CHICAGO – A federal judge in Illinois has dismissed all but one of the claims brought by Flava Works Inc. against myVidster.com, after finding that the Flava Works complaint “fails to identify even a single infringed work.”
U.S. District Judge Robert W. Gettleman also found Flava Works claims of trademark infringement and unfair competition, common law unfair competition and violation of the Illinois Uniform Deceptive Trade Practices Act to be “woefully deficient.”
“With respect to plaintiff’s trademark infringement and unfair competition claims, the complaint contains no allegation that defendants used plaintiff’s marks in commerce,” Gettleman wrote in his decision. “Indeed, the complaint fails to identify a single mark that defendants used, let alone used in commerce.”
The current case is not the first time Flava Works has sued myVidster. In 2010, the company filed a similar complaint against the video-sharing site, and the judge in that case dismissed all Flava Works’ claims except one alleging contributory copyright infringement.
The court in the 2010 case issued an injunction against the myVidster defendants based on the contributory copyright claim, but the injunction was later vacated by the Seventh Circuit appellate court, which found that “the infringing parties were those that upload the copyrighted materials to the host servers,” and not myVidster itself.
Flava Works and myVidster then arrived at what the court described as a “complicated settlement agreement,” which Flava Works now claims myVidster has breached. The sole surviving count in Flava Works’ new complaint is this breach of contract claim.
In one of the alleged contract breaches addressed in Gettleman’s decision, Flava Works claims myVidster reduced the size of ad space on its main page after the settlement agreement was reached and “failed to make plaintiff’s ads viewable by its paid users.”
In response to this claim, myVidster argued nothing in the settlement agreement specifies a required size for the Flava Works ads carried on the site, but the court wasn’t persuaded by this argument.
“Defendant argues that nothing in the agreement dictates the size of plaintiff’s ads,” Gettleman wrote. “While that may be true, that does not mean that defendant could reduce the size of the ad to the point that they could not be viewed and still be acting in good faith. Defendant also argues that the agreement requires only that the ads be placed on myVidster’s Adult Home Page. Even if true, however, that does not necessarily mean that defendant could create a separate adult home page for paid users without violating the agreement.”
The defendants also argued the court should dismiss the breach of contract claim because Flava Works “has not pled an injury resulting from the breaches,” but Gettlemen didn’t find this to be sufficient reason to dismiss the claim, either.
“Although the complaint does not quantify plaintiff’s damages in monetary terms, it does allege a loss of business revenue and good will as a result of plaintiff’s actions,” Gettleman wrote in his decision. “Such allegations are sufficient at the pleading stage.”
