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.

Filed Under: copyright, failbook, failbooking, framing, icanhascheezburger, trademark
Companies: pet holdings