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Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

America Online Inc. v. Anonymous Publicly Traded Company

2001 Va. Lexis 38 (Va. Sup. Ct. 2001)

Declining to honor an order of an Indiana Superior Court, and reversing the decision of the court below, the Virginia Supreme Court held that a publicly-traded company may not, in support of a litigation commenced by that company anonymously in Indiana, issue a subpoena duces tecum to AOL in Virginia to obtain information concerning the identity of various individuals who posted allegedly defamatory remarks in Internet chat rooms.  The court held that the plaintiff's conclusory allegations of economic harm  were insufficient to permit it to proceed anonymously and accordingly declined to honor an order of the Indiana court in which the action was pending which permitted the plaintiff corporation to seek such information anonymously.

Plaintiff is a publicly-traded corporation which commenced an action in Indiana against various "John Doe" defendants arising out of their posting of information in Internet chat rooms.  In the suit, plaintiff claimed that the postings were both defamatory and violative of fiduciary duties the defendants owed plaintiff.  Because it feared "economic harm" from its pursuit of this action, plaintiff sought to proceed anonymously, and identified itself in its complaint as "Anonymous Publicly Traded Company". 

Plaintiff sought leave of the Indiana Superior Court in which the action was pending to serve a subpoena duces tecum on America Online ("AOL") in Virginia.  In this subpoena, plaintiff sought information as to the identity of the individuals who posted the information in question.  The Indiana court granted plaintiff's application, and issued an order permitting plaintiff to seek a subpoena from the Virginia courts, compelling AOL to produce the information described above.

AOL moved before a Virginia trial court to quash plaintiff's subpoena, on the ground that plaintiff could not proceed anonymously.   The trial court, according comity to the decision of the Indiana court, denied AOL's motion to quash and, after reviewing the postings in question, directed AOL to comply with the subpoena duces tecum.

On appeal, the Virginia [Appellate] Court reversed, holding that in the circumstances of the case at bar, plaintiff could not proceed anonymously.  The court recognized that in appropriate circumstances, a party can participate in a litigation anonymously.  "Upon showing of special circumstances, when a party's need for anonymity outweighs the public's interest in knowing the party's identity and outweighs the prejudice to the opposing party, a court may exercise its discretion to allow a party to proceed anonymously."  In making such a determination, it is appropriate for the court to consider the following factors:

[W]hether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously."

While anonymity can be used to protect a party from economic harm, "the level of retaliation in the form of economic harm [must] rise to an extraordinary level" before such a procedure can be used.

In the case at bar, plaintiff only advanced conclusory allegations that it would suffer unspecified economic harm if forced to reveal its identity.  The Virginia court held such allegations were insufficient, under Virginia law, to permit plaintiff to proceed anonymously in Virginia courts.

The Virginia Court also refused, on comity grounds, to honor the order of the Indiana court permitting plaintiff to proceed with such discovery.  Before according comity to the order of a sister State, the court must satisfy itself that "the procedural and substantive law applied by the foreign court was reasonably comparable to that of Virginia."  Because the Indiana court received no evidence in making its ruling, which was granted ex parte, and because it did not specify the reasons for its decision, the Virginia court held that it "cannot determine whether the procedural and substantive law applied by the Indiana Court was reasonably comparable to that of Virginia" and accordingly decline to honor the Indiana court's order on comity grounds.

The full text of the court's decision can be found on a web site maintained by America Online.

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