Four days after filing a federal court complaint alleging defamation and related claims, Lewis & Lin obtained a consent order for a preliminary injunction requiring the defendant to remove a defamatory blog post about our client, a respected clinical psychiatrist with a private medical practice in Manhattan.
As alleged in the complaint, the defendant, a self-described psychotherapist, “wellness expert” and spiritual guru with a worldwide following, perpetrated an online attack campaign against our client by publishing and communicating false, defamatory and completely fabricated statements on his blog.
Lewis & Lin filed a complaint in the U.S. District Court for the Eastern District of New York, asserting claims for false advertising under the Lanham Act; trade libel and commercial disparagement; common law unfair competition; intentional infliction of emotional distress; tortious interference with contractual relations; breach of contract; unjust enrichment and fraud.
We concurrently sought an Order to Show Cause for a preliminary injunction and temporary restraining order. Upon being served with the initiating papers, counsel for the defendant contacted Lewis & Lin, agreeing to remove the blog post. Accordingly, the court issued a consent order for preliminary injunction enjoining defendants and their agents from publishing the blog post, or continuing to make certain defamatory statements about our client pending the resolution of the litigation.
Lewis & Lin successfully argued for the return of over 200 valuable domain names that were hijacked out of our client’s account. We represented a Hong Kong-based domain name investor whose 224 valuable domain names were stolen from his registrar GoDaddy’s account after the Defendants hacked into his Hotmail email account to steal and intercept his personal information.
The unknown defendants appeared to be sophisticated Chinese-based hackers. After gaining control of our client’s domain names, they transferred them to various other domain name registrars, including one in Germany.
Upon our engagement, Lewis & Lin immediately filed suit in U.S. District Court in Arizona – where GoDaddy is based – seeking a temporary restraining order requiring the defendants to return the domain names to our client’s account. The suit asserted causes of action for violation of the Wiretap Act, the Stored Communications Act, and the Computer Fraud and Abuse Act, as well as common law claims of conversion and trespass to chattels.
We sought a TRO requiring the defendants and their domain name registrars and domain name registry to immediately record the registration of record for the domain names to our client’s name and into an account under our client’s control; change the DNS and MX servers to those of our client’s choosing; and place a lock on the domains to prevent further unauthorized access. Despite questions the court initially had about jurisdiction over unknown Chinese defendants in an Arizona court, and the court’s power to require GoDaddy, the German registrar, and Verisign (the domain name registry) to act, the court granted our TRO in its entirety. Three weeks later, upon the defendants’ default, the TRO has matured into a preliminary injunction.
The case is No. 17-CV-03294 in U.S. District Court in Arizona.
Lewis & Lin Obtains TRO and Preliminary Injunction against Alleged Computer Hacker / Cybersquatter of Nootropics.com Domain Name
In a move that returns a domain name to the control of our client, Lewis & Lin was granted a temporary restraining order and preliminary injunction against the former owner of the domain, who allegedly attempted to regain access to it.
Our client, Cerelux Ltd., is an online seller of nonprescription cognitive enhancers known as nootropics. Until recently, Cerelux operated its business at the domain name nootropics.com, which our client’s principal obtained from the defendant in 2016. As alleged in the complaint, defendants transferred the domain name to Cerelux willingly enough in 2016, but subsequently suffered a case of seller’s remorse. After installing some sort of spying software, likely a key-logging program on a computer belonging to Cerelux’s principal, defendants gained unauthorized access to Cerelux’s domain registrar account to steal the domain. Defendants, impersonating Cerelux’s principal, transferred the domain name to another registrar, which caused Cerelux’s website to crash. Defendants subsequently tried to blackmail Cerelux into ceasing all operations.
Working with Los Angeles-based local counsel, Lewis & Lin filed a six-count complaint in U.S. District Court for the Central District of California for violation of the Wiretap Act and Stored Communications Act, trespass to chattels, and related claims. We also filed an Ex Parte Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue.
After a hearing, the court ordered that GoDaddy, the registrar of record for the domain name, transfer the domain into an account for our client, point the DNS and MX servers for the domain to our client’s website and mail servers, and place a legal lock on the domain. The court further ordered that our client had full access to all functionality of the domain and that the defendants were prohibited from impeding plaintiff’s access in any manner.
From the filing of the complaint to the issuing of the TRO took four days. Less than two weeks later, the preliminary injunction issued. While the case is still proceeding in litigation, our client is able to have full control over its rightful domain. The case is Cerelux Ltd. v. Shao, et al., No 17-CV-02909 (MWF) (KSX).
In a case of first impression in the Eastern District of New York, Lewis & Lin obtained a judgment against an anonymous, unidentified blogger in a defamation case brought by our client, a real estate investment company and its founder and CEO.
Our complaint asserted claims for trademark infringement, unfair competition, defamation, trade libel and tortious interference based on the unknown defendant’s anonymous emails and blog posts.
Upon filing the complaint, Lewis & Lin sought and was granted an order for expedited discovery to identify the John Doe defendant. After our extensive efforts to identify the defendant, we sought permission from the court to serve defendant via email. The motion was granted, and the defendant, after being served, failed to answer the complaint. Accordingly, we sought a default motion for damages and injuctive relief against the unknown blogger.
As the Eastern District of New York had never issued a judgment against an unidentified party, the Court directed our firm to provide authority supporting its power to do so. Citing cases from other judicial districts, we argued that the fact that defendant had not been identified was not fatal to a request for default judgment as long as it was properly served with process. In a 56-page report and recommendation, Magistrate Judge Cheryl L. Pollak agreed with our reasoning:
Where an unidentified defendant has been properly served with a complaint and has nevertheless failed to answer or otherwise respond, the fact that the defendant cannot be physically identified does not impede a court’s ability to enter judgment against it. To hold otherwise in a situation such as the one presented in the instant case would permit individuals who have violated federal law to continue to do so without redress for the harmed parties solely due to the fact that the wrongful party has successfully concealed himself or herself from identification.
Accordingly, Judge Pollak recommended judgment against the defendant for $225,000 in damages, along with attorneys fees and costs. Importantly, Judge Pollak also recommended that the offending blog be taken down and the email address be disabled. Chief Judge Dora Lizette Irizarry adopted the R&R in its entirety and issued an order to its effect. Upon receiving the court order, Google has carried out its terms and disabled both the blog and the email address. The case is 1:14-cv-05968-DLI-CLP in the Eastern District of New York. Please contact us if you have any questions regarding Lewis & Lin’s defamation law practice.
In a hotly contested domain name dispute, Lewis & Lin today received notice that the World Intellectual Property Organization granted its complaint seeking to transfer the Opentime.com domain name. Our client, Connecting Open Time LLC of Texas, holds a U.S. Trademark Registration for OPENTIME and is the creator of the Opentime scheduling app, which first became available in 2014.
The respondent, an American citizen residing in Japan who was apparently a software marketing professional, registered the domain name in 2016 and contemporaneously filed a trademark application in Japan for OPEN TIME.
In agreeing with us that the respondent lacked legitimate interests to the domain name, a single member panel of WIPO found that “Respondent acquired the disputed domain name after the disputed domain name was put up for sale by Afternic in or about late March 2016, filed a trademark application in March 2016 in Japan (which requires no proof of use) for OPEN TIME, used a privacy service to shield his identity, used the disputed domain name with a click-through portal that included links to timesheet software and related links, and offered the disputed domain name for sale.”
The WIPO panelist further found that the respondent was “likely aware of Complainant when he acquired the disputed domain name” and “failed to come forward with any documentary or credible evidence” that he registered the domain name for a good faith purpose. Accordingly, the panelist ruled that the respondent registered and used the disputed domain name in bad faith, and ordered that the name be transferred to our client.
The case is Connecting Open Time, LLC v. Domains By Proxy, LLC / Kyle Burns and can be accessed here.