United States District Court, D. Nevada
& HOWARD ATTORNEYS W. West Allen, Nevada Bar No. 5566 Las
Vegas, Nevada 89169 Attorneys for Plaintiff Switch, Ltd.
KAEMPFER CROWELL Joni A. Jamison, Nevada Bar No. 11614 Robert
McCoy, Nevada Bar No. 9121 Las Vegas, Nevada 89135 Attorneys
for Defendant Switch, Inc.
FINDINGS OF FACT AND ORDER FOR PERMANENT
Court having reviewed and considered the Stipulation and
proposed Entry of Permanent Injunction submitted by Plaintiff
Switch Ltd., (“Plaintiff Switch”) and Defendant
Switch, Inc. (“SwitchMe.com”) by and through
their respective counsel of record, and having examined the
Exhibits attached herewith and had an opportunity to take
judicial notice of, or hear testimony on the same, and for
good cause appearing therefore make the following findings of
COURT MAKES THE FOLLOWING FINDINGS OF FACT:
or about November 1, 2017, SwitchMe.com, a technology
start-up company located in Seattle, Washington, began
providing a browser and credit card system under the marks
SWITCH, (Image Omitted) and SWITCHME.COM. In connection with
its services, on or around November 11, 2017, Defendant
acquired the Internet domain name <switchme.com> and
created the corresponding website.
or around March 13, 2017, Switch first became aware of
SwitchMe.com, in a press release about Defendant (see Exhibit
or around November 22, 2017, Plaintiff Switch sent
SwitchMe.com a letter, requesting dialogue and alerting
Defendant Switch of the likelihood of confusion (see Exhibit
or around December 20, 2017, Plaintiff Switch began
experiencing consumer confusion in light of a press release
issued by SwitchMe.com regarding appointment of a new board
of director for SwitchMe.com (see Exhibits C and D).
or around February 28, 2018, the New York Stock Exchange news
about Plaintiff Switch's mark and ticker symbol included
the news about SwitchMe.com (see Exhibit E).
Switch's raised concerns with Defendant Switch that
SwitchMe.com's marks and activities were causing actual
confusion with Switch.
Plaintiff Switch designs, constructs, and operates advanced
technology ecosystems, with physical and digital technology
infrastructure, under the name SWITCH, and is publicly traded
on the New York Stock Exchange under the ticker symbol SWCH
(see Exhibit F).
Switch's trademarks are central to its value because
potential customers have many options to choose where they
can store their data and technology, locally, nationally and
globally. Plaintiff Switch competes locally, nationally and
globally for data center clients, actively competing with
hundreds of competitive offerings in the form of a
customer's own office building deployments, a customer's
proprietary purpose built data center, an array of competing
cloud providers, and/or competing telecommunication
providers, all of which are trying to compete for
client's participating in the commerce of the World Wide
Web (see Exhibits H-N discussing and analyzing the
“global data center market” (emphasis added)).
Other Courts, including state and federal courts in Texas
have found that data center services are inherently global
(see Exhibits O and P).
Consequently, Switch competes nationally, and globally, with
a vast array of technology companies (not just colocation
providers) and uses its brand to differentiate itself from
its national and global competition (see Exhibits H-N).
Because Switch's technology services compete with
hundreds of other technology competitors on a national and
global market, which requires Switch to ...