Full opinion text
MEMORANDUM AND ORDER YRATIL, District Judge. Sunlight Saunas, Inc. brings suit against Sundance Sauna, Inc. and Brighton Sauna, Inc., alleging tortious interference with contract, tortious interference with prospective business relationship, trademark infringement, false advertising, false description, cybersquatting, injury to business reputation, unfair competition, business defamation, civil conspiracy, antitrust activity and other tortious or deceptive trade practices arising under the Lanham Act, 15 U.S.C. § 1051 et seq., the Sherman Act, 15 U.S.C. § 1 et seq., and the state laws of California and Kansas. This matter comes before the Court on Defendants’ Motion For Summary Judgment (Doc. # 188) and Defendant Brighton’s Motion For Summary Judgment (Doc. # 194), both filed January 20, 2006. For reasons set forth below, the Court finds that defendants’ joint motion should be sustained in part and that Brighton’s motion should be overruled. Legal Standards Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A “genuine” factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505. The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the non-moving party to demonstrate that genuine issues remain for trial “as to those dispos-itive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241. “[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment.” Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party’s evidence is merely color-able or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. “In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something ■will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. . Factual Background The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff, the non-movant. The Parties In January of 2000, Jason Jeffers started Sunlight Saunas. In September of 2001, he incorporated Sunlight and relocated its principal place of business from St. Louis, Missouri to Santa Cruz, California. While in California, Jeffers met Matt Thomas, a sauna salesman, and they decided to work together at Sunlight. Thomas resigned in June of 2002, and Jeffers brought in as investors his sister Connie and her fiancé Aaron Zack. Beginning in June of 2002, Zack was Sunlight’s chief executive officer and Jeffers was chief marketing officer. In July of 2002, Sunlight moved its principal place of business to Cincinnati, Ohio. In March of 2004, it relocated to Lenexa, Kansas. Connie, later Connie Zack, has been director of sales since 2003. Jeffers left Sunlight on January 10, 2005. When Thomas left Sunlight in June of 2002, he incorporated Sundance Sauna, Inc. in California. Its principal of business is in San Diego. Sundance hired Cobalt Multimedia, Inc., a Washington corporation owned by Preston Hall, to develop, host and maintain a website (www.sundan-cesauna. com) to sell saunas over the internet. Sundance has employed Thomas, Dan Murdock, April Laughlin, Dave Cole and Akara Moser. Hall is a shareholder of Sundance. Thomas has sole operational and supervisory authority with respect to Sundance advertising, marketing, promotion and sales. From May through October of 2004, Thomas sought investors and business partners, including manufacturers, to start up a second company, Brighton Saunas, Inc. Brighton incorporated in Nevada on July 1, 2004, and maintains its principal place of business in La Jolla, California. From July of 2004 to February of 2005, Brighton developed saunas and sauna products and conducted product testing. Brighton started operations in February or March of 2005, and its website became active in February of 2005. Before February of 2005, owners and employees of Brighton used their e-mail addresses and accounts with Sundance and Cobalt Multimedia to conduct business for Brighton. Since its incorporation, however, Brighton has been listed in the telephone directory and has had an answering service. Thomas is president of Brighton, and Darcie Thomas is secretary. Brighton has employed Thomas, Murdock, Laughlin and Moser — all of whom work for Sun-dance as well — and Ken Lund and Darcie Thomas. When Brighton started, it and Sundance were “companies in the same office” with “basically the same employees.” Laughlin Depo at 30:8-19, Exhibit 35 to Plaintiffs Memorandum In Opposition (Doc. #200). As at Sundance, Thomas has sole operational and supervisory authority with respect to Brighton advertising, marketing, promotion and sales. Hall is a shareholder of Brighton. Brighton hired his company, Cobalt Multimedia, to develop, host and maintain its Internet website (www.brightonsauna. com), and Hall registered Brighton’s domain name in April of 2004. Sunlight Products Sunlight sells personal saunas and other products over the Internet and through trade shows, showrooms and distributors throughout the United States and abroad. The sauna business is highly competitive and seasonal, and its products compete with those of Sundance and Brighton. Consumers base their sauna-purchasing decisions on price, appearance, product safety, quality of construction, heater efficiency and effectiveness and existence of a warranty. Sunlight has affixed the mark “SUNLIGHT SAUNAS” to its saunas and other products. From 2000 through February of 2001, Sunlight sold Healthmate saunas manufactured by PLH Products. In August of 2000, Jeffers launched a website (www.sunlightsaunas. com) to promote Healthmate products. Jeffers relied on the internet for 95 to 98 per cent of sales. In March of 2001, Jeffers quit selling Healthmate saunas because website sales encroached on the territories of other Healthmate dealers and he did not want to take down his website.- From March through August of 2001, Sunlight distributed saunas for Saunas by Airwall, Inc. Around August of 2001, Sunlight began selling saunas manufactured by Soft Heat, Inc. Soft Heat also manufactures saunas for Sundance and for a time, plaintiff, Sun-dance and Sauna by Airwall all sold saunas manufactured by Soft Heat. Sunlight stopped promoting Soft Heat saunas on its website in July of 2003, but it continued to sell remaining inventory for about six months. Jeffers testified that Sunlight changed manufacturers for the following reasons: we were simply not receiving the customer service that we were requesting from the factory ... and ... it was becoming very, very hard for us to compete with Airwall and Sundance because essentially we were all selling the same product over the Internet, just minor— minor changes and so it was — it really became a bloodbath .... And so in order for us to, you know, increase our revenues and increase our .profit, it just made more business sense for us to separate ourselves from Soft Heat and go with another factory so that we could be distinguishable. Jeffers Depo at 29:9-23, Defendants’ Memorandum (Doc. # 193). Zack agreed that Sunlight changed for numerous reasons: “Number one, pricing; number two, the quality of the product; three, ethical decisions that we didn’t feel were in line with our core of values of Sunlight Saunas.” A. Zack 6/29/05 Depo at 18:1-9, Exhibit 1 to Plaintiff’s Memorandum In Opposition (Doc. # 200). In July of 2003, Sunlight began selling saunas manufactured by American Infrared Sauna, Inc. (“AIS”). Sunlight sold AIS saunas under two names: the Ra Class, which contains cedar wood, and the Phoenix Class, which contains basswood. Sunlight offered a manufacturer’s warranty, but no warranty of its own. To launch the AIS saunas, Sunlight created a brochure and printed 10,000 copies. The brochures contained the following statements: • Inside the Ra’s stylish cabin, you’ll bask in the pure radiant heat of our patented Quantum Wave Technology™ far-infrared heaters, for a penetrating, detoxifying sweat unlike any other. • Every Ra-Class sauna embraces the leadership of Sunlight innovations such as Quantum Wave Technology™ far-infrared heaters with remote control activation and our veneer-free cabinetry with solid wood, non-toxic framework. • Every electrical wire is coated with steel for EMF radiation shielding and fire-hazard protection. • We would not settle until 100% of the exposed wood was made from pure bass, the wood of choice for beekeepers because of its tannin-free, hypoallergenic properties. • We also did away with the plywood which omits [sic] toxic formaldehyde. • We called it Quantum Wave Technology. Then we patented it. • Some manufacturers use thin veneer sheets instead of the good stuff. At Sunlight, we employ beautiful tongue and groove wood to the entire sauna, including the ceiling, floor, back wall and benches. Jeffers # 10 to Defendants’ Memorandum (Doc. # 193). Sunlight’s website contained a portable document format (PDF) version of the brochure and when customers requested a brochure, it e-mailed them a link to the web page. At some point, the website . contained a chart which compared Sunlight saunas with those of other companies. The chart stated that the cabinetry in Sunlight products had “thick tongue and groove” while the cabinetry of other companies had “thin, toxic veneer sheets.” The website also stated that Sunlight heaters were “pure ceramic.” Sunlight saunas were not listed by Underwriters Laboratory (“UL”), the Canadian Standards Association (“CSA”) or Electrical Tests Labs (“ETL”), and Sunlight did not advertise that its products carried such certifications. AIS, however, completed a “Test And Inspection Summary” which stated that “according to testing and inspection ... the [Phoenix Series saunas] are in compliance with the 240V electrical compatibility requirements.” Exhibit 15 to Plaintiff’s Memorandum In Opposition (Doc. # 200). The Sunlight website included a statement that it was “very proud to be an Infrared Sauna manufacturer” and that it offered sauna kits of a “distinctive look and design with cutting edge therapeutic technologies that provide numerous holistic health benefits.” With regard to the claim that Sunlight was a sauna “manufacturer,” Zack explained as follows: A manufacturer can mean different things. Different organizations will consider us a manufacturer because we design our own saunas and we private label. So there are aspects to Sunlight Saunas that would characterize us as a manufacturer, although we never claimed to build our own saunas. A. Zack 6/29/05 Depo at 65:13-20. Jeffers testified that Sunlight was not a manufacturer and that if its website claimed that it was a manufacturer, that statement would be incorrect. Jeffers Depo at 209:11 and 211:9. On the Sauna by Airwall website, in August or September of 2004, Jeffers saw an image of what appeared to be a Sunlight heater cut in half, and the image revealed that the heater had an aluminum back plate. Sunlight had been unaware of the aluminum back plate and Jeffers rewrote part of the Sunlight website to discuss the aluminum component of the heaters and address claims that they caused sauna users to be infiltrated with toxic levels of aluminum. Sunlight employed Chris Zinnecker as a customer service agent to resolve warranty claims. Zinnecker determined that wires to the AIS sauna stereos and from the keypad to the power supply were not fully housed in steel conduit and could short out. In August or September of 2004, Zinnecker also received an e-mail from a customer who stated that he believed plywood had been used in his sauna. In October or November of 2004, Sunlight also learned that the saunas contained plywood or veneer. Sunlight subsequently changed the statements about veneer on its website and in its brochures. Zack testified that if customers reported hearing negative things about Sunlight, employees should inform Connie Zack. According to Zack, Sunlight heard that Sauna by Airwall and Sundance had made negative comments. As to negative statements by other competitors, Zack stated, I’m sure that it has happened before. Off the top of my mind I can’t think of it. We have a pretty good reputation with everyone else in the industry. Most of the comments came from Soft Heat, I guess would be another one, Sauna by Airwall, and Sundance Brighton. A. Zack 8/25/05 Depo at 119: 25 to 120:8. AIS marketed a sauna which it manufactured under its own trade name, Cedrus Saunas. Cedrus saunas differ from Sunlight saunas in window shape, wood type, availability of basswood on certain portions of the sauna, design plate and location of the compact disc player. Competition From Sundance And Brighton Beginning in July of 2003, if not earlier, Sundance and Brighton engaged in a series of communications which eventually gave rise to this lawsuit. On July 17, 2003, Hall sent Thomas an e-mail which included Sunlight pricing and stated that “[t]hey are beating us in features and price on these things.” Exhibit 81 to Plaintiffs Memorandum In Opposition (Doc. # 200). Six months later, on January 23, 2004, Thomas sent Hall an e-mail which stated in part as follows: We ended up getting that sale that called you Preston.... It’s not a great deal but we did take it from Sunlight at THEIR established price, which was way below ours, almost $500-(or $300 — if we threw in shipping)---- Isn’t it going to be fun to email Sunlight, “Now that you have been fired from Soft Heat, as was inevitable, the copyrighted pictures you stole will do you no good. Better luck next time with your marketing plan. We will be in Sunny Santa Cruz relaxing or counting our money if you ever need to get in touch. Also, FUUUUUUUUUUUUUUUUUUUUU UUUUUUUUUUUUUUCCCCCCCCC ccccccccccccccccccccccccc CKKKKKKKKKKKKKKKKKKKKKK KKKK KKKKKKKKKKKKK KKKK YOOOOOOOOOOOOOOOOOO OOOOOOOOOOOOOOOUUUUUUUUU UUUUUUUUUUUUUUUUUUUUUU uuuuuuuuuuuuuuuuuuuuuu UUUUUUUUU.” And if they don’t get fired ... I’ll just say it’s better for them that they get fired because I will devote unbelievable resources to dissolve them. Alright then, back to work. Exhibit 67 to Plaintiffs Memorandum In Opposition (Doc. # 200). On February 18, 2004, Thomas sent email to Hall, Cole (a Sundance employee) and Laughlin (an employee of both Sun-dance and Brighton) which stated as follows: Let’s start referring to the Sunlight “As long as you own it” warranty as the “As long as their manufacturer stays in business” warranty. This will be a fun way to lead customers into the pitch about how Sunlight has been all over the country the last few years, going through 4 different manufacturers, without sounding negative. Exhibit 36 to Plaintiffs Memorandum In Opposition (Doc. #200). The following day, on February 19, 2004, Laughlin sent an e-mail to dave@sundance-sauna. com (presumably fellow Sundance employee Dave Cole) which stated as follows: American Infrared Sauna Company, Inc is marketing under the name Cedras Sauna. Bookmark this site should use [sic] need to use it in a sales situation. Sunlight is apparently feeling the sting of our pitch and not only trying to retaliate by bad mouthing us but by also claiming they changed manufacturers because they weren’t happy and decided they were going to start manufacturing themselves. What a joke. If it comes down to it, send people this link with a little note stating, “Look familiar?” Or, you can also ask them why their factory address has “upstairs” (where Aaron lives)' and “downstairs” (where Jason lives) listed. I would use this one very selectively if you know what I mean Sunlight has thrown all their cards on the table and they definitely have impacted the industry with their marketing. We on the other hand have held . almost all our cards. That is why we are having such great success in the sales battles with them. They have no where to go. Now they know the one card we’ve played. Now they are trying to bluff. We will simply play another card. We’ve got a whole deck to go and they are hanging on to the suit they played. I want to take our responses to a new sophisticated level that doesn’t warn people to stay away from them, but makes fun of them with facts to back it up. They will continue to bad mouth us which will only make them look bad. Remember to ask customers “Don’t you think it’s sad when a company has to bad mouth another one to try and sell their product? You would think they would have some confidence in what they are selling but apparently they don’t.” Exhibit 79 to Plaintiff’s Memorandum In Opposition (Doc. # 200). On May 12, 2004, Sunlight sent a “secret shopper” — a private investigator who was posing as a potential customer — to communicate with defendants. Sunlight apparently videotaped the interaction and later had the conversation transcribed. The sales representative, who turned out to be Thomas, discussed a new product with the secret shopper, as follows: The other thing that you may be interested in is we’ve got some new product that will be coming out in about 6 months. We do have some demos available now, but that will be coming out in about 6 months that might be real appealing to your clientele. It’s going to have some pretty radically different features and really be geared towards, you know, that type of clientele, so what we could do, you know, if you wanted to get going on the product is we could just set it up where — figure something out, you know. Exhibit 24 to Plaintiff’s Memorandum In Opposition (Doc. # 200) at 11:7-16. On July 9, 2004, Don Metcalfe, general manager of Sauna by Airwall, wrote Jef-fers about the comparison chart which Sunlight had posted on its website. Met-calfe stated that the chart was incorrect and included “blatant slanderous supposed truths” to “detour” consumers from purchasing a sauna from Sauna By Airwall. Exhibit 5 to Plaintiff’s Memorandum In Opposition (Doc. #200). Metcalfe requested that Sunlight “cease and desist in these false statements” and stated that it would take appropriate legal action if necessary. Id. On July 16, 2004, Jeffers responded as follows: I must admit that you really have a lot of gall to write me this letter. After all the down and dirty slanderous remarks that your sales people have made about Sunlight Saunas over the years — the hypocrisy truly runneth over. Well Don, the days of Jason Lincoln Jeffers taking slanderous lies lying down, from you or anyone else in this industry, are over. I’ve had it. You and your unethical staff have driven me to the boiling point.... Guess what Don? Despite your sales staffs futile attempts, Sunlight Saunas did not go out of business.... So you may want to go relay some of this information to your sales people. Because your' slander is not hurting us anymore. In fact, it’s actually helping us. Why? Because it makes your company look assinine. After all, how can a company be going out of business when it was just ranked one of the most successful new companies in the country? Consider this your FINAL WARNING: Each and every one of these slanderous statements (and dozens more) have been recorded and documented. We have customers that have agreed to sign affidavits. In fact, we have an entire arsenal of customer confessed slander originating from the foul mouths [of] your sales reps over the years at our disposal. And as more slanderous comments continue (regarding our heaters, cabinetry, whatever ...), they will also be recorded and documented. So, ENOUGH OF THE IDLE THREATS. If you really want to go to court, then, please, I beg you — nothing would give me more pleasure. Id. On June 8, 2004, Soft. Heat sent its dealers an e-mail which contained a “Competitive Paper on Sunlight.” The e-mail stated as follows: In our ongoing effort to provide you with powerful marketing material, ■ Soft Heat presents the following comparisons to Sunlight/American Sauna products. I feel the differences are significant enough to sway a potential buyer. Exhibit 40 to Plaintiff’s Memorandum In Opposition (Doc. # 200). On July 30, 2004, Soft Heat sent Sun-dance and other competitors of Sunlight a follow-up e-mail which stated, I’ve already sent you this competitive analysis (Sunlight vs. Soft Heat). But now (thanks to Randy Gomm) I have added the magnetic field comparisons I sent you awhile ago so that you have all the information in one place. I hope this helps you win deals. If any of you are still loosing [sic] deals to Sun Light, please share your experience with me so we can develop a counter-attach [sic]. Exhibit 41 to Plaintiffs Memorandum In Opposition (Doc. # 200). On August 24, 2004, Thomas sent the following e-mail message to don@sauna-byairwall. com (presumably Don Metcalfe): Hi Don- Now that we know Sunlight has not only published lies about our products on their website but also blatantly published lies about their product in order to increase sales, I’m wondering if it’s in our combined interest to force them to remove the defaming material. I am certain our combined losses due to this defamation are not only extreme, but very provable. I think it’s worth our time pursuing. I thought I would communicate with you first and then talk to Soft Heat, and potentially other competitors about the matter. I am open to your thoughts on this. Ultimately, I would like to see an improvement in our bottom line so if you think there is a better way to go about his, let me know. I feel we can accomplish much more on this issue by combining our resources. I don’t mind competition as long as they play fair. Sunlight always has and always will play by their own rules and they know no boundaries. Exhibit 33 to Plaintiffs Memorandum In Opposition (Doc. #200). On August 26, 2004, Espineira (president of Hufcor, the parent company of Sauna by Airwall) wrote to Thomas as follows: My opinion: Don [Metcalfe] has already sent them a letter that got us no-where [sic] other than a call on our bluff to institute legal action. Hufcor’s position is that we cannot afford another useless and costly legal battle. This will get us no-where [sic]. Continue to sell honestly and take the high road. Id. In the fall of 2004, adverse information about Sunlight products appeared on the website of Sauna by Airwall. The website included the following statements: • Sunlight Saunas wood saunas are currently manufactured by American Infrared Sauna Corporation. American Infrared Sauna Corporation also markets their sauna directly under the name Cedras Saunas. • American Infrared Sauna Corp. and Sunlight Sauna both use the same heaters, yet American Sauna (the manufacturer of Sunlight Sauna) fails to make the Quantum [sic] Wave claim? Wonder Why? • American Infrared Sauna has been manufacturing since 2003. How good can a lifetime warranty be if you have only been manufacturing for one year? Sunlight Saunas have changed manufacturers three times in four years! • Aluminum is a metal known to have catastrophic effects on the human body. High exposure has been linked to serious illnesses including osteoporosis, extreme nervousness, anemia, [unreadable text], decreased liver and kidney function and memory loss. Exhibit 10 to Plaintiffs Memorandum In Opposition (Doc. # 200). On October 4, 2004, Hall obtained an email account for “saunasexposed@yahoo. com” by using the name “Katz Global.” Hall also obtained an e-mail account for “saunasconsumer@yahoo. com” by using the name “Zentek International.” On October 6, 2004, Hall sent an e-mail to “David Cole; matt; Akara; April; Lewis” (employees of Sundance and Brighton) which stated, “Take a look.... Start referring people to the site. It is ready for the most part. Send me comments. Changes.” Exhibit 53 to Plaintiffs Memorandum In Opposition (Doe. #200). The e-mail contained a link to a website at “www.sun-lightsaunas- exposed.com.” On October 7, 2004, Thomas sent the following e-mail to Cobalt Multimedia and Murdock (an employee of Sundance and Brighton): “For your guys info as we release this next phase. I did attempt other routes and this has presented itself as the most viable and effective procedure for dealing with these assholes.” Exhibit 33 to Plaintiffs Memorandum In Opposition (Doc. # 200). That same day, the website at “www.sunlight-saunas- exposed.com” went live. Hall had developed the website with Thomas, and he understood that it was “an educational tool to reeducate consumers who had been lied to on the Sunlight Saunas website about products and different companies.” Hall Depo at 212:5-9, Exhibit 13 to Plaintiffs Memorandum In Opposition (Doc. # 200). When Hall registered the website with Go Daddy, Inc., he used a fictitious name (Rebecca Ellington). Hall registered Brighton as the contact information, but testified that this was “purely accidental” because Go Daddy carried over default information from a previous unrelated transaction. Hall Depo at 44:7-45:2. The Hall/Thomas website included the following statements: Sunlight Saunas Lies Lie # 1: True Ceramic Heaters Sunlight Saunas claim that their saunas offer ceramic infrared heaters. The Truth Sunlight Sauna’s heaters are made from steel rods and aluminum casing with pink paint. Aluminum can be incredibly toxic inside the body. Lie # 2: Veneer Free Construction Sunlight Saunas would have you believe that each of their saunas were 100% veneer free[.] The Truth Veneer roof, Veneer “Fresh Air Vent” (doesn’t this contradict their entire sales pitch about veneer free?). Not so- state-of-the-art antenna. Lie # 3: No Safety Warnings Sunlight Saunas has no safety compliance. The Truth Ever wonder why they aren’t UL, CSA, or ETL certified? Ask your home Insurance company about products with heaters operating at several hundred degrees that don’t meet these standards. Infrared sauna Heaters operate between 300 and 600 degrees [FJahrenheit. Can you imagine buying an oven that has not been certified to the minimum standards the USA has established for safety? Now imagine putting those oven heating elements inches from kiln dried wood without any safety certification. Sounds crazy but Sunlight as usual takes the shortcut to profit. Lie # 4: Lifetime Warranty Sunlight Saunas offers a lifetime Warranty^] The Truth Sunlight Saunas would have you believe they are the manufacturer, yet another lie. Do these models look familiar? Sunlight Saunas have changed manufacturers three times in four years. American Infrared Sauna has only been manufacturing since 2003. How can they promise a lifetime? Lie # 5 Sunlight Saunas presents a list of “exclusive” features. Claiming to be unique. The Troth Sunlight Saunas doesn’t even manufacture their own saunas. Other company’s [sic] offer the same products without the fraudulent claims. Hall Depo Exh. 22, Defendants’ Memorandum, (Doc. # 193). The Hall/Thomas website originally included a link to a website which advertised saunas made or sold by competitors of Sunlight. Thomas directed Hall to such information, and on October 11, 2004, he did so. The website included a statement that “[questions or [comments about this site can be sent to my email address at: Sunlightsaunas@ya-hoo.com.” Id. Soft Heat provided the images on the website. On October 7, 2004, Moser (an employee of Sundance and Brighton) sent the following e-mail to fellow employees Thomas, Murdock and Laughlin, along with Hall and Cobalt Multimedia: This is our free account I will be emailing the Sunlight Saunas exposed site from to our competitors. User: Sunlightsaunas@yahoo.com Password: mullethead Exhibit 12 to Sunlight’s Memorandum In Opposition (Doc. # 200). On October 8, 2004, somebody sent an e-mail to various competitors of Sunlight (amer-ec@earthlink.net, ezesauna@swbell.net, frank@miraeleheat saunas.com, info@sau-nabyairwall. com, info@saunacore.net, info@saunaimage.com, info@sundance-sauna. com, info@softheatinc. com, sales@almostheaven. net, sales@qcas-pas.com, sales@saunagen.com and support@healthmate sauna.com). The e-mail purported to be from “Sunlight Saunas,” and stated “Here is a link you should check out.” It also provided a link to the Hall/Thomas website. That same day, Moser sent Hall an e-mail which stated, “I sent the link to about 14 of our competitors. We’ll see if we get any replies.” Exhibit 68 to Sunlight’s Memorandum In Opposition (Doc. # 200). On October 11, 2004, Murdock (an employee' of Sunlight and Brighton) sent an email to fellow employee Moser, as well as Hall and Lewis Anderson (an employee of Cobalt Multimedia). The e-mail referred to a statement on the Hall/Thomas website which said “Here’s what happens when an internet company lies to its customers and does fraudulent business.” See Exhibit 9 to Sunlight’s Memorandum In Opposition (Doc. # 200) at SD 2460. Murdock stated that the website language was “a B-A-D idea” and asked Cobalt Multimedia to remove it. See Exhibit 73 to Sunlight’s Memorandum In Opposition (Doc. # 200). Hall replied, “This is removed now. Please give more feedback on the site if you see anything. Here are the stats on it. 135 page requests so far. This includes us though ... http://www.sunlight saunas-exposed.com/statshide/.” Id. On October 21, 2004, Brad Campbell of Euro Saunas sent the following e-mail to Sunlightsaunas@yahoo.com: Hello. I was just referred to your Sunlightsau-nas-exposed.com web site. Interesting information on the company. I work as the Sales Director for Euro Saunas. A large concern of the industry, as you are aware of, has been the claims made by various manufacturers and retailers. Thank you for your site. I have been aware of these concerns for many months, but it is good to see it presented. May I ask what your affiliation or relationship with them is or was? Exhibit 60 to Sunlight’s Memorandum In Opposition (Doc. # 200). On October 28, 2004, Thomas sent Hall an e-mail regarding the upcoming Brighton website. In part it stated as follows: I hate to say this but I think it sucks ... If I was your typical consumer, and I clicked on Sunlight[’]s site and then I clicked on this homepage, I would be much more impressed with Sunlight. People don’t know flash vs. html etc. They see and they immediately get, that’s the end of [ ] it. I just don’t feel like this is capturing what we are going after multimedia wise, regardless of how fat the 360’s are. There is no second chance for a first impression. We’ve copied on Brighton what we’ve done with Sundance/Sauna Image, and it’s weak. Exhibit 29 to Plaintiffs Memorandum In Opposition (Doc. # 200). On October 29, 2004, Andrew Botschner, legal counsel for Sunlight, sent a letter through the Hall/Thomas website, stating that the website contained numerous falsehoods and misleading statements and violated Sunlight’s intellectual property rights and the Anticybersquatting Consumer Protection Act. On or about November 5, 2004, Hall took the website down. Between October 6 and November 5, 2004, the Hall/Thomas website sent more than 7,500 files to people who requested the web page. A web page consisted of about 10 files, however, so the requests totaled about 750 including plaintiff and all people from Sundance, Brighton and Cobalt Multimedia who looked at the site during and after its development. On November 7, 2004, Hall e-mailed Thomas a draft e-mail regarding the website, which he proposed to send to sauna retailers. In the final paragraph of the draft, Hall stated, “And remember, do not lie to customers on your website or you may find others like me that have a grudge to hold.” Exhibit 80 to Plaintiffs Memorandum In Opposition (Doc. #200). On November 8, 2004, an e-mail from sunlightsaunas@yahoo.com went to 12 e-mail addresses including Sundance. The author of the email is not apparent, but it stated as follows: Hello Sauna sellers, Apparently Sunlight Saunas is not enjoying being exposed. Although everything on this site is clearly factual and in no way violates their right, they have hired legal assistance to try and shut down the site. They are infringing on my first amendment rights. I have considered legal action but at this point it’s not worth it to me to continue this site. That said, I am shutting the site down. Many of you have sent me additional information and pictures about Sunlight Saunas that I was planning on posting to the site. I am releasing all rights to any material that was on http://www.Sun-lightsaunas-exposed.com. Feel free to use them as you wish. The site is down now of course, but if you would like me to email the pictures and content of the site to you then that could be arranged. Best of luck Sunlight Saunas Exposed Exhibit 46 to Plaintiffs Memorandum In Opposition (Doc. # 200). On November 11, 2004, Thomas sent the following e-mail to Cobalt Multimedia and Murdock (an employee of Sundance and Brighton): I think we should try and come up with 50K for 25% of the factory. I don’t see a great advantage in investing more for the potentially small return vs. what we can make on the retail side.... Unless I hear different, I’m going to tell Mark to tell them we are ready to begin the process. :}c ‡ * * ‡ # I also propose that we make a goal of paying off investors within 6 months and deadline of 12 months. We did it with Sundance, we can do it with Brighton. Please follow-up asap. I want to know who can invest what before the 20th. We need some preliminary commitments. On a side note, I’ll shut Sundance down before I’ll let this lawsuit bullshit hold us back. We will move forward as planned. Exhibit 47 to Plaintiffs Memorandum In Opposition (Doc. # 200). The following day, on November 12, 2004, Hall called Go Daddy to ask whether the registrant information would show when the domain was cancelled. He learned that it would not and on November 13, 2004, he cancelled the domain name for sunlightsaunas-exposed.com. In early 2005, however, Hall talked with Leo Hernandez of Sauna by Airwall about the possibility of establishing another website, and purchased the domain name “sunlightsaunas-sucks. com.” Hall Depo at 175:15-24. On December 16, 2004, Sunlight filed this suit against Sauna by Airwall, Sun-dance and John Does 1-2, alleging tortious interference with contract, tortious interference with prospective business relationship, trademark infringement, false advertising, false description, cybersquatting, injury to business reputation, unfair competition, business defamation, and other tortious or deceptive trade practices under the Lanham Act and Kansas law. A month later, on January 18, 2005, Thomas sent Hall the following e-mail: Just to be extra careful, let’s change my password for this email, just in case Sunlight has tapped into it. There’s been some interesting timing on a number of incidence [sic] through this BS. I’m sure this is far fetched but may as well be extra cautious. Let’s go over the details via phone. These guys are so burnt toast by the time we get done with them. Exhibit 48 to Plaintiffs Memorandum In Opposition (Doc. # 200). Four days later, Thomas sent the following e-mail to Cobalt Multimedia: I’m a music person. Does Sunlight have an advantage if we don’t have sound over our homepage? I think they do but am open for discussion. We should probably get a homie poll on this. Regardless, Brighton is going to beat your ass. Exhibit 49 to Plaintiffs Memorandum In Opposition (Doc. # 200). On February 5, 2005, Thomas sent Hall and Cobalt Multimedia an e-mail which stated in part as follows: This information does not need a negative spin, it just needs to be out there to re-educate the public. No one likes a liar and no one likes a bad mouther because it displays anger and fear. Sunlight-exposed was done in anger. Sunlight has now responded in anger with these lawsuits. All the emails I read in evidence were more or less worthless to the Sunlight cause, but what I did realize is that when Sunlight comes up, we are so negative we forget about selling our product. People leave the sales call probably not buying a sauna at all because of how negative they feel about the whole thing. If we can put together something that is ultra factually based I think we will ultimately win because Sunlight has already dug their hole of lies, and instead of looking like bad guys as well by bad mouthing, we appear to be presenting some facts, “you make up your mind”.... Sunlight has done a good job with this with their little charts of comparison. Problem is their charts were misleading and lied. If we can just display corrective material to the lies, we take the upper hand. * * * * Sunlight is winning right now with these suits because the truth is limited. In the short time the site was up it reached as far as a Jacuzzi Premium rep.... ... I’m guessing whatever he and our other attorney’s [sic] advise, it’s time for an all out onsalught [sic]. Maybe even Sauna Exposed + pics and video sent independently from Sundance. If we can win marketing wise we can afford to fight lawsuit. Every sale we steal hurts them and damages their ability to continue this pointless legal battle. Exhibit 8 to Defendants’ Joint Reply Memorandum Of Law In Support of Defendants’ Joint Motion For Summary Judgment (Doc. # 212). On May 19, 2005, Sunlight dismissed John Does 1-2, added Sherman Act antitrust claims and California false advertising claims and added Brighton, Hall and Cobalt Multimedia, Inc. as defendants. On July 12, 2005, Sunlight also filed suit against Jeffers, seeking to restrain him from interfering with its customers, employees and business relationships. On October 18, 2005, Sunlight and Sauna by Airwall filed a joint motion and stipulation for dismissal, based on a confidential settlement. The Court has therefore dismissed all claims involving Sauna by Air-wall. On March 15, 2006, the Court dismissed Hall and Cobalt Multimedia for lack of personal jurisdiction. Accordingly, plaintiffs remaining claims are against Sundance and Brighton. The pretrial order sets forth the following claims: tor-tious interference with contract (Count I); tortious interference with prospective business relationship (Count II); trademark infringement, dilution and unfair competition (Count III); defamation (Count IV); injurious falsehood (Count VI); civil conspiracy against Sundance and Brighton (Count VII); civil conspiracy against all defendants (Count VIII); prima facie tort (Count IX);. unfair business practices under Cal. Bus. & Prof.Code § 17200 (Count XII); false advertising under Cal. Bus. & Prof.Code § 17500 (Count XIII); false advertising in violation of Section 43(a)(B> of the Lanham Act, 15 U.S.C. § 1125(a) (Count XIV); false description in violation of Section 43(a)(A) of the Lanham Act, 15 U.S.C. § 1125(a) (Count XV); cybersquat-ting (Count XVI); and antitrust activity in violation of the Sherman Act, 15 U.S.C. § 1 (Count XVII). Damages Allegedly Sustained By Plaintiff Connie Zack kept notes of customers and distributors who communicated to Sunlight the disparaging statements which defendants and other competitors made to them. She did not have a list of customers, and she testified that “[a] lot of it is in the heads of the salespeople.” In early October of 2004, Sunlight determined through direct communication with affected customers that 23 of them did not buy (or possibly did not buy) a sauna due to the Hall/Thomas website. Plaintiffs Memorandum In Opposition (Doc.# 200) ¶ 182. While he could not identify any specific individual, Zack testified that he had “heard of numerous individuals who have been confused by the two websites.” A. Zack 6/29/05 Depo at 89:10-14. On November 5, 2004, Darren Jordison of Jacuzzi Premium Spas sent the following e-mail to Lisa Zinnecker, plaintiffs sales manager: “Please check out the following link and explain what is going on with your company.” Exhibit 64 to Plaintiffs Memorandum In Opposition (Doc. # 200). The link was to the Hall/Thomas website, and Jordison had received it in an e-mail from somebody who had decided to purchase a Health Mate sauna. On November 12, 2004, Connie Zack sent Zack and Jeffers a memo which stated as follows: Attached is an excel spreadsheet of the sales we lost starting Oct. 4th which I believe we lost due to Sunlight Saunas exposed. 0[f] course, there are tons of other customers who we DON’T KNOW whether they purchased or not. We can have Justin call the people we haven’t been able to get a hold of to see if they have purchased or not? ? ? On Tuesday at the sales meeting I will review this with the sales force and see if they have anyone else to add to the list. Please let me know if you both have any other thoughts on how to quantify this. The other piece that is hard to measure is HOW MANY sales have been lost from our distributors as a result of SS exposed. The only distributor I am comfortable asking is Bob Sterling. Exhibit 85 to Plaintiffs Memorandum In Opposition (Doc. # 200). On December 8, 2004, Sandra De Vault, who is apparently a Sunlight distributor or sales representative, sent Connie Zack the following e-mail: I had a phone conversation with a lead of ours who said that she had been turned off Sunlight Saunas for a variety of reasons, many of them raised in a (no longer existing) website called “Sunlight Saunas exposed” — I have asked her to mail me a copy of the information she downloaded from the site before it was removed, & when I receive it I will forward it on to you with a list of her queries she would like answered, (ie her main concerns). Exhibit 62 to Plaintiff’s Memorandum In Opposition (Doc. #200). Four days later, Connie Zack received the following e-mail from sales@sunlightsaunas.com.au: “Please find attached the information one of our leads sent to me today, regarding below email (SS exposed). We will await your response before re-contacting the lady.” Id. Jeffers left Sunlight in January of 2005, and by March of 2005, Zack had cancelled his American Express card which had been used to pay for one of Sunlight’s internet marketing accounts. As a result, that internet service was interrupted for about one week. Sometime between January and March of 2005, Sunlight also installed a new data base and a new phone system. Sunlight met its sales goals in October of 2004. Internal salespeople “had difficulty” in November of 2004, but Zinnecker did not know whether customers chose other products or simply did not buy. Sunlight did not meet its sales goals in March, April or May of 2005. Zack stated that when questioned, Lisa Zinnecker attributed the shortfall to Brighton and Sundance and the Hall/Thomas website. Zinnecker never told Zack or any other member of management that the data base and telephone system changes should have been implemented during a slower month or that the changes had a significant negative effect on sales. Zack attributed the lackluster performance in March to lingering effects and continuing actions of defendants. Lisa Zinnecker testified at her deposition that several factors contributed to Sunlight’s failure to meet sales goals for April and May: I remember having a meeting with Connie and Aaron ... I just felt that there was a shift in the market, where typically there might have been five true competitive companies, you know. I think we were seeing a lot of the smaller types of cheaper saunas coming into play and people probably impulsively buying those cheaper saunas. And I remember saying something, there is a shift in the market. There is a shift I think with an increase of awareness of infrared. There is also an opportunity for more businesses to take the opportunity. And I think there’s another aspect that was happening. L. Zinnecker Depo at 119:16 — 120:8, Defendants’ Memorandum (Doc. # 193). In June of 2005, defendants deposed Zack. In response to questions about damages, Zack testified that he had not done anything to calculate damages, that knowledge of lost sales was not his expertise and that all information had been provided to his attorneys. He did not know plaintiffs market share or the relative market shares of its competitors. No third party industry reporting of sauna sales is available, and Zack does not know the market shares or numbers of sauna manufacturers in North America. Though Zack does not know how many Chinese sauna manufacturers exist, low-cost Chinese sauna manufacturers have been posing competition since the first part of 2005. Zack testified that Sunlight’s gross sales for 2004 saunas ranged between $5 to $7 million, as contrasted with 2003, which he estimated to be in the range of $2.5 to $4 million. At the time of his deposition, Zack had not compiled the 2005 data. He testified, “I definitely don’t feel we are doing better. All of this- — this situation that we have been in with this website has definitely impacted our business.” A. Zack 6/29/05 Depo at 101:21-24. Zack stated that he believed Sunlight’s growth should have been far superior to what it was. On June 29, 2005, defendants deposed Connie Zack, who testified that Sunlight does not keep formalized reports and that she had not provided specific figures related to damages. When asked to give specific examples of lost sales, she identified Diana Harbison, Dan Cabral, Darren Jordan and “Doug” in California, but testified that there were “tons” of specific instances where a sale was canceled or lost. She testified that Jordan had received the Hall/Thomas website, which “really freaked him out” C. Zack Depo at 99:25 to 100:1, Defendants’ Memorandum (Doc. # 193). Sunlight did not ask its salespeople to list lost sales, but it has “tons of that information.” Id. at 104:12-17 and 110:4-7. Analysis I. Defendant Brighton Sauna, Inc.’s Motion For Summary Judgment Plaintiff asserts the following claims against Brighton: (1) Brighton tortiously interfered with contracts between it and unnamed customers (Count I); (2) Brighton tortiously interfered with prospective business relationships between it and unnamed potential customers (Count II); (3) Brighton engaged in trademark infringement, dilution and unfair competition by using plaintiffs trademark “SUNLIGHT SAUNAS” without authorization (Count III); (4) Brighton defamed plaintiff by conveying false and/or misleading information about its business practices (Count IV); (5) Brighton told injurious falsehoods by conveying false and/or misleading information about plaintiffs products (Count VI); (6) Sundance and Brighton conspired with Sauna by Airwall and other competitors to defame plaintiff and disparage its products (Count VII); (7) Sundance and Brighton conspired with Hall and Cobalt Multimedia to develop a website which defamed plaintiff and disparaged its products (Count VIII); (8) Brighton committed a prima facie tort by maintaining a website which implied that Sunlight engaged in untrustworthy business practices and sold unsafe products (Count IX); (9) Brighton falsely advertised plaintiffs products in violation of Section 43(a)(B) of the Lanham Act, 15 U.S.C. § 1125(a) (Count XIV); (10) Brighton engaged in false description by using the “SUNLIGHT SAUNAS” trademark and trade name on the website in a way which was likely to cause confusion, mistake or deception as to the affiliation, connection, approval, sponsorship or association of plaintiffs products, in violation of Section 43(a)(A) of the Lanham Act, 15 U.S.C. § 1125(a) (Count XV); (11) Brighton registered a domain name (sunlight-saunas-exposed.com) without plaintiffs consent and with the bad faith intent to profit, a practice known as cybersquatting (Count XVI); and (12) Brighton engaged in antitrust activity in violation of the Sherman Act, 15 U.S.C. § 1, when it conspired with Sundance, Sauna by Airwall and Soft Heat to defame it, disparage its products, refuse to deal with it and share competitively sensitive information, all to pressure suppliers and customers not to deal with it (Count XVII). Brighton argues that because it had no assets or employees and was therefore incapable of engaging in wrongful conduct before February of 2005, it is entitled to summary judgment. Specifically, Brighton contends that (1) it was not incorporated until July 1, 2004, so it could not have participated in wrongful conduct in the spring or summer of 2004; (2) Sunlight has no evidence that it received or republished the “Competitive Paper on Sunlight” which Soft Heat distributed on June 8, 2004; (3) the record contains no evidence that it participated in threats to institute legal proceedings by Sauna by Airwall on July 9, 2004; (4) Hall’s registration of the Hall/Thomas website in its name was a mistake, and does not show that Brighton was involved in the website. Neither party cites relevant case law whether a newly formed corporation might be liable for conduct on its behalf before the actual date of incorporation (here, July 1, 2004). The Court need not reach this issue, however, because some of Brighton’s allegedly wrongful acts occurred after its incorporation. Furthermore, on this record, it is not irrefutably established that Brighton had no assets and employees before February of 2005, and no involvement with the actionable events in this case. Even if Brighton did not receive or republish the “Competitive Paper on Sunlight” from Soft Heat, and did not participate in the .threats of legal proceedings from Sauna by Airwall, the Court cannot conclusively hold that its only involvement in the Hall/Thomas website was a “mistake.” Thomas incorporated Brighton on July 1, 2004, and in the fall of 2004, Thomas and others worked to secure manufacturing facilities for Chinese-manufactured products to be offered on the Brighton website. Defendant Brighton’s Memorandum In Support Of Its Motion For Summary Judgment (Doc. # 195) filed January 20, 2006 at 5. From September of 2004 to February of 2005, Brighton worked with Hall and Cobalt Multimedia to develop its website. Id. In light of these facts, to contend that Brighton’s employee and owners could not have engaged in activities for which the corporation could be held liable is disingenuous. A summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence or choose between competing inferences. Windon Third Oil & Gas Drilling P’ship v. Fed. Deposit Ins. Corp., 805 F.2d 342, 346 (10th Cir.1986). Whether Thomas and Hall acted on Brighton’s behalf is a question of fact for the jury, not a question of law to be determined on summary judgment. Furthermore, while some evidence suggests that Hall and Sundance created the website — not Hall and Brighton — other evidence could lead a reasonable jury to infer that Brighton participated in the website and other tortious activity. Construing the facts in the light most favorable to Sunlight, Hall used Brighton’s contact information in registering the website and did so on Brighton’s behalf. Brighton argues that it would be “ludicrous” to suggest that it had an interest in promoting the Hall/Thomas website when it had no prospects for sales until months later. Id. at 29. Given the apparent animus between the parties, however, a reasonable jury could conclude otherwise. Plaintiff has raised a genuine issue of material fact. The Court therefore overrules Brighton’s motion for summary judgment. Brighton’s reply brief asserts that it is not the alter ego of any defendant, and rejects “[t]he unspoken premise behind plaintiffs scatter-shot marshaling of the evidence ... that ... Brighton, Sundance, and Cobalt Multimedia are one and the same.” Defendant Brighton’s Reply To Plaintiffs Response In Opposition To Defendant Brighton’s Motion For Summary Judgment (Doc. # 210) filed March 1, 2006 at 23. As noted, however, Brighton did not raise this argument until its reply brief. This argument is not properly before the Court, see Thurston v. Page, 931 F.Supp. 765, 768 (D.Kan.1996) (court will not consider argument first raised in reply brief), and is irrelevant because Sunlight is not attempting to pierce the corporate veil of any defendant. II. Sundance And Brighton’s Motion For Summary Judgment A. Common Law Claim For Trademark Infringement, Dilution And Unfair Competition (Count III) Sunlight bring a unitary common law claim for trademark infringement, dilution and unfair competition under Kansas law. Specifically, according to the pretrial order, Sunlight claims that “[defendants used Sunlight Saunas[’] trade name ‘Sunlight Saunas’ and trademark ‘SUNLIGHT SAUNAS’ on the website www.sunlight-saunas-exposed.com to confuse the public.” Pretrial Order (Doc. # 187) at 17. The pretrial order states that the following are the elements of this claim: (1) “Sunlight Saunas’ trade name or mark is famous, distinctive, or has acquired secondary meaning in Kansas;” (2) “defendants knew of Sunlight Saunas’ prior use of, and common law rights to, its ‘SUNLIGHT SAUNAS’ trademark and trade name ‘Sunlight Saunas;’ ” (3) “defendants used Sunlight Saunas’ trade name or mark without authorization;” (4) “defendants] use diluted Sunlight Saunas’ trade name or mark, or caused a likelihood of confusion among Kansas consumers;” (5) “defendants acted intentionally, willfully, and maliciously with an intent to trade on the good will associated with Sunlight Saunas’ trade name or mark;” and (6) Sunlight suffered damages as a result. Id. at 19. Defendants’ summary judgment motion does not separately address this claim, and the Court assumes that it remains for trial. B. Lanham Act Claims Sunlight asserts three claims under the Lanham Act, 15 U.S.C. § 1125(a) and (d): (1) defendants engaged in false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (Count XIV); (2) defendants engaged in false description of Sunlight products in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) (Count XV); and (3) defendants “cybersquatted” by using the Sunlight trade name and mark in the domain name of the Hall/Thomas website, in violation of Section 43(d) of the Lanham Act, 15 U.S.C. § 1125(d) (Count XVI). Defendants argue that they are entitled to summary judgment on all Lanham Act claims because (1) their website speech is protected by the First Amendment; and (2) plaintiff has no evidence of damages under the Lanham Act. Defendants argue that they are entitled to summary judgment on plaintiffs false advertising claim because their website statements were not false or material and did not cause damage to plaintiff. As to plaintiffs false description claim, defendants argue that they are entitled to summary judgment because they did not use plaintiffs mark in a way which could cause confusion to consumers or suggest plaintiffs endorsement. Finally, as to plaintiffs cybersquatting claim, defendants seek summary judgment because as a matter of law, their use of plaintiffs trade name constituted a fair use. 1. Commercial Speech Or Protected Noncommercial Speech The Lanham Act regulates commercial speech. See Taubman Co. v. Webfeats, 319 F.3d 770, 774 (6th Cir.2003); Porous Media Corp. v. Pall Corp., 173 F.3d 1109, 1120 (8th Cir.1999); Savannah Coll, of Art & Design. Inc. v. Houeix, 369 F.Supp.2d 929, 943 (S.D.Ohio 2004). It prohibits commercial use of a word or name or any “false designation of origin, false or misleading description of fact, or false or misleading representation of fact” which (1) is likely to cause confusion or to deceive, as to the origin, sponsorship, or approval of goods, or (2) misrepresents characteristics and/or qualities of another person’s goods in commercial advertising or promotion. A person who engages in such activities “shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.” 15 U.S.C. § 1125(a). Prior to 1989, courts treated the Lanham Act as “purely an anti-false advertising statute.” J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27:91 (4th ed.2005). Since 1989, federal law has permitted claims which involve a false statement of fact which disparages the goods of another. Id. Defendants deny that their website statements constituted “commercial” speech, noting that they did not advertise or sell goods or services, and that they only used plaintiffs mark to criticize plaintiff. Defendants contend that their website speech was noncommercial criticism of plaintiff — a classic “gripe site.” Sunlight argues that defendants did not solely convey a communicative message in the website domain name and that defendants’ use of its mark confused consumers about the source of the website. In Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), the Supreme Court discussed three factors in determining whether speech is commercial or noncommercial: (1) whether the communication is an advertisement, (2) reference to a specific product, and (3) the economic motivation of the speaker. In Bolger, the Supreme Court found unconstitutional a federal statute which prohibited the mailing of informational pamphlets that advertised contraceptives. The Supreme Court found that the pamphlets constituted commercial speech, and emphasized that their discussion of important public issues such as venereal disease and family planning did not warrant the full constitutional protection afforded noncommercial speech because the pamphlets “link[ed] a product to a current public debate.” Id. at 68, 103 S.Ct. 2875 (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)). In Proctor & Gamble Co. v. Haugen, 222 F.3d 1262 (10th Cir.2000), a case under the Lanham Act, the Tenth Circuit examined defendant’s statement that Proctor & Gamble was a corporate agent of Satan. In evaluating whether this statement was commercial speech under the Lanham Act, the Tenth Circuit adopted a four-part definition of commercial advertising: (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services; and (4) disseminated sufficiently to relevant purchasing public to constitute “advertising” or “promotion” within the industry. Id. at 1273-74. Applying these factors, the Tenth Circuit found that absent a “significant theological, political, or other noncommercial purpose” underlying the speech, a message which urged recipients to purchase defendant’