Microsoft Corporation v. Duong Dinh Tu et al

Filing 53

ORDER FOR DEFAULT JUDGMENT AND PERMANENT INJUNCTION: IT IS THEREFORE ORDERED that Microsoft's Motion for Default Judgment and Permanent Injunction is granted. IT IS FURTHER ORDERED that Defendants are in default, and that judgment is awarded in favor of Plaintiff and against Defendants. IT IS THEREFORE ORDERED that Defendants, their representatives, and persons who are in active concert or participation with them are permanently restrained and enjoined from: (1) making or causing others to make false or misleading representations or omissions to obtain any access to any Microsoft accounts or services; (2) using Internet bots to improperly access Microsofts security systems; (3) using Internet bots to deceive Microsofts security systems into believing that they are legitimate human consumers of Microsoft services; (4) creating Microsoft Outlook email accounts in names of fictitious users or otherwise in violation of Microsofts Services Agreement; (5) selling those fraudulently proc ured accounts to cybercriminals for use as tools in perpetrating online crime; and (5) otherwise configuring, deploying, operating, or maintaining Hotmailbox.me, 1stcaptcha.com, Anycaptcha.com, Nonecaptcha.com, and Rockcaptcha.com. As further set for th by this Order. IT IS SO ORDERED. Motions terminated: 33 MOTION for Preliminary Injunction (Supplemental Preliminary Injunction). filed by Microsoft Corporation, 48 MOTION for Default Judgment as to Defendants; and for Permanent Injunction. filed by Microsoft Corporation, 12 MOTION for Order to Show Cause. filed by Microsoft Corporation. (Signed by Judge Paul A. Engelmayer on 8/29/2024) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------------x
MICROSOFT CORPORATION,
:
:
Plaintiff,
: Case No. 23 Civ. 10685 (PAE)
-against:
:
DUONG DINH TU,
:
LINH VAN NGUYEN, and
:
TAI VAN NGUYEN,
:
:
Defendants.
:
----------------------------------------------------------x
_____________________________________________________________________________
[PROPOSED] ORDER FOR DEFAULT JUDGMENT AND
PERMANENT INJUNCTION
_____________________________________________________________________________
This matter comes before the Court on the Motion for Default Judgment and Permanent
Injunction filed by Plaintiff Microsoft Corporation (“Microsoft”). Microsoft has established the
elements of its claims for (1) violations of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. § 1962; (2) trademark infringement under the Lanham Act, 15 U.S.C. § 1114 et
seq.; (3) false designation of origin, federal false advertising, and federal unfair competition under
the Lanham Act, 15 U.S.C. § 1125(a); (4) trademark dilution under the Lanham Act, 15 U.S.C.
§ 1125(c); (5) tortious interference with business relationships; (6) conversion; (7) trespass to
chattels; and (8) unjust enrichment. Defendants Duong Dinh Tu, Linh Van Nguyen (a/k/a Nguyen
Van Linh), and Tai Van Nguyen (collectively, “Defendants”) have failed to appear, plead, or
otherwise defend this action. Plaintiff is entitled to default judgment under Federal Rule of Civil
Procedure 55(b) and a permanent injunction pursuant to Federal Rule of Civil Procedure 65; 15
U.S.C. § 1116(a); and 28 U.S.C. § 1651(a).

I.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Having reviewed the papers, declarations, exhibits, and memorandum of law filed in

support of Plaintiff’s Motion for Default Judgment and Permanent Injunction, the Court hereby
makes the following findings of fact and conclusions of law:
1.

Defendants were properly served with Plaintiffs’ summons, Complaint, and other

pleadings in this action and were provided with adequate notice through means authorized by the
Court’s prior orders, satisfying Due Process and Federal Rule of Civil Procedure 4, and reasonably
calculated to provide Defendants with notice. Specifically, Defendants have been served via email
at email addresses they provided to the providers of certain Internet services used to carry out the
activity that is subject to Microsoft’s Complaint, and by publication on the public website available
at https://dcu-noticeofpleadings.azurewebsites.net/.
2.

Defendants failed to appear, plead, or otherwise defend against the action.

3.

The time for responding to Microsoft’s Complaint was 21 days from service of the

summons and Complaint, and more than 21 days have elapsed since Plaintiff effectuated service.
The Clerk properly entered default pursuant to Federal Rule of Civil Procedure 55(a) and Local
Civil Rule 55.1 on August 13, 2024.
4.

This Court has jurisdiction over the subject matter of this case and venue is proper

in this judicial district.
5.

Microsoft is entitled to entry of judgment and a permanent injunction against

Defendants.
6.

The record evidence indicates that no Defendant is an infant or incompetent person.

7.

Defendants have engaged in and are likely to engage in acts or practices that

constitute violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C.

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§ 1962) and the Lanham Act (15 U.S.C. § 1114 et seq. and 15 U.S.C. § 1125), and that constitute
tortious interference with business relationships, conversion, trespass to chattels, and unjust
enrichment.
8.

Microsoft owns the following registered trademarks, which are used in connection

with Microsoft’s services, software, and products: (1) Outlook launch icon mark, (2) Outlook word
mark, and (3) Hotmail word mark.
9.

There is good cause to believe that, unless Defendants are permanently restrained

and enjoined and unless further relief is ordered to expeditiously prevent Defendants from
maintaining

the

registration

of

Hotmailbox.me,

1stcaptcha.com,

Anycaptcha.com,

Nonecaptcha.com, and Rockcaptcha.com, for purposes enjoined by the Preliminary Injunction
(Dkt. No. 23) and Supplemental Preliminary Injunction (Dkt. No. 41 at 3–4), on an ongoing basis,
immediate and irreparable harm will result to Plaintiff, Plaintiff’s customers, and the public. The
evidence in the record demonstrates that Defendants have engaged in violations of the foregoing
law by:
a. forming and associating with an unlawful enterprise, which they have used to
engage in a pattern of racketeering activity involving millions of predicate acts
of wire fraud;
b. misappropriating Microsoft’s famous and distinctive registered trademarks;
c. acting for a wrongful purpose and through dishonest, unfair, and improper
means, to interfere with and cause damage to Microsoft’s business
relationships;
d. interfering with and converting Microsoft’s account-creation systems,
infiltrating those systems and stealing valuable information therefrom to create

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and sell fraudulent accounts and tokens for subsequent use by criminals for
cybercrime activity and other unlawful ends;
e. interfering with and taking as their own Plaintiff’s resources, particularly the
“tokens” procured from the CAPTCHA challenges employed by Microsoft; and
f. infiltrating Microsoft’s systems, stealing the data necessary to create fraudulent
Microsoft accounts, and selling those fraudulent accounts (along with
CAPTCHA tokens) to cybercriminals.
10.

There is good cause to believe that if such conduct continues, irreparable harm will

occur to Microsoft, Microsoft’s customers, and the public. There is good cause to believe that
Defendants will continue to engage in such unlawful actions if not permanently restrained from
doing so by Order of the Court.
11.

There is good cause to believe that Defendants have specifically directed their

products and services to cybercriminals located in the Southern District of New York. There is
also good cause to believe that, in carrying out their unlawful enterprise, Defendants utilized an
Internet Service Provider (“ISP”) data center located in the Southern District of New York, as well
as services provided by third parties located in the Southern District of New York, including
payment processors and ISPs.
12.

There is good cause to direct third-party registry operators, hosting service

providers, and proxy service providers with a presence in the United States to reasonably assist in
the implementation of this Order and refrain from frustrating the implementation and purposes of
this Order, pursuant to 28 U.S.C. § 1651(a).

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13.

The hardship to Plaintiff and its customers that will result if a permanent injunction

does not issue weighs in favor of an injunction, and Defendants will suffer no cognizable injury as
a result of being enjoined from perpetrating further illegal conduct.
14.

An injunction to prevent further illegal conduct by Defendants is in the public

interest.
15.

There is good cause to permit notice of the instant order, and further orders of the

Court, by alternative means. The following means of service are authorized by law, satisfy Due
Process, and satisfy Federal Rule of Civil Procedure 4(f)(3) and are reasonably calculated to notify
Defendants of the instant order: (1) emailing the instant Order to [e-mail],
[e-mail],

[e-mail],

[e-mail],

[e-mail], and [e-mail]; and (2) publishing notice on the publicly
available website, https://dcu-noticeofpleadings.azurewebsites.net/.
II.

ORDER FOR PERMANENT INJUNCTION
IT IS THEREFORE ORDERED that Microsoft’s Motion for Default Judgment and

Permanent Injunction is granted.
IT IS FURTHER ORDERED that Defendants are in default, and that judgment is
awarded in favor of Plaintiff and against Defendants.
IT IS THEREFORE ORDERED that Defendants, their representatives, and persons who
are in active concert or participation with them are permanently restrained and enjoined from:
(1) making or causing others to make false or misleading representations or omissions to obtain
any access to any Microsoft accounts or services; (2) using Internet “bots” to improperly access
Microsoft’s security systems; (3) using Internet “bots” to deceive Microsoft’s security systems
into believing that they are legitimate human consumers of Microsoft services; (4) creating

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Microsoft Outlook email accounts in names of fictitious users or otherwise in violation of
Microsoft’s Services Agreement; (5) selling those fraudulently procured accounts to
cybercriminals for use as tools in perpetrating online crime; and (5) otherwise configuring,
deploying, operating, or maintaining Hotmailbox.me, 1stcaptcha.com, Anycaptcha.com,
Nonecaptcha.com, and Rockcaptcha.com.
IT IS THEREFORE ORDERED that Defendants, Defendants’ representatives, and
persons who are in active concert or participation with them are permanently restrained and
enjoined from infringing or otherwise misappropriating Plaintiff’s registered trademarks, and
using in connection with Defendants’ activities any false or deceptive designation, advertisement,
representation, or description of Defendants’ or of their representatives’ activities, whether by
symbols, words, designs, or statements, which would damage or injure Plaintiff, give Defendants
an unfair competitive advantage, or result in deception of consumers.
IT IS FURTHER ORDERED, pursuant to the All Writs Act (28 U.S.C. § 1651), that the
terms of this Permanent Injunction shall be enforced against Defendants, Defendants’
representatives, and persons who are or were in active concert or participation with them, as
follows: (1) VeriSign, Inc., the registry operator for .com domain names, shall maintain Plaintiff’s
registrar of choice, MarkMonitor, Inc., as the registrar of record for 1stcaptcha.com,
Anycaptcha.com, Nonecaptcha.com, and Rockcaptcha.com in the .com registry, and
MarkMonitor, Inc., shall maintain Plaintiff as the registrant of those domains; and (2) Identity
Digital (formerly Afilias Inc.), the registry operator for .me domain names, shall maintain
Plaintiff’s registrar of choice, MarkMonitor, Inc., as the registrar of record for Hotmailbox.me in
the .me registry, and MarkMonitor, Inc. shall maintain Plaintiff as the registrant of that domain.

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IT IS FURTHER ORDERED, pursuant to the All Writs Act (28 U.S.C. § 1651), that
Cloudflare,

Inc.,

the

proxy

service

provider

of

1stcaptcha.com,

Anycaptcha.com,

Nonecaptcha.com, and Hotmailbox.me; Cloud South, the hosting service provider of
Hotmailbox.me; and Vultr, the hosting service provider of 1stcaptcha.com, Anycaptcha.com,
Nonecaptcha.com, and Rockcaptcha.com, shall (1) maintain the disablement of the computers,
servers, electronic data storage devices, software, data, or media assigned to or otherwise
associated with Defendants’ use of these domains and continue making them inaccessible from
any other computer on the Internet, any internal network, or in any other manner, to Defendants,
Defendants’ representatives, and all other persons, except as otherwise ordered herein; and
(2) maintain the suspension of all services to Defendants or Defendants’ representatives or
resellers associated with the domains referenced in this order. In determining the methods and
mechanisms to effectuate the directives in this paragraph, the third parties named in this Permanent
Injunction shall reasonably confer with Plaintiff’s counsel, Brian T. Markley, Cahill Gordon &
Reindel LLP, 32 Old Slip, 19th Floor, New York, NY 10005, [e-mail], to facilitate
any follow-on action.
IT IS FURTHER ORDERED, pursuant to the All Writs Act (28 U.S.C. § 1651), that
VeriSign, Inc., Identity Digital, Cloudflare, Inc., Cloud South, and Vultr shall (1) not enable, and
shall take all reasonable steps to prevent, any circumvention of this order by Defendants or
Defendants’ representatives associated with the domains referenced in this Order, including but
not limited to enabling, facilitating, and/or allowing Defendants or Defendants’ representatives or
resellers to rent, lease, purchase, or otherwise obtain another IP Address associated with their

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services; and (2) provide reasonable assistance in implementing the terms of this Order and take
no action to frustrate the implementation of this Order.
IT IS FURTHER ORDERED that copies of the instant Order may be served by
(1) emailing the instant Order to [e-mail], [e-mail],
[e-mail],

[e-mail],

[e-mail],

and

[e-mail]; and (2) publishing the instant Order on the publicly-available webpage,
https://dcu-noticeofpleadings.azurewebsites.net/, a link to which will be provided for at least the
next six months to anyone that visits Hotmailbox.me, 1stcaptcha.com, Anycaptcha.com,
Nonecaptcha.com, or Rockcaptcha.com.

PaJA.�

IT IS SO ORDERED

29 day of _________,
August 2024.
Entered this ____

__________________________________
Hon. Paul A. Engelmayer

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