Friday, November 21, 2008

Traverse Internet Law Federal Court Report: October 2008 Domain Name Dispute Lawsuits

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.

FILED: 10/16/2008

Copyright infringement occurs when there is "substantial copying" of a creative work. What about the case in which insubstantial copying occurs but the overall "look and feel" of a competing website misleads consumers to think that website is your website? There are "unfair competition" laws that vary from state to state that often provide a very broad legal basis for asserting claims against unfair, yet not otherwise illegal, conduct.

Cash4Gold assesses the value of gold received and offers to pay customers based on the assessed value. The company eliminates middlemen and brokers so that it can effectively allow consumers to deal directly with a refiner that the Plaintiff works with in Florida. The Defendant is a direct competitor of the Plaintiff, replicates advertisements of the Plaintiff, uses icons that are identical in appearance to the Plaintiff's on its own website, uses copyright protected artwork of the Plaintiff on its website, and typo-squats on its domain name through close misspellings and then redirects the traffic to its own website.

The lawsuit alleges copyright infringement, federal unfair competition, violations of the Florida Deceptive and Unfair Trade Practices Act, state unfair competition, false advertising in violation of the federal trademark laws, and tortious interference with advantageous business relationships. Plaintiff requests an award of compensatory damages, court costs, expenses, reasonable attorneys' fees, and the entry of extensive court orders including post-judgment remedies. Traverse Internet Law Cross-Reference Number 1234.

FILED: 10/15/2008

Though ING may not have realized it, it was operating an affiliate marketing program. The practice of an affiliate marketer using the domain name of the advertiser is nothing new. The nature of the relationship, or the terms of the contract, will ultimately define whether an affiliate marketer can use the domain name of an advertiser. Of course, your business needs to implement tighter controls on affiliates than is present here.

ING provides banking services offered over a computer network to its customers nationwide and owns the trademark "ING Direct". As part of its banking services, ING offered an incentive program, by which existing ING customers can be paid for referring new customers to ING. There was a limit of 25 referrals allowed per customer. The Defendant is alleged to have created a domain name and related website at "", started generating referrals, and then manipulated ING's website so as to bypass the referral limitation. Over the course of the summer of 2008 the Defendant referred 918 new ING customers and was compensated for the referrals.

The Plaintiff sued for trademark infringement, trademark dilution, cybersquatting, Massachusetts state law trademark infringement and dilution, and conversion. The prayer for relief includes a request for the entry of preliminary and permanent injunctive relief against the further use of ING's trademark by the Defendant, an award of actual and statutory damages, attorneys' fees and costs. Traverse Internet Law Cross-Reference Number 1235.