(E.D. Va. Nov. 20, 2015)
with over 120 million registrations in the <.com> and <.net> space.
XYZ entered the market in 2014 offering registrations in the <.xyz>
space. Verisign alleged false advertising in 1) statements regarding
<.com> availability; 2) non-public statements about XYZ’s revenue; 3)
statements about XYZ’s registration numbers; and 4) statements about XYZ’s
good real estate is taken. The only thing that is left is something with a dash
or maybe three dashes, and a couple numbers in it. Did you know that 99% of all
registrar searches today result in a ‘domain taken’ page? [O]n average, nine
out of – nine out of ten .com searches show up as unavailable.” Further, NPR described XYZ as the next <.com>.
In a YouTube video, XYZ claimed, “MoveOver.com–.xyz is for the next generation
of the internet.” The video showed a dirty old Honda with a license plate that
read <.com>, next to a shiny new Audi with a license plate that read
<.xyz>. The narrator continued, “with over 120 million dot corns
registered today, it’s impossible to find the domain name that you want. It’s
2014 and the next generation of domain names is here.”
business partners and between XYZ employees and media consultants, Verisign
challenged, “[m]y company has received 775,000+ registrations and … generated
over $5 million in revenue …”; “[w]e’ve sold over 600,000 domains just in the
four months that we’ve been live”; “[w]e’ve sold about 800,000 dot XYZ domain
names since we’ve launched…”; and “[o]ur wholesale price is around $8.” Further, in e-mail and blog posts, XYZ
allegedly falsely claimed to be the top-selling new Top-Level Domain (‘TLD‘) at
various times, misrepresenting the number of registrations and confusing
consumers into thinking free-trial domain names were actually sold at a
wholesale price. While XYZ claimed that
“[t]he .xyz registry has put a multi-million dollar awareness campaign in place
to educate users on what .xyz is…,” Verisign contended that, in fact, XYZ’s marketing
budget consisted primarily exchangin domain names for advertising credit.
taken” was nonactionable opinion, not a verifiable fact. NPR did in fact
describe XYZ as the next <.com>, so XYZ reporting that fact in
advertising wasn’t a false statement. Moreover, Verisign’s own data showed that
<.com> names are largely unavailable. In a given month, Verisign received
about two billion requests to register <.com> domain names, yet fewer
than three million are actually registered, mostly because the requested names
were unavailable. Likewise, the YouTube video was puffery and opinion. “The
message communicates Defendants’ opinion of itself as a shiny new sports car
and nothing more.”
factual statements that were verifiable, but there was no evidence of
falsity. XYZ made a deal with Web.com in
which Web.com purchased 375,000 domain names for a price of $8 each: $3
million. XYZ bought advertising from Web.com in the form of 1,000 impressions
for $10 each, also for a total of $3 million, so Web.com paid with advertising
credit, and gave the .xyz domain names away as free trials to their
subscribers. An independent audit by a reputable accounting firm found that
this exchange was for fair value. The court thus found that the statements
regarding the Defendants’ revenue, registration numbers, and marketing budget were
true. Likewise, when XYZ claimed to be a
market leader in new TLDs, it told the truth.
materiality. Even had Verisign shown an intent
to deceive the receiving audience, that wasn’t enough to show actual deception.
Verisign’s survey tested whether consumers thought that .xyz domain name
registrations were purchases, but that didn’t itself show deception.
alleged false statements and its claimed economic damages. Dot-com
registrations actually increased after XYZ’s statements, although they
coincided with a decline in .net registrations.
But correlation isn’t causation, and Verisign’s expert “failed to
account for the over 700 competitors in the <.net> space during the same
time period, failed to account for the decline in Plaintiff’s <.net>
sales prior to Defendants’ statements, and failed to account for changes in
Plaintiff’s own advertising and promotion.”
These were fatal flaws.
As for alleged harm
to goodwill, that couldn’t lead to a presumption of irreparable harm, given eBay and Winter, though the Fourth Circuit hasn’t (yet) so decided. Verisign didn’t show evidence of economic or
reputational harm, and thus there was no irreparable harm.
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