Xfinity Identified 3 More Co-Conspirators in Phone Trafficking Case Vs. GGT

Globalgurutech (GGT) and owner Jakob Zahara “knowingly facilitate and encourage others to engage in unlawful business practices involving the unauthorized and deceptive purchase and resale of wireless communications handsets under the brand Xfinity Mobile,” said Xfinity’s Friday response (docket 2:22-cv-01950) in opposition to defendants’ motion to dismiss certain counts in the amended complaint in U.S. District Court for Arizona in Phoenix. The court said in June most of the claims were properly pled; four were lacking. The court said the complaint failed to assert enough individuals to comprise a conspiracy. In the amended complaint, Xfinity identified three more co-conspirators: SNU Unlockers, Juanita S. and Morgan G., who allegedly unlawfully acquire new XM phones with the “sole intention to resell them at a substantial profit and to illicitly unlock XM Phones for resale overseas." On the court’s finding that there were insufficient allegations that GGT used Xfinity’s mark to resell phones it buys, Xfinity said defendants use “at least one” Xfinity Mobile mark when advertising and selling their “materially-different XM phones." Plaintiff maintains it properly pled a claim for false advertising, citing the Lanham Act that makes it unlawful for anyone to misrepresent in advertising the qualities of another person’s goods. “Defendants have misrepresented the nature of their products by referring to specific mobile phones as XM Phones when they are, in fact, not XM Phones,” the response said. On defendants’ claim that trademark claims should be dismissed based on the first sale and fair use doctrines, Xfinity cited TracFone Wireless v. Pak China Group: “The first sale doctrine does not apply when an alleged infringer sells trademarked goods that are materially different than those sold by the trademark owner.” Also, defendants’ motion should be denied on procedural grounds for failing to comply with local rule 12(c), Xfinity said. The parties only met and conferred prior to GGT filing its first motion to dismiss and didn't meet and confer after filing of the amended complaint, it said.