Traverse Internet Law Disclaimer
The facts are unproven allegations of the Plaintiff and all commentary is based upon the allegations, the truthfulness and accuracy of which are likely in dispute.
USA HERBALS, LLC, ET AL. v. SYBERVISION, INC. ET AL.
SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE)
1:08-CV-07571
FILED: 8/27/2008
“Review” sites run by affiliate marketers or competing products fall into the category of “comparative advertising”. Free speech does not protect much of the content of these sites since the motivation is commercial and economic in nature. Consequently, the false advertising laws and related causes of action flowing from the falsity of claims often provides a much stronger basis for dealing with the problem. This area is primed for a lot of legal action. Don’t allow affiliate marketers or your in-house marketing staff do run these types of sites reviewing a product or service in which the owner of the site has an economic interest.
The Plaintiff develops and markets a variety of herbal, natural health and wellness products. Defendants are alleged to have launched websites that are touted by the Defendants as informative and unbiased “product reviews”. Plaintiff alleges that the “reviews” are fake, are intended to disparage its products and cause consumers to buy products being sold by the Defendants, which almost always receive very high ratings. There are also allegations of bidding on trademark key terms owned by the Plaintiff.
The lawsuit counts include copyright infringement, false advertising, trademark infringement and false designation, injurious falsehood, false and deceptive trade practices, state false advertising, defamation, tortuous interference with prospective business, common law unfair competition, common law trademark infringement, and civil conspiracy. The Plaintiff requests the entry of injunctive relief and compensatory and punitive damages and attorney’s fees and costs. Traverse Internet Law Cross-Reference Number 1210.
JOHN CAFIERO v. DOUG CUSTER a/k/a DOUG EVIL
WESTERN DSITRICT OF PENNSYLVANIA (JOHNSTOWN)
3:08-CV-00202
FILED: 8/14/2008
The Digital Millennium Copy Act requires that a website pull down infringing content upon the receipt of a “DMCA notification”. While it is a bit ambiguous, the law requires the content to be down for ten days, during which a “counter-notification” can be filed. The counter-notification is an affidavit, signed under oath and under penalties of perjury. And, since the DMCA notice should have taken care of the content for ten days, a counter-notification could be viewed simply as an invitation to file another DMCA takedown notice if you are on solid footing. Little known fact: There is no limitation as to how many DMCA takedown notices you can serve on a web host.
Beginning in 2005 the Defendant launched an unprovoked attack on Mr. Cafiero’s personal and professional credibility by posting on the Internet numerous false, harassing and defamatory statements about Mr. Cafiero. The Plaintiff is a successful artist, musician, producer, director and businessman in the entertainment industry. Mr. Cafiero has directed films and videos that have ranked at the top of the Billboard charts and received gold and platinum certification from the Recording Industry Association of America. Mr. Cafiero presently manages the Rock and Roll Hall of Fame band “The Ramones”. Defendant allegedly stole an animated video owned by Mr. Cafiero and placed it on YouTube.com. The Defendant then laid claim to ownership of the video. When the Plaintiff served a DMCA takedown notice on YouTube the Defendant filed a counter-notification claiming that the Plaintiff had committed perjury and was not the owner of the video. Defendant then is alleged to have launched a blog attacking various business interests of the Plaintiff through the publication of false and defamatory accusations relating to theft, misappropriation, stealing and lying.
The Plaintiff sued the Defendant for copyright infringement, violation of the Digital Millennium Copyright Act/perjury, defamation, and false light. The Plaintiff is requesting the entry of permanent injunction from “defaming or otherwise disparaging Plaintiff John Cafiero”, damages sustained, statutory damages, triple damages, and costs and attorney’s fees. Traverse Internet Law Cross-Reference Number 1211.
OLD TIME POTTERY, INC. v. RICHARD K. BEDSOLE, ET AL.
MIDDLE DISTRICT OF TENNESSEE (NASHVILLE)
3:08-CV-00760
FILED: 8/07/2008
The allegations in this case set forth a well organized pattern of mischief making. Indeed, the mischief goes far beyond creating problems for a couple of the stores in this retail chain. In fact, if these allegations are true the Defendants appear to be operating anonymously but, once again, it becomes readily apparent that the web is not as anonymous as many think it is.
The Plaintiff, Old Time Pottery, Inc., sued the Defendants and alleged that they published a “going out of business” announcement on “Craigslist”. Plaintiff continues to allege that the Defendants published numerous other similar or identical postings about the Plaintiff’s various stores including a post on Wikipedia questioning its financial legitimacy.
The Plaintiff has sued for trademark infringement, common law unfair competition, state consumer protection act violations, intentional interference with business relationships, defamation, and telephone consumer protection act violations. The prayer for relief includes a request for the entry of a preliminary and permanent injunction against the Defendants which will probably result in “prior restraint” constitutional challenges, awards of monetary damages tripled by state statute, as well as other statutory damages, award of attorney’s fee, punitive damages, costs and further relief. Traverse Internet Law Cross-Reference Number 1212.
