slapp

Wikivoyage name confirmed, Internet Brands contests SLAPP but drops one charge

Two more pieces of news in the all-too-long-running Wikitravel-versus-Wikimedia saga.

First, the name of Wikimedia’s new site is now effectively confirmed as Wikivoyage, as the voting has ended with 160 votes in favor of the name, with a feeble 44 for the 2nd highest-rated option.  The English version of the site is already open to the public at http://en.wikivoyage.org and hosting will shortly be transferred to the Wikimedia Foundation.

Second, Internet Brands has filed an opposition to Wikimedia’s motion to dismiss.  This document is even more bizarre than the last one, starting with the claim that their lawsuit is “strictly a dispute among would be business competitors“, which seems to acknowledge that defendants Holliday and Heilman are not even running a business yet!  Internet Brands also claims that they “have used [Internet Brands’] mark … as part of Defendant’s name for the rival website” — but as you may recall, this “rival website” a) doesn’t exist yet, b) did not have a confirmed name when IB filed their opposition, c) shares nothing with Wikitravel but the word “wiki”, and d) has nothing to do with Holliday and Heilman.

The following pages then proceed to perform awkward legal gymnastics with the aim of claiming that their lawsuit is not about the future Wikimedia site, but the defendants’ “one time swing at deceiving” of sending e-mails to Wikitravel users.  No, that argument doesn’t make any sense to me either, but obviously they’re trying to furiously backpedal from getting the Foundation involved and making it seem like their beef is solely against Holliday and Heilman.

But buried at the end of the document, Internet Brands quietly drops the second of their four claims, the Lanham Act charge against the brief use of the term “Wiki Travel Guide” on the Wikimedia discussion page.  This effectively means that the only charges left standing are trademark infringement and unfair competition, which only serves to make the domain name charge earlier is even more incomprehensible.

Holliday’s response is due on October 22, and the first court date is in early November.  Stay tuned!

 

 

Internet Brands get anti-SLAPPed

In response to the spurious lawsuit against ex-Wikitravel volunteers, Wikimedia’s lawyers Cooley LLC have yesterday filed a motion to strike Internet Brands’ charges under California’s SLAPP legislation. Full document attached below, and it’s a really good read (seriously!), but a few select tidbits for your reading pleasure:

The Complaint filed by Plaintiff Internet Brands, Inc (“IB”) is a Strategic Lawsuit Against Public Participation (“SLAPP”), a meritless action brought not to win, but to intimidate, threaten and ultimately silence persons engaged in speech that IB dislikes but the Constitution protects. …

IB’s claims against Ryan rest – entirely – on allegations that Ryan was involved in sending emails to Wikitravel users concerning the proposal to set up a new travel site allegedly called “Wiki Travel Guide”.  As a reading of these communications shows, to the extent they contain any “use” of a trademark at all, such use is limited to referencing “Wikitravel” by name to distinguish it from a new travel site being planned.  This is known as nominative use, and is permitted by law. …

IB’s state law claims for trademark infringement, state law unfair competition and civil conspiracy can and should be dismissed under California’s anti-SLAPP statute … because they all arise from constitutionally protected speech and IB cannot demonstrate a probability of prevailing on the merits.  …

IB may not survive dismissal by simply reciting the elements of a Lanham Act claim without supporting factual allegations.  … For this reason alone, Count II of the Complaint must be dismissed for failure to state a claim.

Full text: 2012-09-26 D6 Notice of Defendants’ Special Motion to Strike