Wintice Group v. Longleg et al

Filing 122

ORDER granting in part and denying in part 110 Motion for Summary Judgment.The motion is GRANTED in that no genuine issue of material fact remains that Defendant Destiny Longlegs use of the men2rentnow.com website created a likelihood of confusion as to the source of services offered at that website. The motion is denied in all other respects. Granting in part and denying in part 112 Motion for Permanent Injunction. (See Order for Details)IT IS FURTHER ORDERED that the Preliminary Injunction 37 this Court previously entered in this case, as modified on June 4, 2010 116 , otherwiseremains in effect pending the outcome of this case. IT IS FURTHER ORDERED that the parties shall forthwith meet and confer and shall, not later than September 30, 2010, file a proposed joint pretrial order in compliance with the Local Rules of this Court. Signed by Judge Philip M. Pro on 9/3/2010. (Copies have been distributed pursuant to the NEF - SD)

Wintice Group v. Longleg et al

Doc. 122

1 2 3 UNITED STATES DISTRICT COURT 4 D IS T R IC T OF NEVADA 5 6 W IN T IC E GROUP, Inc., 7 P la in tif f , 8 v. 9 D E S T IN Y LONGLEG, et al., 10 Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 *** ) ) ) ) ) ) ) ) ) ) )

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ORDER

P re se n tly before the Court is Plaintiff Wintice Group, Inc.'s Motion for Summary J u d g m e n t (Doc. #110) and Motion for Permanent Injunction (Doc. #112), filed on May 20, 2 0 1 0 . Defendants Destiny Longleg and David Horton filed Oppositions (Doc. #118, #119) o n June 22, 2010. The Court held a hearing on these motions on August 30, 2010. I . BACKGROUND W in tic e owns and operates the website men4rentnow.com, which charges users a f e e to advertise for personal services, such as escorts and masseurs. (Pl.'s Mot., Ex. 2 at 2.) In 2007, Wintice applied to register the service mark MEN4RENTNOW.COM with the U .S . Patent and Trademark Office ("PTO"), and the PTO registered the mark in 2009. (Pl.'s Mot., Ex. 1; Pl.'s Mot. Prelim. Inj. (Doc. #25), Ex. A.) From the website's inception in 2003 through 2008, Wintice spent over $1 million to build the men4rentnow.com and m 4 rn .c o m brands through advertising and event sponsorships. (Pl.'s Mot., Ex. 2 at 2.) Defendant Destiny Longleg ("Longleg") created an advertising account at m e n 4 re n tn o w .c o m in June 2004 using the email address [e-mail]. (Pl.'s Mot., Ex. 2 at 3.) Longleg created another account in April 2007 using the email

Dockets.Justia.com

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a d d re s s [e-mail]. (Id.) Defendant Horton created a client account on m e n 4 re n tn o w .c o m in August 2004 using the email address [e-mail]. (Id.) In May 2007, a Wintice customer reported he had received spam from an a d v e rtis in g account at men4rentnow.com. (Id.) Wintice's technology consultant in v e s tig a te d the incident and determined that 521 spam messages sent to Wintice customers o rig in a te d from one of Longleg's account at men4rentnow.com. (Id. at 3-4; Pl.'s Mot., Aff. o f Matt Lauer at 2-3.) The spam directed Wintice customers to a "new and free" classified a d v e rtis in g service located at men2rentnow.com. (Pl.'s Mot., Ex. 2 at 3-4.) Longleg owned a n d operated men2rentnow.com. (Id. at 4; Pl.'s Mot., Aff. of Matt Lauer at 3.) After d is c o v e rin g these spam emails, Wintice implemented a spam blocking tool on m e n 4 re n tn o w .c o m , and intercepted 343 additional spam emails originating from Longleg's a c c o u n t. (Pl.'s Mot., Ex. 2 at 4, Aff. of Matt Lauer at 3.) Based on the spam emails, W in tic e investigated the men2rentnow.com website. (Pl.'s Mot., Ex. 2 at 4.) Wintice d is c o v e re d the men2rentnow.com site copied many of the men4rentnow.com website's f e a tu re s , including the layout, menus, sign up procedure, button placement, banner, and te rm s of use. (Id.) Contained within the metatags for the men2rentnow.com website was " m e n 4 re n tn o w ." (Pl.'s Mot., Ex. 6.) Longleg admits that he used the phrase men4rentnow o n the men2rentnow.com website for three months in 2007. (Defs.' Opp'n to Pl.'s Mot. for P re lim . Inj. (Doc. #118), Aff. of Destiny Longleg ("Longleg PI Aff.") at 1.) Wintice sent a cease and desist letter to Longleg and notified the hosting and bill p ro c e s s in g companies for men2rentnow.com that Longleg was infringing Wintice's c o p yrig h t and trademark rights. (Pl.'s Mot., Ex. 2 at 4-5, Ex. 3.) Wintice also terminated L o n g le g 's accounts on men4rentnow.com. (Pl.'s Mot., Ex. 2 at 5.) In response to W in tic e 's notice, the bill processing company indicated it no longer would process m e n 2 re n tn o w .c o m 's bills, and the hosting company indicated it would deactivate m e n 2 re n tn o w .c o m unless Longleg removed all infringing elements. (Id.) Longleg 2

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v o lu n ta rily deactivated men2rentnow.com and moved it to another hosting company. (Id.; P l.'s Mot., Ex. 4.) Wintice notified the second hosting company of the infringement, but d id not hear back from the company. (Pl.'s Mot., Ex. 2 at 5, Ex. 3.) Wintice checked the m e n 2 re n tn o w .c o m website and found no activity. (Pl.'s Mot., Ex. 2 at 5.) Wintice thus c o n c lu d e d Longleg had ceased any infringing activity. (Id.) In 2008, Wintice discovered a blog entry on the website men4rentnow.org which m a d e disparaging comments about Wintice. (Id. at 6.) The men4rentnow.org website d ire c te d traffic to the website boys2rentnow.com. (Id.) Longleg owned both of these w e b s ite s . (Id.) Longleg also owned the website b2rn.com. (Pl.'s Mot., Ex. 5.) The b o ys 2 re n tn o w .c o m website advertised male escorts. (Pl.'s Mot. Prelim. Inj., Ex. E.) According to Longleg, the boys2rentnow.com and boys2rent.com websites never have used in any way "men4rentnow.com" or "men4rentnow." (Longleg PI Aff. at 1.) However, L o n g le g admits he put the phrase "men4rent" on the boys2rentnow.com website in April 2 0 0 8 , which he claims he did upon learning that Plaintiff was using his unique phrase " b o ys 2 re n t" on its website. (Id.) Longleg states that he removed the phrase men4rent from th e boys2rent.com website after Plaintiff filed suit. (Defs.' Opp'n to Pl.'s Mot. Summ. J., A f f . of Destiny Longleg at 2.) Longleg avers that Plaintiff has stymied his efforts at a d v e rtis in g the boys2rent.com website, including advising the owners of another website th a t Plaintiff would terminate an advertising contract if the third party allowed Longleg to a d v e rtis e on the same website. (Longleg PI Aff. at 2.) Longleg denies he has acted in bad f a ith or intended to affiliate his websites with Plaintiff. (Id.) Longleg contends he does not w a n t to be affiliated with Plaintiff, as doing so would harm his reputation as he has "found th a t people do not like [Wintice]." (Id.) W in tic e claims that since Longleg began spamming its customers in May 2007, W in tic e has suffered a 23% reduction in paid advertising accounts. (Pl.'s Mot., Ex. 2.) Plaintiff presents an exhibit depicting the traffic for the two websites which shows that 3

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m e n 4 re n tn o w .c o m had generally steady traffic from January through April 2008, with an in c re a se in May 2008, followed by a downward trend in traffic from May 2008 through J a n u a ry 2009. (Pl.'s Mot., Ex. 7.) The boys2rentnow.com site experienced rather steady tra f f ic during this time, with a slight uptick in traffic from November 2008 to January 2009. (Id.) Wintice commenced an arbitration with the Internet Corporation of Assigned N a m e s and Numbers. (Pl.'s Mot., Ex. 2.) Wintice discovered further spam aimed at its c u s to m e rs directing them to the boys2rentnow.com website. (Id.) Wintice thus decided to b rin g a civil action in which it could seek injunctive relief. (Id.) Wintice brought suit in th is Court, asserting claims for unfair competition under the Lanham Act for false d e s ig n a tio n of origin and false advertising, cybersquatting, deceptive trade practices, c o m m o n law trademark infringement, defamation, and intentional interference with p ro s p e c tiv e economic advantage. Longleg filed a counterclaim for libel based on the a lle g a tio n s in the First Amended Complaint. W in tic e previously moved for a preliminary injunction in this case, requesting D e f e n d a n ts be enjoined from using confusingly similar websites such as men4rentnow.org, m e n 2 re n tn o w .c o m , and boys2rentnow.com. The Court granted in part and denied in part th e motion. The Court noted that: D e f e n d a n ts state that they either have not engaged in much of the c o n d u c t alleged by Plaintiff, or have ceased doing so, and further agree th e y will not engage in conduct which would infringe on Plaintiff's tra d e m a rk s , including, MEN2RENTNOW, MEN4RENTNOW.COM, a n d M4RN. Defendants further argue that they seek only to continue th e use of the domain names BOYS2RENTNOW.COM, B O Y S 2 R E N T N O W .N E T , and B2RN, and that such conduct does not in f rin g e Plaintiff's trademarks. The Court agrees. (O rd e r (Doc. #37).) The Court therefore enjoined Defendants from using Plaintiff's tra d e m a rk or confusingly similar variations thereof, including men4rentnow.com, m e n 4 re n tn o w , or M4RN, but did not enjoin the use of boys2rentnow.com, 4

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b o ys 2 re n tn o w .n e t, or b2rn.com. T h e Court subsequently dismissed Longleg's counterclaim. (Order (Doc. #62).) The Court also awarded costs in the amount of approximately $13,000 in favor of Plaintiff in relation to this counterclaim. (Order (Doc. #76).) T h e parties thereafter engaged in a settlement conference before the Magistrate J u d g e and reached a settlement, placing the terms of the settlement on the record. (Tr. of P ro c e e d in g s (Doc. #92).) The settlement fell through, and in April 2010, Plaintiff moved to re in s ta te the case against both Horton and Longleg. Neither Horton nor Longleg responded to the motions to reinstate the case, and the Court granted the motions. (Order (Doc. # 1 0 4 ).) P la in tif f thereafter filed a motion for an order to show cause why Horton and L o n g le g should not be held in contempt for violating the preliminary injunction. Plaintiff a s s e rte d that Defendants had engaged in several acts violating the preliminary injunction, in c lu d in g migrating their websites' content from the United States to Canada, and selling th e men2rentnow.com website to an Australian registration company. Plaintiff further c o n te n d e d Defendants purchased several more infringing domain names after entry of the p re lim in a ry injunction and during the bankruptcy court's automatic stay, including m e n 4 re n tb o ys .c o m , men4rentboy.com, and menforrentboys.com. Longleg responded that P la in tif f had presented no proof the content ever was located in the United States. As to the tra n s f e r of the men2rentnow.com website, Longleg argued he did not transfer it, he a b a n d o n e d it, at which point another company obtained it. The Court denied the motion, but modified the preliminary injunction to require D e f e n d a n ts to preserve in original form any documents or data relating to the websites b o ys 2 re n tn o w .c o m , boys2rentnow.net, b2rn.com, men4rentnow.org, men2rentnow.net, m e n 2 re n tn o w .c o m , and men2rentnow.org. (Order (Doc. #116).) The Court further ordered th a t Defendants "shall cease any operation of the foregoing seven websites and shall take no 5

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f u rth e r action to transfer or encumber them." Plaintiff now moves for summary judgment and for a permanent injunction, a rg u in g Defendants deliberately have copied and traded upon Plaintiff's federally registered m a rk , men4rentnow.com, by operating websites offering the same services under c o n f u s in g ly similar names. Plaintiff also moves for summary judgment on its defamation c la im , contending Defendants defamed Plaintiff by associating the word "boy" with its w e b s ite , thus inferring Plaintiff supports activities related to underage males. Plaintiff also s e e k s permanent injunctive relief preventing Defendants from continuing this conduct in the f u tu re . I . SUMMARY JUDGMENT S u m m a ry judgment is appropriate "if the pleadings, the discovery and disclosure m a te ria ls on file, and any affidavits show that there is no genuine issue as to any material f a c t and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it might affect the outcome of a suit, as determined by the governing s u b s ta n tiv e law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is " g e n u in e " if sufficient evidence exists such that a reasonable fact finder could find for the n o n -m o v in g party. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2 0 0 2 ). Initially, the moving party bears the burden of proving there is no genuine issue of m a te ria l fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). After the m o v in g party meets its burden, the burden shifts to the non-moving party to produce e v id e n c e that a genuine issue of material fact remains for trial. Id. The Court views all e v id e n c e in the light most favorable to the non-moving party. Id. P la in tif f moves for summary judgment on its Lanham Act claims of false d e s ig n a tio n of origin and false advertising in counts one and two of its First Amended C o m p la in t. Plaintiff contends Defendants admittedly copied Plaintiff's mark and the c o n te n ts of its website and engaged in other conduct designed to deceive Plaintiff's 6

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c u s to m e rs into thinking Defendants' websites were associated with men4rentnow.com. Plaintiff also moves for summary judgment on its defamation claim in count six. Plaintiff a rg u e s that by associating "boys2rent" with Plaintiff's men4rent websites, Defendants have d e f a m e d Plaintiff by suggesting Plaintiff permits advertising for services by individuals u n d e r the age of eighteen. D e f e n d a n ts argue that Plaintiff has not met its initial burden of demonstrating no g e n u in e issues of material fact remain. Defendants contend that with respect to the Lanham A c t claims, Defendants never have used Plaintiff's actual mark, men4rentnow.com, and P la in tif f has produced no evidence of likelihood of confusion. Defendants also argue P la in tif f has failed to establish that at all relevant times its mark was registered. Defendants a rg u e that although Plaintiff tries to claim "men4rent" is its mark, the actual registered mark is men4rentnow.com, and the phrase men4rent is a common phrase in the public domain. As to the defamation count, Defendants argue that Plaintiff's own website c o n ta in s references to boys and thus this claim has no merit, as Plaintiff has brought on its e lf any ridicule or contempt by reference to boys for rent. Defendants further contend th a t issues of fact remain as to whether Defendants knew the reference to boys was false or a c te d with reckless disregard for the truth. Finally, as to damages, Defendants argue that o th e r factors, such as the economy, may have caused the alleged drop off in revenue. A . Lanham Act T h e Lanham Act "prohibits the use of false designations of origin, false d e s c rip tio n s , and false representations in the advertizing and sale of goods and services." Jack Russell Terrier Network of N. Ca. v. Am. Kennel Club, Inc., 407 F.3d 1027, 1036 (9th C ir. 2005). Pursuant to the Lanham Act, any person who believes he has been damaged m a y bring a civil action against: [ a ]n y person who, on or in connection with any goods or services . . . u s e s in commerce . . . any false designation of origin, false or m is le a d in g description of fact, or false or misleading representation of 7

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f a c t, which­ (A ) is likely to cause confusion, or to cause mistake, or to d e c e iv e as to the affiliation, connection, or association of such person w ith another person, or as to the origin, sponsorship, or approval of his o r her goods, services, or commercial activities by another person, or (B ) in commercial advertising or promotion, misrepresents the n a tu re , characteristics, qualities, or geographic origin of his or her or a n o th e r person's goods, services, or commercial activities . . . . 1 5 U.S.C. § 1125(a). "The test for false designation under the Lanham Act . . . is whether th e re was a likelihood of confusion" among consumers as to the source of the goods or s e rv ic e s offered by the parties. Walter v. Mattel, Inc., 210 F.3d 1108, 1111 (9th Cir. 2000). The Ninth Circuit has set forth several factors to consider in making this determination: (1) strength of the mark;[] (2) proximity or relatedness of the goods; (3 ) similarity of the marks; (4) evidence of actual confusion; (5) m a rk e tin g channels; (6) type of goods and degree of purchaser care; (7 ) intent in selecting mark; and (8) likelihood of expansion. Id . (footnote omitted) (citing AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1 9 7 9 )). 1 . Men2rentnow.com N o genuine issue of material fact remains that Longleg's use of the m e n 2 re n tn o w .c o m website was likely to confuse consumers as to the source of services b e in g offered at that website. Plaintiff has presented unrebutted evidence that Longleg o w n e d the men2rentnow.com website. Plaintiff also has presented unrebutted evidence that L o n g le g used his men4rentnow.com account to spam Plaintiff's customers with emails u rg in g them to visit the new free men2rentnow.com website. The men4rentnow.com mark is a federally registered mark and thus is strong, and was known before registration amongst th o s e customers whom Longleg spammed because they were Plaintiff's paying customers. The two websites offered similar services of advertising for male escorts. The marks are s im ila r, as the men2rentnow.com website is merely one character off from the registered m e n 4 re n tn o w .c o m mark and conveys a similar message as a whole. The parties used 8

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s im ila r marketing channels, as both are web based. As to actual confusion, Wintice received customer complaints regarding the spam e m a ils . Longleg's intent in selecting the mark is obvious by the sheer similarity of the two w e b s ite s ' names and content, the fact that he was familiar with the men4rentnow.com mark a s he was a paying customer of Plaintiff's, his use of his own men4rentnow.com account to s p a m Plaintiff's customers with advertising for his own very similarly named m e n 2 re n tn o w .c o m website, and his placement of men4rentnow in his website's metatags.1 N o genuine issue of material fact remains that the men2rentnow.com website was likely to c a u s e consumer confusion over the source of the website.2 H o w e v e r, a genuine issue of material fact remains as to whether Longleg's c o n d u c t caused any damages. Plaintiff asserts it has lost twenty-three percent of its paid a d v e rtis e rs since Longleg spammed its customers in 2007. However, Plaintiff presents no e v id e n c e to support causation as to damages other than timing. Other factors may have im p a c te d the decline in Plaintiff's subscriptions. Plaintiff's exhibit showing web traffic b e tw e e n its website and boys2rentnow.com does not demonstrate how much revenue P la in tif f may have lost due to Longleg's operation of the men2rentnow.com website. Moreover, it does not show data prior to January 2008, but Longleg ceased using the m e n 2 re n tn o w .c o m website in 2007. Further, the exhibit shows rather steady website traffic a t men4rentnow.com from January through April 2008, with an increase in May 2008, f o llo w e d by a downward trend in traffic from May 2008 through January 2009. The same e x h ib it shows steady traffic for boys2rentnow.com until a slight uptick in November 2009.

Longleg's argument that the phrase "men4rent" is in the public domain is therefore unavailing in relation to the men2rentnow.com website. Longleg used the phrase "men4rentnow" in the metatags for the men2rentnow.com website, not just the phrase "men4rent." Neither party presented evidence related to the purchaser care factor. The evidence related to expansion is equivocal. Longleg ceased using the men2rentnow.com website in 2007. However, he moved the content to other websites. 9
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T h e uptick in Longleg's website does not correlate to the downtrend in Plaintiff's traffic, s u g g e s tin g other factors might be at play in the differences in web traffic beyond Longleg's a c tiv ity. The Court therefore will grant partial summary judgment as to likelihood of c o n f u s io n with respect to this website, but will deny summary judgment as to causation of dam ages. 2 . Men4rentnow.org W ith respect to Longleg's men4rentnow.org website, the domain name in c o rp o ra te s nearly all of Plaintiff's mark except it changes .org for .com, but Plaintiff has n o t presented evidence that this website ever offered similar services. The evidence p re s e n te d shows Longleg used this website for his blog in which he criticized Plaintiff. Plaintiff has not presented evidence Longleg used the site as a similar business such that c o n s u m e rs would be confused, or that consumers would be confused about whether P la in tif f endorsed or was associated with a website that was critical of Plaintiff.3 The Court th e re f o re will deny summary judgment as to this website. 3 . Boys2rent websites T h e boys2rentnow.com, boys2rent.com, and b2rn.com websites offered similar s e rv ic e s in the form of male escort advertising. However, the website domain names are n o t as similar to Plaintiff's registered mark, men4rentnow.com, as the men2rentnow.com w e b s ite . "Boys2" is fairly different than "men4,"4 and the Court was not inclined to grant

Enjoining Longleg from using the site to engage in non-commercial speech also may ru n afoul of the First Amendment. See Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1 0 0 2 , 1017 (9th Cir. 2004) (holding that website at nissan.com that was critical of Nissan M o to r Company was informational, not commercial speech, and court could not enjoin such s p e e c h without violating the First Amendment). Plaintiff did not argue in its motion that the men4rentnow.org website created initial interest confusion. See id. at 1018. Indeed, in its defamation count, Plaintiff contends the use of the word "boys" in connection with its website defames it, thus suggesting material differences between the word "boys" and "men" in the context of Plaintiff's claims under the Lanham Act. 10
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in ju n c tiv e relief on this website earlier in this case. The boys2rent.com and b2rn.com n a m e s are even less similar to Plaintiff's mark. Plaintiff has presented no evidence of a c tu a l confusion in relation to these websites. The Court will deny summary judgment as to th e boys2rent websites. 4. Defendant David Horton P la in tif f presents no evidence of Defendant David Horton's participation in any o f the alleged activity. The Court will deny the motion as to Defendant David Horton. A c c o rd in g ly, the Court will grant partial summary judgment in Plaintiff's favor to th e limited extent that Longleg's use of the men2rentnow.com website was likely to cause c o n s u m e r confusion. The Court will deny the motion in all other respects. B . Defamation A lth o u g h Plaintiff moves for summary judgment on its defamation count, it does n o t cite legal authority or factual evidence in support, and Plaintiff therefore consents to d e n ia l of the motion. See LR 7-2(d). Plaintiff has failed to show the absence of a material f a c t on this claim. Moreover, Longleg presents evidence that Plaintiff's own website refers to boys for rent. (Defs.' Opp'n, Ex. B (inviting visitors to "[f]ind local rent boys"). The C o u rt will deny the motion for summary judgment as to Plaintiff's defamation claim. I I . MOTION FOR PERMANENT INJUNCTION P la in tif f moves for a permanent injunction, seeking to enjoin Defendants from u s in g Plaintiff's trademark or confusingly similar variations thereof; registering, owning, le a s in g , selling, or trafficking in any domain names containing Plaintiff's mark or c o n f u s in g ly similar variations thereof, including specified domain names; and transferring a ll infringing domain names to Plaintiff. D e f e n d a n ts respond that they currently are not committing any act of which P la in tif f complains, and thus no injunction is necessary. Defendants contend the balance of h a rd s h ip s tips in their favor, as Plaintiff is attempting to stamp out competition, third parties 11

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re ly on the free advertising offered at Defendants' websites, and shutting down Defendants' w e b s ite s will cause irreparable harm to their goodwill. To obtain permanent injunctive relief, a plaintiff must show (1) it has suffered irre p a ra b le injury; (2) remedies at law are inadequate to compensate for that injury; (3) the b a la n c e of hardships between the plaintiff and defendant warrants an equitable remedy; and (4 ) the "public interest would not be disserved by a permanent injunction." Cal. ex rel. L o c k ye r v. U.S. Dep't of Agric., 575 F.3d 999, 1019-20 (9th Cir. 2009) (quotation omitted). "Actual success on the merits of a claim is required for a permanent injunction." Avery D e n n iso n Corp. v. Sumpton, 189 F.3d 868, 881 (9th Cir. 1999). Injunctive relief is "the re m e d y of choice for trademark and unfair competition cases," because no adequate remedy a t law exists for "the injury caused by a defendant's continuing infringement." Century 21 R e a l Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir. 1988). Demonstration of a lik e lih o o d of confusion is "sufficient grounds for an injunction under the Lanham Act," b o th to protect the plaintiff and the consuming public. Pac. Telesis Group v. Int'l Telesis C o m m c 'n s , 994 F.2d 1364, 1369 (9th Cir. 1993); see also Internet Specialties W., Inc. v. M ilo n -D iG io rg io Enters., Inc., 559 F.3d 985, 993-94 (9th Cir. 2009). Plaintiff has demonstrated no genuine issue of material fact remains that Longleg c re a te d a likelihood of confusion in relation to the men2rentnow.com website, and thus an in ju n c tio n is appropriate to remedy Longleg's acts of unfair competition. The Court th e re f o re will permanently enjoin Longleg, his respective officers, agents, servants, e m p lo ye e s and/or all persons acting in concert or participation with them, from: (1) using Plaintiff's trademarks, including but not limited to MEN4RENTNOW, M E N 4 R E N T N O W .C O M , and M4RN, or confusingly similar variations thereof, alone or in c o m b in a tio n with any other words, letter strings, phrases or designs, in commerce or in c o n n e c tio n with any business; (2) expressly or impliedly representing himself or any of his officers, agents, 12

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s e rv a n ts , employees and/or all other persons acting in concert therewith, as representatives o f Plaintiff; (3 ) expressly or impliedly representing to third parties that his activities, or the a c tiv itie s of his officers, agents, servants, employees and/or all other persons acting in c o n c e rt therewith, are affiliated with or endorsed by Plaintiff; (4 ) expressly or impliedly representing to third parties that his services a re in any way affiliated with or endorsed by Plaintiff; and (5 ) registering, owning, leasing, selling, or trafficking in any domain names c o n ta in in g Plaintiff's marks or confusingly similar variations thereof, alone or in c o m b in a tio n with any other letters, words, phrases or designs, including but not limited to Men2RentNow.com. This Permanent Injunction does not apply to the websites Boys2RentNow.com, B o ys 2 R e n t.c o m , Boys2RentNow.net, or B2RN.com. The Permanent Injunction also does n o t apply to the website men4rentnow.org so long as Longleg does not use that website in a m a n n e r that creates a likelihood of confusion as to Plaintiff's endorsement of or association w ith that website or any services offered at that website, or Plaintiff's endorsement of or a s s o c ia tio n with services offered at websites linked to the men4rentnow.org website. I I I . CONCLUSION IT IS THEREFORE ORDERED that Plaintiff Wintice Group, Inc.'s Motion for S u m m a ry Judgment (Doc. #110) is hereby GRANTED in part and DENIED in part. The m o tio n is GRANTED in that no genuine issue of material fact remains that Defendant D e s tin y Longleg's use of the men2rentnow.com website created a likelihood of confusion a s to the source of services offered at that website. The motion is denied in all other re s p e c ts . IT IS FURTHER ORDERED that Plaintiff Wintice Group, Inc.'s Motion for P e rm a n e n t Injunction (Doc. #112) is hereby GRANTED in part and DENIED in part. The 13

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m o tio n is granted as to Defendant Destiny Longleg as follows: Defendant Destiny Longleg, his respective officers, agents, servants, employees a n d /o r all persons acting in concert or participation with them, are hereby permanently e n jo in e d from: (1) using Plaintiff's trademarks, including but not limited to MEN4RENTNOW, M E N 4 R E N T N O W .C O M , and M4RN, or confusingly similar variations thereof, alone or in c o m b in a tio n with any other words, letter strings, phrases or designs, in commerce or in c o n n e c tio n with any business; (2) expressly or impliedly representing himself or any of his officers, agents, s e rv a n ts , employees and/or all other persons acting in concert therewith, as representatives o f Plaintiff; (3 ) expressly or impliedly representing to third parties that his activities, or the a c tiv itie s of his officers, agents, servants, employees and/or all other persons acting in c o n c e rt therewith, are affiliated with or endorsed by Plaintiff; (4 ) expressly or impliedly representing to third parties that his services a re in any way affiliated with or endorsed by Plaintiff; and (5 ) registering, owning, leasing, selling, or trafficking in any domain names c o n ta in in g Plaintiff's marks or confusingly similar variations thereof, alone or in c o m b in a tio n with any other letters, words, phrases or designs, including but not limited to Men2RentNow.com. This Permanent Injunction does not apply to the websites Boys2RentNow.com, B o ys 2 R e n t.c o m , Boys2RentNow.net, or B2RN.com. The Permanent Injunction also does n o t apply to the website men4rentnow.org so long as Longleg does not use that website in a m a n n e r that creates a likelihood of confusion as to Plaintiff's endorsement of or association w ith that website or any services offered at that website, or Plaintiff's endorsement of or a s s o c ia tio n with services offered at websites linked to the men4rentnow.org website. 14

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P la in tif f Wintice Group, Inc.'s motion for permanent injunction is denied in all other re s p e c ts . IT IS FURTHER ORDERED that the Preliminary Injunction (Doc. #37) this C o u rt previously entered in this case, as modified on June 4, 2010 (Doc. #116), otherwise re m a in s in effect pending the outcome of this case. IT IS FURTHER ORDERED that the parties shall forthwith meet and confer and s h a ll, not later than September 30, 2010, file a proposed joint pretrial order in compliance w ith the Local Rules of this Court.

D A T E D : September 3, 2010 _______________________________ PHILIP M. PRO United States District Judge

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