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Google, the target of multiple online trademark infringement lawsuits, made a preemptive strike back in early August when it countersued the named plaintiff in a pending case against it. According to law professor Eric Goldman’s Technology & Marketing Law Blog, Google sued John Beck Amazing Profits, LLC, in the Northern District of California on July 27. The suit was a response to an Eastern District of Texas filing against Google on May 14, which was a putative class action led by John Beck. The web search giant seeks a declaratory judgment that it is not infringing on John Beck’s trademarks as well as damages for an alleged breach of its AdWords contract by John Beck when it sued in Texas — in a district with a reputation as advantageous for intellectual property complaints — rather than California.

In the first lawsuit, John Beck — a Los Angeles company that sells real estate investment advice– sued Google as well as several companies that use its technology for selling its trademarks as keywords using Google AdWords. The proposed class was very large, including all trademark holders in the United States whose trademarks have been sold as a keyword or AdWord for the past four years. However, according to Google’s countersuit, the complaint in that case had not been served to Google as of August 2, even though it was filed May 14.

Google responded with its suit for declaratory judgment, which targeted only John Beck. Its complaint alleges that John Beck’s original lawsuit was anti-competitive and subverted trademark law’s goal of preventing deception of consumers. It asked the court for declaratory judgments that it did not infringe John Beck’s trademark, contribute to such infringement, vicariously infringe it or falsely designate the origin of its mark. It also made a claim for damages from John Beck’s alleged breach of Google’s own AdWords contract, which it entered into as an AdWords customer. That contract included a provision that disputes should be settled in the Northern District of California, Google’s home jurisdiction, making John Beck’s choice to file in East Texas a breach of contract. As Professor Goldman observed, Google is probably also trying to move the venue of the original East Texas suit to the Northern District of California.

The original John Beck lawsuit was one of multiple lawsuits with similar trademark-infringement allegations against Google for its AdWords program. At DiTommaso Lubin, our Chicago online trademark infringement lawyers and Wheaton, Waukegan, Joliet and Chicago trial lawyers have investigated, and pursued similar claims. As of early August 2009, no court has ruled on the substance of these claims, although rulings on related matters have been slightly favorable to trademark holders. As with all trademark claims, the plaintiffs in cases like John Beck’s class action can ultimately win only if they show that Google’s advertisements create a likelihood of confusion among consumers looking for their products online, which can depend heavily on the circumstances and details of each case. Our Illinois Internet trademark attorneys work hard to prove those claims on behalf of clients.

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Our Chicago Auto Fraud and Lemon Law Lawyers can assist victims of auto dealers and automakers who purchased certified used cars that turned out to be rebuilt wrecks, salvage vechicles or involved in a serious accident. We have represented a number of victims of this practice. Automakers charge car dealers a fee to certify used cars. However the Automakers do not police their dealers to ensure that the dealers have properly certified and inspected the used cars before certifying them for the Automaker.

If you believe you know someone who has been a victim of auto fraud or have been deceived into buying a flood car, rebuilt wreck or salvage vechicle DiTommaso Lubin may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Fraud, RV Fraud, and Boat Fraud private law firm and our affliated co-counsel handle individual and class action consumer rights, lemon law, and autofraud lawsuits that government agencies and public interest law firms may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that consumers’ rights are protected from unscrupulous, illegal or dishonest practices.

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Our co-counsel has sucessfully litigated cases against high interest rate small loan outfits for cheating disabled persons by putting them into small loans that they don’t need and then churning the loan so that it eats up much of the victim’s social security payments. We are looking for cases to bring against high interest rate pay day lenders and installment payment lenders who have taken advantage of mentally impaired individuals. We want to put an end to high interest rate lenders harming disabled mentally impaired individuals.

The National Consumer Law Center’s website provides great insight into the predatory practices of high interest rate pay day and installment payment lenders.

To view NCLC’s information sheet on high interest rate loans click here. NCLC’s website describes the loan churning practices of pay day and predatory small lenders as follows:

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Our Chicago Internet trademark infringement litigation lawyers were interested to see a recent lawsuit with a new twist on the trademark infringement claims corporations are bringing against online companies. According to the Dallas Business Journal, Mary Kay v. Yahoo!, a pending lawsuit filed July 6 in Dallas federal court, does not allege that Yahoo! violated the cosmetics seller’s trademarks by selling keywords in advertisements. Instead, Mary Kay claims its copyrights are violated when its independent sales associates send email to clients with Yahoo! email accounts, because Yahoo! adds advertisements for competitors and third-party resellers into the messages. Mary Kay claims dilution, trademark infringement and unfair competition in its lawsuit, and seeks damages and an injunction against the practice.

The case comes shortly after a victory for Mary Kay in a related case. In Mary Kay v. Weber, the defendants were not advertisers, but a reseller of Mary Kay products that authorized sales consultants couldn’t sell. As David Johnson’s Digital Media Lawyer blog explained, Amy and Scott Weber sell Mary Kay cosmetics (along others) at touchofpinkcosmetics.com, often at a discount because they are discontinued or expired. Mary Kay sued them on several legal theories and won on its trademark claims, although the judge in that case did make a summary judgment ruling favorable to the Webers on nominative fair use grounds.

Nominative fair use allows businesses to use another’s trademark in a way that’s not likely to cause confusion, such as a car repair shop advertising that it focuses on fixing Volvos. As Johnson explains, a nominative fair use defense can be used in the Fifth Circuit if the alleged infringers had only used as much of the trademark as necessary to identify the products and did not do anything to suggest that they were sponsored by, endorsed by or affiliated with the trademark holder. However, the jury ultimately found that the Webers’ use of Mary Kay’s trademarks went beyond fair use, in part because their advertisements did suggest sponsorship by Mary Kay. Importantly for Illinois online trademark infringement litigators like us, however, the judge found that the Webers’ purchase of Google keyword ads using Mary Kay’s trademarks did not inherently make a fair use defense unavailable.

Keyword issues will come up more explicitly in Mary Kay’s current suit against Yahoo! Mary Kay alleges that Yahoo! is violating its trademarks by allowing them to be used as keyword ads in text and pop-up ads for third parties, inserted into messages to Yahoo! users. As with all trademark infringement lawsuits, Mary Kay will have to prove that this creates a likelihood of confusion among consumers. Similar lawsuits against Google, largely based on its Google AdWords program, were pending when this was filed. Trademark infringement lawyers interviewed in a Dallas Business Journal thought the makeup seller’s claim was weak, but Johnson suggested that a fair use defense might be difficult for Yahoo! because the sponsored ads show up in emails, which could legitimately confuse consumers not accustomed to seeing them there. Ultimately, a jury will decide whether consumers could realistically be confused by the practice.

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Our Chicago ATM fee fraud attorneys keep an eye on consumer fraud litigation around the U.S. That’s how we discovered a series of lawsuits alleging that various ATM operators around the country committed ATM fee fraud in violation of the Electronic Funds Transfer Act. Pittsburgh law firm Carlson Lynch alleges that ATM operators failed to post a required notice about fees, in at least 12 lawsuits in Pennsylvania, Ohio, New York and Nevada. Most are proposed class actions, which means banks and ATM companies could pay up to $500,000 or one percent of their net work in each suit, if the classes are certified.

The most recent lawsuit to catch our attention was filed Oct. 13 in Rochester, NY. According to an Oct. 23 article from the Rochester Business Journal, ATM customers allege that Canandaigua National Bank & Trust Co. failed to post a notice that a fee would be charge on the outside of the machine, as the EFTA requires. The machines did have a notice provided electronically during the transaction, also a legal requirement. The purported class seeks return of the fees as well as statutory damages of up to $500,000 or one percent. Other cases have been brought against a Las Vegas company that focuses on providing ATMs to casinos and a series of banks and ATM operators in Pennsylvania and Ohio. Attorney Bruce Carlson of Carlson Lynch said his firm has already won at least one settlement of the maximum amount, but at least one of his claims has also been dismissed.

Our Illinois ATM fee fraud lawyers plan to keep a close eye on these cases as they progress. As Carlson told the Business Journal, the relevant language of the EFTA is not ambiguous about ATM operators’ duties. In order to legally charge a fee for using an ATM, the operator of the ATM must post a prominent notice of the fee’s existence and amount “on or at” the machine. It must also provide the notice on the ATM’s screen or on a paper receipt, before the customer completes the transaction and incurs the fee. Most ATM operators have no trouble meeting these requirements, but as these lawsuits demonstrate, a large handful appear to have failed. Consumers who are misled as a result are entitled to hold the ATM operator legally responsible for the extra fees and any other damages the court deems appropriate.

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The Illinois Department of Labor has a great website which provides alot of useful information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.

You can find the website here. With regard to federal and Illinois overtime laws, the website provides answers to various questions and links to other areas of the site for answers:

When is overtime pay legally due?

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The United States Department of Labor has an excellent website which provides detailed information on fair labor laws including the requirement that employers pay time and half for overtime work for non-exempt employees.

The website is located here. With regard to federal overtime laws, the website states:

Overtime Pay

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As Illinois shareholder dispute and shareholder squeeze out and freeze out litigation attorneys, we were interested in a state appellate decision affirming that corporate bylaws may be abrogated by years of contrary practices. Kern v. Arlington Ridge Pathology, S.C., No. 1-07-2615 (Ill. 1st. Dist. Aug. 7, 2008) arose from corporate governance problems at medical corporation Arlington Ridge Pathology. Dr. Susan Kern was an original shareholder of Arlington when it was incorporated in 1994. Arlington had six shareholders originally, but that number dropped to three in 1999 and stayed there through most of the time until this suit was filed in 2005. The other shareholders and directors were Dr. Richard Regan, elected president of the board in 2005, and Dr. Kishen Manglani. Arlington had an exclusive agreement with Northwest Community Hospital, and its shareholders had offices and practiced there.

Arlington’s original articles of incorporation are silent on the issue of a quorum for doing business or configuration of the board. However, its bylaws say a quorum is a majority of directors and the board should be made up of four to nine directors who are shareholder employees and doctors. Similarly, the articles of incorporation do not specify requirements for board actions, but the bylaws say the board may remove a director with a vote of 80% of shares. They also require an 80% vote to adopt new bylaws. Despite the board requirement, Arlington operated with a three-member board for most of the time since 1999. According to Kern, there were no regular meetings, no changes to bylaws and only two special board meetings. All actions of the board were unanimous.

Conflicts arose between Kern and Bruce Crowther, chief executive officer at Northwest. She alleges that their relationship was never good, but it became worse after a dispute that led to filing an incident report with Northwest on Sept. 12, 2001. Later, in June of 2005, an Arlington employee filed a report with Northwest accusing Kern of unprofessional and improper behavior. Kern alleged that this led to a “circus investigation,” but Regan met with Crowther to say Arlington would handle it internally. Nonetheless, Kern said, Crowther sent Regan a letter around the same time threatening to end the hospital’s contract with Arlington if it didn’t either fire Kern or send her to professional counseling.

Regan called a special board meeting for Oct. 21, 2005 at 1:30 p.m. — but he and Manglani met beforehand with Arlington’s attorney. They voted to change the articles of incorporation to allow an alternation or amendment of the bylaws with a two-thirds vote. When Kern arrived for the meeting and connected her attorney by speaker phone, she was given the minutes of the earlier meeting and a required five-day notice of the change. Kern and her attorney objected to the earlier meeting, but Arlington’s attorney said they weren’t needed because the directors already knew her position. When the resolution came into force, Manglani and Regan made several more bylaw changes, including one that required a two-thirds vote to remove a director and terminate an employee.

Two days later, Kern filed this action against Arlington and Regan, later amended to include damages for conspiracy and breach of fiduciary duty. At trial, the court granted summary judgment to the defendants and denied Kern’s motion to reconsider. It found that, by operating for years with only three shareholders, Arlington had abrogated its bylaws. Thus, a quorum was present at the Oct. 21 pre-meeting meeting at which Manglani and Regan made their decision, and the amendment was proper, the trial court said. Kern appealed the summary judgment ruing.

On appeal, one controlling issue emerged: whether the trial court was correct to find that the Oct. 21 meeting between Regan and Manglani had a quorum. Kern argued that it did not, according to Arlington’s articles of incorporation and bylaws as well as Illinois caselaw and the Business Corporations Act. Illinois courts have found that articles of incorporation are enforceable contracts between corporations and their shareholders, she said. Furthermore, previous decisions by Arlington’s board had been made unanimously, with all members present. Thus, the absolute minimum number of shareholders for a quorum on Oct. 21 should have been three, she argued, because the bylaws set a minimum number at four. And because the bylaws specified an 80% vote for any change of the bylaws, Kern argued, the shareholders clearly wanted a supermajority.

The appeals court disagreed. It found authority for the trial court’s decision that the Arlington board had abrogated its quorum rule in Johnson v. Sengstacke, 334 Ill. App. 620 (1948) and The First Church of Deliverance v. Holcomb, 150 Ill. App. 3d 703 (1986). In both of those cases , courts found that years of practices that did not follow the bylaws abrogated those laws by implying the board members’ consent. The same is true in this case, the court said.

This formed the basis of its decision in favor of Arlington and Regan on almost all issues. Past practices and the Business Corporation Act dictated that there was a quorum; that a two-thirds rather than 67% vote was appropriate; and that summary judgment on the conspiracy and breach of fiduciary duty claims was proper because the other directors had taken no illegal actions. It also dismissed her conflict of interests claim against Regan and Manglani, saying the relevant section of the law applies only to outside corporate actions, not internal governance matters. The First affirmed the trial court’s rulings on all counts.

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As Illinois online trademark infringement attorneys, our interest was piqued when we saw an Aug. 4 article in the New Jersey Star-Ledger about civil and criminal charges against a man accused of outright stealing a domain name. P2P.com, LLC v. Goncalves et al, pending in New Jersey federal court, accuses Union, N.J. man Daniel Goncalves of hacking into an email account owned by Albert and Lesli Angel in order to illegally gain control of three of their domain names. These are p2p.com, drugoverdose.com and profreedom.com, which are co-owned by investor Marc Ostrofsky. Goncalves, a 25-year-old who runs a Web hosting business, was arrested in late July for the same alleged actions, in what the newspaper said may be the first criminal case over the theft of a domain.

A domain name is the unique identifier for a Web site — for example, chicagobusinesslawfirm.com is the domain name for one of our own Web sites. Some investors buy domain names they believe will be in demand and therefore valuable someday. That was the case when the Angels and Ostrofsky bought p2p.com for $160,000 from a Wisconsin company called Port 2 Print, believing they could resell it to a business related to peer-to-peer software. On the Internet, peer-to-peer software is frequently referred to as p2p. Similar thinking went into the purchases of profreedom.com and drugoverdose.com. They paid to register and “lock” p2p.com for ten years with registrar GoDaddy.com.

But in 2006, the investors’ complaint alleges, Goncalves and possible others intentionally and knowingly gained illegal access to the Angels’ AOL email account, allowing them to transfer the domains from the Angels’ GoDaddy hosting account to another hosting account they controlled. They then allegedly re-registered the domains under false names and addresses and redirected traffic away from the sites. A few months later, the complaint says, the defendants put p2p.com up for sale on auction Web site eBay, where NBA player Mark Madsen paid more than $111,000 for it. Drugoverdose.com has also been resold. The complaint also accuses Goncalves of falsifying records showing that the Angels sold the domains to Goncalves. An attorney for Goncalves told the Star-Ledger that Goncalves bought p2p.com for $1,500, through a third party he believed represented the Angels.

The lawsuit accuses Goncalves and others of breaking state and federal racketeering laws with their conspiracy to steal the domains; fraud; tortuous interference in the investors’ business opportunities and unauthorized access prohibited by the federal Computer Fraud and Abuse Act. More recently, the plaintiffs asked to add GoDaddy.com as a defendant for allegedly allowing Goncalves to transfer the domain. In addition to financial damages, the investors seek the return of all three domains and an order stopping the defendants from selling their domains. The new owners of the allegedly stolen domain names were named as defendants in the original suit, but according to news reports, Madsen claims to be a good faith buyer and the Star-Ledger said he has had civil discussions with the investors.

As Chicago online trademark infringement attorneys, we are very interested in the outcome of this case. As we noted, this may be the first case of criminal charges in a domain name theft. According to DomainNameNews.com, it may also break new ground if it holds GoDaddy legally liable for allowing the theft. According to that article, the Angels claim GoDaddy stonewalled their attempts to investigate and blamed them for inadequate security — despite evidence implicating Goncalves in earlier domain name thefts. Registrars are generally not found liable for allowing domain name theft, though there are notable exceptions. The decision(s) in this case could change that, at least in cases with clear negligence.

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As Chicago ATM fee fraud attorneys, we were extremely interested to see an ATM fee fraud lawsuit filed right here in the Northern District of Illinois. According to an Oct. 29 post from the Chicago Bar-Tender blog, Frederick Brill is suing Marriott International Inc. over alleged violations of the Electronic Funds Transfer Act. The case stems from ATM fees incurred by Brill’s use of an ATM in the lobby of the Marriott Lincolnshire, in the Chicago suburbs, in December of 2008. Brill and his attorneys are seeking class action status for the case, which they say could include hundreds of people.

The complaint in the case says Brill found no notice on the outside of the machine, but he was nonetheless charged a $2.50 fee to use it. This alleged conduct violates the EFTA, a federal law governing consumers’ rights when withdrawing, paying or moving money electronically, including through ATMs. ATM fees are legal under the EFTA, but ATM operators are required to post notices of the fees and their amounts on the outside of the machines. They must also put an additional notice on the screen of the ATM itself, or on a paper receipt, a requirement not at issue in the lawsuit. If ATM operators fail to meet these requirements, the EFTA allows injured consumers to sue to recover the fee, as well as statutory damages of a set amount per violation. If the case is a class action, as proposed here, injured consumers may recover attorney fees and statutory damages of up to $500,000, or one percent of the company’s net worth, whichever is lesser.

As consumer rights attorneys for more than two decades, we are pleased to see growing consumer awareness of this problem. ATM fees themselves caused a lot of grumbling when they were first introduced, but court rulings made it clear that it’s not illegal simply to charge an ATM fee. This has trained many consumers to shrug and accept outrageously high fees. By contrast, the language of the EFTA is very clear about the requirement to give notice of ATM fees on both the outside of the machine and on the screen itself. The law is designed to give consumers the opportunity to opt out of fees they don’t agree with — something that’s much less likely once they’ve already inserted their cards. Consumers have the right to make decisions about these fees with full information, and ATM operators shouldn’t be able to end-run around their legal obligations, whether out of negligence or deliberate choice.

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