from the a-fool-for-a-client dept
What’s that saying about a lawyer who represents himself? Yes, well, consider the case of lawyer Jeffrey Wilens, representing himself pro se, in a “trademark” lawsuit filed against Automattic, the company better known for WordPress, the content management system/hosting service that a large percentage of the internet now uses. Wilens appears to have someone who doesn’t like him very much, who set up a bunch of websites using Wilens’ name and the name of his legal practice, Lakeshore Law Center. Wilens is claiming that this is trademark infringement, based on a trademark on his name and the name of his law practice. Even if he were just going after whoever made the page, this would be a massive long shot. As we’ve covered for years, so-called “gripe sites” are not considered trademark infringement. There’s no likelihood of confusion, they’re almost never commercials, and shutting them down would often violate the First Amendment. But Wilens is pointing his legal guns not just at whoever made the site, but also at Automattic for allowing the site to be created and hosting it (he also sued Google, but recently dismissed the company from the case).
Automattic has sought to dismiss the case, which is scheduled to go to trial shortly, pointing out that there simply is no legitimate trademark claim against Automattic at all. The filing is worth reading as it lays out, quite clearly, why this case is a joke. There is no trademark infringement in the first place, and even if there was, it wouldn’t be on Automattic. It cites numerous cases that have shown that gripes sites are not trademark infringement and that registrars are not liable if someone registers a trademarked name. It also highlights how there’s clearly no direct trademark infringement, and Wilens doesn’t allege secondary (contributory) trademark infringement, and even if he did, it still wouldn’t be applicable.
Wilens hit back with a somewhat amusing reply, insisting that all of the caselaw that goes against him is “different” because he’s pretty damn sure that whoever is making these sites is a competitor, and thus, it must be trademark infringement:
Defendants insist the offending websites are just criticism or ?gripe? websites
which are not covered by trademark law. But we don?t know that. It is quite possible
that Doe No. 1 is a competitor of Plaintiff or acting on behalf of a competitor and not a
former client. The FAC alleges Doe No. 1 created the websites to divert search engine
traffic by clients and potential clients of Plaintiff from Plaintiff?s websites to the websites
controlled by Doe No. 1…. Until Doe No. 1?s identity can be uncovered,
and he is shown not to be a competitor, this allegations stands.
Of course, as we’ve discussed elsewhere, in many courts, the burden is quite the opposite. First you have to prove that a violation of the law occurred before you get to uncover the anonymous person. Even so, Wilens seems to be basing his claims on a whole bunch of hypotheticals and “maybe possiblys”:
Defendants may argue
the websites do not seem to contain any links to Doe?s own website, but it is possible
that Doe reaches out to visitors by email or through the blogs? message boards. There is
a comments features to these websites. While public comments seem to be disabled that
does not mean there have been no private communications. Before Plaintiff is allowed
to conduct discovery, there is no way to know what communications have gone on
between visitors and Doe No. 1, although Defendants may be in possession of that
However, as Automattic then notes in its reply, Wilens still seems to be totally misreading the case law — and completely changing his story. While he now insists that it could be trademark infringement because it was done by a competitor, earlier in the lawsuit, he insisted that it was a former client:
Mr. Wilens has previously represented to this Court, under penalty of perjury, that he believes the
websites to have been posted by the defendant in a lawsuit in which he was counsel for the plaintiff:
?There are a few former defendants I suspect might be the anonymous poster on the website, course, but
I am not going to name Doe without some supporting evidence. I have approached counsel for some of
the suspects but none of their clients would come forward and admit they are the anonymous poster.?
…. It is curious, to say the least, for Mr. Wilens to make a legal
argument in a signed pleading based on the premise that Doe No. 1 might be a competitor, where he has
sworn that he does not believe that to be the case.
Even worse, he seems to be switching the basis of his trademark infringement claim mid-stream. As noted above, in the original filing, Wilens only alleges direct trademark infringement. But in his response, he more or less admits that’s not true here and now alleges secondary trademark infringement (even though Automattic’s original response had already explained how that wasn’t possible here):
Plaintiff appears to concede that the Amended Complaint does not adequately plead a claim for
direct trademark infringement against Automattic. Opp. at 5-6. He argues now that the Amended
Complaint contains facts that would support a claim for contributory trademark infringement. Id. The
Amended Complaint does not mention any claim for contributory trademark infringement, but assuming
that one is identified in the complaint, there can be no contributory trademark infringement claim against
Automattic based on a user?s choice of a website name.
This really does seem like yet another case of “someone is doing something on the internet that I don’t like, therefore it must be illegal!” Hopefully the court decides to explain that’s not quite how the law works to Mr. Wilens by dismissing the case before it even needs to go to trial.
Filed Under: defamation, gripe sites, jeffrey wilens, pro se, secondary liability, trademark, wordpress