Bally Total Fitness v. Faber [1]

In February 1998, Bally Total Fitness sued Andrew Faber, a former Bally customer who created a website entitled BallySucks [2] (now defunct), which was dedicated to collecting complaints about Bally's health club business and included modified versions of Bally's trademarks with the word "sucks" across them.  The complaint alleged trademark infringement, trademark dilution, and unfair competition.

Bally moved for a temporary restraining order against Faber to force him to take down the website, but the court denied Bally's motion in April 1998. In October 1998, Bally moved for summary judgment on its claims. The court again rejected the motion, and instead ordered Faber to bring a motion for summary judgment. Faber so moved, and the court granted the motion [3] in December 1998.

The court found that Faber's "Bally sucks" site promoted separate, distinct "goods" from Bally's services and would not confuse reasonable consumers. Further, the court said that even if the two "goods" had been related, the trademark infringement balancing test from AMF Inc. v. Sleekcraft Boats [4], 599 F.2d 341, 348-49 (9th Cir. 1979) weighed heavily in favor of Faber.

Following the grant of summary judgment, Bally appealed to the Ninth Circuit Court of Appeals. However, on June 13, 2000, the appeal was dismissed [5] by stipulation of the parties.