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Western District Holds Trademark Infringement Defendant in Contempt

My foreign LL.M. students are sometimes skeptical that parties listen to the court when it orders them to do something, or to stop doing something. That’s apparently not always the case around the world. But here, fortunately, parties obey court orders — or suffer the consequences.

The consequences have not yet come to pass in T-Mobile USA, Inc. v. Terry. But they will.

In April 2010, T-Mobile filed suit in the Western District against Sherman Terry and a number of John Does, who T-Mobile claimed was selling unauthorized T-Mobile SIM cards and unlocked cell phones.

T-Mobile’s complaint specifically alleges that “Defendants are engaged in, and knowingly facilitate others to engage in, unlawful business practices involving the unauthorized and unlawful purchase and resale of T-Mobile Subscriber Identity Module (‘SIM’) cards and fraudulent activation of those SIM cards for use on T-Mobile’s FlexPay service, as well as the unauthorized and unlawful bulk purchase and resale of T-Mobile prepared wireless telephones, unauthorized and unlawful computer unlocking of T-Mobile Prepaid phones, alteration of proprietary software computer code installed in the Phones for T-Mobile, and trafficking of the Phones and SIM cards for profit.” T-Mobile alleges those acts amount to trademark infringement and false advertising, among other things.

In December 2010, the Court entered a preliminary injunction barring Mr. Terry and those acting in concert with him from purchasing, selling, altering, using, or shipping T-Mobile SIM cards, PIN numbers, activation codes, and other things needed to activate service or acquire airtime in connection with T-Mobile phones; purchasing, selling, unlocking, altering, advertising, or using T-Mobile prepaid handsets; and purchasing, selling, unlocking, altering, advertising, or shipping any device that bears T-Mobile’s trademarks, among other things.

Apparently, one of the defendants Mr. Terry didn’t heed the court’s order, because T-Mobile moved for an order of contempt.

On Oct. 21, the court granted T-Mobile’s motion. The court’s order — which states Mr. Collette Terry admitted he had violated the injunction — is recounted below.

“Following notice to the defendant, George Collette [presumably one of the John Doe defendants], a trial was scheduled for October 21, 2011 at 2:30 p.m. Plaintiff put on its first witness who testified about the actions of George Collette in violation of the Preliminary Injunction issued in this case. George Collette confessed that he violated the injunction. The Court, by clear and unequivocal evidence, finds George Collette guilty of civil contempt. The Court defers any sanction at this time. George Collette has assured this Court that he will not violate the injunction in the future. If subsequent acts by George Collette, [are] in violation of the injunction, the Court will address the issue of compensatory and coercive measures, to include the conduct which is the subject of this Order.”

There are a few lessons to be learned from this case, but I think they’re pretty obvious.

The case cite is T-Mobile USA, Inc. v. Terry, No. 11-5655 (W.D. Wash. Oct. 21, 2011) (Leighton, J.).

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Reader Comments (2)

I don't get it. Are Collette and Terry the same person?
October 24, 2011 | Unregistered CommenterBob Cumbow
Bob, thanks for your comment. Your confusion is understandable. I had thought the court's order was against Mr. Terry, but it's not, as you point out. In short, I think the defendant in contempt (Mr. Collette) was one of the John Doe defendants who was acting in concert with Mr. Terry, which I didn't explain in my original version of the post. Hope it's clear now. I revised the original post with bold and strikeout text to show my revisions.
October 24, 2011 | Registered CommenterMichael Atkins

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