Wednesday, January 26, 2011

Traverse Internet Law Federal Court Report: September 2010 Trademark Infringement Cases

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.

FILED: 9/20/2010

If you are an affiliate marketer you must abide by the contract of the advertiser. If nothing at all is said about the use of the advertiser’s trademark name in your advertising then it is likely you are permitted to use the trademark through an implied license theory until you are told that you cannot use it. Resellers have certain rights to use a trademark in describing a product, but as an affiliate marketer you are not a reseller and are governed strictly by the expressed or implied license existing between yourself and the advertiser.

Plaintiff is engaged in the retail sales of contact lenses, including marketing and selling contact lenses via the Internet. Defendant is a Missouri resident operating a website with the Plaintiff’s name included. The website address is Defendant was an affiliate marketer of the Plaintiff and the affiliate marketing agreement between Plaintiff and Defendant prohibited the use of domain names with any variation of Plaintiff’s trademark contained within the domain name. Defendant is alleged to also be keying Google AdWords advertising off of Plaintiff’s trademark.

The lawsuit includes counts for cybersquatting, trademark infringement, contributory trademark infringement, trademark dilution, common law unfair competition, and unjust enrichment. The Plaintiff requests preliminary and permanent injunctive relief, transfer of all infringing domain names, an accounting of Defendant’s revenues and profits, an order for Defendant to promulgate corrective advertising, actual damages, statutory damages in the amount of $100,000 per domain name, treble damages, costs and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1447.

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