Seattle Trademark Lawyer

I can’t tell if Microsoft Corp. is being more aggressive or I’m just paying more attention. On May 18, it got a default judgment against an Ohio counterfeiter. (STL coverage here.) On May 24, it got a default judgment and injunction against a California counterfeiter. Not a bad week for Microsoft’s enforcement folks.

In Microsoft Corp. v. Ricketts, Judge William Alsup of the Northern District of California granted the default judgment against Denise Ricketts, who does business as Mydencom. The court found: “Rickets advertised and distributed counterfeit Microsoft products on the auction website ioffer.com. Plaintiff allegedly warned defendant several times that the products she offered might be counterfeit by posting takedown notices on the auction website. After defendant continued to sell allegedly counterfeit products, Microsoft’s investigators placed an order with defendant. Upon receipt of three units of software, Microsoft analyzed them and determined that the software was counterfeit.”

Microsoft sued for trademark infringement, copyright infringement, and false designation of origin. Ms. Ricketts did not appear in the lawsuit or answer the complaint. Therefore, the court granted Microsoft’s subsequent motions for default and for entry of default judgment.

Microsoft sought more than $3 million in statutory damages. However, the court only awarded $12,500 in damages and $2,000 in fees and costs. The court explained its decision by stating: “Plaintiff asks for the maximum enhanced statutory damages for the infringement of each of seven copyrights and two trademarks. At $150,000 per copyright and $1,000,000 per counterfeit trademark, the tab comes to $2,050,000. Plaintiff has identified a grand total of three units of counterfeit software that defendant sold. It is true that Microsoft could not conduct discovery to determine its damages, but that in itself does not support levying a statutory damages award in excess of three million dollars. … Statutory damages are intended to serve as a deterrent, but that does not justify such a windfall.

“A court has wide discretion to determine the amount of statutory damages between the statutory maxima and minimal. In calculating statutory damages, some courts have looked to estimates of actual damages. Here, plaintiff has presented no estimate of how much defendant profited from her infringing activity. Accordingly, the Court thinks it just to award statutory damages in the amount of $1500 per copyright and $1000 per trademark infringed, for a total of $12,500. These damages, coupled with the permanent injunction against defendant, will adequately serve the purpose of deterrence.”

The case cite is Microsoft Corp. v. Ricketts, No. 06-06712, 2007 WL 1520965 (N.D. Cal).