Monday, September 30, 2013

it's ok to assume that cybersquatting caused damage

Migliore & Associates, LLC v. Kentuckiana Reporters, LLC, No. 3:13–CV–315–H, 2013 WL 5323035 (W.D. Ky. Sept. 20, 2013)

This is a cybersquatting and Lanham Act case that I only noted because of its illustration of the ways in which judicial common sense under Iqbal/Twombly disproportionately favors certain causes of action.  Lisa Migliore Black and her company sued competing court reporting company Kentuckiana for registering and redirecting it to Kentuckiana’s own website.  The court found that ACPA didn’t require pleading actual damages as an element of the claim, that statutory damages of up to $100,000 might be available, and that plaintiffs adequately alleged plausible injury—Kentuckiana’s possible profits, to which Black would be entitled as one category of damages—from the redirection.  “Plaintiffs’ inability to verify whether and to what extent Kentuckiana profited from its actions or how many—if any—customers were diverted is immaterial at this early stage of litigation.”  Likewise, the §43(a) claim was plausible.

But Kentuckiana argued that there was a general standing problem: though the complaint alleged that Kentuckiana attempted to attract users, plaintiffs didn’t allege that any actual traffic or customers had been diverted.  True, Article III requires an “actual or imminent, not conjectural or hypothetical” injury as one of the “irreducible constitutional minimum[s]” of standing.  But at the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice.” Before discovery, plaintiffs’ inability to identify whether any business was diverted or any consumers were confused wasn’t material.  The injury was still plausible.

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