ICanHasLawsuit? Pet Holdings Sues Other Site For Framing Failbooking With Better Domain Name

from the lollawyers dept

A few weeks ago, when I attended Public Knowledge’s World Fair Use Day, I had been excited to meet the guy behind ICanHasCheezburger, Ben Huh, who was supposed to be on my panel, talking about how the various sites he ran make use of fair use all the time. Unfortunately, at the last minute he had to bail. But given how much the network of sites relies on fair use, you would think that the company he represents, Pet Holdings, would be gentle about suing others on copyright claims. Not so much, apparently.

Jhn alerts us to the news that Pet Holdings appears to have sued the site Failbook.com, over cybersquatting, trademark infringement and copyright infringement. You can see the lawsuit here:

Basically, the issue is that Pet Holdings set up a site called Failbooking.com (making fun of poor social networking usage). That site was just launched recently. Someone else, who already owned the site Failbook.com then decided to just use that URL to frame Failbooking. If anything, it seems like this would have been helpful to Failbooking, as it would give them more traffic. While the Failbook.com guy has taken down this message, originally he explained on his site:

  • There never was a copy of the site under our possession, we’ve embedded the site, it’s a common internet practice
  • There was no profit on embedding failbooking
  • The ads revenue from failbook remained 100% to failbooking
  • Failbooking encourages users to share the fails “Put this fail on your blog: (Copy & paste code)”, failbook just did so in an automated manner
  • There was NO COPY of any copyrighted material
  • There was NO ALTERATION of any kind of material, nor removal of copyrights
  • Failbook.com was registered on 02/May/2006, the intention on the acquisition of the domain never was to take advantage of failbooking
  • The information throughout the lawsuit is misleading, taking advantage of misinterpretation on the use of technology.

On top of that, the Failbook guy points out that there wasn’t even a cease & desist or any contact at all. Just a lawsuit. Perhaps there’s more to this, but it seems like the Pet Holdings/ICanHasCheezburger guys may have gone on the offensive a little too quickly.

Update: Ben Huh chimes in, both in the comments and via email and makes Pet Holding’s case thusly:

1) The owner of failbook.com attempted to maximize the sale price of the domain while trying to trick buyers and users into thinking they were at a legitimate Cheezburger Network site. The owner even tweeted about how easy it was to get traffic this way.

2) The Cheezburger Network was forced to take swift legal action in an attempt to prevent the fraudulent sale of the site (an auction appeared already under way). The filing of the lawsuit prevents the domain transfer and sale from occurring with the registrar in a way a Cease and Desist cannot.

3) We suffered significant expenses and damages because the owner of failbook.com tried to confuse our users and defraud domain buyers. The owner of failbook.com even marketed his domain in the hopes of capitalizing on the success of Failbooking.com.

We have dealt with many domain disputes amicably in the past. However, this is the most egregious case of fraud we have seen. I think it’s very clever for him to try to publicly spin his story, but the facts are very revealing. You’re absolutely right in that we’re a company that relies on the goodwill of our users and fair use. We seriously considered letting the matter slide until we realized that the owner of failbook.com was trying to sell the domain and purposefully confuse our users. We’ve also contacted the owner of failbook.com several times in order to reach a reasonable settlement.

I’m still not convinced that this is a problem or that any “harm” came to the Cheezburger site. There may, ever so slightly, be a trademark issue if the owner of the Failbook site claimed he was selling a site that was directly a part of Cheezburger/Pet Holdings, but I haven’t seen the evidence of that. I could see how a buyer for the site could claim harm against the owner of Failbook, but it’s still not clear to me how Cheezburger/Pet Holdings itself was harmed by this or what sort of “fraud” there was. That Failbook tried to capitalize on the situation (and, remember, he owned the domain years before Cheezburger started its site) isn’t fraud by itself. I guess I’m still not convinced of why the lawsuit makes sense here.

Update 2: Here’s a pdf showing what Failbook.com looked like, which Pet Holdings claims shows the “fraud,” though I still don’t see the issue. It’s just an iframe of the site. Yes, he’s trying to sell the domain name, but all the traffic is still going to Pet Holdings, so I’m not sure what the issue is:

Separately, the guys behind both sites are discussing this in the comments, so jump in and see what they have to say. Maybe we can see them work out their differences in real time.

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Companies: pet holdings

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Comments on “ICanHasLawsuit? Pet Holdings Sues Other Site For Framing Failbooking With Better Domain Name”

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127 Comments
thetalmid says:

Although they may have jumped the gun on filing a lawsuit (we don’t know if there is any communication or not) the reason is sound. The owner of failbook.com may now claim that he was no seeking revenue from the site, but the actual truth as shown in the lawsuit is that he was attempting to sell the website failbook.com and using failbooking material to do so.

Considering the falseness of the failbook.com owners statements in regards to what he was actually doing with the site, I don’t think we can trust any of his statements, including his claim that PHI did not contact him first.

6 (profile) says:

Mike you will want to take a look at these papers on copyright.

Does Copyright Law Promote
Creativity? An Empirical Analysis of
Copyright’s Bounty

http://www.vanderbiltlawreview.org/articles/2009/11/Ku-et-al.-Does-Copyright-Law-Promote-Creativity-62-Vand.-L.-Rev.-1669-2009.pdf

Copyrights as Incentives: Did We Just Imagine That?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1515964

Real Copyright Reform

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1474929

And you might want to add some of them to your favs.

Mike Masnick (profile) says:

Re: Re:

Mike you will want to take a look at these papers on copyright.

Off topic, yes?

But don’t worry, I follow Copycense on Twitter, and saw all three of those postings, so no need to pass them on here. We already wrote about the Litman paper when an earlier draft came out, and the second one isn’t up yet so I was waiting for that to come out.

6 (profile) says:

Mike you will want to take a look at these papers on copyright.

Does Copyright Law Promote
Creativity? An Empirical Analysis of
Copyright’s Bounty

http://www.vanderbiltlawreview.org/articles/2009/11/Ku-et-al.-Does-Copyright-Law-Promote-Creativity-62-Vand.-L.-Rev.-1669-2009.pdf

Copyrights as Incentives: Did We Just Imagine That?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1515964

Real Copyright Reform

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1474929

And you might want to add some of them to your favs.

Big Al says:

Re: I think it was justified

Except that Failbook (if you RTFA) has been in existence since 2006. Or are you saying that Failbooking.com (having just been set up) should be taken down and reparations paid to the owner of Failbook? I believe that this would be the correct course, if any. On the other hand, why don’t they just STFU?

Noofbiz says:

Re: Re: I think it was justified

It’s not that. What is going on is that the failbook guy was a site squatter. They sit on domain names when people search for them, then sell them back at much higher values. This guy was hoping he could use the failbooking name to sell his site, failbook, for 50,000 USD. It doesn’t matter that failbook was around first, failbook was an empty site until failbooking got big, then the guy tried to turn around and sell failbook for a huge profit under the guise that the buyer would be getting a piece of the cheezeburger network.

Anonymous Coward says:

Re: Re: I think it was justified

@mike, the embedding site is using the embedded site without providing any link juice, and this artificially inflates the traffic at the embedding site, so that when he goes to sell it, he can say it gets a ton of traffic, which he only obtained by using the trademark from the embedded site.

as you’ve pointed out on this blog yourself many times, the trademark is limited to the field of use… and this embedded site is in the business of giving laughs about people doing stupid things. the embedding site is in the business of domain parking. the second the embedding site tries to reference the other site saying acting like they have some relation, it’s trademark infringement, and there’s nothing wrong with that.

as for what the law is, both facebook and digg stopped framing other’s sites. it’s well accepted among trademark attorneys that framing someone else’s site is almost always going to be trademark infringement. all cases i can find regarding framing have ended in the framing site settling the case very early, by stopping the practice of framing and paying out an “undisclosed” sum. they usually don’t even get to a motion for summary judgment.

mobiGeek (profile) says:

Re: Re: Re: I think it was justified

this artificially inflates the traffic at the embedding site, so that when he goes to sell it, he can say it gets a ton of traffic, which he only obtained by using the trademark from the embedded site.

But how does that harm the embedded site in any way at all? The party who may be damaged by this is the (yet to be found) purchaser of the embedding domain name. It is that purchaser who could seek legal recourse (hopefully after other attempts at recourse prove unfruitful).

There isn’t a “trademark” issue here as the “product” being sold (domain name) is not in the same market that the embedded site is selling (web content). It could be argued that for the embedded site “everything is for sale”, but that would be a convoluted argument.

If I sold someone the domain name “gooogle.com” (which likely already exists…so don’t go there) for $10,000 would Google Inc have legal recourse against me? Google wasn’t damaged by that. The buyer, however, could go after me if they can prove that I purposefully deceived them as to what they were actually buying (…and my defense would essentially be “buyer beware”).

John says:

Re: Re: I think it was justified

The sites domain has a value that can be assigned by how people get to the site, eg goodwill. As soon as you frame content in a way that makes it look like your domain is the same domain as the framed domain you can damage the framed domains goodwill.

There was an argument above that if failbook sells they are only stealing from the person who buys the domain to but all that traffic failbook gets that was intended for failbooking is goodwill the framed domain loses when you no longer frame or sell the site to someone else. If everyone starts to type failbook instead of failbooking the goodwill of the domain failbooking is now damaged due to the actions of failbook.

Its stupid but that is how it works.

JC Dill (user link) says:

Re: Which came first?

If a “moron in a hurry” could think that failbooking=failbook” then note which came first.

whois failbook.com

Domain Name: FAILBOOK.COM
Created on: 02-May-06
Expires on: 02-May-10
Last Updated on: 11-Jan-10

whois failbooking.com

domain: failbooking.com
created: 30-Dec-2009
last-changed: 20-Jan-2010
registration-expiration: 30-Dec-2010

If there’s an abuse of trademark (doubtful, there is no trademark on file for failbooking, and if there was it would probably have been issued in error since failbook was already in use in “this market”), that’s not a copyright infringement.

If there’s any “passing off” happening it would be facebooking.com trying to “pass off” as the older, simpler domain name.

I don’t think facebooking.com has much to stand on here.

Devils_Advocate says:

Re: Re: Which came first?

The suit is for diluting the trademark of failbooking.com and using their content for profit. The mark failbook.com may fall under common-law use but Cris never filed suit for his mark infringement.

You simply cannot use another person’s property or content to sell your own items. That’s why we have laws of fraud and copyright infringement.

If Cris were smart, he would send a certified letter to Ben’s lawyer and request a meeting face to face. Looking to negotiate can impress a judge. Furthermore, you can get a lot done with a person to person meeting. Plus it will save Cris thousands of dollars in fees.

Crunchy says:

Re: Re: Which came first?

It doesn’t matter which site came first. If you hold legal ownership of a name, then you have a valid claim on the rights to the public use of that name. This is why domain squatters often find themselves on the wrong side of lawsuits. Simply owning the domain doesn’t automatically give you the right to use it at will forever.

That being said, that’s not really the case in this instance, since their website is called Failbooking and their domain clearly reflects it, they have no real claim to failbook.com or of trademark infringment… But they never claimed ownership of that domain nor did they claim that their trademark was infringed upon – they only demanded that the domain owner stop piping their work through his domain which is fair enough.

Failbook.com was quite clearly trying to use the popular content on failbooking to add value to a domain so it could be sold on for a higher price. Does anyone here really think they could be asking anywhere in the vicinity of $50k for the domain without the content on failbooking? While this doesn’t constitute actual damages to failbooking in of itself, it definitely does impact on goodwill. Many regular readers of the content could reasonably believe that failbook.com is the main website and would certainly be confused when the site they used to visit all-of-a-sudden became a link farm or porn site or some other internet detritus that the highest bidder decided to use it for.

Additionally, Failbook.com may have been simply been framing failbooking.com, however there is nothing stopping them, or anyone else carrying out the same practice, from tacking on advertising, malware or tracking cookies, or any other content that they feel like at any time. You could argue that failbooking should wait until that happens to react but why should it be incumbent on them to monitor other people’s sites to make sure they’re not up to anything?

Likewise, domain owners like failbook.com might have errors caused by their framing or outages which result in their visitors being unable to see the content properly. If readers believe that failbook.com is the main website, then the effect on goodwill is obvious, and there would be nothing failbooking could do about it. It’s completely fair for them to demand the practice stop.

As for the reasoning behind the lawsuit vs a simple C&D… Well if we take Ben’s word at face value, then I can understand their response. However given that failbook.com has now rectified the issue, then the law suit could be withdrawn (obviously dependent on the financial damages incurred by Pet Holding as a result). That being said, I have a deep and personal hatred for domain squatters. They’re parasites of the internet and are responsible for a good portion of the rubbish floating around the tubes.

Despite his weaseling attempt to fob this off as just innocently passing traffic to failbooking, the owner of failbook.com was transparently attempting to get rich off someone elses work while adding no value to it, and has now found himself on the receiving end of legal action as a result. So let him burn – I’ll bring the marshmallows.

Anonymous Coward says:

Re: Response available

Ben,

I’m not Mike, but you need to discuss this in public vis-a-vi why you feel this was a necessary step. From my understanding to date, you aren’t suffering any damages, gain an audience, and profit thereby. You don’t have to give away all you know, just shed some light on why a simple call to them to discuss wasn’t an option for you.

I’m willing to listen to your side of the matter, but I can’t do that if you won’t talk. In light of this, I’m still visiting your sites myself, but if I don’t see what I consider a good, valid reason, I’m not visiting your sites anymore and will encourage my friends not to either.

And that would be sad – I enjoy your sites and put up with the ads because I know that’s how you pay to keep them up, and hopefully a bit of coin for yourself. However, if you are going to pull something that I consider to be bogus with the level of (non) information I have, I’m not going to give your sites hits anymore, and ask others not to as well.

Thanks for the laughs, and I hope you will discuss with your lawyers what you can say, and post that.

Ben Huh (user link) says:

Responding via comments vs. to Mike

Hey Dark Helmet (and all other comment readers).

We’d like our response to receive the same treatment as the original post. If I respond via comments, it won’t be syndicated via RSS or email.

Once the post is updated with our response, I am more than happy to answer questions via comments.

P.S. Kudos to TechDirt community for asking for a response. I appreciate that.

Dark Helmet (profile) says:

Re: Responding via comments vs. to Mike

“Once the post is updated with our response, I am more than happy to answer questions via comments.”

And if the response doesn’t warrant updating the post? Not saying it doesn’t, but we see a great many shall we say questionably useful responses to posts here an elsewhere….

SSS says:

Bad Practice

Of course it’s not legit…

Why don’t we all rip off a top site – let’s say Mashable – take their entire site, brand, everything, and just post all their stuff on a domain. We won’t even have to pay their skilled writers, how awesome is that!

Is that how the internet should work?….
I can own my own Mashable by the end of the week, can’t wait!

Mike Masnick (profile) says:

Re: Bad Practice

Why don’t we all rip off a top site – let’s say Mashable – take their entire site, brand, everything, and just post all their stuff on a domain. We won’t even have to pay their skilled writers, how awesome is that!

But that’s not what happened. It was an embed. Meaning that Failbooking still got all the traffic and all the ad views.

So, yeah, it was kinda awesome.

Cristian Castillo (failbook owner) (user link) says:

Re: Re: Re: Bad Practice

Ben,

The traffic I got was direct traffic and “failbook” search traffic. The fact that you’ve poorly chosen a domain name is not my fault. It was my bad to spend a couple of hour placing the iFrame, and as soon as I realized it was wronging you I stopped.

We should leave it there, don’t you think?

Regards, Cris

Anonymous Coward says:

Re: The screenshot of Failbook.com that caused us to file the suit.

I have been visiting Failbooking.com for a long time and I love it. I agree entirely that the domain user should be punished – why allow this to simply slide? This person used someone else’s webpage to attempt to trick and fool someone into purchasing their useless domain. I went onto Failbook often, evidently I was confused! While I understand that this probably wouldn’t have harmed Failbooking, would you want your material to be the product of exploitation>

The only disagreement I have with this entire thing is the settlement. $8,000? The owner of the site had to trick people just to purchase the domain, I douby he carries too much money. I understand that a punishment is in order but $8,000 is just greedy! Even if you wish to set an example, I feel this is just … pushing it. Really pushing it.

Anon says:

Re: The screenshot of Failbook.com that caused us to file the suit.

Domains do not equal websites. They are just easy to remember text strings that link to an IP address of a server. So selling a domain does not mean someone is selling a website. I thought someone that heavily involved with the web would know this. Anyone who would be interested in buying a domain would know this, or find out quickly what it means to own a domain.

This all seems childish to me. All the traffic was sent to failbooking.com anyway. It only boosted your traffic. But that’s stealing your material by rerouting traffic to your site? I see it is not proper in the way he presented your site, however, from the medias point of view, it seems you didn’t even bother to contact him before jumping down his throat. I do not see why you needed to stop a DOMAIN sale. The framing of your site without permisson, yes. But his domain sale, no. Your lawsuit seems backwards to me as you don’t care about the framing, only his domain sale. It seems to me with the media coverage on this, that you didn’t even bother to ask for him to stop before pressing legal action. That is very poor business taste. If you had good business sense you wouldn’t have let this hit mainstream media and kept this quite if possible. I used to be a fan of your cheezburger network, not anymore knowing how you choose to run it.

Anonymous Coward says:

So there would be no problem if I bought amazonny.com fifteen years ago, later framed amazon.com on the domain (so going to amazonny.com appears to be amazon.com’s home page), building up traffic, then trying to sell the domain for $500k by saying “I get 2 million users a month on this domain”?

How about fordcars.com actually framing toyota.com? Or to take it a step further, WeMurderAnimalsForFun.com framing peta.org? ChildRaper.com framing your personal blog? Sure, there are defamation angles there, but it’s the same basic idea.

I don’t see how framing someone else’s site would be legal. True, there’s no “physical” copy of the files in your possession, but you’re still passing someone else’s complete work off as your own, or at least muddying the waters on whose it is.

Anon says:

Re: Re:

The framing is wrong, and he should have placed a disclaimer saying that his DOMAIN was not owned by the network as I stated above.

“So there would be no problem if I bought amazonny.com fifteen years ago, later framed amazon.com on the domain (so going to amazonny.com appears to be amazon.com’s home page), building up traffic, then trying to sell the domain for $500k by saying “I get 2 million users a month on this domain”?” Well yes you could do that, but only a fool entering the web site business sector would fall for that idea that you owned amazon. There are numerous flags that any web developer looking for a domain would clearly see when attempting to purchase the domain. The first being its a DOMAIN and not the SITE. To which any web developer with a head on his shoulders would ask questions and realize whats going on. If you don’t know how the web works, please don’t try to get overly involved in things you know nothing of.

Nastybutler77 (profile) says:

Can't we all just get along?

“We’ve also contacted the owner of failbook.com several times in order to reach a reasonable settlement.”

Ben, it would seem that Mr. Castillo seems to think as long as he no longer iFrame’s, there’s no reason to proceed with the lawsuit.

“It was my bad to spend a couple of hour placing the iFrame, and as soon as I realized it was wronging you I stopped.

We should leave it there, don’t you think?”

As long as he puts that into (legal) writing, what more would you require to drop the lawsuit?

As Mike points out, it doesn’t seem that he’s really hurting your brand at all, or defrauding you. Just trying to defraud whoever buys his domain name, which shouldn’t affect you at all.

Devils_Advocate says:

Re: Message to @benhuh

Cris,

Ben has already paid for a lawyer to file suit, he will want to recoup that. Bottom line you must realize is that you simply cannot walk away without having to pay something.

It’s unfortunate, but settling for reasonable amount now is key to your livelihood. Believe me, the stress on having a pending lawsuit is not worth it, especially when you know they have damning evidence.

Fatduck (profile) says:

The most common argument seems to be “he could defraud potential buyers of failbook.com by stating that his domain receives considerable traffic, though the traffic is probably (at this point) only due to a similarity in name to failbooking.com.”

Yes. That’s completely true. So what? There’s no evidence this has occurred, and if it did, the problem would lie between the owner of failbook.com and the potential buyer! Why should Ben Huh be playing internet policeman, here? What if I bought a domain “jokester.com”, put up a screenshot of “jokes.com” and an estimation of the monthly ad revenue of “jokes.com”? And said “hey, buy my domain, you could make your investment back quickly if you made a jokes site only one-tenth as popular as this other, similar jokes site.” Would I be committing a crime? Would you be ready to throw the thought-crime book at me? (cybersquatting, copyright, trademark, etc) Bit hypocritical for this crowd, don’t you think?

davidwr says:

Caveat emptor

The fraud’s victims are would-be buyers, the framed site is a secondary victim.

A much “cooler” response would’ve been to put some banner at the top saying “Welcome to Failbooking.com. If you are seeing this through another web site be aware that the web site you are visiting does not own or control what your are looking at.”

If Failbooking.com could directly detect visitors visiting via a frame, they could substitute the actual content with “Please click here to visit Failbooking.com.”

The latter would immediately neutralize any commercial benefit to anyone iFraming the site.

Chris "Jesdisciple" (profile) says:

Re: Caveat emptor

And then use JavaScript to break out of them frame, and remove the notice if the page is not embedded. Most folks keep JS enabled nowadays, so for the most part this would completely solve the problem. (Well, maybe except for the link juice – although I would think an iframe would be considered a link, maybe even a super-link, by search engines.)

Almost Anonymous (profile) says:

Re: Re:

Gotta agree with you on this one. Seems a pretty obvious case of fraud. I mean, don’t get me wrong, I agree with “whatever the market will bear”, but when you essentially lie about the inherent value of an item (“1 million hits a day!” or “owned by a little old lady who only drove it to church on sundays!”), I’m pretty sure that is fraud. Yes, I know that the 1 million hits is not technically a lie, but those were ill-gotten hits.

bonzai (profile) says:

Re: Re:

The value of the domain is that someone could buy it and do an imitation of lamebook.com–just like failbooking.com did. Obviously, it would be original content, but the subject matter would the the same. Anyone who said, I could do a much better job of this than failbooking.com and $50,000 is worth it for an infinitely better domain would see the value. Also, the asking price is not the selling price.

Anonymous Coward says:

i think the issue is not just the URL. if you look at the screen shot, a first impression could be very easily made that the SITE was for sale. it isn’t a parked URL site, it is pointing to a live, working site.

in that case, the price is a steal. now not all URL buyers are idiots but as the internet has taught us, not all buyers are geniuses either.

was a law suit the way to go? i dunno, i ain’t no lawyer, i’m a rocket scientist (and there ain’t no rockets on that site). but it is plainly obvious that the failbook.com guy is playing a game, implying some sort of link to or branding or what not with the cheezburger site. a link that does not exist.

Devils_Advocate says:

Re: Re:

Unfortunately your belief would be irrelevant because of standing cybersquatting and copyright laws with prohibit the exact actions performed by Cris’ failbook.com site.

Even if Cris didn’t realize he was breaking the law and feels no harm was done or even if the public feels no harm was done, Ben would still be protected from this type of crime.

Comboman (profile) says:

Netiquette

The proper netiquette for when you are mistakenly receiving traffic for another site it to put a statement on your page something like “The is Failbook.com, if you were looking for Failbooking.com please click ” with a link to the other site, NOT to embed the entire site in a frame with little or no indication that you are not at the correct site. Trying to sell the site that way is certainly deceitful. Even if such embedding wouldn’t normally be trademark/copyright infringement, I would hope the judge would take Failbook’s motives into account (which certainly seem fraudulent to me).

Anonymous Coward says:

Re: Netiquette

Why is it one site-holder’s responsibility to direct users to another, if it’s simply in the best interest of the user? I have to think this is a fairly naive approach, because many sites are designed to earn money, and linking to the “likely intended” site is just giving them a free domain that companies like Google (google.com, googel.com, etc.) and Amaon (amazon.com, amazn.com, anazno.com, etc.) had the sense to buy. Why give that away for free?
Should googol.com link to google.com (the current parking page you get directed to from googol.com has a search box even!)?

a-dub (profile) says:

>it is plainly obvious that the failbook.com guy is playing a game

So you have a domain name thats just sitting there doing a bunch of nuthin’ and along comes a website with a very similar name except that it’s actually an OK website. You see an opportunity to profit from the sale of your own domain by making your site look as if it is the other website. It’s a clever idea, although shady, unethical, and very possibly illegal. It’s great that it generated traffic for the “real” site, but it was done with the intention of increasing traffic to your own failbook.com by using the popularity of a more successful website, failbooking.com. You then attempted to use that traffic to sell failbook.com, possibly to failbooking.com but more likely to one of those shady advertising websites that people accidentally hit when they misspell the domain name. What you attempted to do is scammy at best. Enjoy the litigation.

steve is right says:

Re: Re:

Yea seriously. The cheeseburger brand came from a generation of internet dorks who just wanted a laugh and to get away from news about stupid suits and the ways of “the man”. It’s clear that the cheeseburger people are no longer one of us and have become another greedy and disgusting version of “the man.”

JustMe (profile) says:

So let me understand

I can register TechCopyrightStories.com and simply iFrame TechDirt.com and you wouldn’t mind? Even if I were to sell ads on top of your ads? Even if I were to host pr0n over your ads and logos, thus enabling the casual surfer to think that TechDirt content was linked to porn?

I usually defend you, Mike, because you are usually a right-thinking person, but I’m baffled that you can’t see the problem here.

Mia says:

You REALLY cannot see the potential fraud here?

Seriously? You’re trying to cast Pet Holdings as the evil corporation killing some nerds buzz here? It’s pretty obvious to even a twit like me that the guy was trying to make http://www.failbook.com look like http://www.failbooking.com in the hopes that someone with too much cash and not enough sense would say “Damn, that’s for sale? That’s a good investment!” and buy his site thinking they were getting the real failbooking.com. I deal with executive clients every day, and not all of them are that internet savvy or bother with “little details”, so it’s perfectly reasonable to assume that his little ploy could have worked and he’d have ended up with his fast cash at the clients expense. Sure, Pet Holdings would not have been directly liable, but their reputation could have been affected depending on how the story was spun (like you spun yours…) to make them look like they had somehow been involved. And it’s certainly possible for a court to decide that because Pet Holdings was AWARE of what http://www.failbook.com was doing, they could be held culpable in part for the loss the buyer suffered, because once you’re aware something naughty is going on, and you allow it, you’re partially responsible.

Burgos says:

Re: You REALLY cannot see the potential fraud here?

You seem to be forgetting the price tag on the failbook.com domain name. Anybody who has $50,000.00 to spend on a domain name is going to be smart enough to hire somebody who’s smart enough to have a look at what they’re buying.

“I deal with executive clients every day, and not all of them are that internet savvy or bother with ‘little details’…” And you probably have something to do with bothering with little details for them, right?

bonzai (profile) says:

A weird case

I did a trademark search and can’t see where either of them have filed a trademark, so I don’t see how there could be a trademark violation or a dilution of the mark. What mark?

Since failbook was registered in 2006, it looks like it was just trying to be a parody of facebook that never got implemented. One could assume they were trying to capitalize on failblog.org, but that wasn’t registered until 2008.

Since failbooking.com is just an imitation of other sites like lamebook.com, I have a hard time getting worked up about failbook.com’s supposed stealing failbooking’s content–especially since it wasn’t stolen. It seems clear to me that Pet Holdings wanted failbook.com but didn’t want to pay the price. Pet Holdings is the only company that really knows how valuable failbook.com is because it’s supposedly getting traffic that’s intended for failbooking.com. Since failbook.com was just framing failbooking.com and all the traffic was going to failbooking, the real risk that Pet Holding faced is that one day failbook would either, 1) decide to point somewhere else, or even worse, 2) follow Pet Holding’s lead and do a lamebook.com imitation. In that case, Pet Holding would lose the traffic that was going to the infinitely better domain name. Rather than negotiate, Pet Holdings decided to take the nuclear option, file a lawsuit, and use their deep pockets to force the transfer of the infinitely better domain name. Pet Holdings is obviously the slimy one in this case. They ripped off other people’s ideas now they’re trying to take someone’s domain. The calculus is simple: pay $10,000 to $15,000 in attorney’s fees or $50,000 for the domain. If you win the lawsuit, you not only save a lot of money on the domain, you also increase your reputation in the online community as one who is willing to drop loads of cash to get your way.

The idea that failbook.com was going to increase there traffic and then sell the domain to an unsuspecting buyer who didn’t realize that the domain didn’t include the content is crazy. I realize there are lots of unsophisticated people out there, but I don’t think those people are paying $50,000 for a domain w/out knowing there’s no content behind it. If they are, they can post about it on fmylife.com. And if they do, I’ll vote “you deserved it.” (Hmm, I wonder if Pet Holdings going to launch FingMyLife.com or fmylifeblog.com?)

I really wish failbook.com had been more than a stub. I would have liked to have seen them go after failbooking to see if they could get the domain.

some other guy says:

one person's perception

I used to go to failbook.com a lot and never knew failbooking.com existed. When failbook went down and said there was a lawsuit, I thought it was because facebook didn’t like them using their content to be snarky. Then I did stumble across failbooking.com and thought “well, there’s an exact duplicate of failbook.com and nobody seems to care they’re doing it.” So, yeah, it’s posssible for the average moron to believe that failbook.com was it’s own entity.

James says:

The issue for me is that failbook is trying to sell the site, without clear distinction that it is not a cheezburger network. In other words, it looks like the owner of failbook is trying to grossly inflate his domains value by making it appear as if it is a cheezburger site. It would be like paying a diamond’s price for cubic zirconium. I have cheezburger’s back on this all the way.

Joe says:

Seems Obvious To Me

This seems pretty cut and dry to me.

– Person A (Ben) owns some intellectual property.

– Person B (Cris) has a piece of property that he would like to sell (a domain name) and uses Person A’s property, without permission, for the purpose of advertising it.

In other words, Person B is using Person A’s property for financial gain without permission. I’m pretty sure that is not lawful.

In my mind, the analogous situation would be a television commercial. Imagine Person B were trying to sell his property through television advertising. He would not be allowed to use intellectual property–music, audio, video, etc.–without permission of the owner.

How and why is this case any different?

A random peanut in a random gallery says:

Random thought

Say I go to your house and put a ‘For Sale’ sign up on your lawn. The information on the sign gives the address of what is for sale, which is a seperate address. Upon research, it is discovered that the address is to an empty lot.

My defense: after purchasing the lot you could build an equivalent house on it and your house was chosen only for reference.

No, that doesn’t sound shady to me at all.

Devin Wall (user link) says:

Get a Life, you're Just greedy and want the better domain name.

Great domain names are sought after like gold. The guy from the “Cheeseburger Network” just wants the better domain name, and is being very juvenile about it. In my opinion, if anyone should be sued for copyright infringement is the guy from the cheeseburger sites, they themselves have added a lot of those images without permission, using others intellectual property without their consent. Cheeseburger dude, my suggestion to you is to grow up, offer the guy a good deal on the domain name and shut up, before you yourself make this very public and end up having people sue you for use of their images and intellectual property. Perhaps Facebook can get in on this bandwagon and in fact sue you for posting other users content, as I am sure you do not ask every person that is involved in a failblog screenshot if you may use their writings, no matter the fact that your blur out their names. Also, a lot of people are arguing that he was trying to sell the site. No He was selling a domain name. a Domain name and a site are two different things. Also, cheesburger dude, maybe the owners of these other sites that display similar content should sue you for copying their ideas. To me, you just seem like a coporate fat cat trying to get your pocket filled. All he did was do a redirect. I wish someone would do that for mysite tobring me more traffic.

Anonymous Coward says:

Many of you are missing the most important aspect. It’s not only that failbook.com gained popularity and increased its price only by framing failbooking.com – a smart buyer could just (step-by-step) replace the failbooking copy by his own site and gain his own revenue whereas the initial popularity of the domain was tricked by using failbooking. Finally the original facebooking.com would be affected!
In this view cheezburgers arguments make good sense!
think about it

Memmy says:

Sounds like they acted a little harshly. If failbook was trying to make an easy buck by trying to trick a cheezeburger fan into paying big bucks by saying their page was owned by cheeze, than yeah, do something. But can’t Cheeze at first send a message saying, “Dude, that’s not cool, knock it off or post a disclaimer”? They should just drop the lawsuit, and keep and eye on him. If things get better, we know the guy’s for real. If we get a repeat performance, we know he’s a crook. Is this huge lawsuit really worth it?

Austin says:

Re: Re:

Well, what you have to understand is that a lawsuit was the only way to stop the auction before the failbook.com domain was sold. The law clearly states that no one can copy another person’s content online to boost their domain’s price
{http://www4.law.cornell.edu/uscode/15/usc_sec_15_00008131—-000-.html}

Complain all you want, but Cheezburger is in the right here, according to the law. They tried to settle, asking only for lawyer/ court fees and the domain address, but Christian refused, and claims he’s done nothing wrong. Simply put, he’s wrong.

Michael Wales (profile) says:

Re: Re: Re:

Actually, that law doesn’t protect Cheezburger in any way.

First of all, it covers the present-tense act of registering a domain name of similar nature to an individual.

1. Failbook was around first, therefore Failbooking registered a name in a similar nature.

2. If any [b]individual[/b] is named Failbook – there mom should be punched in the uterus.

Austin says:

Re: Re: Re: Re:

Well yes the law applies to individuals. An individual, as defined by the law, is any person or CORPORATION or organization capable of suing or being sued. The same way you Ben isn’t suing, Pet Holdings is. Corporations are treated like individuals in the eyes of the law.

It doesn’t matter who was around first, it matters who created the material. He copied it, using failbooking’s creative content, and then tried to sell the domain for profit. Purely illegal, I’ve already posted a link to the actual law.

Lawyers Ruin The World says:

Lawyers at the cockroaches of the world.

Another frivolous law suit.
A “Cease and Desist” would have been just fine.

The legal discussions on here are interesting, I guess. But really it just shows there’s always some used car (issue) for some used car salesmen (lawyer) to profit from. This particular overreactive case shows how dishonorable law and lawyers are and overly greedy businessmen can be.

The only people who are benefitting from this case are the parasites in suits sitting behind the “law” desk.

Ben your brand is permanently tarnished from your greedy overreaction and Cris, regardless if you did this to be schiesty or not – a simple Cease and Desists would have been the “not a totally fekin greedy, wall street tool, parasitic behavior” way to go about this.

isays says:

Better reaction

A guy above suggested putting a banner at the top saying “if this is not failbooking.com, you’re being deceived” or something to that effect.

That looks ugly.

A funner solution (and one that doesn’t affect the appearance to normal visitors) would be to use javascript to check if the site is embeded in a frame, and if it is, show something offensive.

Maybe use a blacklist and if the site is embedded in a blacklist site, flash up a big warning, or, i dont know… a huge dong or something.

if (window!=top){
//load pic of huge peen here.
}

Anonymous Coward says:

Even if it’s not technically breaking any laws by embedding someone else’s site in your own domain, doesn’t it just seem morally wrong? The only reason I can think of for this guy doing something like that is to make a profit off the failbooking site, one way or another. I mean, what was the website orginally intended to be when it was purchased back in 2006? How lame do you have to be to not be able to create your own website content in all that time? And if the owner couldn’t think of anything better to do than embed someone else’s site, I’d say it was time to unload that domain name… BEFORE the deception.

But it doesn’t absolve Ben from his actions. If it’s true that there was no contact before the lawsuit, that disgusts me. He should have at least acted like an adult and sent an email or something first; the whole matter might have been resolved quickly and quietly. Again, the only reason I can see for him acting like a child and “tattling” on Cris is because now he wants to sue and win ownership of the failblog domain name.

Quite frankly, I think they’re both greedy jerks, and I really might give up my addiction to failblog if Ben goes through with this ridiculous lawsuit.

Drop the lawsuit. Sell the domain name to a third party at a REASONABLE price. Have it be over with.

Austin says:

Ben was justified

Not only is the law definitely on Ben’s side, but he has an absolute right to sue.

A cease-and-decist letter would not have stopped to proposed auction of failbook.com. Ben had to sue to put a stop to it.

Now, as far as embedding is concerned, Christian broke the law. You cannot copy another company’s work to your own site for profit. That is illegal, you can look it up lol. Ben is right to sue; this guy just copied all of his company’s work to his site and then tried to make money off of it! You can’t sell someone else’s work. That’s plain wrong, and illegal.

Michael Wales (profile) says:

@Austin

Christian did not make a copy of another company’s work for his own profit, all he did was display someone else’s work in an exemplary manner.

The “for profit” actions by Christian, selling the domain, very clearly state that the content on the site was not included in the sale.

The only leg Ben has to stand on is if somewhere Chris claimed he was affiliated with the Cheezburger network. If he flat out said, “own your piece of the Cheezburger network now.” In that case, his actions would fall under “passing off” or damage to goodwill.

I’ve yet to see Chris actually do that. Do I think what he did was moral or right? Absolutely not – but I don’t believe his actions were illegal, by any means.

Austin says:

Re: Re:

Yes, he displayed another company’s work. But then he also tried to sell the domain, which is clearly illegal. The law states:

“Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person’s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.”

(The law associates “person” to mean any person, company, or organization capable of suing or being sued)

Christian was using Pet Holdings’ content without their permission and then tried to profit off of it. It’s not fraud, it’s basically copyright infringement.

Alan says:

How is this so hard?

“Christian did not make a copy of another company’s work for his own profit, all he did was display someone else’s work in an exemplary manner.”

… for his own profit.

He displayed someone else’s content to generate page views and generate prospective buyers. This is open and closed. This guy’s screwed for abusing the system, and he deserves it.

Chris (profile) says:

Real potential for damage to PHI.

My first thought was that PHI was over reacting, but the more I read, the more I see potential for serious damage to PHI.

Look, if I made a site called techdirts.com and framed this site, what’s the harm to Techdirt? None apparently. Even if I later sold techdirts.com, is techdirt directly injured? Not financially, no. But now, months and months later, I’ve built but a significant amount of traffic who are going to techdirts.com based on the content in techdirt.com. I’ve done no work what so ever, but hundreds of people have bookmarked or linked to techdirts.com.

Now, tomorrow I launch my new techdirts.com site with it’s own content completely separate from what’s on this site. I throw up some new graphics, new info, new articles. Put a big sign up that says: Welcome to the newly redesigned TechDirts.com! That way everyone understands things are a bit different and not worried that it doesn’t seem like quite the same site. I’ve just stolen hundreds of users of techdirt.

Kara says:

No, no, no...

He wasn’t selling the content of the website. He was selling only the domain… which he owned. Sounds legal to me. It may be misleading advertising (even though the ad itself clearly says DOMAIN FOR SALE and not DOMAIN + CONTENT FOR SALE), but if you’re stupid enough to spend $50 grand thinking you’re going to own Failbooking without reading the fine print, then you deserve to lose that money.

A cease and desist certainly would have been enough. It would have been quiet & easy, and no huge debate would have sprung from it. PHI just wanted to make a scene, I guess.

Cristian Castillo (user link) says:

My side of the story

Dear readers,

A few years back I bought the domain name failbook.com because I had an idea. As usual, the time went by and the idea wasn’t implemented, slowly I forgot about the domain.

At the end of last year I was doing a recount of forgotten projects, and remembered about this domain I had. As I saw the traffic stats I decided that it was a good time to develop the platform, since the direct traffic was doubling every month.

While I was still in the creation process, I realized that the Ch**zburger Network (don’t want to mess with copyrights here, you may already know why) had already implemented a similar idea.

In my situation, where other profitable projects already consume my time, I decided not to pursue the development of failbook.com as a heavy competitor was already in place. My decision (and HUGE mistake) was to place C**zburger’s site on an iFrame to show what the site could be used for, and place a price tag on the domain.

Everything went smooth at the beginning, until a few days later (not more than a couple of weeks) I did a search on twitter and realized there was legal action in process, two days later the domain was blocked and my domain auction was closed by GoDaddy.

At the beginning, and since they were suing John Doe, I thought it was just a way to call my attention. Unaware of the work ethics of the Ch**ezburger people, I thought they only wanted me to stop framing the site, so I did it with a humorous “Message to the Judge” in the homepage, and a contact mail.

Few days latter Venkat Balasubramani from Focal (Ch**zburger’s lawyers) called me and basically told me “My client is willing to let this matter slide if you hand over the domain” (I’m skimming legal and monetary slangy threats). I refused, told him that if they wanted the domain I could sell it to them, he asked me for a price and told me he would talk with his client.

Few days latter I received a call from Ben Huh (I didn’t know of his existence before this point), he asked for a price and as I told him that $50,000 was final because I could make it worth $200,000 developing the site, he flips out and tells me that, if I end with control of the domain he would make sure that it becomes useless for me.

Trying to prove the point that I didn’t mean to harm his project, and that most of the damages he was claiming (if not all) was due to his response, and not contacting me directly before any legal action I offered to pay his $3,000 legal bill if he just let me keep my domain and drop the suit.

I was expecting a settlement under this lines (or an offer for the domain), but what I get instead is this. A settlement where I have to pay $8,095 AND can’t use the domain for anything, as expected, I did not accept. Got a call from Venkat, I tell him that the settlement wasn’t anywhere near what I expected, that I had to think for a while before giving a reply. To date no one, not Focal’s team nor Ben respond my attempts to contact them.

For a moment, I decided it was only a mistake from my part, as it was from their and that we would just let this matter slide. But yesterday, as I read WIRED’s article about Ben, where you can see his modus operandi in business, I realized this was not a mistake on their side.

They builded a case from day one in order to get control of the domain, and I will not let it go without a fight.

Let the games begin,
Cristian Castillo A.K.A. John Doe

Austin says:

Re: My side of the story

Look bro, there is a slim to zero chance you’ll win this one. There are laws in favor of Ben. There have been previous framing cases that favored the framed sites. I saw the .pdf of the settlement, $8000 is clearly just asking for court / lawyer fees. Of course they want the domain, they have to be sure you won’t fram their site again.

I’m not a lawyer, but honestly dude I think you should quit while you’re ahead. But that’s just my advice.

Ian Lloyd (profile) says:

Faecesbook

Sooo … I registered a domain – faecesbook.com – as a joke to register my opinion of Facebook (some might call it a dirty protest). Just for a laugh … or for shits and giggles you might say. Perhaps I should frame Facebook.com, say I have a site for sale and sell it as a ‘large turd that I am trying to dump’.

Actually, maybe I shouldn’t, given the above!

FWIW, Ben has always seemed to me to be a good guy. Met him a couple of years ago when he was just starting up the sites and seemed genuine. Hope all those burgers haven’t made him evil like basement cat. I’ll be watching with interest.

Anonymous Coward says:

None of this is going to hold up in a lawsuit. This is just like suing google for the “image search” when it just started. Art websites etc sued Google for displaying pictures featured on their website which were links to the owners website.
I can see that anyone who is a moron and shouldnt run/operate/buy a domain name could get confused and think they were buying the actual website, but this is morbidly idiodic on Huh’s side.
Failbooking.com is only hurting themselves by getting bad publicity but its cause of this that i checked them out and gave them a few clicks so i guess any publicity is good publicity.

also Icanhazcheezburger sucks and is a sad excuse for people who dont go to 4chan or any of the other chans to look at cat pictures and add their own stupid captions that arent nearly as good.

I know more than I should says:

ben is a douche bag

Ben is a total douche. He tries to buy sites for next to nothing (not illegal just a really lousy thing to do). Then if the owner of the site is not interested he just starts his own site copying the idea and running with it. Again, this MAY not be illegal but it sure is a lousy way to rip off actual creative people. Ben you are a FAIL and you are a WRONG. You may make 4,000,000 per year but it’s jerks like you that ruin the internet.

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