New York Business Litigation Lawyer Blog

Every day businesses and individuals establish a presence on the Internet by purchasing an Internet domain name and setting up a web site. Perhaps you have recently done so. Typically, the domain name you have purchased is identical or closely related to the name of your company or primary product or service. You may assume that by purchasing a domain name matching your business name or product, you have secured the relevant domain names for your business or product. You may be surprised to learn that while you have obtained a domain name to match your business name, someone else may purchase variations of your domain name, including those which are less than flattering. Those same elements that allow the creation of numerous legitimate sites–the ease and low cost of purchasing a domain name and setting up a website, together with the proliferation of domain name extensions–provide unprecedented opportunities to a disgruntled employee or unhappy customer to generate bad publicity in cyberspace by establishing a gripe site. The negative publicity created by the gripe site is compounded when prominent search engines pick it up or when it is discussed in printed publications. This article discusses how this practice exists within the confines if the law.

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A gripe site is a web siteIcreated and maintained by someone other than the owner or user of a particular name or mark, that gripes publicly about that owner’s ideas, service or product. The gripe site is supposedly created to publicize a specific wrong by describing a version of the facts which supports a gripe. The site might center on a single transaction or could be a bulletin board inviting others to post their complaints about the same company or product. Some examples include a mockup of PETA’s activities (before PETA established a site), equifaxeatspoop.com, and capellauniversitysucks.us. While trademark owners aggressively protect their rights (which must be done), they are sometimes unable to force the gripe site’s closure. In addition, the aggressiveness of those owners in protecting their valuable marks often fuels the gripe sites owner’s attacks and generates greater publicity of the gripe site’s existence.

Weight Watchers (“WW”) maintains a system whereby food items are assigned points. Each customer of WW is assigned a permitted number of points per day. Frozen foods manufacturer used Weight Watchers points system on its wrappers but noted that the points system was a feature of WW’s system and a trademark owned by WW. WW sued claiming that the average customer was confused into thinking that WW had either calculated or verified the number of points identified by the manufacturer or otherwise endorsed the item. The court agreed and enjoined the manufacturer’s use of or reference to the points system unless the manufacturer made clear that it had calculated the points. The manufacturer changed its packaging to comply with this order, but the new packaging was very similar to the old. WW objected and asked the court to stop this packaging as well. The court refused. On appeal, the court found that the new disclaimer was too similar to the old and because the lower court’s order was vague, the manufacturer had not established that its packaging was not confusing to the public sufficient to satisfy the lower court’s order.

Tenant sued his landlord alleging lead poisoning. The landlord filed a claim with his insurance company. The insurer sued seeking to avoid its obligation to the landlord to defend against the lawsuit, claiming that the policy had not been triggered. The policy had been drafted so that the insurer was obligated to defend only where the lead reached a certain level, a level that had not been reached here. The insurer claimed that because the level of lead was below the policy trigger point, it had no obligations to the landlord. This exclusion, however, was discussed only in the definition portion of the policy with no mention made in the exclusion portion. The court found that because the policy was poorly drafted and confusing, this exclusion would be ignored.

This case involved two cheese manufacturers/distributors who both used the mark TRADITIONAL to describe their respective feta cheeses. The company that first used the mark sought to prevent the second company from using it in connection with its feta cheese, claiming that the mark TRADITIONAL was suggestive of the type of cheese–hand made, old word–and entitled to protection. The second company claimed that TRADITIONAL was merely descriptive of the cheese generally–unflavored and natural–and entitled to no protection. After hearing expert testimony, the court found that the mark TRADITIONAL, as applied to feta cheese, was merely descriptive of the cheese and not entitled to protection. Although descriptive marks are sometimes entitled to trademark protection, the court that no be the case.

Plaintiff sued seeking to force a shelter to provide her with the contact information of the people that adopted her cat. Plaintiff returned from a trip to find her cat missing. She was told that the cat had been taken to a shelter. Plaintiff contacted the shelter, less than a week after she discovered the cat missing, only to learn that the shelter had made no effort to locate the plaintiff, in violation of the shelter’s obligations and had given the cat away. The shelter refused to provide the adopter’s contact information to the plaintiff. The court decided that although the plaintiff may have lost her rights to the cat, due to the delay in claiming it, she was entitled to the adopter’s information. The court also found that the shelter did not establish that it had adhered to rules providing for a mandatory waiting period. (5/05)

Employee who stayed on with the company that acquired his past employer, was accused of having a hand in his old employer’s accounting misrepresentations at the time of the acquisition and was told that he was about to be terminated but would receive three months severance. The employee, in reliance on that promise, continued with the acquiring company for a short time longer. Ultimately, he was terminated. In defending its decision not to pay, the acquiring company claimed that the promise was a gift and not enforceable because the employee had given up nothing in exchange for that promise. The court determined that while the employee’s past work for the company was insufficient, as it had happened prior to the promise being made, his work post-notice of his impending termination sufficed, notwithstanding that the value of the severance was disproportionate to the work he did. (4/05)

Plaintiff sued gym alleging that the gym’s trainer was negligent in how she worked with plaintiff resulting in injuries to plaintiff. The gym sought to have the case dismissed arguing that plaintiff had signed a waiver when he purchased the gym membership agreeing not to sue the gym. Plaintiff argued that New York law does not enforce waivers which would allow a place of amusement or recreation to avoid liability for its negligence. The court dismissed the case, finding that the law did not apply to establishments that provide instruction, and found the gym to be an instructional and not recreational establishment. In addition, the court found that because the waiver that plaintiff signed was explicit and comprehensible, there could be no confusion as to its application.

The buyer of a car with 126,000 miles sought to return the car as defective under New York State’s Lemon Law. The buyer argued that although the car had more than 100,000 miles on it such that it would normally be excluded from the Lemon Law, the fact that a new transmission was installed should exclude her car from that limitation. The court noted the buyer’s novel argument, but found that in addition to the buyer not having the car serviced three times, as required under the Lemon Law, the replacement of the transmission did not exclude the buyer from the 100,000 limitation. (12/04)

Landlord/defendant’s attempt to dismiss tenant/plaintiff’s complaint alleging injuries resulting from mold was denied notwithstanding that the landlord was unaware of actual mold in the premises where plaintiff lived. The court held that conditions which could normally lead to the growth of mold, even if no mold is visible, such as water leaks and other wet conditions, was enough to put the landlord on notice of a potential mold problem and for which, as the landlord, it should have taken steps to remedy so as to keep the premises in reasonably safe condition.

In a case of first impression, a group of domain name holders sued Register.com because it had automatically renewed the plaintiffs’ domain names. The First Department found that a domain name that is not trademarked is nothing more than a contract right and that Register.com’s action did not violate General Obligations Law §5-903 which renders unenforceable automatic renewal provisions in contracts pertaining to the maintenance of real or personal property. The court found also that Register.com’s conduct was not deceptive because it had complied with the agreement between the parties but that plaintiffs may not have received notice of certain allowable changes because plaintiffs’ e-mail addresses had not bee updated.