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April 24, 2014

Trademark Infringement Asserted in Complaint by Warmtone Corp. d/b/a WebWire Against Brittany Race for Use of Marks WEBWIRE and GOWEBWIRE

Warmtone Corp. d/b/a WebWire (“Warmtone”) initiated suit in the Atlanta Division of the Northern District of Georgia on November 8, 2012, against Brittany Race (“Race”) for infringement of the registered mark “WEBWIRE” – U.S. Reg. No. 2,177,196.  

According to its complaint, Warmtone provides Internet marketing services promoting visibility of customer websites through online publicity, keyword association and SEO (search engine optimization) focusing on fee-based press release distribution and has used the WEBWIRE® Mark continuously since February 29, 1996.  Warmtone alleges that Race is a resident of Denver, Colorado who offers marketing services and web site design, using the marks WEBWIRE and GOWEBWIRE on her website – www.GoWebWire.com. 

Warmtone further alleges that its website – www.WebWire.com – has over 400,000 unique visitors per month with an estimated 30 million page views since its launch in 1996.  Warmtone adds that it has over 30,000 registrants who distribute press releases on the WebWire cite and through the Warmtone distribution system, and that those registrants employ Warmtone’s services to bolster their Internet presence, image, and reputation. 

Warmtone claims that Race uses the infringing marks for the identical objective of bolstering her customers’ Internet presence, image, and reputation.  The complaint alleges that Race offers SEO, keyword research, and other online tools and communication to achieve her customers’ goals.

In September 2012, alleges Warmtone, it informed Race of the claimed infringement of its WEBWIRE® Mark and demanded that such infringement desist.  Pictured below are the WEBWIRE® Mark as used on the Warmtone web site (left) and the mark allegedly used by Race in early September 2012 on the www.GoWebWire.com site (right), as shown in Exhibit B to the complaint.

According to the complaint, Race failed to reply to a demand letter sent by counsel on September 21, 2012, or to voice-mails left by counsel after the letter was sent.  However, Warmtone alleges, the mark used by Race for her business changed from WEBWIRE to GOWEBWIRE in late September (see below image, taken from Exhibit D to the complaint).

The complaint alleges that Race removed a link to a webpage entitled “SEO” from the header of her web site, but the page is still available online at www.GoWebWire.com/SEO/.

In addition to the allegations of trademark infringement under 15 U.S.C. § 1114 and false designation of origin and false description of representation under 15 U.S.C. § 1125, Warmtone assets a cybersquatting claim under 15 U.S.C. § 1125(d).  After observing that the WEBWIRE® Mark is completely contained in Race’s GOWEBWIRE domain name, Warmtone alleges in paragraph 85 evidence of Race’s bad faith by attempting to conceal her identity in registering the domain name by using a fake address to Domains By Proxy, LLC which listed the registrant’s name as WebWire.  Exhibit E to the complaint purportedly shows on October 10, 2011 registration to WebWire, 1234 SL, Denver, Colorado  80246,[1] United States, with an update on September 7, 2012, to Domains By Proxy, LLC.  Will Exhibit E to the complaint (reprinted below) prove to be the smoking gun in this case?
 

The case is Warmtone Corp. d/b/a WebWire v. Brittany Race, No. 1:12-cv-3912-ODE, filed 11/8/12 in the U.S. District Court for the Northern District of Georgia, Atlanta Division, and has been assigned to U.S. District Judge Orinda D. Evans.


[1]  Exhibit C of the complaint shows Race’s address as 1230 S Bellaire ST., No. 301, Denver, CO  80246.

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About the Author

Kirk Watkins, Womble Carlyle Law Firm, Business Litigation Attorney
Attorney

Kirk manages and tries complex business litigation, patent and international arbitration disputes. He believes thorough preparation and strategic theme development result in successful trials or settlements.    

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