Lawyer, former firm fight over gripe site

Thursday, November 12, 2009

Sue Epstein

STAR-LEDGER STAFF

BY SUE EPSTEIN

A Middlesex County law firm is trying to shut down a disgruntled ex-employee's gripe site, calling the gossip and name-calling a cyber assault of "toxic fire" on its reputation.

Edward Heyburn started his website, "Levinson Axelrod Sucks," in late September, using the domain address levinsonaxelrod.net. The website his former employer, Levinson Axelrod LLC in Edison, uses to promote its business is levinsonaxelrod.com.

The dispute has landed in federal court, with the firm suing Heyburn, alleging cybersquatting and trademark infringement.

The case has become the latest test of federal statutes designed to protect consumers and companies from people who try to ruin their reputations and steal their business.

While it is not unusual for disgruntled employees to set up gripe sites against a former employer, people who follow the issue say it is unusual for it to involve a lawyer and his former law firm.

Cybersquatting is the practice of using someone else's domain name and trademark to divert traffic from the owner's site for commercial purposes, said attorney Brian Hall, whose Michigan firm, Traverse Legal, specializes in internet law cases.

Jonathan Bick, an adjunct professor at Rutgers Law School in Newark who teaches Internet law, said lack of commercial intent is a defense against cybersquatting and trademark infringement.

"If he isn't earning any money, just posting his opinion, then it will be more difficult for the law firm to show this was trademark infringement," Bick said.

"Cybersquatting cases are very common now," Hall said. "Domain names are registered on a first come, first served basis unless it incorporates the trade name of another entity."

Heyburn said his intention isn't to make money off his site -- only to air his grievances. "I thought I could do something to torment these people," he said.

Most of the blog entries on Heyburn's site consist of his own opinions and complaints about the firm and its partners.

Heyburn, who lives in Robbinsville, Mercer County, worked for Levinson Axelrod from 1998 until he was fired in April 2004. In its complaint, the law firm said Heyburn was fired when the partners learned he planned to leave and was soliciting clients from the firm to leave with him.

After he left, Heyburn sued the firm over a variety of issues, including vacation pay, return of personal property and a $50,000 referral fee he said he was due for sending a friend to the firm.

"We were in court for almost five years," Heyburn said.

He said he launched his website in September because "(the firm's partners) have such an elitist attitude."

"I thought this was a very nice way to pull them out of the clouds," Heyburn said.

Heyburn said he changed the name of his website to "Levinson Axelrod Really Sucks" after the law firm sued him and bought the domain name so he has a place to move the site if the court kicks him off the current address.

Levinson Axelrod recently bought both the .net and .com versions of LevinsonAxelrodsucks, Heyburn said.

The complaint against Heyburn also charges him with violating state laws that protect attorney-client relationships, and rules of conduct regulating attorneys in New Jersey.

"In order to prevail, as the owner of a trademark, you have to show using the domain name in question is diverting traffic from the trademarked party" to the untrademarked party, said Hall, the Michigan attorney.

The ultimate test in federal court, he said, is the "likelihood of confusion," -- that someone going to the untrademarked site could not tell the difference between the two, thereby "infringing on or diluting" the harmed party's trademark.

"The decision to pursue a legal remedy is based on the unlawful hijacking of the name -- Levinson Axelrod. This site attempts to damage the firm's reputation for his financial gain," said Thomas Cafferty, the attorney representing Levinson Axelrod.

Levinson Axelrod claims that when someone types the firm's name into a search engine, Heyburn's site is the first to pop up, thereby diverting potential clients away from its site.

Hall said there have been a number of federal court decisions involving allegations of cybersquatting and whether sites like Heyburn's qualify as cybersquatting.

"The decisions are not entirely consistent and all are fact dependent," he said. "It depends on the site's content."