John Benn offers some comments about the lawsuit and the recent amendment.

Issue #02: Real Party in Interest - Are either corporate entities Pet Net, Inc. or Petswarehouse.com, Inc. real parties in interest and as such must be included as plaintiffs in the lawsuit?

Another basis for requesting dismissal of a lawsuit is detailed under Rule 12(b) as the failure to join a party under rule 19. Rule 19 involves involves considerations as to who is really the right party to be involved. This can involve both who is the right plaintiff or who is the correct defendant.

In this case, the filed lawsuit names as plaintiff "Robert Novak, d/b/a PetsWarehouse.com". This what appears in the caption of the lawsuit. Within the section of Novak's complaint headed "Parties" the lawsuit makes the following allegation:

The issue identified above arises from several notable contradictions when other objective facts are considered.

Grammar aside, the above statement would seem to indicate that Novak licenses to himself the right to use a trademark. This is fiction to the extent that one accepts that Novak has only a single "d/b/a" business entity. (The paragraph cited can be shortened to "Novak does business as Petwarehouse.com and licenses something he claims to own to Petswarehouse.com. How does one pay oneself?) Alternatively, perhaps the language Novak uses really reveals that there is a third party (individual or corporate) that really is the licensing party for Petswarehouse.com paying Novak.

(Aside - does anyone know of any entity that is currently licensing the usage of "Pets Warehouse"?)

Secondly, the actual web site at petswarehouse.com has carried a copyright notice. Last time I checked the web site copyright notice was claimed not by Novak but instead by Pet Net, Inc. The copyright notice claims the period 1997-2001. No copyright was claimed by Novak personal or as any "d/b/a". To me this provides indicia that the Internet pet supplier is actually not Novak but instead a corporate entity named "Pet Net, Inc."

If the web site is being defamed should "Pet Net, Inc." not be included as a real party in interest since it is its web site that is allegedly being defamed?

Third, a similar situation exists further into the petswarehouse.com web site where an "investment" opportunity is promoted. Consider the following excerpt from the web site compared to any claim that the site is suppose to be sole proprietorship (i.e. "d/b/a") operated by Novak.

The full text of the investment page was available publicly at URL <http://www.petswarehouse.com/invest.htm>.

The above items lead me to the reasonable question of who actually owns and operates the web site at petswarehouse.com. Is it 1) Novak d/b/a, 2) Pet Net, Inc., the corporate entity claiming the copyright to the web site offerings, or 3) Petswarehouse.com, Inc., the 1999 corporate entity?

Public records indicate that a New York corporation named "Petswarehouse.com, Inc." was established in February , 1999 listing "Scott J. Schuster" as Incorporator. Brian Novak & Associates were ostensibly listed as the attorney filing the document.

Public records also indicate that a New York corporation named "Pet Net Inc." was established in December 1998 listing "Scott J. Schuster" as Incorporator. Brian Novak and Associates were again listed as the filer.

(Another aside - how does a corporation which did not exist prior to 1998 claim copyrights for 1997?)