TIBCO has filed an amended complaint against GAIN Capital, reiterating claims of copyright infringement and breach of the implied covenant of good faith and fair dealing.
Less than a month after Judge Edward J Davila of the California Northern District Court granted GAIN Capital’s Motion to Dismiss the claims for breach of the implied covenant of good faith and fair dealing and copyright infringement brought by TIBCO Software Inc, the software firm has launched an amended complaint against the online trading services provider, reiterating its claims of copyright infringement, over-deployment of software, breach of contract and breach of the implied covenant of good faith and fair dealing.
The amended complaint, filed with the Court on January 8, 2018, refers to license agreements between TIBCO Software and GAIN dated 2008, 2010 and 2012. Upon information and belief, GAIN unlawfully deployed units of TIBCO Enterprise Message Service and TIBCO Hawk software without permission and without holding a valid license to do so. According to the plaintiffs, GAIN’s use of TIBCO products not covered by the 2008 or 2010 licenses, or other valid license, and GAIN’s deployment of additional units of TIBCO Enterprise Message Service and TIBCO Hawk software after December 30, 2012, constituted in each instance an unauthorized use of TIBCO’s protected intellectual property.
On or about November 15, 2016, Tibco and GAIN entered into a new license agreement covering a certain number of units of TIBCO ActiveSpaces Enterprise Edition, TIBCO Enterprise Message Service, and TIBCO Hawk software. GAIN is alleged to have failed to pay any of the amounts due under this agreement.
Other than the specific number of deployments authorized by license, as set forth in the 2008 and 2010 licenses, and prior to the specific grant of a license to use a fixed number of units pursuant to the 2016 license, GAIN is alleged to have had no license and to not have been authorized to deploy additional units of Tibco’s Copyrighted Works, nor did the licenses give GAIN any right to make any copies of the Copyrighted Works, use or deploy those works in unauthorized ways, put copies of those works on any computers or servers not authorized by a valid license, create derivatives of those works, or otherwise distribute those works.
TIBCO claims that GAIN’s infringed of the Copyrighted Works and that the infringement was willful.
The software firm seeks award of damages and a permanent injunction, stopping GAIN and its employees, officers, parents, subsidiaries, and agents from using the Copyrighted Works.
Let’s recall that the parties have agreed to have a private mediation scheduled with Judge Cahill at JAMS in San Francisco on January 30, 2018, with the agreement resulting in a prospect of resolving the case.
The case is captioned TIBCO Software Inc., v. Gain Capital Group, LLC (5:17-cv-03313).