IVIL COVER s te t v
The JS-44 civilcover sheet and the information contained herein neither replace nor supplement the filingand service of
pleadings or other
papers
as required bylaw, except as provided bylocal rules ofcourt. This form, approved bythe
Judicial Conference
September 1974, is required for useoftheClerk ofCourt for the^urjSOse.of
initiating the civil docket
ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER
Davis Wright Tremaine LLP, 1633 Broadway, 27th Floor, New York, NY
10019 ,212 489-8230
ATTORNEYS (IF KNOWN)
CAUSEOF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING
AND WRITE ABRIEF STATEMENT OFCAUSE)
(DO NOTCITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)
LanhamAct, 15 U.S.C. § 1051 etseq.; Telemarketing &Consumer Fraud &Abuse Prevention Act, 15 U.S.C. §6101 etseq.
Has
this
essentially the same
been previously filed
If
No f j Yes r J
If
yes,
give
date
 PLACE AN[x] INONEBOXONLY
INSTRUMENT
SLANDER
BENEFITS
ACTION
PERSONAL
INJURY
[ ] 530 HABEAS CORPUS
( ] 535 DEATH PENALTY
SECURITY ACT
[ ] 423 WITHDRAWAL
PROPERTY RIGHTS
CLAIMS
[ (400
STATE
REAPPORTIONMENT
S D N Y ?
NOTE: You
form (Form IH-32).
 PLACEANxINONEBOXONLY ORIGIN
W1 Original • 2 Removed from D 3 Remanded d 4 Reinstated or f j 5 Transferred from • 6 Multidistrict
Proceeding State Court from
Reopened (Specify District) Litigation
Judge from
party is
0F
JURISDICTION
• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION Q4
DIVERSITY
Plaintiff
PT F
DE F
CITIZEN
Americas,
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:
(DO NOT
PETITION/PRISONER
OF
TO
W YES (DATE ADMITTED MoPJ Yr 2008
RECEIPT
,.— —-^v: ;?
Magistrate Judge is to be designated by the Clerk of the^LTrt. : -.,\ •;
r'?. *« ftjw
Magistrate Judge
,Deputy Clerk, DATED.
corporation,
Plaintiff,
against
539-7474
Defendants .
f£
jf
COMPLAINT FOR
J U R Y T R I A L DEMANDED
Plaintiff Sirius XM Radio nc. ( SiriusXM ) files this Complaint against
Defendants John Does 1-10 using phone number 1-800-539-7474 ( Defendants ), alleging as
follows:
PART I E S
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
o ve r 2 7
mil lion subscr ibers
i n t he
United
States.
2. The true identities ofDefendants 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.
 o
JUR ISD ICT ION 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 Defendan s 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 inNew 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
S ir iu sXM in New York.
5. Venue is proper in this Court pursuant to 28 U.S.C. § 1400(a) becau e 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.
FACTUA L BACKGROUND
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;
 
service. As one of the largest subscription media companies in
theUnited States, Sirius
commercial free-music,
sports, live news, talk, comedy, entertainment, traffic, and weather to more than 27 million
subscribers.
7. SiriusXMhas duly and properly registered a number of trademarks and service
marks
without limitation:
a. SIRIUS, Trademark and Service Mark Registration No. 3,204,232, for,
inter
b. SIRIUS Satellite Radio, Trademark andService MarkRegistration No.
3,117,441, for equipment for receiving broadcast radio transmissions;
c. SIRIUSXM, Trademark and Service Mark Registration No. 4,045,088,
for, interalia 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 MarkRegistration
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 Wrongfu l Conduc t
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
disconnected.
11. On information and belief, Defendant then attempt to either sell the caller
products—like SiriusXM Coupons, WalMart Gift Cards, or ADT security services—or they
promise rewards to the caller. On information and belief, the Defendants engage in these
practices to get sensitive persona 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 bymistake, reported
that the Defendants' agent was adamant to get the customer's credit card information and
tried to sell the customer $100worth ofpurported SiriusXM 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
 
call the wrong number. According to PinDrop Security, a call center security service, phone
fraud costs financial institutions
year.1
14. SiriusXM has confirmed the Defendants' tactics through its own calls. A
SiriusXMemployee 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 $100Wal-Martgift card. The Defendants' agent attempted then to collect personal
information from the employee.
15. Another SiriusXMemployee called the Defendants' number, and upon askingif
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
1
See http://www.pindropsecurity.com/misdial-misdeeds-phone-scam-affecting-u-s-financial-institutions-and-their-
customers/.
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.
A S AND FOR A F IRST CLA IM FOR R EL IE F
Designation of Origin and Unfair Competition
Under the
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 ofmisleading 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 ofDefendants' 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.
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 f r
Defendants' wrongful conduct because, among other things: (a) Sirius XM s trademarks and
6
which have no
goodwill could
continuing; considering the balance ofhardships between Plaintiff and Defendants, a
remedy
in
interest would not bedisserved bya permanent
injunction.
RELIEF
 Telemarketing and Consumer Fraud and Abuse Prevention Act, 15U.S.C. §§6 2 and
6104)
fully
27. TheDefendants engaged in a patternand practiceof deceptivetelemarketing by
misrepresenting to
consumers their
SiriusXM,
andmaking
false or misleadingstatements to induceconsumers to pay for goods or services.
28. As a result of these acts, Defendantshave violated the Telemarketing and
Consumer FraudandAbusePrevention Act, 15 U.S.C. §§ 6102(a)(2) and 6104(a); 16§ CFR
310.3.
29. As a result of these acts by Defendants, SiriusXMhas been severely injured in its
business and property, in an amountwell in excessof $50,000. The injury to SiriusXM is and
continues to be immediate and irreparable.
30. Pursuant to 15 U.S.C. § 6104(b), Si riusXM has served the Federal Trade
Commission with priorwrittennoticeof this actionandprovided theCommission with a copyof
this Complaint.
AS AND FOR A THIRD CLA IM FOR RE LI EF
(Trademark Dilution, 15 U.S.C. 1125 c
 
31. SiriusXM incorporates by reference, asif fully set forth herein, the allegations in
paragraph 1 through 30 of this Complaint.
32. The trademarks alleged hereinhave
become
SiriusXMwellbeforeany of the Defendants began using thesemarks in association with their
goods and services unaffiliated with SiriusXM through theDefendants' illegal useof themark.
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 15U.S.C. § 1125(c).
34. As a result ofDefendants' wrongful conduct, SiriusXM is entitled to recover its
actual damages, Defendants' profits, and treble damages and attorneys' fees pursuant to
15
35. Further, SiriusXMis entitled to injunctiverelief because the injury that SiriusXM
has suffered, is suffering, and/orwill continueto sufferunlessDefendants' acts of infringement
are enjoined as requested hereinis irreparable; SiriusXM hasno adequateremedyat lawfor
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' useof SiriusXM'snameand
award;and (c) Defendants' wrongful conduct, and the resulting damage to SiriusXM, is
continuing; considering
AS AND FOR
(Trademark Dilution Under N.Y.
Gen. Bus. Law 360-1
fully
paragraph 1 through 35 of this Complaint.
8
37. Defendants' actions as alleged herein constitute trademark dilution in violation of
N.Y. Gen. Bus.
SiriusXM s services.
39. Defendants' use of the SiriusXM marks is likely to and actually dilutes and blurs
th e distinctiveness of
marks.
40. Defen ants' 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,
Plaintiffhasbeen injured and/orwill continue to be injured, in an amountpresentlyunknown and
to be de te rmined a t time
o f
trial.
42. Further, SiriusXM is entitled to injunctive relief because the injury that SiriusXM
has suffered, is suffering, and/orwill continue to suffer unlessDefendants' 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
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
equityis warranted; and the public interestwouldnot be disserved by a permanentinjunction.
43. SiriusXM is also entitled to an award of actual damages in an amount presently
unknown and to disgorgement ofDefendants' infringing profits.
 
44. Siri sXM seeks punitive damages for Defendants' gross, wanton, and willful
fraud and morally culpable conduct.
AS A ND 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 hav 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,
includingconsumersof 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
  onsumers
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
50. The Defendantshavewillfully committed these deceptive acts and practices.
51. SiriusXM has is entitledto its actual damages, additional damages of up to three
times the actual damages (not exceeding $1,000), and its attorneys' fees.
PRA YER FOR REL IEF
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 of judgment 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
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
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
damages including all general, special, actual, and statutory damages
which SiriusXM has sustained, or will sustain, as a consequence ofDefendants' 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' ees and costs as provided for
by N.Y. Gen. Bus. Laws § 34 (h).
F. Such other rel ie f that SiriusXM is entitled to under law, and any other and further
relief as this Court or a jury
may
CamirhfCalman (CC 4743)
D AV IS W R IG H T T RE M AIN E L LP
1633 Broadway 27th floor
New York, New York
Jeffrey B. Coopersmith*
James Harlan Corning*
D A VIS W R IG H T T R EM A IN E
LLP
*Application for pro hac vice forthcoming
12