New York Stock Exchange v. Gahary

Citation: New York Stock Exchange, Inc. v. Gahary, 196 F.Supp.2d 401 (S.D.N.Y. 2002)(full-text).

Factual Background
Defendant used variations of the name of the New York Stock Exchange’s (“NYSE”) chairman, Richard Grasso, as screen names in Internet chatrooms for investors, and posted profane messages allegedly to parody Mr. Grasso. These screen names included “richardgrasso,” “dickgrasso,” and “RichAGrasso.”

Trial Court Proceedings
The NYSE filed suit for trademark infringement. Defendant counterclaimed for harassment and abuse of process. The parties filed cross-motions for summary judgment on the NYSE’s trademark infringement claim. The NYSE asserted that the unregistered name of Mr. Grasso had attained secondary meaning, whereas defendant argued that his use of Mr. Grasso’s name was a parody protected by the First Amendment. The NYSE also filed a motion for judgment on the pleadings on defendant’s counterclaims.

The court denied both summary-judgment motions, finding insufficient evidence of secondary meaning or of a likelihood of confusion. The court also found that defendant’s use of Mr. Grasso’s name might constitute a parody. It did not matter that defendant’s parody failed. Indeed, it appeared that the attempted parody failed because too few posters on the bulletin board knew who Richard Grasso was &mdash a fact that contributed to the NYSE’s inability to conclusively establish secondary meaning in Mr. Grasso’s name.

Moreover, even if defendant’s action did not qualify as a parody, it might still qualify for First Amendment protection as part of a “communicative message.” Finally, the court dismissed defendant’s counterclaims, holding that New York law did not recognize an independent tort of harassment and that the mere institution of a civil action by summons and complaint was insufficient as a matter of law to establish abuse of process.

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