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*1 ?^;*
CIVIL COVER stet-v
JS 44C/SDNY
^R5fc\=*/2014
$'*'.* ^
%/ V
The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of
pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the
Judicial Conference oftheUnited States in September 1974, isrequired for useoftheClerk ofCourt for the^urjSOse.of
initiating the civil docket sheet.
'
PLAINTIFFS
SIRIUS XM RADIO INC.
'
DEFENDANTS
10019,212 489-8230
CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OFCAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Lanham Act, 15 U.S.C. 1051 etseq.; Telemarketing & Consumer Fraud &Abuse Prevention Act, 15 U.S.C. 6101 etseq.
Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY atany time? N<IZVesQjudge Previously Assigned
If yes,wasthis case Vol.
No 0
Yes
NATURE OF SUIT
TORTS
PERSONAL INJURY
CONTRACT
PERSONAL INJURY
FORFEITURE/PENALTY
[ ] 367 HEALTHCARE/
[]110
[]120
[ ]130
[ ]140
I J 150
[ ] 151
[ ]152
INSURANCE
MARINE
MILLER ACT
NEGOTIABLE
INSTRUMENT
RECOVERY OF
OVERPAYMENT &
ENFORCEMENT
OF JUDGMENT
MEDICARE ACT
RECOVERY OF
DEFAULTED
STUDENT LOANS
[ ] 310 AIRPLANE
[ ] 315 AIRPLANE PRODUCT
LIABILITY
[ ]160
[ ]190
[ ]195
RECOVERY OF
OVERPAYMENT
OF VETERAN'S
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
PRODUCT LIABILITY
[ ] 330 FEDERAL
[ ]210
LAND
[ ]220
[ ]230
CONDEMNATION
FORECLOSURE
RENT LEASE &
EJECTMENT
[ I 240
[ ]245
TORTS TO LAND
( ]290
ALL OTHER
REAL PROPERTY
TORT PRODUCT
LIABILITY
28 USC 158
21 USC 881
[ ] 423 WITHDRAWAL
28 USC 157
[ ] 690 OTHER
PROPERTY RIGHTS
REAPPORTIONMENT
[ ] 410 ANTITRUST
LIABILITY
[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY
PERSONAL PROPERTY
[ ] 820 COPYRIGHTS
[ ] 830 PATENT
id 840 TRADEMARK
PRODUCT LIABILITY
SOCIAL SECURITY
(RICO)
[ ) 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV
[ ] 850 SECURITIES/
LABOR
PROPERTY DAMAGE
PRODUCT LIABILITY
STANDARDS ACT
[ ] 720 LABOR/MGMT
PRISONER PETITIONS
[ ] 440
REAL PROPERTY
OTHER STATUTES
[ (400 STATE
SEIZURE OF PROPERTY
LIABILITY
VACATE SENTENCE
28 USC 2255
LIABILITY
[ ] 196 FRANCHISE
BANKRUPTCY
[ ]422 APPEAL
INJURY PRODUCT
EMPLOYERS'
(EXCL VETERANS)
[ ]153
[ ] 441 VOTING
[ ] 442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS
]861
] 862
] 863
] 864
] 865
HIA(1395ff)
BLACK LUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))
COMMODITIES/
EXCHANGE
RELATIONS
ACTIONS
] 462 NATURALIZATION
[
[
(
[
[
APPLICATION
) 893 ENVIRONMENTAL
MATTERS
] 895 FREEDOM OF
26 USC 7609
INFORMATION ACT
] 896 ARBITRATION
] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR
[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES
CONDITIONS OF CONFINEMENT
[ ] 448 EDUCATION
DEMAND $Unknown
OTHER Injunction
[^O YOy CLAJM THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE
DOCKET NUMBER
NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32).
^
(PLACEANxINONEBOXONLY)
W1 Original
Proceeding
ORIGIN
2 Removed from
State Court
D 3 Remanded d 4 Reinstated or
from
Reopened
Litigation
I I 7 Appeal to District
Judge from
Magistrate Judge
Judgment
Appellate
Court
I | b. At least one
party is pro se.
(PLACEAN x INONEBOXONLY)
1 U.S. PLAINTIFF
BAS|S 0F JURISDICTION
IF DIVERSITY,INDICATE
Q4 DIVERSITY
CITIZENSHIP BELOW.
DEF
[ ]1
[ ]1
CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
[]3[ ]3
[ ]2
[ ]2
[ ]4[ ]4
PTF DEF
PTF
DEF
[ ]5
[ ]5
[ ]6
Sirius XM Radio, Inc., 1221 Avenue of the Americas, New York, NY 10020 (New York County)
Check one:
WHITE PLAINS
[x] MANHATTAN
(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTS
COMPLAINT.)
~
DATE 02/13/2014 SIGNATURE OF ATTORNEY OF RECORD^5J, f\,A_. ADMITTED TO PRACTICE IN THIS DISTRICT
W YES (DATE ADMITTED MoPJ
RECEIPT #
,. -^v:";?
Magistrate Judge is to be designated by the Clerk of the^LTrt. : -.,\ ;, r'?.!* ftjw
Magistrate Judge
Ruby J. Krajick, Clerk of Court by
is so Designated.
, Deputy Clerk, DATED.
Yr. 2008
JUDGE MARRERO
UNITED STATES DISTRICT COURT
f*
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*%-*
corporation,
Plaintiff,
against
JURY TRIAL DEMANDED
1.
SiriusXM is a corporation organized and existing under the laws of the State of
Delaware, with its principal place of business located at 1221 Avenue of the Americas, 36th
Floor, New York, New York 10020. SiriusXM is engaged in, inter alia, the operation of satellite
digital audio radio services and Internet webcasting throughout the United States. SiriusXM has
over 27 million subscribers in the United States.
2.
information and belief, Defendants are in possession or control of the phone number 1-800-539-
7474, which was used by Defendants in furtherance of the unlawful conduct alleged herein. On
information and belief, this phone number is assigned to Airespring, Inc., a toll-free service
provider, which in turn assigned it to the Defendants for their use at certain times relevant to this
complaint.
co
3.
This Court has subject matter jurisdiction under 28 U.S.C. 1331 over
SiriusXM's claims for false designation of origin, false association, and unfair competition
pursuant to 15 U.S.C. 1125(a), trademark dilution pursuant to 15 U.S.C. 1125(c), and
violations of the Telemarketing and Consumer Fraud and Abuse Prevention Act pursuant to 15
U.S.C. 6102 and 6104. This Court has supplemental jurisdiction under 28 U.S.C. 1367 over
SiriusXM's claims for deceptive acts or practices and dilution pursuant to New York state law.
4.
This Court has personal jurisdiction over Defendants pursuant to Fed. R. Civ. P.
4(k)(l)(A) and CPLR 302 because the Defendants purposefully directed their unlawful
activities at New York, and SiriusXM's claims arise from those activities. Defendants expressly
aimed their conduct at New York because they (1) had actual or constructive knowledge of
SiriusXM's intellectual property rights (including SiriusXM's registered trademarks) and
SiriusXM's residence in New York; (2) acted, at a minimum, with willful blindness to, or in
reckless disregard of, SiriusXM's rights; and (3) knew or should have known that their conduct
would cause harm to SiriusXM in New York.
5.
SiriusXM's principal place of business is in this District and the intellectual property that is the
subject of this lawsuit is situated in this District.
FACTUAL BACKGROUND
6.
SiriusXM broadcasts music and non-music content on a subscription fee basis. Its
cable/satellite television music service. As one of the largest subscription media companies in
the United States, Sirius XM broadcasts more than 135 channels of commercial free-music,
sports, live news, talk, comedy, entertainment, traffic, and weather to more than 27 million
subscribers.
7.
SiriusXM has duly and properly registered a number of trademarks and service
marks in the United States Patent and Trademark Office onthe Principal Register, including
without limitation:
online retail store services in the field of music and consumer electronics;
d. "SIRIUSXM," Trademark Registration No. 4,199,433 for electronic
8.
SiriusXM, directly and through various vendors, operates a customer service line
9.
10.
SiriusXM has learned that Defendants have taken advantage of the phone
numbers' similarity for improper purposes. Specifically, the Defendants represent to callers who
have mistakenly dialed the Defendants' phone number that it is the SiriusXM line, that it is a line
for "satellite" services, or that the SiriusXM line was disconnected.
11.
On information and belief, Defendants then attempt to either sell the caller
productslike "SiriusXM Coupons," WalMart Gift Cards, or ADT security servicesor they
promise rewards to the caller. On information and belief, the Defendants engage in these
practices to get sensitive personal information, including home phone numbers, addresses, social
security numbers, dates of birth, and credit card numbers from SiriusXM's customers.
12.
One SiriusXM customer, who called the Defendants number by mistake, reported
that the Defendants' agent was "adamant"to get the customer's credit card information and
tried to sell the customer $100 worth of purported Sirius XM coupons for a penny.
13.
which fraudsters purchase phone numbers similar to a phone line for a prominent company and
then deceive that company's customers to provide personal information when they accidentally
call the wrong number. According to PinDrop Security, a call center security service, phone
SiriusXM has confirmed the Defendants' tactics through its own calls. A
SiriusXM employee called the Defendants' number and was told, by the agent answering the
phone, that SiriusXM's customer service number was disconnected and that, for the trouble, she
had won a $100 Wal-Mart gift card. The Defendants' agent attempted then to collect personal
information from the employee.
15.
Another SiriusXM employee called the Defendants' number, and upon asking if
she had reached SiriusXM, the Defendants' agent stated, "The SiriusXM department you are
trying to reach is busy." The SiriusXM employee asked again whether she had reached
SiriusXM, and Defendant's agent stated, "You have dialed the right number." The SiriusXM
employee asked for a third time whether she had reached SiriusXM, and the agent again
responded, "You have dialed the right number." When the SiriusXM employee asked for a
fourth time, Defendants' agent disconnected.
16.
including those from consumers who indicated they had attempted to reach SiriusXM and from
SiriusXM customers who provided personal information to the Defendants under the belief that
the SiriusXM operated the Defendants' phone number.
17.
18.
On information and belief, Defendants have committed these acts with knowledge
of SiriusXM's prior use and ownership of its trademarks and with full knowledge of SiriusXM's
use of the nearly identical phone number.
1See http://www.pindropsecurity.com/misdial-misdeeds-phone-scam-affecting-u-s-financial-institutions-and-theircustomers/.
19.
On information and belief, Defendants have committed these acts to profit from
(False Designation of Origin and Unfair Competition Under the Lanham Act, 15 U.S.C.
1125(A))
21.
22.
On information and belief, Defendants engaged in such wrongful conduct with the
purpose of misleading or confusing customers and the public as to the origin, authenticity, or
association of the goods and services advertised, marketed, installed, provided, offered, or
distributed in connection with SiriusXM's trademarks and name, and of trading on SiriusXM's
considerable goodwill and business reputation. Defendants' conduct constitutes (a) false
designation of origin, (b) false or misleading description, (c) false association, and (d) false or
misleading representation that the defendants' services are authorized by SiriusXM, all in
violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
23.
24.
actual damages, Defendants' profits, and treble damages and attorneys' fees pursuant to 15
U.S.C. 1117.
25.
Further, SiriusXM is entitled to injunctive relief because the injury that SiriusXM
has suffered, is suffering, and/or will continue to suffer unless Defendants' acts of infringement
are enjoined as requested herein is irreparable; SiriusXM has no adequate remedy at law for
Defendants' wrongful conduct because, among other things: (a) Sirius XM's trademarks and
6
name are unique and valuable property which have no readily-determinable market value; (b)
Defendants' use of SiriusXM's name and goodwill could not be made whole by any monetary
award; and (c) Defendants' wrongful conduct, and the resulting damage to SiriusXM, is
continuing; considering the balance of hardships between Plaintiff and Defendants, a remedy in
equity is warranted; and the public interest would not be disserved by a permanent injunction.
AS AND FOR A SECOND CLAIM FOR RELIEF
(Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6102 and
6104)
26.
27.
Consumer Fraud and Abuse Prevention Act, 15 U.S.C. 6102(a)(2) and 6104(a); 16 CFR
310.3.
29.
As a result of these acts by Defendants, SiriusXM has been severely injured in its
business and property, in an amount well in excess of $50,000. The injury to SiriusXM is and
continues to be immediate and irreparable.
30.
Commission with prior written notice of this action and provided the Commission with a copy of
this Complaint.
AS AND FOR A THIRD CLAIM FOR RELIEF
31.
32.
The trademarks alleged herein have become famous and well-known symbols of
Sirius XM well before any of the Defendants began using these marks in association with their
goods and services unaffiliated with SiriusXM through the Defendants' illegal use of the mark.
33.
The actions of the Defendants, including but not limited to their unauthorized use
of SiriusXM's marks, are likely to cause dilution of those marks by blurring and tarnishment in
violation of 15 U.S.C. 1125(c).
34.
actual damages, Defendants' profits, and treble damages and attorneys' fees pursuant to 15
U.S.C. 1117.
35.
Further, SiriusXM is entitled to injunctive relief because the injury that SiriusXM
has suffered, is suffering, and/or will continueto suffer unless Defendants' acts of infringement
are enjoined as requested herein is irreparable; SiriusXM has no adequate remedy at law for
Defendants' wrongful conduct because, among other things: (a) Sirius XM's trademarks and
name are unique and valuable property which have no readily-determinable market value; (b)
Defendants' use of SiriusXM's name and goodwill could not be made whole by any monetary
award; and (c) Defendants' wrongful conduct, and the resulting damage to SiriusXM, is
36.
37.
The SiriusXM marks are well known and distinctive as indicators of source for
SiriusXM's services.
39.
Defendants' use of the SiriusXM marks is likely to and actually dilutes and blurs
40.
Defendants' false statements to consumers who call their telephone number are
41.
Plaintiffhas been injured and/or will continue to be injured, in an amount presently unknown and
to be determined at time of trial.
42.
Further, SiriusXM is entitled to injunctive relief because the injury that SiriusXM
has suffered, is suffering, and/or will continue to suffer unless Defendants' acts of infringement
are enjoined as requested herein is irreparable;; SiriusXM has no adequate remedy at law for
Defendants' wrongful conduct because, among other things: (a) Sirius XM's trademarks and
name are unique and valueable property which have no readily-determinable market value; (b)
Defendants' use of SiriusXM's name and goodwill could not be made whole by any monetary
award; and (c) Defendants' wrongful conduct, and the resulting damage to SiriusXM, is
continuing; considering the balance of hardships between Plaintiff and Defendants, a remedy in
equity is warranted; and the public interest would not be disserved by a permanent injunction.
43.
44.
SiriusXM seeks punitive damages for Defendants' gross, wanton, and willful
45.
46.
47.
including consumers of SiriusXM's goods and services, and has caused significant consumer
injury and harm to the public interest.
48.
consumers.
49.
practices, including but not limited to the reputational harm and loss of goodwill that SiriusXM
has suffered because of this wrongful conduct.
50.
The Defendants have willfully committed these deceptive acts and practices.
51.
times the actual damages (not exceeding $1,000), and its attorneys' fees.
PRAYER FOR RELIEF
Defendants and against each of their directors, principals, officers, agents, representatives,
employees, attorneys, subsidiaries, parents, affiliates, successors and assigns, and all persons in
active concert or participation with them, granting the following relief:
10
A.
B.
(ii)
(iii)
C.
An award of damages including all general, special, actual, and statutory damages
which SiriusXM has sustained, or will sustain, as a consequence of Defendants' unlawful acts,
and that such damages be enhanced, doubled, or trebled as provided for by 15 U.S.C. 1117(b).
D.
A finding that this case is exceptional and an award to SiriusXM of its reasonable
An award to SiriusXM of its reasonable attorneys' fees and costs as provided for
Such other relief that SiriusXM is entitled to under law, and any other and further
11
12