Monday, June 13, 2011

Traverse Internet Law Federal Court Report: June 2011 - Domain Name Dispute 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.


TERESA ILEEN CAZIER v. C. FREDERICK PAYNTER, ET AL.
WESTERN DISTRICT OF TEXAS (SAN ANTONIO)
5:11-CV-00399
FILED: 5/20/2011

As an online business you should be able to recognize the risks associated with using just about any name on the Internet today. “America’s Best Flags”, whether generic or descriptive, is very likely not trademark protectable unless it has acquired a secondary meaning in the marketplace. It very likely has not acquired that sort of meaning in the minds of the public but this again shows the extent to which businesses are attempting to protect their names, even when the names are not seemingly protectable under trademark law.


In the 1990’s the Plaintiff started a flag and flagpole retail business named “America’s Best Flags”. The Defendants are alleged to have obtained the domain name “americasbestflags.com” in May of 2006 and when the Defendants received a demand letter they acquired even more domain names that were arguably confusingly similar to the Plaintiff’s business name.

Counts alleged in the lawsuit include false designation or origin, unfair competition, common law unfair competition, and trade name infringement. The Plaintiff requests injunctive relief against the Defendants along with compensatory damages, transfer of the infringing domain names, prejudgment and post-judgment interest, exemplary damages, and attorneys’ fees and costs. Traverse Internet Law Cross-Reference Number 1494.


FACEBOOK, INC. v. TEACHBOOK.COM LLC
NORTHERN DISTRICT OF ILLINOIS (CHICAGO)
1:11-CV-03052
FILED: 5/06/2011

This case is a good example of the very subjective nature of trademark infringement. Facebook will have to conduct surveys that cost over $100,000 to establish that “Teachbook” is confusingly similar to consumers. Then Teachbook will have to pay an expert a huge sum to rebut or dispute the survey evidence. These cases are often simply a battle of finances and while most of us would believe that “Teachbook” is not confusingly similar to “Facebook” the realities of litigation will likely dictate Teachbook no longer being able to use its name.


Everyone knows what Facebook is. Teachbook is a Facebook type website designed for teachers because many schools prohibit teachers from maintaining social networking profiles on Facebook. Facebook has sued because it believes that the term “Teachbook” is confusingly similar to its name and infringes on its trademark.

Facebook alleges federal trademark infringement, federal trademark dilution, federal false designation of origin, common law trademark infringement, common law unfair competition, cybersquatting, violation of the Illinois Uniform Deceptive Trade Practices Act, and trademark dilution. The lawsuit requests preliminary and permanent injunctive relief, that the Court declare that the Teachbook trademark application void, and accounting and disbursement of revenues and profits, actual damages, treble damages, punitive damages, transfer of the teachbook.com domain name to Facebook, and costs and reasonable attorneys’ fees. Traverse Internet Law Cross-Reference Number 1495.

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