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.
