The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On November 29, 2004, Plaintiff Microsoft Corporation, Inc.
(hereinafter "Microsoft"), initiated this action by filing a
complaint containing six counts. The Defendants are an individual
named Sung Kao, who is also known as Rick Kao, (hereinafter
"Kao") and the company he owns and operates in State College,
Pennsylvania, known as Master Computer, Inc. (hereinafter "Master
Computer"). All of the claims in Microsoft's complaint relate to
Kao's allegedly unauthorized distribution of counterfeit
Microsoft computer software. The computer software at issue is
subject to a copyright and trademarks owned by Microsoft.
On September 1, 2005, Microsoft filed a motion for summary
judgment accompanied by a statement of undisputed material facts, a supporting brief, and exhibits. On September 16, 2005, Kao
filed an opposing memorandum, exhibits, and a response to
Microsoft's statement of material facts. The time allowed for
Microsoft to file a reply brief expired on October 3, 2005, and
to this date no such brief was filed. Microsoft's motion for
summary judgment is ripe for disposition.
Summary judgment is appropriate only when there is no genuine
issue of material fact which is unresolved and the moving party
is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c). Summary judgment should not be granted when there is a
disagreement about the facts or the proper inferences which a
fact finder could draw from them. Peterson v. Lehigh Valley Dist.
Council, 676 F.2d 81, 84 (3d Cir. 1982).
Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
"When a motion for summary judgment is made and supported as
provided in . . . [Rule 56], an adverse party may not rest upon
mere allegations or denials of the adverse party's
pleading. . . ." Fed.R.Civ.P. 56(e). Rule 56 provides that, where such a motion is
made and properly supported, the adverse party must show by
affidavits, pleadings, depositions, answers to interrogatories,
and admissions on file that there is a genuine issue for trial.
Fed.R.Civ.P. 56(e). The United States Supreme Court has
commented that this requirement is tantamount to the non-moving
party making a sufficient showing as to the essential elements of
their case that a reasonable jury could find in its favor.
Celotex Corporation v. Catrett, 477 U.S. 317, 322-23 (1986).
When addressing a motion for such a judgment, our inquiry
focuses on "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
As summarized by the Advisory Committee On Civil Rules, "[t]he
very mission of the summary judgment procedure is to pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial." Fed.R.Civ.P. 56 advisory
committee note to 1963 Amendment.
The evidentiary materials submitted to us confirm that the
following facts are undisputed. Microsoft develops, advertises, distributes and licenses
computer software programs. Microsoft software is distributed in
all fifty states of the United States of America and throughout
Microsoft's copyright to its "Windows 2000 Professional"
software was registered with the United States Copyright Office
in compliance with the Copyright Revision Act of 1976
(17 U.S.C. § 101, et seq.) and Copyright Office regulations. The copyright
was assigned registration number TX 5-036-267. Microsoft has
been, and still is, the sole owner of all rights, title and
interest in the copyright and Certificate of Registration for its
"Windows 2000 Professional" software.
Microsoft is the owner of valid, federally-registered
trademarks or service marks, or both, in and to the following: 1)
Trademark and Service Mark Registration No. 1,200,236
("Microsoft") for computer programs and computer programming
services; 2) Trademark Registration No. 1,256,083 ("Microsoft")
for computer hardware and software manuals, newsletters, and
computer documentation; 3) Trademark Registration No. 1,872,264
("Windows") for computer programs and manuals sold as a unit; 4)
Trademark Registration No. 1,815,350 (Colored Windows Flag Logo)
for computers, computer peripherals, and computer programs and
manuals sold as a unit; and 5) Trademark Registration No. 1,816,354 (Windows Flag Logo) for computers, computer
peripherals, and computer programs and manuals sold as a unit. At
all relevant times Microsoft has been the sole owner of all
rights, title, and interest in, and to, those trademarks, service
marks, and registrations. Although there are five different
trademark registrations at issue here, because the first and
second both relate to the term "Microsoft," there are actually
only four registered marks relevant to this case.
Master Computer is a Pennsylvania corporation in the business
of building new computer systems, some of which are sold with
Microsoft software installed onto the hard disk drives. Kao
started Master Computer in 1987 and he receives his salary from
the business. He is the company's primary officer, sole owner,
and sole shareholder.
As the sole owner and operator of the business, Kao has the
right and ability to supervise the employees of Master Computer,
and he is the only person with the authority to hire and fire
employees. Koa is responsible for Master Computer's ...