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Counterfeit Software Seller Infringed Microsoft Trademarks
by Thomas
Long, Legal Editor, CCH
Trademark Law Guide
A seller of low-priced computer software was personally liable for infringing
trademarks owned by Microsoft Corp. by causing the company he owned to sell
counterfeit Microsoft products, the U.S. Court of Appeals in Chicago has decided
in a nonprecedential disposition. Microsoft submitted uncontroverted evidence
that, on four occasions, the software seller's company sold some combination of
counterfeit Microsoft software components, counterfeit certificates of
authenticity (COA), and counterfeit COA labels to private investigators hired by
Microsoft.
The seller's deposition testimony and other evidence revealed that he and his
company often purchased Microsoft COA labels from suppliers without the
accompanying software and sold them to customers. The seller admitted that his
company obtained purported Microsoft software from vendors that were not
authorized to sell Microsoft products and that he selected the suppliers based
only on which offered the lowest price, without regard to whether the software
was counterfeit. The seller did not examine the software to determine whether it
was authentic.
The logos and labeling on the company's counterfeit software closely
resembled Microsoft's logos and labeling, so consumer confusion was likely, the
court said. This evidence established that the seller caused his company to sell
the software knowing that these products infringed Microsoft's marks. At best,
the seller's "ostrich-like" business practices amount to willful
blindness, which was sufficient to show he had the intent necessary to be a
contributory infringer. The seller was jointly liable for the company's
infringing conduct.
Microsoft Corp., 7th Cir., ¶61,118
(The above feature is selected from the newsletter
published monthly along with full text documents and other materials provided to
subscribers of the CCH
Trademark Law Guide.)
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