Tuesday, February 22, 2011

Traverse Internet Law Federal Court Report: February 2011 - Trademark Infringement Lawsuits


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.


GREENBERG SMOKED TURKEYS, INC. v. VALUECLICK, INC.
EASTERN DISTRICT OF TEXAS (TYLER)
6:11-CV-00038
FILED: 1/20/2011

Sometimes these automated programs for building advertisements can get you in trouble. Evidently no one realized that “Greenberg Turkeys” is a trademarked name. Automating a process for generating advertisements and purchasing keywords on the Google AdWords system is a high-risk practice.

Greenberg Smoked Turkeys is a business involved in making and selling smoked turkeys. Defendant is engaged in the operation of providing Internet shopping services and is triggering ads based upon the “Greenberg” trademark and allegedly using the Plaintiff’s trademarked name in the title of its AdWords advertisements.

The lawsuit alleges trademark infringement, false designation of origin and unfair competition, and trademark dilution. Plaintiff demands permanent injunctive relief against the Defendant, actual damages, statutory damages, exemplary damages, attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1470.

Wednesday, February 16, 2011

Traverse Internet Law Federal Court Report: January 2011 - 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.


SELECT MANAGEMENT RESOURCES, LLC, ET AL. v. D AND D MARKETING, INC. and DMITRY FOMICHEV
CENTRAL DISTRICT OF CALIFORNIA (LOS ANGELES)
2:10-CV-10008
FILED: 12/29/2010

There certainly exist some defenses to keying ads off of trademark names, although most courts find that this is trademark infringement. Using a competitor’s name in the title of an ad on AdWords, or even in the body of the ad, is close to a slam dunk situation for trademark infringement.

The Plaintiff alleges that the Defendants, a lead generation company and the owner of the company, are purchasing Plaintiff’s trademark name as a keyword to trigger its ad in the Google AdWords system, and is actually using the Plaintiff’s trademark name in the title of the advertisement. The Defendant is D and D Marketing, Inc. d/b/a T3Leads and is generating leads for the consumer lending industry.

Counts against Defendants include trademark infringement and unfair competition. Plaintiffs request preliminary and permanent injunctive relief, actual damages, treble damages, punitive damages, costs and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1460.


WILLIAM JAWORSKI d/b/a GREAT NORTHERN ENGINEERING v. ROBERT’S HOT TUBS, INC.
DISTRICT OF MINNESOTA
0:10-CV-04950
FILED: 12/22/2010

These “metatag” trademark infringement claims keep showing up in federal courts. There are many ways, obviously, to optimize a page so that it is a result when a competitor is searched. Google says it does not even pay attention to metadata anymore in terms of generating search results, so if this is true it is difficult to see how a claim is relevant anymore in today’s SEO world. It is likely that some search engines still use metadata for indexing purposes, but that represents an extremely small percentage of searches conducted.

Plaintiff and Defendant are competitors selling hot tubs and related services and supplies. The Defendant is alleged to have placed the Plaintiff’s trademarked names into “metatags” on its website in order to have its site appear in search results when its competitor’s name is searched.
The lawsuit claims trademark infringement, unfair competition, and violation of the Minnesota Deceptive Trade Practices Act. Plaintiff demands preliminary and permanent injunctive relief, an accounting of profits, statutory damages, treble damages, costs and attorneys’ fees. Traverse Internet Law Cross-Reference Number 1461.


Wednesday, February 9, 2011

Traverse Internet Law Federal Court Report: December 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. SHAR PRODUCTS COMPANY v. JUSTSTRINGS.COM, INC. EASTERN DISTRICT OF MICHIGAN (DETROIT) 2:10-CV-14540 FILED: 11/15/2010 SHAR PRODUCTS COMPANY v. GOSTRINGS, LLC EASTERN DISTRICT OF MICHIGAN (DETROIT) 2:10-CV-14538 FILED: 11/15/2010 We continue to see a flow of lawsuits claiming trademark infringement because a competitor is keying ads off of a Plaintiff’s trademark name. It is alleged in these cases that the Defendants are using the trademark name in either the title or body of the advertisement. Needless to say, keying your ads off a trademark name or using the name of a competitor is very risky business. These are two different cases in which the Plaintiff, the recognized leader in the stringed instrument market in North America, is pursuing competitors based upon their alleged use of the Plaintiff’s name for keying ads. Plaintiff is also claiming that the Defendants included its name in the content of the ad to mislead the public into believing that they were the Plaintiff. Both lawsuits allege trademark infringement, false designation of origin, unfair trade practices, and unfair competition. Plaintiff requests injunctive relief, an accounting of Defendants’ profits, actual damages, statutory damages, attorney’s fees, and other relief the Court deems just. Traverse Internet Law Cross-Reference Number 1454.

Wednesday, February 2, 2011

Traverse Internet Law Federal Court Report: November 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.


THE KEY WEST TOURIST DEVELOPMENT ASSOCIATION v. ZAZZLE, INC.
SOUTHERN DISTRICT OF FLORIDA (KEY WEST)
4:10-CV-10100
FILED: 10/26/2010

Fantasy Fest is a huge party around Halloween each year in Key West featuring vast quantities of libations and scantily clad, air brush painted attendees. You just wouldn’t get the idea that Key West would worry about a couple of knock-off t-shirts. The bottom line is that every business, including some non-profit government organizations like the Plaintiff, have to protect their trademark or it will be lost. The same applies to your business, although paying a huge amount to file a lawsuit isn’t always necessary to protect your trademark. Keep in mind that you must be policing the web and taking action against those who are infringing on your trademark or you will ultimately lose your rights in your own name.

The Plaintiff is a non-profit corporation with a primary goal of helping economic growth and development in Key West, Florida. As part of this effort Plaintiff has continuously promoted and marketed its annual festival services including one under the trademark “Fantasy Fest”, which is a cooperative effort between the Plaintiff, the city of Key West and private businesses in Key West. Zazzle is an online retail store that offers an “on demand” platform that allows anyone to create t-shirts and the like. Plaintiff alleges that Zazzle is selling “Fantasy Fest” related products and claims they are “official” products of Fantasy Fest.

The Plaintiff alleges trademark counterfeiting, trademark infringement, unfair competition, palming off, false designation of origin or source, trademark dilution, and civil conspiracy. Plaintiff requests preliminary and permanent injunctive relief along with actual damages, treble damages, and reasonable attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1452.