Seattle Trademark Lawyer

Last week, I wondered whether the spate of default judgments Microsoft Corp. seems to be getting against counterfeiters means it’s increasing its enforcement efforts, or whether I’m simply paying more attention. Upon closer inspection, it looks like Microsoft indeed is getting more aggressive.

In a decidedly unscientific study, I compared Westlaw-reported cases involving trademark law issues in which Microsoft was a plaintiff from January to May 2007 to the same period a year earlier. I then weeded out the decisions that did not result in a final order. That left seven decisions in 2007 and two decisions in 2006. Interestingly, all nine decisions involved allegations of counterfeiting or the unauthorized sale of Microsoft software.

Perhaps Microsoft is now seeking easy prey. During the first part of 2007, Microsoft won each of its cases by default: Microsoft Corp. v. Wubena, No. 06-2209, 2007 WL 656688 (N.D. Ga.) (Feb. 28); Microsoft Corp. v. Raven Technology, Inc., No. 06-1346, 2007 WL 809682 (M.D. Fla.) (Mar. 15); Microsoft Corp. v. McGee, No. 06-611, 2007 WL 1469397 (S.D. Ohio) (May 18); Microsoft Corp. v. Gordon, No. 06-2934, 2007 WL 1545216 (N.D. Ga.) (May 24); Microsoft Corp. v. Coppola, No. 06-06701, 2007 WL 1520964 (N.D. Calif.) (May 24); Microsoft Corp. v. Ricketts, No. 06-06712, 2007 WL 1520965 (N.D. Calif.) (May 24); and Microsoft Corp. v. Butcher, No. 06-371, 2007 WL 1567605 (E.D. Tex.) (May 30).

During the first part of 2006, Microsoft’s two wins came not by default but on summary judgment: Microsoft Corp. v. Sellers, No. 04-353, 411 F. Supp.2d 913 (E.D. Tenn.) (Jan. 26); and Microsoft Corp. v. Suncrest Enterprise, No. 03-5424, 2006 WL 1329881 (N.D. Calif.) (May 16).

Microsoft’s biggest award occurred in its 2007 suit against Mark McGee in which it obtained $710,000 in statutory damages under the Lanham and Copyright Acts, plus $3,569.50 in fees and costs. Its best haul in the first part of 2006 was in its suit against Samuel Sellers in the amount of $460,000, with an additional, undetermined award of fees and costs.

Its biggest disappointment: the recent case of Microsoft Corp. v. Coppola, in which Microsoft sought $3.2 million in damages but was awarded only $14,000. Microsoft also sought $3,050,000 in Microsoft v. Ricketts but received only $12,500. Both awards came on the same day from the judge, Northern District of California Judge William Alsup.

Probably more important to the company than damages, however, was the fact that Microsoft obtained an injunction in each of the nine studied cases.

Note: STL updated this post on June 5 at 9:08 a.m. to correct an error.