Defamation Lawyer: Traverse Internet Law on Defamation. November, 2009.

Defamation Lawyer 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.

HEARTLAND AND PAYMENT SYSTEMS, INC. v. VERIFONE HOLDINGS, INC.
DISTRICT OF NEW JERSEY (TRENTON)
3:09-CV-05654
FILED: 11/06/2009

It is well advised prior to publishing derogatory or negative information about a competitor to have your communication and anticipated business process reviewed by legal counsel. It is very likely that VeriFone went through such a vetting process and is prepared to vindicate itself at a great expense. VeriFone can afford to do so. Most small or mid-size businesses can’t. Consider avoiding the gray area and keep in mind that the more aggressive your business tactics the more likely you will have to incur legal costs defending those very practices.

VeriFone is the single largest supplier of “point of sale” terminals in the United States. VeriFone manufactures “point of sale” terminals stocked by the Plaintiff and sells or licenses the use of the units to its customers nationwide. The Plaintiff alleges that VeriFone published false information in a press release that raised issues about Heartland’s reliability, falsely claimed that a pending patent dispute would result in “down time” for Heartland’s credit card processing customers, and offered a website containing the “Heartland” name in its URL requesting Heartland’s customers to enter personally identifiable information and account information in order to register online and stay up to date on the latest developments. The Plaintiff claims that VeriFone has repeated the false information from its press release in an open letter from VeriFone’s CEO.

The lawsuit claims trademark infringement, violation of the Anticybersquatting Protection Act, and false advertising. Plaintiff requests that the Defendant be preliminarily and permanently enjoined from using Heartland’s trademarks, operating the infringing website or telephone service, issuing any further press releases or letters discussing Heartland, contacting any persons who received the press release or open letter, or engaging in any other acts intended to harm Heartland’s business reputation or confuse customers. The prayer for relief includes requests for compensatory damages, statutory damages, and legal fees, interest and costs. Traverse Internet Law Cross-Reference Number 1379.


KING PHARMACEUTICALS, INC., ET AL. v. ZYMOGENETICS, INC., ET AL.
EASTERN DISTRICT OF TENNESSEE (GREENVILLE)
2:09-CV-00244
FILED: 11/02/2009

The Federal Trade Commission passed, effective December 1, 2009, a broad range of requirements for “product review” websites. Accepting the Plaintiffs’ claims as true, this case is a classic example of potentially misleading “comparative advertising” that is so prevalent on Internet product review sites. FDA approved drugs, and related issues such as false advertising, are governed by the food and drug administration’s policies, practices, regulations, and laws. It’s interesting to note that the Plaintiffs claim the Defendants have been falsely disparaging its product since 2005, the FDA has been involved in reprimanding the Defendants for their advertising, yet four years later no legal action was instituted by the FDA. Don’t expect the same passive approach by the Federal Trade Commission to non-compliance by affiliate marketers with the new economic disclosure and endorsement requirements.

The Plaintiffs and Defendants are competitors in the hemostatic modifier market who both sell topical treatments for bleeding ailments. Both King Pharmaceuticals and the Defendants have FDA approved products. Defendants are alleged to be publishing false statements claiming that its product is more safe than Plaintiffs’, Plaintiffs’ product causes death, and Plaintiffs’ product causes an increase in negative or adverse events.

The lawsuit alleges violation of 15 U.S.C § 1125(a), common law unfair competition, violations of the Tennessee Consumer Protection Act, tortious interference with existing and prospective economic relations, defamation, unjust enrichment, federal trademark infringement, federal unfair competition, false designation of origin and false description, common law trademark infringement, unfair competition, and violations of Tennessee’s Consumer Protection Act. The court has been requested to issue an injunction against the Defendants’ misconduct, an order for destruction of all deceptive materials, an order requiring corrective advertising, an order requiring the takedown of Defendants’ website and AdWords campaigns, and an award of compensatory damages, punitive damages, treble damages, attorneys’ fees and costs, and other relief that the court deems proper. Traverse Internet Law Cross-Reference Number 1378.

Defamation Lawyer: Traverse Internet Law on Defamation. October, 2009.

Defamation Lawyer 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.

FELINE INSTINCTS, LLC v. FELINE FUTURE CAT FOOD COMPANY, INC.
NORTHERN DISTRICT OF TEXAS (FORT WORTH)
4:09-CV-00644
FILED: 10/30/2009

I don’t know what it is about the pet store, pet food manufacturing, and animal rights industry but we get more calls about defamation within this industry than any other commercial segment of the marketplace. If you are in this industry, or are thinking about getting into this industry, or even considering handling some affiliate marketing for products within the pet and animal industry, be very cautious.

The Plaintiff and Defendant are competitors in the cat food manufacturing industry. The Defendant is alleged to have posted false statements on its website alleging the Plaintiff had stolen its product. Customers were being directed to the website containing the defamatory statements by cybersquatting on domain names including the Plaintiff’s trademark.

The Plaintiff has sued for federal trademark infringement, false designation of origin and unfair competition, federal trademark dilution, cybersquatting, common law trademark infringement an unfair competition, trademark dilution and injury to business reputation under state law, declaration of validity of Plaintiff’s “Feline Instincts” trademark, business disparagement/defamation, and tortious interference with prospective relations. Prayer for relief includes actual damages, Defendant’s profits, Plaintiff’s lost profits, statutory damages, treble damages, preliminary and permanent injunctive relief, recall from trade of all infringing products, transfer of infringing domain names to Plaintiff, an accounting of profits, compensatory damages, punitive damages, prejudgment and post-judgment interest, other relief that may be just and proper. Traverse Internet Law Cross-Reference Number 1374.


CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA v. JACQUES SERVIN, ET AL.DISTRICT OF COLUMBIA (WASHINGTON, DC)
1:09-CV-02014
FILED: 10/26/2009

This incident of impersonation and related publication of allegedly defamatory statements impugning the reputation and work of the Plaintiff was a highly publicized event in October and many television stations covered the fake events. This type of conduct provides a window into the motivation of those who attack others on the web. All too often such attacks are directly attributable to a commercial interest or financial motivation. If you are under attack or your product is being disparaged or unfairly “reviewed” consider the source as you evaluate your options for responding. Disparaging or defaming a service or product is not free speech, although it is defamation and could be trademark infringement.

The Chamber of Commerce of the United States is a not-for-profit business corporation representing businesses of all sizes on various issues presented to the executive, legislative and judicial branches of Government. The Defendants apparently operate a kind of “punked” enterprise in which they practice “identity correction”. The Defendants are alleged to pose as representatives of business or Government entities for the purpose of misrepresenting the entity’s position to the public. They are alleged to have done just that with the Chamber of Commerce. Just prior to the release of the Defendants’ movie, they conducted a fraudulent press conference at the prestigious “National Press Club” in Washington, DC in which one of the Defendants impersonated an executive of the Chamber, issued fraudulently prepared statements, referred the press to a website, and conducted a series of follow-up interviews promoting their movie release, according to the lawsuit.

The lawsuit alleges trademark infringement, unfair competition, trademark dilution, false advertising, cyberpiracy, unlawful trade practices, publication of injurious falsehood, and Prima Facie Tort. The Plaintiff requests preliminary and permanent injunctive relief, declaratory relief, an award of Defendants’ profits, an award of damages in an amount to be determined at trial, treble damages, attorneys’ fees and costs, as well as any further relief the court deems just and proper. Traverse Internet Law Cross-Reference Number 1375.


NEOSTEM, INC. v. DR. WANG TAIHUA
SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE)
1:09-CV-08967
FILED: 10/23/2009

Here is the problem with Dr. Taihua’s alleged misconduct. If you are doing due diligence on the Plaintiff in order to make a purchase decision or even a public or private grant evaluation and you run across a website from a physician making the same exact claims of inventions and discoveries and authority, who do you believe? One of the two is lying. Which one is it? All too often consumers are faced with contradictory information that just doesn’t make sense, so they abandon your business and go find an alternative vendor or supplier who does not appear to have some sort of credibility question. That is the problem with false and fraudulent claims and the intended impact on a business. For someone deciding to purchase on the web, the criticisms don’t have to seem reasonable or fair or just or balanced. They just have to exist. Because it is much easier for a consumer to move on to another choice and simply avoid the hassle of trying to figure out the truth. And your business will never hear from them to understand the consequences of this type of information existing on the web.

NeoStem is the leading biotechnology firm in the adult stem cell arena. The Defendant is a physician in China. The Defamation arises out of claims the Defendant is making as to ownership of the Plaintiff’s intellectual property. The doctor’s website lists extensive credentials that the Plaintiff claims are its own.

The lawsuit alleges breach of contract, tortious interference, conversion, federal trademark infringement, false advertising, unfair competition and false designation or origin, common law trademark and trade name infringement, deceptive acts and practices under New York state law, and cybersquatting. The Plaintiff has requested that the court enter preliminary and permanent injunctive relief, order the recall and removal of all infringing products or services, order the transfer of the infringing domain name to Plaintiff, cancellation of hosting services for other Defendant websites, an award of further relief elected by Plaintiff, and other further relief the Court deems just and proper. Traverse Internet Law Cross-Reference Number 1376.


JET WORKS AIR CENTER LLC v. DOMAIN BY PROXY, INC. AND UNKNOWN PARTIES
DISTRICT OF ARIZONA (PHOENIX)
2:09-CV-02105
FILED: 10/06/2009

This is a John Doe lawsuit and Domains by Proxy is named solely to get the information as to the identity of those owning the websites. Once names are obtained, a request for injunctive relief is submitted after service of process, and the Judge will often enter an order based upon the failure of the Defendants to respond that mandates the removal of these websites by the web host or redirection of the domain name by the registrar. This is the “work-around” that the Electronic Frontier Foundation, Public Citizen, the ACLU and other groups are almost helpless to prevent. If you are the victim of a sucks site there are many approaches that can be effective in addressing and resolving the problem.

Jet Works provide air craft maintenance services in a 100,000 square foot facility in Denton, Texas. Plaintiff has encountered two “sucks sites” allegedly defaming and disparaging its reputation. One sucks site claims that Jet Works is “operated entirely by monkeys”, includes a number or portraits of chimpanzees with the names of employees associated with each, and further includes statements portraying Jet Works as a racist organization.
The lawsuit alleges federal trademark infringement, violation of section 43(A) of the Lanham Act, injurious falsehood, and defamation. The Plaintiff has requested that the court enter temporary, preliminary, and permanent injunctive relief, transfer of domain names to Plaintiff, monetary damages including Defendant’s profits, treble damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1377.

Defamation Lawyer: Traverse Internet Law on Defamation. September, 2009.

Defamation Lawyer 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.


CHANNELADVISOR CORP. v. KERRI VAN VEENENDAAL
NORTHERN DISTRICT OF GEORGIA (ATLANTA)
1:09-CV-02702
FILED: 9/30/2009

Many companies issue laptops and do not allow any business to be conducted on other computers. There are numerous benefits to this approach. One such benefit is that upon termination of an employee the retrieval of the laptop is an effective retrieval of important company information. If you allow employees to retrieve, maintain, and store valuable trade secret information and even standard business contact information on their own computers the risk of misconduct increases substantially.

ChannelAdvisor is a Delaware corporation with customers and clients worldwide. It provides numerous products and services to assist its clients in diverse aspects of online business and e-commerce. The Defendant is a former disgruntled employee of the Plaintiff. On August 11 and 12, 2009, the Plaintiff alleges that the Defendant created and used multiple email accounts to send out false and defamatory messages to customers and clients of ChannelAdvisor in the United States and all around the world. The Defendant resides in Victoria, Australia. She is alleged to have improperly retained confidential and proprietary company information in the form of client and customer lists as well as contact information and used that information to target her defamatory email messages.

The Plaintiff has sued for libel per se, intentional interference with contract, intentional interference with business relations, misappropriation of confidential business information and trade secrets, violation of the Computer Fraud and Abuse Act, and false designation of origin under the Lanham Act. Prayer for relief includes preliminary and permanent injunctive relief, special and general damages to be proven at trial, punitive and exemplary damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1362.


NUTRAMEDICS, INC. v. BLACKSTONE NUTRITION, INC.
SOUTHERN DISTRICT OF FLORIDA (WEST PALM BEACH)
9:09-CV-81458
FILED: 9/30/2009

There is an entire chapter in “Google Bomb”, my new book, about these review sites themselves. The Federal Trade Commission has recently passed a new set of rules which more clearly define the obligations of parties promoting products or services to disclose economic interests. This is a huge and pervasive problem and if your company, products, or services are the subject of “product reviews” you should consider reviewing those sites for misconduct.

NutraMedics is a Florida corporation operating out of Palm Beach County, Florida. The company is involved in the online sale of various nutraceutical products. Defendants are alleged to have launched “product review” websites that contain false information, are fictitious and biased, and nothing more than unlawful competition by the Defendant to sell its own products. In addition, ads have been allegedly purchased by the Defendants with terms such as “warning” and “scam” prominently displayed in the ad when people are searching for various products of the Plaintiff. Those ads divert the traffic to the false “product review” sites.

The lawsuit alleges initial interest confusion under the Lanham Act, federal and common law trade libel, defamation per se, commercial disparagement, tortious interference with prospective business, and civil conspiracy. The Plaintiff requests preliminary and permanent injunctive relief as well as any further relief the court deems just and proper. Traverse Internet Law Cross-Reference Number 1363.


MERRILL LYNCH & CO., INC. v. MICHAEL LENNING, ET AL.
NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO)
3:09-CV-04220
FILED: 9/11/2009

In effect, Merrill Lynch is claiming that the Defendant impersonated a Merrill Lynch employee and his false attribution is business defamation. There are plenty of legal bases for dealing with a problem like this, and defamation is likely not the strongest argument in this case. It’s interesting to see the evolution of the definition of defamation moving ever so slowly from a requirement of the publication of an untrue factual statement to defamation based upon statements by implication. In other words, the law is very much a living and breathing thing and it evolves over time. The question any business will want to ask itself when faced with a potential impersonation situation, and there are plenty of these types of problems online today, is whether the business has been damaged. Then leave it up to the attorneys to figure out the legal angles of attack since most non-lawyers would not see this as a potential defamation situation.

Merrill Lynch is a Delaware corporation and leading global financial management and advisory company. Defendant Lenning is alleged to have registered the domain name “merrilllynchcareers.com”, created an account on CareerBuilder.com, and enticed applicants to enter into an alleged paid training program for a job at Merrill Lynch. All of the communications aimed at this “phishing” operation appear to be coming from Merrill Lynch.

The lawsuit alleges trademark infringement under section 32 of the Lanham Act, unfair competition, false designation of origin, and false representation under section 43 of the Lanham Act, fraud, business defamation, unfair business practices under California Business and Professions Code, and violation of the California Anti-Phishing Act of 2005. The Plaintiff has requested that the court enter preliminary and permanent injunctive relief, order the transfer of the infringing domain name to Plaintiff, and award actual damages, treble damages, statutory damages, punitive, and exemplary damages plus interest, and attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1364.


RESERVATROL PARTNERS LLC v. JON MAYNE AND DOES 1-10
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-06536
FILED: 9/09/2009

Once again a “product review” website is alleged to in reality be a competitor-funded attack mechanism. Considering the fact that there are thousands of these types of sites online it’s not surprising to see a couple of federal lawsuits each month. If your business is involved in cooperating with, condoning, or assisting these types of sites in any way your liability and legal exposure is very significant. Affiliates running “product review” websites marketing your products could also be creating liability and exposure for your business.

Plaintiff is the sole developer, manufacturer, and seller of Longevinex, the leading Resveratrol dietary supplement sold in the United States. The Defendant allegedly operates a product review and evaluation service that contains false and misleading statements about the Plaintiff’s products. The Defendant is alleged to be funded by competitors.

The lawsuit alleges libel, disparagement, trademark infringement and unfair competition under the Lanham Act, and unfair competition under California Business and Professions Code. The Plaintiff has requested that the court enter temporary, preliminary, and permanent injunctive relief, award compensatory damages, exemplary damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1365.

Defamation Lawyer:Traverse Internet Law on Defamation. August, 2009.

Defamation Lawyer 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.


NUTRAMEDICS, INC. v. ELIZABETH ARDEN d/b/a COMPLAINTS BOARD
SOUTHERN DISTRICT OF FLORIDA (WEST PALM BEACH)
9:09-CV-81216
FILED: 8/21/2009

Section 230 of the Communications Decency Act usually gives websites immunity. However, in this case, the Plaintiff is alleging that immunity will not apply to Complaints Board because it defames the Plaintiff by selecting ads that suggest fraud. In addition, Plaintiff alleges that the Defendant makes editing decisions by giving defamatory statements a more prominent position to be indexed by the search engines and is therefore editing and controlling content. This is an evolving area of law but keep in mind that if you are exerting influence over the content there is potential liability as a publisher for material posted by third parties.

Nutramedics is a Florida healthcare related institute. The Defendant, Complaints Board, is a website that carries and publishes complaints about businesses. The Plaintiff alleges that its products or services are being labeled “fraudulent” and the results are showing up at the top of Google and other search engines when products or services of the Plaintiff are searched. “Complaints Board” has been sued because it allegedly presents advertising that suggests credit card fraud services are necessary when dealing with the Plaintiff and that positive comments and statements are buried in the comment section and only the defamatory statements are programmed to be indexed and receive prominent attention.

The Plaintiff has sued for initial interest confusion under the Lanham Act, federal and common law trade libel, defamation, and commercial disparagement. Injunctive relief is requested addressing the alleged misconduct in addition to requests for any further relief the court deems just and proper. Traverse Internet Law Cross-Reference Number 1354.


THETANCO, INC. and TODD J. BECKMAN v. DIRTY WORLD ENTERTAINMENT, LLC and HOOMAN KARAMIAN
DISTRICT OF ARIZONA (PHOENIX)
2:09-CV-01743
FILED: 8/21/2009

If you are a website with 3rd party content and you are not editing the content you likely have blanket immunity. Once you make a promise to do something, like remove certain material, and you fail to do so, your immunity may be lost. Make sure that your moderators and administrators fully understand what they can, and cannot, do in the context of running a web 2.0 or user generated content website. You should have an operations manual addressing the exact issue of editing and removing content and an auditing program to assure compliance. This is a complex arena and one false move can prove to be costly to an unfathomable degree.

Tanco is a franchisor and operator of tanning salons. The Defendant runs a website by the domain name of “thedirty.com”, which professes to be “all about gossip and satire”. A series of postings on the site allege the Plaintiff and its principals were involved in illegal drug use, pedophilia, illegal business practices, insurance fraud, arson, and philandering. Plaintiff’s counsel demanded that the information be removed from the web and the Defendant advised that it was “in the process of removal”. The Defendant has allegedly failed to remove the defamatory content.

The lawsuit alleges federal trademark infringement, federal trademark dilution, common law infringement and dilution, and defamation. The Plaintiff requests preliminary and permanent injunctive relief, an accounting of profits, the removal of the defamatory posts, actual damages, consequential damages, exemplary damages, treble damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1355.


POWER EFFICIENCY CORPORATION v. RESOURCE ENERGY SYSTEMS TECHNOLOGIES, INC. and LEONARD S. BELLEZZA
DISTRICT OF NEVADA (LAS VEGAS)
2:09-CV-01468
FILED: 8/06/2009

You may have heard of “Astroturfing”, which is the practice of a company posting positive comments and reviews about its own products or services. This practice is false advertising. On the flip side is the issue of competitors posting false reviews and comments of a defamatory nature about a competitor. This happens all the time, and if the allegations in this lawsuit are true, this practice is simply another example of an already big problem becoming much bigger as the anonymity of the web creates an unaccountable environment in which misconduct cannot be traced back to the offender. As long as there is a perception thatone can get away with anything on the web, these types of attacks will proliferate. Of course, there are many ways to identify the party who hides behind the cloak of “anonymity” once litigation has begun.

PEC develops and markets advanced energy saving technologies for electric motors. The Defendant was recently formed and employs several former executives of the Plaintiff. The lawsuit alleges that the Defendants have engaged in a clandestine campaign intended to damage PEC’s business and reputation, lower the trading price of PEC’s shares, and make PEC and its products less attractive to potential investors and customers by posting defamatory comments numbering in the hundreds on the web.

The lawsuit alleges false advertising, misappropriation of trade secrets, defamation and libel, and tortious interference with prospective economic advantage. The Plaintiff has requested that the court enter preliminary and permanent injunctive relief and an order requiring the Defendant’s to produce all electronic devices capable of storing data for inspection, award compensatory, consequential, punitive, and exemplary damages, and attorneys’ fees, costs and expenses. Traverse Internet Law Cross-Reference Number 1356.

This concludes significant cases on defamation law for the month of August, 2009 from Traverse Internet Law, the Defamation Lawyer.

Defamation Lawyer: Traverse Internet Law on Defamation. July, 2009.

Defamation Lawyer 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.


JAMES R. CANNON AND MARINE PILE DRIVERS LLC v. EAST COAST MARINE PILE DRIVERS LLC AND FRANK E. LYONS, III
WESTERN DISTRICT OF LOUISIANA (SHREVEPORT)
5:09-CV-01189
FILED: 7/16/2009

“Astroturfing” occurs when a business goes out and acts like a satisfied customer to build up its reputation. On the other hand, when a competitor goes online and poses as a customer expressing false dissatisfaction, that is defamation and product disparagement, as well as false advertising. How do you as a business know whether complaints about your company are legitimate or contrived? That’s one of the big challenges of dealing with a world of anonymity, and a very good reason why the right to anonymous speech online needs to be revisited.

Both parties manufacture and design barges used for pile driving in marine areas. The Defendants are alleged to have published comments online to deter third persons from doing business with the Plaintiffs. The lawsuit alleges that the Defendants’ comments appeared as if they were legitimate dissatisfied customers of the Plaintiff and alleged product deficiencies, failure to support equipment, poor quality construction, and went on to allege that the Plaintiff had a reputation for making death threats and should be avoided at all costs.

The lawsuit alleges violations of the Lanham Act and Defamation. The Plaintiff requests the entry of a preliminary and permanent injunction prohibiting its competitor from disseminating false, deceptive, misleading, and/or defamatory statements about the Plaintiff or the Plaintiff’s product, an award of compensatory damages, costs and attorneys' fees, and pre-judgment interest. Traverse Internet Law Cross-Reference Number 1341.


SIREN, INC. AND GREEN MONSTER USA, LLC v. KYLE SCOFIELD
DISTRICT OF ARIZONA (PHOENIX)
2:09-CV-01444
FILED: 7/10/2009

This is the first time that I have heard of a “tantrum site”. “Sucks sites” are becoming all the rage and more often than not are commercial enterprises driven by financial motives. Google Bomb, the book, can be ordered today on Amazon and will be available in book stores by September 1, 2009. It has an entire chapter on these types of sites and needless to say if your business is targeted by a “sucks site” great care must be taken in dealing with the situation.

Siren is a national leader for residential and commercial security systems. The Defendant, Kyle Scofield, is a resident of Arizona who operates an alleged “tantrum site” at “sirensecuritysucks.com”. The Defendant filed a complaint with the Better Business Bureau and wanted $45 plus “interest and penalties” to resolve his consumer complaint. Siren alleges that when it approached the Defendant to resolve his dissatisfaction and offered to refund the cost of his security system and provide two free months of security monitoring, the Defendant demanded $13,000 to take down the “tantrum site”. Plaintiff alleges that there are defamatory statements on the website.

The lawsuit claims federal cyberpiracy in violation of the Lanham Act and the Anticybersquatting Protection Act, unfair competition, and injurious falsehood, and requests compensatory damages, punitive damages, statutory damages of $100,000 per domain name, attorneys’ fees, interest, and costs. Traverse Internet Law Cross-Reference Number 1342.


24 HOUR FITNESS USA, INC. v. RICK BEASLEY, ET AL.
WESTERN DISTRICT OF TEXAS (SAN ANTONIO)
5:09-CV-00537
FILED: 7/06/2009

There are all kinds of aggressive business practices being undertaken on the web today. This case illustrates the type of problem that requires a strong commitment to monitoring the web and everything that is said about your company. As an online business, you must also be prepared to protect your business from misconduct aimed at you.

24 Hour Fitness is a premier national chain of health and fitness clubs and one of the largest privately-held health and fitness chains in the world. The Plaintiff has attracted extensive attention by partnering with a number of fitness superstars including Andre Agassi, Lance Armstrong, Jackie Chan, Earvin “Magic” Johnson, Shaquille O’Neal, Yao Ming, and Derek Jeter. 24 Hour Fitness was the official fitness center sponsor for the U.S. Olympic team for the 2008 Olympic games in Beijing and has renewed its partnership with the United State Olympic Committee through the London 2012 Olympic Games. The Defendant is alleged to compete against the Plaintiff under the name “The Rock 24 Hour Fitness”, which is a chain of health clubs in Texas and Oklahoma. Plaintiff claims that the Defendant has published false and misleading statements about the Plaintiff’s business services.

The lawsuit alleges federal trademark infringement, federal false designation of origin and unfair competition, violation of the Anticybersquatting Consumer Protection Act, federal dilution, injury to business reputation and dilution, false and misleading statements under state common law, and unfair competition under state common law. The Plaintiff requests preliminary and permanent injunctive relief, an accounting of profits, transfer of the domain name to 24 Hour Fitness, compensatory damages, statutory damages, punitive damages, treble damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1343.


CLEARY BUILDING CORP. v. DAVID A. DAME
DISTRICT OF COLORADO (DENVER)
1:09-CV-01578
FILED: 7/02/2009

Just another example of a “sucks” website that has become all the rage to leverage real or fake dissatisfaction to gain an economic advantage.

Cleary Building is a family owned business founded in 1978 and is a leading manufacturer and builder of pre-engineered structures. The Defendant is a customer of Cleary Building who became dissatisfied. Dame then launched a website at “myclearybuilding.com”, which is alleged to have contained extensive false statements about the project and the work of the Plaintiff.

The Plaintiff has sued for cybersquatting, trademark dilution, trademark infringement, federal unfair competition, federal false advertising, common law trademark infringement, unfair and deceptive trade practices, defamation, trade disparagement, and breach of contract. A permanent injunction is requested addressing the alleged misconduct in addition to requests for statutory damages of $100,000 for cybersquatting, an award of compensatory and punitive damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1344.
This concludes signficant cases on defamation law for the month of July, 2009 from Traverse Internet Law, the Defamation Lawyer.

Defamation Lawyer:Traverse Internet Law Federal Court Report: June 2009 Defamation Lawsuits

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.

JK HARRIS & COMPANY, LLC v. DOMAINS BY PROXY, INC. AND JOHN DOE
DISTRICT OF SOUTH CAROLINA (CHARLESTON)
2:09-CV-01547
FILED: 6/11/2009

Another example of the use of defamation, or apparent defamation based upon the allegations, by a competitor for commercial purposes. The argument coming from the Defendants will likely be that the use is “fair use” and raise other free speech defenses. This is an arena of extremely involved and complex law and the crafting of solutions when faced with a problem like this requires expertise.

JK Harris is a company organized and existing under the laws of South Carolina. It is the nation’s largest tax representation company. The Defendant is unknown. The lawsuit alleges that the Defendant is running an ad on the MSN search engine with the text “JK Harris- A Scam?” The ad leads to a website that contains allegedly false information about JK Harris and directs the traffic to a competing tax preparation service.

The lawsuit alleges trademark infringement, unfair competition, false advertising, cybersquatting, trademark dilution, unfair trade practices, intentional interference with prospective contractual relations, common law trade disparagement (defamation), and common law defamation. The Plaintiff has requested that the court enter permanent injunctive relief, award compensatory damages, the transfer of the domain name, and award punitive damages, statutory damages, attorneys’ fees, costs and expenses, as well as restitution and the imposition of a constructive trust. Traverse Internet Law Cross-Reference Number 1333.

Defamation Lawyer:Traverse Internet Law Federal Court Report: May 2009 Defamation Lawsuits

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.

MENENDEZ AMERINO & CIA. LTDA v. BRAZIL CIGARS & TOBACCO LLC
SOUTHERN DISTRICT OF FLORIDA (MIAMI)
1:09-CV-21185
FILED: 05/1/2009

Be very careful when dealing with business relationships that have fallen apart since the business models and distribution relationships have already been established at often significant costs. It is often advisable to meet and define very clearly how a business relationship will end.

The Plaintiff is a Brazilian corporation engaged in the business of manufacturing, marketing, and selling cigars on a worldwide basis, including the United States. The Defendant is an importer and distributor of Brazilian cigars throughout the United States. There was a contractual relationship between the parties that fell apart. The Defendant is alleged to have disparaged the Plaintiff’s products with a cigar industry magazine.

The Plaintiff has sued on a number of claims including libel and slander and requests extensive monetary damages, injunctive relief, an award of attorneys’ fees, interest, and costs. Traverse Internet Law Cross-Reference Number 1324.

Defamation Lawyer:Traverse Internet Law Federal Court Report: April 2009 Defamation Lawsuits

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.

M.D. MANUFACTURING, INC. v. THINK VACUUMS, INC., ET AL.
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-02770
FILED: 4/21/2009

If the Plaintiff’s allegations are true, this is a wholesale high-jacking of a business that has been operating for almost fifty years through a calculated plan to misappropriate the trademark, copyright, and online identity of the Plaintiff and then claim that the Plaintiff no longer exists. This is a form of commercial identity theft. By implementing online alerts your business can obtain an early warning of this type of problem and nip it in the bud rather than allowing it to escalate to the point where it materially impacts the viability of your business.
The Plaintiff is a California corporation in the business of manufacturing, supplying, producing, marketing, distributing, and selling vacuum cleaners and related parts and accessories. The Defendant is a competitor and allegedly posted the statement that the Plaintiff was “no longer making central vacuums”. This information was publicized on the Internet in conjunction with the alleged misappropriation by the Defendants of extensive photographs, content, and other material from the Plaintiff’s website.

The lawsuit claims copyright infringement, unfair competition, false advertising, intentional interference with prospective economic advantage, libel, injurious falsehood, and trade libel. Plaintiff requests that all of the Defendants’ profits be held by a trustee appointed by the court for the benefit of the Plaintiff, that a complete accounting of all of Defendants’ profits be undertaken, and that the court award statutory damages, compensatory damages, punitive damages, legal fees and costs. Traverse Internet Law Cross-Reference Number 1314.


SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. v. ROBERT A. DELSMAN
NORTHERN DISTRICT OF CALIFORNIA (SAN JOSE)
5:09-CV-01468
FILED: 4/03/2009

You have to really read this lawsuit to get a feel for the extent of alleged misconduct by this Defendant. This is the type of attack your business is susceptible to on a daily basis. This type of situation is an all too common occurrence and must be managed very carefully to avoid a “mobosphere” attack from all regions of the world defending this individual’s right to “free speech”.
Sedgwick is a company that provides insurance claims management services for Fortune 500 companies. The Defendant was an employee of one of the Plaintiff’s clients, General Electric, and was unhappy with Sedgwick’s management of his claim for disability benefits filed against the plan serviced by Sedgwick. The Defendant has used copyrighted photographs of Sedgwick’s Chief Executive Officer and Chief Operation Officer on his website and blogs attacking the business, morphing those photographs into images of Adolph Hitler and Heinrich Himmler. The Defendant also unjustly accuses Sedgwick of engaging in criminal activity. In addition, the Defendant increased his attacks through what he himself described as “Operation Going Postcard”, which involves sending postcards through the U.S. Mail with the photographs of the CEO and COO of Sedgwick above captions reading “Wanted for Human Rights Violations” and other defamatory, false, and libelous claims. These postcards were sent to Sedgwick offices in California, Colorado, Indiana, Iowa, South Carolina, and Tennessee, to Sedgwick employees at their home addresses, to the home of Sedgwick’s CEO, to an outside insurance agency, to Sedgwick customers, and likely, according to the Plaintiff, to many others throughout the United States.

The lawsuit alleges trespass to channels, copyright infringement, interference with prospective economic advantage, trade libel, defamation and libel, and unfair competition. The court has been requested to issue an injunction against the Defendant’s misconduct, an award of statutory damages, punitive damages, attorneys’ fees and costs, and other relief that the court deems proper. Traverse Internet Law Cross-Reference Number 1315.


TIAN YI TONG INVESTMENTS LTD. v. AIR AUSTRAL
DISTRICT OF COLORADO (DENVER)
1:09-CV-00745
FILED: 4/02/2009

There is a difference between a “sucks” site and “gripe” site. “Sucks” sites often have economic or commercial motivation behind them, while a legitimate “gripe” site is motivated by the honest desire of the complainant to warn the public. In this case, there was a commercial use in the form of pay-per-click advertising or other commercial links to competitors hosted on the domain name. The fact that an “investment company” in Hong Kong acquired the domain name suggests, in and of itself, an economic motivation and not an underlying desire to protect the public through the dissemination of accurate information. This is a distinction that has not yet fully been recognized by the courts. Suffice it to say, anytime you are dealing with a “sucks” site or other derogatory website attacking your business, the first analysis is determining what the motivation of the owner of the site might be. There are very often commercial motivations that are not protected by free speech considerations in “sucks” sites, although in this instance the true motivation of the owner remains to be seen.

The Plaintiff is an investment company headquartered in Hong Kong. The Defendant is an airline organized under the laws of France. The Plaintiff lost a domain name dispute arbitration decision and the registrar of “airaustralsucks.com” was ordered to transfer the domain name to the airline. The “investment company” in Hong Kong has sued to set aside this decision.

The lawsuit requests that the court declare the Plaintiff’s registration and use of the domain name are lawful, and in effect overturn the domain name dispute decision, and award costs and reasonable expenses, including attorneys’ fees. Traverse Internet Law Cross-Reference Number 1312.

Defamation Lawyer:Traverse Internet Law Federal Court Report: March 2009 Defamation Lawsuits

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.


HANGSTERFER’S LABORATORIES, INC. v. SHAWN DUNN
DISTRICT OF NEW JERSEY (CAMDEN)
1:09-CV-01381
FILED: 3/26/2009

VIDEO PROFESSOR, INC. v. STRATEGIC BUSINESS COMMUNICATIONS, INC.
DISTRICT OF COLORADO (DENVER)
1:09-CV-00619
FILED: 3/20/2009

AVIATORS v. PAUL SANCHEZ, ET AL.
CENTRAL DISTRICT OF UTAH
2:09-CV-00222
FILED: 3/11/2009

UNITED SERVICES AUTOMOBILE ASSOCIATION v. ALL WEB LEADS, INC., ET AL.
WESTERN DISTRICT OF TEXAS (SAN ANTONIO)
5:09-CV-00165
FILED: 3/03/2009

REMOVE YOUR CONTENT, LLC v. JOHN DOES #1-20
NORTHERN DISTRICT OF TEXAS (DALLAS)
3:09-CV-00393
FILED: 3/02/2009

Whenever your business is faced with online attacks you can usually find the source by “following the money”. While first amendment and free speech proponents vigorously defend the right of netizens to voice their opinion, these organizations have virtually no experience in the commercial aspects of the web and simply do not understand the commercial nature of the use of a target’s name or the commercial benefit of publishing false and disparaging comments. Most, but not all, online attacks against businesses have some economic and commercial motivation, and these cases provide you with several examples.

Hangsterfer’s Laboratories, Inc. is a family owned and operated manufacturer of coolants and lubricants used in all sectors of the metal working industry. The Defendant sent an email to six of the Plaintiff’s employees and eighty-five of the Plaintiff’s customers and potential customers with a link to “www.hangsterfers.info”. The link leads to a website which contains false, misleading, malicious and disparaging statements about Hangsterfer’s principals, employees, and products. The Defendant then sent another email appearing to come from the Plaintiff’s business suggesting that the Plaintiff’s customers were switching to another website for products. The Defendant, a former salesman for the Plaintiff, then encouraged customers and prospective customers of Plaintiff, through additional alleged misconduct, to switch to one of the Plaintiff’s primary competitors. Traverse Internet Law Cross-Reference Number 1306.

Video Professor has been in the business of developing, marketing, and distributing for sale to retailers and the general public computer learning products including video tapes and CD-ROMs for over twenty years. The Defendant is running a “sponsored link” in the Google AdWords program that purports to be a review of the Video Professor products. When the user clicks on the ad, he is taken to a website that purports to present an unbiased report comparing the Plaintiff’s products to other products which are determined by the site operator to be superior to those of the Plaintiff. Video Professor alleges that this comparison is false and Defendant is simply promoting competing products. Traverse Internet Law Cross-Reference Number 1307.

Aviators provides a weekly event on Saturday nights in Salt Lake City, Utah. The Defendants took control over the Plaintiff’s MySpace® webpage and directed traffic to its own business. Defendants then allegedly posted a blog claiming that a principal of the Plaintiff was a racist and a homophobe. Traverse Internet Law Cross-Reference Number 1308.

USAA is a member owned insurance and financial services company that has been in business since 1922 with over 6.8 million members. Defendants sell or market competing insurance products and have published on their website false and misleading statements of fact regarding USAA and make these defamatory statements appear as if they are coming from USAA affiliated websites. Traverse Internet Law Cross-Reference Number 1309.

Remove Your Content, LLC was formed to help combat copyright infringement and piracy on the Internet. It provides various services to its clients including working with websites to remove stolen content and serving Digital Millennium Copyright Act notices. One of the Defendants is the owner of a hate blog, “eric green sucks”, that is replete with false and defamatory information, and calls the Plaintiff’s business a scam and alleges the individuals involved with the Plaintiff’s company are thieves. Traverse Internet Law Cross-Reference Number 1310.

Defamation Lawyer:Traverse Internet Law Federal Court Report: February 2009 Defamation Lawsuits

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.

THERMAL REMEDIATION SERVICES, INC. v. MCMILLAN-MCGEE CORP.
NORTHERN DISTRICT OF GEORGIA (ATLANTA)
1:09-CV-00537
FILED: 2/27/2009

We have another lawsuit being filed because of legal claims relating to intellectual property. When you assert that you have exclusive ownership and rights to a piece of intellectual property, you have created a “case in controversy” that can precipitate a lawsuit against you not only based upon a declaratory judgment but other grounds. Whether the assertion of a legal claim can constitute “defamation” is an issue that is up in the air.

The Plaintiff provides contaminated soil and groundwater remediation and related goods and services. The Defendant is a competitor of the Plaintiff. Defendant claims that they have exclusive rights to a patent for industry specific technology. Plaintiff claims that such a claim is false, inaccurate, and misleading and is defamatory.

The lawsuit alleges trademark infringement, violations of Georgia’s Uniform Deceptive Trade Practices Act, defamation and commercial disparagement, and tortious interference with business relations. Compensatory damages, punitive damages, expenses of litigation, and attorneys’ fees are requested in the prayer for relief, as well as preliminary and permanent injunctive relief. Traverse Internet Law Cross-Reference Number 1292.


PACIFICBASIN COMMUNICATIONS, LLC v. MODERN LUXURY MEDIA, LLC
DISTRICT OF HAWAII
1:09-CV-00081
FILED: 2/26/2009

This defamation claim results from “comparative advertising” in which the Defendant has attempted to distinguish its readership and loyalty of its ownership with the Plaintiff’s magazine. This is an effort to generate advertising dollars by convincing advertisers that Defendant’s magazine is better suited for their purposes. There is an entirely different set of rules for using “comparative advertising” that require much more due diligence and care with the wording and characterization. Keep in mind if you are going to be conducting comparative advertising you are not only putting forth your best foot, but by doing so it often results in your pointing out the deficiencies of your competitor’s product or service. The use of this type of a technique is inherently high risk.
The Plaintiff, PacificBasin Communications, LLC, is a Hawaii company and the owner and publisher of various magazines including “Honolulu” magazine. The Defendant is the owner and publisher of “Modern Luxury Hawaii” magazine. The Defendant’s chief executive officer sent an email which was comparing various aspects of the two magazines and allegedly making the point that the Defendant’s magazine was better suited for luxury advertisers. The Plaintiff’s have taken exception to this characterization.

The lawsuit alleges copyright infringement, unfair competition, defamation, and unfair and deceptive trade practices. The Plaintiff has moved for an injunction, the remedial communications to the recipients of the alleged defamatory comments, compensatory damages, punitive damages, statutory damages, and attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1293.


CERAMIC PERFORMANCE WORLDWIDE, LLC v. MOTOR WORKS, LLC, ET AL.
NORTHERN DISTRICT OF TEXAS (DALLAS)
3:09-CV-00344
FILED: 2/20/2009

This is a claim, in effect, for defamation, by alleging that the defamatory comments are going to interfere with the Plaintiff’s business relationships. Once again, I believe we are looking at a preemptory strike in litigation to avoid claims that appear to be asserted for intellectual property violations and unfair competition against the Plaintiff. This does raise the very real issue as to whether claiming copyright infringement in a public way is a defamatory statement or a mere claim based upon an opinion.

Plaintiff is engaged in the distribution and sales of metal treatment products for the automotive industry. The Defendant is also involved in the same industry. Plaintiff claims that it purchased products from the Defendant and that the Defendant has orally told third parties that Plaintiff has unlawfully copied Defendant’s website contents.

Plaintiff sued for a declaratory judgment that it was not infringing on copy of the Defendant’s copyright or competing unfairly as the Defendants had alleged. In addition, there is a count for tortious interference with “perspective” [sic] business relationships and request for an award of compensatory and punitive damages and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1294.

ASCENTIVE, LLC v. 1SHOPPINGCART.COM, ET AL.
DISTRICT OF OREGON (PORTLAND)
3:09-CV-00186
FILED: 2/13/2009

The defamation claim in this case is asserted against the owner of a forum based upon the contents of the forum. This is very fertile ground for litigation and many businesses do not realize how they must manage a forum or otherwise host third party generated content in order to maintain immunity under section 230 of the Communications Decency Act.
Ascentive is a Delaware corporation operating out of Philadelphia, Pennsylvania. The Defendant PCPitstop owns and operates websites online. PCPitstop’s website includes a forum on which moderators of the Defendant have posted false and defamatory statements regarding the Plaintiff’s software, including claims that the software is a “scam”. In addition, the Plaintiff claims that PCPitstop controls the statements posted on its forum, and that some of the false and defamatory statements were posted by its employees.

This lawsuit is primarily a trademark infringement suit but includes defamation claims against PCPitstop and various John Does. The prayer for relief requests an award of compensatory and punitive damages as well as the recovery of attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1288.

Defamation Lawyer:Traverse Internet Law Federal Court Report: January 2009 Defamation Lawsuits

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.


SOUTH BEACH SKIN CARE, INC. v. ROBERT MARKIN, ET AL.
SOUTHERN DISTRICT OF FLORIDA (MIAMI)
1:09-CV-20249
FILED: 1/29/2009

I’ve been blogging on this issue lately. “Review websites” are often run by competitors or affiliate marketers of competitors. The reviews on the sites are rarely objective. Often times there will be false and defamatory claims made about a product in order to sell a competing product, although only time will tell as to whether the Defendants were operating in this manner.
The Plaintiff is the owner of a website located at “www.lifecellskin.com”. It holds a copyright registration of the contents of the website. Defendants own various competing websites. All of these websites sell an anti-aging skincare product. Defendants are also alleged to own “www.bestwrinklecreamsreview.com”. Plaintiff alleges that Defendants operate this allegedly “neutral” website for customer reviews but the website is actually comprised of comments posted by the Defendants disparaging the Plaintiff’s product.

The lawsuit claims defamation and copyright infringement and requests preliminary and permanent injunctive relief, compensatory damages, attorneys’ fees and court costs. Traverse Internet Law Cross-Reference Number 1273.


ENAGIC USA, INC. AND ENAGIC CO. LTD. v. RICHARD CABADOS, ET AL.
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:09-CV-00101
FILED: 1/06/2009

I have included this as a defamation case because although it is brought as a trademark infringement and unfair competition matter this is in reality another example of product disparagement and online defamation. The technical trademark infringement laws are often used to address this type of alleged defamatory attack.

The Plaintiff is a company organized under the laws of Japan. The Defendant is an individual residing in California. Defendant is alleged to be operating two review sites that consistently contain reviews that find the Defendant’s water treatment devices superior to the Plaintiff’s. The websites claim the reviews are completely unbiased. The Plaintiff claims that the information on the site is intended to mislead and deceive the consuming public with false reviews. Additional search engine optimization techniques are being used to draw customers to this review site when searching for the Plaintiff, and Plaintiff alleges that these websites are nothing more than advertisements disguised as impartial reviews.

The Plaintiff has sued for federal trademark infringement, unfair competition, and state law unfair competition. A permanent injunction is requested addressing the alleged misconduct, requesting the award of compensatory and punitive damages, triple damages, reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1274.


TRI-MARKETING, INC. v. MAINSTREAM MARKETING SERVICES, INC., ET AL.
DISTRICT OF MINNESOTA
0:09-CV-00013
FILED: 1/06/2009

This is a classic, and too often repeated, response by an alleged copyright infringer. When caught, we will occasionally see an infringer not only claim that their site has been copied by your business, but actually issue a DMCA takedown notice against a website. This type of action is particularly problematic when one considers that the webhosting company is required to takedown your website for a minimum of 10 days upon the receipt of a DMCA takedown notice. This very powerful weapon can be used with absolute impunity by individuals spread all over the world, located in countries with whom the United States has absolutely no treaties and no goodwill. In other words, it can be used with no risk as a sword to attack competitors. Fortunately for the Plaintiff in this case, the Defendant does not appear to have gone that route. If the allegations are true, this is yet another example of defamatory statements being used to gain a business advantage.

Plaintiff is a Minnesota corporation engaged in the business of telemarketing services, including lead generation for the insurance industry. Extensive comparative information within the body of the lawsuit lays out claims of copyright infringement by the Defendant and an attempt to use its content to compete. Plaintiff notified the Defendant of its infringement of Plaintiff’s copyright and the Vice President of the Defendant began claiming that the Plaintiff had copied the Defendant’s website and not the other way around.

This lawsuit alleges copyright infringement and defamation and requests an award of compensatory damages, injunctive relief against further copying of Plaintiff’s website, an award of attorneys’ fees, and an award of other relief as the court deems proper and just. Traverse Internet Law Cross-Reference Number 1275.

Defamation Lawyer:Traverse Internet Law Federal Court Report: December 2008 Defamation Lawsuits

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.


MAGICJACK LP v. JOIPHONE LLC, ET AL.
SOUTHERN DISTRICT OF FLORIDA (WEST PALM BEACH)
9:08-CV-81570
FILED: 12/29/2008

This appears to be another example of the “comparison” websites run by affiliate marketers that not only use the trademark of a company to drive traffic but also falsely compare products and services. This is a relatively sophisticated method of generating significant revenue for an affiliate marketer and is just now getting high profile attention as an illegal practice.
The Plaintiff markets and sells a highly popular voiceover Internet protocol (VoIP). The device provides customers with several features, including a phone number and the ability to make and receive unlimited local and long distance calls over the Internet. The Defendant is alleged to be operating a website which contains false and misleading statements. According to the lawsuit, Defendants have created “nonexistent” deficiencies in the product or are alleging superior features of competing products and acting as affiliate marketers for competitors. Defendants are also alleged to be buying sponsored links on Google that warn against buying the Plaintiff’s product and direct people to its own “review” website which contains false and misleading statements.

Plaintiff claims false advertising, trademark infringement, violation of the Florida Deceptive and Unfair Trade Practices Act, and common law trademark infringement. The prayer for relief requests extensive declaratory judgments, the entry of injunctive relief attempting to prohibit future statements about the Plaintiff, the disgorgement of Defendants’ profits, compensatory damages, triple damages, attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1264.


SAMUEL A. HARDING v. JOHN L. GREEN
DISTRICT OF NEVADA (LAS VEGAS)
2:08-CV-01799
FILED: 12/22/2008

These types of sites almost always have some sort of a commercial motivation behind them. If you feel compelled to launch a “sucks” site, or the equivalent, the chance of getting sued is heightened if you are attacking a lawyer. It is unlikely this attorney will be able to obtain the “prior restraint” relief he is requesting with respect to future speech by the Defendant. As an Internet business, whether you are a web host, web developer, payment processor, or anyone else providing support to such a site, you have the absolute right to end the business relationship with such a site if your terms of use are drafted properly. Your business might very well have potential trademark infringement liability once you become aware of such a site that ends up being used for a commercial purpose. The best advice is to simply avoid any relationship with this type of a website, since there is always the possibility, and sometimes a likelihood, that you will have to retain legal counsel in some respect to deal with the problems that often arise.

The Plaintiff is an attorney with a state trademark registration in the name “attorney Sam Harding”. The Defendant registered the Internet domain name “attorneysamharding.com”. The site appears to be a “gripe site” and Plaintiff alleges that the content falsely alleges that the Plaintiff has committed illegal and criminal acts in the representation of his clients.

The first claim for relief is cybersquatting, the second claim is common law defamation, and the Plaintiff requests the entry of preliminary and permanent injunctive relief prohibiting the Defendant from using the Plaintiff’s name for any purpose, together with an award of compensatory, consequential, statutory and punitive damages. Traverse Internet Law Cross-Reference Number 1265.