Ever since a most-likely-to-succeed aspirant named Paula Abdul thrust herself from leaping about courtside with the Los Angeles Laker Girls into a considerable entertainment career, sneers have abated about the talent on professional sports teams’ cheerleader squads, be they the women who rah-rah-rah for the Dallas Cowboys, the Florida Marlins or whomever. But once cheerleaders also got into the 21st century business of promoting themselves and their entertainment endeavors online, was it inevitable, as recently occurred in Miami, that there would be instances of less than model behavior?
Let’s look at Ordonez v. Icon Sky Holdings LLC., 10-cv-60156-PAS (S.D. Fla. Aug. 30, 2011)
In a trademark dispute between two models vying for control of an online presence, the U.S. District Court for the Southern District of Florida recently awarded damages following the defendant’s efforts to destroy another model’s online social networking presence.
As reported by Christopher Danzig, U.S. District Judge Patricia A. Seitz ruled for Elizabeth Ordonez, awarding $81,000 in damages and $25,000 in attorney’s fees for claims of common law trademark infringement, tortious interference, libel, among other claims.
Ordonez, a native of Miami (shown at left in photos she has posted on a modeling site), is a singer-songwriter, model, dancer and choreographer and actress. Fans know her by her stage name “Elizabeth (Liz) Sky.”
Nisha Elizabeth George, the defendant, knew of Ordonez’s “Elizabeth Sky” handle, and, after trademark registration of the stage name by Ordonez, George immediately filed her own trademark registration for the same name.
According to court documents, George then undertook tactics to disrupt Ordonez’s web presence, such as contacting major social networking sites such as MySpace and Facebook, threatening the “Elizabeth Sky” marks be removed or litigation would follow.
After discovering George’s actions, Ordonez sued, claiming: false designation of origin and unfair competition, tortious interference with contractual relationships and advantageous business relationships, libel per se and deceptive and unfair trade practices. She sought an injunction to keep the defendant from continued use of the trademark.
This case did not advance far and was resolved on default judgment and it is unclear if damages are recoverable. Still, Venkat Balasubramani, of Technology & Marketing Law Blog, notes the final ruling in this case is rare.
“This is a rare ruling awarding damages to a plaintiff who is claiming tortious interference based on a wrongful takedown. Where the takedown is based on copyright ownership, there may be a preemption issue, so it’s not easy to assert a tortious interference claim based on a copyright takedown notice. (See the Ozimals ruling, “17 USC 512(f) Preempts State Law Claims Over Bogus Copyright Takedown Notices” but see the Smith v. Summit Entertainment case: “17 USC 512(f) Claim Against ‘Twilight’ Studio Survives Motion to Dismiss” and Rossi v. MPAA. Where a copyright takedown is involved, a plaintiff is better off proceeding under section 512(f).)”
The overriding issue of this case is the willingness of networks and internet companies’ willingness to honor takedown notices. Balasubramani further points out that while generally dealing with larger corporations involves administrative mazes and struggles, it seems likely that takedown notices are more likely to be adhered to without close scrutiny as opposed to being forced through the administrative red-tape.