Metropcs v. Rivera, CIVIL ACTION FILE NO. 1:16-cv-00323-TWT

• Decision Date: 06 December 2016
• Docket Number: CIVIL ACTION FILE NO. 1:16-cv-00323-TWT
• Citation: 220 F.Supp.3d 1326
• Parties: METROPCS, a brand of T-Mobile USA, Inc., a Delaware Corporation, Plaintiff, v. Oswaldo RIVERA a/k/a Oswald Rivera, Defendant.
• Court: U.S. District Court — Northern District of Georgia

220 F.Supp.3d 1326

METROPCS, a brand of T-Mobile USA, Inc., a Delaware Corporation, Plaintiff,

v.Oswaldo RIVERA a/k/a Oswald Rivera, Defendant.

CIVIL ACTION FILE NO. 1:16-cv-00323-TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed December 6, 2016

Filed December 8, 2016

Alana E. Zorrilla-Gaston, James B. Baldinger, Stacey K. Sutton, Carlton Fields Jorden Burt, P.A., West Palm Beach, FL, Gail Podolsky, Carlton Fields Jorden Burt, PA, Atlanta, GA, for Plaintiff.

FINAL JUDGMENT AND PERMANENT INJUNCTION AGAINST DEFENDANT

Thomas W. Thrash, UNITED STATES DISTRICT JUDGE

Plaintiff T-Mobile USA, Inc., a Delaware corporation ("T-Mobile"), for itself and its MetroPCS brand (collectively referred to hereafter as "MetroPCS"), brought the above-captioned lawsuit against Defendant, Oswaldo Rivera, a/k/a Oswald Rivera ("Defendant"), alleging that Defendant is engaged in an unlawful enterprise involving the unauthorized and deceptive acquisition and bulk resale overseas of specially-manufactured handsets designed for use on MetroPCS's wireless service (collectively, "MetroPCS Handsets"), the theft of MetroPCS's subsidy investment in the Handsets, the unlawful access of MetroPCS's protected computer systems and wireless network, the trafficking of MetroPCS's protected and confidential computer passwords, and the willful infringement of MetroPCS's trademarks (collectively, the "Handset Theft and Trafficking Scheme" or the "Scheme").

MetroPCS contends that Defendant and his co-conspirators perpetrated the Handset Theft and Trafficking Scheme by acquiring large quantities of MetroPCS Handsets ("Handsets") from MetroPCS and/or MetroPCS authorized retailers and dealers and by soliciting others to purchase MetroPCS Handsets in large quantities for the benefit of Defendant. Plaintiff asserts that Defendant and his co-conspirators acquired the MetroPCS Handsets with the knowledge and intent that the Handsets will not be used on the MetroPCS wireless network (as required by the MetroPCS terms and conditions), but instead, the Handsets are trafficked and the vast majority are ultimately resold as new overseas where the Handsets are not subsidized by wireless carriers (as they are in the United States). MetroPCS further asserts that Defendant acquired the Handsets with the knowledge and intent that the Handsets will be computer-hacked or "unlocked," to disable software installed in the Handsets by the manufacturers at the request and expense of MetroPCS, which enables the activation of the MetroPCS Handsets exclusively on MetroPCS's wireless system. The purpose of the software is to allow MetroPCS, which is a service provider not a cell phone retailer, to offer the Handsets at a discount to the consumer while protecting MetroPCS's subsidy investment in the Handset. MetroPCS asserts that the illegally unlocked Handsets are trafficked and resold as new by Defendant, at a premium, under the MetroPCS trademarks.

MetroPCS Handsets are sold subject to terms and conditions ("Terms and Conditions") which conspicuously restrict and limit the sale and use of the Handsets. The packaging of every MetroPCS Handset provides that by purchasing or opening the package, activating, using, or paying for MetroPCS service, the purchaser agrees to the MetroPCS Terms and Conditions posted on www.metropcs.com . Purchasers have the option to return the MetroPCS Handset in accordance with the return policy if they do not agree to the Terms and Conditions. The methods used by MetroPCS for obtaining its customers' agreement to the Terms and Conditions are legally valid and appropriate, and the Terms and Conditions constitute a valid and binding contract between MetroPCS and each of its customers. Pursuant to the Terms and Conditions of MetroPCS Handsets, purchasers agree, among other things: (a) to pay the applicable service charges and other related fees; (b) to activate the MetroPCS Handsets on the MetroPCS network; (c) not to resell the MetroPCS Handsets and related products and services; and (d) not to use the Handsets for a purpose that could damage or adversely affect MetroPCS.

In this case, as a result of Defendant's alleged involvement in the Handset Theft and Trafficking Scheme, MetroPCS has asserted claims against Defendant for unfair competition, tortious interference with business relationships and contractual relations, conspiracy to commit fraud and fraudulent misrepresentation, unjust enrichment, conspiracy to induce breach of contract, common law fraud and fraudulent misrepresentation, trafficking in computer passwords 18 U.S.C. § 1030(a)(6), unauthorized access 18 U.S.C. § 1030(a)(5)(C), unauthorized access with intent to defraud 18 U.S.C. § 1030(a)(4), federal trademark infringement under 15 U.S.C. § 1114, federal common law trademark infringement and false advertising under 15 U.S.C. § 1125(a)(1)(A) and (B), contributory trademark infringement, conversion, deceptive trade practices O.C.G.A. §§ 10–1–372, et seq. , and Georgia Computer Systems Protection Act O.C.G.A. §§ 16–9–93(a), (b), and (e).

Based on the position advocated by the Plaintiff, and having reviewed the Complaint and file and being otherwise duly and fully advised in the premises, it is hereby:

ORDERED, ADJUDGED and DECREED that:

1. This Court has jurisdiction over all the parties and all of the claims set forth in MetroPCS's Complaint.

2. MetroPCS has the right to use and enforce rights in the standard character and stylized MetroPCS® mark (collectively, the "MetroPCS Marks"), as depicted below:

MetroPCS uses the MetroPCS Marks on and in connection with its telecommunications products and services. The MetroPCS Marks are valid, distinctive, protectable, famous, have acquired secondary meaning, and are associated exclusively with MetroPCS.

3. The Terms and Conditions and the language in and on the packaging constitute a valid and binding contract enforceable between MetroPCS and each of its customers. The Court finds the Terms and Conditions set forth certain rights and restrictions on the use of MetroPCS Handsets. Among other things, the Terms and Conditions: (a) require that the customer pay applicable service charges and other related fees; (b) indicate that the Handset is...