Faber
Bally Total Fitness Holding Corp. v. Faber
Opinion
Opinion
Pregerson, J.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Andrew S. Faber’s motion for summary judgment came before the Court for oral argument on November 23, 1998. After reviewing and considering the materials submitted by the parties and hearing oral argument, the Court GRANTS Faber’s motion for summary judgment.
BACKGROUND
Bally Total Fitness Holding Corp. (“Bally”) brings this action for trademark infringement, unfair competition, and dilution against Andrew S. Faber (“Faber”) in connection with Bally’s federally registered trademarks and service marks in the terms “Bally,” “Bally’s Total Fitness,” and “Bally Total Fitness,” including the name and distinctive styles of these marks. Bally is suing Faber based on his use of Bally’s marks in a web site he designed.
Faber calls his site “Bally sucks.” The web site is dedicated to complaints about Bally’s health club business. When the web site is accessed, the viewer is presented with Bally’s mark with the word “sucks” printed across it. Immediately under this, the web site states “Bally Total Fitness Complaints! Un-Authorized.”
Faber has several web sites in addition to the “Bally sucks” site. The domain in which Faber has…