Trademark

Will Your ISP Stand Up for Your Free Speech Rights?

There are a lot of things to consider when making the decision to launch a blog or website, including questions of cost, ease of use, and ownership of content.  Understanding how these considerations impact your legal rights and potential liability can help you make an intelligent choice as to what platform to use and what precautions to take when you speak online (we've got a whole section on these concerns, and others, in our legal guide).  But one area most people tend to overlook is whether their

Subject Area: 

Mayflower Transit v. Prince

Date: 

10/30/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Dr. Brett Prince

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Jersey

Case Number: 

2:00-cv-05354-JLL-RJH

Legal Counsel: 

John J. Pischeria, Dennis A. Cipriano

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Material Removed
Settled (total)

Description: 

Dr. Brett Prince contacted Mayflower Transit company, a moving company that uses the service mark MAYFLOWER, to assist him with a move.  Prince eventually contracted with Lincoln Storage, a company that he believed was a local affiliate of Mayflower.  Some of Prince's belongings were stolen during the move, and Prince was very dissatisfied with his experience.

In March 2000, Prince developed a series of websites critical of Mayflower and used the name Mayflower in the domain names.  He registered the domains "mayflowervanlinebeware.com" and "mayflowervanline.com," among others.   The "gripe sites" warned customers against using Mayflower based on Prince's claimed bad experience with the company.   Mayflower disputed that it was ever involved in Prince's move, claiming that only Lincoln Storage was involved.

On October 30, 2000, Mayflower sued Prince, claiming a violation of the Anticybersquatting Consumer Protection Act (ACPA).  Mayflower also asserted claims for libel, trade libel, and trademark dilution.

The district court granted Prince's motion to dismiss the trademark claims, determining that the gripe sites did not violate the ACPA because Prince was not attempting to profit financially from Mayflower's name.  Thus, the sites constitued a "bona fide noncommercial or fair use of the mark."  The court allowed the libel claims to proceed

In May 2004, the parties settled the case.  It appears that as a result of the settlement, Prince's websites were taken down (they are no longer accessible).

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Westlaw Alert

CMLP Notes: 

Source: Westclip

Priority: 

1-High

Subject Area: 

NYP Holdings v. Lavandeira

Date: 

05/02/2005

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mario Lavandeira

Type of Party: 

Large Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

05 cv 4305

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Settled (total)

Description: 

In May 2005, NYP Holdings, Inc., the owner of the New York Post, sued Mario Lavandeira (a.k.a Perez Hilton) for trademark law violations and unfair competition in federal court in New York.  NYP Holdings alleged that Lavandeira's operation of the PageSixSixSix gossip blog and use of the domain name "www.pagesixsixsix.com" violated its federal and state trademark rights in its "Page Six" trademark. The parties settled out of court for an undisclosed sum, and Lavandeira changed the website name to PerezHilton.com.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

Silver v. Lavandeira

Date: 

07/22/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Mario Hermando Lavandeira, Jr. aka Mario Lavandeira aka Perez Hilton

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Southern District of New York

Case Number: 

1:08-cv-06522

Legal Counsel: 

Bryan J Freedman - Freedman and Taitelman LLP; Jeffrey M. Eilender - Schlam Stone & Dolan LLP

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

On July 22, 2008, Elizabeth Silver, a blogger on PerezRevenge.com (now www.rPulse.com), which describes itself as a "website where celebrities could post information about their careers, events and when necessary personal lives without the taint of rumor or speculation" sued rival celebrity blogger Mario Lavandeira (aka Perez Hilton), who operates the blog perezhilton.com, for copyright infringement, violation of the Digital Millenium Copyright Act, and other claims.

On July 21, 2008, Hilton had sued Silver, Infuse LLC, and Margie E. Rogers over their use of the name PerezRevenge, claiming the use was a violation of the Anti-Cybersquatting Consumer Protection Act, as well as unfair competition, federal dilution of trademark, and unfair trade practices. See the related claim, Lavandeira v. Infuse, LLC.

Update: 

On January 7, 2009,  a magistrate judge issue a Report and Recommendation rejecting Silver's claims.  After Silver failed to object to the Report, the court on February 26 adopted the Report and Recommendation in its entirety.  According to a March 06 order issued by the court, Silver appears to have then filed for voluntary dismissal of the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

Lavandeira v. Infuse, LLC

Date: 

07/21/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Infuse, LLC; Margie Rogers; Elizabeth Silver-Fagan; Does 1-10

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:08-cv-04764

Legal Counsel: 

Pro se

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Disposition: 

Default Judgment

Description: 

Celebrity gossip blogger Mario Lavandeira (aka Perez Hilton), who operates the blog perezhilton.com, sued Infuse LLC, Margie E. Rogers and Elizabeth Silver-Fagan, the owner, editor and publisher, respectively, of a rival celebrity blog named PerezRevenge.com, which describes itself as a "website where celebrities could post information about their careers, events and when necessary personal lives without the taint of rumor or speculation." Hilton's complaint asserts that their use of the name PerezRevenge is a violation of the Anti-Cybersquatting Consumer Protection Act, as well as unfair competition, federal dilution of trademark, and unfair trade practices.

Hilton seeks injunctive relief and treble damages.

On July 22, 2008, one day after Lavandiera filed his lawsuit, defendant Silver, the publisher of PerezRevenge.com, filed a breach of contract lawsuit against Lavandiera in New York. See the related lawsuit, Silver v. Lavandiera.

UPDATE:

05/06/09 - The court, after awarding a default judgment for Hilton, enjoined Infuse from "using the domain name perezhilton.com... [or] using the term 'Perez' to designate any platform...that contains entertainment or celebrity news or gossip."  Silver's site now resides at www.rPulse.com.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

CMLP Notes: 

Updated 2/19/2009 - VAF

Updated 6/25/2009 - AVM added enjoining order

Priority: 

2-Normal

E! Entertainment Television v. De Filippis

Date: 

07/01/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Louie De Filippis, Central Image Agency Inc., Enewsbuzz and E News Buzz

Type of Party: 

Media Company

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Central District of California

Case Number: 

2:08-cv-04355

Legal Counsel: 

Andres F Quintana - Quintana Law Group

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)
Material Removed

Description: 

E! Entertainment filed a lawsuit against Louie De Filippis and several companies he is alleged to be associated with over several websites and blogs he operated called enewzbuzz, one of which described itself as "Canada's Leading Entertainment News and Image Source For All the Latest in Entertainment From Toronto to Miami and Around the Globe." E! Entertainment's complaint alleges trademark infringement, false designation of origin, federal trademark dilution, unfair competition, and cybersquatting.

According to plaintiff's complaint, its counsel sent a cease-and-desist letter to defendants on February 1, 2008. De Filippis's blog and website are no longer accessible, but a cached version the blog is available here.

Defendants' answer is due 9/19/2008.

Update:

9/24/2008 - Case dismissed with prejudice 

Jurisdiction: 

Subject Area: 

Threat Source: 

RSS

The Oklahoma Publishing Company v. Conradt

Date: 

07/14/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

James W. Conradt

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Western District of Oklahoma

Case Number: 

5:08-cv-00713-C

Legal Counsel: 

Pro se

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Material Removed
Retraction Issued
Settled (total)

Description: 

The Oklahoma Publishing Company and one of its reporters, Jacob Trotter, sued James W. Conradt in federal court in Oklahoma in July 2008, after he posted a fake article that mimicked the appearance of the publishing company's NewsOK.com website and purported to be written by Trotter. According to the complaint, the fake article falsely stated that two University of Oklahoma football players had been arrested for intent to distribute cocaine. Conradt allegedly posted links to the article from his Nebraska football fan site, darthhusker.com, and from the Rivals.com message board. The day after it was posted, Conradt admitted creating the article.

The complaint included claims for federal trademark infringement and dilution, copyright infringement, federal and state unfair competition, violation of Trotter's right of publicity, false light, libel, and deceit. The parties settled for an undisclosed sum, and the court dismissd the case in September 2008.  As part of the settlement, Conradt wrote a letter of apology to be published by the publishing company and Conradt and agreed to never again publish an article in a manner that makes it appear the article was published in The Oklahoman or NewsOK.com.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

MLRC

Jones Day Gets Trademark Law Wrong, Squelches Legitimate Reporting

Paul Alan Levy of Public Citizen published a fantastic post on Friday about big law firm Jones Day's lawsuit against BlockShopper.com, an online real estate news website covering Chicago, South Florida, Las Vegas, and St.

Jurisdiction: 

Content Type: 

Subject Area: 

Jones Day v. BlockShopper LLC

Date: 

08/12/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

BlockShopper LLC; Brian Timpone; Edward Weinhaus

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois

Case Number: 

08 CV 4572

Legal Counsel: 

Martin B. Carroll, Adam A Hachikian, Daniel S. Hefter - Fox, Hefter, Swibel, Levin & Carroll, LLP; James A. Klenk - Sonnenschein, Nath & Rosenthal

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Founded in 2006, BlockShopper.com is a start-up local online real estate news service covering Chicago, South Florida, Las Vegas, and St. Louis. Its reporting staff is made up of ex-print journalists who collect public real estate sales data, then use information in the public domain (e.g. company web sites) to write news stories about recent transactions. BlockShopper currently produces upwards of 1,000 stories per month and has produced more than 8,000 since its founding, many of which appear in print newspapers as part of content-sharing partnerships with companies like Tribune. Three of those stories, all on BlockShopper's Chicago web site, reported the real estate transactions of partners and associates from Jones Day, the large international law firm.

Jones Day sued BlockShopper.com on Aug. 12, 2008 in federal court in Illinois. The complaint alleges that Blockshopper.com infringed and diluted the firm's service mark and violated state trademark and unfair competition laws by using the word "Jones Day" when referring to the real estate transactions of Jones Day attorneys, linking to its site and using lawyers’ photos from its site. The firm contends that these activities creates the false impression that Jones Day is affiliated with or sponsors BlockShopper.com.

Jones Day sought a temporary restraining order preventing BlockShopper from writing about its lawyers or linking to its web site. BlockShopper agreed to take down the three stories temporarily, to avoid the expense of arguing both a TRO and then the complaint itself against a large law firm. Its executives say they believe the suit is frivolous and they plan to fully defend themselves. Jones Day told BlockShopper it would drop the case if BlockShopper paid it $10,000 and agreed to never write about its lawyers' real estate transactions again, according to the National Law Journal. BlockShopper declined the offer.

Trial is set for late February 2009.

Update:

09/19/2008 - BlockShopper and individual defendants Timpone and Weinhaus field a motion to dismiss the complaint. Public Citizen, EFF, Public Knowledge, and Citizen Media Law Project moved for permission to file an amici curiae brief in support of BlockShopper's motion.

09/23/2008 - Jones Day filed a memorandum in opposition to Amici's motion for permission to file an amici curiae brief.

09/24/2009 - Amici filed a reply memorandum in support of their motion for permission to file an amici curiae brief.

11/13/08 - The court granted defendants' motion to dismiss the claims against individual defendants Timpone and Weinhaus, but otherwise denied the motion. The court also denied the motion of EFF, Public Citizen, Public Knowledge, and Citizen Media Law Project for permission to file an amici curiae brief.

02/11/09 - According to Alison Grant, a reporter for The Plain Dealer, the parties have settled - the settlement allows BlockShopper to continue linking to the Jones Day site, so long as it does not use embedded links.

02/13/09 - The parties filed a stipulation of dismissal pursuant to the settlement.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

User Submission Form

CMLP Notes: 

Updated 2/11/09 - VAF

Vegas Nightclub's Trademark Claims Against Blogger Likely a Bust

Privé Vegas, LLC and two of its owners sued Las Vegas-based blogger Michael Politz last week, alleging trademark infringement, dilution, and "disaparagement" under the Lanham Act, defamation, trade libel, tortious interference with business relations, and extortion.

Jurisdiction: 

Content Type: 

Subject Area: 

Privé Vegas, LLC v. Politz

Date: 

08/20/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Politz; Does 1 through IV; Roe Corporations XVI through XXX

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Nevada

Case Number: 

2:08-cv-01104

Legal Counsel: 

James E Whitmire, III - Santoro, Driggs, Walch, Kearney, Johnston & Thompson

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Privé Vegas, LLC and two of its owners sued Las Vegas-based blogger Michael Politz in August 2008, alleging trademark infringement, dilution, and "disaparagement" under the Lanham Act, defamation, trade libel, tortious interference with business relations, and extortion. The company operates a nightclub called "Privé" in the Planet Hollywood Casino in Las Vegas.  Politz operates the TheVegasEye.com blog, which covers goings-on in the Las Vegas entertainment and hospitality industries and provides restaurant reviews and reports on celebrity sightings and the like.

Prive logo According to the complaint, filed in federal district court in Nevada, Politz published a post on July 23, 2008 reporting on a lawsuit Privé brought against four former employees. In his post, Politz allegedly made false statements about the lawsuit and about management "shaking down" employees for tip money to be placed in a "Slush Fund." Cmplt. ¶ 20. At the top of his post, Politz included a graphic of  Privé's trademark (shown on the right).

In addition, on August 12, 2008, Politz allegedly posted on his blog an anonymous letter to the State of Nevada Gaming Control Board, which purported to be written by a former employee of Privé.  The letter made a number of allegedly defamatory statements, including that Privé forced employees to work late hours without pay, that management sold drugs through the nightclub, and that management allowed underaged girls to enter the club and served them liquor. Cmplt. ¶¶ 25, 28, 30, 32, 33. At the top of the post, Politz included a graphic of the Privé trademark surrounded by a red circle with a line through it:

Prive logo 2

The nightclub filed suit in federal court after Politz did not comply with a demand letter sent in August.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

Google Blogs

CMLP Notes: 

to-do: create entry for demand letter, see para 47 of complaint.  be careful when drafting this entry -- we don't want to repeat the allegations/defamatory statements unless they are referenced to the complaint, which may be kind of awkward in a correspondence threat.

Blogger Bullied Over Phrase "Branded Community"

Denise Howell at Lawgarithms points us in the direction of a recent legal threat that goes right to the intersection of trademark law and freedom of speech.

Content Type: 

Subject Area: 

i-legions v. Leggio

Date: 

07/24/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Jennifer Leggio

Type of Party: 

Organization

Type of Party: 

Individual

Publication Medium: 

Blog

Status: 

Pending

Disposition: 

Material Removed

Description: 

Rob Frankel of i-legions sent an email to tech blogger Jennifer Leggio of ZDNet Feeds complaining about a post by guest author Aaron Strout that used the term "branded communities." Frankel indicated that i-legions owns a federally registered trademark in the term "branded communities" and claimed that Leggio "should not be using the term at all without our express written consent."

Strout's July 23, 2008 post functioned as a "primer" on what steps online businesses should take in evaluating their "community engagement strategies."  It used the term "branded communities" to refer to an online community sponsored by a brand.  For example, it included the following text:

[A company can build or create] a “branded” community by either using open source technology like Drupal OR it can employ the services of a white label community provider like Awareness, Jive Software or Mzinga (the company I work for).

Frankel's July 24 email complained about this paragraph and asked Leggio to "refrain from using the phrase in any other current or future materials." Frankel's company i-legions sells advertising/branding services to online businesses and uses the slogan "Revenue Generating Branded Communities®" in its promotional materials.

In response to Frankel's email, Leggio changed the phrase "branded community" to "branded environment" in the post. She also sought the advice of another ZDNet blogger Denise Howell, who is an intellectual property attorney.  Howell put Leggio in contact with Marty Schwimmer of The Trademark Blog, who indicated to her that i-legion's trademark infringement claim was not strong because its registration was likely limited to use in connection with advertising services, and  Strout's use was "descriptive fair use of words in the English language." Leggio also conferred with ZDNet corporate parent CNET's legal team, which confirmed Schwimmer's assessment. 

Leggio posted all this information, including Frankel's email, on her blog, but she did not change the current version of the Strout's post, which still reads "branded environment" rather than "branded community."

Content Type: 

Subject Area: 

Threat Source: 

RSS

CMLP Notes: 

Lawgarithms blog via RSS

CUNY v. CUNY Law Blog

Date: 

04/08/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

CUNY Law Blog

Type of Party: 

Government
School

Type of Party: 

Organization

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Pending

Description: 

Note: This is a user-submitted description.

The removal of the school's logo and the addition of the disclaimer was not enough for CUNY's general counsel. In the letter they sent on 04/08/08, they said CUNY Law Blog has 10 days to change the name of the blog to something that "does not create the misimpression that it is an official communication of CUNY or the law school. Just as in the last letter, this one suggests "CUNY Law Student's Blog." If we do not change the name, the letter says they will take action to protect their trademark and report us to google.

To quote from the last post on this issue: "[I]n the spirit of community and transparency, we leave it up to the CUNY Law community at-large to decide the issue of any name change. To weigh in on the subject, please either (1) post a comment to this blog, (2) email cunylawblog@gmail.com, (3) stop in the hallway or email or leave a note in the mailboxes of student group leaders, student government members or CUNY Law Blog contributors, or (4) chime in on the new poll located at the bottom of the right column on this blog." In deciding to keep the name the same, we took into account both the poll results, which were quite close, and the 25 comments left on the Jane Davis post. Given the different results of the comments and poll, there seemed to be no clear right choice.

The poll and the comments seemed to be a wash, one in favor of changing the name and the other of keeping it. What ultimately tipped the balance was the input of those who took the time to comment. Half of the comments explicitly wanted to keep the name, and more than a quarter others seemed to be in favor of keeping the name.

Jurisdiction: 

Content Type: 

Subject Area: 

Threat Source: 

User Submission Form

Bosley Medical Institute v. Kremer

Date: 

11/28/2000

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Michael Steven Kremer

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court for the Northern District of Illinois; U.S. District Court for the Southern District of California; U.S. Court of Appeals for the Ninth Circuit

Case Number: 

1:01-cv-04388 (Ill. trial); 3:01-cv-01752 (Cal. trial); 04-55962 (appeals); 04-57059 (2nd appeals)

Legal Counsel: 

Paul Alan Levy (Public Citizen Litigation Group); Charles A Bird (Luce Forward Hamilton and Scripps)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (partial)
Settled (total)

Description: 

Bosley Medical Institute, a hair restoration company, sued Michael Kremer for federal trademark infringement, trademark dilution, unfair competition, and cybersquatting after Kremer created anti-Bosley "gripe sites" at bosleymedical.com and bosleymedicalviolations.com. Bosley also included state law claims for libel, trademark infringement, and unfair competition. According to Bosley's amended complaint, Kremer planned to "solicit money from Bosley in exchange for the domain name and Kremer agreeing not to publish the website."

After Bosley filed its complaint in federal court in Illinois, Kremer made a motion to transfer the case to California federal court, which the court granted. In California, Kremer argued that Bosley had not stated with sufficient specificity which statements he made were defamatory, and he moved to dismiss for failure to state a claim and for a protective order to prevent discovery until Bosley stated its claims more specifically. The court granted Kremer's motion for a protective order. Bosley and Kremer settled the libel claim.

Kremer then moved to dismiss the other claims for failure to state a claim, to strike the complaint under California's anti-SLAPP statute, and for partial summary judgment. Bosley moved for summary judgment on its claims of trademark infringement and trademark dilution.

The district court denied both of Bosley's motions, and granted all of Kremer's motions. It ruled that Bosley had failed to show that Kremer had made commercial use of its trademarks because Kremer's websites contained no paid advertising, sold no goods or services, and included disclaimers saying that they were "non-profit" and "for consumer information purposes only." The court concluded that the websites' "sole purpose [was] to provide critical content of Bosley and its services, and to inform the public about the varous government inquiries into Bosley's business practices."

Nor did Bosley show, the court wrote, that Kremer's website would cause confusion between Bosley's and Kremer's goods and services, as Kremer offered none. The court also granted summary judgment to Kremer on the claims of cybersquatting. Finally, the court found that Bosley's claims did impair Kremer's exercise of his right to free speech, and as a result, it granted Kremer's motion to strike under the state anti-SLAPP law, thereby making Kremer eligible to receive attorneys' fees.

Bosley appealed the ruling. The court of appeals affirmed the lower court's decision on the trademark claims, but reversed the lower court's decision on cybersquatting, writing that it was necessary for discovery to be completed before summary judgment for Kremer would be appropriate. The court of appeals also overturned the lower court's anti-SLAPP ruling, finding that Bosley's trademark claims did not show the bad faith necessary to merit striking under the anti-SLAPP statute.

Upon remand, Kremer moved to dismiss Bosley's state claims and for summary judgment. Kremer also filed an answer to Bosley's complaint. The court denied both of Kremer's motions. After the court ordered the parties to begin discovery proceedings, the parties settled, and the court dismissed the case.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

Available on Westlaw at 403 F.3d 672. There is some kind of crazy history of transferring the case between districts or somesuch. {MCS}

Priority: 

1-High

Novak v. Active Window Productions

Date: 

05/30/2001

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Active Window Productions, Inc.; Mark Rosenstein; Cynthia S. Powers; Dan Resler; Jared Weinberger; Sean Carney; Thomas Barr; John Doe; Mary Roe; Robert Hudson

Type of Party: 

Individual

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of New York

Case Number: 

2:01-cv-03566

Verdict or Settlement Amount: 

$4,150.00

Legal Counsel: 

Robert L. Folks, Cynthia A. Kouril (Robert L. Folks & Associates, LLP) (for Active Window Productions and Mark Rosenstein); Hilary B. Miller (for Dan Resler); Pro se (for Cynthia S. Powers)

Publication Medium: 

Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Material Removed
Settled (partial)

Description: 

Pet shop owner Robert Novak, operator of Petswarehouse.com, sued Active Window Productions ("AWP"), host of the Aquatic Plants Digest ("APD"), a forum and email list for aquatic plant gardeners and hobbyists, and several individuals who criticized Pets Warehouse.  Novak added further claims against the individuals after they organized to protest Novak's lawsuit.  Novak sued in New York federal court on claims of cybersquatting, defamation, trademark dilution and infringement, trade libel, tortious interference with business, false light, unfair competition, and intentional infliction of emotional distress.

According to court documents, Dan Resler, a computer scientist, posted a message in May 2001 that warned: "Thinking of buying plants from Pet Warehouse? Don't." He went on to detail his gripes about the company's customer service, based on what he said was a delayed shipment of plants he'd ordered.  Resler later followed up with this post amending his previous warning: "to clarify: Pet Warehouse OK, Pets Warehouse NOT." 

Other members of the list soon added their own complaints, including the following alleged statements recounted in the plaintiff's complaint:

  • [a]s a source for purchasing plants, they do not have a good reputation (Defendant Jared Weinberger - May 21, 2001)
  • But you don’t have to take my word as the last word on their horrible service. Feeling lucky? Go ahead - try them out yourselves. After all, it’s only your time and money, right? (Defendant Dan Resler - May 18, 2001)
  • They claim to fill 90% of the orders. Well I can tell everyone it’s more like 20%. Or less. If at all. (Defendant Thomas Barr - May 17, 2001)
  • Given the continual flow of negative comments about PetSwarehouse that I’ve read for nearly two years on this list, I’ve decided to add a warning (and figure this is better than simply removing them. (Defendant Weinberger - May 18, 2001)
  • Remember petSWEARhouse, buy their plants and you’ll be swearing! (May 22, 2001)
  • I believe they call that deceptive advertising. Or bait-and-switch. Take your pick. (Defendant Sean Carney - May 16, 2001)

After seeing the criticism, Novak filed suit against the posters for libel and defamation seeking damages of $1 million, and for intentional infliction of emotional distress seeking damages of $15 million.

The defendants began to organize against the lawsuit via online forums and the APD list, and sought donations to their legal defense fund.  In organizing and promoting their legal defense, the defendants referenced Pets Warehouse.  In response, Novak brought additional claims against the defendants, including trademark violations and business torts. 

As a result, several defendants settled with Novak in December 2001 and agreed to remove any posts or messages "concerning or referring to" Novak. According to the "stipulation of settlement" posted on the defendants' information site, Dan Resler also agreed to pay $4,150.

In 2007, Novak amended his complaint against AWP, AWP's editor Mark Rosenstein, and AWP poster Robert Hudson. AWP and  Mark Rosenstein answered, denying Novak's claims and invoking section 230 of the Communications Decency Act as granting them immunity from any defamation or infringement stemming from APD posters' comments. They also brought counterclaims against Novak for violations of New York Civil Rights Law.

Update:

8/7/2008 - Court ordered that a status conference will be held in Courtroom 820 of the Federal Courthouse in Central Islip on September 5, 2008 at 11:30 a.m 

9/19/2008 - Status conference held. Court ordered a pretrial conference for May 29, 2009.

Jurisdiction: 

Content Type: 

Subject Area: 

CMLP Notes: 

PACER doesn't have most of the documents from the case's first few years. Probably worth digging them up somehow. {MCS}

Priority: 

1-High

Nationwide Relocation Services v. Walker

Date: 

07/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Tim Walker; Consumers First Corp.; Sharon Bayolo; Farrah Leigh Wanner; Dorthy Mull; "Diane"; Does 1-150

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

U.S. District Court for the Southern District of Florida

Case Number: 

0:07-CV-60983

Legal Counsel: 

Angie A. Chen (for Walker and Consumers First Corp.); Joshua Aaron Payne (Geary & Payne) (for Walker and Consumers First Corp.); pro se (Bayolo)

Publication Medium: 

Forum
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Moving company Nationwide Relocation Services ("Nationwide") sued Tim Walker, Walker's company, Consumers First Corp., which runs the MovingScam.com website, and several contributors to the MovingScam.com forum after Walker and the other contributors criticized the company's services. According to the complaint, the website used the trademarks of Nationwide and other moving companies without permission and published statements indicating that Nationwide engaged in "scams," while at the same time trying to induce customers to purchase moving-related products and services from the site and its advertisers. Nationwide sued for false advertising, trademark infringement, unfair competition, defamation, and tortious interference with business relationships in Florida federal court.

Defendants Sharon Bayolo and Farrah Leigh Wanner each moved to dismiss, Bayolo for lack of jurisidiction and Wanner for failure to state a claim.  As a result, Nationwide amended its complaint, and the court denied the motions as moot. 

In October 2007, Walker and Consumers First moved to dismiss for improper venue, failure to state a claim, and lack of personal jurisdiction.  The court denied the motions, finding that Walker and Consumers First specifically targeted the Southern District of Florida in operation of the website, thereby establishing jurisdiction and venue, and that Nationwide's claims were sufficiently stated.

In April 2008, Nationwide amended its complaint again, and the defendants Walker, Consumer First, and Wanner filed an answer.

Update:

8/6/2008 - The parties settled the case.

Jurisdiction: 

Content Type: 

Subject Area: 

Three Angels Broadcasting v. Joy

Date: 

04/06/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Gailon Arthur Joy; Robert Pickle

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

U.S. District Court for the District of Massachusetts

Case Number: 

4:07-cv-40098

Legal Counsel: 

Pro se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

Three Angels Broadcasting Network ("3ABN"), a non-denominational Christian TV and radio ministry with ties to Seventh-Day Adventism, and Danny Lee Shelton, 3ABN's president and one of its founders, sued Gailon Arthur Joy and Robert Pickle for trademark infringement, trademark dilution, defamation, and tortious interference with business relations, after Joy and Pickle launched a website at save3abn.com (archived at save-3abn.com), which criticized Shelton and the ministry.

3ABN owns a registered trademark for "3ABN" and uses the mark in the domain names and titles of several websites, including its primary website, 3ABN.org.  Joy and Pickle, both of whom are Seventh-Day Adventists, launched their site to publicize their concerns about 3ABN and its management. According to the complaint, their website contained information "antithetical to 3ABN's message" and allegedly published false statements claiming that 3ABN and its president engaged in certain ethical, financial, administrative, and operational improprieties. In the lawsuit, 3ABN and Shelton claim that these statements are defamatory, and that use of "3ABN" in the website's title and domain name infringed and diluted the ministry's trademark rights.

As of July 2008, the parties were engaged in discovery.

Jurisdiction: 

Content Type: 

Subject Area: 

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