argument that Defendants profited or intended to profit from the registration of the Domain Names.

C. Plaintiff Has Failed to Come Forward With Evidence That Its Mark is Distinctive or
Famous.

Plaintiffhas offered no evidence, other than its own self-serving statements, that “Career Agents
Network” is famous or distinctive. At her deposition, the Chief Operating Officer of Plaintiff
testified that she did not know whether people in the street, or within a health care facility would
know who or what Career Agents Network is.” She further testified that the “general public” that
Plaintiff purports recognizes and distinguishes the Career Agents Network Mark refers only to the
“online public."

U1. Plaintiff Cannot Refute That Defendants’ Use of the Mark Is Not a Commercial Use

Plaintiff's reliance on Jews for Jesus" for the proposition that use of a mark in a domain name
on the internet makes the use “in commerce” is misplaced. The court in Ford Motor Co. v. 2600
Enters., 177 F.Supp. 2d 661 (2001) specifically rejected this proposition and specifically rejected
the argument that the "commercial use" requirement is satisfied any time the unauthorized use of
a mark inhibits the mark holder's ability to establish a presence on the Intemet or otherwise
disparages the mark owner.

Mi. = There Is No Likelihood of Confusion

The likelihood of confusion factors favor Defendants.

a. Strength of Plaintiff's Mark. Plaintiff did not even exist until December 9, 2008. The
domain names at issue was registered a mere 6 weeks later. Further, Plaintiffs mark consists of
common words which are used extensively in the marketplace in various forms”. The USPTO

° See Exhibit H at page 80.

"See Exhibit H at page 79.

11993 F, Supp. 282 (1998).
"See Homeowners Group, Inc. v Home Marketing Specialists, Inc., 931 F2d 1100, 1105 (6" Cir 1991).

3


Certificate of Service

Thereby certify that on February 5, 2010, I electronically filed the foregoing paper with the Clerk of
the Court using the ECF system which will send notification of such filing to the following:

jlowenstein@jaffelaw.com; and
mkhoury@jaffelaw.com

/s/ Charles E. Clos

Clos, Russell & Wirth, P.C.
35551 Ford Road, Suite 100
Westland, MI 48185

(734) 326-2101
cclos@lawyersmichigan.com
P43380



facts: 1) No products or services were offered on the Website; 2) No links to other websites that
offered products or services were provided; 3) The identity of the author did not appear on the
Website; and 4) There was no means of contacting any Defendant, nor any non-party on the Website.
As such, it is impossible that the existence of the two domain names resulted in anyone being
diverted to Defendants, or to any entity in which any Defendant has an interest.

B. Plaintiff Has Not Come Forth with any Evidence that Defendant Registered the
Domain Names to Divert Customers from Plaintiffs’ Online Location

When asked at her deposition what evidence Plaintiffhas that the Domain Names were diverting
customers from Plaintiff, Ms. Byndas offered only the fact that non-party Healthcare Agents, Ltd.
has been successful in hiring recruiters. Plaintiff has offered no other evidence.

Ms. Byndas testified that Defendants are competing with Plaintiff by virtue of the non-party,
Healthcare Agents, Ltd., having a “Join Our Team” link on the healthcareagents.com Website.’
That is not the domain name or website at issue in this litigation. There are no links to the
healthcareagents.com website from the website at issue. As such, Plaintiff cannot establish that
Defendant AeroMedia, the registrant of the website, nor Defendant White, has diverted, attempted
to divert, or intended to divert customers from Plaintiff by registering the Domain Names.

Finally, Ms. Byndas testified that the “WARNING” website had a negative effect on members
of Health Career Agents, Inc. and Career Agents Network. She stated that “the statements that were
false statements about being able to derive revenue in the recruiting field hindered other members’
ability to recruit people to their teams to be doing business.”® If the warning had a negative effect

on members, that would necessarily include Defendant White. This flies in the face of Plaintiff's

®See Exhibit H at pp. 64-65.

"This domain name is owned by Healthcare Agents, Ltd. and Plaintiff claims zero interest in that domain
name.

5See Exhibit H, p. 82.



recently required Plaintiffto disclaim the descriptive wording “agents network.” As such, plaintiff's
mark was extremely weak when the domain names were registered. This factor favors Defendants.

b. Relatedness of the Goods or Services. There are no products or services offered by
Defendants on the website. The only thing offered is an opinion about the services offered by
Plaintiff. This factor favors Defendants.

¢. Similarity of the Marks. Admittedly, the name of Plaintiff's business appears in the
domain name registered by Defendant to denote the subject matter of the website. However, that fact
is not determinative.”

d. Actual Confusion. Reviewing the fifty word website, any reasonable consumer would
immediately realize that Defendants’ website is not the home page of Plaintiff, or even sponsored
by Plaintiff. There is no possibility that the website could “mislead consumers into buying a
competing service” as no commercial service or product is offered. “[t]he dangers that the Lanham
Act was designed to address are simply not at issue in this case.” Bosley, 403 F.3d at 679-80; see
also Parker v Google, Inc., 422 F.Supp. 2d 492 (E.D. Pa. 2006). This factor favors Defendants.

e. Marketing Channels Used. The existence of the website is strictly on the Internet. At the
time the Domain Names were registered, Plaintiff had no online presence under its current name".
This factor favors Defendants.

Sf Likely Degree of Purchaser Care. In determining whether an ordinary buyer would

differentiate between similar trademarks, the standard is “ordinary caution.” “A higher degree of

® Strick Corp. v Strickland, 162 F Supp 372 (ED Pa 2001) (finding no likelihood of confusion because,
once an Internet user reached the defendant’s website, it would be crystal clear that the Strick company was not the
sponsor of the strick.com website.)

“Their websites were blank pages with the words “Career Agents Network” in small courier type font
against a white background.

'Therma-scan Inc. v Thermoscan, Inc., 295 F3d 623, 638 (6" Cir 2002).

4


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

CAREER AGENTS NETWORK,

INC., a Michigan corporation, Case No. 2:09-cv-12269
Plaintiff, Hon. Robert H. Cleland

vs.

careeragentsnetwork.biz,

careeragentnetwork.biz, Lawrence R.
White, an individual, and AeroMedia
Marketing, Inc., a Michigan corporation,

Defendants.
Jaffe, Raitt, Heuer, and Weiss, P.C. Clos, Russell & Wirth, P.C.
Attorneys for Plaintiff Attomeys for Defendants
Joan H. Lowenstein (P39422) Charles E. Clos (P43380)
Michael S. Khoury (P34413) Shannon L. Wirth (P58822)
201 S. Main Street, Suite 300 35551 Ford Road, Suite 100
Ann Arbor, MI 48104 Westland, MI 48185
(734) 222-4776 (734) 326-2101
jlowenstein@jaffelaw.com cclos@lawyersmichigan.com
mikhoury@jaffelaw.com swirth@lawyersmichigan.com

DEFENDANTS’ BRIEF IN REPLY TO PLAINTIFFS’ RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY DISPOSITION



care, in contrast, is appropriate where the buyer in question has a particular expertise or

sophistication, or is making an expensive or unusual purchase.”'®

The expectation of greater care
by a consumer with “particular expertise or sophistication” reduces the likelihood of confusion"”.
Defendant White spent $49,000.00 to purchase the opportunity offered by Plaintiff. The
professionals Plaintiff is seeking to attract are likely more sophisticated and would take greater care
thereby reducing the likelihood that they would confuse Defendants’ critical site with that of
Plaintiff. As such, this factor favors Defendants.

g. Defendants’ Intent In Selecting the Mark. Defendants’ intent in registering the Domain
Names can be readily gleaned from a review of the website’s content. Defendant intended to express
his opinion about the services offered by Plaintiff. Defendant White testified that the website was
posted to express an opinion and to warn people who may be investigating the business opportunity
offered by Plaintiff'®. There is no evidence of any intent to cause confusion, as distinguished from
the defendants in Jews for Jesus and Planned Parenthood."

kh, Expansion of Product Lines. As the website does not offer any products or services, this
factor does not weigh in favor of either party.

Based on the above, Plaintiff cannot demonstrate that Defendants’ use of Plaintiff's mark is
likely to cause confusion. As such, Plaintiffs claim for Trademark Infringement must be dismissed.
/s/ Charles E. Clos
Clos, Russell & Wirth, P.C. (P43380)
35551 Ford Road, Suite 100
Westland, MI 48185

(734) 326-2101
cclos@lawyersmichigan.com

‘Id.

"'Therma-scan, supra at 638. See also, Bigtime Worldwide Concert v. Marriott Int'l, Inc., 236 F Supp 2d
791, 805 (ED Mich 2003).

"'See Exhibit D, pages 25-26, 41-42 to Defendants’ Motion & Brief previously filed at Document No. 43.

1997 U.S. Dist. LEXIS 3338; 42 U.S.P.Q.2D (BNA) 1430.


TABLE OF AUTHORITIES

Cases

Bigtime Worldwide Concert v. Marriott Int’l, Inc., 236 F Supp 2d 791, 805 (ED Mich 2003) ..5

Bosley Medical Institute, Inc. v Kremer, 403 F.3d 672 (9" Circ 2005) ..........0 00. ee eee 4
Ford Motor Co. v. 2600 Enters., 177 F.Supp. 2d 661 (E.D. Mich 2001) ............0..0008 3
Homeowners Group, Inc. v Home Marketing Specialists, Inc., 931 F2d 1100, 1105 (6" Cir 1991)

ener eee ee etter eee Eee eee eee Eee Eee Eee atte eee eterenaesees 3
Jews for Jesus, 993 F. Supp. 282 (D.N.J. 1998) 00. cece cece eee c neve ees aeeee 3
Parker v Google, Inc., 422 F.Supp. 2d 492 (E.D. Pa. 2006) ......... 0. ccc ccc cece eeeeuee 4
Planned Parenthood, 1997 U.S. Dist. LEXIS 3338; 42 U.S.P.Q.2D (BNA) 1430............ 5
Strick Corp. v Strickland, 162 F Supp 372 (ED Pa 2001) ............ voveeeteueeeeeenes 4

Therma-scan Inc. v Thermoscan, Inc., 295 F3d 623, 638 (6" Cir 2002) .........0. 0.00000 4


I. Plaintiffs Have Failed Produce Any Evidence of Bad Faith Intent to Profit.

A. There Is No Competition Between the Parties

Plaintiff offers a “business-in-a-box” to individuals who wish to own and operate their own
recruiting business. Defendant AeroMedia, Inc., the registrant of the Domain Names is engaged in
the business of advertising, marketing and public relations and is not engaged in the healthcare
recruiting business. Neither Defendant AeroMedia nor White offers any business in a box type
product to any consumers. Neither Defendant offers to sell “independently owned recruiting
companies” to anyone.'! Defendant White has a fifty percent interest in Heatlhcare Agents, Ltd., an
entity which recruits candidates for placement with particular employers, and contract with
employers to provide employment candidates. It does not offer to sell any businesses to third parties.”

Charlotte Byndas, the Chief Operating Officer of Plaintiff testified Plaintiff has no competitors
in the marketplace.? Ms. Byndas stated: “The closest thing to a competitor is a franchise organization
to who we are. I'm not aware of anyone else that offers what we offer the way we offer it.”

In an attempt to create “competition” between the parties where none exists, Ms. Byndas
testified that Defendant White has diverted potential “entrepreneurs” from Plaintiff, by virtue of a
“WARNING” that was linked to the Defendant Domain Names. Ms. Byndas “thinks” that people
looking into Plaintiffs’ business opportunity stumbled onto the one page warning website and then,
inexplicably, ended up somehow contacting Healthcare Agents, Ltd. and being hired as a recruiter

not the owner ofa recruiting company).’ Plaintiffs’ theory ignores several pertinent and undisputed
ig pi

‘Defendants incorporate by reference herein Exhibits A through F of its Motion and Brief previously filed
as Document No. 43. In addition, see Affidavit of Lawrence White attached hereto as Exhibit G.

Id.

+See Deposition of Charlotte Byndas attached hereto as Exhibit H, p. 44.

‘See Exhibit H at page 45.

5See Exhibit H at pp. 45-46, 65.