Está en la página 1de 14

"

*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

JOHN DOES 1-10 using phone number 1-800-539-7474

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER


Davis Wright Tremaine LLP, 1633 Broadway, 27th Floor, New York, NY

ATTORNEYS (IF KNOWN)

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(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)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.

Invol. fj Dismissed. No fj Yes r"J If yes, give date

IS THIS AN INTERNATIONAL ARBITRATION CASE?

No 0

(PLACE AN [x] IN ONEBOXONLY)

Yes
NATURE OF SUIT

TORTS

ACTIONS UNDER STATUTES

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

PHARMACEUTICAL PERSONAL , ]625DRUG RELATED


INJURY/PRODUCT LIABILITY

[ ] 365 PERSONAL INJURY

[ ] 320 ASSAULT, LIBEL &


SLANDER

PRODUCT LIABILITY

( ] 368 ASBESTOS PERSONAL

[ ] 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

I 1 375 FALSE CLAIMS

28 USC 158

21 USC 881

[ ] 423 WITHDRAWAL
28 USC 157

[ ] 690 OTHER

PROPERTY RIGHTS

REAPPORTIONMENT

[ ] 410 ANTITRUST

[ j 430 BANKS &BANKING


[ ] 450 COMMERCE
[ ] 460 DEPORTATION
| ] 470 RACKETEER INFLU

LIABILITY

[ ] 340 MARINE
[ ] 345 MARINE PRODUCT
LIABILITY

[ ] 350 MOTOR VEHICLE


[ ] 355 MOTOR VEHICLE

PERSONAL PROPERTY

[ ] 820 COPYRIGHTS
[ ] 830 PATENT
id 840 TRADEMARK

[ ] 370 OTHER FRAUD


[ ] 371 TRUTH IN LENDING

PRODUCT LIABILITY

SOCIAL SECURITY

ENCED & CORRUPT


ORGANIZATION ACT

(RICO)
[ ) 480 CONSUMER CREDIT
[ ] 490 CABLE/SATELLITE TV

[ ] 850 SECURITIES/

| ] 360 OTHER PERSONAL


INJURY

[ ] 380 OTHER PERSONAL

( ] 362 PERSONAL INJURY MED MALPRACTICE

LABOR

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGE

[ ] 710 FAIR LABOR

PRODUCT LIABILITY

STANDARDS ACT

[ ] 720 LABOR/MGMT
PRISONER PETITIONS

[ ) 463 ALIEN DETAINEE


[ ] 510 MOTIONS TO
ACTIONS UNDER STATUTES
CIVIL RIGHTS

[ ] 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

& Case No.

OTHER CIVIL RIGHTS


(Non-Prisoner)

[ ] 441 VOTING
[ ] 442 EMPLOYMENT
[ ] 443 HOUSING/
ACCOMMODATIONS

[ ] 445 AMERICANS WITH


DISABILITIES EMPLOYMENT

[ ] 530 HABEAS CORPUS


( ] 535 DEATH PENALTY
( ] 540 MANDAMUS & OTHER

]861
] 862
] 863
] 864
] 865

HIA(1395ff)
BLACK LUNG (923)
DIWC/DIWW (405(g))
SSID TITLE XVI
RSI (405(g))

COMMODITIES/
EXCHANGE

] 890 OTHER STATUTORY

RELATIONS

ACTIONS

[ ) 740 RAILWAY LABOR ACT


[ ) 751 FAMILY MEDICAL
LEAVE ACT (FMLA)
[ ] 790 OTHER LABOR
LITIGATION

[ ] 791 EMPL RET INC


SECURITY ACT
IMMIGRATION

PRISONER CIVIL RIGHTS

] 462 NATURALIZATION

[ ] 550 CIVIL RIGHTS


[ ] 555 PRISON CONDITION
[ ] 560 CIVIL DETAINEE

[
[
(
[
[

APPLICATION

] 465 OTHER IMMIGRATION


ACTIONS

] 891 AGRICULTURAL ACTS


FEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiff or


Defendant)
[ ] 871 IRS-THIRD PARTY

) 893 ENVIRONMENTAL
MATTERS

] 895 FREEDOM OF

26 USC 7609

INFORMATION ACT

] 896 ARBITRATION

] 899 ADMINISTRATIVE
PROCEDURE ACT/REVIEW OR

APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OF
STATE STATUTES

CONDITIONS OF CONFINEMENT

[ ]446 AMERICANS WITH


DISABILITIES -OTHER

[ ] 448 EDUCATION

Checkif demanded in complaint:

CHECK IF THIS IS A CLASS ACTION


UNDER F.R.C.P. 23

DEMAND $Unknown

OTHER Injunction

[^O YOy CLAJM THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN S.D.N.Y.?
JUDGE

DOCKET NUMBER

CheckYES only ifdemanded in complaint

JURY DEMAND: S YES UMO

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

| | 3. all parties represented

D 3 Remanded d 4 Reinstated or
from

Reopened

fj 5 Transferred from 6 Multidistrict


(Specify District)

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

2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION

IF DIVERSITY,INDICATE

Q4 DIVERSITY

CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)


(Place an [X] in one box for Plaintiff and one box for Defendant)
PTF

DEF

CITIZEN OF THIS STATE

[ ]1

[ ]1

CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY

[]3[ ]3

CITIZEN OF ANOTHER STATE

[ ]2

[ ]2

INCORPORATED or PRINCIPAL PLACE


OF BUSINESS IN THIS STATE

[ ]4[ ]4

PTF DEF

INCORPORATED and PRINCIPAL PLACE

PTF

DEF

[ ]5

[ ]5

OF BUSINESS IN ANOTHER STATE


FOREIGN NATION

[ ]6

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

Sirius XM Radio, Inc., 1221 Avenue of the Americas, New York, NY 10020 (New York County)

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

DEFENDANT(S) ADDRESS UNKNOWN


REPRESENTATION IS HEREBY MADE THAT, ATTHISTIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN
RE9IBENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

JOHN DOES 1-10 using phone number 1-800-539-7474

Check one:

THIS ACTION SHOULD BE ASSIGNED TO:

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 #

Attorney Bar Code # CC 4743

,. -^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.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

Yr. 2008

JUDGE MARRERO
UNITED STATES DISTRICT COURT

f*

SOUTHERN DISTRICT NEW YORK

*>

Vjf

*%-*

SIRIUS XM RADIO INC., a Delaware

corporation,

Civil Action No. 15-cv-

Plaintiff,

COMPLAINT FOR DAMAGES


AND EQUITABLE RELEIF i

against
JURY TRIAL DEMANDED

JOHN DOES 1-10 using phone number 1-800539-7474


Defendants.

Plaintiff Sirius XM Radio Inc. ("SiriusXM") files this Complaint against


Defendants John Does 1-10 using phone number 1-800-539-7474 ("Defendants"), alleging as
follows:
PARTIES

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.

The true identities of Defendants are not presently known to SiriusXM. On

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

JURISDICTION AND VENUE

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.

Venue is proper in this Court pursuant to 28 U.S.C. 1400(a) because Defendant

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

SiriusXM's Services and Intellectual Property

6.

SiriusXM broadcasts music and non-music content on a subscription fee basis. Its

services consist primarily of satellite-delivered programming to receivers in vehicles and homes;


the company also operates an Internet streaming service, a business establishment service
(offering music channels for performance of background music in retail establishments), and a

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:

a. "SIRIUS," Trademark and Service Mark Registration No. 3,204,232, for,

inter alia, broadcasting services, electronic retailing services, and equipment


for receiving broadcast radio transmissions;

b. "SIRIUS Satellite Radio," Trademark and Service Mark Registration No.


3,117,441, for equipment for receiving broadcast radio transmissions;

c. "SIRIUSXM," Trademark and Service Mark Registration No. 4,045,088,


for, inter alia, radio broadcasting services, entertainment services, and

online retail store services in the field of music and consumer electronics;
d. "SIRIUSXM," Trademark Registration No. 4,199,433 for electronic

hardware device for receiving broadcast radio transmission and audio,


visual, and data information; and

e. "SIRIUSXM Satellite Radio," Trademark and Service Mark Registration


No. 4,082,682, for, inter alia, radio broadcasting services, entertainment
services, and online retail services in the field of music and consumer
electronics.

8.

SiriusXM, directly and through various vendors, operates a customer service line

at 1-888-539-7474 (or 1-888-539-SIRIUS), where customers can purchase services, activate


current services, and speak to agents regarding issues with their services.
Defendants' Wrongful Conduct

9.

Defendants are in possession of a phone number, 1-800-539-7474, which has the

identical last seven digits as SiriusXM's customer service line.

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.

The type of scam orchestrated by the Defendants is known as a "misdial trap," in

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

fraud costs financial institutions alone nearly $2 billion per year.1


14.

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.

An Internet search of the Defendants' phone number reveals many complaints,

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.

Defendants have committed these acts without SiriusXM's permission or consent.

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 deceive

consumers into believing they were contacting SiriusXM.


20.

On information and belief, Defendants have committed these acts to profit from

the enormous goodwill owned by SiriusXM in its name and trademarks.


AS AND FOR A FIRST CLAIM FOR RELIEF

(False Designation of Origin and Unfair Competition Under the Lanham Act, 15 U.S.C.
1125(A))

21.

SiriusXM incorporates by reference, as if fully set forth herein, the allegations in

paragraphs 1 through 20 of this Complaint.

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.

Defendant's wrongful conduct is likely to continue unless restrained and enjoined.

24.

As a result of Defendants' wrongful conduct, SiriusXM is entitled to recover its

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.

SiriusXM incorporates by reference, as if fully set forth herein, the allegations in

paragraphs 1 through 25 of this Complaint.

27.

The Defendants engaged in a pattern and practice of deceptive telemarketing by

misrepresenting to consumers their affiliation with or sponsorship by SiriusXM, and making


false or misleading statements to induce consumers to pay for goods or services.
28.

As a result of these acts, Defendants have violated the Telemarketing and

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.

Pursuant to 15 U.S.C. 6104(b), SiriusXM has served the Federal Trade

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

(Trademark Dilution, 15 U.S.C. 1125(c))

31.

SiriusXM incorporates by reference, as if fully set forth herein, the allegations in

paragraph 1 through 30 of this Complaint.

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.

As a result of Defendants' wrongful conduct, SiriusXM is entitled to recover its

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

continuing; considering the balance of hardships between Plaintiffand Defendants, a remedy in


equity is warranted; and the public interest would not be disserved by a permanent injunction.
AS AND FOR A FOURTH CLAIM FOR RELIEF

(Trademark Dilution Under N.Y. Gen. Bus. Law 360-1)

36.

SiriusXM incorporates by reference, as if fully set forth herein, the allegations in

paragraph 1 through 35 of this Complaint.

37.

Defendants' actions as alleged herein constitute trademark dilution in violation of

N.Y. Gen. Bus. Law 360-1.


38.

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

the distinctiveness of the SiriusXM marks.

40.

Defendants' false statements to consumers who call their telephone number are

likely to and actually dilute and tarnish the SiriusXM marks.

41.

As a direct and proximate result of Defendants' intentional acts as alleged herein,

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.

SiriusXM is also entitled to an award of actual damages in an amount presently

unknown and to disgorgement of Defendants' infringing profits.

44.

SiriusXM seeks punitive damages for Defendants' gross, wanton, and willful

fraud and morally culpable conduct.


AS AND FOR A FIFTH CLAIM FOR RELIEF

(Deceptive Trade Practices, N.Y. Gen. Bus. Laws 349)

45.

SiriusXM incorporates by reference, as if fully set forth herein, the allegations in

paragraph 1 through 44 of this Complaint.

46.

The Defendants have engaged in deceptive acts or practices in the conduct of

business, trade, or commerce.

47.

The Defendants have targeted their deceptive acts or practices at consumers,

including consumers of SiriusXM's goods and services, and has caused significant consumer
injury and harm to the public interest.

48.

The Defendants' deceptive acts and practices are materially misleading to

consumers.

49.

SiriusXM has been injured as a result of the Defendants' deceptive acts or

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.

SiriusXM has is entitled to its actual damages, additional damages of up to three

times the actual damages (not exceeding $1,000), and its attorneys' fees.
PRAYER FOR RELIEF

WHEREFORE, SiriusXM respectfully asks this Court to enter judgment against

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.

The entry ofjudgment in SiriusXM's favor on all claims.

B.

A permanent injunction restraining and enjoining Defendants, their directors,

principals, officers, agents, representatives, employees, attorneys, subsidiaries, parents, affiliates,


successors and assigns, and all others in active concert or participation with them, from:
(i)

Making or inducing others to make any false, misleading, or deceptive


statement of fact, or representation of fact in connection the promotion,
advertisement or sale of goods or services related to SiriusXM;

(ii)

Using any false designation of origin or false or misleading representation that


can or is likely to lead the trade or public or individuals erroneously to believe
that any of Defendants' services are sponsored, approved, or authorized by or
for SiriusXM, when such is not true in fact; and

(iii)

Assisting, aiding, or abetting any other person or business entity in engaging in


or performing any of the activities listed above.

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

attorneys' fees and costs as provided for by 15 U.S.C. 1117.


E.

An award to SiriusXM of its reasonable attorneys' fees and costs as provided for

by N.Y. Gen. Bus. Laws 349(h).


F.

Such other relief that SiriusXM is entitled to under law, and any other and further

relief as this Court or a jury may deem just and equitable.

11

Dated: February 13, 2015


Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP

CamirhfCalman (CC 4743)


DAVIS WRIGHT TREMAINE LLP

1633 Broadway 27th floor


New York, New York 10019

Telephone: (212) 489-8230


Facsimile: (212) 379-5227
camillecalman@dwt.com
Jeffrey B. Coopersmith*
James Harlan Corning*
DAVIS WRIGHT TREMAINE LLP

1201 Third Avenue, Suite 2200


Seattle, WA 98101

Telephone: (206) 622-3150


Facsimile: (206) 757-7700
jeffcoopersmith@dwt.com
jamescorning@dwt.com
Attorneysfor PlaintiffSirius XM Radio Inc.
*Application for pro hac vice forthcoming

12

También podría gustarte