Williams-Sonoma Sues FriendFinder, Others Alleging Trademark Infringement

[Jace]

http://www.xbiz.com/news_piece.php?id=17864

SAN FRANCISCO ? In a move that could have wide-ranging effects for the online adult industry, Williams-Sonoma has filed suit in U.S. District Court, charging a slew of online adult entertainment companies with infringing on the company?s popular Pottery Barn trademark to drive traffic to various ?pornographic? websites.
The federal lawsuit names FriendFinder, Online Marketing Services, Unimaster, Yeticash, Domain Name Systems, Virtual World Holdings AVV, Moniker Privacy Services, Ales Lexico, John Salmond, Ford Jeske, Andrej Korchev, Vladimir Techl and Dorothy Simpson. Believing that there are other infringers out there, attorneys for Williams-Sonoma also reserved the right to add additional defendants.

?The purpose of this lawsuit is to seek damages and injunctive relief to stop defendants from their practice of using and infringing Williams-Sonoma famous Pottery Barn family of trademarks to identify their explicit and graphic pornographic adult websites,? Williams-Sonoma attorney Gregory Gilchrist said.

The suit alleges that the defendants misuse the Pottery Barn trademarks in a variety of ways, including embedding the term ?potterybarnteens? in source code, using ?potterybarnteens? as a domain extension and repeatedly using the term ?potterybarnteens? in copy throughout various websites.

FriendFinder?s attorney, Ira Rothken, told XBIZ his client ?played no role in hosting sites that use the [Williams-Sonoma] marks.?

?FriendFinder is involved because of its affiliate program,? he said. ?The way they drafted the lawsuit is disproportionate and wholly inaccurate. Nevertheless, we intend to cooperate fully and terminate any rogue affiliates.

Rothken added that FriendFinder was disappointed that Williams-Sonoma had not contacted the company prior to filing suit.

?Just like any large affiliate program, such as Amazon.com, it is very difficult, if not impossible, to know where across the world marks are being infringed upon,? he said. ?That?s why it?s important that trademark holders make us aware of any potential problem.?

Rothken explained that in this case, several of the affiliate programs named in the suit operate out of Central and Eastern European countries, making it nearly impossible to determine on a case-by-case basis whether an affiliate is operating in a manner consistent with local law.

Williams-Sonoma has requested a jury trial. The complaint does not specify monetary damages, although it does ask that the defendants be permanently enjoined from using the plaintiff?s trademarks. The suit also seeks a return of any lost William-Sonoma profits as well as the forfeiture of any ill-gotten gains from the alleged misuse of the trademarks.

A representative from Moniker was not available for comment at time of post.

http://www.xbiz.com/pdf/williams_sonoma.pdf

[CaptainHowdy]

Woah !!

[squishygimp]

congrats

[Bro Media - BANNED FOR LIFE]

haha AFF sucks

[Deej]

[Nubiles]

Its about time people started protecting their trademarks and copyrights.

[WiredGuy]

I agree with AFF's attorney, the damages are by infringing affiliates, not AFF itself. If they would have contacting AFF directly, I imagine they wouldn't be named in the suit, but of course it adds more merit to a press release when you can drag big companies into the mess.
WG

[Jace]

Originally Posted by WiredGuy

I agree with AFF's attorney, the damages are by infringing affiliates, not AFF itself. If they would have contacting AFF directly, I imagine they wouldn't be named in the suit, but of course it adds more merit to a press release when you can drag big companies into the mess.
WG

well, I think how this plays out will be a landmark decision

if they side with williams sonoma then sponsor programs everywhere will actually be liable for their affiliates actions (wow, who da thunk?)

I personally think that EVERY affiliate program should be responsible for anything their affiliates do

contractors are responsible for their contract labor employees, so why aren't affiliate prorgams? affiliates are basically just contract labor

[squishygimp]

Originally Posted by Jace

well, I think how this plays out will be a landmark decision

if they side with williams sonoma then sponsor programs everywhere will actually be liable for their affiliates actions (wow, who da thunk?)

I personally think that EVERY affiliate program should be responsible for anything their affiliates do

contractors are responsible for their contract labor employees, so why aren't affiliate prorgams? affiliates are basically just contract labor

[DjSap]

karma is a bitch...serves them right...although i dont think that they will be successfull with the lawsuit..

[Shaft_1971]

Interesting.

[WiredGuy]

Originally Posted by Jace

well, I think how this plays out will be a landmark decision

if they side with williams sonoma then sponsor programs everywhere will actually be liable for their affiliates actions (wow, who da thunk?)

I personally think that EVERY affiliate program should be responsible for anything their affiliates do

contractors are responsible for their contract labor employees, so why aren't affiliate prorgams? affiliates are basically just contract labor

Imagine a company like Google (Adsense specifically). The internet industry as we know it could easily become crippled by such an action. I think most reasonable judges should agree that in the internet economy that this isn't a feasible solution to make affiliate programs bear the liability on behalf of affiliates.
WG

[Jace]

Originally Posted by WiredGuy

Imagine a company like Google (Adsense specifically). The internet industry as we know it could easily become crippled by such an action. I think most reasonable judges should agree that in the internet economy that this isn't a feasible solution to make affiliate programs bear the liability on behalf of affiliates.
WG

very true

I guess I just think affiliate programs need to be held more accountable for what their affiliates are doing and how they are promoting that program...AFF specifically, but many others

[tony286]

To me big companies should have people whose job is to check affiliates all day. they should be responsible for them ,they are a reflection of their company.

Am I missing something, or is there actually people out there that search for "pottery barn" teens? Of all the trademarks to infringe, that one seems pretty stupid.

[Jace]

Originally Posted by evildick

Am I missing something, or is there actually people out there that search for "pottery barn" teens? Of all the trademarks to infringe, that one seems pretty stupid.

http://www.google.com/search?hl=en&l...ery+barn+teens

[JD]

sig spot SECURED

[XPays]

it never ceases to amaze me that companies sue the registrars un-lol.

and secondly, a lot of companies are enforcing their i.p. so any comments saying "it's about time" are ill-informed.

lastly, unjust enrichment is unjust enrichment period.

[jayeff]

Originally Posted by tony404

To me big companies should have people whose job is to check affiliates all day. they should be responsible for them ,they are a reflection of their company.

It will be interesting to see how this plays out. I guess it will depend upon what level of due diligence the court believes can reasonably be expected of someone involved in a relationship for profit.

Anything is possible, but if this ever gets to court it is hard to imagine sponsors will get away with claiming no responsibility at all. After all there are some similarities with the Perfect 10 suits of a few years ago.

Over and over online porn refuses to tackle issues until as some put it "the sky falls in" and that's crazy since most of us lose money because cowboys are tolerated. Sponsors who choose not to adopt ethical and professional standards unless forced to do so, have only themselves to blame when things like this come down the pike.

[will76]

Originally Posted by Drunkspringbreakgirls

Its about time people started protecting their trademarks and copyrights.

I was about to say the same thing. AFF that is how you are suppose to protect your trade mark.

How ironic. AFF will not sue Zango and "adware" companies for using their trademark and Lars says it is not worth it, will cost to much money. But here you have a company that takes it trademark seriously sueing AFF.

The irony.

[will76]

Originally Posted by WiredGuy

Imagine a company like Google (Adsense specifically). The internet industry as we know it could easily become crippled by such an action. I think most reasonable judges should agree that in the internet economy that this isn't a feasible solution to make affiliate programs bear the liability on behalf of affiliates.
WG

Wasn't there some big affiliate companies that got nailed a few years back for spam emailing that their affiliates were doing? I believe the sponsor was held liable in that case and paid a lot of money in fines. my memory is bad.

[will76]

Originally Posted by tony404

To me big companies should have people whose job is to check affiliates all day. they should be responsible for them ,they are a reflection of their company.

I agree if your company made 100+million in revenue each year you think you could spend a few bucks and hire some full time people to randomly check urls and accounts and actually invistigate complaints..

However such actions would cost the company money if they started banning people, so they would rather play the hear no evil, see no evil, game and pretend they don't know about it.

Some companies don't care where they get their traffic from, they just want to make money, lots of it, so they can increase payouts which are going UP UP UP !

[MaddCaz]

Baby!!!!!!!!!

[baddog]

Originally Posted by Jace

well, I think how this plays out will be a landmark decision

if they side with williams sonoma then sponsor programs everywhere will actually be liable for their affiliates actions (wow, who da thunk?)

I personally think that EVERY affiliate program should be responsible for anything their affiliates do

contractors are responsible for their contract labor employees, so why aren't affiliate prorgams? affiliates are basically just contract labor

Excuse me. Are you suggesting that every affiliate program should be actively monitoring every website, owned by every affiliate to a point that they know every Meta and alt tag used by said affiliates?

and no, they are not contract labor

[MaddCaz]

look just dont sell yourself to fall in love with FriendFinder yo....

[baddog]

Originally Posted by Jace

very true

I guess I just think affiliate programs need to be held more accountable for what their affiliates are doing and how they are promoting that program...AFF specifically, but many others

Why don't we be honest here. If this suit did not mention AFF you would not even be posting about it.

[baddog]

Originally Posted by tony404

To me big companies should have people whose job is to check affiliates all day. they should be responsible for them ,they are a reflection of their company.

Yeah, and all affiliate programs should pay $.50 recurring to their affiliates. Maybe $2/PPS

[Far-L]

Originally Posted by WiredGuy

I agree with AFF's attorney, the damages are by infringing affiliates, not AFF itself. If they would have contacting AFF directly, I imagine they wouldn't be named in the suit, but of course it adds more merit to a press release when you can drag big companies into the mess.
WG

Yep, agreed on all points but the old "its the affiliates fault" is not a good defense since in precedent after precedent Programs are clearly responsible for the actions of their affiliates.

[baddog]

Originally Posted by Jace

http://www.google.com/search?hl=en&l...ery+barn+teens

In that case, I think Pottery Barn brought it upon themselves. What the hell did they think would happen with a name like that?

[Jace]

Originally Posted by baddog

Why don't we be honest here. If this suit did not mention AFF you would not even be posting about it.

very untrue

I have always been very vocal that I think ALL affiliate programs should be held 100% accountable for what their affiliates are doing

and YES, i think that all affiliate programs should have employees in place to randomly check urls and site of their affiliates..sorry if that offends you oh great one, but that is how I, and many others, feel

but yes, to touch on the topic in the quote, I hate AFF and you are their cheerleader, we all know this...you support their promotion and profit from content/software theft and piracy, I don't..plain and simple

[Jace]

Originally Posted by baddog

In that case, I think Pottery Barn brought it upon themselves. What the hell did they think would happen with a name like that?

ha, yeah, I have to agree with you on that one

[baddog]

Originally Posted by Jace

very untrue

I have always been very vocal that I think ALL affiliate programs should be held 100% accountable for what their affiliates are doing

and YES, i think that all affiliate programs should have employees in place to randomly check urls and site of their affiliates..sorry if that offends you oh great one, but that is how I, and many others, feel

but yes, to touch on the topic in the quote, I hate AFF and you are their cheerleader, we all know this...you support their promotion and profit from content/software theft and piracy, I don't..plain and simple

I am their cheerleader? When did that happen?

So, if you think it is AFF's responsibility to actively monitor every site that has a link up to them, to the point that they know what every meta and alt tag has in it at any given time . . . just how much do you think they should be paying affiliates?

[Aric]

Originally Posted by will76

Wasn't there some big affiliate companies that got nailed a few years back for spam emailing that their affiliates were doing? I believe the sponsor was held liable in that case and paid a lot of money in fines. my memory is bad.

You are correct sir. The FTC went after the sponsors and not the spammers.

[MattO]

Maybe this will clean up a little bit of the SE spamming.

[Jace]

Originally Posted by baddog

I am their cheerleader? When did that happen?

So, if you think it is AFF's responsibility to actively monitor every site that has a link up to them, to the point that they know what every meta and alt tag has in it at any given time . . . just how much do you think they should be paying affiliates?

I never said actively monitor, and just to be clear I am not talking about just AFF here

I think every program should have 1-3 people that just sit all day and surf their affiliates sites to check to make sure they are within the rules

programs owners should be held just as liable for their affiliates as the affiliate is

[tony286]

Originally Posted by baddog

Yeah, and all affiliate programs should pay $.50 recurring to their affiliates. Maybe $2/PPS

excuse me instead of buying the Ferrari that would pay for five 40k a yr people to spot check affiliates all day long.

[XPays]

i still think aff will only have a problem if they directly participated in the seo stuff even though i read the complaint and it says williams sonoma has a belief that aff was involved "directly and indirectly".

also it shows how little regard williams sonoma has for other site owners considering they did not contact aff prior to the suit. that part is very lame.

[jayeff]

Originally Posted by baddog

Are you suggesting that every affiliate program should be actively monitoring every website

The concept of due diligence is nothing new and as someone has pointed out, it has already been applied to this industry. It is not a requirement to provide infallible precautions against predictable/known abuses, just a recognition that if you are going to profit from a relationship, you have to take reasonable measures to ensure that third-parties with whom you are involved operate legitimately.

It isn't anyone here you have to convince anyway, but come on, we know that far from attempting to stop abuses which range from scumware, through content theft to misuse of keywords, many sponsors turn a completely blind eye to anything which makes them a buck. You wouldn't even have to search many pages of the average message board to find examples.

Adult webmasters may be used to accepting all that crap, but should it really come as a surprise that the real world is going to bite someone in the ass from time to time?

[will76]

Originally Posted by Jace

http://www.google.com/search?hl=en&l...ery+barn+teens

Now this is fucking funny. I just did a search for " Pottery Barn Teens" and zango popped up with this page:



I wonder if Potterybarn allows this type of advertising?

[baddog]

Originally Posted by tony404

excuse me instead of buying the Ferrari that would pay for five 40k a yr people to spot check affiliates all day long.

hmmm, guess I missed something here, I thought they were giving away Andrew's used Ferrari, not buying a new one.

ANd I highly doubt 5 people would be enough to go over all the meta tags of every site with an AFF link on it.

[RawAlex]

The question of liablility comes up based on what you do when notified. If a program answers "it's an affiliate, not our problem", then they very likely run the risk of getting roped into such a lawsuit.

If they make the proper efforts to contact the affiliate, get the stuff removed, or terminate the affiliate as needed to control this sort of activity. The program is directly profiting from the actions of it's affiliates, and needs to pay attention to what those affiliates are doing.

[will76]

Originally Posted by baddog

hmmm, guess I missed something here, I thought they were giving away Andrew's used Ferrari, not buying a new one.

ANd I highly doubt 5 people would be enough to go over all the meta tags of every site with an AFF link on it.

come on who you kiddin. They don't need even 1 person to do that. They could write a script to reveiw the meta tags on every site that sends them a hit and look for certain words in the meta tags. I am not a programmer but I am sure I could get my guy to do it pretty easy, i've asked for far harder shit then that.

It comes down to this, they don't want to know. Either you are proactive in how you handle your affiliate program or you let them do whatever they want and hide behind the " its those rogue affiliates " doing it. We will delete their accounts.

Perhaps pottery barn did a little research on AFF and see that is how they conduct their company and knew it would be a waste of time to contact them just to have them ban a few accounts today and 10 new ones pop up tomorrow doing the same thing.

As far as monitoring affiliates, you claim they would have to drop payouts to $2 or whatever. You people who defend these companies need to stop and think how stupid you make yourself sound when you defend them no matter what. They make 100million a year, you think they would need to drop payouts from 105$ to 2$ because they hired 5 people to spot check affiliate pages and to actually investigate complaints ????

[will76]

Originally Posted by RawAlex

The question of liablility comes up based on what you do when notified. If a program answers "it's an affiliate, not our problem", then they very likely run the risk of getting roped into such a lawsuit.

If they make the proper efforts to contact the affiliate, get the stuff removed, or terminate the affiliate as needed to control this sort of activity. The program is directly profiting from the actions of it's affiliates, and needs to pay attention to what those affiliates are doing.

and if they keep banning affiliate accounts but keep having more pop up doing the same thing. At some point you have to be held responsible. If you can not fix the problem inhouse you should be nailed for it. How hard would it be for them to put a script in place to check meta tags, for them to be proactive. But this is AFF we are talking about, they buy traffic from scumware and screw everyone of us here and even their own affiliates. They don't give a shit they just want to make money, no matter how they do it.

[starpimps]

lol that sucks for them

[L-Pink]

Wasn't aff stating they couldn't do anything but reap the benefits when affiliates used stolen content to drive sales ..... well you gotta take the good with the bad.

Also, fuck anyone that isn't doing business on the level. Period.

Fuck anyone that isn't doing business on the level. Period.

[Damian_Maxcash]

Originally Posted by will76

and if they keep banning affiliate accounts but keep having more pop up doing the same thing. At some point you have to be held responsible. If you can not fix the problem inhouse you should be nailed for it. How hard would it be for them to put a script in place to check meta tags, for them to be proactive. But this is AFF we are talking about, they buy traffic from scumware and screw everyone of us here and even their own affiliates. They don't give a shit they just want to make money, no matter how they do it.

Just thought I would throw this into the mix

http://www.google.co.uk/search?num=5...Sear ch&meta=

[will76]

Originally Posted by damian2001

Just thought I would throw this into the mix

http://www.google.co.uk/search?num=5...Sear ch&meta=

you truely are a moron. I love how you through that out there like you think my opinions only apply to AFF. If you think ifriends is infringing on potterybarn then contact pottery barn and ask them to add ifriends to their lawsuit.


Besides the fact that you typed in "Pottery Barn and Ifriends" . You put their name in the search, ofcourse you going to get search results for them. You could put Ifriends and Damian and probably get results too.

Oh look you do: http://www.google.co.uk/search?num=5...ifriends&meta=

you really are a moron.

[BV]

Originally Posted by baddog

In that case, I think Pottery Barn brought it upon themselves. What the hell did they think would happen with a name like that?

Pottery Barn sells products for teens, just like when you go into a clothing store they have a teens section. Do you think the word "teens" is only related to porn sites?

Now targetting those words for an adult site, that now is a crime, hr4472 takes care of that.

A teen looking on line for items the pottery barn may have for his or her bedroom or whatever could come across adult website adds = not good.

[Damian_Maxcash]

Originally Posted by will76

you truely are a moron. I love how you through that out there like you think my opinions only apply to AFF. If you think ifriends is infringing on potterybarn then contact pottery barn and ask them to add ifriends to their lawsuit.


Besides the fact that you typed in "Pottery Barn and Ifriends" . You put their name in the search, ofcourse you going to get search results for them. You could put Ifriends and Damian and probably get results too.

Oh look you do: http://www.google.co.uk/search?num=5...ifriends&meta=

you really are a moron.

Have a look at the results - its sub-domains on cam sites and meta tag spamming in the main.

and where did I even even mention AFF? - my point was that people in glass houses shouldn't throw stones.....

The search could have included any affiliate program and would have shown the same results.

You are in here bitching because you saw another opportunity to knock your competition so it only seemed fitting that I used iFriends as the example.

[DaddyHalbucks]

This is just the beginning. In the next few years you will see many many lawsuits like this and 99% will all go against the infringer/ cybersquatter.

There is no money in infringing/ cybersquatting. Really.