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Switch, Ltd. v. Switch, Inc.

United States District Court, D. Nevada

April 26, 2019

SWITCH, LTD., a Nevada limited liability company, Plaintiff,
v.
SWITCH, INC., a Washington corporation, Defendant.

          HOWARD & 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 INJUNCTION

         This 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 fact:

         THE COURT MAKES THE FOLLOWING FINDINGS OF FACT:

         1. On 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.

         2. On or around March 13, 2017, Switch first became aware of SwitchMe.com, in a press release about Defendant (see Exhibit A).

         3. On 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 B).

         4. On 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).

         5. On 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).

         6. Switch's raised concerns with Defendant Switch that SwitchMe.com's marks and activities were causing actual confusion with Switch.

         7. 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).

         8. 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[1], 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[2], 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)).

         9. Other Courts, including state and federal courts in Texas have found that data center services are inherently global (see Exhibits O and P).

         10. 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).

         11. Because Switch's technology services compete with hundreds of other technology competitors on a national and global market, which requires Switch to ...


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