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TheStreet.com sues adult site

Making good on its threat, the financial site slaps WallStreetSex.com with a $5 million lawsuit claiming copyright infringement.

Making good on its threat, TheStreet.com has slapped WallStreetSex.com with a $5 million lawsuit claiming the adult site looks like the financial site's pornographic twin and is hurting its public image.

As previously reported, the little-known WallStreetSex.com launched in April and mixes real-time financial information with erotic chat rooms, sex videos, and a store that sells adult toys and lingerie.

But the adult site's logo, layout, and features closely resemble TheStreet.com, and the latter is not flattered. Although WallStreetSex.com stopped using TheStreet.com's stock ticker, the rest of the site has not been altered since it received a "cease and desist" letter in early September.

In a lawsuit filed Friday, the investment site is asking the U.S. District Court in New York to shut down WallStreetSex.com on grounds of copyright and trademark infringement. TheStreet.com wants both the creator of WallStreetSex.com and the site's Web host, Alphabit Media of San Francisco, held liable for in excess of $5 million in damages.

Preceding the adult-oriented financial site, TheStreet.com launched in November of 1996 and charges $6.95 to $9.95 per month for access to news and commentary about investing. TheStreet.com has 20,000 individual subscribers and is engaged in a $10 million advertising campaign to bolster recognition, according to the lawsuit.

Like many companies on the Net, TheStreet.com's distribution deals, ad campaigns, and site design all are a part of its quest to gain brand recognition in a market that is fiercely competitive.

TheStreet.com's lawsuit is not the first of its kind. Web publishers from Microsoft to Playboy Enterprises have battled with others over everything from confusing domain names to the metatag terms sites use to attract traffic via search engines.

TheStreet.com would not comment on the lawsuit but states in it: "WallStreetSex.com has not only misrepresented these distinctive symbols of TheStreet.com's goodwill, but has also mixed financial news services and links which are the same as or similar to those of [TheStreet.com] with its highly pornographic and offensive content.

"As a result of the pornographic content of the WallStreetSex.com Web site, defendant's use of these symbols of TheStreet.com's goodwill will dilute, tarnish, and blur those symbols and will injure [its] reputation," the filing continues.

TheStreet.com argues that WallStreetSex.com is infringing on its trademark by mimicking its "look and feel" and that the adult site lifted and altered its copyrighted graphics, such as its masthead, news index graphics, and a picture of the New York skyline. For example, WallStreetSex.com's "Blue Chip" section contains X-rated adult videos, not the market analysis contained in TheStreet.com.

Andrew Strauss, creator of WallStreetSex.com, acknowledges the site's resemblance to TheStreet.com, but says he has broken no laws and consumers would never confuse the two sites.

"We are going to fight it," he said today.

"The colors and fonts are generic," he added. "People know they are not going to TheStreet.Com. It's not like the [domain names] are the similar, like 'whitehouse.com' and 'whitehouse.gov,'" referring to the commercial adult site that the White House has been trying to put out of business because Net users could end up there by making the common mistake of using the wrong domain suffix.

Legal experts say that a Web site's source code and logos, for example, can be copyrighted. Moreover, the Supreme Court has ruled that a product or establishment's esthetic can be protected under trademark law, such as in the case of Two Pesos vs. Taco Cabana, in which a Mexican restaurant chain was sued for copying another business's look and feel.

In this case, the court will likely examine whether WallStreetSex.com violated copyright law by "copying expressive elements of the layout, text, designs you name it," said Andrew Bridges, a partner in the litigation and intellectual property practices at Wilson Sonsini Goodrich & Rosati.

"For trademark, the issue is whether they produced a product that has enough similarities that consumers might be confused or think there is a connection between the two sites," he added. "Another question is whether WallStreetsex.com has tarnished attributes that the TheStreet.com considers to be its brands and which are famous."

When it comes to holding the Web site's host liable for the infringements, the case gets more sticky. Bridges says flea market operators have been put on the hook by courts when they "had reason to know" counterfeit goods were being sold at their events.

However, the so-called Good Samaritan provision of the Communications Decency Act states that interactive computer services should not be "treated as the publisher or speaker" of content posted by a third party when the provider makes voluntary, good-faith measures to remove obscene, lewd, harassing, or otherwise objectionable material.

The Net access provider that hosts WallStreetSex.com was astounded TheStreet.com named him in the lawsuit.

"I'm just hosting the site. This is a classic case of bullying," said Eric Stone of Alphabit Media. "I'm caught in the middle, and it's costing me money. By wrongfully involving me, the ISP, they've opened themselves up to the possibility of a countersuit."