Case Briefs
Case(s): Bally Total Fitness Holding Corp. v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal. 1998).
Bally Total Fitness Holding Corp. (“Bally”) filed suit 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 called 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.”
Bally moved for a temporary restraining order against Faber to force him to take down the website, but the court denied Bally’s motion in April 1998. In October 1998, Bally moved for summary judgment on its claims. The court again rejected the motion, and instead ordered Faber to bring a motion for summary judgment. Faber so moved, and the court granted the motion in December 1998.
The court found that Faber’s “Bally sucks” site promoted separate, distinct “goods” from Bally’s services and would not confuse reasonable consumers. Further, the court said that even if the two “goods” had been related, the trademark infringement balancing test from AMF Inc. v. Sleekcraft Boats, weighed heavily in favor of Faber.
Following the grant of summary judgment, Bally appealed to the Ninth Circuit Court of Appeals. However, in June 2000, the appeal was dismissed by way of a stipulation from the parties.