Businesses are free to set up their contractual arrangements, and to distribute their products and services, in any way they see fit, short of violating the antitrust laws. They may use marketing insight, financial resources and, of course, superior products and services ? not to mention pricing ? to protect their business models from lawful competition. What they may not use to compete, however, is the courts. And when they threaten to do so, and are called to account for themselves, it is hardly unreasonable to insist that after two years of litigation,
motions and discovery, they have some proof of the legal claims they have threatened. This, Australian Gold, Inc. (?AG?) ? which precipitated this litigation by its repeated threats to put S&L out of business via litigation ? failed to do.
Plaintiffs maintain that AG's motion brings exactly the same barebones claims it made in its amended counterclaim to the table in its motion for summary judgment, and, factually, nothing more. AG asks the Court to make a unique use of trademark law. It proposes that the purpose of the Lanham Act is not protecting consumers from confusion, but rather stifling truthful advertising that enables a competitor to provide price discounts to those consumers,
merely because AG can invent some implausible theories about how some hypothetical consumer somewhere sometime might somehow become confused. The time for such speculation, however, is not upon a motion for summary judgment ? much less one?s own.
As to copyright, defendant is not alleging that S&L Vitamins has duplicated its website. Rather, defendant alleges that the mere fact that S&L is displaying pictures and descriptions of the products it lawfully owns
and sells constitutes infringement because defendant owns copyrights in some of these materials. As the Copyright Act makes clear, this is not, to say the least, the purpose of