Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 1 of 17
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`
`
`CHRISTOPHER R. MILTENBERGER
`Nevada Bar No. 10153
`GREENBERG TRAURIG, LLP
`10845 Griffith Peak Drive, Suite 600
`Las Vegas, Nevada 89135
`Telephone: (702) 792-3773
`Facsimile: (702) 792-9002
`Email: miltenbergerc@gtlaw.com
`
`Bonnie MacNaughton (pro hac vice forthcoming)
`DAVIS WRIGHT TREMAINE LLP
`920 5th Avenue, Suite 3300
`Seattle, WA 98104
`Phone: (206) 622-3150
`Email: bonniemacnaughton@dwt.com
`
`Kelly M. Gorton (pro hac vice forthcoming)
`DAVIS WRIGHT TREMAINE LLP
`505 Montgomery Street, Suite 800
`San Francisco, CA 94111
`Phone: (415) 276-6500
`Email: kellygorton@dwt.com
`
`Attorneys for Plaintiff
`MICROSOFT CORPORATION
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF NEVADA
`
`
`MICROSOFT CORPORATION, a Washington
`Corporation,
`
`
`
`v.
`
`
`CHEAP TECH GUYS LLC, a Nevada Limited
`Liability Company,
`
`
`
`
` Case No.
`
`
`COMPLAINT
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`Plaintiff Microsoft Corporation (“Microsoft”) brings this Complaint against Defendant
`Cheap Tech Guys LLC (“Cheap Tech Guys” or “Defendant”), and alleges as follows:
`
`
`
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 2 of 17
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`I.
`INTRODUCTION
`1.
`This is an action for 1) contributory copyright infringement; 2) trademark
`infringement; 3) false designation of origin and false and misleading representations and
`descriptions of fact; and 4) trade dress infringement.
`2.
`Defendant is a prolific distributor of black market Microsoft product activation
`keys for Microsoft software which it unlawfully advertises to consumers as genuine Microsoft
`software. The product activation keys being advertised and sold by Defendant are separated
`from the genuine, licensed Microsoft software they were intended and authorized to activate
`(“decoupled product keys”).
`3.
`As an integral part of its sales transactions, Defendant instructs its customers to
`obtain Microsoft software from Microsoft download sites. In order to activate and use the copies
`of software downloaded from Microsoft download sites, users are required to have a license for
`the software. The decoupled product keys sold by Defendant do not equate to licenses for
`Microsoft software. As a result, Defendant willfully contributes to the infringement of
`Microsoft’s copyright-protected software by directing its customers to download and activate
`unlicensed copies of Microsoft software.
`4.
`Furthermore, Defendant uses Microsoft’s trademarks and trade dress in its
`marketing and sales materials without authorization to deceive consumers about the
`characteristics, origin, and authenticity of the software. In particular, Defendant deceives its
`customers into believing that this software is legally licensed for them to use, when it is not.
`5.
`Decoupled product keys do not constitute or represent licenses for Microsoft
`software. Rather, they are technology tools that Microsoft provides customers and its supply
`chain partners to access, install and activate copies of legally licensed software. Unfortunately,
`these tools are sometimes unlawfully used by other third parties, such as Defendant here, to
`deceive unwitting consumers into acquiring copies of pirated and unlicensed software.
`6.
`On information and belief, Defendant has made substantial profits from its
`unlawful sales of decoupled activation keys, all while falsely holding itself out to be a legitimate
`
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 3 of 17
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`distributor of licensed Microsoft software. Defendant knew, or had reason to know, that it was
`facilitating, contributing to, and causing the unlawful copying of unlicensed Microsoft software.
`7.
`Defendant’s unlawful sale of decoupled product keys hurts consumers, 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 Defendant’s misuse
`and theft of its intellectual property.
`8.
`Microsoft seeks an order permanently enjoining Defendant, its officers, agents,
`servants, employees, and attorneys, and other persons who are in active concert or participation
`with Defendant from further sales of decoupled product keys and an award of monetary damages
`to address Defendant’s infringement of Microsoft intellectual property and other violations of the
`law.
`
`II.
`PARTIES
`9.
`Plaintiff Microsoft Corporation is a Washington corporation with its principal
`place of business in Redmond, Washington. Microsoft develops, markets, distributes, and
`licenses computer software, among other products and services.
`10.
`Defendant Cheap Tech Guys LLC is a Nevada limited liability company with its
`principal place of business in Las Vegas, Nevada. Cheap Tech Guys is a reseller of Microsoft
`products.
`
`III.
`JURISDICTION & VENUE
`11.
`The Court has subject-matter jurisdiction over the federal claims alleged herein
`pursuant to 15 U.S.C. § 1121, 17 U.S.C. § 501, and 28 U.S.C. §§ 1331 and 1338(a). This Court
`also has subject-matter jurisdiction under 28 U.S.C. § 1332 because this action is between
`citizens of different states and the amount in controversy exceeds $75,000 exclusive of interest
`and costs.
`12.
`The Court has personal jurisdiction over Defendant because it does business in the
`District of Nevada.
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 4 of 17
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`13.
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) as a substantial part
`of the events giving rise to the instant claims occurred in Clark County, Nevada and Defendant’s
`principal place of business is located within this District.
`IV.
`FACTS
`A.
`Software Piracy Harms Consumers, Legitimate Business, and the Economy
`14.
`The U.S. economy loses billions of dollars in revenues each year from software
`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.
`15.
`Software piracy also victimizes consumers who believe they are purchasing
`genuine, fully licensed products. As occurred in this case, distributors of pirated software
`deceive consumers by going to great lengths to market the software as licensed and authorized
`by Microsoft.
`16.
`Legitimate technology businesses that follow the rules are also harmed by
`software piracy because their business is displaced by cheaper offerings from dishonest vendors
`who do not acquire and pay for licensed software. This harm is by no means limited to
`Microsoft. There are thousands of other technology vendors that distribute Microsoft software
`who are materially harmed by software piracy.
`B.
`Infringed Microsoft Copyrights by Defendant
`17. Microsoft develops, advertises, markets, distributes, and licenses a number of
`computer software programs for which it has duly registered copyrights. 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 limitations around the use of the software and place
`restrictions on transfer of the software license and accompanying components.
`4
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`18. Microsoft’s software programs include the following, among others:
`Microsoft Windows 10: Microsoft has developed, and advertises,
`a)
`markets, 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 1.
`b) Microsoft Office 2019: Microsoft has developed, and advertises,
`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 2.
`Microsoft Office 2016: Microsoft has developed, and advertises,
`c)
`markets, distributes, and licenses a suite of productivity software for business, home, and
`education use called Microsoft Office 2016 (“Office 2016”). Office 2016 is available in a
`number of different versions, each of which includes certain combinations of products,
`programs, and features. Versions of Office 2016 include Office 2016 Professional Plus, Office
`2016 Home & Student, and Office 365 Professional. Microsoft holds a valid copyright in Office
`Professional Plus 2016, the most expansive version of Office 2016. This copyright encompasses
`5
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 6 of 17
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`all versions of Office 2016. Microsoft’s copyright in Office Professional Plus 2016 was duly and
`properly registered with the United States Copyright Office, bearing the number TX 8-097-602,
`a true and correct copy of which is attached hereto as Exhibit 3.
`d) Microsoft Project 2019: Microsoft has developed, and advertises,
`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 4.
`Microsoft Visio 2019: Microsoft has developed, and advertises, markets,
`e)
`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
`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 5.
`Microsoft SQL Server 2019: Microsoft has developed, and advertises,
`f)
`markets, distributes, and licenses a computer software program for distributed relational database
`management and development called Microsoft SQL Server 2019 (“SQL Server 2019”). A
`registration application for Microsoft’s copyright in SQL Server 2019 is pending with the United
`States Copyright Office.
`C.
`Infringed Microsoft Trademarks by Defendant
`19. Microsoft has developed, advertised, marketed, distributed, and licensed 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
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

`

`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 7 of 17
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`and properly registered a number of trademarks and service marks in the United States Patent
`and Trademark Office on the Principal Register, including:
`a)
`“MICROSOFT,” Trademark and Service Mark Registration No.
`1,200,236, for, inter alia, computer programs and computer programming services, a true and
`correct copy of which is attached hereto as Exhibit 6.
`b)
`“WINDOWS,” Trademark Registration No. 1,872,264, for, inter alia,
`computer programs and manuals sold as a unit, a true and correct copy of which is attached
`hereto as Exhibit 7.
`c)
`“MICROSOFT CORPORATE COMPOSITE LOGO,” Trademark and
`Service Mark Registration No. 4,552,363, for, inter alia, computer software, a true and correct
`copy of which is attached hereto as Exhibit 8.
`d)
`“MICROSOFT CORPORATE LOGO,” Trademark and Service Mark
`Registration No. 4,560,827, for, inter alia, computer software, a true and correct copy of which is
`attached hereto as Exhibit 9.
`e)
` “OFFICE 2012 DESIGN,” Trademark and Service Mark Registration No.
`4,459,826, for, inter alia, computer software, a true and correct copy of which is attached hereto
`as Exhibit 10.
`
`f)
`“OFFICE WITH OFFICE 2012 DESIGN,” Trademark Registration No.
`4,456,462, for, inter alia, computer software, a true and correct copy of which is attached hereto
`as Exhibit 11.
`
`g)
`“EXCEL,” Trademark Registration No. 2,942,050, for, inter alia,
`computer software, a true and correct copy of which is attached hereto as Exhibit 12.
`h)
`“POWERPOINT,” Trademark Registration No. 1,475,795, for, inter alia,
`computer software, a true and correct copy of which is attached hereto as Exhibit 13.
`i)
`“ONENOTE,” Trademark Registration No. 2,844,710, for, inter alia,
`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 14.
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 8 of 17
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`j)
`“OUTLOOK,” Trademark Registration No. 2,188,125, for, inter alia,
`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 15.
`k)
`“MICROSOFT ACCESS,” Trademark Registration No. 1,741,086, for,
`inter alia, computer software. A true and correct copy of the first-filed MICROSOFT ACCESS
`trademark registration is attached hereto as Exhibit 16.
`l)
`“PROJECT LAUNCH ICON (2012),” Trademark Registration No.
`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 17.
`m)
`“PROJECT LAUNCH ICON (color),” Trademark Registration No.
`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 18.
`n)
`“SQL SERVER,” Trademark Registration No. 3,301,806, for, inter alia,
`computer programs for distributed relational database management and development. A true and
`correct copy of the first-filed SQL SERVER trademark registration is attached hereto as Exhibit
`19.
`
`o)
`“SERVER DESIGN,” Trademark Registration No. 3,764,113, for, inter
`alia, computer software. A true and correct copy of the first-filed SQL SERVER DESIGN
`trademark registration is attached hereto as Exhibit 20.
`p)
`“VISIO,” Trademark Registration No. 1,838,372, for, inter alia, computer
`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 21.
`D. Microsoft’s Anti-Piracy Tools and Technologies
`20.
`One important element of Microsoft’s anti-piracy technology is product
`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 Original Equipment Manufacturers (“OEMs”). When customers
`and OEMs install copies of certain Microsoft software on a device, they are required to enter a
`8
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
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`10845 Griffith Peak Drive
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`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
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`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 9 of 17
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`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.
`21.
`The activation process is analogous to the activation of credit cards or mobile
`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.
`22.
`Product activation keys are not a software license, nor do they constitute
`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 for software that is not licensed, nor does it authorize others to
`do so.
`
`23.
`One prevalent facilitator of unauthorized software use is the unlawful distribution
`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.
`24.
`Distributors of these keys commonly instruct their customers, as in this case, to
`download copies of the software from Microsoft 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.
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`GREENBERG TRAURIG, LLP
`
`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 10 of 17
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`E.
`Defendant’s Piracy Scheme
`25.
`As described above, Microsoft’s investigations have revealed that Defendant is
`engaged in the widespread marketing and sale of decoupled product keys through its website
`cheaptechguys.com.
`26.
`In 2019 and 2020, Microsoft investigators purchased multiple decoupled product
`keys from Defendant’s website. In particular, Microsoft investigators made test purchases of
`what Defendant advertised as the following Microsoft software programs: Office 2019 (multiple
`versions), Office 2016 (multiple versions), Project 2019 Professional, Windows 10 Professional,
`Visio Professional 2019, and SQL Server 2019 Standard. In each instance, Defendant supplied
`the investigator with a decoupled product key that neither Defendant nor its customers were
`licensed to use to install and activate the advertised software program, and a link to a Microsoft
`download site that Defendant’s customers were not authorized to use to install and activate
`Microsoft software without a software license. The test purchases made by Microsoft
`investigators were fulfilled by Defendant with the following, among others:
`a. Decoupled product keys associated with Microsoft’s Software Developer
`Network program and not authorized for redistribution;
`b. Decoupled product key associated with Microsoft’s Action Pack Subscription
`program and not authorized for redistribution;
`c. Decoupled product keys distributed through programs outside the U.S. and
`authorized for use with specific Multi-National OEM systems;
`d. Decoupled academic program product keys intended for qualified educational
`users only and are not eligible for redistribution.
`27.
`Further, Microsoft’s trademarks were used, without authorization, on the website
`and in Defendant’s sales materials to market and advertise the purported Microsoft software,
`when in fact they were supplying decoupled product keys along with links to Microsoft websites
`that Defendant’s customers were not authorized to download, activate and use copies of software
`without a software license. Defendant’s use of the Microsoft trademarks was intended to, and
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`GREENBERG TRAURIG, LLP
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`10845 Griffith Peak Drive
`
`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
`
`Suite 600
`
`

`

`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 11 of 17
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`likely did, confuse consumers about the origin and authenticity of the software and their
`entitlement to use the software activated with the decoupled product keys.
`V.
`CAUSES OF ACTION
`FIRST CAUSE OF ACTION
`Contributory Copyright Infringement
`17 U.S.C. § 501
`28. Microsoft re-alleges all preceding paragraphs as though fully set forth in this
`Cause of Action.
`29. Microsoft is the sole owner of the software programs listed in Paragraph 18 and of
`the corresponding copyrights and Certificates of Registration with the registration numbers listed
`in that Paragraph.
`30.
`Defendant’s customers unwittingly have infringed and continue to infringe
`Microsoft’s copyright-protected software by using decoupled product keys to download, copy,
`and activate Microsoft software.
`31.
`Defendant materially contributes to its customers’ infringement by knowingly and
`intentionally sourcing and reselling decoupled product keys to be used by its customers to
`facilitate the downloading, copying, and activation of Microsoft’s copyright-protected software
`from counterfeit download sites and Microsoft sites that Defendant’s customers were not
`authorized to use without a software license.
`32.
`At a minimum, Defendant acted with willful blindness to, or in reckless disregard
`of, Microsoft’s intellectual property rights.
`33.
`On information and belief, Defendant has committed, and continues to commit,
`acts contributing to the infringement of the Microsoft copyrights described above.
`34.
`As a result of Defendant’s wrongful conduct, Microsoft is entitled to recover its
`actual damages and Defendant’s profits attributable to the infringement. Alternatively,
`Microsoft is entitled to statutory damages under 17 U.S.C. § 504(c).
`35.
`The Court should enhance an award of statutory damages in accordance with 17
`U.S.C. § 504(c)(2).
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
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`10845 Griffith Peak Drive
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`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
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`Suite 600
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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 12 of 17
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`36. Microsoft is further entitled to injunctive relief and to an order impounding all
`unlawfully obtained decoupled product keys. Microsoft has no adequate remedy at law for
`Defendant’s wrongful conduct because, among other things: (a) Microsoft’s copyright is unique
`and valuable property that has no readily determinable market value; (b) Defendant’s
`infringement harms Microsoft such that Microsoft could not be made whole by any monetary
`award; and (c) Defendant’s wrongful conduct, and the resulting damage to Microsoft, is
`continuing.
`
`SECOND CAUSE OF ACTION
`Trademark Infringement
`15 U.S.C. § 1114
`37. Microsoft re-alleges all preceding paragraphs as though fully set forth in this
`Cause of Action.
`38.
`Defendant’s activities constitute infringement of Microsoft’s federally registered
`trademarks with the registration numbers listed in Paragraph 19. Microsoft advertises, markets,
`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.
`39.
`Because of Microsoft’s long, continuous, and exclusive use of these trademarks,
`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.
`40.
`Defendant has been, and continues to be, involved in using Microsoft’s registered
`trademarks in advertising, marketing, and offering decoupled product keys to be used by
`customers without Microsoft’s authority to activate pirated and unlicensed software. Defendant
`is not licensed to use these registered trademarks.
`41.
`Defendant’s use of the trademarks in advertising, marketing, and offering
`software and product keys is likely to cause confusion, mistake, or deception as to the source,
`origin, or authenticity of the pirated and unlicensed software that Defendant induces its
`customers to download and activate.
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
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`10845 Griffith Peak Drive
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`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
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`Suite 600
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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 13 of 17
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`42.
`Further, Defendant’s activities are likely to lead others to conclude, incorrectly,
`that the infringing materials that Defendant is advertising, marketing, installing, offering, and
`distributing originate with or are authorized by Microsoft, thereby harming Microsoft, its
`licensees, and the public.
`43.
`At a minimum, Defendant acted with willful blindness to, or in reckless disregard
`of, Microsoft’s registered marks.
`44.
`As a result of Defendant’s wrongful conduct, Microsoft is entitled to recover its
`actual damages, Defendant’s 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).
`45. 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
`law for Defendant’s 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) Defendant’s infringement constitutes harm to Microsoft’s reputation and goodwill
`such that Microsoft could not be made whole by any monetary award; (c) if Defendant’s
`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)
`Defendant’s 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
`46. Microsoft re-alleges all preceding paragraphs as though fully set forth in this
`Cause of Action.
`47.
`Defendant has made false and misleading representations and descriptions of fact
`in connection with the offering for sale and sale of decoupled product keys to Microsoft
`software.
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`ACTIVE 55435620v1
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`GREENBERG TRAURIG, LLP
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`10845 Griffith Peak Drive
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`Facsimile: (702) 792-9002
`Telephone: (702) 792-3773
`Las Vegas, Nevada 89135
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`Suite 600
`
`

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`Case 2:21-cv-00284 Document 1 Filed 02/19/21 Page 14 of 17
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`48.
`Defendant’s false and misleading representations and descriptions of fact were
`made in commercial advertising or promotion, including without limitation, in connection with
`the offer for sale and sale of unlicensed pirated Microsoft software.
`49.
`Defendant’s false and misleading representations and descriptions of fact
`misrepresent the nature, characteristics, qualities, or origin of the Microsoft software it advertises
`and distributes.
`50.
`Defendant’s use of Microsoft’s name and trademarks and its false and misleading
`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.
`51.
`Defendant has used, and continues to use, Microsoft’s name and trademarks
`referenced above to compete unfairly with Microsoft and to deceive customers.
`52.
`Defendant’s conduct constitutes false designation of origin and descriptions, in
`violation of 15 U.S.C. § 1125(a).
`53.
`Defendant’s wrongful conduct is likely to continue unless the Court restrains and
`enjoins it.
`54.
`As a result of Defendant’s wrongful conduct, Microsoft is entitled to recover its
`actual damages, Defendant’s profits, and treble damages and attorney fees according to
`15 U.S.C. § 1117.
`55. Microsoft is also entitled to injunctive relief and to an order directing Defendant
`to stop marketing and advertising that they are providing legally licensing Microsoft software.
`Microsoft has no adequate remedy