Thursday, April 21, 2011

Defamation Lawyer: Traverse Internet Law on Defamation. April 2011.

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.


BERKTREE, LLC and CHASE E. BEACH v. EGENERAL MEDICAL, INC. and PAUL MATTERA
EASTERN DISTRICT OF NORTH CAROLINA (WESTERN DIVISION)
5:11-CV-00136
FILED: 03/25/2011

This type of an attack against a business involves not only disparaging and defaming a competitor but also interweaving the name of the competitor into the website so that search engine results present the attack site when the competitor is searched. The benefit is that it not only defames the competitor but provides direct commercial benefit to the attacker. When you see a site such as this targeting your business the first action is to have the site taken off the web. Notify the domain name registrar, web host, transaction processor, search engines and any advertisers of the trademark infringement and attack the existence and availability of the website. If it comes down you may not have to spend a small fortune on litigating the case.

Berktree is a successful e-commerce business selling consumer products online. The Plaintiffs allege that the Defendants undertook extensive defamatory attacks ranging from filing false police reports alleging embezzlement and causing the founder’s arrest to filing a frivolous lawsuit. In addition, the Defendants acquired the domain name of the founder of Berktree and used the domain name to launch a website that defamed the Plaintiffs. For instance, the website claimed that the Plaintiffs were offering “unparalleled uneducated services and competitive high prices….” The website allegedly contains extensive additional defamatory and false claims. There is a “donate” button that is allegedly directed to the PayPal account of the Defendants and those visiting the site are asked to donate in an effort to help fight against database theft. The Plaintiff claims that there has been no such theft.

The lawsuit alleges unfair competition, misappropriation of a person’s name, defamation, and malicious prosecution. The Plaintiffs request that the Court award transfer of the infringing URL, permanent injunctive relief to prevent further defamation, compensatory damages, treble damages, punitive damages, reasonable attorneys’ fees and costs, prejudgment and post judgment interest, and other such relief the Court deems just and proper. Traverse Internet Law Cross-Reference Number 1484.


DENYSE MERULLO v. RICHARD L. GREER
DISTRICT OF NEW HAMPSHIRE (CONCORD)
1:11-CV-00116
FILED: 03/14/2011

This dispute has arisen simply because it appears that the Defendant purchased software and expected to have sole and exclusive use of the software but it had already been licensed before the sale to the Plaintiff. This is a business dispute that needs to be worked out among all of the parties based upon the contract of sale and the license agreements. Make sure you treat business disputes like business disputes and don’t start publishing attacks and potentially defamatory comments about third parties. Using a DMCA takedown notice, claiming that someone is a “pirate”, or publication of other types of comments or action can be considered defamation, particularly when it may be that the Defendant does not really own, on an exclusive basis, the right to use the software.

The Plaintiff operates a traffic exchange website used by Internet businesses to increase the number of visitors to their site. The Plaintiff licensed certain software she was using in her business and the Defendant also licensed that same software for use in his business. The problem arises because the Defendant apparently thought the license was a complete sale of all rights to use the software and started publicizing that the Plaintiff was illegally using a copy of the software the Defendant now perceived it owned outright. The Defendant then filed complaints with various third parties claiming copyright infringement and posted “security alerts” on the Internet according to the allegations of the Plaintiff.

The Plaintiff requests a declaratory judgment against the Defendant’s claims of copyright infringement and the right to use the software in question and alleges against the Defendant false designation or origin, unfair competition and false advertising, defamation, violation of the New Hampshire Consumer Protection Act, and tortious interference with contractual relations. The lawsuit requests injunctive relief against the Defendants, compensatory damages, punitive damages, treble damages, reimbursement of Plaintiff’s cost and fees, interest on compensatory damages, and any other relief the Court deems just. Traverse Internet Law Cross-Reference Number 1485.


CENOPLEX, INC. v. DAVID SHOR
WESTERN DISTRICT OF TEXAS (AUSTIN)
1:11-CV-00159
FILED: 03/1/2011

The Plaintiff in this case was a start-up that initially raised a half million dollars then subsequently raised $2 million in its second round of financing. Quality leadership is critical at the early stage. Recognize your start-up for what it is – a very high-risk business with an unusually high-rate of failure. Seven out of ten venture-backed businesses fail. Most high-quality executives don’t want a failure on their résumé. It is therefore very hard to recruit top executives at an early stage of your business. Be very careful in your interviewing and hiring process to make sure that you don’t have this kind of problem when an executive doesn’t live up to your expectations.

The Plaintiff terminated employment of the Defendant because of alleged incompetence, disruption of operations, and unprofessional behavior. The Defendant then created the website “screwedbycenoplex.com” which contained false and defamatory accusations and now is infringing the Plaintiff’s registered federal trademarks, counterfeiting the Plaintiff’s registered federal trademarks, falsely promoting an affiliation with the Plaintiff, and disclosing “insider information” about the Plaintiff’s technology, all allegedly for the purpose of perpetrating a smear campaign that threatens to compromise investor confidence in the Plaintiff, divert management attention, and impair the brand value of the business. This alleged smear campaign included not only launching the “screwed by” website but also launching a confusing similar website to that of the Plaintiff, the creation of a Facebook profile page, the creation of a LinkedIn profile page, the purchase of the Plaintiff’s trademarked name to key ads and other social media actions.

The lawsuit alleges infringement of a federally registered mark, counterfeiting of a federally registered mark, statutory infringement of mark, misappropriation of confidential information and trade secrets, and violation of the Texas Theft Liability Act. Plaintiff demands judgment against the Defendant for preliminary and permanent injunctive relief, an accounting of Defendant’s profits, compensatory damages, costs, attorneys’ fees, and such other relief the Court deems proper. Traverse Internet Law Cross-Reference Number 1486.

3 comments:

Paulie said...

Had a friend with a relatively successful online shoe shop, but some competitor of his got jealous and started spreading lies about how his products are fake and whatnot. He hired some guys with reputation management services and they finally tracked the attacker down. His business is slowly growing back to what it was, but sales really took a plunge during these attacks. He's thinking of suing the attacker now.

Ricky Greer said...

1:11-CV-00116
The Defendant in this case does indeed own the exclusive rights as the author of the software, with the copyright registration number TX 7-331-749 which was obtained by submitting the full unencrypted source code to the U.S. Copyright Office. The Plaintiff has a past history of copyright infringment that was previously resolved with a DMCA Takedown Notice. The false allegations are manufactured based on so-called belief, the copyright used is for a toolbar application written in a completely different programming language with only a screenshot submitted, and the license in question is for software purchased from another 3rd party known as PHPTrafficDX which included unlimited use for sites owned by the license holder only, with no resale rights. The software being sold be the Plaintiff is indeed the current TrafficDX software release which contains proprietary code that would not be in PHPTrafficDX.

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