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MICROSOFT CORPORATION, a
Washington corporation
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Plaintiff,
v.
ADVANTAGE IT TECH, a business
entity of unknown form, a/k/a
ADVANTAGEITTECH.COM, MS
DISCOUNT OFFICE, INC., YOUR
SOFTWARE STOP, ADVANTAGE
PC SUPPORT and REGATTA PCDESIGN; ADVANTAGE PC
SUPPORT, a business entity of
unknown form; and DOES 1-5,
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Defendants.
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41826-5600.0148/129750391.1
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1.
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2.
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Discount Office, Inc., Your Software Stop, Advantage PC Support and Regatta PC-
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3.
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business entity of unknown form which does business through the Internet and is
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4.
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participated in and/or (b) had the right and ability to supervise, direct and control
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the wrongful conduct alleged in this Complaint, and (c) derived direct financial
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benefit from that wrongful conduct. Upon information and belief, Does 1 through 5
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(b) exercised joint ownership or control over the infringing items alleged in this
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5.
Upon information and belief, each of the Defendants was, at all times
mentioned in this Complaint, acting as the agent, employee, or alter ego of every
other defendant, and in doing the things mentioned herein, was acting within the
course and scope of such agency, employment, or other relationship and with
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6.
This Court has subject matter jurisdiction over Microsofts claims for
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7.
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arising under the laws of California pursuant to 28 U.S.C. 1367(a) because these
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claims are so related to Microsofts claims under federal law that they form part of
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the same case or controversy and derive from a common nucleus of operative fact.
VENUE
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8.
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1400(a) because (a) Defendants reside in the Central District of California, and/or
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(b) a substantial part of the events giving rise to Microsofts claims occurred in the
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9.
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such as users guides, users manuals, end user license agreements, Certificates of
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Microsoft uses product keys as one means of preventing or at least restricting the
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valid copyright in Windows 8.1 that was duly and properly registered with the
United States Copyright Office. A true and correct copy of the Registration
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distributes, and licenses Microsoft Office 2010 (Office 2010), which is a suite of
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2010 that was duly and properly registered with the United States Copyright Office.
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A true and correct copy of the Registration Certificate for Microsoft Office
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A.
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valid copyright in Microsoft Excel 2010 that was duly and properly registered with
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the United States Copyright Office. A true and correct copy of the Copyright
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Registration Certificate for Microsoft Excel 2010, bearing the number TX 7-218-
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B.
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networked teams to create and manage calendars, tasks, and contacts. Microsoft
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holds a valid copyright in Microsoft Outlook 2010 that was duly and properly
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registered with the United States Copyright Office. A true and correct copy of the
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Copyright Registration Certificate for Microsoft Outlook 2010, bearing the number
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create, organize, and present overhead and slide presentations. Microsoft holds a
valid copyright in Microsoft PowerPoint 2010 that was duly and properly registered
with the United States Copyright Office. A true and correct copy of the Copyright
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and edit reports and documents. Microsoft holds a valid copyright in Microsoft
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Word 2010 that was duly and properly registered with the United States Copyright
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Office. A true and correct copy of the Copyright Registration Certificate for
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E.
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users to organize text, pictures, digital handwriting, and notes in one spot so that
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they may be accessed and shared. Microsoft holds a valid copyright in OneNote
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2010 that was duly and properly registered with the United States Copyright Office.
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A true and correct copy of the Registration Certificate for Microsoft OneNote 2010,
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incorporated by reference.
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F.
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Microsoft Publisher 2010 that was duly and properly registered with the United
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States Copyright Office. A true and correct copy of the Copyright Registration
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G.
and manipulate databases and store data. Microsoft holds a valid copyright in
Microsoft Access 2010 that was duly and properly registered with the United States
Copyright Office. A true and correct copy of the Copyright Registration Certificate
for Microsoft Access 2010, bearing the number TX 7-206-461, is attached hereto as
users to collect and manage data using electronic forms. The copyright in
Microsofts InfoPath 2010 was duly and properly registered with the United States
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Copyright Office. A true and correct copy of the Registration Certificate for
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that allows users to access SharePoint content whether or not they are connected to
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Workspace was duly and properly registered with the United States Copyright
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Office. A true and correct copy of the Registration Certificate for Microsoft
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2013 that was duly and properly registered with the United States Copyright Office.
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A true and correct copy of the Registration Certificate for Microsoft Office 2013,
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software programs:
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A.
users to create and manipulate databases and store data. Microsoft holds a valid
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copyright in Microsoft Access 2013 that was duly and properly registered with the
United States Copyright Office. A true and correct copy of the Copyright
Registration Certificate for Microsoft Access 2013, bearing the number TX 7-751-
Microsoft holds a valid copyright in Microsoft Excel 2013 that was duly and
properly registered with the United States Copyright Office. A true and correct
copy of the Copyright Registration Certificate for Microsoft Excel 2013, bearing
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reference.
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C.
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allows users to organize text, audio, video and notes in one spot. Microsoft holds a
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valid copyright in OneNote 2013 that was duly and properly registered with the
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United States Copyright Office. A true and correct copy of the Registration
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D.
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allows users and networked teams to create and manage calendars and contacts.
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Microsoft holds a valid copyright in Microsoft Office Outlook 2013 that was duly
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and properly registered with the United States Copyright Office. A true and correct
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copy of the Copyright Registration Certificate for Microsoft Office Outlook 2013,
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incorporated by reference.
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E.
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allows users to create, organize, and present overhead and slide presentations.
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Microsoft holds a valid copyright in Microsoft PowerPoint 2013 that was duly and
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properly registered with the United States Copyright Office. A true and correct
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incorporated by reference.
F.
Microsoft holds a valid copyright in Microsoft Publisher 2013 that was duly and
properly registered with the United States Copyright Office. A true and correct
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incorporated by reference.
G.
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users to create and edit documents. Microsoft holds a valid copyright in Microsoft
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Word 2013 that was duly and properly registered with the United States Copyright
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Office. A true and correct copy of the Copyright Registration Certificate for
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program that allows users to collect and manage data using electronic forms.
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trademarks and a service mark in the United States Patent and Trademark Office on
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B.
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C.
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D.
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1,200,236;
2,744,843;
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E.
No. 3,361,017;
F.
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J.
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K.
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L.
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N.
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O.
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P.
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Q.
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R.
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S.
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U.
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3,625,391;
3,905,556;
3,905,558;
3,905,557;
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4,029,299;
3,905,559;
3,905,560;
3,905,561;
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3,909,142;
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3,909,143;
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V.
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X.
Y.
Z.
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3,909,144;
4,365,955;
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4,355,451;
AA. INFOPATH LAUNCH ICON, Trademark Registration No.
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4,355,447;
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4,433,545;
DD. ONENOTE LAUNCH ICON, Trademark Registration No.
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4,351,584;
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FF.
4,385,388;
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4,355,446;
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EE.
4,355,444;
True and correct copies of the Trademark Registrations for A through HH
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above are attached hereto as Exhibits 20 through 53, respectively, and are
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incorporated by reference.
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///
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Defendants Infringement
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slogans, trademarks and/or service mark. Defendants indicate that they are
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infringing.
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software on their website. A private investigator placed an order for Office 2010
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product key for Office 2010 software along with a link to an unauthorized website
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they were distributing (1) unauthorized product keys for Microsoft software and/or
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19.
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placed an order for Office 2013 and Windows 8.1 through Defendants website.
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Defendants emailed the investigator unauthorized product keys for Office 2013 and
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Windows 8.1 software along with a link to an unauthorized website from which the
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counterfeit and infringing copies of Microsoft software, including but not limited to
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limited to Microsoft Windows 8.1, Office 2010, Word 2010, Excel 2010,
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PowerPoint 2010, OneNote 2010, Outlook 2010, Publisher 2010, Access 2010,
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SharePoint Workspace 2010, InfoPath 2010, Office 2013, Word 2013, Excel 2013,
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PowerPoint 2013, OneNote 2013, Outlook 2013, Publisher 2013 and Access 2013,
Registration.
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including but not limited to Microsoft Windows 8.1, Office 2010, Word 2010,
Excel 2010, PowerPoint 2010, OneNote 2010, Outlook 2010, Publisher 2010,
Access 2010, SharePoint Workspace 2010, InfoPath 2010, Office 2013, Word
2013, Excel 2013, PowerPoint 2013, OneNote 2013, Outlook 2013, Publisher 2013
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damages, which include any and all profits Defendants have made as a result of
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In addition, for the reasons set forth above, the award of statutory
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502 and to an order impounding any and all infringing materials pursuant to 17
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U.S.C. 503. Microsoft has no adequate remedy at law for Defendants wrongful
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conduct because, among other things, (a) Microsofts copyrights are unique and
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Defendants infringement harms Microsoft such that Microsoft could not be made
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whole by any monetary award, and (c) Defendants wrongful conduct, and the
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17 U.S.C. 505.
Second Claim
[Trademark Infringement 15 U.S.C. 1114]
Against Defendants
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32.
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33.
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registered trademarks and service mark in violation of the Lanham Trademark Act,
including but not limited to 15 U.S.C. 1114(1).
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Microsoft is also entitled to recover its attorneys fees and costs of suit.
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software under the trademarks and service mark described in this Complaint, these
trademarks and service mark are the means by which Microsofts software is
distinguished from the software and related items of others in the same or related
fields.
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trademarks and service mark, they have come to mean, and are understood by
customers, end users, and the public to signify, software programs or services of
Microsoft.
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advertise, market, copy, offer, and/or distribute are likely to cause confusion,
mistake, or deception as to their source, origin, or authenticity.
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incorrectly, that the infringing materials that Defendants are advertising, marketing,
copying, offering, and/or distributing originate with or are authorized by Microsoft,
to the damage and harm of Microsoft, its licensees, and the public.
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confusing customers and the public as to the origin and authenticity of the
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federally registered trademarks and service mark and caused, induced, or materially
contributed to it.
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damages, which include any and all profits Defendants have made as a result of
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trademarks and service mark as described above, the award of actual damages and
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43.
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15 U.S.C. 1116, subsections (a) and (d)(1)(A). Microsoft has no adequate remedy
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at law for Defendants wrongful conduct because, among other things, (a)
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Microsofts trademarks and service mark are unique and valuable property which
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constitutes harm to Microsofts such that Microsoft could not be made whole by
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15 U.S.C. 1117.
Third Claim
[False Designation Of Origin, False Description And Representation
15 U.S.C. 1125 et seq.]
Against Defendants
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Microsoft is also entitled to recover its attorneys fees and costs of suit.
software under the trademarks and service mark described in this Complaint, these
trademarks and service mark are the means by which Microsofts software is
distinguished from the software or products of others in the same field or related
fields.
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trademarks and service mark, they have come to mean, and are understood by
customers, end users, and the public to signify, software or services of Microsoft.
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name, and/or imitation visual designs, specifically displays, logos, icons, graphic
designs, and/or packaging virtually indistinguishable from Microsoft visual designs,
in connection with their goods and services.
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conduct with the purpose of misleading or confusing customers and the public as to
the origin and authenticity of the goods and services advertised, marketed, copied,
offered and/or distributed in connection with Microsofts marks, name, and
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imitation visual designs, and of trading upon Microsofts goodwill and business
reputation. Defendants conduct constitutes (a) false designation of origin, (b) false
violation of 43(a) of the Lanham Trademark Act, set forth at 15 U.S.C. 1125(a).
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and enjoined.
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and will continue to suffer damages. Microsoft is entitled to injunctive relief and to
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an order compelling the impounding of all imitation marks and visual designs being
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because, among other things, (a) Microsofts marks, name and visual designs are
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unique and valuable property which have no readily-determinable market value, (b)
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designs constitutes harm to Microsoft such that Microsoft could not be made whole
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by any monetary award, and (c) Defendants wrongful conduct, and the resulting
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53.
constitute unfair competition pursuant to the common law of the State of California.
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The acts and conduct of Defendants are likely to cause confusion and
mistake among customers, end users and the public as to the origin or association of
Defendants infringing Microsoft software. These acts and conduct are likely to
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lead the public to conclude, incorrectly, that the infringing Microsoft software
Defendants originate with, are sponsored by, or are authorized by Microsoft, to the
present time.
Fifth Claim
[For Imposition Of A Constructive Trust Upon Illegal Profits]
Against Defendants
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60.
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Defendants hold the money and profits they have illegally received as
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money and profits in the form of bank accounts, real property, or personal property
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62.
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63.
1117, to recover any and all profits of Defendants that are attributable to their acts
of infringement.
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acts of infringement.
65.
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(1)
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below:
(a)
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(1)
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(2)
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(3)
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(4)
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(5)
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(6)
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(7)
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(8)
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(9)
TX 7-206-464(OneNote 2010);
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(b)
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(1)
1,200,236 (MICROSOFT);
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(2)
1,256,083 (MICROSOFT);
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(3)
1,872,264 (WINDOWS);
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(4)
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(5)
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(6)
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(7)
3,238,869 (ACCESS);
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(8)
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(9)
2,942,050 (EXCEL);
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and business of Microsoft by the acts and conduct set forth in this Complaint.
(2)
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That the Court issue injunctive relief against Defendants, and that
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Defendants, their officers, agents, servants, employees, and all others in active
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///
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(a)
(1)
(2)
(3)
(4)
(5)
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(6)
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(7)
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(8)
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(9)
TX 7-206-464(OneNote 2010);
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registered trademarks and service mark, including, but not limited to, the following
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(1)
1,200,236 (MICROSOFT);
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(2)
1,256,083 (MICROSOFT);
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(3)
1,872,264 (WINDOWS);
(4)
(5)
(6)
(7)
3,238,869 (ACCESS);
(8)
(9)
2,942,050 (EXCEL);
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and any other items or works now or hereafter protected by any Microsoft
trademark or copyright;
(b)
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but not limited to, the Trademark, Service Mark, and Copyright Registration
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(c)
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including, but not limited to the Trademark, Service Mark, and Copyright
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any software program, component, EULA, COA, and/or item not authorized or
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licensed by Microsoft;
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(d)
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offered for distribution, circulation, sold, offered for sale, imported, advertised,
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(e)
rights in, or right to use or to exploit, these trademarks, service mark, and/or
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and 17 U.S.C. 503 impounding all counterfeit and infringing copies of purported
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service mark, and any related items, including business records, that are in
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That the Court enter an order that Defendants websites, including but
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disabled by the appropriate domain name registries, and/or the registrars holding or
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That the Court enter an order declaring that Defendants hold in trust,
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as constructive trustees for the benefit of Microsoft, their illegal profits obtained
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and requiring Defendants to provide Microsoft a full and complete accounting of all
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///
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///
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(a)
statutory damages pursuant to 15 U.S.C. 1117(c) for each counterfeit mark; and
(c)
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That the Court order Defendants to pay to Microsoft both the costs of
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this action and the reasonable attorneys fees incurred by it in prosecuting this
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action; and
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(8)
That the Court grant to Microsoft such other and additional relief as is
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