The Defendants ask that the Court transfer this case to the Western District of Washington so that it may be assigned to Judge Marsha Pechman, who has presided since May 2005 over a related case, the factual investigation of which triggered the present lawsuit by Plaintiff FLP. The related case is captioned Bach, et al. v. Forever Living Products U.S., Inc., et al., No. C05-0970P ("Bach"), in which the plaintiffs have sued FLP, its related companies, and Rex Maughn its owner, for allegedly misappropriating plaintiffs' trademarks and copyrights in the novel Jonathan Livingston Seagull. The lawyers in the Bach litigation, along with their clients Mr. Bach, the author of Jonathon Livingston Seagull, and Mr. Munson, the individual who took the photograph found on the cover of the book, are the Defendants in the case before this Court.
The Plaintiffs in Bach alleged that over the past 28 years, FLP has systematically misappropriated the name, title and copyrighted title character of Jonathan Livingston Seagull, and a copyrighted photo from the novel, and then used this intellectual property to create what FLP calls the "Jonathan Brand." In doing so, the Bach Plaintiffs allege that FLP has copied a number of passages from the book and repeatedly used the book's distinctive trade dress of a white silhouette of a seagull against a blue background to adorn its "Jonathan Brand." In Bach, the Plaintiffs assert that this is in violation of their rights under the Copyright Act, 17 U.S.C. § 101 et seq. and Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by creating and exploiting the "Jonathon Brand."
As alleged in the Bach case, FLP used its "Jonathan Brand" to attract and retain millions of distributors and to motivate them to purchase and sell FLP's products. The Bach Plaintiffs' counsel contacted, and continue to contact, distributors as part of their pretrial investigation. The factual investigation by the Bach Plaintiffs' counsel, now Defendants to the present action, prompted this suit by FLP. In conducting said investigation, Plaintiffs' counsel made Google searches of FLP to review articles about and references to the company. One of the websites that provided a hit for FLP is a website called www.scam.com. Individuals posting on this website had made comments stating that FLP was one of the Multi-Level Marketing ("MLM") companies to avoid. In an attempt to locate and talk to existing and former distributors for FLP, the Bach Plaintiffs' lawyers posted the following inquiry on the website: Hello, I am one of the attorneys representing the Plaintiffs in a lawsuit against the multi-level marketing company Forever Living Products. The suit is in federal court in Seattle and is scheduled for trial later this year. We would like to talk with existing or former independent distributors of Forever Living Products who are willing to talk about their experiences with the company. If you are an existing or former independent distributor of Forever Living Products and would be willing to talk to us, or if you know someone who is, please contact me at (206)382-1168 (work), (206) 325-1843 (evening) or [email protected]. Thank you, Matthew Geyman.
This website posting forms the entire basis of the lawsuit removed to this Court. The Plaintiff argues that this particular inquiry posted by the Defendants in our case, the Bach Plaintiffs' counsel, constitutes both defamation and tortious interference with business relationships. The Plaintiff, without ever quoting the posting they take issue with, filed the present action claiming that the Defendants' internet posting was both false and defamatory.*fn1