homework2

FACTS: In September 2015, Kendall Goodman, owner of the Happy Holidays and Novelty Gifts store filed a motion against Rita Odintsova, previously partner, saying that Rita sent SYN floods, a type of denial-of-service attack (DoS), to her online store www.HappyHolidays&NoveltyGiftStore.com. DoS is a type of online attacks used to overload the website’s server with false user requests and make the web page temporarily or indefinitely unresponsive. DoS attacks are illegal and considered to be a federal crime in the United States. Additionally to a criminal charge, Kendall Goodman claims a trademark infringement against Rita Odintsova. Kendall explains that Rita registered her webpage www.TheHappyHolidaysGiftStore.com knowing the similarities with Kendall’s web store in names with intent to redirect customers to her store and increase the income. Kendall claims that she owns rights to the trademark name and moves with trademark infringement and cybersquatting charges against Rita. In her defense, Rita denies neither any knowledge nor the involvement in the SYN floods attack. She also claims that she has the rights to use the "The Happy Holiday Store" name as a part of the break up agreement between her and Kendall. She presented facts of this agreement and files a counter-suit for Slander against the Plaintiff for being unjustly accused of Trademark Infringement and cybersquatting.

ISSUES: In the Case, (HAPPY HOLIDAY’S and the NOVELTY GIFT STORE, INC., Plaintiff v. THE HAPPY HOLIDAY GIFT STORE, INC., Defendant), the main Issue is whether or not, the Defendant has committed Trademark Infringement through the use of the name, “The Happy Holiday Gift Store”, purposefully misdirecting the Plaintiff’s customers to the Defendants’ Website? …and…Whether or not the Plaintiff has sufficient grounds to file criminal charges against the Defendant with regards to the SYN Flood attacks and the mass mailings? Whether or not the Defendant can file a counter-suit for Slander against the Plaintiff for being unjustly accused of Trademark Infringement, when in fact there was a clause buried in the original break up agreement which gave them the right to use the name, "The Happy Holiday Store"?

LAW: The Computer Fraud and Abuse Act (CFAA),” knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer” (U.S Code https://www.law.cornell.edu/uscode/text/18/1030). The Lanham Act, 15 U.S.C. §§ 1051 et seq., “protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur” (https://www.law.cornell.edu/wex/Lanham_Act). The Anticybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 1125(d), "was intended to prevent 'cybersquatting,' an expression that has come to mean the bad faith, abusive registration and use of the distinctive trademarks of others as Internet domain names, with the intent to profit from the goodwill associated with those trademarks" (http://www.internetlibrary.com/publications/anticybsquattSamson9-05_art.cfm). Common Law Defamation, to win the case a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault; and 4) damages, or some harm caused to the person or entity who is the subject of the statement (https://www.law.cornell.edu/wex/defamation).

HOLDING: The findings in this case support further action on the main Issue, (Defendants use of the name “The Happy Holidays Store, Inc.), Trademark Infringement. The Plaintiff has an established large following and the Plaintiff’s name is well known and respected in Online Retail Sales. The Defendant, (selling the same or similar products), has deliberately taken a name which would confuse customers and redirect the Plaintiff’s business their way, in hopes of decreasing Plaintiff’s profit margin, and increasing their own. As for the possibility of filing criminal charges, the Court finds there is sufficient evidence to move forward. Since the Plaintiff knew about the "Name Clause", yet raised no objection to the Defendants similar name usage at the time of the partnership dissolution, they now have no grounds to sue the Defendant for "Trademark Infringement", however, if the Defendant can show loss of income due to these charges being filed against them, they will be free to file a counter-suit. That does still leave the Defendant open to the criminal charges.

RATIONALE: Kendall Goodman, who was running the business through the original website, becomes a victim of SYN floods. There is a need for the businesses to be careful when it comes to issues that might lead to a law case arising. In this case, there was no trademark infringement along with picking the domain name. Rita having the idea of expanding the business to Toronto decides to use the www.TheHappyHolidaysGiftStore.com  website. It is important to note the Rita picking this website does not cause confusion to the customers. Following the jamming of the Kendall original website makes Rita collect income and confuses customers to leave the Kendall Goodman website for a convenient one.

The court affirms that Rita collects income through fraud, and this is illegal in the business line. Rita had no right to use the SNY flood strategy to improve sales. It is important to note that Kendall and Rita agreed that she would use the website almost similar to the original one for a year. In the court, ruling the federal law was applied by the court of law in affirming the decision that Rita owes Kendall compensation because of the losses made due to inactivating the website. Any income generated by Rita since diverting the customers to her website need to be part of the compensation Kendall Goodman was to receive due to fraud committed.