Case 1:20-cv-24514-CMA Document 1 Entered on FLSD Docket 11/02/2020 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`Case No.
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`MICROSOFT, INC., a Washington Corporation,
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`Plaintiff,
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`vs.
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`OFFICE SOLUTIONS USA LLC, a Florida
`Limited Liability Company, and HENRIQUE
`COUTINHO TRAD, aka HENRIQUE TRAD
`SOUZA, an individual,
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`Defendants.
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`COMPLAINT
`Plaintiff Microsoft Corporation (“Microsoft”) brings this Complaint against Office
`Solutions USA LLC (“Office Solutions”) and Henrique Coutinho Trad, aka Henrique Trad
`Souza (“Trad”) (collectively, “Defendants”), alleging as follows:
`
`INTRODUCTION
`I.
`This is an action for 1) contributory copyright infringement; 2) trademark
`1.
`infringement; 3) false designation of origin and false and misleading representations and
`descriptions of fact; and 4) trade dress infringement.
`Defendants are prolific distributors of black market access devices to Microsoft
`2.
`software that they unlawfully advertise to consumers as genuine software. As a major part of
`their sales, Defendants instruct their customers to acquire, install, and activate copies of
`Microsoft software with the access devices. This software is either from counterfeit download
`sites or Microsoft sites that require the purchase of licensed software.
`Defendants use Microsoft’s trademarks and trade dress in their marketing and
`3.
`sales materials without authorization to deceive consumers about the characteristics, origin, and
`authenticity of the software. In particular, Defendants deceive their customers into believing that
`this software is legally licensed for them to use, when it is not.
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`Defendants’ black market access devices include product activation keys which
`4.
`are uncoupled from the genuine, licensed Microsoft software they were intended and authorized
`to activate and sold by Defendants on a “stand-alone” basis separate from the original licensed
`software (“decoupled product keys”). Defendants’ black market access devices also include
`tokens for software pre-installed on Original Equipment Manufacturer (“OEM”) devices and
`only authorized for use by specific OEMs for devices in China (“OEM tokens”). Lastly,
`Defendants’ black market access devices include credentials for unlicensed Office 365 cloud
`accounts that were created and distributed without authorization from Microsoft (“unauthorized
`credentials”).
`Decoupled product keys, OEM tokens, and unauthorized credentials do not
`5.
`constitute or represent licenses for Microsoft software. They are merely technology tools that
`Microsoft provides customers and its supply chain partners to access, install and activate copies
`of legally licensed software. When these tools are uncoupled from legally licensed software,
`disassociated with the devices on which they were authorized to be used, or created without
`authorization, the tools do not have any independent value other than to deceive unwitting
`consumers into acquiring copies of pirated and unlicensed software. That is the case here.
`On information and belief, Defendants have reaped substantial profits from their
`6.
`unlawful sales of unauthorized access devices, all while falsely holding themselves out to be
`legitimate distributors of licensed Microsoft software. Defendants knew, or had reason to know,
`that they were facilitating, contributing to, and causing the unlawful copying and distribution of
`unlicensed Microsoft software.
`Defendants’ unlawful sale of unauthorized access devices hurts consumers,
`7.
`legitimate commerce, and the software business. Customers are deceived into purchasing
`unlicensed and counterfeit copies of software when they think they are buying genuine, licensed
`software. Businesses selling genuine licensed software are harmed when potential customers are
`lured away by lower-priced pirated software offerings. Microsoft is harmed by Defendants’
`misuse and theft of its intellectual property.
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`To put a stop to Defendants’ scheme and associated unlawful activities and hold
`8.
`them accountable, Microsoft seeks an order permanently enjoining Defendants from further sales
`of unauthorized access devices and an award of money damages for the substantial harm
`Defendants have caused.
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`PARTIES
`II.
`Microsoft is a Washington corporation with its principal place of business in
`9.
`Redmond, Washington. Microsoft develops, markets, distributes, and licenses computer
`software, among other products and services.
`On information and belief, Office Solutions is a Florida limited liability company
`10.
`with its principal place of business at 601 Brickell Key Drive, Miami, Florida. Office Solutions
`advertises and sells Microsoft-branded products through its website at officesolutionsusa.net.
`On information and belief, Office Solutions is owned, operated by, or otherwise
`11.
`under the substantial control of Trad, who resides in Doral, Florida. On information and belief,
`Trad, who is a citizen of the state of Florida, is the sole member of Office Solutions. On
`information and belief, Trad personally participated in and had the right and ability to supervise,
`direct, and control the wrongful conduct alleged in this Complaint, and he derived a direct
`financial benefit from that wrongful conduct. Trad is therefore liable for the wrongful conduct
`alleged herein under principles of secondary liability, including, without limitation, respondeat
`superior, vicarious liability, and contributory infringement.
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`JURISDICTION & VENUE
`III.
`The Court has subject-matter jurisdiction over the federal claims alleged herein
`12.
`pursuant to 15 U.S.C. § 1121, 17 U.S.C. § 501, and 28 U.S.C. §§ 1331 and 1338(a). The Court
`also has subject-matter jurisdiction under 28 U.S.C. § 1332 because this action is between
`citizens of different states (Washington and Florida), and the matter in controversy exceeds
`$75,000, exclusive of interest and costs.
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`A.
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`The Court has personal jurisdiction over Defendants because they reside in the
`13.
`Southern District of Florida and otherwise do business in the district.
`FACTS
`IV.
`The Negative Impact of Software Piracy on Consumers, Legitimate Business,
`and Intellectual Property Rightsholders
`The U.S. economy loses billions of dollars in revenues each year from software
`14.
`piracy—namely, the unauthorized and unlawful copying, downloading, and distributing of
`copyrighted and trademarked software and related components. Software developers, like
`Microsoft, create hundreds of thousands of technology jobs and are significant drivers of
`economic growth across the United States and globally. The theft of intellectual property
`negatively impacts software companies’ revenues and the economic growth of countries around
`the world.
`Software piracy also victimizes consumers who believe they are purchasing
`15.
`genuine, fully licensed products. As occurred in this case, distributors of pirated software
`deceive consumers by going to great lengths to make the software appear to be licensed and
`authorized by Microsoft and advertising it as such.
`Legitimate technology businesses that follow the rules are also harmed by
`16.
`software piracy because their business is displaced by cheaper offerings from dishonest vendors
`who do not acquire and pay for licensed software.
`B. Microsoft’s Intellectual Property
`17. Microsoft develops, advertises, markets, distributes, and licenses a number of
`computer software programs. One of the methods that Microsoft uses to distribute software is
`digital downloads through Microsoft.com and authorized electronic-software distribution
`vendors.
`18. Microsoft sells licenses to use its software; it does not sell the software itself.
`Microsoft’s software licensing agreements make clear to end users that they are acquiring a
`license to use the software and not title to the software. The licensing agreements contain
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`limitations around the use of the software and place restrictions on transfer of the software
`license and accompanying components.
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`Microsoft’s software programs include the following, among others:
`19.
`Microsoft Office 2019: Microsoft has developed, and advertises,
`a)
`markets, distributes, and licenses a suite of productivity software for business, home, and
`education use called Microsoft Office 2019 (“Office 2019”). Office 2019 is available in a
`number of different versions, each of which includes certain combinations of products,
`programs, and features. Versions of Office 2019 include Office 2019 Professional Plus, Office
`2019 Home & Student, and Office 365 Professional. Microsoft holds a valid copyright in Office
`Professional Plus 2019, the most expansive version of Office 2019. This copyright encompasses
`all versions of Office 2019. Microsoft’s copyright in Office Professional Plus 2019 was duly and
`properly registered with the United States Copyright Office, bearing the number TX 8-640-200,
`a true and correct copy of which is attached hereto as Exhibit 1.
`Microsoft Project 2019: Microsoft has developed, and advertises,
`b)
`markets, distributes, and licenses a software program of project management called Microsoft
`Project 2019 (“Project 2019”). Microsoft holds a valid copyright in Microsoft Project
`Professional 2019, the most expansive version of Project 2019. This copyright encompasses all
`versions of Project 2019. Microsoft’s copyright in Microsoft Project Professional 2019 was duly
`and properly registered with the United States Copyright Office, bearing the number TX 8-727-
`066, a true and correct copy of which is attached hereto as Exhibit 2.
`Microsoft Visio 2019: Microsoft has developed, and advertises, markets,
`c)
`distributes, and licenses a software program for diagramming and vector graphics called
`Microsoft Visio 2019 (“Visio 2019”). Microsoft holds a valid copyright in Microsoft Visio
`Professional 2019, the most expansive version of Visio 2019, and this copyright encompasses all
`versions of Visio 2019. Microsoft’s copyright in Microsoft Visio Professional 2019 was duly
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`and properly registered with the United States Copyright Office, bearing the number TX 8-727-
`070, a true and correct copy of which is attached hereto as Exhibit 3.
`Microsoft Windows 10: Microsoft has developed, advertises, markets,
`d)
`distributes, and licenses a computer operating system called Microsoft Windows 10 (“Windows
`10”). Windows 10 is available in a number of different versions including Windows 10
`Ultimate, Windows 10 Professional, Windows 10 Home Premium, and Windows 10 Enterprise.
`Microsoft holds a valid copyright in Windows 10 (Spring 2020 Update), the most expansive
`version of Windows 10. As a result, Microsoft’s copyright in Windows 10 (Spring 2020 Update)
`encompasses all other versions of Windows 10. Microsoft’s copyright in Windows 10 (Spring
`2020 Update) was duly and properly registered with the United States Copyright Office, bearing
`the number TX 8-890-546, a true and correct copy of which is attached hereto as Exhibit 4.
`20. Microsoft has developed, advertises, markets, distributes, and licenses the above
`software and related components using various trademarks and service marks, and uses these
`marks to distinguish Microsoft’s software and related components from the software or products
`of others in the same field or related fields. Relevant to this case, Microsoft has duly and
`properly registered a number of trademarks and service marks in the United States Patent and
`Trademark Office on the Principal Register, including:
`“MICROSOFT,” Trademark and Service Mark Registration No. 1,200,236
`a)
`for, inter alia, computer programs and computer programming services, a true and correct copy
`of which is attached hereto as Exhibit 5.
`“WINDOWS,” Trademark Registration No. 1,872,264 for, inter alia,
`b)
`computer programs and manuals sold as a unit, a true and correct copy of which is attached
`hereto as Exhibit 6.
`“MICROSOFT CORPORATE COMPOSITE LOGO,” Trademark and
`c)
`Service Mark Registration No. 4,552,363, for, inter alia, computer software, a true and correct
`copy of which is attached hereto as Exhibit 7.
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`“MICROSOFT CORPORATE LOGO,” Trademark and Service Mark
`d)
`Registration No. 4,560,827, for, inter alia, computer software, a true and correct copy of which is
`attached hereto as Exhibit 8.
`“OFFICE 2012 DESIGN,” Trademark and Service Mark Registration No.
`e)
`4,459,826, for, inter alia, computer software, a true and correct copy of which is attached hereto
`as Exhibit 9.
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`“OFFICE WITH OFFICE 2012 DESIGN,” Trademark Registration No.
`f)
`4,456,462, for, inter alia, computer software, a true and correct copy of which is attached hereto
`as Exhibit 10.
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`“EXCEL,” Trademark Registration No. 2,942,050, for, inter alia,
`g)
`computer software, a true and correct copy of which is attached hereto as Exhibit 11.
`“POWERPOINT,” Trademark Registration No. 1,475,795, for, inter alia,
`h)
`computer software, a true and correct copy of which is attached hereto as Exhibit 12.
`“ONENOTE,” Trademark Registration No. 2,844,710, for, inter alia,
`i)
`computer software, also registered under Registration No. 4,251,355. A true and correct copy of
`the first-filed ONENOTE trademark registration is attached hereto as Exhibit 13.
`“OUTLOOK,” Trademark Registration No. 2,188,125, for, inter alia,
`j)
`computer software, also registered under Registration Nos. 4,255,129 and 4,423,056. A true and
`correct copy of the first-filed OUTLOOK trademark registration is attached hereto as Exhibit 14.
`“MICROSOFT ACCESS,” Trademark Registration No. 1,741,086, for,
`k)
`inter alia, computer software. A true and correct copy of the first-filed MICROSOFT ACCESS
`trademark registration is attached hereto as Exhibit 15.
`“PROJECT LAUNCH ICON (2012),” Trademark Registration No.
`l)
`4,355,450, for, inter alia, computer software. A true and correct copy of the first-filed PROJECT
`LAUNCH ICON (2012) trademark registration is attached hereto as Exhibit 16.
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`“PROJECT LAUNCH ICON (color),” Trademark Registration No.
`m)
`5,068,834, for, inter alia, computer software. A true and correct copy of the first-filed PROJECT
`LAUNCH ICON (color) trademark registration is attached hereto as Exhibit 17.
`“VISIO,” Trademark Registration No. 1,838,372, for, inter alia, computer
`n)
`software, also registered under Registration No. 2,063,786. A true and correct copy of the first-
`filed VISIO trademark registration is attached hereto as Exhibit 18.
`C. Microsoft’s Anti-Piracy Tools and Technologies
`One important element of Microsoft’s anti-piracy technology is product
`21.
`activation, which involves the activation of software through product activation keys. A
`Microsoft product activation key is a 25-character alphanumeric string generated by Microsoft
`and provided to customers and OEMs. When customers and OEMs install copies of certain
`Microsoft software on a device, they are required to enter a product activation key. As part of
`the activation process, customers and, in some cases, OEMs, voluntarily contact Microsoft’s
`activation servers over the Internet and transmit their product keys and other technical
`information about their device to the activation servers.
`The activation process is analogous to the activation of credit cards or mobile
`22.
`phones with a code provided by the financial institution or the mobile carrier. Because in certain
`instances copies of Microsoft’s copyrighted software are capable of being installed on an
`unlimited number of computers, Microsoft relies on the product activation process to detect
`unauthorized use and protect consumers from the risks of non-genuine software.
`Product activation keys are not a software license, nor do they constitute
`23.
`authorization from Microsoft to access or use software without the appropriate license. Product
`activation is merely technology used by Microsoft to protect its intellectual property from
`unauthorized use, counterfeiting, and other forms of abuse. Microsoft does not sell or otherwise
`provide product activation keys separately from licensed software, nor does it authorize others to
`do so.
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`Some Microsoft programs issue tokens to customers that they use to download
`24.
`and activate copies of the software. Similar to product activation keys, tokens are 25-character
`alphanumeric strings generated by Microsoft. The associated product activation key does not
`need to be entered separately as it automatically activates the software when a token is used to
`download such copy. Like product activation keys, these tokens do not constitute authorization
`from Microsoft to access or use software without the appropriate license.
`One prevalent facilitator of unauthorized software use is the unlawful distribution
`25.
`of Microsoft product activation keys that have been decoupled from the software they were
`authorized to activate. Decoupled product activation keys are frequently “abused,” meaning
`used to activate more copies of software than the license for the software they were intended to
`activate allows.
`
`Similarly, there is a market for the unauthorized distribution of tokens. These
`26.
`tokens enable the holder of the token to download and activate unlicensed and pirated copies of
`software.
`Distributors of these keys commonly instruct their customers, as in this case, to
`27.
`download copies of the software from Microsoft or other unauthorized download site and then
`use the decoupled keys to activate the software. In these instances, the customers downloading
`copies of the software do not purchase the required software license, and Microsoft is not paid
`for the software being used. The global black market for decoupled product activation keys
`generates millions of dollars of illicit revenues for distributors.
`D.
`Defendants’ Unlawful Advertising and Sale of Microsoft Software and
`Components
`As described above, Microsoft’s investigations have revealed that Defendants are
`28.
`engaged in the widespread marketing and sale of unauthorized access devices including
`decoupled product keys, OEM tokens, and unauthorized credentials. Defendants advertise these
`unauthorized access devices with download links to software which they instruct their customers
`to use to obtain copies of the software. These download links are either to Microsoft’s genuine
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`download sites which their customers are not authorized to use because they do not have a
`license for the software, or to unauthorized sites containing counterfeit copies of software. In
`either instance, copying software from these sites constitutes the infringement of Microsoft’s
`copyright-protected software which Defendants induced, enabled, facilitated, and proximately
`caused.
`Between November 1, 2019 and September 10, 2020, Microsoft test purchased
`29.
`the below-described unauthorized access devices from Defendants’ website at
`officesolutionsusa.net. Microsoft’s trademarks were used, without authorization, on the website
`and in Defendants’ sales materials to market and advertise the Microsoft software associated
`with the unauthorized access devices. Defendants’ use of the Microsoft trademarks was intended
`to, and likely did, confuse consumers about the origin and authenticity of the software and their
`entitlement to use the unauthorized access devices.
`Test Purchases 1-2: On November 7, 2019, a Microsoft investigator purchased
`30.
`(a) three copies of Office 2019 Home and Student for $43.66 per copy; and (b) three copies of
`Office 365 Professional for $46.69 per copy. The results of the test purchase are as follows:
`a)
`Defendants fulfilled the Office 2019 Home and Student order by
`supplying the investigator with abused OEM tokens for the software and a link to a Microsoft
`download site that neither Defendants nor their customers were authorized to use to download
`copies of Microsoft Office software with the OEM tokens distributed by Defendants.
`b)
`Defendants fulfilled the Office 365 Professional order by supplying the
`investigator with credentials (user names and passwords) unlawfully created for Office 365
`subscription accounts that neither Defendants nor their customers were authorized to use to
`access Microsoft Office software.
`Test Purchases 3-5: On December 11, 2019, a Microsoft investigator purchased
`31.
`(a) two copies of Office 2019 Professional for $136.99 per copy; (b) two copies of Microsoft
`Project 2019 Professional for $96.76 per copy; and (c) three copies of Microsoft Visio
`Professional 2019 for $76.69 per copy.
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`Defendants fulfilled the Office 2019 Professional order by supplying the
`a)
`investigator with two decoupled product keys for the Microsoft Developer Network (“MSDN”)
`program. These keys are only authorized for use by a member of the MSDN program and may
`not be redistributed. Defendants also supplied the investigator with links to one unauthorized
`download site containing counterfeit software and one Microsoft download site, neither of which
`Defendants or their customers were authorized to use to download copies of Microsoft Office
`software using the MSDN program keys distributed by Defendants.
`Defendants fulfilled the Project 2019 Professional order by supplying the
`b)
`investigator with two tokens for Microsoft Project software associated with the MSDN program.
`These tokens are only authorized for use by a member of the MSDN program and may not be
`redistributed. Defendants also supplied the investigator with a link to a Microsoft download site
`that neither Defendants nor their customers were authorized to use to download copies of
`Microsoft Project software using the MSDN program tokens for Microsoft Project distributed by
`Defendants.
`
`Defendants fulfilled the Visio Professional 2019 order by supplying the
`c)
`investigator with three tokens for Microsoft Visio software associated with the MSDN program.
`These tokens are only authorized for use by a member of the MSDN program and may not be
`redistributed. Defendants also supplied the investigator with a link to a Microsoft download site
`that neither Defendants nor their customers were authorized to use to download copies of
`Microsoft Visio software using the MSDN program tokens distributed by Defendants.
`Test Purchases 6-8: On September 10, 2020, a Microsoft investigator purchased
`32.
`from Defendants’ website (a) one copy of Visio Professional 2019 for $163.00; (b) one copy of
`Project Professional 2019 for $168.76; and (c) one copy of Windows 10 Professional 10 for
`$99.96.
`
`Defendants fulfilled the Visio Professional 2019 order by supplying the
`a)
`investigator one decoupled product key that was authorized for use only by qualified educational
`users and not authorized for redistribution. Defendants also supplied a link to an unauthorized
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`download site containing counterfeit software that neither Defendants nor their customers were
`authorized to use to download copies of Microsoft Visio software using the decoupled academic
`product key distributed by Defendants.
`Defendants fulfilled the Project Professional 2019 order by supplying the
`b)
`investigator with an MSDN token that was authorized for use only by the MSDN program
`customer to whom it was provided and was not authorized for redistribution. Defendants also
`supplied a link to a Microsoft download site that neither Defendants nor their customers were
`authorized to use to download copies of Microsoft Project software using the MSDN tokens
`distributed by Defendants.
`Defendants fulfilled the Windows 10 Professional order by supplying the
`c)
`investigator with one decoupled product key that was authorized for use only by qualified
`educational users and not authorized for redistribution. Defendants also supplied the investigator
`with a link to a Microsoft download site that neither Defendants nor their customers were
`authorized to use to download copies of Microsoft Windows 10 software using the decoupled
`academic product key distributed by Defendants.
`
`V.
`
`CAUSES OF ACTION
`FIRST CAUSE OF ACTION
`Contributory Copyright Infringement
`17 U.S.C. § 501
`33. Microsoft re-alleges paragraphs 1 through 32 as though fully set forth in this
`Cause of Action.
`34. Microsoft is the sole owner of the software programs listed in paragraphs 19 and
`of the corresponding copyrights and Certificates of Registration with the registration numbers
`listed in those paragraphs.
`Defendants’ customers unwittingly have infringed and continue to infringe
`35.
`Microsoft’s copyright-protected software by using unauthorized access devices to download,
`copy, and activate Microsoft software.
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`Defendants materially contribute to their customers’ infringement by knowingly
`36.
`and intentionally sourcing and reselling decoupled product keys to be used by their customers to
`facilitate the downloading, copying, and activation of Microsoft’s copyright-protected software
`from unauthorized and counterfeit download sites.
`At a minimum, Defendants acted with willful blindness to, or in reckless
`37.
`disregard of, Microsoft’s intellectual property rights.
`On information and belief, Defendants have committed, and continue to commit,
`38.
`acts contributing to the infringement of the Microsoft copyrights described above.
`As a result of Defendants’ wrongful conduct, Microsoft is entitled to recover its
`39.
`actual damages and Defendants’ profits attributable to the infringement. Alternatively,
`Microsoft is entitled to statutory damages under 17 U.S.C. § 504(c).
`The Court should enhance an award of statutory damages in accordance with 17
`40.
`U.S.C. § 504(c)(2).
`41. Microsoft is further entitled to injunctive relief and to an order impounding all
`unlawfully obtained product-activation keys. Microsoft has no adequate remedy at law for
`Defendants’ wrongful conduct because, among other things: (a) Microsoft’s copyright is unique
`and valuable property that has no readily determinable market value; (b) Defendants’
`infringement harms Microsoft such that Microsoft could not be made whole by any monetary
`award; and (c) Defendants’ wrongful conduct, and the resulting damage to Microsoft, is
`continuing.
`
`SECOND CAUSE OF ACTION
`Trademark Infringement
`15 U.S.C. § 1114
`42. Microsoft re-alleges paragraphs 1 through 32 as though fully set forth in this
`Cause of Action.
`Defendants’ activities constitute infringement of Microsoft’s federally registered
`43.
`trademarks with the registration numbers listed in paragraph 20. Microsoft advertises, markets,
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`distributes, and licenses its software and related components under the trademarks described
`above and uses these trademarks to distinguish Microsoft’s software and related components
`from the software or products of others in the same or related fields.
`Because of Microsoft’s long, continuous, and exclusive use of these trademarks,
`44.
`they have come to mean—and are understood by customers, end users, and the public to
`signify—software programs and related components or services of Microsoft.
`Defendants have been, and continue to be, involved in using Microsoft’s
`45.
`registered trademarks in advertising, marketing, and offering Microsoft product keys to be used
`by customers without Microsoft’s authority to activate pirated and unlicensed software.
`Defendants are not licensed to use these registered trademarks.
`Defendants’ use of the trademarks in advertising, marketing, and offering
`46.
`software and product keys is likely to cause confusion, mistake, or deception as to the product
`keys’ source, origin, or authenticity and the source, origin, or authenticity of the pirated and
`unlicensed software that Defendants contribute to and induce their customers to download and
`activate.
`Further, Defendants’ activities are likely to lead others to conclude, incorrectly,
`47.
`that the infringing materials that Defendants are advertising, marketing, installing, offering, and
`distributing originate with or are authorized by Microsoft, thereby harming Microsoft, its
`licensees, and the public.
`At a minimum, Defendants acted with willful blindness to, or in reckless
`48.
`disregard of, Microsoft’s registered marks.
`As a result of Defendants’ wrongful conduct, Microsoft is entitled to recover its
`49.
`actual damages, Defendants’ profits attributable to the infringement, and treble damages and
`attorney fees under 15 U.S.C. § 1117(a) and (b). Alternatively, Microsoft is entitled to statutory
`damages under 15 U.S.C. § 1117(c).
`50. Microsoft is further entitled to injunctive relief and to an order compelling the
`impoundment of all infringing and unauthorized materials. Microsoft has no adequate remedy at
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`law for Defendants’ wrongful conduct because, among other things: (a) Microsoft’s trademarks
`and service mark are unique and valuable property that have no readily determinable market
`value; (b) Defendants’ infringement constitutes harm to Microsoft’s reputation and goodwill
`such that Microsoft could not be made whole by any monetary award; (c) if Defendants’
`wrongful conduct is allowed to continue, the public is likely to become further confused,
`mistaken, or deceived as to the source, origin or authenticity of the infringing materials; and (d)
`Defendants’ wrongful conduct, and the resulting harm to Microsoft, is continuing.
`THIRD CAUSE OF ACTION
`False Designation of Origin; False and Misleading
`Representations and Descriptions of Fact
`15 U.S.C. § 1125
`51. Microsoft re-alleges paragraphs 1 through 32 as though fully set forth in this
`Cause of Action.
`Defendants have made false and misleading representations and descriptions of
`52.
`fact in connection with the offering for sale and sale of unlawfully obtained and unauthorized
`access devices to Microsoft software, including without limitation, decoupled product keys,
`OEM tokens, program keys, and unauthorized credentials.
`Defendants’ false and misleading representations and descriptions of fact were
`53.
`made in commercial advertising or promotion, including without limitation, in connection with
`the offer for sale and sale of unlicensed pirated Microsoft software.
`Defendants’ false and misleading representations and descriptions of fact
`54.
`misrepresent the nature, characteristics, qualities, or origin of the Microsoft software they
`advertise and distribute.
`Defendants’ use of Microsoft’s name and trademarks and its false and misleading
`55.
`representations and descriptions of fact in interstate commerce in connection with its offer for
`sale of unlicensed pirated Microsoft software has either deceived or has the capacity to deceive a
`substantial segment of potential consumers. This deception is material because it is likely to
`influence consumers’ purchasing decisions.
`
`
`
`15
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`

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`Case 1:20-cv-24514-CMA Document 1 Entered on FLSD Docket 11/02/2020 Page 16 of 19
`
`Defendants have used, and continue to use, Microsoft’s name and trademarks
`56.
`referenced above to compete unfairly with Microsoft and to deceive customers.
`Defendants’ conduct constitutes false designation of origin and descriptions, in
`57.
`violation of 15 U.S.C. § 1125(a).
`Defendants’