Archive for the ‘lawsuit’ Category
Lawsuit over FACI.com is about more than just a single domain name.
In April I wrote about how a WIPO panel “stole” FACI.com from BuyDomains (NameMedia) in a faulty UDRP decision. I also mentioned that I hoped BuyDomains would turn to the courts to over the issue.
On Friday George Kirikos noticed that the company did indeed turn to the courts, filing a lawsuit in Massachusetts. The suit is fairly bread-and-butter for declaratory and injunctive relief.
NameMedia doesn’t always challenge adverse UDRP decisions in court. But filing this suit was a smart move. Here’s why.
It can keep the domain
This one is kind of obvious. By filing the lawsuit the UDRP will be stayed and NameMedia can keep the domain pending the outcome of the suit.
I’m not sure how much the company would have sold this domain for. Odds are it will spend more on the lawsuit than the domain is worth to it. But…
Ward off future UDRPs
The biggest reason to file a case like this is to put other potential complainants on notice: you’ll fight to protect your property.
Tucows has sent this message loud and clear. If you file a UDRP against the company they will take you to court. In Ontario, no less. It amazes me that some companies still file UDRPs against Tucows’ surnames portfolio. It’s a waste of money. If you win the UDRP you’ll find yourself on the other end of a lawsuit. I guess some complainants still don’t know how to use Google to find the many stories about Tucows doing this.
Have a cleaner image
UDRP losses can be used against you in future UDRP cases. If NameMedia wins this lawsuit, then any future complainant that cites the FACI.com loss will be greeted with a response about how that loss didn’t stick.
There’s also the issue of retroactive penalties for UDRP losses. ICANN’s guidebook for new top level domains labels anyone who has three “final” adverse cybersquatting rulings within a specified period of time as a bad apple. They (technically) can’t apply for new TLDs. Who knows when another retroactive penalty will be slapped on domain name owners?
© DomainNameWire.com 2011.
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Trying to get a domain name that existed before your trademark.
I’m a big supporter of intellectual property rights. Unfortunately I’m stuck writing more often about lawyers and companies that overstep their bounds.
The latest case: Smart Tax Holdings, LLC. The company filed a federal lawsuit (pdf) against Marchex for the domain name SmartTax.com.
The plaintiff started using the name “Smart Tax” in 2006 and filed a trademark on it. The trademark was granted in November 2008.
SmartTax.com was originally registered in 2000. It was part of the Ultimate Search portfolio later acquired by Marchex.
So Marchex has owned the domain name since well before Smart Tax Holdings, LLC even started using the Smart Tax term. Yet its lawyer has the gall to write this:
Defendant has not used Plaintiff’s mark coincidentally, but rather chose to associate Plaintiff’s mark with its own website for the sole purpose of unfairly steering traffic thereto.
How can you suggest that a company is “unfairly steering traffic” to a domain name it owned many years before you existed?
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Domainer with parked domain name ensnared in lawsuit.
Imagine you’re a domain investor, just going along and buying domain names and parking them like everyone else. You know you may get hit with a cease & desist every once in a while from an aggressive trademark lawyer. But that’s about it.
But then one day you find yourself named in a massive apparel counterfeiting ring.
That’s what happened to VL Raymer. Raymer owns the domain name Primp.com and has owned it since 1998, she says. In May this year, Industry Concept Holdings Inc. and Primp Inc filed a lawsuit against Raymer and at least 10 other parties on a number of charges related to counterfeiting Primp goods. According to the suit (originally filed under seal):
13. Plaintiffs are informed and believe and thereupon allege that at all times relevant hereto defendant VL RAYMER is based at P.O. Box 1118 Gilroy, CA 95021 and has advertised, distributed, offered for sale, and sold merchandise wrongfully bearing counterfeits and infringements of Primp’s Primp Trademarks and Copyrighted Works on primp.com in this judicial district and the State of California.
A look at historical thumbnails for Primp.com shows nothing but parked pages.
Further perplexing Raymer was this statement in the original lawsuit:
Upon information and belief, Elgort, Lorber, Montoya, Payne, Garcia, Pacific Apparel, LLC, Saenz, Hautelook, Marquette Commercial Finance and VL Raymer (collectively “Defendants”) are all related to each other.
Raymer says she has no idea who these people and companies are.
It gets more interesting. The original suit states:
Primp’s Primp trademark was distinctive at the time the infringing domain names itsprimp.com and primp.com were registered, and was, and is protected by the Lanham Act, 15 U.S.C. § 1125.
But Raymer says she was the original 1998 registrant of Primp.com, which is five years before the “first use in commerce” of the Primp trademark in 2003. In the Memorandum of Points and Authorities, it states that Raymer registered Primp.com “to facilitate the counterfeiting of the Primp clothing”, which is also curious if she registered the domain many years before Primp was around.
The plaintiffs have since filed an amended complaint. It appears to keep Raymer in the defendant list, not mention her location and charge upfront, but mention her again in the ACPA claim.
A case of mistakenly being added to a counterfeiting ring?
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Seller of white iPhones sued.
Apple has sued the owner of WhiteiPhone4Now.com (as well as the domain name itself), but then filed to dismiss the case on the same day (pdf).
However, the dismissal is “without prejudice”, meaning it can be refiled. It’s possible Apple was already in settlement talks with the owner or is refiling the case elsewhere.
Apple alleges the owner used the site to sell conversion kits to make the traditionally black iPhone white.
The full conversion kit including front and back panels sold for a whopping $279, which means customers were certainly concerned with their status. (Apple plans to sell white iPhones in the future.)
According to Apple, the domain owner knew he was selling a product emblazoned with the Apple logo but not authorized by Apple.
He stopped using the domain name last Fall when Apple contacted him. The domain is now a parked page.
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NYC socialite struggles to control domain names.
New York real estate developer and socialite Janna Bullock has filed another cybersquatting lawsuit to recover domain names she says are similar to her name. Bullock filed the case against BullockJanna.com and Bullock-Janna.com in U.S. District Court, Eastern District of Virginia. Her official web site is JannaBullock.com.
According to the complaint (pdf), Bullock brought a similar action against several domain names in May. The court granted summary judgment and ordered the domains transferred to Bullock. The two domain names at issue in the new complaint were registered shortly after the court ordered the previous domains transferred. Which means this could be a long game of whack-a-mole for Bullock, and she might consider going on the offensive to register similar domain names.
Bullock is a rags-to-riches story, moving from nanny to real estate mogul. But earlier this year the socialist became ensnared in a Russian scandal.
The sites appear to target the scandal, linking to the latest updates and news. The suit alleges that the domains currently at issue are made to look like Bullock’s official web site. Both sites are down at the time of writing, but a cache is available.
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Microsoft goes after Bing cybersquatters.
Microsoft has filed a lawsuit (pdf) against a California man and several John Does over their registration of domain names containing the “Bing” mark. The suit lists 21 allegedly infringing domain names ranging from aolbing.com to BingPornTube.com to Bing-Search.com.
Microsoft says that over 1,500 domain names containing “bing” were registered each month in the two months following the announcement of its search engine name.
The company is asking the court to hand over the domain names, the defendants to pay legal fees and damages, as well as $100,000 in statutory damages under the Anti-Cybersquatting Protection Act.
My guess is that Davies is a small-time cybersquatter who doesn’t know what he’s doing, given that the domain names are mostly parked with GoDaddy’s “free” parking for which he doesn’t earn click-through revenue. Every time a large company announces a new product there are people who register related domain names thinking they’re going to hit pay dirt. They aren’t aware of the law.
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Battle begins to replace board at Live Current Media.
The former CEO of what is now Live Current Media has launched a proxy battle to regain control of the company’s Board of Directors.
David Jeffs was CEO of the company from 2002 to 2007 when he hired Geoffrey Hampson to replace him. According to the proxy solicitation:
In March 2010, Mr. Jeffs received from a shareholder of the Company a news release issued by Corelink Data Centers LLC, a Delaware company that provides data technologies and web-hosting services on the Internet. The news release described Mr. Hampson as the CEO and Corelink’s success in establishing data centers in Las Vegas, Phoenix, Seattle and Chicago. The news release went on to say that, in conjunction with Corelink’s establishment of its new headquarters in Chicago, Mr. Hampson would move to Chicago at the end of March 2010. This news release suggested to Mr. Jeffs that Mr. Hampson was working for another company. He reviewed Corelink’s website and talked to others familiar with the Company to find out what he could about Mr. Hampson’s relationship to Corelink. He discovered that Mr. Hampson formed Corelink in August 2007, fewer than three months after becoming the Company’s CEO, became Corelink’s CEO in November 2007, and had established Corelink’s four data centers in the two and a half years from Corelink’s formation in August 2007 to the date of its news release in February 2010.
The proxy solicitation mentions several other grievances:
- Committed to paying bonuses of $700,000 and an annual salary of $275,000 and other benefits to the president hired to replace Mr. Jeffs on October 1, 2007, who resigned from the Company as of January 31, 2009 after serving only 16 months of his five-year contract
- Hired his common-law spouse—who appears to have a lot of fashion experience but no Internet retail experience—to run Perfume.com
-With the approval of the Current Board, lowered the exercise prices of the options granted to the members of the Current Board and other employees from between $2.00 and $2.50 to 65¢
- Filed unreliable financial statements for the periods ended September 30, 2008, December 31, 2008 and March 31, 2009 and had to file restated financial statements
- In March 2008, acquired an early-stage start-up business for $5 million that had no revenues and was written off the books by the end of 2009 after the Company determined by the end of June 2009 that the auction software acquired through the acquisition was impaired (Auctomatic)
Hampson and the board has already been sued over similar issues.
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Company got trademark for “PLA”, sues to get domain name.
If you have a short list of “nice guys” in the domain name industry, Nat Cohen of Telepathy certainly shows up near the top.
A company called Project Leadership Associates Inc. is now trying to sue Telepathy to get the domain name PLA.com. Those are the company’s initials, and it says it has a registered trademark.
PLA tried to negotiate with Cohen to buy the domain, and according to PLA’s court filing it looks like they made some progress. But then PLA decided to sue.
PLA’s claims are a joke. Among them, it suggests that Cohen should have told them that he had “just recently” purchased the domain name (a few years ago):
On information and belief Nate (sic) Cohen either by intention or by omission failed to inform [PLA representative] that Telepathy had just recently purchased the domain name PLA.com from another party in late 2007 or 2008 for an undisclosed amount.
So?
PLA says Telepathy is violating its trademark by offering the domain name for sale through Moniker. It says people mistakenly go to PLA.com when they’re looking for the company’s web site. Here’s another gem from the lawsuit (pdf):
The current commercial offer for sale on the Moniker’s.com (sic) website for the pla.com domain name will actively divert traffic away from PLA’s authorized websites if a third party purchases the domain name using the PLA mark in its domain name and metatags of the pla.com domain name.
I guess this is saying that someone could infringe on PLA’s mark if it bought the domain name and competed with what PLA offers.
It’s no wonder the company wants the domain name. Right now it uses ProjectLeadership.net. It doesn’t even have a .com domain name.
Here’s another thing about Cohen (other than being a nice guy) that I know: he doesn’t back down. Especially when someone makes a ridiculous claim.
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NBC wants lawsuit over domain name dismissed.
NBC Universal has filed a motion to dismiss (pdf) a lawsuit filed by DONE! Ventures over DONE!’s failed purchase of Women.com. DONE! claims it had an agreement to buy women.com and women.net from NBC, and that NBC later backed out of the deal that was brokered by Sedo.
NBC’s first line of defense is that it hadn’t reached an agreement with DONE! because communications only referred to Women.com, not .net — so key terms hadn’t been agreed to:
The Complaint makes clear on its face that no binding contract was formed because there was no meeting of the minds on a material term: the property for sale. Plaintiff alleges that it made a $1 million offer for two domain names: women.com and women.net. Yet, the correspondence from the NBC Defendants’ broker, which Plaintiff attaches to the Complaint and specifically incorporates by reference, states that the NBC Defendants would accept $1 million for women.com alone. Thus, the parties never agreed on what could be purchased for the $1 million price.
Its second line of defense is that Sedo told DONE! it would need to complete a bill of sale with NBC before completing the transaction. NBC argues that no bill of sale was completed, so there was no breach of contract:
Further, the parties’ correspondence states that the NBC Defendants required specified information about the Plaintiff and the completion of a bill of sale before a deal could be consummated. As Plaintiff admits in the Complaint, no bill of sale was ever drafted or signed. Therefore, even if the parties had reached a meeting of the minds about what property was for sale and at what price, which they did not, at most, there was an unenforceable agreement to agree. Plaintiffs breach of contract claim thus fails as a matter of law.
If the court doesn’t buy either of these arguments, NBC wants it to move the case from California to New York.
So here’s the (literally) million dollar question: if DONE! would accept just the .com domain for $1 million, would NBC go through with it?
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Shunned by UDRP, former domain owner takes his case to court.
After losing a UDRP case for the domain name ChicagoRestaurant.com, Chicago Restaurant & Entertainment Guide, Inc., has filed an in rem lawsuit against the domain name alleging cybersquatting.
Before you yell “that’s a generic!”, you should know that this domain name was allegedly stolen. The plaintiff had registered the domain and kept the whois email in the name of a technology service provider. That service provider went out of business and let its domain name expire. Then it appears someone registered the domain of the service provider, set up an email address that was the same as listed in whois, and transferred the domain name.
The lawsuit is available here (pdf). (Note to the plaintiff’s lawyers: Go Daddy isn’t the registry for .com as noted in the suit.)
Until it’s resolved, you’ll find the owner at DiningChicago.com.
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