IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,

a Michigan corporation,

Plaintiff, 

Case No. 2:09-CV-10756

vs. Hon. Marianne O. Battani

NAVIGATION CATALYST SYSTEMS, INC.,

 a Delaware corporation; CONNEXUS CORP., 

 a Delaware corporation; FIRSTLOOK, INC.,

 a Delaware corporation; and EPIC MEDIA

GROUP, INC., a Delaware corporation,

Defendants.

______________________________________________________________________

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com 

brianhall@traverselegal.com 

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff 

William A. Delgado 

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)

Benjamin K. Steffans (P69712)

BUTZEL LONG, P.C.

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000

stasevich@butzel.com

steffans@butzel.com

Local Counsel for Defendants

______________________________________________________________________

DEFENDANTS CONNEXUS CORPORATION, FIRSTLOOK, INC., AND 

NAVIGATION CATALYST SYSTEMS, INC.’S MOTION IN LIMINE NO. 3

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NOTICE OF MOTION AND MOTION

TO THIS HONORABLE COURT, PLAINTIFF, AND ITS ATTORNEYS OF RECORD:

Connexus Corporation, Firstlook, Inc., and Navigation Catalyst Systems, Inc. 

(collectively the “Defendants”) hereby move this court in limine for an order excluding any 

reference, insinuation, questioning, argument, or evidence (testimony or documents) regarding 

Defendants’ registration of domain names that are “adult” in nature.

The bases for this Motion are set forth in the Memorandum of Points and Authorities; to 

wit, that such argument and testimony are irrelevant to this matter pursuant to Federal Rule of 

Evidence 402. Even if such evidence was relevant and admissible, the prejudicial effect of such 

evidence substantially outweighs its probative value, and, therefore, the Court should exercise its 

discretion to exclude such argument and testimony under Federal Rule of Evidence 403.

Counsel for Defendants have explained the nature of this Motion and its legal basis and 

requested, but did not obtain, concurrence in the relief sought.

RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific Time).

/s/William A. Delgado

William A. Delgado

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

With this motion in limine, Defendants seek to exclude any argument and/or evidence 

related to Defendants’ registration of domain names that are “adult” in nature. As this Court is 

aware, Defendants are in the business of bulk domain name registration and monetization. 

Among those names that might be profitable to Defendants are those containing sexually 

suggestive or explicit, i.e., “adult,” language. For example, Defendants are the owners of 

domain names such as “4youporn.com,” “loerotica.com,” and “escorts8.com.” This activity is 

not illegal; nor does it have any bearing whatsoever on Plaintiff, either in the context of this 

lawsuit or elsewhere. Yet, Defendants anticipate that Plaintiff might try to introduce evidence of 

the adult domain names to paint Defendants as unsavory and inflame the jury against them. 

Such evidence has absolutely no relation to the instant lawsuit and should be wholly excluded 

from trial.

II. ARGUMENT

A. EVIDENCE OF THE REGISTRATION OF ADULT DOMAIN NAMES IS 

IRRELEVANT TO THIS LAWSUIT.

Federal Rule of Evidence 402 specifically provides that “[e]vidence which is not 

relevant is not admissible.” Rule 402 defines relevant evidence as “evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence.”

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Here, Defendants’ registration nd ownership of adult domain names is patently irrelevant 

to this lawsuit. To track the language of Rule 402, the fact that Defendants have registered the 

name “4youporn.com” does not make it more or less probable that Defendants infringed on 

Plaintiff’s trademark rights. This is a lawsuit about one unique set of allegations, specifically 

whether Defendants violated Plaintiff’s purported trademark rights by registering certain domain 

names – names that purportedly relate to Plaintiff’s weather business and are not adult in nature. 

It is not a lawsuit about Defendants’ business practices, in general, or what other domain names 

Defendants own. Nor is this a lawsuit about Defendants’ character. Defendants are in the 

business of registering domain names in bulk and, consequently have registered certain 

profitable domain names that other parties might find distasteful. But, Plaintiff’s dispute with

Defendants concerns only a small subset of Defendants’ domain names, the remainder of which 

are patently irrelevant to this particular lawsuit.

B. EVEN IF RELEVANT, EVIDENCE OF THE ADULT DOMAIN NAMES

SHOULD BE EXCLUDED FROM TRIAL AS PREJUDICIAL AND A WASTE 

OF TIME.

Pursuant to Federal Rule of Evidence 403, “evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation 

of cumulative evidence.” The Sixth Circuit has granted trial courts broad discretion to exclude 

evidence whose prejudicial effect outweighs its probative value. See, e.g., U.S. v. Fisher, 648 

F.3d 442, 449 (6

th Cir. 2011) (upholding district court’s decision to exclude documentary 

evidence that would have “a high likelihood of misleading and confusing the jury”). Where, as 

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here, the evidence is wholly irrelevant, the trial judge has wide latitude to restrict or completely 

exclude it. U.S. v. Mack, 258 F.3d 548, 555 (6th Cir. 2001) (concluding that the district court 

erred in admitting evidence of prior acts, where the evidence had little probative value and would 

prejudice the jury as to defendant’s “bad character”) .

As previously established, there is nothing probative about Defendants’ registration of 

adult domain names. This lawsuit is not even about the nature of Defendants’ domain names 

themselves but, rather, about whether they infringe on Plaintiff’s trademark rights. Plaintiff has 

never alleged that Defendants’ adult domain names infringe on its rights. Yet the danger that 

such evidence would unfairly prejudice the jury is substantial.

Plaintiff will likely seek to introduce evidence of the adult domain names to show the 

jury that Defendants are unsavory, immoral characters, profiting from the registration of 

distasteful names. Defendants register thousands of domain names, only a subset of which are 

adult in nature. Yet, there is probably nothing more prejudicial to Defendants than evidence of 

activity that – while perfectly legal – would make a jury uncomfortable, embarrassed, and 

disapproving. The trial could easily turn into a condemnation of Defendants’ adult domain 

names, which are “more lurid and frankly more interesting than the evidence surrounding the 

actual [allegations].” U.S. v. Stout, 509 F. 3d 796, 801 (6th Cir. 2007). Thus, “[a]ny jury will be 

more alarmed and disgusted” by the adult domain names than by any allegations Plaintiff makes 

against Defendants, and will consequently pay “undue attention” to the domain names and be 

“improperly distracted from the primary evidence at hand.” Id.

And, as if the prejudicial danger to Defendants was not sufficient, evidence of the adult 

domain names is likely to confuse the jury as they wonder what weight to accord this evidence 

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and how it relates to the instant lawsuit. This is a needless distraction which will take up an 

undue amount of time and waste judicial resources.

III. CONCLUSION

Defendants’ registration of adult domain names is irrelevant to this trial, which is a 

unique set of allegations concerning a unique set of domain names which are not adult in nature. 

And, even if it could somehow be relevant, the danger of prejudice and confusion, and the 

unnecessary delay such evidence would cause, mitigates in favor of exclusion. For these 

reasons, this Court should exclude all arguments, evidence, and references to the existence of the 

adult domain names.

RESPECTFULLY SUBMITTED this 24th day of February, 2012 (Pacific time).

/s/William A. Delgado

William A. Delgado

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

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CERTIFICATE OF SERVICE

I hereby certify that on February 24, 2012, Pacific Time, I electronically filed the 

foregoing paper with the Court using the ECF system which will send notification of 

such filing to the following:

Enrico Schaefer (P43506)

Brian A. Hall (P70865)

TRAVERSE LEGAL, PLC

810 Cottageview Drive, Unit G-20

Traverse City, MI 49686

231-932-0411

enrico.schaefer@traverselegal.com 

brianhall@traverselegal.com 

Lead Attorneys for Plaintiff

Anthony P. Patti (P43729)

HOOPER HATHAWAY, PC

126 South Main Street

Ann Arbor, MI 48104

734-662-4426

apatti@hooperhathaway.com

Attorneys for Plaintiff 

Nicholas J. Stasevich (P41896)

Benjamin K. Steffans (P69712)

BUTZEL LONG, P.C.

150 West Jefferson, Suite 100

Detroit, MI 48226

(313) 225-7000

stasevich@butzel.com

steffans@butzel.com

Local Counsel for Defendants

William A. Delgado 

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

/s/William A. Delgado

William A. Delgado 

WILLENKEN WILSON LOH & LIEB LLP

707 Wilshire Boulevard, Suite 3850

Los Angeles, CA 90017

(213) 955-9240

williamdelgado@willenken.com

Lead Counsel for Defendants

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