AvePoint, Inc. v. Power Tools, Inc.
981 F. Supp. 2d 496
W.D. Va.2013Background
- AvePoint sued Axceler and Burns for defamation, breach of contract, trademark infringement, false association or endorsement, false designation of origin, false advertising, unfair competition, and Virginia Computer Crimes Act violations.
- AvePoint asserts Axceler/ Burns made false statements about origin, development, and enhancement of AvePoint’s software to divert customers.
- Axceler allegedly created a fictitious LinkedIn profile for an AvePoint representative and used social media to propagate deceptive claims.
- AvePoint claims the profiles and tweets caused actual confusion among customers and employees, and that a fake download trial of DocAve 6 was obtained under false pretenses.
- The court denies the motions to dismiss after applying Rule 12(b)(6) and considers attached exhibits in evaluating the claims.
- Virginia law governs the state-law claims, and the court addresses federal Lanham Act claims alongside them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defamation sufficiency | AvePoint alleges false statements about origin and US development hurt its trade. | Axceler argues statements are not defamatory as a matter of law. | Count I survives as to multiple statements. |
| Breach of browsewrap contract | AvePoint asserts Axceler assented by using the site under terms. | Arguments question enforceability of browsewrap agreements; assent lacking. | Count II survives; browsewrap enforceable at this stage. |
| Trademark infringement via LinkedIn impersonation | Imposter profile used AvePoint mark to divert business and cause confusion. | Profile is a resume; not clearly linked to AvePoint commerce. | Count III survives; use in commerce and likelihood of confusion plausibly alleged. |
| False association/endorsement under §43(a)(1)(A) | Imposter profile creates affiliation implying AvePoint sponsorship. | No express sponsorship required; contends insufficient allegations. | Count IV survives; likelihood of confusion as to affiliation supported. |
| False designation of origin under §43(a)(1)(A) (and related §43(a)(1)(B)) | Tweets and profile misrepresent geographic origin of AvePoint’s goods. | Some statements not tied to origin of AvePoint’s own goods; scope argued. | Count V survives for designation of origin based on LinkedIn; Count VI addresses advertising separately. |
Key Cases Cited
- Gazette, Inc. v. Harris, 325 S.E.2d 713 (Va. 1985) (‘of or concerning’ test for defamation inference)
- Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) (elements of defamation; publication, falsity, and fault)
- Tronfeld v. Nationwide Mut. Ins. Co., 636 S.E.2d 447 (Va. 2006) (defamation per se when statements prejudicial to trade)
- PETA v. Doughney, 263 F.3d 359 (4th Cir. 2001) (use of mark in cyberspace can constitute sponsorship/affiliation implications)
- Lobo Enterprises, Inc. v. Tunnel, Inc., 822 F.2d 331 (2d Cir. 1987) (use of commerce broader than traditional notions; internet context)