Court flushes septic company’s request for injunction in copyright suit

Biosafe-One, Inc. v. Hawks, — F.Supp.2d —-, 2007 WL 4212411 (S.D.N.Y. November 29, 2007)

Back in 2005, industrial-strength septic system cleaning products company Bio-Safe One, Inc., needed a “jumbo mortgage,” so its president, one Jorgensen, did a web search for brokers and located Messrs. Hawks and Skierkowski, who helped Bio-Safe One with its mortgage needs. Although that transaction was over in June 2005, Jorgensen believed that Hawks and Skierkowski used information he had provided them during the mortgage transaction to start up a competing septic business.

Jorgensen and Bio-Safe One filed a lawsuit against Hawks and Skierkowski in New York federal court alleging, among other things, copyright infringement. They claimed that the competing enterprise illegally copied elements Bio-Safe One’s website.

The plaintiffs sought a preliminary injunction to prevent Hawks and Skierkowski from continuing what they believed to be copyright infringement. The court denied the motion for preliminary injunction.

It held that although the plaintiffs had established ownership of the copyright in the Bio-Safe One website by presenting a registration certificate for it, they failed to show that the defendants had engaged in illegal copying of any original elements of the site.

Applying the “ordinary observer test,” the court held that a side-by-side comparison simply would not prompt a person to regard the aesthetic appeal of the websites as the same. Rather, it was difficult to detect any similarities. The arrangement, photographs, and graphics on the websites were “decidedly dissimilar.” And the textual elements that were similar on the websites, including minor phrasing and terminology, were so far spaced throughout that they were not noticeable.

Accordingly, the court held that the plaintiffs would not likely succeed on their claim of copyright infringement.


  1. It’s amazing how the Honorable Judge Chin saw right through what appears to be the plaintiff’s frivolous accusations concocted to destroy the competition – completely unsubstantiated and frankly, a waste of the courts time. After reviewing both websites involved, I agree with the judge’s finding that the plaintiff does not hold sole claim to nondistintive common text and phrasing found on both sites, the website do appear to be, in fact, distinctively different. The DMCA enjoinment is suitable and agreed, may become a useful tool. Having the privilege of acquainting with Judge Chin, I can attest that he is extremely honorable and just, and does not appear to tolerate vindictive perjury often found in frivolous cases as shown in “Securities and Exchange Commission v. Teresa V. Fernandez” where Judge Chin recently sentenced Mrs. Fernandez to 41 months in prison for abusing the system. Interpretation aside, verifiably false statements, or perjury, carry up to a 5 year sentence per count and if the defense can overwhelmingly prove sworn statements made by the plaintiff to be perjurous, perhaps the court will set yet another precedent useful as a detriment to attempt to usurp the system.

  2. I'm a tech attorney in Maryland and have come across something on which I haven't seen much information or discussion.

    The issue is one involving a company whose primary source of "leads" is through SEO generated traffic to their website. Over a period of 4 years, this company was able to obtain a Google PageRank of 8, which placed them in the top three search results for common search terms used by potential purchasers.

    In a 2 week period, their PageRank dropped down to zero, which placed them completely out of the relevant search results causing a significant drop in sales.

    At the same time the PageRank dropped, significant portions of text from the company's web site started to appear copied, verbatim, on the web sites of several competitors.

    Even after the company was able to convince the competitors to take down the duplicated content, their PageRank was still in the toilet. Apparently, Google's index had credited the competitors web site as the originator of the infringing material and thus penalized the company's web site as a duplicator. As a result, the company's web site PageRank was still zero despite notifying Google of what had occurred (a re-submit request with copies of the takedown notices).

    I was wondering if you have come across a reported case involving a damages claim (e.g. unfair competition) for acts (e.g. content-copying) causing a drop in a web site's PageRank (or similar ranking system) resulting in a significant drop in search results leading to lost profits.

    To be sure, proving a nexus between the duplicated content and drop in PageRank would be difficult, especially given the secrecy of Google's PageRank algothrim.

    However, assuming arguendo that such a nexus can be reasonably made, do you think Section 301 would preclude a state court action based on non-copyright claims? Are there any lessons to be learned from Chicago Board of Options Exchange v. ISE (No. 06 C 6852, N.D. Ill.) on how to "artfully" craft claims so as not to implicate copyright preemption?

  3. Thanks for your comment. As I recall there were some allegations of damages against Google for drop in page rank in the Kinderstart case [see here:… . But that was a claim against Google, and not for damages arising from infringement.

    The preemption question is a tough one. What's novel is the nature of the damages, i.e., loss attributed to the loss in rank. But it seems that the liability question would be pretty squarely within the Copyright Act. The web page is a type of work under copyright and the copying on another site is a violation of one of the Section 106 rights. Is there an extra element that might support something like unjust enrichment or unfair competition?

    But then again those types of claims are commonly preempted. And what's more an unfair competition claim might get "Dastared". Interesting questions.

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