Citation Edit

Roger Cleveland Golf Co. v. Prince, 2010 WL 5019260 (D.S.C. Dec. 3, 2010).

Factual Background Edit

Plaintiff manufactures and distributes golf clubs, equipment, and apparel. Defendants Christopher Price, Sheldon Shelley, and Prince Distribution, LLC, are the registrants of the domain names,,, and, and defendant Bright Builder is an online marketing company hired by the remaining defendants.

Defendants’ websites resolve to an online store advertised as a “wholesaler” that “carry[s] a wide selection of the newest clubs . . .” and bills itself as “your one stop shop for the best COPIED and ORIGINAL golf equipment on the internet.” (Emphasis in the original).

Trial Court Proceedings Edit

In 2009, a mystery shopper working for the plaintiff purchased several brand name clubs from defendants’ store. After determining that the clubs were fake, plaintiff filed the instant action for trademark infringement. Plaintiff’s original complaint did not name Bright Builders, which was added following a deposition of defendant Prince, who indicated that Bright Builders had been instrumental in the creation of defendants’ business model and associated websites. After being added to the case, Bright Builders filed an anemic motion for summary judgment, which the district court rejected after which, the district court set an OSC regarding why Bright Builders should not be required to pay the costs incurred by the plaintiff in responding to this motion.

Bright Builders submitted a one-and-a-half page motion without any citations or supporting authority or even references to the record, stating its sole involvement had been in a web hosting capacity. Without citation, the motion concluded that “[t]here is no factual evidence supporting this allegation . . . [and] there is no case law which supports extension of liability to a web hoster for activities occurring [sic] and completely directed by someone other than the web hoster.”

Aside from contesting the form of Bright Builders’ motion, plaintiff contested Bright Builders’ claim that its sole involvement in the case was as a mere host. According to the deposition transcripts of the other defendants, plaintiff contended that Bright Builders provided “coaching and mentoring” services to the other defendants, had participating in the development of, and had been informed of the idea to sell counterfeit clubs based on the content of the site.

While the court denied Bright Builders’ motion for summary judgment because it determined that genuine issues of material fact had been demonstrated by the plaintiff, it seems unlikely that the type of “involvement” indicated by the deposition evidence would subject Bright Builders to actual liability. Even if the content of the pages, and the domain names themselves, suggested that “counterfeit” or “copycat” clubs would be sold, it is an onerous burden to expect a lay company to understand the implication of such terms.

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