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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF FLORIDA
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`Data Access Corporation,
`a Florida corporation,
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`Plaintiff,
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`vs.
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`Microsoft Corporation,
`a Washington corporation,
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`Defendant.
`____________________________/
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`COMPLAINT AND DEMAND FOR JURY TRIAL
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`Plaintiff, Data Access Corporation, by and through undersigned counsel, files its
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`Complaint and Demand for Jury Trial against Defendant, Microsoft Corporation as follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action for trademark infringement and unfair competition under the
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`Lanham Act, 15 U.S.C. § 1114(1)(a) and § 1125(a), common law trademark infringement, and
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`violations of the Florida Deceptive and Unfair Trade Practices Act, F.S. §§ 501.201, et seq.
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`2.
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`Plaintiff, Data Access Corporation (hereinafter “Data Access”) is organized under
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`the laws of Florida with its principal place of business in at 14000 S.W. 119th Avenue, Miami, FL
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`33186 and also with offices in Hengelo, Netherlands, and São Paulo, Brazil.
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`3.
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`Data Access was founded in 1976 and in 1982 created DataFlex, which is now a
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`programming language and a visual tool for developing Windows, web, and mobile software
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`applications on one development and deployment framework-based platform. DataFlex allows
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`application code to run on almost any system architecture, regardless of hardware or database
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`environment (Oracle database, Microsoft SQL Server, IBM DB2, MySQL, PostgreSQL and any
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`ODBC database).
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`4.
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`The DataFlex platform powers web, mobile, and Windows applications in large,
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`medium & small enterprises in almost every industry sector.
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`5.
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`On information and belief, Defendant, Microsoft Corporation (hereinafter
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`“Defendant” or “Microsoft”), is a corporation organized and existing under the laws of the State
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`of Washington and has a principal place of business at One Microsoft Way, Redmond, WA 98052-
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`6399. Microsoft is a well-known international company and manufacturer of software, computer
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`hardware, and related goods, and markets such goods to residents of the United States and the State
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`of Florida.
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction over Data Access’ Lanham Act claims
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`pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338(a).
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`7.
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`This action also arises under 28 U.S.C.A. § 1332 by reason of diversity of
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`citizenship, and the amount in controversy, exclusive of interests and costs, exceeds the sum or
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`value of $75,000.
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`8.
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`This Court has supplemental jurisdiction over Data Access’ pendent state law
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`claims pursuant to 28 U.S.C. § 1367 in that the state law claims are integrally interrelated with
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`Data Access’ federal claims and arise from a common nucleus of operative facts such that the
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`administration of Data Access’ state law claims with its federal claims furthers the interest of
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`judicial economy.
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`9.
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`This Court has personal jurisdiction over Microsoft (a) who has committed
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`intentional and tortious acts within the state; (b) who has conducted substantial business within
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`this state related to the unlawful activity at issue in this Complaint; (c) who resides and has offices
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`within the state; and (d) due to the continuous and systematic activities of Microsoft within the
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`state.
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`10.
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`Venue is proper in this District pursuant to 28 U.S.C. 1391 (b) and (c).
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`THE TRADEMARK
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`11.
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`Data Access has been using the mark DATAFLEX for almost 40 years in
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`connection with software for building and deploying business applications and has developed
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`substantial domestic and international goodwill and name recognition in this valuable trademark.
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`12.
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`Data Access owns three federal registrations for the mark DATAFLEX (attached
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`hereto as Exhibits 1-3):
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`• Registration No. 3,307,027 for DATAFLEX in standard characters, which registered
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`on Oct. 9, 2007 for the following goods: “COMPLETE SOFTWARE FOR
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`CREATING BUSINESS APPLICATIONS, NAMELY, SOFTWARE USED TO
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`CREATE WINDOWS AND WEB APPLICATIONS;”
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`• Registration No. 5,062,611 for DataFlex (stylized), which registered on Oct. 18, 2016
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`for the following goods and services: “Complete computer programs used to create
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`desktop, web and mobile business applications and program manuals that document
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`the installation and use of the computer programs all sold as a unit;” and “maintenance
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`and updating of computer software, computer software rental, rental and maintenance
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`of computer software, computer software consulting;”
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`• Registration No. 5,036,033 for DATAFLEX in standard characters, which registered
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`Sep. 06, 2016 for the following services: “maintenance and updating of computer
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`3
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`software, computer software rental, rental and maintenance of computer software,
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`computer software consulting.”
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`13.
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`The three registrations are in good standing.
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`14.
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`Registration No. 3,307,027 has become incontestable under Section 15 of the
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`Lanham Act, rendering it conclusive evidence of (i) the validity of the registered mark and its
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`registration; (ii) the registrant’s ownership of the mark; and (iii) the owner’s exclusive right to use
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`the registered mark in commerce.
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`MICROSOFT’S INFRINGING AND UNLAWFUL ACTS
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`15.
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`On July 21, 2020, Microsoft introduced a software platform for building and
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`deploying applications under the name DATAFLEX. See attached hereto Exhibits 4 and 5.
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`16.
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`The DATAFLEX mark adopted by Microsoft is the same and essentially the same
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`as the DATAFLEX marks covered by Data Access’ federal registrations and common law
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`trademark rights.
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`17. Microsoft uses the DATAFLEX mark in connection with the same and essentially
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`the same goods and services as covered by Data Access’ federal registrations and common law
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`trademark rights.
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`18.
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`Upon discovery of Microsoft’s confusingly similar trademark use, Data Access
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`advised its U.S. legal counsel the next day, July 22, 2020, to send a cease and desist letter. A true
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`and accurate copy of the Cease and Desist Letter is attached hereto as Exhibit 6.
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`19.
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`To date, Microsoft continues to promote and offer the products on its website and
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`through other channels under the infringing DATAFLEX mark.
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`20.
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`To protect its rights in the DATAFLEX mark, Data Access must take legal action
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`to enforce those rights and avoid implied consent or acquiescence to Microsoft’s infringement.
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`4
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`21.
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`Data Access has been compelled to hire undersigned counsel and is obligated to
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`pay them a reasonable fee, and all conditions precedent have occurred, been satisfied or been
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`waived.
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`22.
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`COUNT ONE
`Infringement of Federally Registered Trademarks and Service Marks
`15 U.S.C. § 1114(1)(a)
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`Data Access realleges and incorporates each and every allegation contained in
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`paragraphs 1-21 above as if said allegations were fully set forth herein.
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`23.
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`Data Access has used its US registered DATAFLEX mark in commerce in
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`connection the goods and services noted in the Registrations, namely, software used to create
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`business applications, web applications, windows applications, mobile applications, and desktop
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`applications, and related computer software rental and updating services.
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`24. Microsoft had both actual and constructive knowledge of Data Access’ ownership
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`of and rights in its federally registered mark prior to Microsoft’s infringing use of those marks.
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`25. Microsoft adopted, and continued to use in commerce, Data Access’ federally
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`registered mark, and marks confusingly similar thereto, with full knowledge of Data Access’
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`superior rights, and with full knowledge that its infringing use of Data Access’ mark was likely to
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`cause confusion, mistake and/or deception.
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`26. Microsoft’s acts were without license or consent of Data Access.
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`27. Microsoft offer its goods under the infringing marks in the same channels of trade
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`as those in which Data Access offers its legitimate goods.
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`28. Microsoft’s unauthorized and infringing use of Data Access’ name and mark in
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`connection with the marketing and sale of its products is likely to cause confusion, mistake or
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`5
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`deception as to their affiliation, connection or association with Data Access, in violation of 15
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`U.S.C. § 1114.
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`29. Microsoft’s actions constitute unauthorized, malicious, deliberate, and willful
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`infringement of Data Access’ federally registered marks. The knowing and intentional nature of
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`the acts set forth herein renders this an exceptional case under 15 U.S.C. § 1117(a).
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`30.
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`As a result of Microsoft’s infringement, Data Access has suffered substantial
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`damages, as well as the continuing loss of the goodwill and reputation established by Data Access
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`in its federally registered marks. This continuing loss of goodwill cannot be properly calculated
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`and thus constitutes irreparable harm and an injury for which Data Access has no adequate remedy
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`at law. Data Access will continue to suffer irreparable harm unless this Court enjoins Microsoft’s
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`conduct.
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`31.
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`By reason of Microsoft’s willful acts, Data Access is also entitled to damages,
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`including but not limited to treble damages, under 15 U.S.C. § 1117.
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`32.
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`This is an exceptional case, justifying an award of attorneys’ fees in Data Access’
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`favor under 15 U.S.C. § 1117, which are specifically pled and demanded.
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`COUNT TWO
`Federal Unfair Competition and False Designation of Origin
`15 U.S.C. § 1125(a)
`Data Access realleges and incorporates paragraphs 1-21 above as if said allegations
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`33.
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`were fully set forth herein.
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`34. Microsoft’s unauthorized and tortious conduct has also deprived and will continue
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`to deprive Data Access of the ability to control the consumer perception of its products and services
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`offered under the DATAFLEX mark, placing the valuable reputation and goodwill of Data Access
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`in the hands of Microsoft.
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`35. Microsoft’s conduct is likely to cause confusion, mistake or deception as to the
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`affiliation, connection or association of Microsoft with Data Access, and as to the origin,
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`sponsorship or approval of Microsoft’s products, in violation of Section 43 of the Lanham Act, 15
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`U.S.C. § 1125(a)(1).
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`36. Microsoft has direct and full knowledge of Data Access’ prior use of and rights in
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`its mark before the acts complained of herein. The knowing, intentional and willful nature of the
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`acts set forth herein renders this an exceptional case under 15 U.S.C. § 1117(a).
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`37.
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`As a result of Microsoft’s aforesaid conduct, Data Access has suffered commercial
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`damage, as well as the continuing loss of the goodwill and reputation established by Data Access
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`in its mark. The value of this continuing loss of goodwill cannot be properly calculated and thus
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`constitutes irreparable harm and an injury for which Data Access has no adequate remedy at law.
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`Data Access will continue to suffer irreparable harm unless this Court enjoins Microsoft’s conduct.
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`38.
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`By reason of Microsoft’s willful acts, Data Access is also entitled to damages,
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`including but not limited to treble damages, under 15 U.S.C. § 1117.
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`39.
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`This is an exceptional case, justifying an award of attorneys’ fees in Data Access’
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`favor under 15 U.S.C. § 1117, which are specifically pled and demanded.
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`COUNT THREE
`Common Law Trademark Infringement
`Data Access realleges and incorporates paragraphs 1-21 above as if said allegations
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`40.
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`were fully set forth herein.
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`41.
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`Data Access is the owner of all common law rights in and to the DATAFLEX mark
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`for software for building and deploying applications, and related services.
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`42. Microsoft’s use of the DATAFLEX mark in its marketing and sales of its software
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`for building and deploying applications is likely to cause confusion or mistake as to the source or
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`origin of the products.
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`43. Microsoft has intentionally advertised and offered for sale Microsoft’s products in
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`a manner likely to cause confusion or mistake and so as to confuse and deceive clients, potential
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`customers, and the community at large, as to the origin and/or affiliation of Microsoft’s products.
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`44. Microsoft’s unlawful conduct as set forth herein has been and continues to be
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`willful, deliberate, and in bad faith.
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`45. Microsoft’s conduct has caused and will continue to cause irreparable damage to
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`Data Access, for which Data Access has no adequate remedy at law. Unless enjoined, Microsoft
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`will continue its violation, further injuring Data Access and confusing the public.
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`46. Microsoft has received revenues and profits as a result of its trademark
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`infringement to which Microsoft is not entitled. Accordingly, Microsoft has unfairly profited from
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`the actions alleged herein.
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`47.
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`Additionally, Data Access has suffered damages as a result of Microsoft’s
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`infringement upon Data Access’ trademark for which Microsoft is responsible. By reason of
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`Microsoft’s acts alleged herein, Data Access has also suffered damage to the goodwill associated
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`with the DATAFLEX mark and has suffered and will continue to suffer irreparable harm.
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`COUNT FOUR – CLAIM FOR DECLARATORY JUDGMENT PURSUANT TO
`FLORIDA STATUTES §501.211
`Florida’s Deceptive and Unfair Trade Practices Act
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`Data Access realleges and incorporates paragraphs 1-21 as if each and every
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`48.
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`allegation contained in said paragraphs were fully set forth herein.
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`49. Microsoft’s deceptive and unfair methods of competition and use of Data Access’
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`trademark constitute acts in violation of the Florida Deceptive and Unfair Trade Practices Act
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`(“FDUTPA”), Florida Statutes §§ 501.201, et seq.
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`50.
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`Data Access is an “aggrieved” person under §501.211 which provides that “anyone
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`aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an
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`act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise
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`likely to violate this part.”
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`51.
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`There is a bona fide, actual present and practical need for the declaratory judgment
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`sought; the declaration deals with a present ascertained or ascertainable state of facts or present
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`controversy as to a state of facts; some immunity power, privilege or right of Data Access is
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`dependent upon the facts or the law application to the facts; Data Access has an actual, present
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`adverse and antagonistic interest in the subject matter, in fact or law; the antagonistic and adverse
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`interests are all before this Court by proper process; and the relief sought is not merely giving of
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`legal advice by the courts or the answer to questions propounded from curiosity.
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`52. Microsoft’s unfair and deceptive trade practices have taken place in connection
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`with trade and commerce, and Microsoft’s acts would likely and in fact do mislead consumers,
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`potential and actual Data Access customers acting reasonably under the circumstances as to
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`whether Microsoft and its products are affiliated with Data Access.
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`53.
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`By reason of Microsoft’s acts alleged herein, Data Access has suffered damage to
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`the goodwill associated with the DATAFLEX mark and has suffered and will continue to suffer
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`irreparable harm. Unless enjoined, Microsoft will continue to violate FDUTPA, further injuring
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`Data Access and confusing the public. Accordingly, Data Access is entitled to entry of injunctive
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`relief.
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`54. Microsoft’s acts and practices as alleged herein offend public policy, are unethical,
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`willful, oppressive, and unscrupulous, and cause and have caused Data Access and consumers
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`substantial and unavoidable injury.
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`55.
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`Data Access seeks an award of attorneys’ fees and court costs as provided by
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`Florida law, including §501.2105.
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`COUNT FIVE – CLAIM FOR DAMAGES
`Violation of Florida’s Deceptive and Unfair Trade Practices Act
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`Data Access realleges and incorporates paragraphs 1-21 as if each and every
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`56.
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`allegation contained in said paragraphs were fully set forth herein.
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`57. Microsoft’s deceptive and unfair methods of competition and use of Data Access’
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`trademark constitute acts in violation of the Florida Deceptive and Unfair Trade Practices Act
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`(“FDUTPA”), Florida Statutes §§ 501.201, et seq.
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`58.
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`Data Access is an “aggrieved” person under the FDUTPA and has standing to bring
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`this claim.
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`59. Microsoft’s unfair and deceptive trade practices have taken place in connection
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`with trade and commerce, and Microsoft’s acts would likely and in fact do mislead consumers,
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`potential and actual Data Access customers acting reasonably under the circumstances as to
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`whether Microsoft’s and its products are affiliated with Data Access.
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`60. Microsoft’s acts and practices as alleged herein offend public policy, are unethical,
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`oppressive, and unscrupulous, and cause and have caused Data Access and consumers substantial
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`and unavoidable injury.
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`61.
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`As a direct and proximate result of Microsoft’s deceptive and unfair trade practices
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`and practices, Data Access has sustained injury and damages which Data Access seeks to recover.
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`62.
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`Data Access seeks an award of attorneys’ fees and court costs as provided by
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`Florida law, including §501.2105.
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`RELIEF SOUGHT
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`WHEREFORE, Plaintiff Data Access respectfully requests that the Court enter judgment
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`against Microsoft as follows:
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`A. That the Court issue preliminary and permanent injunctive relief against Microsoft, and
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`that Microsoft, its officers, agents, representatives, servants, employees, attorneys,
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`successors and assignees, and all others in active concert or participation with Microsoft,
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`be enjoined and restrained from: (i) registering, using, or trafficking in any name that is
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`identical or confusingly similar to the DATAFLEX mark in conjunction with software
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`products or software related services; (ii) infringing Data Access’ trademark set forth
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`above; (iii) assisting, aiding, or abetting any other person or business entity from engaging
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`in or performing any of the activities referred to in subparagraphs (i) and (ii) above;
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`B. That the Court enter a declaratory judgment that Microsoft’s actions are violative of the
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`Florida Deceptive and Unfair Trade Practices Act and further enjoin Microsoft from further
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`violations of said Act;
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`C. That the Court award damages under the Florida Deceptive and Unfair Trade Practices Act;
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`D. That the Court award Data Access treble damages pursuant to 15 U.S.C § 1117;
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`E. That the Court order Microsoft to disgorge all ill-gotten gains;
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`F. That the Court award Data Access its attorneys' fees and costs; and
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`G. That the Court grant Data Access all other relief to which it is entitled and such other or
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`additional relief as is just and proper.
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`Plaintiff hereby demands a trial by jury of all matters triable as of right in the instant cause
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`JURY DEMAND
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`of action.
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`Dated: July 28, 2020
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`Respectfully submitted,
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`/s/ Deborah Baker, Esq.
`DEBORAH BAKER, ESQ.
`Florida Bar No.: 294380
`RACHEL E. WALKER, ESQ.
`Florida Bar No. 0111802
`JACOB POST, ESQ.
`Florida Bar 1018692
`SMGQ LAW
`Satellite Office – One Biscayne Tower
`2 South Biscayne Blvd, 34th Floor
`Miami, FL 33131
`Office Phone: (305) 377-1000
`Direct Phone: (786) 304-1543
`Direct Fax: (855) 327-0391
`Primary Email: Dbaker@smgqlaw.com
`Primary E-mail: RWalker@smgqlaw.com
`Primary E-mail: JPost@smgqlaw.com
`Secondary E-mail: Aalbuerne@smgqlaw.com
`
`
`
`-and-
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`/s/ Jeffrey M. Goehring, Esq.
`JEFFREY M. GOEHRING, ESQ.
`Nixon & Vanderhye, PC
`901 North Glebe Road
`Arlington, VA 22203
`Telephone: 703-816-4000
`Facsimile: 703-816-4100
`Primary E-mail: jgoehring@nixonvan.com
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`Pending Pro Hac Vice Admission
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`Attorneys for Plaintiff
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