The World in U.S. Courts: Spring 2015 - Intellectual Property (Copyright and Trademark)
March.26.2015
Microsoft sought an ex parte temporary restraining order against Canadian entities alleged to be engaged in a conspiracy to resell Microsoft products in violation of the Copyright Act and the Lanham Act. The alleged conspiracy involved the defendants' purchase and resale of 260 licenses to Microsoft products obtained at a discount on the false representation they were for student or other educational end-users. Microsoft proffered evidence that the licenses had enabled software to be downloaded onto 20,000 computers from 60 countries.
The District Court observed that Lanham Act jurisdiction over conduct outside the U.S. was within the scope of the statute where "(1) the non-U.S. activity had 'some effect' on American commerce, (2) that effect inflicted a cognizable Lanham Act injury on the party, and (3) the interest of and links to U.S. commerce were sufficiently strong in relation to those of other nations." The District Court, without discussion, found these requirements likely to be satisfied. It observed that the Copyright Act was inapplicable to acts of infringement occurring entirely outside the U.S., but found a sufficient U.S. link from the likelihood that the defendants had induced infringement by U.S. customers of theirs.