Connecticut Business Litigation Blog : Connecticut Business Lawyer & Attorney : N. Kane Bennett : Raymond & Bennett Law Firm : Hartford, Middletown, Glastonbury

The smoking gun evidence in a trademark lawsuit filed in US District Court in Connecticut is allegedly metadata from a YouTube video.  Here is the lawsuit.  In the lawsuit , Tuscan Leveling, Inc. alleges that Roynette, Inc. stole its trademarked concept for a level tiling process.  According to the Complaint:

• Tuscan is an Iowa based business that markets and provides a "unique tile installation method." 
• Tuscan's tiling process is subject to a pending patent and trademark application and has identified the Tuscan Leveling System as its trademark.
• Roynette is a Connecticut  based business that markets and solicits over the Internet.  Roynette advertised the sale of a competing tile leveling system over the Internet through a YouTube video that was identical to the the Tuscan leveling system.
• The metadata from the YouTube video shows the Tuscan Leveling System trademark in "human readable form."   (Note: you can see the readable form in the attachment to the Complaint)
• The metadata would permit Internet consumers to search for Tuscan and end up finding the Roynette video and product.   Roynette puts the product it is selling by hyperlink directly adjacent to the Tuscan trademark.

The Complaint seeks damages, attorney's fees, and an injunction.   Roynette has not yet responded to the lawsuit.

Nothing unusual about a YouTube video surfacing as evidence, but this one may be a first, at least in Connecticut.  This case is unique because the evidence is not the video itself but the metadata with the video.  Metadata is typically described as data about data.   YouTube allows you to edit or add metadata to a video.  The metadata, descriptions, or titles for the videos can show up in response to search terms on search engines such as Google or even YouTube.  The allegation here is that Roynette used Tuscan's trademark name to attract consumers searching on the Internet for tile leveling. 

 In this case, it was not only consumers who found Roynette, but it seems they attracted Tuscan too. 

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On January 11, 2010, a class action lawsuit (download here) was filed against AT&T alleging that it improperly charged sales tax to access the Internet in violation of Connecticut law and the Internet Tax Freedom Act.

The case was brought on behalf of David Rock who subscribed with AT&T for a "wireless data plan that permits access to the Internet by radio device."  The plan permits Internet access remotely by computer or smartphone, such as an iPhone or BlackBerry.

The complaint alleges improper charges from AT&T for state and local sales taxes on internet access on monthly bills.  The complaint is based in part on Connecticut General Statutes 12-407(a)(26)(A) which excludes Internet access from the state's sales tax on telecommunications.  The Internet Tax Freedom Act also prohibits taxes on Internet access.  The complaint alleges thousands of potential members for the class in Connecticut.  The complaint alleges breach of contract and violation of Connecticut's Unfair Trade Practices Act.

Nate Anderson of ars technica reported on several identical lawsuits filed in Georgia, Indiana, and Alabama over the last month.  Mr. Anderson reported that the same lawyers where behind the multiple filings.  In a Hartford Courtant article today by Matthew Sturdevant, the attorney for Mr. Rock,Michael Koskoff, noted that perhaps a dozen similar suits will be filed in various states.

Mr. Anderson made a humorous comment that all the complaints in the Georgia, Indiana, and Alabama cases have the same typo or misuse of the word  "I-Phone" rather than iPhone.  The complaint in the Connecticut case has the same misuse of "I-Phone."  So, either there is some cooperation nationwide on the plaintiff side on the content of the complaints or perhaps none of the lawyers involved own iPhones.   

In any event, these cases will be interesting to track as all of the lawyers involved on the consumer side have significant experience in class action lawsuits, including against telecom providers.  I also agree with Mr. Anderson that the actual definitions of "sales tax" and "Internet access" might seem simple enough, but can actually be quite complicated.  I expect AT&T will make use of those complications. 

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