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Order on Motion - Boarding School Review v. Delta

Order on Motion - Boarding School Review v. Delta

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Published by Ron Coleman
Plaintiff operates a website called Community College Review. It received multiple cease and desist letters, which escalated in the severity of their threats, from counsel for certain affiliated institutions about which routine, publicly-available data was reported on the website. The claims sounded in copyright and trademark, including various unfair competition theories. They demanded not only that the material be taken down, but reserved the right to seek massive statutory damages based on copyright infringement.

Our client filed a declaratory judgment action seeking a determination of non-infringement on various grounds, and the defendants filed mirror-image counterclaims.

From the decision: "As set forth herein, Plaintiff’s Motion to Dismiss is GRANTED as to Defendants’ trademark infringement, unfair competition, deceptive trade practices, and trademark dilution counterclaims. The Court GRANTS Plaintiff’s Motion to Dismiss as to Defendants’ copyright infringement counterclaims for statutory damages and attorney’s fees but DENIES the Motion as to Defendants’ copyright infringement counterclaims seeking other relief."
Plaintiff operates a website called Community College Review. It received multiple cease and desist letters, which escalated in the severity of their threats, from counsel for certain affiliated institutions about which routine, publicly-available data was reported on the website. The claims sounded in copyright and trademark, including various unfair competition theories. They demanded not only that the material be taken down, but reserved the right to seek massive statutory damages based on copyright infringement.

Our client filed a declaratory judgment action seeking a determination of non-infringement on various grounds, and the defendants filed mirror-image counterclaims.

From the decision: "As set forth herein, Plaintiff’s Motion to Dismiss is GRANTED as to Defendants’ trademark infringement, unfair competition, deceptive trade practices, and trademark dilution counterclaims. The Court GRANTS Plaintiff’s Motion to Dismiss as to Defendants’ copyright infringement counterclaims for statutory damages and attorney’s fees but DENIES the Motion as to Defendants’ copyright infringement counterclaims seeking other relief."

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Categories:Types, Business/Law
Published by: Ron Coleman on Mar 29, 2013
Copyright:Attribution Non-commercial

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03/29/2013

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1UNITED STATES DISTICT COURTSOUTHERN DISTRICT OF NEWYORK ------------------------------------------XBOARDING SCHOOL REVIEW, LLC,Plaintiff,v. 11 Civ. 8921 (DAB)MEMORANDUM& ORDERDELTA CAREER EDUCATION CORPORATION,WESTON EDUCATIONAL, INC., BERKS TECHNICAL INSTITUTE, INC., MCCANNEDUCATIONAL CENTERS, INC., MILLER-MOTTEBUSINESS COLLEGE, INC., SOUTHWESTBUSINESS COLLEGES, INC., and THE MIAMI- JACOBS BUSINESS COLLEGE CO.Defendants.-------------------------------------------XDELTA CAREER EDUCATION CORPORATION, et al.Counterclaim-Plaintiffs,v.BOARDING SCHOOL REVIEW, LLC,Counterclaim-Defendant.------------------------------------------XDEBORAH A. BATTS, United States District Judge.Plaintiff/Counterclaim-Defendant moves this Court pursuantto Fed. R. Civ. P. 12(b)(6) to dismiss Defendants/Counterclaim-Plaintiffs’ counterclaims, which allege trademark infringement,unfair competition, deceptive trade practices, trademarkdilution, and copyright infringement.
Case 1:11-cv-08921-DAB Document 22 Filed 03/29/13 Page 1 of 30
 
2As set forth herein, Plaintiffs Motion to Dismiss isGRANTED as to Defendants’ trademark infringement, unfaircompetition, deceptive trade practices, and trademark dilutioncounterclaims. The Court GRANTS Plaintiffs Motion to Dismiss asto Defendants’ copyright infringement counterclaims forstatutory damages and attorneys fees but DENIES the Motion asto Defendants’ copyright infringement counterclaims seekingother relief.I.
 
BACKGROUND The following facts are drawn fromthe Counterclaims,documents attached thereto as exhibits or incorporated byreference, and websites of which the Court takes judicialnotice.
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Defendants ask the Court to take judicial notice of fivewebsites: the Miller-Motte College website home page, theHeritage website home page, the BSR webpages for Miller-MotteCollege – Cary and Heritage College – Oklahoma City, and aGoogle support page. (See Def. Req. for Judicial Notice.) TheCourt generally has the discretion to take judicial notice ointernet material. Magnoni v. Smith & Laquercia, LLP, 701 F.Supp. 2d 497, 501 (S.D.N.Y. 2010); see also Patsy's ItalianRestaurant, Inc. v. Banas, 575 F. Supp. 2d 427, 443 n.18(E.D.N.Y. 2008) (“It is generally proper to take judicial noticeof articles and Web sites published on the Internet.”), affd,658 F.3d 254 (2d Cir. 2011). In addition, the authenticity othe websites and the printouts of the websites which Defendantsattach to their Request have not been challenged, and they are“not subject to reasonable dispute.” Fed. Rule Evidence 201(b). They are taken to be true for the purposes of this
Case 1:11-cv-08921-DAB Document 22 Filed 03/29/13 Page 2 of 30
 
3Memorandumand Order. Plaintiff / Counterclaim-DefendantBoarding School Review, LLC (“BSR” or “Plaintiff”) operates aninternet website called Community College Review (the“website”), accessible at http://www.communitycollegereview.com,which provides information on community colleges to prospectivestudents. (Counterclaims ¶ 39.) BSRs website earns revenue bythe sale of advertising on its website and, Defendants allege,Internet leads. (Id. 49.) The website contains subdomains of hundreds of schools, each of which contains information aboutthe subject school. Each subdomain or profile contains a brieoverview of the school, data and statistics comparing the schoolto community college averages, a map of the schools location,and a lead form
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to acquire admissions information. (Am. Compl.Ex. A
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However, the Court fails to see the relevance of the Googlesupport page. Accordingly, the Court takes judicial notice othe four other webpages and the printouts of those webpages.(See Req. Judicial Notice Exs. A-D.)at 6-19; Def. Req. Judicial Notice Exs. C-D.)
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A lead formprompts site users to enter their contactinformation. Lead generation is a common formof Internetmarketing.
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Exhibits A and B of the Amended Complaint are incorporated byreference in the Counterclaims and may be considered by theCourt. See Counterclaims ¶¶ 56, 61 (referencing Defendants’demand letters regarding trademarks and copyright material).
Case 1:11-cv-08921-DAB Document 22 Filed 03/29/13 Page 3 of 30

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