FriendFinder Won't Reveal Affiliate Data to Facebook

FriendFinder Won't Reveal Affiliate Data to Facebook
Rhett Pardon

SAN FRANCISCO — Facebook has asked a federal judge to expedite the process of learning the identities of about 100 affiliates of FriendFinder-owned FacebookOfSex.com, which is the focus of an infringement claim by the mainstream social network giant.

In a suit filed in April, Facebook says the name of FriendFinder's Traffic Cat site, FacebookOfSex.com, is too similar to its own trademarked name and it seeks expedited discovery to accelerate a more complete evidentiary record relative to alleged infringing uses of its trademark.

Counsel for Facebook and FriendFinder, in a joint letter this week to U.S. District Judge Donna Ryu, said that both parties are at a standstill because they are unable to resolve their differences.

FriendFinder counsel Floyd Mandell of Katten Muchin Rosenman said "no good cause exists for [Facebook's] proposed expedited fishing expedition to search for other entities to sue and to interfere with defendants’ business references."

Alternatively, Facebook's counsel, Michael Rhodes of the Cooley law firm, said that FriendFinder simply hasn't complied with its requests over information relative to names and addresses associated with its affiliate program and that talks have broken down.

"As the parties’ discussions progressed ... it became clear that [FriendFinder] had no intention of providing this information or taking the steps necessary to dismantle its infringing affiliate network," Facebook's counsel said.

Facebook counsel further said that FriendFinder continues to use the "Facebook" trademark in the FacebookOfSex.com domain, which directs users to another FriendFinder site, XMatch.com, and that the company continues to benefit from accepting traffic from the John Doe defendants’ infringing sites.

After the suit's filing FriendFinder removed most of the  content, leaving a login screen for existing members to log in to their accounts.

Facebook, which is under pressure with a 120-day judicial time frame to identify and serve affiliates, has asked the court for expedited relief because it said it intends to  pursue a motion for a preliminary injunction against all defendants, which have been difficult to identify because many use a  proxy service domain registration that masks their identities.

"By virtue of their financial arrangements with the Doe defendants, [FriendFinder] will necessarily have contact and payment information for these individuals or entities," Facebook counsel said. "Facebook’s investigation indicates that the network of affiliates using infringing advertisements may be even more widespread."

In its original suit filed in April at U.S. District Court in San Francisco, Facebook says FacebookOfSex.com " is a blatant attempt ... to hijack Facebook's fame for illicit financial gain."

FriendFinder, however, claims that it has problems with Facebook's use of the term "friend finder," which it also has trademarks for.

Facebook in the suit claims that FacebookOfSex.com provides nearly identical user services as its social network.

Facebook also complains in the suit that the launch of FacebookOfSex was a "calculated scheme to capitalize on the fame of Facebook's marks," particularly because they spread affiliate advertising material, including banner ads that drive traffic to FriendFinder sites.

Facebook further wants the court to declare its rights in connection with its use of the words "friend finder," or deem those words have not  "acquired secondary meaning in the marketplace."

The suit, which includes trademark dilution and cybersquatting claims among 11 claims, seeks injunctive relief, revenue from the site and actual and punitive damages.

Attorneys Mandell and Rhodes were not immediately available for comment to XBIZ.

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