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Fairbanks Capital v. Kenney

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Citation Edit

Fairbanks Capital Corp. v. Kenney, 303 F.Supp.2d 583 (D. Md. 2003) (full-text).

Factual Background Edit

Plaintiff serviced single-family mortgages under the federally registered trademark FAIRBANKS and promoted its business at "fairbankscapital.com." Kenney's mortgage was serviced by ContiMortgage, which sold its assets to plaintiff. Due to plaintiff's alleged unfair practices in servicing his mortgage, Kenney registered and used the domain name "conti-fairbanks.com" for a site designed as a resource for people harmed by plaintiff. Kenney registered numerous other domain names containing the FAIRBANKS mark, including several "fairbankssucks" names, most of which Kenney redirected to the "conti-fairbanks.com" site.

Kenney's website welcomes users by stating "Welcome to the Fairbanks Resources Site" and the homepage includes a news clip entitled "America's Poster Child for Mortgage Abuse." Kenney's website featured an internal link labeled "Our Mission," where Kenney explains the purpose of the site. The site also provided external links that allowed users to view dockets of litigation against plaintiff, view media coverage of plaintiff, and submit stories and information regarding their experiences with plaintiff.

Trial Court Proceedings Edit

Plaintiff sued Kenney for trademark infringement, cybersquatting, and other related claims. The court granted plaintiff's motion for a preliminary injunction on its infringement claim. Noting that a "tendency to deceive" can support a finding of irreparable harm, the court found that it was "highly likely that large numbers of reasonably alert users of the World Wide Web who are searching for Fairbanks' website, using commonly available search engines, will land on defendants' website instead of on Fairbanks' site, and that for several moments after landing on defendants' site, such users will experience genuine confusion over the source of the information being provided at the site."

The court supported this conclusion with detailed findings of fact regarding the placement of Kenney's and Fairbanks' websites in the results for searches for different words or phrases on a variety of search engines. The statement on Kenney's website "Welcome to the Fairbanks Resource Site" was particularly problematic because it indicated that plaintiff owned, sponsored, or otherwise controlled the website. Moreover, even though Kenney was not a competitor, irreparable harm existed because Kenney's use of FAIRBANKS caused plaintiff to lose control of its reputation, goodwill, and trademark.

The balancing of harms also favored plaintiff. Kenney could change the domain name with little effort and nominal costs, and he could minimize any inconvenience to users looking for his site by using the "conti-fairbanks.com" name to temporarily redirect to his new website and by using new search words in his metatags. According to the court, "Kenney is sufficiently skilled in the art of website design such that he can implement several methods that will direct users to his website where he voices his criticisms of Fairbanks without improperly using the 'FAIRBANKS' mark in his website meta tags or in his domain names."

Turning to the merits, plaintiff raised serious questions going to the issue of likelihood of confusion based on the similarities between the parties' marks, Kenney's intentional use of FAIRBANKS to attract potential customers of plaintiff, and Kenney's acknowledgement that users attempting to find plaintiff's website were confused when they reached defendants' site instead. In addition, the court found that the public had a strong interest in not being confused or deceived.

The court preliminarily enjoined Kenney from using FAIRBANKS in any domain name associated with his website, in the announcement on the website's home page, or in the site's metatags. The court denied plaintiff's motion for injunctive relief as to cybersquatting. In addition to failing to prove that the FAIRBANKS mark was distinctive or famous, plaintiff failed to establish that Kenney had a bad-faith intent to profit from the FAIRBANKS mark because "Kenney's overarching motivation for creating and maintaining the website is to voice his strong criticisms about Fairbanks, provide a forum for others to voice criticisms, and, if possible, prevent others from ending up in his situation."

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