Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 242

MOTION in Limine No. 3 by Connexus Corporation, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________

DEFENDANTS CONNEXUS CORPORATION, FIRSTLOOK, INC., AND
NAVIGATION CATALYST SYSTEMS, INC.’S MOTION IN LIMINE NO. 3

NOTICE OF MOTION AND MOTION
TO THIS HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD:
Connexus Corporation, Firstlook, Inc., and Navigation Catalyst Systems, Inc.
(collectively the “Defendants”) hereby move this court in limine for an order excluding any
reference, insinuation, questioning, argument, or evidence (testimony or documents) regarding
Defendants’ registration of domain names that are “adult” in nature.
The bases for this Motion are set forth in the Memorandum of Points and Authorities; to
wit, that such argument and testimony are irrelevant to this matter pursuant to Federal Rule of
Evidence 402. Even if such evidence was relevant and admissible, the prejudicial effect of such
evidence substantially outweighs its probative value, and, therefore, the Court should exercise its
discretion to exclude such argument and testimony under Federal Rule of Evidence 403.
Counsel for Defendants have explained the nature of this Motion and its legal basis and
requested, but did not obtain, concurrence in the relief sought.
RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific Time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
With this motion in limine, Defendants seek to exclude any argument and/or evidence

related to Defendants’ registration of domain names that are “adult” in nature. As this Court is
aware, Defendants are in the business of bulk domain name registration and monetization.
Among those names that might be profitable to Defendants are those containing sexually
suggestive or explicit, i.e., “adult,” language. For example, Defendants are the owners of
domain names such as “4youporn.com,” “loerotica.com,” and “escorts8.com.” This activity is
not illegal; nor does it have any bearing whatsoever on Plaintiff, either in the context of this
lawsuit or elsewhere. Yet, Defendants anticipate that Plaintiff might try to introduce evidence of
the adult domain names to paint Defendants as unsavory and inflame the jury against them.
Such evidence has absolutely no relation to the instant lawsuit and should be wholly excluded
from trial.

II.

ARGUMENT

A.

EVIDENCE OF THE REGISTRATION OF ADULT DOMAIN NAMES IS
IRRELEVANT TO THIS LAWSUIT.

Federal Rule of Evidence 402 specifically provides that “[e]vidence which is not
relevant is not admissible.” Rule 402 defines relevant evidence as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”

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Here, Defendants’ registration nd ownership of adult domain names is patently irrelevant
to this lawsuit. To track the language of Rule 402, the fact that Defendants have registered the
name “4youporn.com” does not make it more or less probable that Defendants infringed on
Plaintiff’s trademark rights. This is a lawsuit about one unique set of allegations, specifically
whether Defendants violated Plaintiff’s purported trademark rights by registering certain domain
names – names that purportedly relate to Plaintiff’s weather business and are not adult in nature.
It is not a lawsuit about Defendants’ business practices, in general, or what other domain names
Defendants own. Nor is this a lawsuit about Defendants’ character. Defendants are in the
business of registering domain names in bulk and, consequently have registered certain
profitable domain names that other parties might find distasteful. But, Plaintiff’s dispute with
Defendants concerns only a small subset of Defendants’ domain names, the remainder of which
are patently irrelevant to this particular lawsuit.

B.

EVEN IF RELEVANT, EVIDENCE OF THE ADULT DOMAIN NAMES
SHOULD BE EXCLUDED FROM TRIAL AS PREJUDICIAL AND A WASTE
OF TIME.

Pursuant to Federal Rule of Evidence 403, “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” The Sixth Circuit has granted trial courts broad discretion to exclude
evidence whose prejudicial effect outweighs its probative value. See, e.g., U.S. v. Fisher, 648
F.3d 442, 449 (6th Cir. 2011) (upholding district court’s decision to exclude documentary
evidence that would have “a high likelihood of misleading and confusing the jury”). Where, as

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here, the evidence is wholly irrelevant, the trial judge has wide latitude to restrict or completely
exclude it. U.S. v. Mack, 258 F.3d 548, 555 (6th Cir. 2001) (concluding that the district court
erred in admitting evidence of prior acts, where the evidence had little probative value and would
prejudice the jury as to defendant’s “bad character”) .
As previously established, there is nothing probative about Defendants’ registration of
adult domain names. This lawsuit is not even about the nature of Defendants’ domain names
themselves but, rather, about whether they infringe on Plaintiff’s trademark rights. Plaintiff has
never alleged that Defendants’ adult domain names infringe on its rights. Yet the danger that
such evidence would unfairly prejudice the jury is substantial.
Plaintiff will likely seek to introduce evidence of the adult domain names to show the
jury that Defendants are unsavory, immoral characters, profiting from the registration of
distasteful names. Defendants register thousands of domain names, only a subset of which are
adult in nature. Yet, there is probably nothing more prejudicial to Defendants than evidence of
activity that – while perfectly legal – would make a jury uncomfortable, embarrassed, and
disapproving. The trial could easily turn into a condemnation of Defendants’ adult domain
names, which are “more lurid and frankly more interesting than the evidence surrounding the
actual [allegations].” U.S. v. Stout, 509 F. 3d 796, 801 (6th Cir. 2007). Thus, “[a]ny jury will be
more alarmed and disgusted” by the adult domain names than by any allegations Plaintiff makes
against Defendants, and will consequently pay “undue attention” to the domain names and be
“improperly distracted from the primary evidence at hand.” Id.
And, as if the prejudicial danger to Defendants was not sufficient, evidence of the adult
domain names is likely to confuse the jury as they wonder what weight to accord this evidence

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and how it relates to the instant lawsuit. This is a needless distraction which will take up an
undue amount of time and waste judicial resources.
III.

CONCLUSION
Defendants’ registration of adult domain names is irrelevant to this trial, which is a

unique set of allegations concerning a unique set of domain names which are not adult in nature.
And, even if it could somehow be relevant, the danger of prejudice and confusion, and the
unnecessary delay such evidence would cause, mitigates in favor of exclusion. For these
reasons, this Court should exclude all arguments, evidence, and references to the existence of the
adult domain names.
RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific time).
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2012, Pacific Time, I electronically filed the
foregoing paper with the Court using the ECF system which will send notification of
such filing to the following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

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