New Destiny Internet Group and Xplor Media, Inc., the parent companies that operate Homegrown Video, have sued three companies, Voice Media, Inc. (VMI), Trade News N.V., and Internet Business Services, LLC, charging copyright and trademark infringement.
In its complaint, Homegrown states not only that “defendant VMI operated a Website under the domain name www.cybererotica.com (the CE site),” but that each of the three companies listed as defendants “is the alter-ego of each of the other defendants and has operated in such a fashion such that any separateness between the defendants has ceased to exist and there is complete unity of interest between the defendants.”
The original lawsuit was filed in February, and alleges, in addition to the above claims, federal unfair competition, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Unfair Business Practices Act, recision (cancellation of contract), and asks for declaratory relief by seeking permanent injunctions against the three defendants plus unspecified actual, statutory, and punitive damages.
Last week, New Destiny also asked a federal judge to hand down a temporary restraining order against the three defendants.
Court documents obtained by AVN.com indicate New Destiny and Xplor Media accuse Voice Media and Trade News N.V. of infringing Homegrown’s copyright by making a copy of the Video Website Tour available online without Homegrown’s direct permission. New Destiny also accuses Internet Business Services of contributory copyright infringement because, the court filing says, they “collect income generated by Trade News’ infringement as its agent, providing the market and environment for the infringement to thrive.”
Among the unfair practices alleged in the lawsuit are directing traffic to other Websites with pop-ups, without reciprocal such direction to New Destiny’s site; creating other Websites “with content that competed with the content on the New Destiny site” and directing traffic to those other sites; and co-mingling credit processing for New Destiny’s account with other sites.
New Destiny and Xplor also accuse the defendants of offering lifetime or unlimited memberships to the New Destiny site for free or at a discount, “as an incentive for those customers not to make charge-backs against other sites owned or controlled by [the] defendants,” and of canceling some memberships while double-charging others when New Destiny discovered the lifetime/unlimited offers and objected to them, according to the filing.
New Destiny and Xplor want a judge to stop the three companies from any accused infringing activity including “copying, duplicating, distributing, selling, publishing, reproducing, displaying, preparing derivative works based on, or otherwise communicating in any manner... printed, audio, photogenic, electronic, or in any other form” the Homegrown Video Website Tour and its materials.
New Destiny’s restraining order request, filed March 15, also wants the judge to stop Cybererotica from what New Destiny claims is falsely stating its authorization to use Homegrown Video’s trademark or Video Website tour; and from destroying or erasing “any writings for or issuing passwords” for Homegrown Video Website access, or destroying any records related to Cybererotica’s purported offering of Homegrown Video Website memberships.
Voice Media chief Ron Levi told AVN.com he believes the action is “preposterous” because, he said, Voice Media had a contract with Homegrown Video and assigned the contract to Trade News, and therefore there is no infringement.
“The court documents speak for themselves,” said New Destiny/Homegrown chief Spike Goldberg. “This goes far beyond a contractual dispute. It has to do with the end users, with the way people conduct their business dealings, which is being reflected all the way through our court documents on this.”
