Virginia Lawyers Weekly//October 9, 2022
Virginia Lawyers Weekly//October 9, 2022//
Where an individual apparently resigned, and then allegedly changed the contact email on his former employer’s Facebook page, he was sued for violating the Computer Fraud and Abuse Act.
This matter stems from actions taken by defendants Chester Dog Enterprises LLC, Caitlyn Vehrs and Colin McCulley regarding alleged infringement of the “GNG” and “GNG Motorsports” marks and defendants’ refusal to return the administrative access to the GNG business Facebook profile. In its complaint, Good ‘Nuff Garage LLC seeks both damages as well as preliminary and permanent injunctive relief under the Lanham Act and the Computer Fraud and Abuse Act, or CFAA. Defendants have filed a motion to dismiss.
In Count One, Good ‘Nuff Garage alleges that defendants’ use of the “GNG” and “GNG Performance” marks infringed upon its federal trademark rights in the “GNG” and “GNG Motorsports” marks under the Lanham Act.
Plaintiff sufficiently pleads that the “GNG” and “GNG Motorsports” marks were used in commerce and are distinctive, indicating that the marks qualify for protection pursuant to the Lanham Act. Moreover, plaintiff states facts enabling the court to find that, based on the allegations in the complaint, plaintiff’s marks were valid and that defendants’ use of similar marks is likely to cause confusion among consumers.
Thus, especially read favorably, Good ‘Nuff Garage has stated a claim for false designation of origin and/or trademark infringement under the Lanham Act. The court will deny the motion dismiss as to Count One.
CFAA § 1030(a)(2)
Good ‘Nuff Garage has alleged sufficient facts to state a claim under § 1030(a)(2)(C) that defendants accessed a protected computer without authorization and obtained information from a protected computer.
Plaintiff states that after his resignation, and thus after his authorization had been terminated, “Defendant McCulley (i) created a public post on Plaintiff’s Facebook page[;] … and [,] (ii) changed the contact email on the Facebook page to [email protected], which is not Plaintiff’s email, and which utilized the GNG mark.” Thus, McCulley, and through him, Chester Dog, “intentionally accessed [the Facebook page] without authorization.”
In addition, plaintiff has sufficiently alleged that McCulley and Chester Dog obtained information through McCulley’s improper access of the Facebook page. Finally, read favorably, plaintiff’s complaint alleges facts indicating that it has suffered losses during a “one-year period aggregating at least $5,000 in value.” Indeed, plaintiff alleges that between July and Sept. 2, 2021 (the date of the complaint’s filing), it lost $97,000 in revenue and $14,500 in profit, as well as its need to return over $22,000 to customers, a number that, at the time of filing, plaintiff stated continued to increase. In sum, Good ‘Nuff Garage has stated facts sufficient to satisfy § 1030(a)(2)(C) and the court will deny the motion to dismiss as to plaintiff’s Count Two claim pertaining to that subsection.
CFAA § 1030(a)(4)
Good ‘Nuff Garage has plausibly alleged that defendants violated § 1030(a)(4) by accessing a protected computer without authorization, thereby causing a loss. Plaintiff has successfully pled that McCulley, and through him Chester Dog, accessed a computer without authorization. Further, Good ‘Nuff Garage maintains that these defendants acted “with an intent to defraud.” Further, reading the complaint favorably, plaintiff plausibly alleges that McCulley obtained something of value by accessing the Facebook page, and caused over $5,000 in damages.
CFAA § 1030(a)(5)(C)
Good ‘Nuff Garage has plausibly stated an unauthorized access with damage and loss claim under§ 1030(a)(5)(C). Defendants intentionally accessed a protected computer without authorization. Plaintiff successfully pleads both damage and loss resulting from defendants’ conduct as those terms are defined in § 1030(e).
Defendants’ motion to dismiss denied.
Good ‘Nuff Garage LLC v. McCulley, Case No. 3:21-cv-571, Sept. 26, 2022. EDVA at Richmond (Lauck). VLW 022-3-434. 34 pp.