Adobe Systems Incorporated v. Software Tech

Filing 114

Order by Hon. Ronald M. Whyte granting 105 Motion for Default Judgment. (Attachments: # 1 Ex A (Plaintiff's Trademarks) and Ex B (Plaintiff's Copyrights)). (rmwlc2S, COURT STAFF) (Filed on 9/8/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ADOBE SYSTEMS INCORPORATED,

Case No. 5:14-cv-02140-RMW

Plaintiff,
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v.

ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT

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SOFTWARE TECH, et al.,

Re: Dkt. Nos. 105, 112

Defendants.
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Before the court is a motion for default judgment filed by plaintiff Adobe Systems Inc.

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against defendant La Boutique Du Softwaretech, Inc., doing business as Software Tech and

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Software Tech Store (“Software Tech”); defendant Futur-Soft Solutions Corporation (“Futur-

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Soft”); and defendant Pierre Francis (collectively “defendants”). For the reasons set forth below,

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the court GRANTS plaintiff’s motion for default judgment.

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I.

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BACKGROUND
Adobe makes various software products, including “ACROBAT®, ACROBAT

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CAPTURE®, ADOBE AUDITION®, ADOBE PREMIERE®, AFTER EFFECTS®,

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CONTRIBUTE®, CREATIVE SUITE®, CS LIVE®, DREAMWEAVER®, ENCORE®,

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FIREWORKS®, FLASH®, FLASH BUILDER®, FLASH CATALYST®, ILLUSTRATOR®,

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INDESIGN®, LIGHTROOM®, PHOTOSHOP®, PRELUDE®, SPEEDGRADE®, and

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VERSION CUE®.” Dkt No. 54 (First Amended Complaint or “FAC”) ¶ 25. Defendants sell

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Adobe products through various websites. Dkt. No. 75-1 (Francis Decl.) ¶ 8. Defendants’ business

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model is such that:

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the majority of Software Tech’s software sales are for a digital
download. Whether given to a customer via digital download or
physical media, a typical transaction between Software Tech and a
customer involved the customer ordering software from the
Software Tech website and downloading the software through the
Software Tech website or receiving an installation disk via UPS,
FedEx, etc. Software Tech purchased an activation key for the user
from an approved first-tier or second-tier distributor, provided it to
the customer, and the customer would then activate the software
with Adobe using the activation key or serial numbers provided by
Software Tech.

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Id. ¶ 15. Adobe alleges the defendants’ sales violate Adobe licensing policies, which place various

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restrictions on how Adobe serial numbers are distributed to customers. See Dkt. No. 64-3 (Draper

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Decl.). In essence, Adobe alleges that defendants improperly re-use Adobe serial numbers, thereby

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selling the same software product multiple times.

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United States District Court
Northern District of California

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A.

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Plaintiff previously brought an action against defendants Futur-Soft and Pierre Francis for

The Prior Action and March 22, 2013 Permanent Injunction

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similar conduct to that alleged here. See Adobe Systems Incorporated v. Matthew Rene, et al.,

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Northern District of California Case No. 3:11-cv-03885-CRB (the “Prior Action”). The parties

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entered into a Confidential Settlement Agreement to resolve that matter, and the court entered a

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Permanent Injunction and Dismissal with Prejudice on March 22, 2013. Dkt. No. 64-8. The

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Permanent Injunction prohibits defendants Futur-Soft and Pierre Francis from:

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[§ 5.a] Infringing Plaintiff’s Properties, either directly or
contributorily, in any manner, including generally, but not limited to
manufacturing, importing, distributing, advertising, selling and/or
offering for sale any unauthorized product which features any of
Plaintiff’s Properties, including, but not limited to, any product sold
outside specified channels or in a manner which violates the terms
of Plaintiff’s distribution agreements, including, but not necessarily
limited to, academic, OEM, or foreign-made versions of Plaintiff’s
software (collectively “Unauthorized Products”).

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Dkt. No. 64-8 at ECF p. 45. Thus, the Permanent Injunction prohibits defendant Francis from

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dealing in “unauthorized” Adobe products. Id.

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B.

This Action and October 9, 2014 Preliminary Injunction

Plaintiff filed the instant suit on May 9, 2014. On October 7, 2014 the parties stipulated to
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a Preliminary Injunction, which the court entered on October 9, 2014. Dkt. No. 32. The
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Preliminary Injunction prohibits defendants from:
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(a) importing, exporting, downloading, uploading, marketing,
selling, offering for sale, distributing or dealing in any product or
service that uses, or otherwise making any use of, any of Plaintiff’s
Trademarks or Copyrights . . .

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(b) importing, exporting, downloading, uploading, marketing,
selling, offering for sale, distributing or dealing in any activation
codes, keys, or serial numbers relating to any of Plaintiff’s purported
Trademarks or Copyrights . . .

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(c) importing, exporting, downloading, uploading, marketing,
selling, offering for sale, distributing or dealing in any product or
service that uses, or otherwise making any use of, any Original
Equipment Manufacturer (“OEM”), educational or academic
(“EDU”), government, foreign-made, Volume Licensing, or Adobe
Employee Software Purchasing Program software, activation keys,
code, or serial numbers relating to Plaintiff’s Trademarks or
Copyrights . . . .

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Northern District of California

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Id. ¶ 1. The Preliminary Injunction is broader than the Permanent Injunction in that the

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Preliminary Injunction prohibits all sales of Adobe products, not just “unauthorized” products.

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C.

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Adobe uses investigators to purchase Adobe products from third parties and then checks to

Violations of Preliminary Injunction and Order Awarding Sanctions

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ensure the product has been properly licensed. Dkt. No. 64-3. Adobe’s investigator made several

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purchases of Adobe products from defendants’ websites, including purchases after the entry of the

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Preliminary Injunction. Id. The sales Adobe uncovered violated the Preliminary Injunction and

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also violated Adobe’s licensing policies. For example, Mr. Draper declares that:

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I have analyzed the serial number contained in an email sent on
December 23, 2014, from [e-mail] to a
customer. A true and correct copy of this email is attached to the
Declaration of Haik Moushaghayan as Exhibit C. This serial number
is for an unauthorized Educational Volume Licensed (TLP) version
of Adobe Photoshop CS6. This serial number was not generated
until August 28, 2014, and is not registered to the customer in the
December 23, 2014, email. It has been activated a total of 15 times.
None of the users have any business affiliation with each other.
None of the users appear to be qualified as educational users.
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Id. ¶ 13.
In addition, on February 7, 2015, Adobe’s investigator made a purchase of an “Adobe

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Acrobat Professional 11 XI – Download Windows Master Key” from the website located at

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preloadmypc.com. Draper Decl. ¶ 19, Ex. Z. On February 11, 2015, Adobe received an email from

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defendants, through the email address [e-mail], providing a serial number for the

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investigator’s purchase. Id. ¶ 19, Ex. AA. This serial number was for an unauthorized Volume

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Licensing (TLP) product sold outside of Adobe’s licensing restrictions. Id. at ¶ 19.

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In an order dated November 10, 2015, this court found that defendants had violated the
preliminary injunction, and the court awarded Adobe $1,900,000 in sanctions. Dkt. No. 99 at 10.

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In calculating this amount, the court reasoned that defendants had unlawfully distributed license

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United States District Court
Northern District of California

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keys that were used in over 17,000 activations of 19 different copyrighted Adobe software

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programs. Id. The court’s award was based on $100,000 in statutory copyright damages for each

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of the 19 infringed works.

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D.

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On November 10, 2015, this court found defendants Software Tech and Futur-Soft in

Motion for Default Judgment

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default because their counsel withdrew, and corporations cannot represent themselves without an

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attorney in federal court. Dkt. No. 100. On February 26, 2016, this court adopted the assigned

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magistrate judge’s recommendation found defendant Francis in default for his continued failure to

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schedule, participate in, or produce employee witnesses for deposition. Dkt. No. 109.

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Plaintiff filed the instant motion for default judgment against all defendants on January 11,

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2016. Dkt. No. 105. In addition to the $1,900,000 already awarded, plaintiff seeks: (1) an

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additional $200,000 in copyright statutory damages for works that were allegedly distributed

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before this court entered a preliminary injunction; (2) $4,400,000 in trademark statutory damages;

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and (3) a permanent injunction. Defendants did not file an opposition. On February 26, 2016, this

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court requested supplemental briefing on whether an award of statutory damages for both

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copyright and trademark infringement would constitute an impermissible double recovery. Dkt.

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No. 110. The court also requested additional factual support for plaintiff’s damages claims. On

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March 11, 2016, plaintiff filed a supplemental brief as well as a declaration from Mr. Draper and

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documentation regarding the amount of profit Adobe would have expected to make on the

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infringing sales. Dkt. Nos. 112, 111-3.

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II.

ANALYSIS

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A.

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After entry of default, courts may, in their discretion, enter default judgment. See Fed. R.

Whether Default Judgment is Appropriate

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Civ. P. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising its

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discretion to enter default judgment, the court may consider:

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Northern District of California

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(1) the possibility of prejudice to the plaintiff, (2) the merits of
plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)
the sum of money at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default was due to
excusable neglect, and (7) the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). In considering these factors, all factual

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allegations in the plaintiff’s complaint are taken as true, except those relating to damages. See Fair

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Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002); TeleVideo Sys., Inc. v. Heidenthal,
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826 F.2d 915, 917–18 (9th Cir. 1987).
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1.

Possibility of Prejudice to Plaintiff

The court recognizes the possibility that plaintiff will be prejudiced if default judgment is
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not entered against defendant. Denying judgment against a defendant who does not participate in
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litigation leaves the plaintiff with limited recourse for recovery, such as filing a time-intensive
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motion for summary judgment. See Atain Specialty Ins. Co. v. N. Bay Waterproofing, Inc., No.
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14-CV-04056-RMW, 2015 WL 428161, at *4 (N.D. Cal. Jan. 30, 2015). Thus, the first factor
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weighs in favor of granting default judgment.
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2.

Substantive Merits and the Sufficiency of the Complaint

The next two Eitel factors, the substantive merits of plaintiff’s claim and the sufficiency of
the complaint, require that plaintiff’s allegations “state a claim on which the [plaintiff] may
recover.” Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978).

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a.

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Copyright Claims

“To establish copyright infringement, a plaintiff must prove two elements: ‘(1) ownership

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of a valid copyright, and (2) copying of constituent elements of the work that are original.’” L.A.
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Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012) (quoting Feist Publ'ns,
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Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). A certificate of registration is “prima facie
evidence of the validity of the copyright and of the facts stated in the certificate.” 17 U.S.C.

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§ 410(c). Here, plaintiff has alleged its ownership in 21 registered, copyrighted works. FAC ¶ 30.
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A certificate of registration is prima facie evidence of the validity of the copyright. Moreover,
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plaintiff has alleged and submitted evidence that defendants distributed unauthorized copies of
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plaintiff’s copyrighted works. FAC ¶¶ 44, 46, 58; Dkt. No. 112-1. These allegations are sufficient

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to establish copyright infringement.

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Northern District of California

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b.

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Trademark Claims

To state a claim for trademark infringement, a plaintiff must allege that (1) it has a valid,
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protectable trademark, and (2) that defendants’ use of the mark in commerce is likely to cause

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confusion. See 15 U.S.C. § 1114(1)(a); Applied Info. Scis. Corp. v. eBAY, Inc., 511 F.3d 966, 969
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(9th Cir. 2007). The claim for false designation of origin or unfair competition has the same
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elements and follows an identical analysis in this case.1 See 15 U.S.C. § 1125(a); Brookfield

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Commc'ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1047 n.8 (9th Cir. 1999). To constitute
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trademark infringement, use of a mark must be likely to confuse an “appreciable number” of
“reasonably prudent” consumers. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1151 (9th

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Cir. 2002). In assessing likelihood of confusion, courts consider:
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1. The strength of the plaintiff’s trademark;
2. The similarity of the marks;
3. The proximity or relatedness of the goods or services;
4. The defendants’ intent in selecting the marks;
5. Evidence of actual confusion;
6. The marketing channels used;
7. The likelihood of expansion of product lines; and,
8. The degree of care consumers are likely to exercise.

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Plaintiff’s state law claims are predicated on defendants’ alleged infringement of plaintiff’s
trademarks and copyrights. See FAC ¶¶ 98-116.
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Id. at 1140 (citing AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979)).

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“Although some factors—such as the similarity of the marks and whether the two companies are

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direct competitors—will always be important, it is often possible to reach a conclusion with

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respect to likelihood of confusion after considering only a subset of the factors.” Brookfield, 174

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F.3d at 1054.

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Here, plaintiff has stated a claim for trademark infringement. Plaintiff has alleged

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ownership of 22 registered trademarks. FAC ¶ 29. Moreover, plaintiff has alleged that defendants

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used plaintiff’s marks in commerce by distributing software bearing plaintiff’s marks without

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authorization. FAC ¶¶ 43-60. Plaintiff has also adequately alleged a likelihood of confusion.
While plaintiff’s allegations are not mark-specific, plaintiff has alleged that its marks “have been

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Northern District of California

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prominently placed in the minds of the public” as a result of “Plaintiff’s efforts, the quality of

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Plaintiff’s products, and the promotion and word of mouth buzz.” FAC ¶ 27. Moreover,

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defendants’ accused products are copies of Adobe products, with identical marks, placed in direct

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competition with authorized Adobe software. See id. ¶¶ 43-60. “A party claiming trademark

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infringement need not demonstrate that the alleged infringer intended to deceive consumers,” M2

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Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1085 (9th Cir. 2005), but here, defendants’ intent

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may be inferred from the fact that defendants knowingly used marks identical to those of plaintiff.

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Plaintiff also submitted evidence that some of defendants’ customers were confused into thinking

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that they had purchased authorized Adobe software. Dkt. No. 64-6 Ex. A & F. The court need not

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address the remaining Sleekcraft factors to conclude that plaintiff has adequately established

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likelihood of confusion, at least as to some of plaintiff’s marks.

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For the reasons stated above, plaintiff has adequately established trademark infringement.
c.

Trademark Dilution Claims

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To state a claim for trademark dilution, a plaintiff must allege that “(1) the mark is famous

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and distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendant’s use

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began after the mark became famous; and (4) the defendant’s use of the mark is likely to cause

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dilution by blurring or dilution by tarnishment.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634

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(9th Cir. 2007) (citing 15 U.S.C. § 1125(c)).
Plaintiff has adequately established trademark dilution. Plaintiff has alleged that Adobe-

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Branded Software and the associated marks thereto are famous in the United States and throughout

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the world. FAC ¶ 27. “Registration alone may be sufficient in an appropriate case to satisfy a

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determination of distinctiveness.” Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1199 (9th Cir. 2009).

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As noted above, plaintiff has alleged that defendants used plaintiff’s marks in commerce by

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distributing software bearing plaintiff’s marks without authorization. FAC ¶¶ 43-60. Plaintiff has

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alleged that defendants’ use of the marks began after the marks became famous. Id. ¶ 61. Plaintiff

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has also submitted evidence that defendants have tarnished Adobe’s marks by selling unauthorized

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Northern District of California

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Adobe software that will not work. Dkt. No. 64-6 Ex. A & F.
3.

Sum of Money at Stake

In analyzing the fourth Eitel factor, the sum of money at stake, “the court considers [the]

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plaintiff’s declarations, calculations, and other documentation of damages in determining if the

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amount at stake is reasonable.” Truong Giang Corp. v. Twinstar Tea Corp., No. 06-03594 JSW,

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2007 WL 1545173, at * 12 (N.D.Cal. May 29, 2007). Default judgment is disfavored when a large

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sum of money is involved or the damages sought are unreasonable in light of the defendant’s

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actions. See id. Where a plaintiff’s request for damages is excessive, the court may mitigate the

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impact of this factor by reducing the amount awarded. See, e.g., Joe Hand Promotions, Inc. v.

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Burleson, No. 11–00499, 2011 WL 4905631, at *4 (E.D. Cal. Oct. 14, 2011). Here, the court finds

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plaintiff’s request for $4,600,000 in statutory damages in addition to the $1,900,000 already

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awarded unreasonable in light of the circumstances of the case. However, because, as discussed

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below, the court awards plaintiff a smaller sum, this factor does not weigh strongly against the

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entry of default judgment.

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4.

Remaining Factors

The remaining Eitel factors also support default judgment. There is no genuine issue of

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material fact because the allegations in the complaint are taken as true. Moreover, there is no

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evidence that defendant’s failure to participate in the litigation is due to excusable neglect. Finally,

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although the policy favoring decisions on the merits weighs against entering default judgments,

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that policy alone is not enough to prevent the entry of judgment here.
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On balance, the court finds that the seven Eitel factors favor default judgment.

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B.

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As noted above, in addition to the $1,900,000 already awarded, plaintiff seeks: (1)

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$100,000 in copyright statutory damages for each of two works that were distributed before this

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court entered a preliminary injunction, a total of $200,000 in additional copyright damages; and

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(2) $200,000 in trademark statutory damages for each of 22 infringed marks, a total of $4,400,000

Damages

in additional trademark damages. Alternatively, plaintiff requests $24,966,618.70 in lost profits

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Northern District of California

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based on an alleged 53,731 activations of Adobe software. Dkt. No. 112 at 4.

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The court finds that plaintiff’s request for lost profits is not adequately supported. In

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support of its claim, plaintiff submitted a list of products that defendants distributed without

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authorization, including the number of units distributed, the retail price of each product, and

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Adobe’s purported profit margin on each product. Dkt. No. 111-3. A fatal flaw with plaintiff’s

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evidence is that it assumes, without any support, that but for defendants’ infringement, Adobe

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would have sold 53,371 additional software units at full retail price. However, plaintiff’s

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complaint accuses defendants of, among other things, selling unauthorized academic and

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“Transactional Licensing Program” editions of Adobe software, which, the complaint explains, are

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offered at steep discounts. FAC ¶¶ 32, 33, 37. At least because the price and profit figures filed by

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plaintiff do not distinguish between retail and discounted licenses, the court finds them unreliable

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for calculating lost profits. Thus, the court turns to statutory damages.

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A “district court has ‘wide discretion in determining the amount of statutory damages to be

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awarded, constrained only by the specified maxima and minima’” of the relevant statutes. Los

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Angeles News Serv. v. Reuters Television Int'l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998) (quoting

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Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)). Under the Copyright Act, a

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court, in its discretion, can award between $750 and $30,000 in statutory damages per copyright

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infringed. 17 U.S.C. § 504(c)(1). Enhanced damages of up to $150,000 per copyright infringed

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may be granted on a finding of willful infringement. Id. § 504(c)(2). For trademark infringement

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involving the use of a counterfeit mark, a plaintiff may recover statutory damages between $1,000

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and $200,000 per infringed mark, “as the court considers just.” 15 U.S.C. 1117(c). A court may

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also award enhanced damages of up to $2,000,000 per counterfeit mark on a finding of willful

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infringement, again, “as the court considers just.” Id.

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After plaintiff filed its initial motion for a default judgment, this court requested

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supplemental briefing on whether an award of statutory damages for both copyright and trademark

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infringement would constitute an impermissible double recovery. In response, plaintiff cited
Nintendo of America, Inc. v. Dragon Pacific International, 40 F.3d 1007, 1011 (9th Cir.1994) for

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Northern District of California

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the proposition that “when a defendant violates both the Copyright Act and the Lanham Act, an

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award of both types of damages is appropriate.” In Nintendo, the court awarded statutory damages

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under copyright law in conjunction with an award of actual damages under trademark law. While

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Nintendo did not explicitly hold that courts can award statutory damages under both copyright and

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trademark law for the same underlying acts, plaintiff cites several district courts cases allowing

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separate statutory damages awards under copyright and trademark law. Dkt. No. 112 at 2-3.

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None of the cases plaintiff has cited supports the award of the $4,600,000 that plaintiff

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seeks (in addition to the $1,900,000 already awarded) as a default judgment. See Microsoft Corp.

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v. Nop, 549 F. Supp. 2d 1233, 1238 (E.D. Cal. 2008) (awarding “$100,000 for each of seven

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trademarks infringed and $30,000 for each of nine copyrights infringed, for a combined total of

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$970,000”); Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 501-02 (C.D. Cal.

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2003) (awarding $2,000,000 in trademark statutory damages for the importation of “8,000,000

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counterfeit cigarettes, having a street value of millions of dollars”); Tiffany Inc. v. Luban, 282 F.

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Supp. 2d 123, 125 (S.D.N.Y. 2003) (awarding $550,000 in trademark statutory damages for sale

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of “28 separate counterfeit Tiffany items . . . each of which allegedly infringes upon at least four

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Tiffany trademarks”); Microsoft Corp. v. McGee, 490 F. Supp. 2d 874, 882 (S.D. Ohio 2007)

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(awarding “$100,000 for each of five trademarks at issue and $30,000 for [each of] seven

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copyrights at issue, for a total of $710,000”); Microsoft Corp. v. Sellers, 411 F. Supp. 2d 913, 921-

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22 (E.D. Tenn. 2006) (awarding “$100,000 for each of [the] four trademarks at issue and $30,000

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for [the] two copyrights at issue, for a total of $460,000”). In Microsoft Corp. v. Ricketts, No.

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C06-06712 WHA, 2007 WL 1520965, at *5 (N.D. Cal. May 24, 2007), also cited by plaintiff, the

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court awarded “statutory damages in the amount of $1500 per copyright infringed and $1000 per

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trademark infringed, for a total of $12,500.” Judge Alsup specifically noted: “It is true that

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Microsoft could not conduct discovery to determine its damages, but that in itself simply does not

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support levying a statutory damages award in excess of three million dollars.” Id.

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In the instant case, the court finds that the $4,600,000 plaintiff seeks would constitute an
improper windfall to plaintiff. With respect to plaintiff’s copyright claims, consistent with this

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Northern District of California

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court’s order awarding sanctions, the court will award $100,000 in copyright statutory damages

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per infringed work, for a total of $200,000. With respect to plaintiff’s trademark claims, the court

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notes that plaintiff only cited evidence of actual of confusion as to two of its marks. Dkt. No. 64-6

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Ex. A & F (correspondence with consumers reflecting activation issues with purchases from

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defendants of Adobe Photoshop CS6 and Adobe CS5.5 Production Premium). Moreover, the

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complaint’s allegations of likelihood of confusion were not specific to particular marks.

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Accordingly, the court thinks it just to award $100,000 in trademark statutory damages for each of

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the two infringed marks for which plaintiff showed actual confusion. Thus, in total, the court

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awards $400,000 in statutory damages for defendants’ copyright and trademark infringement, in

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addition to the $1,900,000 already awarded in sanctions. These damages, coupled with the

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permanent injunction granted against defendant, will adequately serve the purpose of deterrence.

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C.

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Under 17 U.S.C. § 502(a), a court may enter an injunction against a defendant to prevent

Permanent Injunction

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future copyright infringement. Similarly, injunctive relief is available to prevent future trademark

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infringement under the Lanham Act. 15 U.S.C. § 1116(a); 15 U.S.C. § 1125(c). Here, defendants

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have repeatedly infringed plaintiff’s copyrights and trademarks despite prior orders issued against

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them. Plaintiff will suffer irreparable injury if ongoing infringement is not enjoined. Furthermore,

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defendants’ refusal to participate in this action makes it difficult for plaintiff to prevent further

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infringement. The court is unaware of any reason why an injunction would impose an undue

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hardship on defendants or harm the public interest. Accordingly, injunctive relief is warranted.

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Plaintiff’s motion for a permanent injunction is granted as described below.

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III.

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ORDER
For the foregoing reasons, plaintiff’s motion for default judgment is GRANTED. Plaintiff

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is awarded $400,000 in statutory damages, in addition to the $1,900,000 already awarded in

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sanctions, for a total of $2,300,000. Plaintiff’s request for a permanent injunction is GRANTED

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on the following terms:

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Defendants and any person or entity acting in concert with, or at its direction, including

United States District Court
Northern District of California

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any and all officers, directors, agents, servants, employees, and any others over which it may

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exercise control, are hereby restrained and enjoined from engaging in, directly or indirectly, or

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authorizing or assisting any third party to engage in, any of the following activities:

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1. importing, exporting, downloading, uploading, marketing, selling, offering for sale,

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distributing or dealing in any product or service that uses, or otherwise making any use of, any of

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Plaintiff’s Trademarks or Copyrights, including but not limited to the ADOBE®, ACROBAT®,

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ACROBAT CAPTURE®, ADOBE AUDITION®, ADOBE PREMIERE®, AFTER EFFECTS®,

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CONTRIBUTE®, CREATIVE SUITE®, CS LIVE®, DREAMWEAVER®, ENCORE®,

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FIREWORKS®, FLASH®, FLASH BUILDER®, FLASH CATALYST®, ILLUSTRATOR®,

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INDESIGN®, LIGHTROOM®, PHOTOSHOP®, PRELUDE®, SPEEDGRADE®, and

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VERSION CUE® marks and works, and/or any Intellectual Property that is confusingly or

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substantially similar to, or that constitutes a colorable imitation of, any of Plaintiff’s Trademarks

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and Copyrights, whether such use is as, on, in or in connection with any trademark, service mark,

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trade name, logo, design, Internet use, website, domain name, meta tags, advertising, promotions,

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solicitations, commercial exploitation, television, web-based or any other program, or any product

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or service, or otherwise. A list of Plaintiff’s registered trademarks is attached and incorporated by

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reference herein as Exhibit A (collectively referred to as “Plaintiff’s Trademarks”). A list of

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ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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Plaintiff’s registered copyrights is attached and incorporated herein as Exhibit B (collectively

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referred to as “Plaintiff’s Copyrights”);

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2. importing, exporting, downloading, uploading, marketing, selling, offering for sale,

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distributing or dealing in any activation codes, keys, or serial numbers relating to any of Plaintiff’s

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purported Trademarks or Copyrights and/or any Intellectual Property that is confusingly or

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substantially similar to, or that constitutes a colorable imitation of, any of Plaintiff’s Trademarks

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or Copyrights;

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3. importing, exporting, downloading, uploading, marketing, selling, offering for sale,
distributing or dealing in any product or service that uses, or otherwise making any use of, any

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Original Equipment Manufacturer (“OEM”), educational or academic (“EDU”), government,

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United States District Court
Northern District of California

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foreign-made, Volume Licensing, or Adobe Employee Software Purchasing Program software,

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activation keys, code, or serial numbers relating to Plaintiff’s Trademarks or Copyrights;

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4. maintaining active for downloading purposes any servers, computer terminals and/or

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portals, or any electronic storage medium containing any of Plaintiff’s Trademarks and Copyrights

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and/or any Intellectual Property that is confusingly or substantially similar to, or that constitutes a

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colorable imitation of, any of Plaintiff’s Trademarks or Copyrights;

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5. performing or allowing others employed by or representing them, or under their control,

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to perform any act or thing which is likely to injure Plaintiff, any of Plaintiff’s Trademarks or

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Copyrights and/or Plaintiff’s business reputation or goodwill, including making disparaging,

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negative, or critical comments regarding Plaintiff or its products;

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6. engaging in any conduct that falsely represents that, or is likely to confuse, mislead, or

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deceive purchasers, customers, or members of the public to believe that Defendants itself is

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connected with, is in some way sponsored by or affiliated with, purchases products from, or

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otherwise has a business relationship with Plaintiff;

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7. hiding, disposing of, destroying, moving, relocating, or transferring any and all products,

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advertising, promotional materials, or packaging bearing and/or comprised of any of Plaintiff’s

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Trademarks or Copyrights and/or any Intellectual Property that is confusingly or substantially

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5:14-cv-02140-RMW
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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similar to, or that constitutes a colorable imitation of, any of Plaintiff’s Trademarks or Copyrights;

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8. hiding, disposing of, destroying, moving, relocating, or transferring any and all business

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records, specifically including any accountings, sales and supply logs, customer journals, ledgers,

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invoices, and purchase orders, concerning Defendants’ import, export, download, upload,

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marketing, sale, offer for sale, distribution or dealing in any product or service that uses, or

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otherwise making any use of, any of Plaintiff’s Trademarks or Copyrights and/or any Intellectual

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Property that is confusingly or substantially similar to, or that constitutes a colorable imitation of,

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any of Plaintiff’s Trademarks or Copyrights;
9. hiding, disposing of, destroying, moving, relocating, or transferring any and all

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computers, tablets, servers, blade, electronic storage devices, data, meta data, electronic storage

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United States District Court
Northern District of California

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media, disks, CDs, DVDs, drives, flash drives, hard drives, or related computer systems that

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include, denote, contain, possess, maintain and/or are used to transfer any software, computer

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source code, computer information, decrypted code, directories, files, libraries, and any related

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data that relate (either directly or indirectly) to Plaintiff’s Trademarks or Copyrights; and

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10. using any Internet domain name that includes any of Plaintiff’s Trademarks or

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Copyrights.
Defendants shall be restrained and enjoined from transferring or disposing of any money or
other tangible assets of Defendants unless further ordered by this court.

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IT IS SO ORDERED.
Dated: September 8, 2016
______________________________________
Ronald M. Whyte
United States District Judge

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5:14-cv-02140-RMW
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
RS