Failure to allege scope of infringing activity results in lesser damages award

In Microsoft Corp v Wubbena 2007 US Dist LEXIS 14257, ND Ga (February 28 2007), a district court in Georgia has awarded Microsoft Corporation $265,000 in statutory damages for copyright and trademark infringement.

In its complaint Microsoft alleged that Jon Wubbena, an individual, was doing business as Atlantatechnology and Velvet Door Entertainment Inc (collectively referred to as the defendants) and advertising, marketing, installing and distributing computer programs which infringed Microsoft's registered copyrights and trademarks, including the mark OFFICE PRO 2003. According to the complaint, the defendants sold infringing and counterfeit software to an investigator under the OFFICE PRO 2003 mark. Microsoft claimed the defendants acted wilfully and requested statutory damages. None of the defendants answered the complaint and Microsoft filed a motion for entry of default which was granted. Microsoft then moved for entry of default judgment and requested statutory damages awards and attorneys' fees.

Microsoft requested statutory damages in the amount of $610,000: $30,000 for each of the seven allegedly infringed copyrights and $100,000 for each of the four marks alleged to have been counterfeited. In its request Microsoft asked for the maximum statutory limit for non-wilful conduct although it alleged that the defendants had wilfully infringed.

The court declined to award the statutory maximum to Microsoft. In doing so, the court said that "statutory damage maximums should be reserved for cases of notable scope or particularly egregious conduct". According to the court, Microsoft failed to allege any facts concerning the scope of the defendants' activities and chose not to pursue damages for wilfulness. The court decided to award Microsoft a lesser amount than the statutory maximum because there was no allegation that the defendants "operated on a notable scale". Instead of $610,000 in damages, the court awarded Microsoft $265,000: $15,000 for each copyright infringed and $40,000 per trademark counterfeited. The court also awarded Microsoft attorneys' fees and granted a permanent injunction.

Leigh Ann Lindquist, Sughrue Mion PLLC, Washington DC