John T. Reed' motion to dismiss in Whitney vs. Reed 1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA WHITNEY INFORMATION NETWORK, INC., a Florida Corporation, and RUSS WHITNEY, an individual, DISPOSITIVE Plaintiffs, MOTION TO DISMISS PURSUANT TO F.R.C.P. RULES 12(b)(3) & (6) v. JOHN T. REED, an individual, CASE NO.: 2:02-CV-288-FTM-29DNF Defendant. Now comes the defendant, John T. Reed, pro se, and moves this court pursuant to Rules 12(b)(3), and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the captioned complaint against him. In support thereof, the defendant asserts as follows: 1. The venue chosen by plaintiff is improper. 2. The complaint fails to state a claim upon which relief can be granted. A memorandum in support of this motion is attached hereto. Wherefore the defendant moves this court to dismiss the complaint against him with attorney fees and costs. Respectfully submitted, _____________________ John T. Reed Defendant 342 Bryan Drive Alamo, CA 94507 Telephone: 925-820-6292 Fax: 925-820-1250 www.johntreed.com Background 1. The parties each sell information about real estate investment nationwide. (Complaint '¶'¶7 & 8) Each party has a Web site. (Complaint '¶10) 2. From December 1, 2000 to January 17, 2002, defendant Reed received four letters from plaintiffs" attorney complaining of alleged trademark infringement and/or allegedly libelous statements at Reed' Web site. (Exhibit A, B, C, and D) '¶50 of plaintiffs" complaint refers to one or more of these letters. 3. Documents the defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs" complaint and are central to the claim; as such, they may be considered by the court. [Wright v. Associated Insurance Companies, 29 F 3d 1244 (CA 7 Ind 1994)] 4. In addition, the court may consider matters which are properly the subject of strict judicial notice such as matters of public record [Kramer v. Time Warner, Inc., 937 F 2d 767 (CA 2 NY 1991)] or matters of common knowledge [Sears Roebuck & Company, v. Metropolitan Engravers, Ltd., 245 F 2d 67 (CA9 Cal 1956)] 5. The letter which defendant Reed received on January 17, 2002 specifically complained about three allegedly libelous statements. On that same day, defendant Reed removed two of the complained of statements and sent plaintiffs" attorney a letter so stating. (Exhibit E) The current complaint does not mention the unremoved statement. 6. Plaintiffs" complaint alleges libel on one of defendant' Web pages (Plaintiffs" Exhibit C to the complaint). Plaintiffs refer to another of defendant Reed' Web pages in Plaintiffs" Exhibit B to the complaint, however, plaintiffs do not complain of that Web page. 7. FRCP Rule 8(2)(2) says plaintiffs must make a "short and plain statement of the claim showing that the pleader is entitled to relief"¦" Aside from stating that the parties are competitors and that Reed criticizes Whitney at his Web site, the complaint states no facts. Rather, it simply recites the essential elements of the numerous alleged violations of law. Pleading forms contain blanks that are to be filled in with the who, what, where, and when of the allegations. In this case, plaintiffs did not fill in the blanks, they deleted them. The entire complaint contains only a single date and that date, in '¶9, is false as explained below. Without dates, neither the defendant nor the court can tell if the complaint has been timely filed with relation to statutes of limitations, whether notice was served within the time required by the pertinent statutes, whether plaintiffs were the owner of the trademark in question when it was seen by the public on defendant' Web site, or whether anyone ever saw the alleged libelous comments between when they appeared on Reed' Web site and when they were removed. The complaint is also devoid of any non-party names or places. ""¦there must be some factual statement in support of the claim; where the complaint is so vague that it cannot be determined if it might possibly state a claim, or contains only general conclusory allegations unsupported by any facts, the complaint may be challenged by an FRCP 12(b)(6) motion to dismiss." 27A Fed. Proc., L Ed '§62:511 Trademark and other likelihood-of-confusion claims 8. The trademark and other
likelihood-of-confusion claims should be dismissed as a matter of law. All use by defendant Reed of plaintiffs" name is non-actionable "fair use" as defined in 15 USC 1125 (c)(4) and/or permissible "descriptive" or "nominative" use as defined in the well-settled case law. Defendant Reed only refers to plaintiffs in order to comment about them. No reasonable person could be confused as to the origin of Reed' Web pages that comment about Whitney. 9. 15 USC '§1125(c)(4) says, "(4) The following shall not be actionable under this section: "(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. "(B) Noncommercial use of a mark. "(C) All forms of news reporting and commentary. 10. Paragraph 9 of the complaint alleges that defendant has been using plaintiffs" name in the "invisible embedded code"' of the Web page "John T. Reed' Views of various Real estate investment gurus." The Uniform Resource Locator (URL, better known as a Web page address) of that page is https://www.johntreed.com/Reedgururating.html]. Plaintiffs offer their Exhibits "A" and "C" to the complaint as proof of that. There is no "invisible embedded code," as the court can readily see by examining those plaintiffs" exhibits. 11. Users can view a Web page in either "PAGE INFO" (normal) mode or "PAGE SOURCE"' mode. PAGE SOURCE mode displays the computer code of the Web page in question"”some of which is visible and some of which is not visible in the PAGE INFO mode. The invisible code is between carats (< >) and generally performs functions like telling the browser what color letters are, what typeface to use, links to other Web pages, and so forth. (PAGE INFO and PAGE SOURCE are choices listed under the "VIEW" menu of the Netscape'® Web browser.) Exhibit "A" to the complaint is the "PAGE SOURCE" viewing mode; Exhibit "C," the "PAGE INFO" (normal) viewing mode. 12. Plaintiffs" Exhibit "A" has been altered from the original on Reed' Web site. The court will note that the last five lines on the 2nd page of the exhibit"”starting with the words "About You""”repeat words that start 18 lines above the bottom of page 2 of the exhibit. That repeating continues in the top two paragraphs of the third page of the Exhibit. Indeed, someone associated with plaintiffs has written the word "duplicate" in the upper right margin of the top of the third page of the Exhibit. 13. As the court can also see in the fifth paragraph of page 2 of Exhibit "C," this duplication does not occur in Exhibit "C." If the duplication does not occur in Reed' Web page as seen in the "PAGE INFO" (normal) mode, it could not possibly occur in the "PAGE SOURCE" mode used to create Exhibit "A" of the complaint, unless it was inserted by plaintiffs"”apparently by copying and pasting the repeated words. 14. The word "Whitney" appears 31 times in the "visible"' "PAGE INFO"' version (Exhibit "C"). It appears those same 31 times in the PAGE SOURCE" version (Plaintiffs" Exhibit A")"”not counting the copy and paste repeating of the above mentioned text. Plus it appears one additional time as the instruction to link to the page https://www.johntreed.com/Whitneycomments.html. 15. It is impossible to make a link instruction visible in the "PAGE INFO" viewing mode. The fact that a link instruction cannot be seen in the "PAGE INFO" viewing mode has no infringement significance. 16. The only word "Whitney" that is not visible in the normal viewing mode is the link instruction 17 lines above the bottom of the 2nd page of Exhibit "A" to the complaint. It reads <p><a href="/realestate/Whitneycomments.html"> and means "go to the URL with the suffix "˜/Whitneycomments.html" within this current domain: "˜www.johntreed.com."" 17. Regardless of the technical issues, the use of the word "Whitney" to link to the Web page https://www.johntreed.com/Whitneycomments.html is descriptive or nominative fair use the same as the other uses on the Reedgururating page. If the user clicks on the phrase "Reader comments on Whitney," the URL https://www.johntreed.com/Whitneycomments.html instantly becomes visible in the "Location" window at the top of the user' Web browser and the user is transported to the page in question, where they will also immediately see the page title: "Reader comments sent to John T. Reed about Russ Whitney" and the headline of the page, which also says "Reader comments sent to John T. Reed about Russ Whitney". (Exhibit F) 18. The complaint alleges in paragraph 9 that, "On or around January 14, 2002, Plaintiffs became aware that Defendant was using plaintiffs" service mark and personal name in the embedded code of his Web Site"¦" This is false as evidenced by the three notices (Exhibits A, B, and C) plaintiffs sent to defendant on 12/1/00; 5/31/01, and 6/25/01 and which are referenced in '¶50 of the complaint. Plaintiffs" letter to Reed dated 1/14/2002 is the only one of the four letters that does not mention invisible Web site text. 19. Whitney is apparently falsely alleging the use of "invisible embedded code" to invoke Playboy Ent. Inc. v. Calvin Designer Label et al. (U.S. District Court for the Northern District of California, Civil Action No. 97-3204 ). In that suit, the plaintiff won suing for trademark and related violations. Defendants in that case put the name of plaintiff in their Web pages, even though those pages had nothing to do with plaintiff. 20. In a similar case, Oppedahl & Larson successfully sued Advanced Concepts for putting Oppedahl' name into the meta tags on some of its Web pages even though those pages had nothing to do with plaintiff. (U.S. District Court in Colorado) Meta tags are invisible in the PAGE INFO (normal) viewing mode. The complaint does not allege that Reed put Whitney' name in any meta tag, although it would be fair use for Reed to do so if the page in question were about Whitney. Court must consider the entire article 21. A trial court was overruled when it refused to let a jury see the alleged defamatory "sound bite" in the context of the public television documentary in which it was broadcast. Smith v. Cuban American National Foundation, 731 So. 2d 702 (Fla 3d DCA 1999) The pertinent entire article in this case would be the whole "John T. Reed' view of various real estate investment gurus" article (URL https://www.johntreed.com/Reedgururating.html) (Exhibit G), plus the links (that mention Whitney) from within the Russ Whitney portion of that article: "¢' "The real estate B.S. artist detection checklist" (URL https://www.johntreed.com/BSchecklist.html) (Exhibit H) "¢ Reader comments on Whitney'„¢ (URL https://www.johntreed.com/Whitneycomments.html) (Exhibit F) 22. In a FRCP 12(b)(6) motion, ""¦documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered. (Branch v. Tunnell, 14 F 3d 449 cert denied 114 S Ct 2704) 23. The "Email from Kevin Dean about Russ Whitney and Foreclosureworld" (Exhibit I) was incorporated by reference in the complaint (Exhibit B of the complaint). 24. Whitney incorporates Reed' entire Web site by reference in paragraphs 8, 9, 10, 18, 19, 20, 21, and others. The four pages listed above by Reed are a part of that Web site. 25. Whitney incorporates the entire "John T. Reed' view of various real estate investment gurus" article by reference, but only includes a small part of it as Exhibits "A" & "C." 26. Plaintiffs also assert various common law likelihood-of-confusion claims which should be dismissed as a matter of law because all of Reed' use of plaintiffs" name were legal "descriptive" or "nominative" use. 27. The true origin of the complained of Web page (Exhibit "C") is clearly and correctly identified as follows: "¢ Uniform Resource Locator or URL (Web page address): https://www.johntreed.com/Reedgururating.html "¢ Page title: "John T. Reed' view of various real estate investment gurus" "¢ Page headline: "John T. Reed' view of various real estate investment gurus" 28. In addition, comments in the portion of the article which mentions Whitney could not be more emphatic in conveying that Reed claims no association with Whitney: "¢ "Whitney, Russ"”I do not recommend"”If I had numerical ratings, I would give him a lower rating than any other guru." "¢ "That guru behavior pattern, promising real estate, but delivering motivation, is one which I cited in my Real Estate B.S. Artist Detection Checklist." "¢ "That' a dumb idea." "¢ "He says he' going to sue me if I do not remove all mention of him from my Web site." "¢' "If Mr. Keith' comment about Whitney'„¢ threatening people is true, he would appear to be a bully in addition to the other things that have been reported." 29. Whitney is a public figure. He concedes that in paragraph 55 of his complaint by alleging Reed acted with "actual malice." As a public figure, he can legally be commented about by Reed. The complained of "guru rating" Web page is similar to reviews written by theater critics, book reviewers, restaurant critics, movie critics, and art critics. 30. At '¶23.01 of his McCarthy on Trademarks and Unfair Competition, University of San Francisco Professor J. Thomas McCarthy said, "A use of another' trademark to identify, not the defendant' goods or services, but plaintiffs" goods and services, is not an infringement so long as there is no likelihood of confusion. This can be dubbed a non-confusing "˜nominative use" in that the it names the real owner of the mark. The most common example of this is comparative advertising, where the senior user' mark is used to identify the senior user' product and the advertiser' object is contrast, not confusion." 31. "Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company, or product by using its trademark." New Kids on the Block v. New America Pub. Inc. 971 F 2d 307 (9th Cir. 1992) 32. "At issue in most [likelihood of confusion] cases is the likely confusion among members of the relevant class of customers and potential customers." (Electronic Design & Sales, Inc. v. Electronic Data Systems Corp., 954 F 2d 713 (Fed. Cir. 1992) In this complaint, Whitney has defined the relevant class very specifically. They are "Internet users"¦who were searching for Plaintiffs" good and services." (Paragraph 9 of the complaint) 33. Whitney further establishes a Google search as its standard for measuring the effect of Reed' alleged illegal activities. In '¶19 of the complaint, Whitney tells of a Google search for the name "Russ Whitney" that turned up 1,330 matches and claims that Reed' "website ranked fifth out of these matches." 34. In fact, Google does not list "websites" in its search results. That is common knowledge and the court can confirm it by examining plaintiffs" Exhibit B. Rather, it lists Web pages. The Web page that is listed fifth in Whitney' Exhibit "B" has the URL "www.johntreed.com/Foreclosureworld.html" and the title "Email from kevin Dean about Russ Whitney and Foreclosureworld." (Whitney has not alleged any affiliation with Foreclosureworld and upon information and belief, Reed believes that Whitney is not related to Foreclosureworld.) Whitney' name is not in the URL. Reed' is. 35. Whitney' libel complaint and "invisible embedded code" confusion complaint are based entirely on a small excerpt from the URL https://www.johntreed.com/Reedgurutating.html. Whitney' assertion that the high ranking of the Foreclosureworld page proves misbehavior on the Reedgururating page ('¶19 of the complaint) is not logical. In fact, nothing on the complained of Reedgururating page has anything to do with the Google ranking of the not complained of Foreclosureworld page. 36. Contrary to Whitney' assertions in '¶19 of the complaint, neither Whitney nor Reed knows why certain Web pages rank high on Internet search results. It is common knowledge that each search engine has its own programming which changes from time to time and which is generally top-secret, proprietary information to prevent competitors from benefitting from it and to prevent information providers from gaming the search engine to achieve a higher ranking than their information warrants.