Plaintiff operates a skydiving business in
Plaintiff operates a skydiving business in
Plaintiff operates a skydiving business in
On November 13, 2009, the United States District Court for the Eastern District of Michigan applied the Calder effects test in granting a defendant's motion to dismiss for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), or, in the alternative, to transfer venue. Weather Underground, Inc. v. Navigation Catalyst Systems, Inc., 2009 WL 3818191 (E.D. Mich. Nov. 13, 2009).
In just over six hours, Facebook will begin permitting its users to obtain "vanity" URLs for their Facebook profiles. According to the popular social networking site,
Facebook will begin permitting its users to obtain these new vanity URLs at 12:01 a.m. tomorrow.
According to PC World, "[v]anity URLs are becoming an important part of one's online social life, as it makes it easier for others to find you by just typing your name after the service's URL (i.e. http://www.twitter.com/pcworld)." Twitter and LinkedIn have always offered plain-language user names and its become something that social networkers now expect.
Despite the ubiquity of vanity URLs, Facebook's announcement has apparently caused a number of law firms and news outlets to sound the trademark protection alarm. (See here, here, here, here, and here).
The Wikipedia Foundation has demanded that the artists responsible for Wikipedia Art surrender the domain name wikipediaart.org. "Last February, [the artists], working with several collaborators, created a Wikipedia article and invited the general public to add to it, following Wikipedia’s standards of credibility and verifiability. The work was intended to comment on the nature of art and Wikipedia. [However, Wikipedia editors shut down the project] within fifteen hours for being insufficiently 'encyclopaedic.'" The artists obtained the domain name wikipediaart.org and created a website to document the project which the Foundation seeks to shut down because it uses the "Wikipedia" trademark.
The United States District Court for the Northern District of Texas has applied traditional contract principles to find that Blockbuster Online's website Terms and Conditions are unenforceable. "The crux of the Plaintiffs’ arguments were that since Blockbuster reserved the right to modify the Terms and Conditions at their “sole discretion” at “any time” to be effective immediately on their site, the contract was thus illusory. The Court found the contract was illusory because Blockbuster had the power to unilaterally change the contract whenever they wanted to do so. The only 'limit' was the new terms would not be effective until posted online."
"Students have suffered another defeat in their legal fight against the company that runs a plagiarism-detection tool popular among professors. A federal appeals court last week affirmed a lower court’s decision that the Turnitin service does not violate the copyright of students, even though it stores digital copies of their essays in the database that the company uses to check works for academic dishonesty." The copyright infringment suit was brought by two Mclean, Virginia high school students after Turnitin was hired by their school to catch cheaters.
E-Commerce Law Briefs is a weekly feature appearing on E-Commerce Law. Each weekend, E-Commerce Law Briefs will provide a brief summary and commentary on recent legal news affecting e-commerce businesses.
Tags: Blockbuster Online, copyright infringement, Google Profile, trademark infringement, Turnitin, Twitter, Wikipedia, Wikipedia Art, Wikipedia Foundation
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"American Airlines is suing Yahoo Inc. for trademark infringement, a case similar to one that the nation's largest airline settled this summer against Google, Inc. American filed its lawsuit last week in U.S. District court in Fort Worth for unspecified damages, legal costs and money to run a "corrective" advertising campaign"
E-Commerce Law Briefs is a weekly feature appearing each Friday afternoon on E-Commerce Law. Each week, E-Commerce Law Briefs will provide a brief summary and commentary on recent legal news affecting e-commerce businesses.
Yesterday, Eric Goldman posted that 1-800-Contacts has filed its latest keyword advertising suit in federal court in Utah. The company is apparently hoping for better luck than it had in its earlier forays into trademark litigation.
Last year, we discussed the possible genericide of "Google" and the inconsistent approach taken by the company in protecting its mark. Now, Carolyn Elefant (of My Shingle and Legal Blog Watch) notes the reported increase in the use of "Google" as a verb amongst news websites and passes on a prediction from Big Mouth Media: Google's trademark attorneys will find themselves very busy this year.
If so, we can look forward to many more letters like this one.
Update to Pony Express Marks Being Auctioned Online.
Last month we told you that Pony Express Worldwide, LLC was auctioning off its rights to six trademarks, including PONY EXPRESS, THE PONY EXPRESS, and designs of the first pony express riders at ipauctions.com. The auction was to occur from April 23-30, 2007. Now, the auction is closed and it appears that no one was willing to come up with the required starting bid of $250,000.
On January 4, 2007, the United States District Court for the Eastern District of Pennsylvania issued its opinion granting the motion to dismiss filed in J.G. Wentworth v. Settlement Funding, LLC, 2007 WL 30115 (E.D. Pa. 2007). Plaintiff alleged causes of action for trademark infringement based upon Defendant’s use of Plaintiff’s trademarks in Google’s AdWords program and in the meta-tags for Defendant’s website. Defendant filed a motion to dismiss, arguing that Defendant’s use of the marks was not a "use in commerce" under the Lanham Act and challenging Plaintiff’s claim on "likelihood of confusion" grounds.
Use in Commerce
Defendant argued that the alleged use of the marks for the purpose of triggering Internet advertising through Google’s AdWords program amounted to the sort "pure machine-linking function," detailed in U-Haul Int’l, Inc. v. WhenU.com, Inc., 279 F.Supp.2d 723, 725-36 (E.D. Va. 2003), a non-trademark use of another’s mark that does not identify the source of a product. In rejecting this argument, the Court relied upon the decision in Buying for the Home, LLC v. Humble Abode, LLC, 2006 WL 3000459 (D.N.J. 2006) in which that court held that, though participation in the AdWords program is not a traditional "use in commerce," it still satisfies the Lanham Act’s "use" requirement.
The Court specifically rejected the Second Circuit’s holding that such use was "analogous to ‘an individual’s private thoughts about a trademark.’" See 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400, 409 (2d Cir. 2005). Instead, the Court held that "[b]y establishing an opportunity to reach consumers via alleged purchase and/or use of a protected trademark, the defendant has crossed the line from internal use to use in commerce under the Lanham Act."
Likelihood of Confusion
The concept of "initial interest confusion" applies where similar marks allow the defendant to lure potential customers away from a producer by initially passing off its goods as those of the producer, even where confusion as to the source of the goods is ultimately dispelled. In keyword trademark cases, attorneys often rely upon an initial interest confusion theory to establish the likelihood of confusion element of a trademark infringement claim.
In J.G. Wentworth, the Court rejected the initial interest confusion argument, noting that "initial interest confusion must create in consumers confusion as to the source of the goods or services or a misunderstanding as to an association between the mark holder and the mark user." The Court held that, since the Defendant’s use of the Plaintiff’s marks in the AdWords program created "separate and distinct" links "on any of the search results pages in question, potential consumers have no opportunity to confuse defendant’s services, goods, advertisements, links or websites for those of plaintiff." After noting that "no reasonable factfinder could find a likelihood of confusion under the set of facts alleged by plaintiff," the Court granted the motion to dismiss.
For more information on trademark infringement claims based upon keyword advertising programs, see Jonathan D. Frieden and Sean Patrick Roche, E-Commerce: Legal Issues of the Online Retailer in Virginia, 13 RICH. J.L. & TECH. 5 (2006), http://law.richmond.edu/jolt/v13i2/article5.pdf.