CA Complaint

8/3/2019 CA Complaint

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-1-Complaint and Demand for Jury Trial

Richard P. Sybert, Bar No. 80731email [email protected] C. Amato, Bar No. 261453email [email protected] & REES LLP101 W. Broadway, Suite 1600

San Diego, California 92101tel (619) 696-6700 / fax (619) 696-7124

Attorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH andSOFTMAKER ENTWICKLUNGS GMBH

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

SOFTMAKER SOFTWARE GMBH, a Germanlimited liability company, and SOFTMAKERENTWICKLUNGS GMBH, a German limitedliability company,

Plaintiffs,

vs.

THIRD SCROLL PRODUCTS LLC, an Indianalimited liability company, SONNEY COLFAX, anindividual, and DOES 1 through 10, inclusive,

Defendants.

)))))))))))))))

CASE NO. ______________________

COMPLAINT AND DEMAND FORJURY TRIAL

Plaintiffs SoftMaker Software GmbH (SoftMaker), and SoftMaker Entwicklungs

GmbH (SEG), referred to collectively herein as Plaintiffs, state and allege as follows for

their complaint against defendants Third Scroll Products, LLC (Third Scroll), Sonney Colfax

(Colfax), and Does 1 through 10, inclusive (collectively, the Does), all referred to

collectively hereinafter as Defendants.

NATURE OF THE ACTION

1. This is an action for willful violations of Plaintiffs intellectual property rights,

including copyright infringement, trademark infringement, and unfair competition, all arising out

'11CV1577 RBBBTM

Case 1:11-cv-01574-JMS-DKL Document 1 Filed 07/18/11 Page 1 of 19 PageID #: 1

Provided by:Overhauser Law Offices LLCwww.iniplaw.orgwww.overhauser.com
mailto:[email protected]:[email protected]://www.iniplaw.org/http://www.iniplaw.org/http://www.overhauser.com/http://www.overhauser.com/http://www.iniplaw.org/mailto:[email protected]


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of Defendants production, importation, distribution, sale, and offer for sale of unauthorized,

hacked copies of Plaintiffs software bearing Plaintiffs marks.

THE PARTIES

2. Plaintiff SoftMaker is a company formed under the laws of Germany with its

principal place of business in Nuremberg, Germany.

3. Plaintiff SEG is a company formed under the laws of Germany with its principal

place of business in Nuremberg, Germany.

4. On information and belief, Defendant Third Scroll is an Indiana limited liability

company with its principal place of business in Indianapolis, Indiana, which does business using

the Internet and interstate mail.

5. On information and belief, Defendant Colfax is an individual who resides in

Indianapolis, Indiana. On information and belief, Colfax is an officer, shareholder, director,

and/or agent of Third Scroll and otherwise controls Third Scroll; Colfax personally participated

in and/or had the right and ability to supervise, direct, and control the wrongful conduct alleged

in this Complaint and derived financial benefit from that conduct.

6. On information and belief, the Does are either entities or individuals subject to the

jurisdiction of this Court. The true names and capacities, whether individual, corporate,

associate, or otherwise, of the Does are unknown to Plaintiffs, who therefore sue the Does, and

each of them, by such fictitious names, and Plaintiffs will seek leave of the Court to amend this

Complaint to allege such true names and capacities when the same are ascertained.

7. On information and belief, each of the Defendants was the agent, employee,

and/or alter-ego of each of the other remaining Defendants and, at all times relevant herein, acted

within the course and scope of such agency and/or employment.

JURISDICTION AND VENUE

8. Jurisdiction of these claims arise under the copyright laws of the United States as

set forth in 17 U.S.C. 101, et seq. (the Copyright Act), and under the trademark laws of the

United States as set forth in 15 U.S.C. 1051 et seq. (the Lanham Act).

///



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9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 (federal question), 28 U.S.C. 1332 (diversity), and 28 U.S.C. 1338 (copyrights and

trademarks).

10. This Court is a proper venue pursuant to 28 U.S.C. 1391(b)(1) and (b)(2) in that

a substantial portion of the events giving rise to the claim occurred in this District, and

Defendants do business in and therefore is deemed to reside in this District under 28 U.S.C.

1391(c). This Court is also a proper venue pursuant to 28 U.S.C. 1400(b) for the same

reasons.

11. This Court has personal jurisdiction over the Defendants by virtue of the fact that

they have availed themselves of the forum by doing business here, by virtue of their actions of

infringement by sales of infringing product to California customers, and by having conducted the

acts giving rise to these claims in the State of California and the Southern District of California.

FACTUAL ALLEGATIONS

Introduction

12. Plaintiffs are in the business of, and have made and continue to make substantial

investments of time, effort, and expense in, designing, developing, testing, manufacturing,

publishing, marketing, distributing, and licensing a variety of software products recorded on

various media, including without limitation optical disks, for use on computers. Plaintiffs have

gained a worldwide reputation for quality and reliability respecting their computer software

products.

13. In connection with Plaintiffs software products, Plaintiffs own copyrights and

licenses of foreign works that through established international treaties are subject to protection

under the United States Copyright Act (Copyright Act), and Plaintiff SoftMaker owns

trademarks that are the subject of registrations with the United States Patent and Trademark

Office (USPTO).

14. Widespread sales of illegal copies of Plaintiffs software products, commonly

known as software piracy, and widespread unauthorized use of SoftMakers trademarks, or

marks confusingly similar thereto, in connection with such sales, commonly known as



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counterfeiting, cause significant harm to Plaintiffs, undermine Plaintiffs investments in their

products, diminish Plaintiffs goodwill, and cause substantial harm to consumers who are falsely

led to believe they are acquiring Plaintiffs licensed genuine software products.

15. Plaintiffs bring this action as a result of Defendants unauthorized copying,

reproduction, and/or distribution of certain of Plaintiffs software products, Defendants

circumvention of technological copyright protection measures incorporated into those software

products, and Defendants unauthorized use of certain of SoftMakers trademarks and/or marks

confusingly similar thereto, through sales conducted over the Internet, including via the website

previously accessible through the domain name http://www.ezbookpc.com/ (the Website), and

through interstate mail. Defendants actions complained of herein were and continue to be

undertaken willfully and intentionally and have caused and continue to cause substantial damage

to Plaintiffs and the software industry.

16. Defendants actions complained of herein constitute willful violation of Plaintiffs

rights under the Copyright Act and SoftMakers rights under the Lanham Act. Plaintiffs

respectfully request the Court enter an injunction against Defendants and award Plaintiffs

damages, costs, and attorneys fees as allowed by statute.

Plaintiffs Software Products and Copyrights

17. Three of Plaintiffs software products include Textmaker 2008 software,

Planmaker 2008 software, and Softmaker Presentations 2008 software, distributed together

as the Softmaker Office 2008 office suite. Plaintiffs package and distribute the aforenamed

software products together with associated user instruction manuals, end-user license

agreements, and other documentation. The aforenamed software products along with their user

instruction manuals are referred to collectively hereinafter as the Plaintiffs Products.

18. Plaintiffs Products were created and first published in Germany. Germany and

the United States are members of several international copyright treaties, including the Berne

Convention for the Protection of Literary and Artistic Works, the Universal Copyright

Convention, Geneva Act, the Universal Copyright Convention, Paris Act, the WIPO Copyright



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Treaty, and the Agreement on Trade-Related Aspects of Intellectual Property Rights

(International Agreements).

19. Plaintiffs Products contain a large amount of material wholly original with

Plaintiffs, which material is copyrightable subject matter under the laws of the United States

pursuant to 17 U.S.C. 102(a)(6) and 104(b)(2). Because Plaintiffs Products are not United

States works as defined by 17 U.S.C. 101, registration of Plaintiffs Products with the

Copyright Office is not a prerequisite to filing suit for infringement under 17 U.S.C. 411(a).

20. At all times herein relevant, Plaintiffs complied in all respects with the applicable

copyright laws where the Plaintiffs Products were developed and have thereby in accordance

with the International Agreements and the Copyright Act, secured the exclusive rights and

privileges in and to the copyrights in the Plaintiffs Products (collectively, the Plaintiffs

Copyrights).

21. Since the creation of the Plaintiffs Copyrights, the Plaintiffs Products have been

published and distributed by Plaintiffs, or under their authority, in compliance with the

applicable international and national laws, the International Agreements and the Copyright Act.

22. Plaintiffs have not authorized Defendants to: (a) copy, reproduce, or distribute

the Plaintiffs Products; or (b) circumvent the technological copyright protection measures in the

Plaintiffs Products that control access to the Plaintiffs Products.

SoftMakers Trademarks

23. At all times herein relevant, SoftMaker has owned trademarks registered in

accordance with the Lanham Act with the USPTO, for which SoftMaker has received

Certificates of Registration. SoftMakers trademarks include, without limitation,

SOFTMAKER (U.S. Trademark Registration No. 3,051,159), which registered on January 24,

2006, and TEXTMAKER (U.S. Trademark Registration No. 3,104,183), which registered on

June 13, 2006, both of which are maintained on the Principal Register (collectively, the

SoftMaker Trademarks).

24. SoftMaker has continuously used each of the SoftMaker Trademarks from the

date of registration thereof, or earlier, until the present and at all times relevant to the claims



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alleged herein. As a result of extensive use, advertising, and sales, together with longstanding

consumer acceptance, the SoftMaker Trademarks have come to identify to consumers and the

public that SoftMaker is the source of origin for authorized copies of the Plaintiffs Products.

The SoftMaker Trademarks have acquired throughout the United States and the world, secondary

meaning in the minds of consumers, who associate the SoftMaker Trademarks with SoftMaker

and its quality products. By virtue of SoftMakers advertising and distribution of the Plaintiffs

Products in connection with the SoftMaker Trademarks, together with consumer acceptance and

recognition, the SoftMaker Trademarks identify SoftMaker and the Plaintiffs Products, and

distinguish the same from, respectively, other entities and their products. The SoftMaker

Trademarks have become, and are, valuable assets symbolizing SoftMaker, its quality goods, and

its goodwill.

25. SoftMaker has not authorized Defendants to use the SoftMaker Trademarks in

connection with the Plaintiffs Products.

The Business and Infringing Activities of Defendants

26. Without authorization by any one or more of Plaintiffs, Defendants and/or their

agents have: (a) copied and reproduced the Plaintiffs Products; (b) circumvented technological

copyright protection measures associated with all authorized copies of the Plaintiffs Products to

make and distribute unauthorized copies of the Plaintiffs Products; (c) used the Internet,

including without limitation the Website, and interstate mail to advertise, sell, and distribute such

unauthorized copies of the Plaintiffs Products to consumers throughout the United States; and

(d) used and distributed unauthorized reproductions, counterfeits, and/or copies of the SoftMaker

Trademarks, or marks confusingly similar thereto, including without limitation on the Website

and on the unauthorized copies of the Plaintiffs Products that Defendants copied, reproduced,

sold, and distributed, some of which were installed on laptop computers called EZ Books.

27. On information and belief, Defendants have engaged willfully and intentionally in

the conduct complained of above.

28. In or around October 2010, Plaintiffs discovered that Defendants were marketing,

selling, and/or distributing copies of Plaintiffs Products and using SoftMakers trademarks, or



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marks confusingly similar thereto, without authorization of any one or more of Plaintiffs.

Through undersigned counsel, Plaintiffs instructed Third Scroll in writing to cease and desist

from further similar unauthorized activities. Counsel for Third Scroll responded in writing once,

but then ceased all further communications. While Defendants removed access to the Website,

on information and belief, Defendants subsequently: (a) sold and distributed illegal copies of

certain of Plaintiffs software products, including, without limitation, the Plaintiffs Products;

and (b) used in commerce and without authorization certain of SoftMakers trademarks,

including, without limitation, the SoftMaker Trademarks.

FIRST CLAIM FOR RELIEF

Copyright Infringement

29. Plaintiffs incorporate and re-alleges herein as if set forth at length the allegations

of the preceding paragraphs above.

30. Defendants acts constitute infringement of Plaintiffs Copyrights in violation of

the Copyright Act, 17 U.S.C. 501.

31. On information and belief, Defendants unauthorized copying, reproduction, and

distribution of the Plaintiffs Products was deliberate, willful, malicious, oppressive, and without

regard to the Plaintiffs proprietary rights, including without limitation the Plaintiffs Copyrights.

32. Defendants copyright infringement has caused, and will continue to cause,

Plaintiffs to suffer substantial injuries, loss, and damage to their proprietary and exclusive rights

to, and copyrights in, the Plaintiffs Products and, further, has damaged Plaintiffs respective

business reputations and goodwill, diverted Plaintiffs trade, and caused Plaintiffs to lose profits,

all in an amount not yet ascertained.

33. Defendants copyright infringement, and the threat of continuing infringement by

Defendants, have caused, and will continue to cause, Plaintiffs to suffer repeated and irreparable

injury. It would be difficult to ascertain the amount of money damages that would afford

Plaintiffs adequate relief at law for Defendants continuing acts, and a multiplicity of judicial

proceedings would be required. Plaintiffs remedy at law is not adequate to compensate



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Plaintiffs for the injuries already inflicted and further threatened by Defendants. Therefore,

Defendants should be restrained and enjoined pursuant to the Copyright Act.

34. On information and belief, Defendants infringing acts have been knowing,

intentional, wanton, and willful, entitling Plaintiffs to enhanced statutory damages, profits,

attorneys fees and costs pursuant to 17 U.S.C. 504-505 in this Courts discretion.

SECOND CLAIM FOR RELIEF

Circumvention of Copyright Protection Measures



36. Plaintiffs Products contain technological measures that effectively control access

to the Plaintiffs Products (collectively, the Access Control Technology).

37. Defendants used without Plaintiffs authorization one or more technologies,

products, services, devices, components, or parts thereof to willfully and intentionally

circumvent the Access Control Technology contained in the Plaintiffs Products, for the purpose

of engaging in the unauthorized copying, reproduction, and distribution of the Plaintiffs

Products.

38. Defendants circumvented the Access Control Technology without Plaintiffs

authorization in violation of 17 U.S.C. 1201(a).

39. Defendants unauthorized circumvention of the Access Control Technology in the

Plaintiffs Products has caused, and will continue to cause, Plaintiffs to suffer substantial

injuries, loss, and damage to their proprietary and exclusive rights to, and copyrights in, the

Plaintiffs Products and, further, has damaged Plaintiffs respective business reputations and

goodwill, diverted their trade, and caused a loss of profits, all in an amount not yet ascertained.

40. Defendants unauthorized circumvention of the Access Control Technology in the

Plaintiffs Products, and the threat of continuing circumvention, has caused, and will continue to

cause, Plaintiffs to suffer repeated and irreparable injury. It would be difficult to ascertain the

amount of money damages that would afford Plaintiffs adequate relief at law for Defendants

continuing acts complained of herein, and a multiplicity of judicial proceedings would be



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required. Plaintiffs remedy at law is not adequate to compensate it for the injuries already

inflicted and further threatened by Defendants. Therefore, pursuant to the Copyright Act,

Defendants should be restrained and enjoined and any device or product in Defendants custody

or control that enabled or was involved in the circumvention should be impounded pursuant to

the Copyright Act, 17 U.S.C. 1203(b).

THIRD CLAIM FOR RELIEF

Trademark Infringement and Counterfeiting



42. Defendants acts constitute infringement of the SoftMaker Trademarks in

violation of Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. 1114(1) and 1125(a).

43. Defendants infringing acts alleged above have caused, and will continue to

cause, a likelihood of, and actual, confusion, mistake, and/or deception among consumers as to

the source, quality, and nature of the unauthorized, unlicensed, and infringing copies of the

Plaintiffs Products made, advertised, sold, and distributed by Defendants.

44. Defendants unauthorized use of the SoftMaker Trademarks competes directly

with SoftMakers distribution of authorized copies of the Plaintiffs Products, diverts trade from

SoftMaker, and diminishes SoftMakers goodwill.

45. Defendants infringing acts alleged above have and will lead consumers to believe

erroneously that the unauthorized copies of the Plaintiffs Products made, advertised, sold, and

distributed by Defendants are being offered for distribution by SoftMaker or with SoftMakers

authorization.

46. Defendants use of the SoftMaker Trademarks on the Internet, in interstate mail,

in marketing materials, and/or on unauthorized copies of the Plaintiffs Products has caused, and

is likely to continue to cause confusion amongst consumers, threatens injury to SoftMakers

business reputation and the goodwill associated with the SoftMaker Trademarks, and constitutes

fraud on the public.

///



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47. Defendants have used reproductions, counterfeits, copies, or colorable imitations

of the SoftMaker Trademarks in commerce in connection with Defendants distribution of

unauthorized copies of the Plaintiffs Products.

48. On information and belief, Defendants used the SoftMaker Trademarks knowing

that such use was counterfeit.

49. Defendants counterfeit use of the SoftMaker Trademarks was in connection with

the same or related categories of goods or services as are covered by SoftMakers federal

registrations of those trademarks as maintained by the USPTO.

50. Defendants actions alleged above have created, and will continue to create,

among members of the general public a likelihood of confusion, mistake, or deception, and

actual confusion, mistake, or deception, as to Defendants purported affiliation, connection,

and/or association with SoftMaker and as to the purported origin, sponsorship, and/or approval

by SoftMaker of the distributed goods and activities of Defendants complained of above.

51. As a result of Defendants acts complained of above, SoftMaker has suffered

damage to its business reputation and goodwill, a diversion of trade, and a loss of profits, all in

an amount not yet ascertained and for which SoftMaker is entitled to recover damages pursuant

to 15 U.S.C. 1117.

52. As a result of the damage suffered by SoftMaker in connection with its business

reputations and goodwill, the diversion of its trade, and the loss of its profits as caused by

Defendants infringement and counterfeiting of the SoftMaker Trademarks, all in an amount not

yet ascertained, SoftMaker is entitled to recover damages pursuant to 15 U.S.C. 1117.


intentional, wanton, and willful, entitling Plaintiffs to treble damages, profits, attorneys fees and

costs pursuant to 15 U.S.C. 1117 in this Courts discretion.

54. Further, Defendants trademark infringement and counterfeiting, and the threat of

continuing infringement and counterfeiting, have caused, and will continue to cause SoftMaker

repeated and irreparable injury. It would be difficult to ascertain the amount of money damages

that would afford SoftMaker adequate relief at law for Defendants continuing acts, and a



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multiplicity of judicial proceedings would be required. SoftMakers remedy at law is not

adequate to compensate SoftMaker for the injuries already inflicted and further threatened by

Defendants. Therefore, Defendants should be restrained and enjoined pursuant to the Lanham

Act, 15 U.S.C. 1051, et seq., including without limitation 15 U.S.C. 1116, et seq.

FOURTH CLAIM FOR RELIEF

False Designation of Origin



56. This claim for relief arises under Section 43(a) of the Lanham Act, 15 U.S.C.

1125(a).

57. Defendants have used the SoftMaker Trademarks, have made false descriptions or

representations regarding the Plaintiffs Products, have distributed unauthorized copies of the

Plaintiffs Products in interstate commerce, and have caused said unauthorized copies to enter

interstate commerce.

58. Defendants actions alleged above have created, and will continue to create,

among members of the general public a likelihood of confusion, mistake, or deception, and

actual confusion, mistake, or deception, as to Defendants purported affiliation, connection,

and/or association with SoftMaker and as to the purported origin, sponsorship, and/or approval

by SoftMaker of the distributed goods and activities of Defendants.

59. Defendants actions complained of above constitute unfair competition with

SoftMaker, and as a result of Defendants acts complained of above, SoftMaker has have

suffered damage to its business reputation and goodwill, a diversion of trade, and a loss of

profits, all in an amount not yet ascertained and for which SoftMaker is entitled to recover

damages pursuant to 15 U.S.C. 1117.


intentional, wanton, and willful, entitling Plaintiffs to treble damages, profits, attorneys fees and

costs pursuant to 15 U.S.C. 1117 in this Courts discretion.

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61. Further, Defendants false designation of origin and unfair competition, and the

threat of continuing false designation of origin and unfair competition, have caused, and will

continue to cause, SoftMaker repeated and irreparable injury. It would be difficult to ascertain

the amount of money damages that would afford SoftMaker adequate relief at law for

Defendants continuing acts, and a multiplicity of judicial proceedings would be required.

SoftMakers remedy at law is not adequate to compensate SoftMaker for the injuries already

inflicted and further threatened by Defendants. Therefore, Defendants should be restrained and

enjoined pursuant to the Lanham Act, 15 U.S.C. 1051, et seq., including without limitation 15

U.S.C. 1116.

FIFTH CLAIM FOR RELIEF

Unfair Competition Under Cal. Bus. & Prof. Code 17200 et seq.



63. California Business & Professions Code 17200 provides that unfair competition

means and includes any unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue, or misleading advertising.

64. By and through Defendants conduct, including the conduct detailed above,

Defendant has engaged in activities that constitute unlawful, unfair, and fraudulent business

practices prohibited by Business & Professions Code 17200 et seq.

65. Defendants acts of intentional and willful copyright and trademark infringement

as alleged above constitute unfair competition actionable under the laws of the State of

California as unlawful business acts or practices in that, inter alia, said acts violate the Copyright

Act and the Lanham Act.



California as unfair business acts or practices in that, inter alia, said acts are immoral, unethical,

oppressive, and unscrupulous.

///



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California as fraudulent business acts of practices in that, inter alia, said acts are likely to

confuse the public as to the origin of the infringing products.



California as deceptive and false advertising in that, inter alia, said acts are likely to cause

confusion, mistake, and deception.

69. The above described acts and omissions are unlawful, unfair, fraudulent,

deceptive, misleading, and untrue, and constitute a violation of Business & Professions Code

17200 et seq. Plaintiffs reserve the right to identify additional violations by Defendant as may

be established through discovery.

70. As a result of Defendants said acts of unfair competition, Plaintiffs have suffered

and will continue to suffer irreparable harm. Unless the acts of unfair competition are enjoined

by this Court, Plaintiffs will continue to suffer irreparable harm.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Court grant relief as follows:

1. A preliminary and permanent injunction enjoining and restraining Defendants,

and each of them, and their respective agents, servants, employees, successors and assigns, and

all other persons acting in concert or conspiracy with Defendants or affiliated with Defendants,

from:

(a) Copying, reproducing, distributing, or using any unauthorized copies of

Plaintiffs copyrighted software products;

(b) Otherwise infringing any of Plaintiffs copyrights;

(c) Using any technologies, products, services, devices, components, or parts

thereof to circumvent technological copyright protection measures associated with any of

Plaintiffs software products;



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(d) Copying, reproducing, advertising, offering for sale, distributing, or using

any software products under or in connection with any of the SoftMaker Trademarks or any

other marks confusingly similar thereto;

(e) Using in any manner any of the SoftMaker Trademarks, or any marks

confusingly similar thereto, in connection with any of Defendants goods in such a manner that is

likely to create the erroneous belief that said goods are authorized by, sponsored by, licensed by,

or are in some way associated with SoftMaker;

(f) Otherwise infringing any of the SoftMaker Trademarks; and

(g) Destroying or altering any copies of software or other products, materials,

technologies, services, devices, components, documents, or electronically stored data or files that

relate or pertain in any way to:

(i) The copying, reproduction, distribution, or use of Plaintiffs

software products;

(ii) The circumvention of technological copyright protection measures

associated with any of Plaintiffs software products;

(iii) The use of the SoftMaker Trademarks, or any trademarks

confusingly similar thereto, on or in connection with the advertisement, sale, or distribution of

goods; or

(iv) The infringement of Plaintiffs copyrights; or

(v) The infringement of SoftMakers trademarks.

2. A preliminary and permanent injunction ordering the impound of any device or

product in Defendants custody or control that has been involved in Defendants circumvention

of technological copyright protection measures associated with any of Plaintiffs software

products;

3. That Plaintiffs be awarded for Defendants copyright infringement either:

(a) actual damages in an amount to be determined at trial, together with the

profits derived from Defendants unlawful infringement of Plaintiffs copyrighted Plaintiffs

Products; or



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(b) statutory damages for each act of infringement in an amount provided by

law, as set forth in 17 U.S.C. 504, at Plaintiffs election before the entry of a final judgment.

4. That Plaintiffs be awarded for Defendants circumvention of technological

copyright protection measures either: (a) actual damages in an amount to be determined at trial,

together with the profits derived from Defendants circumvention; or (b) statutory damages for

each violation in an amount provided by law, as set forth in 17 U.S.C. 1203(c), at Plaintiffs

election before the entry of a final judgment;

5. That SoftMaker be awarded for Defendants infringement of the SoftMaker

Trademarks, false designation of origin, and unfair competition, as set forth in 15 U.S.C.

1117(a), the profits obtained by Defendants and the damages sustained by SoftMaker by reason

of Defendants unlawful acts alleged herein, and that such amounts be trebled pursuant to 15

U.S.C. 1117(b);

6. That SoftMaker be awarded for Defendants trademark counterfeiting, as set forth

in 15 U.S.C. 1117(c), and at SoftMakers election before the entry of the final judgment, either:

(a) actual damages in an amount to be determined at trial, together with Defendants profits

derived from the unlawful counterfeiting of SoftMakers registered trademarks; or (b) statutory

damages for each registered trademark in an amount provided by law based on a determination

that Defendants trademark counterfeiting was willful;

7. That the Court issue an order requiring Defendants to file with this Court and

serve on Plaintiffs within thirty (30) days after service of an injunction a report, in writing, under

oath, setting forth in detail the manner and form in which Defendants have complied with the

injunction;

8. That the Court issue an order upon judgment requiring Defendants to destroy any

and all infringing copies in Defendants possession, custody, or control of Plaintiffs Products

and any materials bearing the SoftMaker Trademarks without SoftMakers authorization;

9. That the Court issue an order upon judgment requiring Defendants to destroy any

device or product involved in Defendants circumvention of technological copyright protection

measures associated with any of Plaintiffs Products;



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10. That the Court award Plaintiffs their reasonable attorneys fees pursuant to 17

U.S.C. 505 and 1203(b) and 15 U.S.C. 1117(a)(3);

11. That the Court award Plaintiffs their costs of suit incurred herein; and

12. That the Court grant such other and further relief as it deems just and proper.

Dated: July 18, 2011 Respectfully submitted,

GORDON & REES LLP

by s/Richard P. Sybert/Richard P. SybertYuo-Fong C. AmatoAttorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH and

SOFTMAKER ENTWICKLUNGSGMBH



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DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury for all claims triable by a jury.

Dated: July 18, 2011 Respectfully submitted,GORDON & REES LLP

by s/Richard P. Sybert/Richard P. SybertYuo-Fong C. AmatoAttorneys for PlaintiffsSOFTMAKER SOFTWARE GMBH andSOFTMAKER ENTWICKLUNGSGMBH

OFTM/1067785/10150784v.1



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44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as reqy law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for thf the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil comled. The attorney filing a case should complete the form as follows:

(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, ushe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, g

oth name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at thef filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation

he county of residence of the defendant is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, nn this section (see attachment).

I. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X if the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.

ederal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment onstitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, an

or 2 should be marked.iversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship

ifferent parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

II. Residence (citizenship) of PrincipalParties. This section of the JS 44 is to be completedif diversity of citizenship was indicated above. Mark this sor each principal party.

V. Nat ur e o f Suit. Place an X in the appropriate box. If the nature of suit cannot be determined,be sure the cause of action, in Section VI below, is suffo enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, he most definitive.

. Origin. Place an X in one of the seven boxes.

riginal Proceedings. (1) Cases which originate in the United States district courts.

emoved from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the peor removal is granted, check t his box.

emanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.einstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

ransferred from Another District. (5) For cases transferred under Title 28 U .S.C. Section 1404(a). Do not use this for within district transfers or multidtigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When thchecked, do not check (5) above.

Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.

I. Cause of Act io n. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional stnless diversity. Example: U.S. Civil Statute: 47 USC 553

Brief Description: Unauthorized reception of cable service

II. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P.

emand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.

ury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

III. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numnd the corresponding judge names for such cases.

ate and Attorney Signature. Date and sign the civil cover sheet.


CA Complaint

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Transcript of CA Complaint