UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THESTREET.COM, INC.,
Plaintiff, 98 Civ.
-against- COMPLAINT
WALL STREET INTERACTIVE MEDIA
CORP. and ALPHABIT MEDIA, INC. Plaintiff
Demands
Trial By Jury
Defendants.
Plaintiff TheStreet.com, Inc., by its attorneys, Pryor
Cashman Sherman & Flynn LLP,
for its complaint against Defendants, alleges:
NATURE OF THE ACTION
1. This is an action seeking injunctive relief and damages
based upon copyright
infringement, dilution, trademark and trade dress infringement
and unfair competition engaged in
by Defendants in misappropriating and electronically publishing
significant and protectable
aspects of Plaintiff’s Internet site in violation of the laws of the
United States and of the State of
New York.
JURISDICTION AND VENUE
2. This action arises under the Copyright Act of 1976, 17
U.S.C. §101 et seq. (the
“Copyright Act”), sections 43(a) and 43(c) of the Lanham Act,
15 U.S.C. §1125(a) and (c), and
the laws of the State of New York. Jurisdiction of the Court is
invoked under 28 U.S.C. §1331,
as a civil action arising under the Constitution, laws, or treaties
of the United States; under 28
U.S.C. §§1332 and 1338; and under this Court’s supplemental
jurisdiction under 28 U.S.C
§1367.
3. Venue of this action is proper in this district pursuant to 28
U.S.C. §1391(b) in
that, inter alia, a substantial portion of the Defendants’ unlawful
activities as alleged herein were
committed or had a substantial impact in the Southern District
of New York.
THE PARTIES
4. TheStreet.com, Inc. is a corporation duly organized and
existing under the laws of
the State of Delaware, with its principal place of business in the
State, City and County of New
York.
5. Upon information and belief, Defendant Wall Street
Interactive Media Corp.
(“WSIM”) is a corporation organized and existing under the
laws of the State of Delaware, with
its principal place of business in San Francisco, California.
WSIM has created and operates a
World Wide Web site on the Internet (“Web site”) known as
“WallStreetSex.com.”
6. Upon information and belief, Defendant Alphabit Media,
Inc. (“Alphabit”) is a
corporation organized and existing under the laws of the State of
California with its principal
place of business in San Francisco, California. Alphabit is an
Internet service provider which
hosts the WallStreetSex.com “Web” site and through its
computer and communications resources
and facilities provides access to and from the Internet for Web
sites which it hosts on its
computer systems.
FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
7. TheStreet.com is a well-known and respected financial
news service which is
published electronically on the Internet by Plaintiff through
Web sites it has created and operates.
It features a combination of up-to-date information on the
various financial markets in “real
time,” as well as market analysis and commentary from
respected industry analysts such as
James J. Cramer, Herb Greenberg and Dave Kansas, its editor-
in-chief. TheStreet.com’s “home
page” has a distinctive scrolling “ticker” in the left hand column
and in the center has
distinctively designed hypertext links to various columns and
articles concerning Wall Street and
the financial markets. The top portion of TheStreet.com’s home
page and each section of its
Web site contains a distinctive heading or “masthead.” Each of
the Web pages linked or
categorized within TheStreet.com’s services also incorporates,
embodies and includes all or
some of these distinctive and unique elements as part of its look
and feel.
8. The quality and unique style of TheStreet.com’s services
and information, both in
its substance and presentation format, have been widely
recognized in the Wall Street
community, and the financial community in general, since its
inception. As a result,
TheStreet.com presently has nearly 20,000 individual
subscribers or members, plus a large
number of highly reputable corporate clients who either pay for
a content “feed” to their Web
server or otherwise download content, which permits access by
their employees, clients and other
authorized users. TheStreet.com also has contracts with
America Online, ABCNews.com,
Yahoo, Intuit and Reality Online (the Internet distribution
affiliate of Reuters), all of which
vastly expand its distribution, promotion, marketing and,
ultimately, subscriber base and
readership. Plaintiff is presently in the midst of a $10 million
advertising campaign which is
causing TheStreet.com to gain readership and recognition at a
remarkable pace.
9. TheStreet.com has garnered consistent praise from the
financial community. For
example, The New York Times recently called it “...the Web’s
best for investment analysis.”
Similarly, The Washington Post wrote: “TheStreet.com
(www.thestreet.com) is written for the
serious investor who is looking for breaking news and
sophisticated, sassy discussion of market
and corporate trends and events.” Other financial community
publications have praised it as
being “...loaded with cutting edge analysis of the latest trends on
Wall Street” and have described
it as “...one of the best sources of Web investment information,
with a staff of respected financial
journalists.” The Wall Street Journal, Bloomberg and The
Financial Times have all cited
TheStreet.com as a reputable source for business, market and
financial news.
10. Due to the widespread, and ever-growing, respect and
popularity which Plaintiff’s
Web site enjoys in the Wall Street and financial communities, it
has become a singularly
valuable property which attracts both subscribers and advertisers
with its unique and distinctive
style, structure, combination and organization of elements and
information, as well as its links to
and from the Web sites of other reputable and respected
organizations.
11. Mindful of the appeal, respect and popularity enjoyed
by TheStreet.com Web site,
Defendant WSIM recently created a Web site known as
“WallStreetSex.com,” which deliberately
copies various individual and distinctive elements, as well as the
overall “look and feel” of
TheStreet.com, but utilizes it to present “hard core”
pornographic materials, combined with a
minimal amount of information on the financial markets, in
some cases also linked to identical
third party organizations, although without being authorized to
do so. WallStreetSex.com is
“hosted” by Defendant Alphabit as its Internet service provider,
and is published electronically
within this judicial district, where Defendants solicit and sell
subscriptions to WSIM’s
“premium” services.
Similarities Between TheStreet.com and WallStreetSex.com
12. The similarities between TheStreet.com and
WallStreetSex.com are substantial,
compelling and overwhelming. Indeed, Andrew Strauss,
WSIM’s president, was recently quoted
in the press as admitting that WallStreetSex.com’s Web site is a
“blatant copy” of
TheStreet.com. The similarities between the two Web sites
include the following:
(a) The logo for WallStreetSex.com studiously replicates the
look of the logo for
TheStreet.com. Not only has WSIM chosen a similar name for
its Web site, but each
logo appears in the same typeface at the top of its masthead and
each is in a
combination of green and black lettering, which gives the two
logos the same
appearance and, at first glance, the two could readily be
confused and assumed to be
emanating from the same source.
(b) TheStreet.com sometimes uses a scrolling “ticker” with
continually updated
information on the status of specific well-known financial
markets at the top of the
left column on its Web page. The design, appearance and
selection of markets for
this ticker was copied exactly by WallStreetSex.com. Indeed, it
appears that WSIM
blatantly misappropriated or utilized a link directly to the
underlying “code” for the
ticker which presents the continuous “feeds” from the various
financial exchanges
without permission or authorization to do so. As a consequence
WSIM also displays
the specific data from these same exchanges in exactly the same
manner and in
exactly the same place on its Web page. Upon information and
belief, this data,
which is generally licensed for a fee from such exchanges by the
entities utilizing
them, has simply been misappropriated by Defendants, without
license or other
authorization. Upon information and belief, when it is not using
Plaintiff’s “ticker,”
WSIM appropriates from third parties other tickers or
comparable materials which it
uses in its place.
(c) Beneath TheStreet.com’s logo at the top of the masthead
there are hypertext links
(also known as “hot links”) to other sections of TheStreet.com’s
Web site, with
indications as to which sections are “free” (i.e., no subscription
is necessary to access
them). WallStreetSex.com has carefully replicated this
arrangement and style.
(d) TheStreet.com has icons beneath the masthead which also
serve as hypertext links to
other sections in the Web site. These icons are in the form of
black circles which
contain graphic images representing the subject matter of the
sections to which they
pertain, with two lines at a 90 degree angle linking the circular
graphics to summaries
of the sections to which they are linked. The word “More” also
appears at the end of
each section, providing an additional link. WallStreetSex.com
has, again, studiously
copied this exact format and arrangement, clearly intending it to
look exactly the
same as TheStreet.com.
(e) WSIM provides certain portions of its WEB site which
include both financial
information and pornography at no charge, while other sections
purportedly
containing “premium” financial and pornographic materials and
services, requires a
paying subscription, together with a unique user ID and
password, identical to the
format of TheStreet.com’s Web site and its presentation to
consumers.
1. In sum, WallStreetSex.com has copied the whole structure,
sequence,
combination and organization of elements of TheStreet.com, in
addition to specific individual
elements themselves, so as to make WallStreetSex.com an
obvious (and admitted)
misappropriation of Plaintiff’s protectable expression. WSIM’s
studious copying of these
elements, and the total “look and feel” of TheStreet.com’s Web
site was noted, and brought to
Plaintiff’s attention, by subscribers, by members of the public,
and by other financial industry
publications whose executives were outraged by WSIM’s
outright theft of TheStreet.com’s
intellectual property.
2. The harmful effects of WSIM’s unlawful copying of
Plaintiff’s Web site is
exacerbated by the nature of the WallStreetSex.com Web site.
Thus, while WallStreetSex.com
also offers some information on the financial markets, it is
primarily intended to appeal to the
prurient interests of its viewers. For example, while the circular
graphic icons in TheStreet.com
serve as hypertext links to information and analyses of the stock
exchanges, the bond market, the
Federal Reserve and similar subjects, WallStreetSex.com’s
versions of these hypertext links
enable its viewers to purchase sexual paraphernalia and to view
“hard core” pornographic
photographs, some of which are animated.
3. For example, if a WallStreetSex.com viewer clicks on the
“Blue Chip” icon, he
will open up the “XXX Hardcore Gallery” of digitized
photographs, which sets forth ten
categories: “XXX Volume 1 Bear Market Babes”; “XXX
Volume 2 - Tenbagger Whores”; “Anal
Annunities [sic]”; “Hang Seng Market”; “Nikkei 225”; “Bonded
Blowjobs”; “Lesbian LEAPS”;
“Straight Stocks”; “Cumming Calls”; and “Instutional [sic]
Investment.” Each of these
categories represents a hypertext link to several pages of
“thumbnails,” i.e., postage stamp-sized
photographs which, when further clicked on, offer the viewer
full page-sized enlargements of the
photograph in question. By way of example, the “Hang Seng
Market” and “Nikkei 225” links
offer graphic pornographic images of Chinese women and
Japanese women, respectively,
engaged in various sexual acts. The “Anal Annunities” [sic]
section offers photographs
depicting, among other things, anal intercourse, and the
“Bonded Blowjobs” section shows the
viewer photos of acts of oral sex. The viewers can also
subscribe to a service on the WSIM site
which offers constant updates on their favorite stocks together
with additional pornographic
digital videos.
4. Plaintiff’s counsel notified both WSIM and Alphabit of the
unlawful and
infringing nature of their admitted copying of TheStreet.com’s
Web site. Although Alphabit
represented, in response, that WSIM’s president had “agreed to
remove all questionable material
from [its] web site by Wednesday, September 16th, 1998,” this
has not been done. Indeed,
WSIM’s president, Andrew Strauss, was subsequently quoted in
the press as stating that he had
no intention of ceasing such activity, even while admitting that
the WallStreetSex.com site is “a
blatant copy” of TheStreet.com Web site. Thereafter, after
advising Plaintiff’s counsel that
WSIM would remove all objectionable materials from its Web
site, and after removing the entire
WallStreetSex.com Web site from the Internet for a few days,
WSIM resumed its unlawful
activities, as set forth above.
FIRST CLAIM FOR RELIEF
17. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16 above as
if fully set forth herein.
18. Plaintiff is the copyright proprietor of the text and
graphic of TheStreet.com Web
site.
19. The WallStreetSex.com Web site has unlawfully, and
admittedly, copied
individual elements, as well as the distinctive and unique
structure, sequence and organization of
elements of TheStreet.com, which is copyrightable subject
matter under the laws of the United
States.
20. Upon information and belief, Alphabit continues to
unlawfully publish WSIM’s
infringing Web site, despite being notified of the infringement
and representing that such
objectionable activities would cease.
21. Plaintiff has complied in all respects with the
Copyright Act, 17 U.S.C. §101 et
seq, and has registered the copyright in the TheStreet.com’s
Web site pages with the United
States Copyright Office under Certificate of Registration VA
914-666.
22. Upon information and belief, Defendants had access
to TheStreet.com, as
evidenced not only by the availability of TheStreet.com’s Web
site on the Internet, but also
specifically by WSIM’s admission that WallStreetSex.com is “a
blatant copy” of it.
23. Defendants’ conduct in copying the protectable structure,
sequence, combination
and organization of TheStreet.com’s elements and publishing
them electronically in a
substantially identical manner constitutes an infringement of
Plaintiff’s copyright.
24. Upon information and belief, Defendants’ actions, as
alleged above, were
undertaken willfully and with knowledge that they were copying
protectable aspects of
TheStreet.com and were infringing Plaintiff’s rights therein.
25. Defendants’ actions constitute infringement of
TheStreet.com, in violation of the
Copyright Act, 17 U.S.C. §501, et seq.
26. Plaintiff is being irreparably injured by Defendants’
continuing infringement, and
therefore has no adequate remedy at law.
SECOND CLAIM FOR RELIEF
27. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16, 18
through 25 as if fully set forth herein.
28. By reason of Defendants’ actions, Plaintiff has been
damaged in an amount to be
determined at trial, but believed to be in excess of $5,000,000.
THIRD CLAIM FOR RELIEF
29. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16 as if
fully set forth herein.
30. The elements set forth in paragraph 12 above, all of which
were copied by
Defendants, have become distinctive symbols of the goodwill
which has been engendered in
TheStreet.com. and represent significant and valuable
proprietary assets of TheStreet.com.
31. WallStreetSex.com has not only misappropriated these
distinctive symbols of
TheStreet.com’s goodwill, but has also mixed financial news
services and links which are the
same as or similar to those of Plaintiff with its highly
pornographic and offensive content.
32. As a result of the pornographic content of the
WallStreetSex.com Web site,
Defendants’ use of these symbols of TheStreet.com’s goodwill
will dilute, tarnish and blur those
symbols and will injure Plaintiff’s business reputation.
33. Defendants’ acts, as alleged above, are in violation of
§368-d of the General
Business Law of New York.
34. Plaintiff has no adequate remedy at law.
FOURTH CLAIM FOR RELIEF
35. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16, 30
through 32 as if fully set forth herein.
36. Defendants’ acts, as alleged above, are in violation of
§ 43(c) of the Lanham Act,
15 U.S.C. §1125(c).
37. Plaintiff has no adequate remedy at law.
FIFTH CLAIM FOR RELIEF
38. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16, 30
through 32 and 36 as if fully set forth herein.
39. By reason of Defendants’ actions, Plaintiff has been
damaged in an amount to be
determined at trial, but believed to be in excess of $5,000,000.
SIXTH CLAIM FOR RELIEF
40. Plaintiff repeats and realleges the allegations of paragraphs
1 through 16 as if
fully set forth herein.
41. The elements of TheStreet.com which Defendants have
taken and utilized in
WallStreetSex.com are the product of Plaintiffs’ skill, labor,
expertise and talent, all directed
toward creating a unique, distinctive, recognizable and reputable
Web site.
42. Defendants have taken and utilized these elements with
predatory intent, in an
effort to reap for themselves the benefits of Plaintiff’s talent and
labor. Defendants’ actions, as
alleged above, were undertaken willfully, purposefully and with
the specific intent of usurping
the benefits of Plaintiff’s talent and labor to their own
commercial advantage in the production of
a Web site which would, to an extent (i.e., to the extent
WallStreetSex.com offers financial
market information) be in competition or be perceived to be in
competition with TheStreet.com.
and its services.
43. Defendants’ actions, as alleged above, constitute unfair
competition under the
common law of New York.
44. Plaintiff is being irreparably injured by reason of
Defendants’ continuing acts of
unfair competition, and therefore has no adequate remedy at
law.
SEVENTH CLAIM FOR RELIEF
45. Plaintiff repeats and realleges the allegations of paragraphs
1 through 16, 41
through 43 as if fully set forth herein.
46. Plaintiff has been damaged as a result of such unfair
competition in an amount to
be determined at trial, but believed to be in excess of
$5,000,000.
EIGHTH CLAIM FOR RELIEF
47. Plaintiff repeats and realleges the allegations of paragraphs
1 through 16, 30
through 32 as if fully set forth herein.
48. The elements from TheStreet.com which are copied by
WallStreetSex.com are
distinctive and have become known to and recognized by the
public as being part and parcel of
TheStreet.com.
49. Plaintiff is informed and believes and thereupon alleges
that Defendants
misappropriated these elements knowing that the public regards
them as being part and parcel of
TheStreet.com and that these elements are representative of the
goodwill which has been
engendered in TheStreet.com and symbolic of its unique style
and services.
50. Plaintiff is informed and believes and thereupon alleges
that Defendants copied
these elements with the intent of trading off of the goodwill
engendered in TheStreet.com.
51. Plaintiff is informed and believes and thereupon alleges
that a significant portion
of the viewing public will incorrectly assume, when first seeing
WallStreetSex.com, that it has in
some way been authorized or sponsored by Plaintiff or may be
related thereto, or that WSIM’s
Web pages or Web Site may originate from the same source, to
wit the highly regarded and well-
known TheStreet.com.
52. Defendants’ actions, as alleged above, are in violation of
§43(a) of the Lanham
Act, 15 U.S.C. §1125(a).
53. Plaintiffs are being irreparably injured by Defendants’
continuing violations of
§43(a) of the Lanham Act, and therefore have no adequate
remedy at law.
NINTH CLAIM FOR RELIEF
54. Plaintiff repeats and realleges the allegations of paragraphs
1 through 16, 30
through 32, 48 through 52 as if fully set forth herein.
55. By reason of Defendants’ actions, Plaintiff has been
damaged in an amount to be
determined at trial, but believed to be in excess of $5,000,000.
TENTH CLAIM FOR RELIEF
56. Plaintiff repeats and realleges the allegations of paragraphs
1 through 16 as if
fully set forth herein.
57. Notwithstanding their wholesale appropriation of
TheStreet.com in creating and
publishing WallStreetSex.com, Defendants have falsely
represented the misappropriated
elements of their Web site as being of their own creation.
58. Defendants’ actions, as alleged above, constitute reverse
passing off, in
violation of §43(a) of the Lanham Act, 15 U.S.C. §1125(a).
59. Plaintiff is being irreparably injured by Defendants’
continuing violations of
§43(a) of the Lanham Act, and therefore has no adequate
remedy at law.
ELEVENTH CLAIM FOR RELIEF
60. Plaintiff repeats and realleges the allegations of
paragraphs 1 through 16, 57 and
58 as if fully set forth herein.
61. By reason of Defendants’ actions, Plaintiff has been
damaged in an amount to be
determined at trial, but believed to be in excess of $5,000,000.
WHEREFORE, Plaintiff respectfully seeks judgment as follows:
(a) on Plaintiffs’ FIRST, THIRD, FOURTH, SIXTH, EIGHTH
and TENTH CLAIMS
FOR RELIEF, awarding preliminary and permanent injunctive
relief enjoining
Defendants from publishing, electronically or otherwise, the
offending Web site or
Web pages or acting in any other manner which constitutes an
infringement or
misappropriation of Plaintiffs’ rights, or which otherwise
impugns its integrity,
tarnishes its image or reputation or damages its goodwill;
(b) on Plaintiffs’ SECOND, FIFTH, SEVENTH, NINTH and
ELEVENTH CLAIMS
FOR RELIEF, awarding compensatory damages in an amount to
be determined at
trial, but believed to be in excess of $5,000,000;
(c) awarding Plaintiff all other damages suffered by reason of
Defendants’ wrongful acts,
including reasonable attorneys’ fees, pursuant to 17 U.S.C.
§505, and the costs of this
action
(d) awarding Plaintiff statutory damages as may be appropriate;
and
(e) awarding Plaintiff such other and further relief as to the
Court seems just and proper.
Dated: New York, New York
October 2, 1998
PRYOR CASHMAN SHERMAN & FLYNN LLP
By:
Tom J. Ferber (TF 9904)
Joseph I. Rosenbaum (JR 6555)
Adam J. Richards (AR 2489)
Attorneys for Plaintiff
410 Park Avenue
New York, New York 10022
(212) 421-4100