UDRP Lambo.com: Following UDRP loss, Respondent files lawsuit against Lamborghini

[News]

Lamborghini S.p.A. won the UDRP it filed against the domain Lambo.com; now the Respondent and registrant of the domain is hitting back with a lawsuit.

The case between Richard Blair, plaintiff, and Automobili Lamborghini S.p.A, defendant, refers to the Lambo.com domain’s acquisition as a follow-up to adopting that moniker (Lambo) as a private alias for activities in various online communities...

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[Chris Hydrick]

**In 2018, @Acroplex wrote that ASZ.com has been stolen since 2007.
**In 2020, @JagG created a nP thread detailing his twitter spat with Lambo regarding ASZ.com

Does it matter (to the moniker argument) that Richard Blair was reporting his 2020 domain sales to nameBio as ASZ.com rather than Lambo.com?

Spoiler: Lambo V Samer: The ASZ.com nameBio dispute

https://www.namepros.com/threads/i-am-lambo-q-a-anything-with-me.1208769/#post-7954835

Lambo you sold almi.com for $117,500 and after week; sold buybuy.com for $95,000

i hate that Namebio lied about the venue;
So messed up, @Michael
Neither of them sold at ASZ.com;
Even if sold them; dont appreciate lie venue

Would you be open to edit Fake News “ASZ” and actually say where listed them & sold?
This blatant lying, even for promotion, is wrong

Where did sell @lambo.com?

newsmedia.com not open to this, no

If he managed the sales by himself, I see it normal to report the sales with the name of his company, or like he wants to be identified for that sale.

In fact now I remember other NP members reporting sales made through Afternic but placing their main website name on the sale at Namebio.
I don't see too much problem here, if they are who report the sale, not Afternic or Uniregistry, for example.

Winner!
we have someone who understands what a domain is and means!

First of all, he is the one that reported the venue, not me. What I received was an Escrow.com screenshot, which is not a venue, so the only thing I could have possibly done is swapped it with "Private". That would be a pretty rude thing to do when he took the time to report it with proof, to not let him get any credit.

When you report a sale you are free to list the venue as yourself, even if it happened at Afternic or elsewhere. This is because a sale at a marketplace is a collaboration between them and you, and ultimately you're the seller. They aren't reporting anything, so if you want to take all the credit that's your business. It has always been like that since the beginning of NameBio, and no amount of complaining or name-calling on your part is going to change that. Period.

He put me in an unusual situation because the site he listed as the venue was not, like is normally the case, a portfolio site. I figured he was probably trying to market that LLL.com and get some attention for it. While I don't think that is going to be a very effective use of the venue field, if that's what he wants to do I don't really care to stop him. Anyone with half a brain will look at that and realize it was a private deal.

 

[jberryhill]

if you downloaded those from PACER, you can do the world a favor and install the RECAP browser extension. RECAP is the mechanism that uploads docs to Courtlistener. It’s a crime that our court system charges a page fee for pdfs.

 

[jberryhill]

Does it matter (to the moniker argument) that Richard Blair was reporting his 2020 domain sales to nameBio as ASZ.com rather than Lambo.com?

Not sure, but there’s a footnote about the Archive.org wayback machine which may become significant later on.

 

[Chris Hydrick]

if you downloaded those from PACER, you can do the world a favor and install the RECAP browser extension. RECAP is the mechanism that uploads docs to Courtlistener.

Ahh... good info! I guess I assumed that info was autouploaded anytime somebody paid for it. I had downloaded the files from pacer prior to installing the RECAP browser extension, and it doesn't look like there's a way I can retoractively upload those using the RECAP extension. But will do for any future domain related queries!

It’s a crime that our court system charges a page fee for pdfs.

Probably a mix between a mechanism to prevent abuse, and an attempt to squeeze court costs? I agree it should be free, but at it's free if you're under $30 per quarter!

Not sure, but there’s a footnote about the Archive.org wayback machine which may become significant later on.

Forgive my noviceness, but where is the footnote you're referring to?

Wondering (since it apepars I'm unable to re-upload the PDFs to courtlistener) if there's a particular exhibit I should upload to nP, or if I should just upload everything I downloaded from the Statement of Facts, tand from exhibit A to U?

 

[Samer]

.

 

[Chris Hydrick]

Not sure, but there’s a footnote about the Archive.org wayback machine which may become significant later on.

Forgive my noviceness, but where is the footnote you're referring to?

Looks like you're referring to the footnote on Page 11 of the Summary Judgement? Which cites Exhibit(s) G-H.

SMF ¶ 14, Exs. G-H.15. It is undisputed that Mr. Blair has and continues to offer to sellthe disputed domain to third parties for financial gain (FactorVI).Factor VI looks at “the person’s offer to transfer, sell, or otherwise assign thedomain name to the mark owner or any third party for financial gain without having used,1 Lamborghini notes that the Court may take judicial notice of the Wayback machinepages because they “can be accurately and readily determined from sources whoseaccuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1); see UL LLC v.Space Chariot Inc., 250 F. Supp. 3d 596, 604 n. 2 (C.D. Cal. 2017); Erickson v. NebraskaMach. Co., No. 15-cv-01147-JD, 2015 WL 4089849, at *1 (N.D. Cal. July 6, 2015); seealso Pond Guy, Inc. v. Aquascape Designs, Inc., No. 13-13229, 2014 WL 2863871, at *4(E.D. Mich. June 24, 2014) (“As a resource the accuracy of which cannot reasonably bequestioned, the Internet Archive has been found to be an acceptable source for the takingof judicial notice.”); Martins v. 3PD, Inc., No. 11-11313-DPW, 2013 WL 1320454, at *16 n.8 (D. Mass. Mar. 28, 2013) (taking judicial notice of “the various historicalversions of [a] website available on the Internet Archive at[ ]Archive.org as facts readilydeterminable by resort to a source whose accuracy cannot reasonably be questioned”);Foreword Magazine, Inc. v. OverDrive, Inc., No. 1:10-cv-1144, 2011 WL 5169384, at *3(W.D. Mich. Oct. 31, 2011) (“[T]he federal courts have recognized that Internet archiveservices, although representing a relatively new source of information, have sufficientindicia of reliability to support introduction of their contents into evidence, subject tochallenge at trial for authenticity.”).

Exhibit G is an Archive.org screenshot showing Lambo.com forwarding to Lambo's AMA namePros thread.

Exhibit H is an Archive.org screenshot of Lambo's AMA namePros thread.

 

[Chris Hydrick]

[sic:ASZ.COM]*Not actual venue; this what seller identifies as.

How can that be if the seller identified as Lambo.com?

Is it similar to how one can identify as he/him on the weekdays, but she/her on the weekends?

ASZ leads to a for sale afternic lander and this seller is using “venue” in place of actual name at their discretion.

Attachment 1 in Exhibit B shows Lambo selling ASZ.com for $18,888 on 8-7-23.

 

[Chris Hydrick]

**In 2020, @JagG created a nP thread detailing his twitter spat with Lambo regarding ASZ.com

Ooops, that hyperlink erroneously contained a broken mail to link instead of the intended nP thread.

Correct link: https://www.namepros.com/threads/a-quick-due-diligence-saved-losing-25k.1203053/

Spoiler: Due Dilligence Preview

 

[Mize]

Domain investor/developer thoughts to self before purchasing:

- I like this domain name and the price is right.

- I can develop it along many avenues that avoid any current trademark/common law rights.

- Or, I can sell it to many potential buyers.

It would be extremely difficult to lose money on a domain like this at $10,000 and thus I cannot pass it up.

-----------------------------------

In the meantime, I may do crazy shit (which will turn out to be irrelevant because the above is true) because I can understand that “Lamborghini” poses a risk to my investment as does anyone who may be using a Lambo mark in commerce.

Replace “Lamborghini” and “Lambo” with any risk or common law rights mark…. depending on the domain in question.

 

[jberryhill]

Chris, thanks for getting that transcript.

For a procedural hearing, it's a little unusual, and it might come across as a hearing on the merits, so it's worth adding some context to that.

Some folks file things in lawsuits simply because they can. The point of the discussion is that the judge would prefer not to wade through dueling briefs on summary judgment if it looks like there is going to turn out to be a genuine issue of disputed material fact. So while it might look like the judge is leaning one way or the other during the discussion, she is trying to get a read on the extent to which the material facts may or may not be actually disputed, and what those facts might be, in order to save the parties and the court time that might otherwise be spent productively.

The case was scheduled to be trial-ready in June anyway, but the pre-trial conference is now pushed back to 30 days after a denial of summary judgment (if it is denied).

So bear in mind that the purpose of the discussion is not that the court is trying to decide the case, but is trying to get a feel for whether this case can be properly disposed on summary judgment. ACPA cases turn on intent, and a finding on intent can be a function of credibility. Credibility is not a factual issue, but if a case boils down to credibility of a witness or party, then a court will typically say that a trial with live testimony is needed. That's the significance of this part here:

Although it seems the judge may have some credibility questions:

...and....

...eventually concluding....

So, when you have a summary judgment motion which hinges on intent, and in which intent depends on credibility, you can get a lot of first year law students to join in a chorus singing along with the Supremes...

“On summary judgment, we must draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence. Anderson v. Liberty Lobby, Inc., 477 U.S., at 255.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991)

...so the baseline is that, as the non-moving party here, Blair is entitled to an inference of credibility, provided it is a justifiable inference. I would suggest the "Seinfeld Test" would be one way to approach whether an inference of credibility is justifiable:

Is George entitled to a justifiable inference of credibility in his denial of knowingly violating a workplace rule? The laugh track suggests otherwise.

There can also be fact questions that can be dealt with by evidence, such as whether "Lambo" is, or is not, confusingly similar to "Lamborghini". As I had mentioned before, what anyone's opinion might be - including the judge's - is not a substitute for evidence. That is why, on that point, the judge mentions that while she has heard "Lambo" as a reference to "Lamborghini", she is still going to need something in front of her to establish confusing similarity as a fact:

Again, the point is not to resolve the issue, but to get a sense of whether it is going to be adequately addressed in a motion for summary judgment.

 

[jberryhill]

It's probably worth noting that this is the same judge who has been assigned the TRX.com case, and has been rightfully beating up the trademark claimant in that case for a while. Currently pending in that case is the domain registrant's motion to recover attorney fees which, based on the loopy behavior of TRX's attorney, has a good chance of being granted.

 

[jberryhill]

https://storage.courtlistener.com/recap/gov.uscourts.azd.1307873/gov.uscourts.azd.1307873.58.0.pdf

The accompanying Statement of Facts is here:

https://storage.courtlistener.com/recap/gov.uscourts.azd.1307873/gov.uscourts.azd.1307873.59.0.pdf

I haven't checked whether any of the various Exhibits might be interesting, so I only downloaded the two affidavits:

https://www.courtlistener.com/docket/64919795/blair-v-automobili-lamborghini-spa/

 

[BaileyUK]

I'm almost scared to open the new posts on this case. Each read requires such a recap on what's gone before.

I'm full of admiration of the judges unwillingness to entertain thoughts of a summary judgement based on anything less than cast-iron proof of intent. He seems so willing to separate opportunistic endeavours from outset-intent and won't take anything less to persuade him.

It seems to me that Lamborghini still have a mountain to climb. I just never realised just how much material Proof was required in such cases, probably due to spending too much time reading Balance of probability outcomes

Thanks guys for all the updates

 

[jberryhill]

I just never realised just how much material Proof was required in such cases

There's a right to a jury trial in civil matters. So, if judgment is going to be rendered on something other than a jury decision, there needs to be no triable issue of fact for a jury to decide...

The judge seemed interested in the trademark issue, but that question is conceded...

That's a good move. You might wonder why one would yield any piece of ground, but conceding the trademark issue deprives Lamborghini of a platform to go on about how well-known they are and how widely used the term "Lambo" is in reference to their cars - particularly of late with the crypto crowd and the various "wen Lambo?" memes.

For example, in a recently well-publicized criminal trial in New York, the defendant refused to concede even the most trivial evidentiary matter, which required that the prosecution call witnesses to prove every point in more vivid detail than was good for the defendant in the overall scheme of things.

There are, for example, US federal court decisions in which Lamborghini has gone after people selling car body kits and "Lambo door" conversion kits in which US courts have issued injunctions against use of the term "Lambo" based on Lamborghini's marks. Lamborghini did not cite those cases or go into relatively how well-known they are as "Lambo" because that issue, for the purpose of this motion, is off the table.

Cybersquatting frequently hinges on intent. Some folks encountering "intent" as an element of a cause of action or a criminal charge have a hard time understanding how one goes about proving or disproving intent, since no one can read minds. Intent is usually inferred from the surrounding factual context. Someone traveling from their home to a concert with three grams of weed and a half-used pack of rolling papers probably has a different plan in mind than someone heading there with a kilo divided into ten gram bags.

IMO, this case boils down to whether one believes Mr. Blair or not. As argued in the brief, there is not a "factual dispute" in the sense of whether the parties agree on various objective facts, but there is disagreement on how those facts can be interpreted. The brief admits that a jury could find cybersquatting:

So, if you are in the "c'mon, it's 'Lambo' and this is cybersquatting" camp, then the brief admits that is a reasonable conclusion one could reach under the undisputed facts. But the conclusion is that it would have to be up to a jury to determine what is the more likely interpretation of the facts under discussion.

Next up is the defendant's reply brief, and I haven't checked whether the court has scheduled a hearing on this motion. Perhaps someone will take a look back at the schedule and see.

 

[jberryhill]

There is at least one takeaway that might be very helpful for persons who obtain a domain name and do not wish to sell it.

If you have a domain name and you do not want to sell it, then listing it for sale at a high price might be understood by others to mean that you are interested in selling it at that price. For example, this sort of thing:

...might be mistaken by the unsophisticated eye to suggest that the domain name is for sale.