Suing Failbook.com (Documenting my very first lawsuit)

UPDATE:
We settled without going to court. Both we and Cristian are happy. Here’s to creative deal-making and calm nerves.

OP:
Last month, I filed a lawsuit for the very first time in my life against someone who was trying to mislead our community and profit from it. It wasn’t an easy decision, but it was the first time I had seen such brazen attempt of trademark fraud.

The problem wasn’t the domain name, but that he was trying to confuse and defraud our users by marketing the content and site as his own and profit from it.

The facts:
– The Cheezburger Network launched Failbooking.com on January 5, 2010 (The idea was based on Facebook fails posted on Failblog.org as early as 2008).
– A few days later, the owner of Failbook.com iframed Failbooking.com and attempted to auction off the domain for more than $50,000. (Failbook.com was registered in 2006, but it was a parked page until he iframed our site.)
Screenshot: Note that nowhere does he mention that he’s not related to our site, Failbooking.com, but the title of the page makes it look like Failbook is in fact Failbooking.com (click image to enlarge)

– The owner of Failbook.com tried to market our content and site as his own by promoting on social news and networking sites as Failbook.com
Screenshot: Here is the owner of Failbook.com, trying to promote his domain as if he were us. (click image to enlarge)

– The owner of Failbook.com, who runs an Internet marketing agency in Mexico also even bragged about the “easy traffic” he was getting due to Failbooking.com on Twitter. (Which appears to be missing now.)

- As soon as we were able get his attention, we sent him a settlement asking him to reimburse us for our legal expenses (approximately $9,000) and to agree in writing that he would not violate our trademark or promote others to violate our trademark. He refused and tried to rewrite history and is now levying personal threats.

When we first learned about this, we had a few choices:
1) Go after the domain via the Uniform Domain-Name Dispute-Resolution Policy.
2) Send a Cease and Desist.
3) Take the case to court.

Our logic?
1) We had no problems with someone else owning a similar domain, especially since he had registered the domain well before us and our problem was NOT with the domain name itself, but the fact that he was trying to confuse our users into thinking he was operating our site at Failbook.com. So we didn’t pursue going after the domain name.
2) Sending a C&D would not stop the domain auction in progress. He would still benefit from the fraudulent activities he committed.
3) Suing was the last choice, and the most costly one for us, but it would mean that we would stop him from profiting from the fraud. So after some serious thoughts, we felt this was the right choice to make. Iframing an entire site and marketing it as your own is not the same as linking to another site, and doesn’t even fall anywhere near fair use. Traffic is nice, but if our users were becoming confused about the ownership of the site and we had no idea what Failbook.com’s owner planned to do with the site once he did amass our users’ goodwill.

I know from a PR and legal perspective, I probably shouldn’t be writing about this, but I realize that I am a public person and that the Cheezburger Network is company based on the goodwill of our users. Suing someone doesn’t feel like being a good Netizen, but I feel that the owner of Failbook.com got caught red-handed while trying to commit fraud and is trying to rewrite history.

I hope this helps people understand why we decided to sue and hear both sides of the issue. We are continuing to reach out to settle the suit that would ensure that he will not try to mislead our users again. We are not looking to profit from the case, but if he continues to apologize to us in private and then threaten us in the next breath, we’ll have no choice but to continue with the suit.

Posted on February 16, 2010, in Business, ICHC. Bookmark the permalink. 13 Comments.

  1. Sometimes a man needs to know when to put the spade down and stop digging a deeper hole (the other guy, that is, not you!).

  2. I guess some of your actions were justified, but you could have not proceeded with legal action in the first place, and just sent a little personal e-mail just asking him to stop, then putting forward a lawsuit if he didn’t listen.

  3. Why not use one of the “framebusting” JavaScript techniques to redirect the user from the framed site to the real one?

  4. I assume suing someone who’s based in another country is quite complex. That probably justifies the $9.000 in legal expenses. Keep us posted on the outcome!

  5. You’re acting like an adult and he’s acting like a kid with his hand in the cookie jar.

    Suing (or threatening to sue) is the right thing to do if/when this guy stops being reasonable, which seems like it’s already happened.

  6. Pretty ballsy for a guy who tends to steal other peoples creative Ideas.

  7. Read both sides of the story before commenting, people. I am not saying I know who is right and who is wrong. Just be unbiased.

  8. I agree, sounds like you couldn’t wait to get some money out of this. I am not a fan of lawsuits and this guy certainly didn’t hurt you guys in any way. I only wish more people learned of your litigious efforts.

    Also, I wouldn’t call this your first legal confrontation either since you file stuff with WIPO to acquire other websites often.

    It just seems like a case where the bully is picking on the weaker kid. Maybe the kid is a doufus who makes loud noises but certainly doesn’t deserve to get beaten up.

    • Assuming things doesn’t help anyone. We didn’t make a penny from suing him. In fact, if you bothered to read up on the issue, you’d realize that we ended up paying a fair market value for the domain and he was quite happy with the outcome.

  9. What he did wasn’t cool, and I’m glad it’s getting all sorted out, but it leaves me with a question…

    What about the sites that the Cheezburger Network has ripped off? Engrish.com was around long before your “Engrish Funny”, Tacky Weddings proceeded “Wedinator”…I mean come on, I love the CN sites and all, but call a spade a spade. What site are you going to ripoff next? Passive Agressive Notes? I have a few great ideas for humor sites, but I’d never actually make them, because chances are, CN would make a copycat site, draw more people, and my site would fade into oblivion.

    • Hi Tabitha,

      Bottom line is that no one “owns” these concepts. Not us, not them. I know Steve who runs Engrish.com and we both agreed that there was room for more than 1 engrish site. I had never heard of Tacky Weddings until now. The Internet’s a big place. There’s room for many sites and just because somethings similar has existed before doesn’t mean the next person is “copying” them. None of us are really first, and none of us will be last.

      Cheers,
      Ben


  10. Litigious:

    Also, I wouldn’t call this your first legal confrontation either since you file stuff with WIPO to acquire other websites often.

    He didn’t call it his first legal confrontation, he called it his first lawsuit. And filing at WIPO does not automatically imply any sort of grievance, anymore than filing at the USPO does. That’s like saying I have had legal confrontations because I filed my taxes, or bought a house.

  1. Pingback: Around the web | alexking.org

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: