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Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 1 of 12
`
`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF FLORIDA
`
`
`Data Access Corporation,
`a Florida corporation,
`
`
`
`
`Plaintiff,
`
`vs.
`
`
`Microsoft Corporation,
`a Washington corporation,
`
`
`Defendant.
`____________________________/
`
`
`COMPLAINT AND DEMAND FOR JURY TRIAL
`
`Plaintiff, Data Access Corporation, by and through undersigned counsel, files its
`
`Complaint and Demand for Jury Trial against Defendant, Microsoft Corporation as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`This is a civil action for trademark infringement and unfair competition under the
`
`Lanham Act, 15 U.S.C. § 1114(1)(a) and § 1125(a), common law trademark infringement, and
`
`violations of the Florida Deceptive and Unfair Trade Practices Act, F.S. §§ 501.201, et seq.
`
`2.
`
`Plaintiff, Data Access Corporation (hereinafter “Data Access”) is organized under
`
`the laws of Florida with its principal place of business in at 14000 S.W. 119th Avenue, Miami, FL
`
`33186 and also with offices in Hengelo, Netherlands, and São Paulo, Brazil.
`
`3.
`
`Data Access was founded in 1976 and in 1982 created DataFlex, which is now a
`
`programming language and a visual tool for developing Windows, web, and mobile software
`
`applications on one development and deployment framework-based platform. DataFlex allows
`
`application code to run on almost any system architecture, regardless of hardware or database
`
`
`
`1
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 2 of 12
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`environment (Oracle database, Microsoft SQL Server, IBM DB2, MySQL, PostgreSQL and any
`
`ODBC database).
`
`4.
`
`The DataFlex platform powers web, mobile, and Windows applications in large,
`
`medium & small enterprises in almost every industry sector.
`
`5.
`
`On information and belief, Defendant, Microsoft Corporation (hereinafter
`
`“Defendant” or “Microsoft”), is a corporation organized and existing under the laws of the State
`
`of Washington and has a principal place of business at One Microsoft Way, Redmond, WA 98052-
`
`6399. Microsoft is a well-known international company and manufacturer of software, computer
`
`hardware, and related goods, and markets such goods to residents of the United States and the State
`
`of Florida.
`
`JURISDICTION AND VENUE
`
`6.
`
`This Court has subject matter jurisdiction over Data Access’ Lanham Act claims
`
`pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338(a).
`
`7.
`
`This action also arises under 28 U.S.C.A. § 1332 by reason of diversity of
`
`citizenship, and the amount in controversy, exclusive of interests and costs, exceeds the sum or
`
`value of $75,000.
`
`8.
`
`This Court has supplemental jurisdiction over Data Access’ pendent state law
`
`claims pursuant to 28 U.S.C. § 1367 in that the state law claims are integrally interrelated with
`
`Data Access’ federal claims and arise from a common nucleus of operative facts such that the
`
`administration of Data Access’ state law claims with its federal claims furthers the interest of
`
`judicial economy.
`
`9.
`
`This Court has personal jurisdiction over Microsoft (a) who has committed
`
`intentional and tortious acts within the state; (b) who has conducted substantial business within
`
`
`
`2
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 3 of 12
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`this state related to the unlawful activity at issue in this Complaint; (c) who resides and has offices
`
`within the state; and (d) due to the continuous and systematic activities of Microsoft within the
`
`state.
`
`10.
`
`Venue is proper in this District pursuant to 28 U.S.C. 1391 (b) and (c).
`
`THE TRADEMARK
`
`11.
`
`Data Access has been using the mark DATAFLEX for almost 40 years in
`
`connection with software for building and deploying business applications and has developed
`
`substantial domestic and international goodwill and name recognition in this valuable trademark.
`
`12.
`
`Data Access owns three federal registrations for the mark DATAFLEX (attached
`
`hereto as Exhibits 1-3):
`
`• Registration No. 3,307,027 for DATAFLEX in standard characters, which registered
`
`on Oct. 9, 2007 for the following goods: “COMPLETE SOFTWARE FOR
`
`CREATING BUSINESS APPLICATIONS, NAMELY, SOFTWARE USED TO
`
`CREATE WINDOWS AND WEB APPLICATIONS;”
`
`• Registration No. 5,062,611 for DataFlex (stylized), which registered on Oct. 18, 2016
`
`for the following goods and services: “Complete computer programs used to create
`
`desktop, web and mobile business applications and program manuals that document
`
`the installation and use of the computer programs all sold as a unit;” and “maintenance
`
`and updating of computer software, computer software rental, rental and maintenance
`
`of computer software, computer software consulting;”
`
`• Registration No. 5,036,033 for DATAFLEX in standard characters, which registered
`
`Sep. 06, 2016 for the following services: “maintenance and updating of computer
`
`
`
`3
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 4 of 12
`
`software, computer software rental, rental and maintenance of computer software,
`
`computer software consulting.”
`
`13.
`
`The three registrations are in good standing.
`
`14.
`
`Registration No. 3,307,027 has become incontestable under Section 15 of the
`
`Lanham Act, rendering it conclusive evidence of (i) the validity of the registered mark and its
`
`registration; (ii) the registrant’s ownership of the mark; and (iii) the owner’s exclusive right to use
`
`the registered mark in commerce.
`
`MICROSOFT’S INFRINGING AND UNLAWFUL ACTS
`
`15.
`
`On July 21, 2020, Microsoft introduced a software platform for building and
`
`deploying applications under the name DATAFLEX. See attached hereto Exhibits 4 and 5.
`
`16.
`
`The DATAFLEX mark adopted by Microsoft is the same and essentially the same
`
`as the DATAFLEX marks covered by Data Access’ federal registrations and common law
`
`trademark rights.
`
`17. Microsoft uses the DATAFLEX mark in connection with the same and essentially
`
`the same goods and services as covered by Data Access’ federal registrations and common law
`
`trademark rights.
`
`18.
`
`Upon discovery of Microsoft’s confusingly similar trademark use, Data Access
`
`advised its U.S. legal counsel the next day, July 22, 2020, to send a cease and desist letter. A true
`
`and accurate copy of the Cease and Desist Letter is attached hereto as Exhibit 6.
`
`19.
`
`To date, Microsoft continues to promote and offer the products on its website and
`
`through other channels under the infringing DATAFLEX mark.
`
`20.
`
`To protect its rights in the DATAFLEX mark, Data Access must take legal action
`
`to enforce those rights and avoid implied consent or acquiescence to Microsoft’s infringement.
`
`
`
`4
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 5 of 12
`
`21.
`
`Data Access has been compelled to hire undersigned counsel and is obligated to
`
`pay them a reasonable fee, and all conditions precedent have occurred, been satisfied or been
`
`waived.
`
`
`22.
`
`COUNT ONE
`Infringement of Federally Registered Trademarks and Service Marks
`15 U.S.C. § 1114(1)(a)
`
`Data Access realleges and incorporates each and every allegation contained in
`
`paragraphs 1-21 above as if said allegations were fully set forth herein.
`
`23.
`
`Data Access has used its US registered DATAFLEX mark in commerce in
`
`connection the goods and services noted in the Registrations, namely, software used to create
`
`business applications, web applications, windows applications, mobile applications, and desktop
`
`applications, and related computer software rental and updating services.
`
`24. Microsoft had both actual and constructive knowledge of Data Access’ ownership
`
`of and rights in its federally registered mark prior to Microsoft’s infringing use of those marks.
`
`25. Microsoft adopted, and continued to use in commerce, Data Access’ federally
`
`registered mark, and marks confusingly similar thereto, with full knowledge of Data Access’
`
`superior rights, and with full knowledge that its infringing use of Data Access’ mark was likely to
`
`cause confusion, mistake and/or deception.
`
`26. Microsoft’s acts were without license or consent of Data Access.
`
`27. Microsoft offer its goods under the infringing marks in the same channels of trade
`
`as those in which Data Access offers its legitimate goods.
`
`28. Microsoft’s unauthorized and infringing use of Data Access’ name and mark in
`
`connection with the marketing and sale of its products is likely to cause confusion, mistake or
`
`
`
`5
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 6 of 12
`
`deception as to their affiliation, connection or association with Data Access, in violation of 15
`
`U.S.C. § 1114.
`
`29. Microsoft’s actions constitute unauthorized, malicious, deliberate, and willful
`
`infringement of Data Access’ federally registered marks. The knowing and intentional nature of
`
`the acts set forth herein renders this an exceptional case under 15 U.S.C. § 1117(a).
`
`30.
`
`As a result of Microsoft’s infringement, Data Access has suffered substantial
`
`damages, as well as the continuing loss of the goodwill and reputation established by Data Access
`
`in its federally registered marks. This continuing loss of goodwill cannot be properly calculated
`
`and thus constitutes irreparable harm and an injury for which Data Access has no adequate remedy
`
`at law. Data Access will continue to suffer irreparable harm unless this Court enjoins Microsoft’s
`
`conduct.
`
`31.
`
`By reason of Microsoft’s willful acts, Data Access is also entitled to damages,
`
`including but not limited to treble damages, under 15 U.S.C. § 1117.
`
`32.
`
`This is an exceptional case, justifying an award of attorneys’ fees in Data Access’
`
`favor under 15 U.S.C. § 1117, which are specifically pled and demanded.
`
`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
`
`33.
`
`were fully set forth herein.
`
`34. Microsoft’s unauthorized and tortious conduct has also deprived and will continue
`
`to deprive Data Access of the ability to control the consumer perception of its products and services
`
`offered under the DATAFLEX mark, placing the valuable reputation and goodwill of Data Access
`
`in the hands of Microsoft.
`
`
`
`6
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 7 of 12
`
`35. Microsoft’s conduct is likely to cause confusion, mistake or deception as to the
`
`affiliation, connection or association of Microsoft with Data Access, and as to the origin,
`
`sponsorship or approval of Microsoft’s products, in violation of Section 43 of the Lanham Act, 15
`
`U.S.C. § 1125(a)(1).
`
`36. Microsoft has direct and full knowledge of Data Access’ prior use of and rights in
`
`its mark before the acts complained of herein. The knowing, intentional and willful nature of the
`
`acts set forth herein renders this an exceptional case under 15 U.S.C. § 1117(a).
`
`37.
`
`As a result of Microsoft’s aforesaid conduct, Data Access has suffered commercial
`
`damage, as well as the continuing loss of the goodwill and reputation established by Data Access
`
`in its mark. The value of this continuing loss of goodwill cannot be properly calculated and thus
`
`constitutes irreparable harm and an injury for which Data Access has no adequate remedy at law.
`
`Data Access will continue to suffer irreparable harm unless this Court enjoins Microsoft’s conduct.
`
`38.
`
`By reason of Microsoft’s willful acts, Data Access is also entitled to damages,
`
`including but not limited to treble damages, under 15 U.S.C. § 1117.
`
`39.
`
`This is an exceptional case, justifying an award of attorneys’ fees in Data Access’
`
`favor under 15 U.S.C. § 1117, which are specifically pled and demanded.
`
`COUNT THREE
`Common Law Trademark Infringement
`Data Access realleges and incorporates paragraphs 1-21 above as if said allegations
`
`40.
`
`were fully set forth herein.
`
`41.
`
`Data Access is the owner of all common law rights in and to the DATAFLEX mark
`
`for software for building and deploying applications, and related services.
`
`
`
`7
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 8 of 12
`
`42. Microsoft’s use of the DATAFLEX mark in its marketing and sales of its software
`
`for building and deploying applications is likely to cause confusion or mistake as to the source or
`
`origin of the products.
`
`43. Microsoft has intentionally advertised and offered for sale Microsoft’s products in
`
`a manner likely to cause confusion or mistake and so as to confuse and deceive clients, potential
`
`customers, and the community at large, as to the origin and/or affiliation of Microsoft’s products.
`
`44. Microsoft’s unlawful conduct as set forth herein has been and continues to be
`
`willful, deliberate, and in bad faith.
`
`45. Microsoft’s conduct has caused and will continue to cause irreparable damage to
`
`Data Access, for which Data Access has no adequate remedy at law. Unless enjoined, Microsoft
`
`will continue its violation, further injuring Data Access and confusing the public.
`
`46. Microsoft has received revenues and profits as a result of its trademark
`
`infringement to which Microsoft is not entitled. Accordingly, Microsoft has unfairly profited from
`
`the actions alleged herein.
`
`47.
`
`Additionally, Data Access has suffered damages as a result of Microsoft’s
`
`infringement upon Data Access’ trademark for which Microsoft is responsible. By reason of
`
`Microsoft’s acts alleged herein, Data Access has also suffered damage to the goodwill associated
`
`with the DATAFLEX mark and has suffered and will continue to suffer irreparable harm.
`
`COUNT FOUR – CLAIM FOR DECLARATORY JUDGMENT PURSUANT TO
`FLORIDA STATUTES §501.211
`Florida’s Deceptive and Unfair Trade Practices Act
`
`Data Access realleges and incorporates paragraphs 1-21 as if each and every
`
`48.
`
`allegation contained in said paragraphs were fully set forth herein.
`
`
`
`8
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 9 of 12
`
`49. Microsoft’s deceptive and unfair methods of competition and use of Data Access’
`
`trademark constitute acts in violation of the Florida Deceptive and Unfair Trade Practices Act
`
`(“FDUTPA”), Florida Statutes §§ 501.201, et seq.
`
`50.
`
`Data Access is an “aggrieved” person under §501.211 which provides that “anyone
`
`aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an
`
`act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise
`
`likely to violate this part.”
`
`51.
`
`There is a bona fide, actual present and practical need for the declaratory judgment
`
`sought; the declaration deals with a present ascertained or ascertainable state of facts or present
`
`controversy as to a state of facts; some immunity power, privilege or right of Data Access is
`
`dependent upon the facts or the law application to the facts; Data Access has an actual, present
`
`adverse and antagonistic interest in the subject matter, in fact or law; the antagonistic and adverse
`
`interests are all before this Court by proper process; and the relief sought is not merely giving of
`
`legal advice by the courts or the answer to questions propounded from curiosity.
`
`52. Microsoft’s unfair and deceptive trade practices have taken place in connection
`
`with trade and commerce, and Microsoft’s acts would likely and in fact do mislead consumers,
`
`potential and actual Data Access customers acting reasonably under the circumstances as to
`
`whether Microsoft and its products are affiliated with Data Access.
`
`53.
`
`By reason of Microsoft’s acts alleged herein, Data Access has suffered damage to
`
`the goodwill associated with the DATAFLEX mark and has suffered and will continue to suffer
`
`irreparable harm. Unless enjoined, Microsoft will continue to violate FDUTPA, further injuring
`
`Data Access and confusing the public. Accordingly, Data Access is entitled to entry of injunctive
`
`relief.
`
`
`
`9
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 10 of 12
`
`54. Microsoft’s acts and practices as alleged herein offend public policy, are unethical,
`
`willful, oppressive, and unscrupulous, and cause and have caused Data Access and consumers
`
`substantial and unavoidable injury.
`
`55.
`
`Data Access seeks an award of attorneys’ fees and court costs as provided by
`
`Florida law, including §501.2105.
`
`COUNT FIVE – CLAIM FOR DAMAGES
`Violation of Florida’s Deceptive and Unfair Trade Practices Act
`
`Data Access realleges and incorporates paragraphs 1-21 as if each and every
`
`56.
`
`allegation contained in said paragraphs were fully set forth herein.
`
`57. Microsoft’s deceptive and unfair methods of competition and use of Data Access’
`
`trademark constitute acts in violation of the Florida Deceptive and Unfair Trade Practices Act
`
`(“FDUTPA”), Florida Statutes §§ 501.201, et seq.
`
`58.
`
`Data Access is an “aggrieved” person under the FDUTPA and has standing to bring
`
`this claim.
`
`59. Microsoft’s unfair and deceptive trade practices have taken place in connection
`
`with trade and commerce, and Microsoft’s acts would likely and in fact do mislead consumers,
`
`potential and actual Data Access customers acting reasonably under the circumstances as to
`
`whether Microsoft’s and its products are affiliated with Data Access.
`
`60. Microsoft’s acts and practices as alleged herein offend public policy, are unethical,
`
`oppressive, and unscrupulous, and cause and have caused Data Access and consumers substantial
`
`and unavoidable injury.
`
`61.
`
`As a direct and proximate result of Microsoft’s deceptive and unfair trade practices
`
`and practices, Data Access has sustained injury and damages which Data Access seeks to recover.
`
`
`
`10
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 11 of 12
`
`62.
`
`Data Access seeks an award of attorneys’ fees and court costs as provided by
`
`Florida law, including §501.2105.
`
`RELIEF SOUGHT
`
`WHEREFORE, Plaintiff Data Access respectfully requests that the Court enter judgment
`
`against Microsoft as follows:
`
`A. That the Court issue preliminary and permanent injunctive relief against Microsoft, and
`
`that Microsoft, its officers, agents, representatives, servants, employees, attorneys,
`
`successors and assignees, and all others in active concert or participation with Microsoft,
`
`be enjoined and restrained from: (i) registering, using, or trafficking in any name that is
`
`identical or confusingly similar to the DATAFLEX mark in conjunction with software
`
`products or software related services; (ii) infringing Data Access’ trademark set forth
`
`above; (iii) assisting, aiding, or abetting any other person or business entity from engaging
`
`in or performing any of the activities referred to in subparagraphs (i) and (ii) above;
`
`B. That the Court enter a declaratory judgment that Microsoft’s actions are violative of the
`
`Florida Deceptive and Unfair Trade Practices Act and further enjoin Microsoft from further
`
`violations of said Act;
`
`C. That the Court award damages under the Florida Deceptive and Unfair Trade Practices Act;
`
`D. That the Court award Data Access treble damages pursuant to 15 U.S.C § 1117;
`
`E. That the Court order Microsoft to disgorge all ill-gotten gains;
`
`F. That the Court award Data Access its attorneys' fees and costs; and
`
`G. That the Court grant Data Access all other relief to which it is entitled and such other or
`
`additional relief as is just and proper.
`
`
`
`
`
`11
`
`

`

`Case 1:20-cv-23122-UU Document 1 Entered on FLSD Docket 07/28/2020 Page 12 of 12
`
`Plaintiff hereby demands a trial by jury of all matters triable as of right in the instant cause
`
`JURY DEMAND
`
`of action.
`
`Dated: July 28, 2020
`
`Respectfully submitted,
`
`/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-
`
`/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
`
`Pending Pro Hac Vice Admission
`
`Attorneys for Plaintiff
`
`
`12
`
`
`
`
`
`

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