Internet Library of Law
and Court Decisions

Corporate Officer - Internet Library of Law and Court Decisions - Updated February 18, 2008

Court holds that defendants, individual officers of co-defendant Search Cactus LLC (“Search Cactus”) can be held personally liable for violations of the Ohio Consumer Sales Practices Act (“OCSPA”) arising out of the transmission by Search Cactus of allegedly misleading and deceptive promotional emails, if “the officer took part in the act, specifically directed the act, or participated or cooperated in the act.”  Because the complaint alleged that the individual defendants approved the content of the promotional emails in question, the Court denied the individual defendants’ motion to dismiss, and allowed plaintiff, a recipient of such emails, to pursue his OCSPA claim against them.

Quick Hits

Court finds plaintiff Ballistic Products Inc. likely to prevail on its claim that its competitor - defendant Precision Reloading Inc. – violated the  Anticybersquatting Consumer Protection Act as a result of its registration of two “typo” domain names, containing misspellings of plaintiff’s then common law trademark.  Defendants registered these domain names to “attract potential customers” and pointed them to their own web site, at precisionreloading.com, where they sold competing products.  Finding such actions likely to confuse consumers, the Court issued a preliminary injunction, enjoining defendants from further use of the “typo” domains, and directed their immediate transfer to the plaintiff.

The Court further held that it could assert personal jurisdiction over the non-resident defendants.  The Court held that defendant Precision Reloading Inc. had sufficient contact with Minnesota to permit the assertion of general personal jurisdiction over it.  It had over the last 18 months sold over $21,000 in product to Minnesota customers, and purchased over $32,000 of merchandise from Minnesota sellers.  It had also distributed 223 catalogues to Minnesota residents, advertising its products, advertised nationally in publications sent to Minnesota and operated a website that received numerous ‘hits’ some of which were likely to be from Minnesota residents.  Specific jurisdiction could be exercised over both Precision and the remaining defendants under the ‘effects test’ articulated by the Supreme Court in Calder v. Jones.  The Corporate defendants committed tortuous misconduct directed against the plaintiff, a Minnesota company, the effects of which would be felt by that company in Minnesota.  Said the Court:

Defendants’ registration of domain names that are slight misspellings of Ballistic’s trademark and domain name was an action directed at Minnesota such that Defendants’ should ‘reasonably anticipate being haled into court’ in Minnesota. … ‘[a]n individual injured in Minnesota need not got to Connecticut to seek redress from persons who, though remaining in Connecticut, knowingly caused the injury in Minnesota.’ 

The Court held that the individual defendants, officers of Precision, “are primary participants in an alleged wrongdoing intentionally directed at a forum state resident, and jurisdiction over them is proper on that basis.”  It was the individual defendants who came up with the idea of registering the ‘typo’ domain names at issue to attract business for the defendant Precision Reloading. 

Download PDF of Court Decision

On the parties’ cross-motions for summary judgment, the Court finds the corporate defendants guilty of copyright infringement as a result of their unauthorized use of two of plaintiff’s copyrighted photographs in advertisements for their businesses. 

The Court further held that defendant Andrew Vilenchik, the sole board member and shareholder of defendant Vilana Financial, could not be held vicariously liable for defendant’s copyright infringement, because he did not have or derive a sufficiently direct financial interest from the use of plaintiff’s photographs.

The Court granted plaintiff summary judgment, dismissing defendants’ claim that his use of defendants’ trademark in the path of his site’s domain name violated the Anticybersquatting Consumer Protection Act.  Defendants’ claim failed both because they failed to submit sufficient evidence that plaintiff had a bad faith intent to profit from this use of the mark, and because use of the mark in the path of the domain name does not constitute actionable use of the mark in a domain name

The Court also dismissed trademark infringement claims brought by defendants as a result of plaintiff’s use of their trademark in a website that purportedly disparaged defendants as a result of their use of the photographs at issue, and in the meta tags of that site.  The court held defendants failed to establish the requisite likelihood of consumer confusion sufficient to sustain such a claim, given that the parties were not competitors – plaintiff was a photographer, and defendants sold real estate and mortgage services – and plaintiff’s website was highly critical of defendants.  In reaching this result the court noted that “a defendant’s use of a trademark in metatags in a descriptive manner can constitute a non-infringing fair use.”

Finally, the Court left for trial defendants’ remaining claims, which included deceptive trade practices, interference with contractual and business relationships, and misappropriation of name and likeness, all of which arose out of the disparaging remarks posted on plaintiff’s website about the defendants.  This site included a photograph of defendant Vilenchik.  Because issues of fact existed as to the truth of these statements, the court reserved decision on these claims until trial.

It should be noted that plaintiff ultimately prevailed at trial, was awarded approximately $20,000 on his copyright infringement claims, and that defendants’ remaining claims were dismissed.

Download PDF of Court Decision