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A Minnesota federal court rejected trademark and
cybersquatting claims levied against a borrower that created a website to warn consumers
about what it perceived to be a lender's fraudulent business practices. Jalin Realty Capital Advisors v. A Better
Wireless, 2013 U.S. Dist. LEXIS 2461 (D. Minn. January 8, 2013) [enhanced version available to lexis.com subscribers].
The borrower, A Better Wireless (ABW), could not be found liable
for cybersquatting because there was no evidence to conclude that it had acted
with a bad faith intent to profit. On the trademark claim, the court held that the
plaintiff, Jalin Realty Capital Advisors (Jalin), had not shown that it used
the mark "JRCA" in connection with its services or that
"JRCA" identified Jalin as the provider of its services in the minds
ABW, which had sought a loan from Jalin, created a website
with the domain name "jrca.info" and used the website to warn consumers
about what it perceived to be Jalin's fraudulent business practices. Jalin
sued, asserting multiple claims, including cybersquatting, trademark
infringement and appropriation of personal name and likeness.
ABW argued that it registered the domain name
"jrca.info" and maintained the website in a legitimate, good faith
attempt to warn other consumers about what it believed were Jalin's fraudulent
business practices. Jalin countered that ABW knew that it was posting incomplete,
inaccurate information. However, Jalin offered no evidence suggesting that ABW
intended to profit by creating the website.
"Jalin does not allege that ABW offered to sell the domain
name to Jalin or anyone else," the court said, noting that cybersquatting
required a bad faith intent to profit. "[N]or does Jalin allege that ABW
offered to take down the website in exchange for money."
Jalin's claim of common law trademark infringement failed
because there was no evidence that Jalin ever used the mark "JRCA."
Consequently, that mark could not form the basis of Jalin's claim. Likewise,
the court rejected Jalin's trademark claim based on the purported mark "Jalin
Realty Capital Advisors."
"[T]here is no likelihood of confusion as a matter of law,"
the court said. "It is implausible that
consumers would somehow conclude that ABW's website was affiliated with Jalin,
created by Jalin, or sponsored by Jalin."
The court went on to reject Jalin's claim that ABW
appropriated Jalin's name for its own use and benefit when ABW used Jalin's
initials in the domain name of its complaint website.
"Due to its recent adoption," the court noted, "the tort of
appropriation is undeveloped in Minnesota. Whether an appropriation claim is cognizable
on the facts of the present case is a question of first impression in Minnesota."
The court resolved this question against Jalin, underscoring
that no Minnesota court had previously allowed a commercial entity, as opposed
to a human being, to bring an appropriation claim.
"[A}llowing Jalin to bring an appropriation claim would make
Minnesota a major outlier," the court said. "This Court sees no reason to predict
that a Minnesota court would take the seemingly unprecedented step of allowing
Jalin, a commercial entity, to pursue its appropriation claim."
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