Invent and AbsolutelyNew compete in the market for “consulting
with inventors of ideas to assist them in obtaining legal protection for their
idea, and to locate manufacturers and retailers who may be interested in the
new product.” AbsolutelyNew’s website, www.SellMyInventionIdea.com.,
included a copy of Plaintiff’s trademark, followed by this negative commentary
about Invent:
This company has been in business
for only 7 months, but the testimonials on their website are from customers
that have been satisfied with them for over 3 years in some cases. Obviouslythese
are fake testimonials. This company is lying to misrepresent their potential
clients,they're not certified by the BBB or the United Inventors Association.
Invent Worldwide Consulting has scam and fraud written all over it! Here is the
link to their “testimonials.” [link provided]
When Invent complained, AbsolutelyNew removed the logo, but
added, “We cannot post up the testimonials that are clearly fake because of a
copyright complaint from his company.
Obviously they're not happy with this website exposing their shady
business practices and protecting inventors from scams.”
Invent also alleged that Googling “Invent Worldwide
Consulting” could take a user to AbsolutelyNew’s site, and Invent believed that
AbsolutelyNew engineered this result by using Invent’s trademark in its source
code. One of Invent’s clients allegedly
reported that a representative of AbsolutelyNew spoke to the client by
telephone and told the client that Invent was a “scam” and a “clearinghouse,”
reducing the client to tears.
The court’s brief decision held that Invent’s bogus
trademark claim couldn’t survive a motion to dismiss: these allegations could
not plausibly support a claim for likely confusion. Allegations of false and disparaging
statements about Invent couldn’t support the conclusion “that AbsolutelyNew has
attempted to use Plaintiff’s mark as its own or that consumers will otherwise
be confused by the source of the services either party provides.
While the federal and state false advertising claims did survive the motion to
dismiss, the dropped copyright claim could come back to haunt Invent, depending
on the facts. If Invent initially
asserted a copyright over the testimonials (which, of course, couldn’t possibly
be infringed by a link to Invent’s own site on which the testimonials were
posted) … who was the author of those testimonials? Or is this just another case of copyright
abuse? (Invent did allege a copyright claim, but didn't argue against dismissal on the motion to dismiss.)
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