Bihari v. Gross [1]

Marianne Bihari, an interior designer, and her company Bihari Interiors Inc. brought a lawsuit against Craig Gross, a former customer of Bihari, and Yolanda Truglio for federal unfair competition, cybersquatting, trademark dilution, common law unfair competition, libel, and tortious intereference with contract. Bihari sought to enjoin Gross and Truglio from using the marks or meta-tags "Bihari" and "Bihari Interiors" in websites critical of Bihari and Bihari Interiors Inc.

In her six-count complaint, Bihari alleges that Gross, after a failed settlement conference arising from a previous business dealing with Bihari, registered the web addresses "bihari.com" and "bihariinteriors.com." Compl. ¶ 31. Bihari asserts that Truglio sent her a facsimile announcing that "the web site 'www.bihairinteriors' was currently under construction" to ensure that Bihari "knew of the harm Gross was willing and able to inflict." Compl. ¶¶ 32-35. Bihari claims that Gross later registered "designscam.com" and "manhattaninteriordesign.com," each of which had identical content to "bihari.com" and used meta-tags "bihari" and "bihari interiors." Compl. ¶¶ 66-68.

These sites purport to "protect you from experiencing the overwhelming grief and aggravation in dealing with someone that allegedly only has intentions to defraud." Compl. ¶ 79.a. Each site has a large animated banner reading “Do not fall prey to Marianne Bihari or Bihari Interiors” and links to "the scam." Compl. ¶¶ 78, 80. Bihari believes that Gross designed these sites to spread "misleading and defamatory information about [Bihari Interiors] and thereby harm [its] reputation and goodwill." Compl. ¶ 65.

The court denied [2] Bihari's request for an injunction. The court held that Gross' conduct did not violate the Anticybersquatting Consumer Protection Act because by the time of the decision, "Gross ha[d] abandoned [bihari.com and bihariinteriors.com] and promised to transfer the domain names back."  The court also held that Bihari would not succeed in her claims of trademark infringement because she could not show that Gross' conduct was "likely to cause confusion . . . as to the affliation . . . or approval of" the defendant's goods or services. The court reasoned that Gross' use of the "Bihari Interiors" mark in meta-tags for designscam.com and manhattaninteriors.com would not cause consumer confusion since "[n]o reasonable viewer would believe that the disparaging comments regarding Bihari's business ethics . . . are endorsed by Bihari." Secondly, the court held that even if Gross' use of the mark in meta-tags caused confusion, the use would be protected under fair use, as they were "descriptive" and " used . . . in good faith." 

After the denial of an injunction, the parties held a pretrial conference on 12/04/2000. It appears that the parties settled the matter, as the court signed an order of discontinuance with prejudice on 12/06/2000.