Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 1 of 29 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------x ENIGMA SOFTWARE GROUP USA, LLC, : : Plaintiff, : : -against: Case No.: 1:16-cv-00057-PAE : BLEEPING COMPUTER LLC and : DOES 1-10, : : Defendants. : ----------------------------------------------------------x DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS IN RESPONSE TO PLAINTIFF’S SECOND AMENDED COMPLAINT Defendant Bleeping Computer, LLC (“Bleeping” or “Defendant”), by and through undersigned counsel, hereby answers the allegations of the Second Amended Complaint (the “Complaint”), filed by Plaintiff Enigma Software Group USA, LLC (“Plaintiff” or “Enigma”), paragraph by corresponding paragraph, as follows: 1. Admitted Plaintiff seeks the relief sought but denied it is entitled to any relief. 2. Admitted Bleeping owns the domain name referenced and operates certain functions on the associated website while other functions are performed by volunteers, and that some of the statements referenced have appeared on the website, otherwise denied. 3. Admitted that some of the statements asserted have appeared on Bleeping’s website, otherwise denied. 4. Deny knowledge or information sufficient to form a belief as to the state of mind of consumers as referenced, admitted that Bleeping’s website if publicly available to be accessed by anyone, otherwise denied. 5. Admitted that Bleeping’s website provides information regarding anti-malware Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 2 of 29 software, otherwise deny knowledge or information as to what might be most important to particular users and otherwise denied. 6. Deny knowledge or information as to the state of mind of users, otherwise denied. 7. Admitted that Bleeping receives commissions on certain sales of certain anti- malware products, including Plaintiff’s products, otherwise denied. 8. Admitted that Bleeping has received commissions for the sale of software products through hyperlinks, including commissions received from Plaintiff, otherwise denied. 9. Denied. 10. Admitted that Bleeping receives commissions from sales of Malwarebytes and other software companies, including Plaintiff; deny knowledge or information sufficient to form a belief as to the true competitive relationship between the parties referenced, otherwise denied. 11. Denied that Bleeping does not receive and has not received commission from Plaintiff and otherwise denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. Parties 16. Admitted that Plaintiff alleges it is a Florida limited liability company, otherwise deny knowledge or information sufficient to form a belief as to the remaining allegations. 17. Admitted. 18. Denied. 2 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 3 of 29 Jurisdiction & Venue 19. The allegations of paragraph 19 consist of jurisdictional allegations to which no response is required. 20. Denied. 21. Admitted that Enigma markets computer security products, otherwise deny knowledge or information sufficient to form a belief as to the remaining allegations. 22. Admit the FTC has published the statements asserted. 23. Deny knowledge or information sufficient to form a belief. 24. Admitted that Plaintiff markets SpyHunter, otherwise deny knowledge or information sufficient to form a belief as to the remaining allegations. 25. Admitted that Plaintiff markets and sells SpyHunter over the Internet, through various websites, otherwise deny knowledge or information sufficient to form a belief as to the remaining allegations. 26. Deny knowledge or information sufficient to form a belief. 27. Deny knowledge or information sufficient to form a belief. 28. Deny knowledge or information sufficient to form a belief. 29. Denied. 30. Deny knowledge or information sufficient to form a belief. 31. Deny knowledge or information sufficient to form a belief. 32. Admitted that Bleeping has stated that its owner and certain volunteers are adept at certain computer security technical and operational matters, otherwise denied. 33. Denied. 34. Admitted that Bleeping owns the domain name referenced and operates certain functions on the associated website while other functions are performed by volunteers, and that 3 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 4 of 29 the website contains the sections referenced, otherwise denied. 35. Admitted that Bleeping has generated revenue through hyperlinks on its website, including revenue paid by Plaintiff. 36. Admitted that Bleeping has participated in the program offered and utilized by SkimLinks. 37. Admitted that Bleeping has participated in the program offered and utilized by SkimLinks, and that commissions have been paid for purchases made on Bleeping’s website through said program, including commissions paid by Plaintiff. 38. Denied. 39. Admitted that Bleeping’s website contains the quoted language, but deny Plaintiff’s characterization of same, otherwise denied. 40. Admitted that Bleeping’s website contains the quoted language, but deny Plaintiff’s characterization of same, otherwise denied. 41. Admitted that the Bleeping website utilizes the Skimlinks program in the forums section of the Bleeping website, otherwise denied. 42. Admitted that Bleeping’s website contains the quoted language, but deny Plaintiff’s characterization of same, otherwise denied. 43. Admitted that Bleeping’s website generates revenues through advertising and commissions from affiliates and other advertisers, including Plaintiff, otherwise denied. 44. Denied. 45. Admitted that various member groups associated with the Bleeping website have been formed and evolved over time, otherwise denied. 46. Admitted that Bleeping identifies individuals in member groups and information 4 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 5 of 29 about them, otherwise denied. 47. Admitted that Admin & Site Admins are the highest level member groups, that Lawrence Abrams is the overall Admin of the Bleeping website, otherwise denied. 48. Admitted that the second-highest level member group is Global Moderator & Moderators, otherwise denied. 49. Admitted that the quoted language appears on Bleeping’s website but deny Plaintiff’s characterization of same, otherwise denied. 50. Admitted that the third-highest member group is Advisors, otherwise denied. 51. Admitted. 52. Denied 53. Admitted that when a Global Moderator, Moderator, or Advisor makes a post, the software for the site automatically identifies the poster as a Global Moderator, Moderator, or Advisor; otherwise denied. 54. Admitted that Bleeping runs a free training program referred to as the Malware Study Hall; otherwise denied. 55. Denied. 56. Admitted that volunteers work with Bleeping in running the referenced training program, otherwise denied. 57. Admitted. 58. Denied. 59. Denied. 60. Admitted that Bleeping has referred to the volunteers in the referenced positions as staff members, otherwise denied. 5 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 6 of 29 61. Admitted that Bleeping does not require the referenced disclosures that the vast majority of its volunteer “staff members” voluntarily make. 62. Denied. 63. Admitted that the quoted language appears on Bleeping’s site; otherwise denied. 64. Admitted. 65. Admitted that the individual identified by the pseudonym Quietman7 has been identified as a staff member and Global Moderator on the Bleeping website; otherwise denied. 66. Admitted that the referenced announcement was made on the Bleeping website in March, 2006; otherwise denied. 67. Admitted that the referenced announcement was made on the Bleeping website in March, 2006; otherwise denied. 68. Admitted. 69. Admitted. 70. Admitted. 71. Admitted. 72. Denied. 73. Admitted that Quietman7 performs some of the referenced functions for other volunteers associated with the Bleeping website; otherwise denied. 74. Denied. 75. Admitted that Quietman7 and other volunteers who have been referenced as staff members have recommended Malwarebytes’ products; otherwise denied. 76. Denied. 77. The information alleged in the first sentence of Paragraph 77 relates to 6 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 7 of 29 information that is or may be privileged and thus no response is required. The remaining allegations are denied. 78. Denied. 79. Deny knowledge or information sufficient to form a belief as to understandings held by consumers and users as referenced. 80. Denied. 81. Denied. 82. Denied. 83. Denied. 84. Denied. 85. Denied. 86. Denied. 87. Admit the quoted language appeared in the post referenced, otherwise denied. 88. Admitted. 89. Denied. 90. Deny knowledge or information sufficient to form a belief as to understandings held by consumers and users as referenced. 91. Denied. 92. Admitted that Bleeping has removed spam posts in accordance with the policies posted on its site, otherwise denied. 93. Denied. 94. Denied. 95. Denied. 7 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 8 of 29 96. Admitted that Bleeping has received cease and desist demands from Plaintiff; otherwise denied. 97. Denied. 98. Denied. 99. Denied. 100. Denied. FIRST CAUSE OF ACTION (Violations of Lanham Act § 43(a)) 101. Prior averments incorporated. 102. Denied. 103. Denied. 104. Denied. 105. Denied. 106. Denied. 107. Denied. SECOND CAUSE OF ACTION (Trade Libel/Commercial Disparagement) 108. Dismissed. No response required. 109. Dismissed. No response required 110. Dismissed. No response required. 111. Dismissed. No response required 112. Dismissed. No response required. 113. Dismissed. No response required 114. Dismissed. No response required. 115. Dismissed. No response required. 8 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 9 of 29 THIRD CAUSE OF ACTION (Libel) 116. Prior averments incorporated. 117. Denied. 118. Denied. 119. Denied. 120. Denied. 121. Denied. 122. Denied. 123. Denied. FOURTH CAUSE OF ACTION (Libel per se) 124. Prior averments incorporated. 125. Denied. 126. Denied. 127. Denied. As To All Counts The remaining allegations are prayers for relief that do not require an admission or denial. To the extent a response is required, the allegations are denied. Unless specifically admitted herein, all allegations are denied. Defendants further deny that Plaintiff is entitled to any relief, including the relief requested in the Second Amended Complaint. AFFIRMATIVE DEFENSES First Affirmative Defense Plaintiff fails to state a cause of action upon which relief can be granted. Second Affirmative Defense Plaintiff’s claims are barred, in whole or in part, by applicable statutes of limitation. 9 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 10 of 29 Third Affirmative Defense Plaintiff’s claims are barred, in whole or in part, by Section 230 of the Communications Decency Act, 47 U.S.C. §230. Fourth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue were not published by the Defendant, Bleeping Computer, LLC. Fifth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue are true or substantially true. Sixth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue consist of opinion and/or rhetorical hyperbole, protected under the Constitution of the State of New York, the U.S. Constitution, and applicable common law. Seventh Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue are privileged under one or more of the following privileges: common/corresponding interest privilege, judicial proceedings privilege, fair report privilege, matter of public concern. Eighth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue are privileged under one or more of the foregoing privileges and Plaintiff cannot demonstrate malice. Ninth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Plaintiff is a public figure and cannot demonstrate actual malice with clear and convincing evidence or otherwise. 10 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 11 of 29 Tenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the statements at issue are not defamatory or reasonably susceptible of a defamatory meaning. Eleventh Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the relief Plaintiff seeks would amount to a prior restraint in violation of the Constitution of the State of New York, the U.S. Constitution, applicable common law and principles of equity. Twelfth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the Plaintiff is libel proof, in that its reputation in the computer security community has been so low and so badly tarnished for so long that it is incapable of being further damaged. Thirteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean hands. Fourteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, by the doctrine of laches, waiver or estoppel. Further Affirmative Defenses Defendant reserves the right to amend or supplement this statement of affirmative defenses. BLEEPING COMPUTER’S COUNTERCLAIMS Defendant and Counterclaimant Bleeping Computer, LLC hereby sues Plaintiff Enigma Software Group USA, LLC (“Enigma”). This action is for violation of the Anti-Cybersquatting Consumer Protection Act, the Lanham Act, the Florida Deceptive and Unfair Trade Practices, 11 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 12 of 29 and Defamation. As set forth below, Enigma has been engaged in a pattern and practice of misusing and infringing upon Bleeping’s name and trademark in various formats and through various means, defaming and disparaging Bleeping in domain names, subdomain names, URLs, webpage content, and webpage source code, all with the intent and purpose of trading upon Bleeping’s goodwill, promoting the download and sale of Enigma’s own products, and misleading the public at the expense of Bleeping. Summary of Counterclaims In a matter of stunning irony and sheer hypocrisy, Enigma filed this lawsuit against Bleeping Computer, claiming Enigma’s reputation was somehow damaged due to an innocuous review of Enigma’s product, posted by a volunteer moderator on Bleeping’s site, which simply echoed, and cited to, the opinions of knowledgeable computer security professionals. Enigma’s lawsuit is plainly nothing more than an attempt to bully and censor Bleeping Computer, and to deter anyone who might criticize it – one more attempt in Enigma’s long pattern of threats, intimidation and litigation. Worse, however, is that all the while, Enigma has been engaged in aggressive, secretive, and cowardly attacks against Bleeping Computer, including ripping off Bleeping Computer’s content and pretending it was authored by Enigma, repeatedly misusing Bleeping’s registered trademark to trade upon its goodwill, and publishing blatantly false claims about Bleeping. As the following allegations demonstrate, Enigma conducts its business in a manner that is illegal, unethical and simply immoral, thereby demonstrating that Quietman7’s mildly critical statements about Enigma’s product, that so enraged Enigma and lead to this lawsuit, pale in comparison to the egregious misconduct Enigma perpetrates on a regular basis. Parties 1. Counterclaimant Bleeping Computer, LLC, is a New York limited liability company, with a principal place of business in the State of New York. 12 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 13 of 29 2. Upon information and belief, Counterclaim Defendant Enigma Software Group USA, LLC, is a Florida limited liability company with a principal place of business in the States of Florida and/or Connecticut. Jurisdiction & Venue 3. This Court has personal jurisdiction over Enigma pursuant to N.Y. CPLR § 302(a) as, per its allegation, it transacts business in this District and, therefore, this State, and otherwise committed tortious acts within and without the State causing injury within the State, which injury in the State was reasonably anticipated. 4. This Court has subject matter jurisdiction over this Counterclaim pursuant to 28 U.S.C. §§ 1331, 1332, 1338, & 1367, as it arises under the Lanham Act and is a matter against a citizen of a different state involving an amount in controversy in excess of $75,000. 5. Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391(b)(2) or (3) as a substantial part of the events giving rise to this action occurred in the District and Enigma is otherwise subject to this Court’s personal jurisdiction. Factual Allegations Common to All Counts 6. Bleeping owns and operates a website at (“Website”) and did so at all relevant times herein. 7. Bleeping is the registered owner of the trademark BLEEPING COMPUTER, bearing Registration Number 4065790, issued by the U.S. Patent & Trademark Office on December 6, 2011. See Exhibit “A”. 8. The Website operates as a community where over 700,000 individual members may discuss and learn how to use their computers in a helpful and welcoming atmosphere. 13 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 14 of 29 9. The Website publishes guides and tutorials, and it also hosts forums where members ask questions that other members answer. 10. Some volunteer, non-employee members have been identified, such as “Global Moderator.” 11. One such Global Moderator is an individual who uses the moniker “Quiteman7.” 12. One of the forums is devoted to computer security, with subjects such as “Anti- Virus, Anti-Malware, and Privacy Software,” “Backup, Imaging, and Disk Management Software,” “Firewall Software and Hardware,” and “Encryption Methods and Programs.” 13. Enigma describes itself as a “systems integrator and developer of PC security software” and claims it is “best known for SpyHunter, its anti-malware software product and service.” See http://www.enigmasoftware.com/about-us/. 14. Enigma offers its SpyHunter software for download on its website and, upon information and belief, markets and sells licenses in commerce throughout the United States for the use of SpyHunter and other software. 15. As alleged by Enigma in its Second Amended Complaint, Quietman7 made statements on the Website critical of Enigma and SpyHunter. See SAC at ¶¶ 80 & 86-90. 16. Enigma filed the instant lawsuit seeking, among other things, to enjoin Bleeping from publishing the said critical statements of Quietman7. See SAC at Prayers for Relief (d), (e), & (f). A. bleepingcomputerregistryfix.com 17. Upon information and belief, on or about March 25, 2015, Enigma or its agent registered the domain name bleepingcomputerregistryfix.com. 14 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 15 of 29 18. Although the identity of the registrant of that domain name is hidden from public view, the website at http://bleepingcomputerregistryfix.com promotes and markets Enigma’s SpyHunter product, and contains a link that, when a user clicks on the link, will ultimately download Enigma’s SpyHunter software from: http://download.enigmasoftware.com/spyhunter-free-download/revenuewire/SpyHunterInstaller.exe. 19. Upon information and belief, Enigma created, or has actual or constructive knowledge of, the content of the website at http://bleepingcomputerregistryfix.com. 20. Upon information and belief Enigma profits and otherwise gains financially from the content of the website at http://bleepingcomputerregistryfix.com. B. Infringing and Defamatory URLs 21. Upon information and belief, Enigma, directly or through an agent, created, published and disseminated over the internet multiple “host names” or “subdomains” or URLs that use and incorporate Bleeping’s registered trademark, attempt to disparage and defame Bleeping, and attempt to confuse consumers, including but not limited to: http://adware.bleeping.computer.remover.getridofspywareonphone.com and http://browser.hijack.bleeping.computer.virus.spywareremovalfreetrial.com 22. Upon information and belief, Enigma, directly or through an agent, created and published all of the nearly one-hundred URLs identified in Exhibit “B” annexed hereto, all of which incorporate Bleeping’s registered trademark (hereinafter “the Infringing URLs”). 23. Most of the websites associated with the Infringing URLs contain a prominent “headline” or other content that: (a) infringes Bleeping’s trademark; (b) disparages and defames Bleeping; (c) attempts to mislead and confuse consumers into thinking that Bleeping Computer 15 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 16 of 29 itself is somehow a virus or other malware or is associated with malware; and (d) promotes and markets the sale of Enigma’s SpyHunter. 24. As but one example, content appearing at one of the Infringing URLs, , contains a prominent “headline” that reads “Browser Hijack Bleeping Computer Virus.” As with the other Infringing URLs, upon information and belief Enigma created and published this content for multiple purposes, including but not limited to: (a) to trade upon Bleeping’s goodwill and the goodwill associated with its registered trademark without authorization; (b) to confuse consumers and users into mistakenly believing that Bleeping Computer consists of a virus, spyware, or other malware, and specifically malware that can be removed by Enigma’s SpyHunter product; (c) to falsely suggest or imply that Bleeping Computer somehow promotes, markets, sells or is otherwise connected or associated with viruses, spyware or other malware and thereby disparage and defame Bleeping and damage its reputation; (d) to confuse consumers into downloading Enigma’s SpyHunter product in the false and mistaken belief that it is required in order to remedy some malware or other problem allegedly caused by Bleeping. 25. The website at http://adware.bleeping.computer.remover.getridofspywareonphone.com directs visitors to download SpyHunter from: http://signup09.enigma.revenuewire.net/spyhunter2/download?sphytemp3-overlaynew10-14. 26. The website at: http://browser.hijack.bleeping.computer.virus.spywareremovalfreetrial.com also directs visitors to download SpyHunter from: http://signup09.enigma.revenuewire.net/spyhunter2/download?sphytemp3-overlaynew10-14. 16 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 17 of 29 27. Upon information and belief, subdomains on are operated and maintained by RevenueWire, Inc., on behalf of companies such as Enigma to use affiliates to market products on behalf of those companies. See http://thesource.revenuewire.com/index.php/faq. 28. Upon information and belief, Enigma uses RevenueWire to market and promote SpyHunter and even uses the name “RevenueWire” in the Uniform Resource Locator (URL) of a download link on its own domain. See supra. Upon information and belief, the other subdomains identified in Exhibit “B” at 29. relevant times directed visitors to download SpyHunter. 30. Upon information and belief, Enigma created or has actual or constructive knowledge of the content of the websites at the Infringing URLs identified in Exhibit “B.” 31. Upon information and belief, Enigma profits and gains from the publication and dissemination of the Infringing URLs and from the content on the associated websites. 32. Upon information and belief, Enigma owns, operates and/or controls the Infringing URLs, directly or through its agents. C. ComboFix 33. ComboFix is a free spyware remover program. 34. The download page for ComboFix at http://www.combofix.org/download.php directs visitors to download the program via Bleeping’s Website at http://www.bleepingcomputer.com/download/combofix/dl/12. 35. As of January 30, 2016, Enigma, directly or through an agent, caused the download page for ComboFix at http://www.combofix.org/download.php to display a “Download Now!” link that, instead of directing visitors to Bleeping’s Website and allowing them to download ComboFix, caused them to http://3bsoftwa.enigma.revenuewire.net/spyhunter2/download. 17 download SpyHunter through Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 18 of 29 36. Upon information and belief, Enigma directly or through its agent, created or has actual or constructive knowledge of the content of the ComboFix download page. D. Infringing Source Code 37. Bleeping’s name and mark and other content from Bleeping’s Website appears in the source code for the web pages at http://fixspywarenowreview.com/davinci.php and others identified in Exhibit “C.” 38. Such source code falsely includes a copyright notice and other content on behalf of Bleeping. 39. Upon information and belief, such source code causes search engines such as Google to yield such web pages in searches including Bleeping’s name and mark. 40. The use of Bleeping’s name and mark is not authorized. 41. Such webpages include software removal guides recommending visitors download SpyHunter to remove certain software. 42. A visitor to the page who was referred by a search engine result using Bleeping’s name and mark would reasonably, but incorrectly, believe that Bleeping endorses the removal methodology set forth therein. 43. Bleeping makes no such endorsement or authorizes the use of its mark in such a manner. 44. The removal methodology so described directs visitors to download SpyHunter. 45. Upon information and belief, Enigma published the content of the source code or otherwise directs and controls the content of the source code of the webpages set forth in Exhibit “D.” 18 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 19 of 29 46. Upon information and belief, Enigma has actual or constructive knowledge of the misuse of Bleeping’s mark and content in the source code and profits and gains from such use. E. “Rkill” and “Unhide” Programs 47. Bleeping authored and developed computer software programs known as “Rkill” and “Unhide.” Rkill is a computer software program that attempts to terminate running malware processes to enable security software to clean infected computers. Unhide is a computer software program that reveals files that otherwise would be hidden as the result of a computer virus or malware. 48. Upon information and belief, Enigma has published, on multiple websites that market and promote the downloading and sale of SpyHunter, numerous false and defamatory statements of and concerning Bleeping and its programs, RKill.com and Unhide. 49. For example, Enigma owns or controls a website at: spywareremove.com. See, http://www.spywareremove.com/about-us/. On said website, Enigma markets and promotes the sale of its product, SpyHunter. On said website, Enigma published false and defamatory statements claiming that Rkill and Unhide are “malware.” See Exhibit “F” annexed hereto. 50. Rkill.com and Unhide are not malware. 51. Likewise, the webpage at http://www.enginesupplymachineshop.com/rkill-com/, which markets and promotes the sale of SpyHunter, repeatedly refers to Rkill as a “virus” or “infection,” including without limitation the following statements (emphasis added): rkill.com is a dangerous computer virus which can destroy the infected computer and record your personal information.... The computer user’s personal information may be got by the virus makers through the virus, such as credit card or bank account details and social contacts’ information. … rkill.com is a high-risk Trojan virus infection designed by cyber criminals recently, which bursts in the life of many computer users and causes serious damages [sic] to the infected computer. The hateful virus is brimful of mischief. … The virus makers may use every opportunity to control the computer remotely. 19 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 20 of 29 With the cover of the virus they can remove or modify your important documents wantonly and steal or encrypt your personal data, resulting in inconvenience as well as unnecessary losses. Therefore, getting rid of rkill.com is quite urgent. Exhibit “E” annexed hereto is a true and correct copy of content appearing on webpages published at http://www.enginesupplymachineshop.com/rkill-com/ containing the abovereferenced false and defamatory statements. 52. The above-quoted statements are false and defamatory in that RKill.com is not a computer virus or infection, RKill.com does not seriously slow down a computer’s performance, RKill.com does not collect a computer user’s personal information, RKill.com is not a high-risk Trojan virus, was not designed by cyber criminals, and does not cause damage to users’ personal computers or result in the loss or theft of their personal data. 53. The webpage at http://www.enginesupplymachineshop.com/rkill-com directs visitors to remove RKill.com by downloading Enigma’s product, SpyHunter. 54. The removal methodology so described directs visitors to download SpyHunter through RevenueWire by clicking on the link http://www.enginesupplymachineshop.com/wpcontent/themes/images/spyhunter.php. 55. The said link http://luogoodluck.enigma.revenuewire.net/spyhunter2/download http://luogoodluck.enigma.safecart.com/spyhunter2/download redirects which which to: redirects redirects to to http://download.enigmasoftware.com/spyhunter-free-download/revenuewire/SpyHunter-Installer.exe. 56. By naming RevenueWire in its own URL and accepting referral links from , Enigma has acted in a manner that demonstrates RevenueWire is Enigma’s agent. 20 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 21 of 29 57. In the alternative, such nomenclature and acceptance would induce visitors to believe that RevenueWire has been authorized to act on behalf of Enigma. 58. Upon information and belief, Enigma directly or through an agent caused the publication of the foregoing false and disparaging statements about RKkill and Unhide. 59. The foregoing false and defamatory statements have caused damage to Bleeping’s reputation and goodwill, and if not enjoined will cause further damage. Count I Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d) 60. Bleeping restates and realleges the foregoing factual allegations of its Counterclaim as if fully set forth herein. 61. Bleeping is the owner of the distinctive, federally registered trademark BLEEPING COMPUTER. 62. Upon information and belief, Enigma, directly or through an agent, registered the domain name < bleepingcomputerregistryfix.com>. 63. The domain name is identical to or confusingly similar to Bleeping’s registered trademark. 64. At all relevant times herein, Enigma had a bad faith intent to profit from Bleeping’s mark by registering said domain name and by inducing visitors to purchase a license for Enigma’s SpyHunter software through it. 65. As a result of such registration, Bleeping has been damaged, including a loss of goodwill. 66. Therefore, Enigma is directly or, in the alternative, vicariously, liable for violation of 15 U.S.C. § 1125(d). 21 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 22 of 29 67. Alternatively, Enigma, by continuing to supply its software to the domain registrant, is contributorily liable for the violation of 15 U.S.C. § 1125(d). Count II Violation of the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a) 68. Bleeping restates and realleges the foregoing factual allegations of its Counterclaim as if fully set forth herein. 69. Bleeping is the owner of the distinctive trademark BLEEPING COMPUTER. 70. Bleeping has not authorized the use of its mark in any of the Infringing URLs identified at Exhibit “B” annexed hereto. 71. Bleeping has not authorized the use of its mark in the source code for the website at http://fixspywarenowreview.com/davinci.php and others identified in Exhibit “D.” 72. Enigma, directly or through an agent, caused the foregoing unauthorized and infringing uses of Bleeping’s trademark in order to market, promote, sell and distribute its SpyHunter software and licenses. 73. Such unauthorized uses constitute a reproduction, counterfeit, copy, or colorable imitation of that mark in connection with the sale, offering for sale, distribution, and advertising of software provided by Enigma in such a manner as is likely to and with the intent to cause confusion, mistake, or to deceive, in violation of 15 U.S.C. § 1114(1)(b). 74. Such unauthorized uses represent a false designation of origin, false or misleading description and/or a misrepresentation of fact likely to cause confusion, mistake, or deceive as to the affiliation, connection, or association of Enigma with Bleeping or which is likely to cause confusion, mistake or deceive as to whether Bleeping has anything to do with the origin, sponsorship, or approval of the goods, services, or commercial activities of Enigma in violation of 15 U.S.C. § 1125(a). 22 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 23 of 29 75. Therefore, Enigma is directly or, in the alternative, vicariously, liable for violation of 15 U.S.C. §§ 1114 and 1125(a). 76. Alternatively, Enigma, by continuing to supply its software to the operators of those subdomains and URLs, is contributorily liable for the violation of 15 U.S.C. §§ 1114 and 1125(a). Count III Florida Deceptive and Unfair Trade Practices Act 77. Bleeping restates and realleges the factual allegations of its Counterclaim as if fully set forth herein. 78. Enigma, a Florida limited liability company, is subject to the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201 et seq. 79. Fla. Stat. § 501.204(1) declares deceptive acts or practices in the conduct of any trade or commerce to be unlawful. 80. Fla. Stat. § 501.205(1) authorizes the Florida Attorney General to promulgate rules specifying deceptive acts or practices in trade or commerce. 81. Chapter 2-9, Florida Administrative Code (F.A.C.), sets forth the rules pertaining to advertising and sales of goods or services. 82. Rule 2-9.002(3), F.A.C., declares it a deceptive act or practice to misrepresent the sponsorship, endorsement, approval or certification of goods or services. 83. The above-described acts and practices of Enigma detailed in the factual allegations of Bleeping’s Counterclaim constitute a far-reaching and extensive pattern of deceptive, unfair, and unconscionable acts and practices in the conduct of trade or commerce. 84. By registering and causing visitors to said site to download and purchase SpyHunter, Enigma misrepresented that Bleeping sponsored, endorsed, 23 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 24 of 29 approved, or certified such software, improperly and without authorization infringed upon Bleeping’s goodwill and trademark, and sought to confuse, mislead and deceive consumers. 85. By creating and utilizing the Infringing URLs, including but not limited to s and http://adware.bleeping.computer.remover.getridofspywareonphone.com http://browser.hijack.bleeping.computer.virus.spywareremovalfreetrial.com, identified in Exhibit “B,” and causing visitors to such site to download and purchase SpyHunter, Enigma misrepresented that Bleeping sponsored, endorsed, approved, or certified such software, improperly and without authorization infringed upon Bleeping’s goodwill and trademark, and sought to confuse, mislead and deceive consumers. 86. By utilizing URLs bearing Bleeping’s name, such http://www.fixpcspywarehelp.com/how-to-remove-malware-bleeping-computer.php and others as and causing visitors to such site to download and purchase SpyHunter, Enigma misrepresented that Bleeping sponsored, endorsed, approved, or certified such software. 87. By utilizing source code in web pages including Bleeping’s name and content, such as in the source code for the web pages at http://fixspywarenowreview.com/davinci.php and causing visitors to such site to download and purchase SpyHunter, Enigma misrepresented that Bleeping sponsored, endorsed, approved, or certified such software, improperly and without authorization infringed upon Bleeping’s goodwill and trademark, and sought to confuse, mislead and deceive consumers. 88. By causing visitors seeking to download ComboFix from Bleeping to instead download SpyHunter, Enigma misrepresented that Bleeping sponsored, endorsed, approved, or certified such software, improperly and without authorization infringed upon Bleeping’s goodwill and trademark, and sought to confuse, mislead and deceive consumers. 24 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 25 of 29 89. By making the foregoing false statements about Bleeping and Bleeping’s software programs RKill.com and Unhide, Enigma deceived consumers into believing Bleeping promulgated a virus and into downloading and purchasing SpyHunter and otherwise engaged in deceptive and unfair business practices and acts. 90. By instituting litigation with the intent to remove negative opinions and/or truthful statements about Enigma and SpyHunter, Enigma seeks to deceive consumers of malware removal software into downloading and purchasing SpyHunter. 91. The foregoing conduct, directly or vicariously, constitutes a violation of Rule 2- 9.002(3), F.A.C., by Enigma and constitutes a pattern and practice of deceptive and unconscionable acts and practices in violation of Fla. Stat. § 501.204(1). 92. The deceptive and unfair trade practices of Enigma, as alleged herein, have injured and will continue to injure and prejudice Bleeping and the public. 93. Enigma has willfully, intentionally, and wantonly, or with reckless indifference, engaged in the deceptive, unfair and unconscionable acts and trade practices alleged herein when Enigma knew or should have known that said acts and practices were unfair, deceptive, or prohibited by rule. 94. Unless Enigma is enjoined from engaging further in the acts and practices alleged herein, the continued activities of Enigma will result in irreparable injury to Bleeping for which there is no adequate remedy at law. Count IV Defamation 95. Bleeping restates and realleges the factual allegations of its Counterclaim as if fully set forth herein. 25 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 26 of 29 96. Enigma published the foregoing statements of and concerning Bleeping and its software programs Rkill and Unhide on the internet to millions of users. 97. The foregoing statements, published and disseminated by Enigma about Bleeping and its software programs, are false and defamatory. 98. Enigma published the false and defamatory statements about Bleeping with 99. Such statement tends to injure Bleeping in its trade and business as a reputable malice. source in the fight against viruses and malware and go directly against the nature, characteristics, and quality of its business, impugning its integrity. 100. Therefore, such statements constitute defamation or libel per se for which Enigma is liable. PRAYER FOR RELIEF WHEREFORE, Bleeping Computer, LLC respectfully demands judgment as follows: A. Actual damages, in the form of Defendant’s profits or otherwise; B. Statutory damages as available under applicable law; C. Punitive damages; D. Pre-judgment and post-judgment interest, to the extent permitted by applicable law; E. Attorneys’ Fees and Costs as permitted by applicable law; F. An injunction requiring Enigma and/or its agents to transfer the domain at bleepingcomputerregistryfix.com to Bleeping and to never register another domain containing Bleeping’s name and/or mark G. An injunction requiring Enigma and/or its agents to cease from utilizing and permanently delete the subdomains http://adware.bleeping.computer.remover.getridofspywareonphone.com, http://browser.hijack.bleeping.computer.virus.spywareremovalfreetrial.com, and all of the other Infringing URLs identified herein, and to never utilize another subdomain or URL containing Bleeping’s name and/or mark. 26 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 27 of 29 H. An injunction requiring Enigma and/or its agents to cease from using Bleeping’s name, mark or other content authored by Bleeping in the source code for the web pages at http://fixspywarenowreview.com/davinci.php or any elsewhere; I. An injunction requiring Enigma and/or its agents to cease causing visitors to ComboFix.org to download any Enigma product; J. An injunction requiring Enigma and/or its agents to remove the webpage at http://www.enginesupplymachineshop.com/rkill-com and otherwise refrain from publishing false statements about Bleeping, or any of its programs, including RKill.com, or Unhide; K. An injunction requiring Enigma and/or its agents to cease from using Bleeping’s name or mark in any advertisement or marketing of Enigma’s products. L. Judgment dismissing with prejudice all of Enigma’s claims in the SAC; and M. Such other and further relief as the Court deems just and proper. JURY DEMAND Defendant hereby demands a jury trial as to all issues so triable as raised by any of the parties’ claims, counterclaims, crossclaims and defenses in this matter. Dated August 8, 2016 Respectfully Submitted, /s/ Marc J. Randazza Marc J. Randazza, Esq. Admitted pro hac vice RANDAZZA LEGAL GROUP, PLLC 4035 South El Capitan Way Las Vegas, Nevada 89147 Tele: 702-420-2001 Fax: 305-437-7662 Email: ecf@randazza.com Jay M. Wolman (JW0600) RANDAZZA LEGAL GROUP, PLLC 100 Pearl Street, 14th Floor Hartford, CT 06103 Tele: 702-420-2001 Fax: 305-437-7662 Email: ecf@randazza.com /s/ Gregory W. Herbert Gregory W. Herbert, Esq. New York Bar Registration No. 2502755 GREENBERG TRAURIG, P.A. 27 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 28 of 29 450 South Orange Avenue, Suite 650 Orlando, FL 32801 Telephone: (407) 420-1000 Facsimile: (407) 841-1295 herbertg@gtlaw.com 28 Case 1:16-cv-00057-PAE Document 53 Filed 08/08/16 Page 29 of 29 Exhibits: A: Bleeping Trademark Registration B: List of (96) Infringing URLs C: Sample of URLs using Bleeping TM/content in source code D: List of URLs using Bleeping TM/content in source code E: Statements re Rkill at http://www.enginesupplymachineshop.com/rkill-com/ F: spywareremove.com pages claiming Rkill and Unhide are malware 29