Count Six: Xxxxxx Act Trademark Infringement Sample Clauses

Count Six: Xxxxxx Act Trademark Infringement. 11 a. The Parties’ Arguments 12 In its disclosures pursuant to the District of Arizona’s Mandatory Initial Discovery 13 Pilot Project (“MIDP”), SiteLock identified its claim in Count Six as “a claim of trademark 14 infringement under the Xxxxxx Act, 15 U.S.C. § 1114” and described its theory of liability 15 as follows: “GoDaddy wrongfully used SiteLock’s trademark to promote GoDaddy’s 16 inferior, competing service, ‘Sucuri’ By redirecting customers who clicked on a link 17 for SiteLock’s services to a page promoting its own competing service (Sucuri), GoDaddy 18 used SiteLock’s trademark in a way that was likely to cause confusion, to cause mistake, 19 and to deceive as to the affiliation, connection, or association of SiteLock with [Sucuri], 20 and to deceive as to the origin, sponsorship, and approval of SiteLock’s and [Sucuri’s] 21 services. This customer confusion harmed SiteLock by causing it to lose customers and 22 sales revenue.” (Doc. 342-31 at 8.) 23 XxXxxxx contends it is entitled to summary judgment on this claim due to the 24 absence of any evidence of, or a viable theory relating to, damages. (Doc. 342 at 14-17.) 25 As an initial matter, GoDaddy asserts there is no evidence that SiteLock suffered actual 26 damages (i.e., a loss of goodwill or reputational harm) arising from the challenged conduct, 27 as SiteLock’s expert failed to provide an opinion as to either category of harm. (Id. at 15.) 28 According to XxXxxxx, this only leaves the possibility of a disgorgement-of-profits claim, 1 which SiteLock cannot prevail on for three reasons: (1) there is no evidence that GoDaddy 2 acted with the requisite mental state (i.e., “willful”); (2) SiteLock has not “otherwise 3 satisfie[d] any of the other equitable considerations required to support an award of 4 profits”; and (3) SiteLock “is unable to establish that GoDaddy generated any profits as a 5 result of” the challenged conduct because XxxxXxxx’s expert “improperly assume[d]” that 6 every sale by GoDaddy of a Sucuri-related product over a seven-month period was 7 attributable to the challenged conduct, and thus failed to exclude certain categories of sales 8 (such as “online sales made to GoDaddy customers who never visited the single SiteLock 9 Help webpage on which SiteLock’s infringement claim is based”) that were obviously not 10 affected by any trademark violations. (Id. at 15-17.) 11 In response, SiteLock begins by noting that XxXxxxx does not challenge that (1) 12 SiteLock has a valid,...