Ascentive v. 1ShoppingCart.com [1]

On February 13, 2009, Ascentive LLC [2], a company that develops software such as FinallyFast [3] to improve computer performance, sued PCPitstop [4] and its CEO, Rob Cheng, along with 1ShoppingCart.com [5], a conveyer of eCommerce software and ad-tracking services, and ten anonymous posters on PCPitstop’s forums [6].  Ascentive alleges that PCPitstop, assisted by 1ShoppingCart, purchased search keywords tied to Ascentive’s “FinallyFast.com” trademark on Google [7] and Yahoo! [8].  The complaint also alleges that false and defamatory statements regarding Ascentive’s software was posted to PCPitstop’s forum by PCPitstop employees and/or third parties.  Ascentive is represented by Steven T. Lovett and Marc Alifanz of Stoel Rives LLP [9], while PCPitstop is represented by Christopher W. Angius of Holland & Knight LLP [10].

The six-count complaint [11] alleges trademark infringement, unfair competition, and vicarious and contributory Lanham Act [12] violations against PCPitstop, Rob Cheng, and 1ShoppingCart with respect to the alleged purchase of search keywords tied to Ascentive’s “FinallyFast.com” trademark.  It also alleges breach of contract against PCPitstop and Mr. Cheng for the alleged resumption of trademark-linked keyword purchasing in January 2009, after Mr. Cheng had allegedly agreed to curtail such activities in July 2008.  Finally, the complaint alleges defamation against PCPitstop and Does 1-10 for allegedly false factual statements posted to PCPitstop’s forum.  The complaint alleges that such statements include the following assertions:

• FinallyFast is a “scam”;
• Ascentive “promotes adware and phishing scams”;
• FinallyFast is “very difficult to get off” of a computer once installed;
• “Ascentive products are known to scare the user with a long list of false positive results” ;
• “It is likely that these products are cheap knock-offs of well known freeware products”; and
• Dealing with companies such as Ascentive includes the danger that “the program will actually do your computer more harm than good.”

Compl. [11] ¶¶ 65, 67.

Ascentive is seeking an injunction to prevent:

• The purchase or use of Ascentive’s trademarks or similar marks or names by PCPitstop, its advertisers, and affiliates in connection with search keywords or any products not authorized by Ascentive;
• Any conduct by PCPitstop’s advertisers or affiliates that would confuse purchasers into believing any of PCPitstop’s products are associated with or authorized by Ascentive;
• Unfair competition by PCPitstop, its advertisers, and affiliates with Ascentive; and
• The publication or posting of false and defamatory statements regarding Ascentive or its products on the PCPitstop website.

Compl. (Prayer for Relief) ¶ a.  Ascentive seeks damages sustained in consequence of the alleged trademark infringement, unfair competition, breach of contract, and defamation.  It also seeks accounting for gains, profits, and advantages derived from PCPitstop’s alleged infringement and unfair competition.  Ascentive is seeking trebled damages under section 1117 of the Lanham Act.

On April 28, 2009, Ascentive voluntarily dismissed [13] its case, with prejudice.