Sprint Solutions, Inc. et al v. Shiva Telecom USA LLC et al
Filing
55
FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DEFENDANTS SHIVA TELECOM USA LLC, PINNACLE WORLDWIDE, INC. d/b/a PINNACLE WORLDWIDE (MIAMI), INC., NIRMALA UTTAMCHANDANI a/k/a NICK UTTAM AND VISHAL UTTAMCHANDANI a/k/a VISHAL UTTAM, by Judge Virginia A . Phillips. Related to: Stipulation for Judgment,Stipulation for Permanent Injunction, 53 (MD JS-6. Case Terminated). The Court hereby finds, pursuant to Fed. R. Civ. P. 54(b), that there is no just reason for delay and orders that Judgment shall be entered against Defendants as set forth herein. See Judgment for details. (dml)
EXHIBIT 1-A
James Juo (CA Bar No. 193852)
jjuo@fulpat.com
FULWIDER PATTON LLP
6060 Center Drive, Tenth Floor
Los Angeles, CA 90045
Tel: 310.824.5555
Fax: 310.824.9696
[Additional counsel listed on signature page]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SPRINT SOLUTIONS, INC.
h
and SPRINT COMMUNICATIONS i
COMPANY L.P.,
w
Case No.: 5:14-cv-202-VAP-SP
e
Plaintiffs,
i
v.
SHIVA TELECOM USA LLC,
PINNACLE WORLDWIDE, INC.
individually and d/b/a PINNACLE
WORLDWIDE (MIAMI), INC.,
TOMMY JAMES CHAMBERS,
NIRMALA UTTAMCHANDANI
a/k/a NICK UTTAM and VISHAL
UTTAMCHANDANI a/k/a VISHAL
UTTAM
Defendants.
FINAL JUDGMENT AND PERMANENT INJUNCTION
AGAINST DEFENDANTS SHIVA TELECOM USA LLC, PINNACLE
WORLDWIDE, INC. d/b/a PINNACLE WORLDWIDE (MIAMI), INC.,
NIRMALA UTTAMCHANDANI a/k/a NICK UTTAM AND VISHAL
UTTAMCHANDANI a/k/a VISHAL UTTAM
Plaintiffs Sprint Solutions, Inc. and Sprint Communications Company L.P.
(collectively, “Sprint” or “Plaintiffs”) brought the above-captioned lawsuit against
Defendants Shiva Telecom USA LLC, Pinnacle Worldwide, Inc. d/b/a Pinnacle
Worldwide (Miami), Inc., Nirmala Uttamchandani a/k/a Nick Uttam, and Vishal
Uttamchandani a/k/a Vishal Uttam (collectively, “Defendants”), alleging that
Defendants are engaged in an unlawful enterprise involving the unauthorized and
deceptive bulk purchase and resale overseas of specially-manufactured wireless
telephones designed for use on Sprint’s wireless service, including the Sprint
iPhone (collectively, “Sprint Phones” or “Sprint Handsets” or “Phones” or
“Handsets”), the theft of Sprint’s subsidy investment in the Phones, the unlawful
access of Sprint’s protected computer systems and wireless network, the trafficking
of Sprint’s protected and confidential computer passwords, and the willful
infringement of Sprint’s trademarks (collectively, the “Bulk Handset Trafficking
Scheme” or the “Scheme”).
Defendants perpetrated the Bulk Handset Trafficking Scheme by acquiring
large quantities of Sprint Phones from Sprint and/or Sprint authorized retailers and
dealers, and by soliciting others to purchase Sprint Phones in large quantities for
the benefit of Defendants.
Defendants acquired the Sprint Phones with the
knowledge and intent that the Phones will not be used on the Sprint wireless
network (as required by the Sprint contracts). Instead, the Phones are trafficked
and the vast majority are resold as new overseas where the Phones are not
subsidized by wireless carriers (as they are in the United States) and where the
Phones are not as readily available. In some cases, Defendants acquired the Sprint
Phones with the knowledge and intent that the Phones will be computer-hacked.
The purpose of this hacking, known as “unlocking,” is to disable software installed
in the Phones by the manufacturers at the request and expense of Sprint, which
enables the activation of the Sprint Phones exclusively on Sprint’s wireless system.
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The purpose of the software is to allow Sprint to offer the Phones at a discount to
the consumer while protecting Sprint’s subsidy investment in the Phone. The
illegally unlocked Phones are trafficked and resold as new by Defendants, at a
premium, under the Sprint trademarks.
Sprint Phones are sold subject to terms and conditions (“Terms and
Conditions”) which conspicuously restrict and limit the sale and use of the Phones.
These Terms and Conditions are set forth in printed inserts that are packaged with
each Phone and are posted on Sprint’s website.
Pursuant to the Terms and
Conditions of Sprint Phones, purchasers agree, among other things: (a) to pay the
applicable service charges and other related fees; (b) to activate the Sprint Phones on
the Sprint CDMA network; (c) not to resell the Sprint Phones and related products
and services; and (d) not to use the Phones for a purpose that could damage or
adversely affect Sprint.
(a) to pay the monthly service charges and other related fees; (b) to pay an
Early Termination Fee (“ETF”) for each line of service that is terminated before
the contract term is concluded; (c) to activate the Sprint Phones on the Sprint
CDMA network; (d) not to resell the Sprint Phones and related products and
services; and (e) not to use the Phones for a purpose that could damage or
adversely affect Sprint.
As a result of Defendants’ involvement in the Bulk Handset Trafficking
Scheme, Sprint has asserted claims against Defendants for unfair competition,
tortious interference with business relationships and prospective advantage, civil
conspiracy, unjust enrichment, conspiracy to induce breach of contract, common
law fraud, fraudulent misrepresentation, violations of the federal Computer Fraud
and Abuse Act, 18 U.S.C. § 1030, et seq., federal trademark infringement under 15
U.S.C. § 1114, federal common law trademark infringement and false advertising
under 15 U.S.C. § 1125(a)(1)(A) and (B), contributory trademark infringement,
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conversion and unfair competition in violation of California Business &
Professions Code § 17200, et seq. Based on the respective positions advocated by
the parties, and having reviewed the Amended Complaint and file and being
otherwise duly and fully advised in the premises, it is hereby:
ORDERED, ADJUDGED and DECREED that:
1.
This Court has jurisdiction over all the parties and all of the claims set
forth in Sprint’s Complaint.
2.
The Court finds that Sprint has the right to use and enforce rights in
the standard character Sprint® mark and stylized Sprint® Virgin Mobile, payLo,
Assurance Wireless and Boost Mobile trademarks (collectively, the “Sprint
Marks”), as depicted below:
Sprint uses the Sprint Marks on and in connection with its telecommunications
products and services. The Sprint Marks are valid, distinctive, protectable, famous,
have acquired secondary meaning, and are associated exclusively with Sprint.
3.
The Court finds that the Terms and Conditions and the language in
and on the packaging constitute a valid and binding contract enforceable
enforceable between Sprint and each of its customers. The Court finds the Terms
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and Conditions set forth certain rights and restrictions on the use of Sprint Phones.
Among other things, the Terms and Conditions: (a) require that the customer pay
applicable service charges and other related fees; (b) indicate that the Phone is
designed to be activated on the Sprint CDMA network; (c) prohibit resale of Sprint
Phones and related products and services; and (d) prohibit using the Phones for a
purpose that could damage or adversely affect Sprint, for which Sprint is entitled to
relief. The Court finds that the conduct set forth in the Complaint constitutes
violations of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a)(1)(A) and (B)
(federal trademark infringement and false advertising). The Court further finds
that the conduct also constitutes unfair competition, tortious interference with
business relationships and prospective advantage, civil conspiracy, unjust
enrichment, conspiracy to induce breach of contract, common law fraud, fraudulent
misrepresentation, violations of the federal Computer Fraud and Abuse Act, 18
U.S.C. § 1030, et seq., contributory trademark infringement, conversion and unfair
competition in violation of California Business & Professions Code § 17200, et
seq.
4.
Sprint has suffered damages, including loss of goodwill and damage
to its reputation, as a result of Defendants’ conduct. On review and consideration
of all relevant factors, Sprint is entitled to damages and injunctive relief on the
claims as set forth in the Complaint.
5.
Final judgment is hereby entered against Defendant Shiva Telecom
USA LLA and Pinnacle Worldwide, Inc. d/b/a Pinnacle Worldwide (Miami), Inc.
and in favor of the Plaintiffs, on all of the claims set forth in Plaintiffs’ Complaint
in the principal amount of Five Million Dollars and Zero Cents ($5,000,000.00
(U.S.)), which shall bear interest at the legal rate, for which let execution issue
forthwith.
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6.
successors,
Defendants and all of their past and present agents, officers, directors,
assigns,
parents,
predecessors-in-interest,
subsidiaries,
companies,
agents,
affiliates,
related
employees,
heirs,
companies,
personal
representatives, beneficiaries, relatives, and all other persons or entities acting or
purporting to act for them or on their behalf, including, but not limited to, any
corporation, partnership, proprietorship or entity of any type that is in any way
affiliated or associated with Defendants or Defendants’ representatives, agents,
assigns, parent entities, employees, independent contractors, associates, servants,
affiliated entities, and any and all persons and entities in active concert and
participation with Defendants who receive notice of this Order, shall be and hereby
are PERMANENTLY ENJOINED from:
a.
purchasing, selling, unlocking, reflashing, altering, advertising,
soliciting and/or shipping, directly or indirectly, any Sprint
Phones;
1
b.
2
supplying Sprint Phones to or facilitating or in any way
assisting other persons or entities who Defendants know or
3
should know are engaged in the purchase or sale of Sprint
4
Phones or hacking, altering, erasing, tampering with, deleting
5
or otherwise disabling the software installed in Sprint Phones;
6
c.
7
engaging in any of the conduct described in the Complaint as
the “Bulk Handset Trafficking Scheme;”
8
d.
9
supplying Sprint Phones to or facilitating or in any way
10
assisting other persons or entities who Defendants know or
11
should know are engaged in any of the acts prohibited under
12
this Permanent Injunction, including, without limitation, the
13
buying and/or selling of Sprint Phones; and
14
15
16
17
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e.
knowingly using the Sprint Marks or any other trademark,
service mark, trade name and/or trade dress owned or used by
Sprint now or in the future, or that is likely to cause confusion
with
Sprint’s
Marks,
without
Sprint’s
prior
written
authorization.
7.
The purchase, sale or shipment of any Sprint Phones without Sprint’s
prior written consent within and/or outside of the continental United States is and
shall be deemed a presumptive violation of this permanent injunction.
8.
The address of Defendant Shiva Telecom USA LLC is 3389 NW
107th Court, Unit 208, Miami, Florida 33178.
9.
The address of Defendant Pinnacle Worldwide, Inc. d/b/a Pinnacle
Worldwide (Miami), Inc. is 3873 Schaefer Avenue, Unit A, Chino California
91710.
10.
The address of Defendant Nirmala Uttamchandani a/k/a Nick Uttam is
435 South Detroit Street, Unit 209, Los Angeles, California 90036.
11.
The address of Vishal Uttamchandani a/k/a Vishal Uttam is 13439
Peyton Drive, Unit 230, Chino Hills, California 91709.
12.
Defendants waive any and all rights to challenge the validity of this
Final Judgment in this Court or in any other court, and specifically waives their
right of appeal from the entry of this Final Judgment.
13.
The Court retains jurisdiction over this matter and the parties to this
action to award damages against Defendants Vishal Uttamchandani a/k/a Vishal
Uttam and Nirmala Uttamchandani and to enforce the terms of this Permanent
Injunction by a finding of contempt and an order for payment of compensatory
damages to Plaintiffs in an amount of $5,000 for each Sprint Phone that
Defendants are found to have purchased, sold or unlocked in violation of this
Injunction. The Court finds that these amounts are compensatory and will serve to
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compensate Sprint for its losses in the event Defendants violate the terms of this
Order.
14.
The Court hereby finds, pursuant to Fed. R. Civ. P. 54(b), that there is
no just reason for delay and orders that Judgment shall be entered against
Defendants as set forth herein.
DONE AND ORDERED this _12th__ day of November, 2014.
_________________________________
UNITED STATES DISTRICT JUDGE
Copies furnished to:
All Counsel of Record
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