CrossFit sued Alvies for trademark infringement, among other
things, and Alvies counterclaimed for false advertising/unfair
competition. CrossFit moved to dismiss
the counterclaims and partially succeeded.
CrossFit alleged that it developed a fitness training regimen and
provides a nationally standardized certificate program to personal trainers who
can become licensed CrossFit affiliates. It has several CrossFit registrations
and ITU applications. In 2011, Alvies
launched a blog at “crossfitmamas.blogspot.com” and created a “CrossFit Mamas”
Facebook page. She posted daily high-intensity interval training routines, and
readers used the comments section to post and track their personal progress on
certain exercises. She sold vitamin meal replacement shakes through the blog
and added Google AdWords advertising.
In Spring 2013, a CrossFit paralegal demanded that Alvies
stop using the CrossFit name on her blog and affiliated Facebook page, and also
began communicating with at least one reader of Alvies’s blog about the quality
of Alvies’s workouts. The paralegal stated that she had “assessed a few days of
[Alvies’s] workouts,” that it was “bad programming,” and that a CrossFit
trainer determined that Alvies’s workouts were “stupid and unsafe.”
CrossFit requested that third parties (possibly Google)
remove Alvies’s blog and sent a DMCA takedown notice to Facebook. Alvies allegedly reached an agreement to move
to “califitmamas.com” and “califitmamas.blogspot.com,” though the paralegal
allegedly asserted that Alvies could not use the term “CFMamas” because “CF” is
a common abbreviation of CrossFit. CrossFit continued to demand that Alvies
disable Google AdWords and stop selling vitamin shakes. It allegedly reneged on the deal and demanded
that she stop using califitmamas.com; she moved to “hiitmamas.blogspot.com.” But
then CrossFit repeatedly demanded that Alvies delete over two years of blog
posts, allegedly as part of an improper attempt to remove evidence of her prior
use in commerce of marks subject to CrossFit’s ITUs for nutritional shakes etc.
CrossFit argued that Alvies’s claim for violation of §512(f)
should be dismissed. The DMCA doesn’t
provide trademark remedies, but CrossFit’s claims were based on trademark, not
copyright. CrossFit nonetheless argued
that Facebook allows trademark takedown notices too. The court responded: so what? Alvies plausibly alleged a material
misrepresentation of copyright infringement; “[w]hether CrossFit may have been
able to convince Facebook to remove Alvies’s page on some other ground has no
bearing on CrossFit’s compliance with the DMCA.” CrossFit argued that she wasn’t
injured because if it hadn’t submitted a DMCA notice it would have submitted a
trademark notice. The court refused to “hypothesize about what Facebook would
or would not have done if it had received a trademark takedown notice regarding
Alvies’s Facebook page.”
Alvies brought a California UCL claim on the theory that
CrossFit was harassing her to eradicate all evidence of her prior use of marks
for which CrossFit had filed ITUs.
CrossFit argued that Alvies lacked standing (of course) because she
failed to plead economic injury. Not
so. “Alvies alleges that her blog and
affiliated Facebook page generated at least a modicum of revenue through the
sale of vitamin shakes and Google AdWords, and that CrossFit wrongfully caused
those pages to be removed.” But UCL remedies
for a private plaintiff are generally limited to injunctive relief and
restitution, and Alvies’s prayer for relief was too vague; she didn’t seek
injunctive relief and restitution requires that the defendant “acquired the
plaintiff’s money or property by means of ... unfair competition”; it was
unclear how CrossFit could have received Alvies’s lost revenue. The UCL claim was dismissed with leave to
amend.
As for Lanham Act false advertising, CrossFit argued that
Alvies lacked standing because they weren’t direct competitors. It’s a large fitness training company and she’s
a blogger. Nope. “Both parties offer fitness training
services. Their business models differ, but they offer similar services to
consumers. … [N]othing in the Lanham Act suggests that differences in size
preclude a finding of competition.”
However, Alvies didn’t plead “advertising or promotion,” because the
paralegal’s statements to at least one reader didn’t constitute “an organized
campaign to penetrate the market.” Any amended pleading would need to identify
CrossFit’s allegedly disparaging statements and explain how they were
disseminated to the purchasing public.
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