phones on AT&T Authorized Networks during the AT&T Service
`
`Period.
`
`II.
`
`AT&T’s Trademarks
`
`24.
`
`AT&T owns federal trademark registrations for the standard character and
`
`stylized AT&T®, GOPHONE®, and Cricket® marks for a wide variety of goods and services,
`
`including telecommunications services and cellular telephones, as depicted below:
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`Reg. No. 2048570
`
`Reg. No. 2911779
`
`GO PHONE
`
`GOPHONE
`
`CRICKET
`
`Reg. No. 2359369
`
`04/01/1997 Cl. 38: Telecommunications services,
`namely electronic transmission of
`messages, voice messages, information
`and data; paging services; electronic
`audio and/or audiovisual voice
`messaging services, namely the
`recording, storage and subsequent
`transmission of audio and/or
`audiovisual voice messages in digital
`format
`
`12/14/2004 Cl. 38: Telecommunications services,
`namely electronic transmission of
`messages, voice messages, information
`and data; paging services; electronic
`audio and/or audiovisual voice
`messaging services, namely the
`recording, storage and subsequent
`transmission of audio and/or
`audiovisual voice messages in digital
`format
`
`06/20/2000 Cl. 38: Telecommunications services,
`namely offering personal
`communications services via wireless
`
`8
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 9 of 53
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`Reg. No. 2359370
`
`Reg. No. 2363821
`
`CRICKET
`
`CRICKET
`
`networks; and providing cellular
`telephone services and personal
`communication network (PCN) services
`
`06/20/2000 Cl. 9: Wireless communication
`apparatus, namely, cellular telephones;
`telephone accessories, namely, fitted
`carrying cases, belt clips, battery
`chargers; integrated wireless
`communication and computing
`apparatus, namely, cellular telephones;
`and telephone accessories, namely,
`fitted carrying cases, belt clips, battery
`chargers
`
`07/04/2000 Cl. 35: Retail store services featuring
`wireless communication apparatus,
`namely, modems, cellular telephones,
`wireless local loop telephones and
`personal communication services (PCS)
`handsets with manuals and accessories
`sold as a unit therewith, telephone
`accessories, namely, fitted carrying
`cases, belt clips, battery chargers and
`batteries, and car kits consisting of
`audio speakers, microphones, and
`external antenna connectors; integrated
`wireless communication and computing
`apparatus namely, cellular telephones,
`wireless local loop telephones and
`personal communication handsets
`combined with a computer or personal
`digital assistant (PDA) device with
`manuals and accessories sold as a unit
`therewith; and telephone accessories,
`namely, fitted carrying cases, belt clips,
`battery chargers and batteries, and car
`kits consisting of audio speakers,
`microphones, and external antenna
`connectors
`
`9
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 10 of 53
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`AT&T
`
`Reg. No. 3884434
`
`11/30/2010 A wide variety of goods and services in
`Classes 9, 16, 35, 36, 37, 38, 41, 42, 45,
`including telecommunications services,
`telephones, high-speed and dedicated
`access to the internet, private line voice,
`text, facsimile, and video and data
`telecommunications services,
`
`AT&T GOPHONE
`
`
`
`
`
`Reg. No. 4049377
`
`Reg. No. 4785913
`
`Reg. No. 4773093
`
`11/01/2011 Cl. 38: Telecommunications services,
`namely wireless transmission,
`uploading and downloading of voice,
`data, images, audio, video, signals,
`software, information, games, ring
`tones and messages; wireless telephone
`services; providing wireless calling
`plans; wireless voice messaging
`services; wireless text and numeric
`digital messaging services; wireless
`roaming services
`
`08/04/2015 A wide variety of goods and services in
`Classes 9 and 38, including mobile
`phones, smartphones, tablet computers,
`wireless communication device
`featuring voice, data and image
`transmission including voice, text and
`picture messaging, cell phone
`accessories, namely cases, cables,
`holsters, memory cards, car chargers,
`wall chargers and screen protectors, and
`telecommunications services, namely
`wireless telephone services
`
`07/14/2015 A wide variety of goods and services in
`Classes 9 and 38, including mobile
`phones, smartphones, tablet computers,
`wireless communication device
`featuring voice, data and image
`transmission including voice, text and
`picture messaging, cell phone
`accessories, namely cases, cables,
`holsters, memory cards, car chargers,
`wall chargers and screen protectors, and
`telecommunications services, namely
`wireless telephone services
`
`10
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 11 of 53
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`Reg. No. 5745786
`
`
`
`Reg. No. 5903410
`
`Reg. No. 5903411
`
`
`
`
`
`05/07/2019 A wide variety of goods and services in
`Classes 9, 16, 35, 36, 37, 38, 41, 42,
`and 45, including telephones, mobile
`telephones, telecommunications
`products, hardware for use in wireless
`communications systems, computer
`software for use in accessing the global
`computer network, telephone
`accessories, high-speed and dedicated
`access to the internet, private line voice,
`text, facsimile, and video and data
`telecommunications services
`
`11/05/2019 A wide variety of goods and services in
`Classes 9, 16, 35, 36, 37, 38, 41, 42,
`and 45, including telephones, mobile
`telephones, telecommunications
`products, hardware for use in wireless
`communications systems, computer
`software for use in accessing the global
`computer network, telephone
`accessories, high-speed and dedicated
`access to the internet, private line voice,
`text, facsimile, and video and data
`telecommunications services
`
`11/05/2019 A wide variety of goods and services in
`Classes 8, 9, 10, 11, 12, 14, 16, 18, 21,
`24, 25, 28, 36, 37, 38, 41, and 42,
`including speakerphones, car chargers
`for cell phones, digital photo and video
`cameras, cell phone faceplates, hands-
`free devices and carrying clips for
`wireless telephones and handheld
`mobile digital electronic devices for the
`sending and receiving of telephone
`calls, protective covers, screens and
`cases for cell phones, screen protectors
`for cell phones and computers,
`subscriber identity module (SIM) cards
`for cellular telephones
`
`11
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 12 of 53
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`Reg. No. 5903412
`
`App. No.
`87878075
`
`App. No.
`87878227
`
`
`
`
`
`
`
`11/05/2019 A wide variety of goods and services in
`Classes 8, 9, 10, 11, 12, 14, 16, 18, 21,
`24, 25, 28, 36, and 42, including
`speakerphones, car chargers for cell
`phones, digital photo and video
`cameras, cell phone faceplates, hands-
`free devices and carrying clips for
`wireless telephones and handheld
`mobile digital electronic devices for the
`sending and receiving of telephone
`calls, protective covers, screens and
`cases for cell phones, screen protectors
`for cell phones and computers,
`subscriber identity module (SIM) cards
`for cellular telephones
`
`04/16/2018 Cl. 35: Retail store services and online
`retail store services all featuring
`telephones, wireless hand-held devices
`for access to global computer networks,
`handheld mobile digital electronic
`devices and other consumer electronics,
`personal computers, tablet computers,
`carrying cases for telephones, wireless
`and handheld devices, wireless and
`corded headsets, chargers, batteries and
`home security and automation systems
`
`04/16/2018 Cl. 35: Retail store services and online
`retail store services all featuring
`telephones, wireless hand-held devices
`for access to global computer networks,
`handheld mobile digital electronic
`devices and other consumer electronics,
`personal computers, tablet computers,
`carrying cases for telephones, wireless
`and handheld devices, wireless and
`corded headsets, chargers, batteries and
`home security and automation systems
`
`12
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 13 of 53
`
`Trademark
`
`Reg. or App. No.
`
`Reg. or
`App. Date
`
`Goods and Services
`
`Reg. No. 5938885
`
`
`
`Reg. No. 5938886
`
`App. No.
`88856328
`
`AT&T PREPAID
`
`12/17/2019 Cl. 35: Retail store services and online
`retail store services all featuring
`telephones, wireless hand-held devices
`for access to global computer networks,
`handheld mobile digital electronic
`devices and other consumer electronics,
`personal computers, tablet computers,
`carrying cases for telephones, wireless
`and handheld devices, wireless and
`corded headsets, chargers, batteries and
`home security and automation systems
`
`12/17/2019 Cl. 35: Retail store services and online
`retail store services all featuring
`telephones, wireless hand-held devices
`for access to global computer networks,
`handheld mobile digital electronic
`devices and other consumer electronics,
`personal computers, tablet computers,
`carrying cases for telephones, wireless
`and handheld devices, wireless and
`corded headsets, chargers, batteries and
`home security and automation systems
`
`04/04/2020 Cl. 9: Mobile phones; smart phones
`
`Cl. 38: Telecommunications services,
`namely, wireless transmission,
`uploading and downloading of voice,
`data, images, audio, video, signals,
`software, information, games, ring
`tones and messages; wireless telephone
`services; communications services,
`namely, wireless mobile telephone
`calling, data and messaging service
`plans; wireless voice messaging
`services; wireless text and numeric
`digital messaging services; wireless
`roaming services
`
`Registration Nos. 2359369, 2359370, 2363821, 2911779, 3884434, and 4049377 are
`
`incontestable under 15 U.S.C. § 1065 and therefore conclusive evidence of AT&T’s rights to the
`
`marks covered by them under 15 U.S.C. § 1115(b).
`
`13
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 14 of 53
`
`25.
`
`AT&T owns common law rights in the AT&T PREPAID and Cricket character
`
`marks, which have been used in commerce in the United States since at least July 2017 and
`
`March 2014 respectively, on and in connection with its telecommunications products and
`
`services, including AT&T Phones. Collectively, AT&T’s registered and common law marks are
`
`referred to as the “AT&T Marks.”
`
`26.
`
`AT&T protects the AT&T Marks, which are the property of AT&T. The AT&T
`
`Marks are an essential and fundamental part of the identity and goodwill developed by AT&T.
`
`AT&T has spent enormous amounts of time, money, and effort advertising and promoting the
`
`products and services with which the AT&T Marks are used. Only AT&T and those it has
`
`expressly authorized are permitted to use the AT&T Marks. The AT&T Marks are valid,
`
`distinctive, protectable, famous, have acquired secondary meaning, and are associated
`
`exclusively with AT&T.
`
`27.
`
`Defendants are not affiliated with AT&T, are not AT&T Authorized Dealers or
`
`AT&T approved National Retailers, and are not otherwise expressly or implicitly permitted to
`
`use the AT&T Marks.
`
`III. AT&T’s Proprietary Software
`
`28.
`
`AT&T creates and develops proprietary software (“AT&T Software”) in
`
`conjunction with manufacturers of AT&T Phones, wherein manufacturers develop software
`
`applications at AT&T’s direction, using AT&T’s proprietary intellectual property, design
`
`elements, specifications, and requirements.
`
`29.
`
`Copies of the AT&T Software are preinstalled on every AT&T Phone in the
`
`phone’s firmware and in the baseband software. Unlike third-party applications that an end-user
`
`downloads from the Internet, the AT&T Software cannot ordinarily be removed from an AT&T
`
`14
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 15 of 53
`
`Phone by an end-user without unauthorized technical modifications. Representative examples of
`
`such AT&T Software include the myCricket application preinstalled on Cricket Wireless
`
`branded Phones and the myAT&T application preinstalled on AT&T PREPAID branded Phones.
`
`30.
`
`Copies of the AT&T Software on AT&T Phones are never sold to purchasers of
`
`AT&T Phones. Instead, AT&T grants non-exclusive, non-transferable licenses to use the AT&T
`
`Software to individual purchasers who accept End User License Agreements (“EULAs”), and/or
`
`through the Terms and Conditions referenced in the following section. Copies of these EULAs
`
`are attached as Exhibit 1. AT&T does not authorize any person who does not accept and comply
`
`with the terms of these EULAs to access or otherwise use copies of AT&T Software.
`
`IV. AT&T Prepaid Phone Terms and Conditions
`
`31.
`
`As set forth above, AT&T Phones are sold under the Cricket and AT&T
`
`PREPAID brands. Cricket Wireless branded Phones are sold subject to terms and conditions
`
`(“Terms and Conditions”) which conspicuously restrict and limit the sale and use of the Phones.
`
`A copy of the Cricket Wireless Terms and Conditions of Service (“Cricket Terms”) is attached
`
`as Exhibit 2. These Cricket Terms are set forth in printed inserts that are included in the
`
`packaging for Cricket Phones sold directly by AT&T, or at National Retailers, and are also
`
`available to the public on the Cricket Wireless website. They are also referenced in printed
`
`warnings that are placed on the outside of the National Retailer packaging of the Cricket Phones.
`
`The Cricket Terms and language on the packaging constitute a valid binding contract.
`
`32.
`
`The National Retailer packaging in which new Cricket Phones are sold contains
`
`the following language that is printed on the outside of the package:
`
`This phone may only be used with Cricket service for the first six
`months after activation. By purchasing, activating or using this
`phone or Cricket service you acknowledge and agree to the Terms
`and Conditions of Service available inside this package or at
`
`15
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 16 of 53
`
`www.cricketwireless.com, which contains important information,
`including your agreement to dispute resolution by binding
`individual arbitration instead of jury trials or class actions.
`
`33.
`
`Similarly, customers at Cricket Wireless Authorized Dealers are presented with
`
`the Terms and Conditions under which they are receiving service and devices at the time they
`
`activate service and customers must accept those Terms and Conditions before finalizing their
`
`transaction. Additionally, the Terms and Conditions are included in each Authorized Dealer
`
`device package.
`
`34.
`
`The Cricket Terms included in the Cricket Phone packaging also provide, in
`
`pertinent part, as follows:
`
`You [] agree that you will not make, nor will you assist others to
`make, any modifications to any Device you purchase from Cricket
`or programming to enable it to operate on any other system or
`network except in accordance with our Device Unlocking Policy
`found
`at www.cricketwireless.com/legal-info/device-unlock-
`policy.html. You understand and acknowledge that Devices you
`purchase from Cricket are sold solely for use with our network and
`that we will be significantly damaged if you use or assist others to
`use our Devices for any other purpose.
`
`…
`
`When you purchase, activate or use our Services or any Devices
`you agree that you will not misuse or abuse our Services or
`Devices by doing, among other things, any of the following: (a)
`purchasing a Device without intending to activate or use it on our
`network; (b) reselling or rebilling our Services, or reselling
`Devices purchased from Cricket; … [or] (e) using our Services or
`any Devices for any fraudulent or unlawful purpose[.]
`
`35.
`
`The AT&T PREPAID Phones at issue here are also sold subject to terms and
`
`conditions which conspicuously restrict and limit the sale and use of the Phones. A copy of the
`
`AT&T PREPAID Plan Terms and Terms of Service (“AT&T PREPAID Terms”) are attached as
`
`Exhibit 3. These AT&T PREPAID Terms are referenced in printed warnings that are placed on
`
`the outside of the packaging of every AT&T PREPAID Phone sold directly by AT&T, at
`
`16
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 17 of 53
`
`National Retailers, or at Authorized Dealers, are also referenced in a printed Quick Start Guide
`
`that is included in the packaging with every AT&T PREPAID Phone, and are also available to
`
`the public on AT&T’s website. The AT&T PREPAID Terms constitute a valid binding contract.
`
`36.
`
`The packaging in which new AT&T PREPAID Phones are sold directly by
`
`AT&T, at Authorized Dealers, or at National Retailers contains the following language that is
`
`printed on the outside of the package:
`
`AT&T PREPAID: By activating or using AT&T PREPAID
`service, you agree to be bound by Terms of Service & Plan Terms
`available at att.com/prepaidterms. This phone is restricted to
`AT&T PREPAID service during the first six months after
`activation and cannot be used with any other carrier’s service.
`Commercial resale is prohibited except by AT&T’s authorized
`agents or retailers.
`
`37.
`
`The Quick Start Guide included in the AT&T PREPAID Phone packaging for
`
`National Retailers provides, in pertinent part, as follows:
`
`AT&T PREPAID service is subject to the terms in the AT&T
`PREPAID Plan Terms & Terms of Service booklet or online at
`att.com/prepaidterms (both, the “Agreement”). By activating and
`using AT&T PREPAID service, you agree to be bound by the
`Agreement.
`
`38.
`
`Similarly, for customers purchasing AT&T PREPAID phones at AT&T
`
`Authorized Dealers, the Terms and Conditions are included in each device package, and after
`
`payment, each customer is provided with a Customer Service Summary document containing a
`
`further reminder of the Terms and Conditions. A copy of a representative Customer Service
`
`Summary is attached as Exhibit 4.
`
`39.
`
`The AT&T PREPAID Terms provide, in pertinent part, as follows:
`
`Devices designed for use only on AT&T's network (“Equipment”)
`may not function on other wireless networks. Equipment is sold
`exclusively for use with AT&T PREPAID service and may not be
`resold. By purchasing such Equipment you agree to activate and
`use it on AT&T PREPAID service. You also agree that you will
`
`17
`
`
`
`
`Case 0:20-cv-62165-RS Document 1 Entered on FLSD Docket 10/26/2020 Page 18 of 53
`
`not make, nor will you assist others to make, any modifications to
`the Equipment or programming to enable the Equipment to operate
`on any other system. AT&T may, at its sole and absolute
`discretion, modify the programming to enable the operation of the
`Equipment on other systems. You understand and acknowledge
`that the Equipment