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.
BAIDU, INC. AND BEIJING BAIDU NETCOM SCIENCE & TECHNOLOGY CO., LTD. v. REGISTER.COM, INC.
SOUTHERN DISTRICT OF NEW YORK (FOLEY SQUARE)
1:10-CV-00444
FILED: 1/19/2010
A big part of this case is Baidu’s claim that Register.com’s homepage advertised that customers can “speak to a knowledgeable service specialist anytime you have questions – 24/7”. When Baidu tried to contact Register.com, it claims that nobody answered the phone. For businesses everywhere, understand that you are not only going to be held responsible for what you promise in your “terms of use” but also what you promise on your website. It is important to make sure that the promises and representations in the content on your website are consistent with your “terms of use”. Even if you have the best contract in the world, it doesn’t mean that there isn’t going to be potential problems.
Baidu is the largest search engine in China and the third largest search engine service provider in the world. Register.com is a registrar of Internet domain names, including “baidu.com”, and provided Internet traffic routing services for the Plaintiff. Baidu claims that the database of Register.com was hacked and Internet traffic intended for “Baidu.com” was misdirected to a webpage depicting an Iranian flag and broken Star of David and proclaiming: “This site has been hacked by the Iranian Cyber Army”. The resulting hack interrupted Baidu.com’s service for approximately 5 hours and it did not resume full operation for 2 full days.
The lawsuit claims contributory trademark infringement, breach of contract, gross negligence/recklessness, tortious conversion, aiding and abetting tortious conversion, aiding and abetting trespass, and breach of duty bailment. Prayer for Relief includes requests for actual damages, treble damages, punitive damages, interest, costs and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1401.
PROTECTMARRIAGE.COM – YES ON 8 v. COURAGE CAMPAIGN AND COURAGE CAMPAIGN INSTITUTE
EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO)
2:10-CV-00132
FILED: 1/19/2010
This is just another example of when the use of a trademark for raising funds or generating advertising revenue often forecloses the defense of “fair use” and creates trademark infringement liability. This is a very hot area for attention and as the use of trademarks becomes more fully understood by trademark holders expect to see a continued heightened level of litigation against sites that are being used for some commercial purpose. Generally speaking, it doesn’t make any difference that “most” of a website’s usage of a trademark is non-commercial. Any commercial use will often foreclose the “fair use” justification and defense.
Plaintiff’s trademark is being used on a website to promote a serious discussion on a trial of national importance involving the gay marriage dispute in California. The Plaintiff claims that the Defendants are also using the infringing logo in conjunction with seeking public contributions to support the efforts of non-traditional marriage support proponents.
The lawsuit claims false designation or origin, common law trademark infringement, and unfair competition. Plaintiff requests preliminary and permanent injunctive relief, an accounting of profits, an order requiring Defendants to recall any products in violation of the injunctive relief, deactivation of all websites displaying the infringing logo, punitive and exemplary damages, attorneys’ fees and costs and indemnification of Plaintiff for any claims brought forth due to any confusion of association between the Plaintiff and Defendant. Traverse Internet Law Cross-Reference Number 1400.
DICK BLICK HOLDINGS INC. v UTRECHT MANUFACTURING CORPORATION
NORTHERN DISTRICT OF ILLINOIS (CHICAGO)
1:10-CV-00352
FILED: 1/19/2010
These types of lawsuits continue to be filed on a regular basis. Don’t key your ads off of a trademark of a competitor. Just about all of the courts are finding that this use is trademark infringement under the “initial interest confusion” doctrine.
Dick Blick is a family owned business and premier art supply source for professional artists, students, and teachers. The Defendant is a competitor. Dick Blick claims that the Defendant is keying its Google AdWords advertisements off of its trademark.
The lawsuit claims trademark infringement, false designation or origin, deceptive trade practices, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, and common law unfair competition. The plaintiff requests preliminary and permanent injunctive relief, an accounting of profits, actual damages, costs, interest, and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1399.
No comments:
Post a Comment