utube.com suit against YouTube.com for too much traffic

As some may have seen in the press, Universal Tube & Rollform Equipment Company (located on the Internets at www.utube.com) has sued YouTube because the video-sharing site has become so popular that too many people are now mistakenly visiting utube.com instead of youtube.com.

A copy of the legal complaint is posted here (PDF 2.6 MB).

Now I'm definitely sympathetic to Universal Tube's plight.  They're a small business that mostly operates in an off-line world.  This much traffic shutting down its servers is not something it asked for or deserves.  But to respond by suing YouTube for it doesn't make any sense.  YouTube didn't ask those people to go to the wrong website.  In fact, YouTube wants nothing more than for all those people to find the right website. (Okay, maybe not the child pornographers, but everyone else).

Moreover, the fact that Universal Tube is suing primarily under trademark law and the old property doctrine of "trespass to chattels" is particularly disingenous.  I mean, the company isn't even called "utube" -- it's called Universal Tube & Rollform Equipment.  They just picked the domain "utube" as a shorthand.

Trademark law is about companies in the same field using similar marks to confuse consumers not about blaming companies for the mistakes of Internet searchers who can't find the right websites.  No consumer looking for videos on the Internet is going to mistakenly buy used tubbing or visa-versa (unless of course, they're looking for a series of tubes ;). What Universal Tube is trying to do here is right a wrong by squeezing a square peg in a round hole.  There is no "trespass" here or trademark violation and they shouldn't try to trick a court into finding one.

Comments

[Kaisen]

I don't get the series of tubes joke... Is it supposed to be dirty? :)

[joe]

Man, the emails utube.com got from dorks (in the complaint at paras 34-36) is hillarious... "where r da videos?"

[Jason]

Asks my cantankerous old Contracts prof: "What's really going on here? In a word!"

Answers the fearful 1L: "Settlement?"

[Barzelay]

"24. This dramatic and progressive increase in internet traffic is significantly based upon YouTube's... lack of fiscal responsibility which allows it to continue to lose, upon information and belief, between $500,000 and $1,000,000 per month."

"50. ...Plaintiff has been damaged in an amount to be proven at trial and is entitled to recovery of YouTube's profits..."

By my calculations, uTube is suing for -$5,000,000 or so.

[drew]

Trespass to chattels as opposed to trademark infringement? What's utube's argument for holding youtube liable for that, they're messing with their servers?

[Ashutosh]

There isn't a chance that this will make it to trial.