The Federal High Court in Abuja has adjourned the $150 million suit filed by a Nigerian, Chianugo Peter, against Google LLC and GoDaddy.com LLC, over alleged cyberspace contract breach. The court adjourned it to 27 May for hearing.
Justice Obiora Egwuatu fixed the date for the defence to cross-examine Mr Peter after he was led in evidence virtually by his lawyer, Emmanuel Ekpenyong, in the suit marked: FHC/ABJ/CS/238/2023.
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The News Agency of Nigeria (NAN) reports that the lawsuit revolves around the alleged shutdown of Mr Peter’s YouTubeAudio.com domain name after eight years of promotional and marketing efforts.
Mr Peter, through his lawyer, named GoDaddy.Com LLC and Google LLC as the 1st and 2nd defendants in the suit filed on April 14, 2023.
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In his earlier originating summons filed by Mr Ekpenyong of the law firm of Fred-Young & Evans LP, the Nigerian sought a $150 million in compensation from Google LLC and GoDaddy.com LLC for the alleged cyberspace contract breach.
The plaintiff alleged that the defendants shut down his domain and business name: YouTubeAudio.com and transferred the rights over the name to Google LLC, an American multinational technology company.
Although GoDaddy.com LLC neither filed any process nor represented in court, Google LLC, in its initial statement of defence dated 9 November 2023, and filed 10 November 2023, by its lawyer, Mark Mordi, SAN, of the law firm of Aluko & Oyebode, urged the court to dismiss Mr Peter’s suit as being unmeritorious and lacking in merits.
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Justice Egwuatu had, in April 2024, given the plaintiff the go-ahead to amend his originating processes after his lawyer moved the application for same and it was not opposed by the defence counsel.
In his amended statement of claim dated 29 April 2024, Mr Peter sought ten reliefs.
He sought a declaration that GoDaddy.com was wrong to shut down the YouTubeAudio.com domain name on 7 December 2022 and that Google was wrong to remove “YTAudio” with its website youtubeaudio.com from its Google PlayStore on 25 December 2023 without adequate compensation to him.
He said this is notwithstanding that the YouTubeAudio.com domain and business name are different and distinct from YouTube trademarks.
He wants the court to declare that he is entitled to compensation from the defendants for the loss of the YouTubeAudio.com brand and goodwill which has accrued on the brand and domain name for eight years of promotional and marketing works from 2 July 2015 to 7 December 2022.
He sought an order directing the defendants to pay $50 million to him for promotional and marketing works on the YouTube Audio business name and YouTube Audio.com domain name for eight years from 2 July 2015 to 7 December 2022.
He sought $100 million in damages for the loss of anticipated profits associated with the brand equity and goodwill of YouTube Audio and YouTube Audio.com domain name.
Mr Peter also sought N50 million to enable him to carry out fresh registrations of its new name and secure an alternative domain name to host its application to attract users.
The Nigerian sought an order directing the defendants to pay N10 million to him for the prosecution of the suit.
Alternatively, Mr Peter prayed the court for an order for GoDaddy.com to reinstate and hoist the YouTubeAudio.com domain name and for Google to also reinstate YouTubeAudio.com on its Google PlayStore platform which was unilaterally removed on 25 Dec 2023.
He submitted that he acquired rights over YouTubeAudio.com domain name from Go Daddy.com LLC who conducted a search before confirming that he could make use of the name.
The plaintiff averred that he promoted the domain and business name from 2014 to 2022 and even wrote to Google to introduce YouTubeAudio’s services and to partner with it in 2014 and 2021 but received no response from it on both occasions.
He said in February 2021, he applied for and YouTubeAudio.com was registered on Google Adsense platform for displaying advertisement on the website.
Mr Peter said in August 2021, the domain and business name was registered on Google Playstore.
According to him, the plaintiff consistently paid GoDaddy.com LLC for registration and use of the domain name from 2015 to 2022.
But Google LLC, in its amended statement of defence and counterclaim dated and filed 31 May 2024, averred that its registration of the YOUTUBE trademarks at the Trademarks Registry gives it the exclusive night to the use of the said trademarks.
It submitted that it has incurred expenses in the sum of $24,040.64 in dealing with Mr Peter’s “deliberate infringement of the counterclaimant’s YOUTUBE trademarks.”
The company, therefore, sought a declaration that Mr Peter’s registration and use of the YouTubeAudio business name with BN 2395035 at the CAC is an infringement of its YOUTUBE registered trademarks.
It prayed the court for an order directing Mr Peter to pay the company the total sum of $24,040.64 being the expenses incurred in dealing with his infringement of the YOUTUBE registered trademarks.
It equally sought an order directing the plaintiff to pay the company the cost of defending the suit.
In his amended reply to Google’s amended statement of defence dated 12th July 2024, Mr Peter responded that it is not in doubt that Google LLC owns YouTube trademarks, however, YouTubeAudio is distinct and different from YouTube trademarks.
He submitted that Google LLC, being a foremost search engine in the world, knew that he had earlier written to it, that he was making use of the YouTubeAudio domain name for the past eight years without any objection or caveat by either GoDaddy.com or Google.
“Hence, Google LLC is estopped from claiming any right over the YouTubeAudio domain name,” he said.
When the suit came up on 6 February, Mr Peter’s counsel, Mr Ekpenyong, informed the court that his client was away on further studies in Canada and applied to move their application for a virtual hearing of his testimony and it was granted.
Google LLC’s lawyer also moved their application for virtual hearing and the same was granted by the court and the judge adjourned the suit until 26 March for the plaintiff to open their case.
On the last adjourned date, Mr Peter, as sole witness, adopted his amended witness deposition on oath dated 26 April 2024 and amended additional witness deposition on oath dated 12 July 2024 as his oral testimony before the court.
Mr Ekpenyong tendered documents on YouTubeAudio, which Mr Peter relied upon, including YouTubeAudio profile, certificate of its registration, acceptance letter at the Trademarks Registry for its registration, bank particulars, payment receipts of domain name to Go Daddy.com LLC and newsletter showing when Google LLC commenced music services in Nigeria.
He also tendered “the plaintiff’s email to Google LLC on his services, Google LLC’s solicitors’ letter to the plaintiff, the plaintiff’s solicitors’ response to Google LLC’s solicitors, notices and processes at the forum, the page on the website showing that it has been shut down.
“Pages of companies not affiliated with Google LLC using the ‘YouTube’ acronym, its page on Google Playstore console showing its website and domain name and marketing materials on Facebook and other social media platforms since 2015” and the same were admitted as exhibits.”
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The lawyer equally tendered documents on YouTubeAudio relied upon in the plaintiff’s amended additional witness deposition on oath, including Google LLC Adsense policies and Adsense page congratulating it on being registered on the platform.
He further tendered email correspondence with the forum after it made its decision, tracking policy of Google LLC and flash drive showing that “YTAudio” was accompanied with the youtubeaudio.com domain name on the Google Playstore platform and the same were admitted as exhibits.
After the plaintiff concluded his testimony, Justice Egwuatu adjourned the matter till 27 May for Google LLC’s counsel to cross-examine Mr Peter.
(NAN)
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