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Servicemagic, Inc. et al. v. Holly Kerodin et al.

March 11, 2013

SERVICEMAGIC, INC. ET AL. PLAINTIFFS,
v.
HOLLY KERODIN ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Roger W. Titus United States District Judge

MEMORANDUM OPINION

In their complaint, Plaintiffs Holly and Christian Kerodin claim that Defendants ServiceMagic, Inc., Market Hardware, Inc., and Brian Kraff infringed and otherwise interfered with their alleged service marks, consisting of nine internet domain names. See ECF No. 1. On March 5, 2012, Defendants filed a motion to dismiss the complaint for failure to state a claim. See ECF No. 10.

Background

In December 2006, Plaintiffs registered and allege that they began to use nine Internet domain names. See ECF No. 1 ¶ 14. The domain names used included: 1) PotomacHeating.com; 2) PotomacCooling.com; 3) PotomacAirConditioning.com; 4) RockvilleHeating.com; 5) RockvilleCooling.com; 6) RockvilleAirConditioning.com; 7) BethesdaHeating.com; 8) BethesdaCooling.com; and 9) BethesdaAirConditioning.com. Id.

Defendant Market Hardware is a provider of small business website marketing products, including domain name selection and registration and "pay-per-click" online marketing. Id. ¶ 29. Defendant ServiceMagic provides "pay-per-lead" online marketing services for its member businesses, routing consumer requests for services to its members' websites. Id. ¶ 31.

Defendant Kraff is the CEO and co-founder of Defendant Hardware and the Senior Vice President of ServiceMagic. Id. ¶ 32.

In September of 2009, Defendants allegedly registered the following six Internet domain names: 1) Potomac-Heating.com; 2) Potomac-Cooling.com; 3) Rockville-Hearing.com; 4) RockvilleHVAC.com; 5) Bethesda-Hearing.com; and 6) BethesdaAC.com. Id. ¶ 33. In January of 2011, Defendants also registered the same six domain names as ".mobi" names for use by mobile devices. Id. According to Plaintiffs, Defendants' actions resulted in consumers being diverted from Plaintiffs' websites to the new, similarly-named websites. Id. ¶ 34.

In March of 2011, Plaintiffs allege that they first discovered the existence of Defendants' registered domain names. Id. ¶ 37. On March 2, 2011, Plaintiffs obtained Articles of Organization for Potomac Heating, Cooling, & Air Conditioning LLC from the State of Maryland Department of Assessments and Taxation, Charter Division ("SDAT"). Id. ¶ 27. On the same date, Plaintiffs also registered with SDAT the trade names Rockville Heating, Cooling, & Air Conditioning and Bethesda Heating, Cooling, & Air Conditioning. Id. Throughout the latter half of March, Plaintiffs sent several Cease and Desist notifications to Defendants Market Hardware and ServiceMagic requesting that they stop infringing on Plaintiffs' service marks, but Defendants did not deactivate the allegedly infringing websites. Id. ¶¶ 39-43.

Plaintiffs filed suit against Defendants on October 19, 2011. See ECF No. 1. Plaintiffs' Complaint contains the following claims:

1) Count I -- Cybersquatting Under 15 U.S.C. § 1125(d)

2) Count II -- Service Mark Infringement, False Designations of Origin and False Descriptions Under 15 U.S.C. § 1125(a)

3) Count III -- Dilution Under 15 U.S.C. § 1125(c)

4) Count IV -- Violation of Maryland Commercial Law Title 13 Maryland Consumer Protection Act, Md. Code ...


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