IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION T-MOBILE US, INC., a Delaware corporation, and DEUTSCHE TELEKOM AG, a German corporation, Plaintiffs, Civil Action No. v. JURY TRIAL DEMANDED AIO WIRELESS LLC, a Delaware Limited Liability Company, Defendant. COMPLAINT Plaintiff T-Mobile US, Inc. (“TMUS”) and Plaintiff Deutsche Telekom AG (“DT” and collectively with TMUS, “T-Mobile”) seek injunctive and monetary relief from Defendant Aio Wireless, LLC (“AIO”) for trademark dilution, trademark infringement and unfair competition with regard to T-Mobile’s trademark rights to the color magenta in the field of telecommunications services. In early 2013, T-Mobile publicly disclosed plans to compete against the incumbent telecommunications providers in a new way: by offering telecommunications services without the need for consumers to enter into a two-year or annual service contract. The dominant telecommunications provider, AT&T, responded by setting up a wholly owned subsidiary, AIO, which—out of all of the colors in the universe—chose magenta to begin promoting no-contract wireless communications services in direct competition with T-Mobile. AT&T’s subsidiary’s use of magenta to attract T-Mobile customers is likely to dilute T-Mobile’s famous magenta color trademark, and to create initial interest confusion as to the source or affiliation of AT&T’s subsidiary’s business. Defendant has thereby committed, and continues to commit, trademark dilution and infringement as well as unfair competition in violation of Sections 43(c), 32 and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a) and (c), the Texas Anti-Dilution Statute, Tex. Bus. & Com. Code Ann. § 16.103, and Texas common law. I. PARTIES 1. Plaintiff T-Mobile US, Inc. is a corporation organized under the laws of the State of Delaware with its principal place of business located at 12920 SE 38th Street, Bellevue, Washington 98006. 2. Plaintiff Deutsche Telekom AG is a corporation organized under the laws of Germany with its principal place of business located at Friedrich-Ebert-Allee 140, 53113, Bonn, Federal Republic of Germany. DT is a majority owner of TMUS. 3. Upon information and belief, Defendant Aio Wireless, LLC is a limited liability company organized under the laws of the State of Delaware with a principal place of business located at 12735 Morris Road, Suite 300, Alpharetta, Georgia 30004. AIO is a wholly owned subsidiary of AT&T. II. JURISDICTION AND VENUE 4. This Court has original subject matter jurisdiction over T-Mobile’s claims pursuant to the Lanham Act, 15 U.S.C. §§ 1051 et seq.; and 28 U.S.C. §§ 1331 and 1338. This Court has supplemental jurisdiction over the Texas state law claims pursuant to 28 U.S.C. § 1367 because such claims are so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts. - 2 - 5. This Court has personal jurisdiction over AIO because AIO has established minimum contacts with this forum. AIO has recently begun regularly and continuously conducting business within this judicial district, by, among other things, marketing, advertising, offering to sell, and selling telecommunications services and products in this judicial district, including the services which are the subject of this Complaint. Additionally, this Court has personal jurisdiction over AIO because AIO has conducted tortious acts that have caused injury within this State and within this judicial district, and the claims alleged arise out of such tortious acts. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c) because the claims alleged in the Complaint arose, in part, in this District, and because this Court has personal jurisdiction over Defendant in this District. III. FACTS COMMON TO ALL COUNTS Plaintiffs’ Business 7. DT is a global telecommunications company that serves over a hundred million customers worldwide. Through its worldwide affiliates, DT sells telecommunications products and services under the “T-Mobile” brand and the color magenta. 8. DT was the parent company of TMUS from its incorporation in 2002 until TMUS became a public company in May of 2013 in connection with a merger between TMUS and Metro PCS. DT is now a majority shareholder of TMUS. 9. TMUS provides wireless voice, messaging and data services to over 43 million wireless subscribers in the United States. T-Mobile launched as a nationwide brand in the United States in July 2002 with the goal of providing consumers access to the newest mobile - 3 - products and services at an affordable price. Over the last eleven years, TMUS has earned a strong reputation for customer value and service. 10. In early 2013, T-Mobile announced its intention to move away from the industry norm of required annual service contracts and to introduce affordable, no-contract plans that still provide consumers with the option of unlimited wireless talk, text and internet service. Plaintiffs’ Famous Magenta Trademark 11. DT developed and began using its magenta color as a trademark (the “Magenta Mark”) in the early 1990’s. Since that time, DT has used the Magenta Mark consistently and prominently in its marketing and promotional materials throughout the world. 12. Through DT’s consistent and longtime use of the Magenta Mark as a cornerstone of its brand identity, the magenta color mark has become an internationally recognized symbol of DT in the world of telecommunications. 13. DT owns and uses (by itself and through its affiliates and licensees) a number of trademarks consisting of and incorporating the Magenta Mark throughout the world, including in the United States. 14. TMUS is an authorized licensee of DT for use of DT’s trademarks, including the Magenta Mark, in the United States. 15. TMUS began using the Magenta Mark upon its inception as T-Mobile in 2002 to advertise, market, promote and sell its wireless telecommunications products and services in the United States. The Magenta Mark has been a unifying source identifier and theme in T-Mobile’s advertising from the beginning, and T-Mobile has used it in every major advertising campaign through the years. True and correct copies of examples of T-Mobile’s advertising using the Magenta Mark are attached hereto as Exhibit 1. - 4 - 16. DT owns the following United States Trademark Registrations for the Magenta Mark (collectively the “Registered Magenta Marks”): a. United States Trademark Registration No. 3,263,625 for the Magenta Mark “ ” on the Supplemental Register to identify “Telecommunication and information technology services, namely, wireless transmission of voice and data; providing multi-user access to a global communications network; two- way wireless transmission of electronic mail, text and images between mobile telecommunications terminals and computers; voice mail and messaging services; wireless broadcasting of textual content content to mobile telecommunications terminals and computers; providing customized audio playback of musical, spoken word and other auditory content over a telecommunications network” in International Class 38. b. United States Trademark Registration No. 3,263,624 for the Magenta Mark “ ” on the Supplemental Register to identify “Telecommunication equipment, namely, mobile telephones, wireless telephones and wireless telephony apparatus” in International Class 9. True and correct copies of the above registrations are attached hereto as Exhibit 2. 17. DT also owns numerous registrations that incorporate the Magenta Mark with other elements to identify telecommunications services in International Class 38, including, without limitation, United States Trademark Registration Nos. 3,190,980; 3,343,819; 3,452,979; 3,487,679; 3,491,696; 3,545,974; 3,574,838; 3,575,162; 3,578,791; 3,582,357; 3,585,513; 3,601,274; 3,614,612; 3,656,496; and 3,700,790. 18. Through its continuous use and promotion of the Magenta Mark in the United States for more than ten years, T-Mobile also has developed and owns common law rights to the Magenta Mark in connection with telecommunications services across the country. 19. One example of a nationwide television and print advertising campaign that T- Mobile ran from 2010 to 2013 using the Magenta Mark featured “Carly,” a spokeswoman in a magenta dress and later, a black jumpsuit with magenta markings. True and correct copies of advertisements featuring “Carly” are attached hereto as Exhibit 3. - 5 - 20. T-Mobile uses the Magenta Mark prominently in all forms of advertising media, including on its website, www.t-mobile.com, in print and outdoor advertisements, and in television commercials. 21. The other major participants in the telecommunications industry also color code their advertisements and promotional materials—e.g., blue and orange for AT&T, red for Verizon, and yellow for Sprint. Consumers have learned to perceive the colors used by these providers as source indicators. 22. It is also common practice in the telecommunications industry for competitors to depict their services through a coverage map in their respective corporate colors. 23. T-Mobile’s advertisements often include a coverage map using its Magenta Mark. The coverage map that appears on T-Mobile’s website is reproduced below: 24. T-Mobile’s Magenta Mark also is used extensively in its promotional efforts and sponsorships. For example, TMUS’s listing on the New York Stock Exchange was commemorated with a massive magenta banner hanging on the building. Additionally, at the 2011 National Basketball Association All-Star game, sponsored in part by T-Mobile, the traditional “red carpet” was replaced with a “magenta carpet.” - 6 - 25. T-Mobile’s marketing and promotional efforts draw attention to the use of its Magenta Mark and encourage consumers to associate the color magenta with T-Mobile. For example, during the 2011 holiday season, T-Mobile held a “Magenta Saturday Sale,” offering customers deals on Smartphones and other services.