Microsoft v. Testking Part II – Has Testking complied?

In Microsoft’s April 2007 Stipulated Permanent Injunction against Certification Trendz, the owners of Testking agreed to certain conditions proposed by Microsoft. In June 2007, a Stipulated Motion to Dismiss was agreed upon by both parties and filed with a U.S. Judicial Court. Yes, if you’re hearing this news for the first time, Microsoft and Testking “settled out of court”. We’ll be discussing those stipulations, the enjoined sites, and our (unofficial) assessment of those sites.

The sites

At the time of the original injunction (August 2006), Microsoft presented a total of 70 sites which were known to be owned or operated by Certification Trendz. Of course, Microsoft knew about many more than 70 websites at the time, but without sufficient evidence of ownership they weren’t able to present the other sites.

The Stipulations

These are the items agreed upon by both parties (Microsoft and Certification Trendz) and ORDERED by the court. What we’re looking to provide you with is information on whether or not Certification Trendz has complied with these stipulations or not. So what were these stipulations?! If you’d like it in black & white, read Document 42 of Case 2:06-cv-01116-JLR which was filed on 04/05/2007. Here is the brief version for you:

These were the terms agreed upon by Certification Trendz. Firstly, they agreed to not participate in or assist, aide, or abet any person or entity with the following conditions.

1. They agreed to never register for any MCP exams,
2. to never copy, use, sell, market, distribute, publish, or transfer any Microsoft Certified Exam, in whole or in part,
3. to not infringe any of Microsoft’s Intellectual Property (“IP”),
4. to not directly or indirectly own or operate any Internet website in which infringing materials are sold or made available,
5. for a period of 3 years Testking agreed to not transfer the (70) domain names which were listed by Microsoft from their current registrar, and
6. they agree that the domains display the disclaimer “Materials do not contain actual questions and answers from Microsoft’s Certification Exams”

Our Assessment

Because we don’t actually have access to any of Microsoft’s internal records, we cannot say whether or not Certification Trendz has violated #1, but it was actually quite easy determining the results of #2, & #4-6. As for #3, all we can say is that we have seen actual test materials from some of those sites that postdate the April 2007 injunction, so we’re guessing that they have violated #3 on many accounts.

Of the 70 enjoined sites presented on the injunction, 9 of those sites appeared to be inactive; meaning that the directories had been removed and there was no content whatsoever. Here are the results of the remaining 61 sites that are still active:

• All but 10 of the sites (51) failed to meet stipulation #2. Most of the sites still appeared to be (at a minimum) marketing Microsoft’s materials, even though they claim the material is their own, we have seen documents proving otherwise.
• Because condition #4 was directed at the company as a whole and not any one site, it would make sense that failure of #2 on any one account should technically be a failure across the board.
• Believe it or not, every one of the 70 domain names appear to be with the same registrar.
• This is probably the least important condition of all, but 9 of the 61 sites have failed by not sporting the disclaimer they agreed to display.

We’d like to hear your thoughts on this issue. What do you think about what’s been done up to this point? Do you feel there will (or should) be other court cases against Testking?