In July of 2020, Data Access Corporation (hereinafter “Data Access”) filed a lawsuit against the Microsoft Corporation (hereinafter “Microsoft”) in the U.S. District Court for the Southern District of Florida. The lawsuit alleges that Microsoft has failed to halt the promotion and offering its products for sale under the mark DATAFLEX after being sent a cease and desist letter by Data Access.
Data Access and its Trademarks
Headquartered in Miami, Florida, Data Access is a worldwide corporation. It has been using the DATAFLEX trademark for almost 40 years in connection with its products and services. According to its website, Data Access is a global provider of application development software. The software helps its clients automate their business practices. Additionally, the software enhances customer service and provides informed business decisions to its clients to help them grow. DATAFLEX, “a programming language and visual tool for developing Windows, web, and mobile software applications,” powers its software tools. In particular, three separate federal trademark registration protect the DATAFLEX brand.
In general, Data Access alleges that Microsoft has infringed on its three federally registered trademarks and services marks, violated federal unfair competition and false designation of origin law, infringed Data Access’s common law trademark
With respect to the federal trademark law violation, Microsoft allegedly adopted and continues to use Data Access’s trademarks without license or consent of Data Access, as shown below.
Furthermore, to remedy the violations of Data Access’s rights, Data Access has requested the court stop Microsoft from using Data Access’s trademarks. In addition, Data access has also requested that the court award Data Access damages, ill-gotten gains, and attorney’s fees.
In particular, the merits of the case and the strength of the case will be fleshed out soon in court. However, it’s hard to think that Microsoft’s lawyers did know about Data Access’s federal trademark registration before the launch. Overall, there
- Make sure you perform a clearance search or at very least a “knock-out” search to help ensure that you are not likely to infringe on someone else’s trademark rights; and
- Make sure that you protect your hard-earned intellectual property often.