Alvis Coatings sells coating products, including "Alvis Spray-on Siding". The company filed a John Doe lawsuit in 2004 in North Carolina federal court against ten anonymous defendants, alleging that certain anonymous postings about its products violated the Lanham Act and North Carolina state laws prohibiting unfair and deceptive trade practices, unfair competition and defamation.

According to court documents, Alvis alleged that, in 2003, internet user(s) posted sixteen messages on home improvement message boards, including bobvila.com and oldhouse.com, about Alvis's products. The unknown poster(s) allegedly commented that Alvis Spray-on Siding was "Duron's siding in a can, privately labelled by Alvis" and that Alvis's officers and dealers were "criminals."

After filing suit, Alvis successfully obtained an order to conduct limited and expedited discovery and thereby obtained from the operators of bobvila.com and oldhouse.com the identity of two relevant ISPs, Roadrunner and Comcast.

When subpoeanaed by Alvis, Comcast refused to provide Alvis with information identifying its customer, and the anonymous poster, under the John Doe moniker, filed a motion to quash the subpoena. He claimed that the subpoena threatened his First Amendent right to anonymous speech.

On December 2, 2004, the Court denied the defendant's motion to quash, applying the "prima facie" standard from Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001) (holding that the plaintiff is entitled to discover the defendant's identity when it can establish a prima facie case against him). The Court held that Alvis was entitled under this standard to compell Comcast to produce information relating to the Doe defendants' identity.

Update:

2/28/06 - Court dismissed the case due to plaintiffs' failure to prosecute the case.

Using the alias "Proud Citizen," an anonymous commenter posted two statements on the "Smyrna/Clayton Issues Blog," a website sponsored by the Delaware State News. The statements criticized Patrick Cahill, a City Councilman of Smyrna, saying that Cahill was "paranoid" and had undergone "an obvious mental deterioration," among other things.

Cahill and his wife filed a John Doe lawsuit in state court in Delaware. Pursuant to a local rule of procedure, they sought and obtained authorization of the court to conduct a pre-service deposition of the operator of the "Smyrna/Clayton Issues Blog." From the blog operator, the Cahills obtained the IP address associated with the postings. They then obtained a court order to compel Comcast (the owner of the IP address) to identify the poster, and Comcast notified Doe of the discovery request. Doe then filed an emergency motion for a protective order.

Applying a good faith standard, the trial judge denied Doe's request for a protective order. Doe filed an interlocutory appeal in the Supreme Court of Delaware.

The Supreme Court reversed the decision of the trial court and dismissed the case with prejudice. The court ruled that unmasking an anonymous critic requires a stricter standard than "good faith." It held that a plaintiff must provide evidence sufficient to defeat a summary judgment motion before a court will order disclosure of an anonymous defendant's identity. To defeat a summary judgment motion, a plaintiff must provide evidence to support each element of his/her claim such that the case would go to trial. Applying this standard, the court held that compelled disclosure of the defendant's identity was improper because no reasonable person would understand the statements at issue to be asserting facts about Cahill.

This is a landmark case on the rights of anonymous posters (and bloggers), and it marked the first time that a state high court addressed the issue.

Despite the Delaware Supreme Court ruling, the Cahills were later able to trace the IP address back to a computer in Smyrna Mayor Mark G. Schaeffer's house.  According to the New York Times, upon remand Schaeffer announced that his step-daughter, Cristina Rawley, was responsible for the comments, and asked that he and his wife, Ruby, be dropped as defendants.

According to the Associated Press, the lawsuit was settled in June 2006.  The details of the settlement were not made public.

Gregerson is a photographer who maintains a website containing his professional photographs. Vilana Financial, Inc. used two of Gregerson's pictures without permission in phone-book and web advertisements, and print advertisements in a local Russian-language newspaper. Gregerson discovered Vilana's use of his photographs and contacted the company asking for compensation. Vilana refused, claiming that it purchased the photographs from a third party (neither party was able to locate this third party during the subsequent litigation).

Gregerson devoted a portion of his website to a discussion of the disagreement over the photographs. On it, he claimed that Andrew Vilenchik had published two of his photos without permission in a series of ads for Vilana. Along with the text, Gregerson posted a photograph of Vilenchik.

According to Gregerson's website, on October 4, 2005, Richard Raver sent him a cease-and-desist letter on behalf of Vilenchik, demanding that Gregerson remove the webpage or face a lawsuit for defamation. Apparently, Gregerson replied with an offer to remove anything that Vilenchik could show was not true.

Vilana Financial filed a lawsuit against Gregerson in Minnesota state court on October 24, 2005. Please see the CMLP's Database Entry on the related lawsuit, Gregerson v. Vilana Financial, for more information on the status of the suit.

Todd Hollis objected to the description posted about him on DontDateHimGirl.com, a website that allows women to post about men and warn other women about them. Mr. Hollis sued Tasha Joseph/Cunningham, the operator of the website, alleging defamation in Pennsylvania state court, after she refused to remove the posts.

According to the initial complaint, four separate profiles were created by anonymous users of the site, which allegedly falsely claimed that Hollis had multiple children and had herpes; was "gay" or "bi"; had given the user an STD; and that he "wears dirty clothes," "complains about paying child support", and that his "crib is a dump."  (Compl. ¶ 20, 25-26, 30, 34.)  Hollis claims to have complained to Joseph/Cunningham, who refused to remove the profiles.  (Compl. ¶ 23.)  

Hollis sued Joseph/Cunningham, the Cavelle Company, Inc. (the registrant for dontdatehimgirl.com), and three individuals who he claims were responsible for the false profiles for defamation, seeking $50,000 in actual damages plus punitive damages.

Joseph and the Cavelle Company moved to dismiss for lack of personal jurisdiction.  The Pennsylvania court granted this motion with respect to Joseph/Cunningham, a resident of Florida, and the Cavelle Company.  Hollis filed a second lawsuit in federal court in Florida on November 29, 2007.

After hearing that the Taubman Company Limited Partnership was building a large shopping mall near his home, Henry Mishkoff created a website and registered a domain name for it at "shopsatwillowbend.com." (Taubman's official website for the mall was located at "theshopsatwillowbend.com" and "shopwillowbend.com.")

Mishkoff's website featured information about the mall, including a map and links to the individual websites of the tenant stores. The site contained a prominent disclaimer, saying that Mishkoff's site was "unofficial" and providing a link to Taubman's official site. Mishkoff characterized his site as a "fan site" with no commercial purpose, but it linked to the website for his own web design company, Webfeats, and the website for his girlfriend's shirt company.

Taubman sent Mishkoff a series of letters claiming that Mishkoff's use of the domain name violated its trademark rights and demanding that he remove the site and transfer the domain to them. (For more information, please see the CMLP Database entry on the related letters.)

In August 2001, Taubman filed a lawsuit for trademark infringement in federal district court. Mishkoff then registered 5 additional domain names combining Taubman's trademarks with "sucks," including "taubmansucks.com." These domain names all led to the same website, on which Mishkoff documented and commented on his conflict with Taubman and its lawyers.

After commencement of the lawsuit, Taubman offered to settle the dispute and buy all of the domain names from Mishkoff for $1000. Mishkoff initially indicated that he would settle, but the settlement fell through.

Taubman then moved for a preliminary injunction barring Mishkoff's use of the website at "shopsatwillowbend.com." On October 11, 2001, the district court granted Taubman's motion and enjoined Mishkoff from using that domain name. Taubman then moved for a preliminary injunction with regard to the "sucks" sites. On December 7, 2001, the district court granted another injunction barring Mishkoff's use of those domain names.

Mishkoff appealed, and the United States Court of Appeal for the Sixth Circuit reversed the district court, holding that Taubman did not have a likelihood of success on the merits of its trademark infringement claim.

With respect to the "shopsatwillowbend.com" website, the appellate court indicated that Mishkoff's linking to commercial websites, although "extremely minimal," was sufficient to constitute a use "in connection with the sale or advertising of a good or service." Taubman Co. v. Webfeats, 319 F.3d 770, 775 (6th Cir. 2003). The court noted, however, that Mishkoff had removed the link to his girlfriend's site before the injuction was granted. It noted further that Mishkoff's initial acceptance of the offer of settlement (including the sale of the domain name for $1000) was not a use "in connection with the sale or advertising of a good or service" because he had no history of selling domain names for profit and did not initiate the transaction. Id. at 776. Finally, it held that there was no likelihood of confusion between Mishkoff's site and the official Taubman site, giving substantial weight to Mishkoff's use of a disclaimer and link to the official website. Id. at 776-77.

With regard to the "sucks" domain names, the appellate court concluded that there was no use "in connection with the sale or advertising of a good or service" and no likelihood of confusion. Id. at 777-78. The court explicitly recognized that Mishkoff's use of Taubman's mark in the domain name was "purely an exhibition of Free Speech, and the Lanham Act is not involved." Id. at 778.

The appellate court dissolved both injunctions. Taubman voluntarily dismissed the action in February 2003.

Xyience Inc., a manufacturer of energy drinks and supplements, sued Rich Bergeron in Nevada state court over statements posted on his MySpace.com page and website, unlimitedfightnews.com. According to the complaint, Bergeron posted an article to his MySpace page that contained allegations that that Xyience was under investigation by the Securities and Exchange Commission and that a class action lawsuit was pending against the company. Xyience contends that Bergeron is the author of these statements, but he maintains that he found these statements in an email widely circulated on the web, which he merely posted to his MySpace page with a disclaimer. (MySpace removed the posting and Bergeron's profile shortly thereafter.) Mr. Bergeron provided us with links to other websites where the article apparently still appears (here, here, and here).

The complaint further alleges that Bergeron posted to his website a report entitled "Xyience Investigative Report: Creator Russell Pike's Criminal Tendencies Revealed," in which he claimed that the company and its majority shareholder, Russell Pike, were defrauding investors and conspiring with Dana White, president of Ultimate Fight Challenge, to defraud investors. The complaint claims also that Bergeron "continues to post defamatory articles" about the company on his website, but does not identify any specific statements.

The complaint sets forth claims for defamation, tortious interference with prospective economic advantage, and intentional interference with contract. Xyience alleges that Bergeron's reports have cost the company millions of dollars due to lost investor contributions, prompting the company to seek $25 million in damages.

Alongside the complaint, Xyience filed a motion for preliminary injunction to compel Bergeron to take down his reports and to prohibit him from publishing any future reports about Xyience. On July 27, 2007, Bergeron filed a motion to quash service of summons (i.e., a motion to dismiss) for lack of jurisdiction, arguing that the Nevada court does not have personal jurisdiction over him because he is a resident of Massachusetts without significant contacts with Nevada.

On September 6, 2007, the court granted Xyience's motion for a preliminary injunction. The court's order requires Bergeron to "remove any and all articles or postings regarding false claims about Xyience from the internet" and prohibits him from making any statements suggesting or implying that Xyience is being investigated by the SEC. It also requires Bergeron to remove "any and all articles or postings claiming that Xyience is defrauding investors and/or is conspiring with Dana White or the Ultimate Fight Challenge to defraud investors" and prohibits him from making any future represenations to that effect. On the same day, the court dismissed Bergeron's motion to quash the service of summons.

Update:

10/01/2007 - Bergeron filed a motion to dismiss the complaint.

3/20/2008 - Xyience filed a notice of removal to the United States Bankruptcy Court.

3/28/2008 - Bergeron filed a motion to suspend bankruptcy proceedings and for summary judgement on oustanding claims.

6/05/2008 - Counterdefendant Ferttita filed an application for order to show cause regarding unauthorized recording of court proceedings.

On May 10, 2007, a user on the FreeRepublic forum posted that he had heard on a XM Satellite Radio talk show that DNC Chairman Howard Dean had called Kansas Governor Kathleen Sebelius asking her to politicize the recovery effort from a tornado in Greensburg, Kansas, by dragging her feet on requesting federal aid and then blaming the lack of response on President Bush.

That same day, the DNC, through counsel, sent a cease-and-desist email to the webmaster of FreeRepublic. The email complained that FreeRepublic had not only repeated the defamatory statements of the radio show host, but indicated that the host's source was "extremely reliable and in a position that would give him direct knowledge of these revelations." The email asserted that the statements were "false and defamatory," "libelous and slanderous," and "clearly threaten to interfere with the DNC’s operations and ability to solicit support and raise funds." The email demanded that FreeRepublic remove the defamatory statements and post a prominent retraction.

The FreeRepublic did not remove the statements, and there is no indication that the DNC has taken any further action.

Incidentally, the DNC also sent a cease-and-desist letter to XM Satellite Radio, complaining about the original radio show broadcast. XM posted audio clips of the show on its website, but it does not appear that the DNC sent them a cease-and-desist letter in regard to that posting.

For approximately a week in early April 2003, Ryan Dwyer, then an eighth grade student, maintained a website called "I Hate Maple Place" that included a forum. Dwyer, who hosted the site on his home computer, used the site to criticize his local school and some of the teachers. He also created a section on the site called "Guest Book" where other users could post comments.

Although Dwyer requested that posters refrain from posting threats or profanity, some fellow students posted inappropriate content. When school officials found out about the website they suspended Dwyer.

On December 18, 2003, Dwyer filed a lawsuit with the help of the ACLU against the school district, its administators, and others, claiming the school district had violated his First Amendment and Due Process rights.

On March 31, 2005 the court granted partial summary judgment in favor of Dwyer. The parties settled in November 2005, with the school district issuing an apology and paying $117,500 in damages and attorney's fees.

On his blog "Wash Park Prophet," Andrew Oh-Willeke wrote a post entitled "Mr. Trademark Abuse" about Leo Stoller, an entrepreneur who has litigated a number of trademark infringement claims asserting rights in the word "stealth." (According to the New York Times, Mr. Stoller apparently also has registered trademarks for the words "bootlegger," "hoax," and "chutzpah.")

A few days later, Oh-Willeke received an email from Joe Strahl, Vice President of Mr. Trademark Inc., the purported owner of the registered trademark "Mr. Trademark ®." The email asserted trademark rights in the words "Mr. Trademark" and complained that the blog post about Mr. Stoller wrongly created the impression that Stoller was associated with Mr. Trademark Inc. The email also appeared to raise a libel claim, arguing that the company's "reputation as a trademark search company and agent is being harmed by the defamatory and libelous post." Strahl threatened legal action unless all posts using the words "Mr. Trademark" were taken down.

Oh-Willeke responded by adding a disclaimer to the original post, which says:

Notice: The title of this post "Mr. Trademark Abuse", should in no way be confused with the firm "Mr. Trademark® Inc." which has no relation to Mr. Stoller, according to its representative Joe Strahl VP. Of course, if you had a brain, you would have realized that simply from the context of the post, but I'm putting it here for anyone too thick headed to understand that point on July 16, 2007 in response to a cease and desist e-mail I received today when I opened my work e-mail this morning.

Oh-Willeke also wrote Strahl an email denying that he made any false statements of fact and critiquing Strahl's trademark claim. It is worth reproducing here in full:

I have received your e-mail and have posted a disclaimer in the post in an abundance of caution. Nevertheless, I believe that you[r] cease and desist e-mail is off base. I will not remove the post or change the title as you have requested.

1. I am not trying to sell trademark services in this post.
2. I have made no false statements of fact.
3. I clearly identify the factual basis of my statements.
4. You, like Mr. Stoller, seem to fail to appreciate that a registered trademark is not a monopoly on use of certain words, it is merely a ban on marketing goods or services in a confusing fashion.
5. From context, it is clear that "Mr. Trademark Abuse," the title of my post,is something very different, indeed the opposite of, "Mr. Trademark," which you have registered.
6. Also, from context, it is clear that I am not using the words in a manner intended to have secondary meaning.
7. I seriously doubt that your registered trademark would withstand court scrutiny as it is merely descriptive of the services you provide. Descriptive trademarks are inherently weak. In the same way, it is impossible to get a valid trademark on “Liquor Store” or “Dry Cleaner” for a liquor store or dry cleaner respectively. Your own trademark verge[s] on frivolous itself.

Please refrain from taking further unreasonable action.

This precipitated an email exchange between Oh-Willeke and Strahl, in which Strahl continued to assert his trademark rights and demanded that the posting (or at least the title) be taken down. Oh-Willeke pointed out, among other things, that that the registered mark "Mr. Trademark" did not consist of the words "Mr. Trademark" alone, but rather the words in connection with a drawing of a little man, and that the registration document expressly stated that "no claim is made to the exclusive right to use 'trademark' apart from the mark as shown."

No resolution appears to have been reached between Strahl and Oh-Willeke.

Update:

As of 10/08/07, Oh-Willeke's blog had not included any updates regarding the situation.

Samantha Ronson, a prominent DJ and friend of movie star Lindsey Lohan, sued popular celebrity blogger Mario Lavandeira (aka Perez Hilton) and others for libel in California state court in June 2007.

According to Ronson's complaint, the online magazine "Celebrity Babylon" published statements in late May 2007 accusing Ronson of of planting drugs in Lohan's car and "setting up" Lohan for press photographers in exchange for money. On June 1, Lavandeira allegedly republished these statements on his blog, adding that Ronson had been "toxic" for Lohan. Additionally, on June 13, 2007, Lavandeira allegedly published a posting under the headline "Blame Samantha!," which stated: "Was Lindsay Lohan betrayed by her lezbot DJ pal Samantha Ronson? Australia's NW magazine seems to think so. And we wouldn't disagree!"

In addition to Lavandeira, Ronson sued the Sunset Photo and News agency, which operates Celebrity Babylon, and Jill Ishkanian, its editor-in-chief. The complaint asked for $20 million in damages.

On September 4, 2007, Lavandeira filed a motion to strike the complaint pursuant to California's anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16). On November 1, 2007, the court ruled on the motion to strike, granting it in full. The court held that Lavandeira's website was a "public forum" and that his posts about Ronson concerned a "matter of public interest" because Ronson had injected herself into the public eye by associating with Lohan and because of the role illegal drugs played in the story. The court further held that Ronson had failed to produce sufficient evidence to meet the burden imposed by the anti-SLAPP statute. Specifically, the court ruled that Ronson was "at least" a limited purpose public figure under the circumstances, and that she had failed to bring forward any evidence that Lavandeira had acted with malice or reckless disregard for the truth of the statements. At the end of the hearing, Lavandeira's lawyer indicated that he would be submitting a motion for attorneys fees.

We have another document, entitled "Stipulation for the Entry of an Order Granting Motion to Strike Complaint Brought By Defendant Mario Lavandeira and Striking and Dismissing Complaint as to Lavandeira; [Proposed] Order Thereon." It is dated October 31, 2007, and appears to be a stipulation between the parties, whereby Ronson would agree to the entry of an order by the court granting the motion to strike and dismissing the complaint and Lavandeira would agree to waive his right to recover attorneys fees under section 425.16. Only one signature appears on the document - Ronson's -- and we have not been able to confirm whether this document was ever fully executed and filed with the court. Given the contents of the November 1 hearing transcript, however, it seems unlikely that it was.

Ronson and Ishkanian previously settled for an undisclosed amount in October 2007.

Update: In early December 2007, Lavandeira filed a motion seeking $93,000 in attorneys' fees from Ronson pursuant to the anti-SLAPP statute.

1/23/08 - News reports indicate that the court awarded Lavandeira approximately $85,000 in attorneys fees under the anti-SLAPP statute.

5/5/08 - News reports indicate that Ronson is trying to get her lawsuit reinstated, arguing that her original lawyer did not zealously defend her interests because of a fee dispute. Lavandeira has filed papers in opposition.

6/4/08 - News reports indicate that the court has rejected Ronson's attempt to re-open the case.

12/10/08 -  The Los Angeles Times is reporting that Ronson has sued her former attorney, Martin Garbus, for malpractice over his handling of her case.