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A lawyer had problem getting AOL software to work, then he trouble getting through to customer service. So he sued AOL in small claims court in New York. AOL tried to enforce a choice of forum clause in its 'click-wrap' agreement. The judge declined to enforce the clause. The lawyer claims that he indicated to AOL during the proceeding that if it would fix the problem, he would drop the suit. AOL refused. Via NY Law Journal.
Front page article in today's Wall Street Journal entitled "New Services Are Making It Easier To Hide Who Is Behind Web Sites" (paid sub required), describing the rise of domain proxy services to shield whois data. I don't think that proxy services are inherently evil - the services tend to cooperate with legitimate requests from third parties. I think a larger problem is that ICANN's enforcement mechanism against false whois data relies on voluntary compliance from registrars.
Press release re WIPO conveining a diplomatic confernece to streamline trademark registration procedure and revise the Trademark LAw Treaty. Start making a list of your pet peeves.
Speculation re that Apple Computers will pay massive settlement to Apple Records for use of APPLE in connection with iTunes, via MacWorld.
This BBC article reports that half of all pills labeled as VIAGRA sold over the Internet are counterfeit. What astounds me is that half of the VIAGRA pills sold online are real.
Interactive Advertising Bureau publishes Guidelines on Use of Pop-Up Ads.
Super-hero crime-fighting team Microsoft and Amazon team up to sue spammers, via News.com.
Registrant of GATWICK.COM accuses BAA, operator of Gatwick Airport, of dirty tricks, and accuses of WIPO of bias in selecting UDRP panelists, via The Register.
The complex fact pattern (put forth by one side's attorney) seems too complex to come to any sort of conclusion but I do have one reaction regarding the accusations of panelist bias. That is: one does not establish a prima facie case that a UDRP panelist is biased because that panelist finds for the complainant more than for the respondent. 50% is a meaningful benchmark in coin tossing, not litigation.
Survivor, the band (biggest hit - Eye of the Tiger), loses on summary judgment (upheld by 7th Circuit) against CBS, with regard to CD products for the SURVIVOR TV show.
Frank Sullivan v. CBS, No. 02-2058 (7th Circuit, Sept 24, 2004).
People who downloaded Survivor songs on iTunes also bought music by Kroskus, Ambrosia, ZZ Top and Tesla.
People who bought the soundtrack CD from the Survivor TV show on Amazon also bought the soundtrack from ER and Television's Greatest Hits.
Dear Rolex:
If you are trying to get in touch with me today, please either fax, call, write or take out a magazine ad. Do not, repeat do not email me. Someone sent me 21 emails today offering me 'genuine replica' Rolex watches and they were all sent to the spambox. If you sent me email with the word Rolex in it, it might not get to me (email from my bank and my credit card companies are already getting shunted regularly).
Marty
p.s. Too bad that, according to this article, the IETF has shelved a proposal to deal with spam. Email is becoming unusable as a business tool.
Unusual blog title here.
Great title for company press release: TOMMY BAHAMA Helps Crack Counterfeiting Ring.
CNN.COM reports:
The U.S. House of Representatives on Tuesday approved a bill that would increase jail time for identity thieves and Web users who register sites under false identities.
The bill, which passed by voice vote, would not directly outlaw the use of fraudulent registration information.
Rather, it would increase by up to seven years the prison terms of those convicted of felonies.
Full story here.
Counterfeiting in Manchester, via Manchester Online.
NY Times article on 'phishing' and other bad email things, noting that brands such as VIAGRA, EBAY and CITIBANK are severely curtailed in their ability to use email at this time, because those marks are so heavily utilized in fraudulent email.
Trouble follows her. Rosie O'Donnell purchased drawings made of her by courtroom artists during her lawsuit last year (background). Now the courtroom artists allege that O'Donnell is passing off the sketches as her own artwork. Via cnn.com.
Volokh explores the legality of forging documents for political purposes and finds few laws on point (clearly forging documents for commercial gain would break all kinds of laws - as would forging documents as part of a recognized tort, such as slander). As occurred to me during the Swift Boat Veteran debacle, we are better protected against lies about toothpaste and cat litter, then we are against lies about (and by) our government (and about reasons for going to war for that matter).
Simon Cowell and others will harshly judge contestants. No, not on American Idol, on The X Factor on ITV1 in England. The creator of American Idol (and its UK basis, Pop Idol), is suing Cowell in the UK
I put in a call to the IPKat who reports that protection of a TV format is difficult in the UK. Copyright protects works, not formats while trademarks protects registrable signs, so there's a hole where TV formats would go. We tend to call that hole "unfair competition and related state torts" here.
There was another reported case of 'name-dropping' where the domain name for a prestigious firm was inadvertently not renewed and now the name points to not-work-safe acts.
Go renew your important domain names for ten year terms right this second.
Interesting practice discussed in Whitespace: Forbes.com is linking words in its editorial copy to advertisements.
Sixth Circuit seems to take an extreme view that there is no such thing as de minimis infringement of a sound recording in the context of digital sampling. Therefore, all digital sampling is subject to compulsory licensing. This was one of 500 counts brought against 800 defendants brought by the copyright owners of George Clinton and Funkadelic's work.
Bridgeport Music v. Dimension Films, (6th Circuit, Sept 7 2004).
George Clinton's Sample Some Of Disc, Sample Some of DAT here.
UPDATE: World famous copyright lawyer Craig Mende calls in to emphasize that he agrees with the Sixth Circuit's own observation that this holding is without precedent. He points out that in seemingly analogous situations, such as the brief use of a photograph in a movie, circuit courts have allowed 'de minimis' use (Sandoval v. New Line, 147 F.3d 215 (2d Cir 1998).
Straightforward case re lawful use of a trademark by an unauthorized sales/service provider. House of Vacuums ran a yellow page ad (reprinted in the decision here) which seems somewhat common. The name of the store, HOUSE OF VACUUMS is the dominant element, and 13 different brands of vacuums are listed. No claims are made regarding authorization by the brand-owners. Infringement and dilution claims by plaintiff (1 of the 13 brands listed) dismissed at summary judgment.
Scott Fetzer v. House of Vacuums, no. 03-51118 (5th Cir. Aug. 12, 2004).
Photograph of House of Vacuums here.
Ah, the summer of 2001, when trademark owners wasted time and money buying .BIZ and .INFO domain names they didn't need and didn't want, in the process giving interest-free loans to finance the start-up of Afilias and Neulevel. ICANN has commissioned a report "Evaluation of the new gTLDS: Policy and Legal Issues" (Executive Summary here). The report is thorough.
I thought this statistic was striking:
Number of UDRPs by TLD by number and by percentage of all registrations in that TLD:
11,637 .043% .COM
1,879 .042% .NET
253 .022% .INFO
169 .017% .BIZ
0 0 .AERO
0 0 .COOP
0 0 .NAME
0 0 .MUSEUM
Now you can spend sometime discussing whether the fact that .BIZ had only half of the UDRPs of .INFO proves that it had a better sunrise, but I think that those four TLDs with zero instances of cybersquatting is the much more interesting thing to focus on (ok, not really zero - .NAME had 6 'charter' disputes and there were one or two eligibility disputes in the others). Granted the total number of registrations in those four are small, but those are four TLDs with no cybersquatting, probably little to no trademark infringement, probably little to no consumer fraud, no drive-by downloads of spyware and probably little to no domain names used for spam.
And there are also new information services provided by these 'restricted' TLDs. Did you know that if you type in the three letter code of an airport plus .AERO, you get that airport's website - try LAX.AERO or JFK.AERO. If you type in INDEX.MUSEUM you get an, uh, index of museums.
I think the way to go with TLDs is either meaningful TLDs (.AERO) with oversight, or meaningless TLDs (random characters) without. The problem is that .COM, .BIZ and .INFO are in the middle - without oversight the meaningful (.COM) becomes misleading. How can .COM be a zone for reliable ecommerce when you can obtain a domain name with fraudulent contact data?
Look at those numbers again. Compare the TLD with 11,000 instances of cyberpiracy to those with zero. Where would you feel more secure giving your credit card number?
Communications Law Blog from the Davis Wright and Tremaine firm.
IP Litigation Blog from the Mann Law Group.
Nom de Domaine! from Cedric Manara (in English and French).
"The question raised in this case is whether the First Amendment protects a misleading use of plaintiffs' marks in domain names to attract an unwitting and possibly unwilling audience to [defendant's] message. Use of a famous mark in this way could be seen as the information superhighway equivalent of posting a large sign bearing a McDonald's logo before a freeway exit for the purpose of diverting unwitting travelers to the site of an antiabortion rally."
from Coca Cola ,et. al. v. Purdy, Civ. No. 02-2894 (8th Cir. Sept. 1 2004). Note: The photo above is from a billboard company here and is not related to this case in any way.
Via Guiding Rights, M. Scott Donahey, "'Distinctive' and 'Famous' - Separate Requirements Under The Federal Trademark Dilution Act?"
From the conclusion:
McCarthey's position that "distinctiveness" and "fame" are synonymous terms does not square with the plain language of the statute and with the way that the terms are used in the Trademark Law Revision Commission Report. The Second Circuit's view treats the statutory language respectfully and fully reflects the concepts expressed in Frank Schechter's pioneering work. And while the Supreme Court has yet to completely weigh in on this disagreement, it's thumb is already on Justice Leval's side of the scales. The FTDA appears to require proof of both fame and distinctivenss.
Frederic Glaize, a Trademark Attorney, publishes the French language LITTLE TRADEMARK MUSEUM in French (a nonsensical English translation is here). The Museum highlights the exotic, the odd, and the celebrity-owned in trademark filings.
This business wire announcement of a class action lawsuit against a corporation for misleading use of the expression RECORD RESULTS, made me wonder "How often do we encounter the expression RECORD RESULTS and what does it mean?" I think we encounter it a lot and that it's usually meaningless.
John Berryhill responds on the INTA Listserv to prior postings on the use of the OLYMPICS name by Bush campaign ads:
> Political advertisements seeking to obtain votes for President Bush
> claim that certain conquered and/or occupied nations were able to
> field Olympic Teams in light of wars prosecuted against them by
> President Bush...
It is a factual claim (i.e. a claim that purports to be a statement of fact), and not one that suggests the IOC endorses his position.
There is no shortage of professional skating shows which feature "Olympic Gold Medal Winning" performers, or trainers and facilities that have trained Olympic competitors (e.g. http://www.iceworks.net/figure_private.shtml).
That these performers have won gold medals or competed as or coached Olympic athletes are statements of fact. The fact of having won awards at the Olympics is certainly one which the performers and their employers are allowed to state. Intellectual property law, or the special protection given the USOC, is not an instrument for preventing the statement of facts.
In 1980, President Carter could certainly say that the United States was not permitting a team to participate in the Olympics. He did not have to refer to them as "those quadrennial games being held in Moscow", "that athletic ritual based in a pagan religion" or some other term. Such circumlocutions are not required to make a reference to the Olympics in the course of making a factual statement. He could certainly state "We are not going to the Olympics."
> In my view, the Olympic Committee and the Iraqi soccer team were
> justified in
> objecting to the uses of their marks by President Bush and his supporters as
> a matter of law...
As a matter of free speech law, they are certainly justified to state their opinions as well.
> This statute could be interpreted to allow the US Olympic Committee to
> sue over a political use of its marks by others, since it suggests
> sponsorship by the Olympic Committee of its marks by the person(s)
> using them...
As a matter of law, then, should Mr. Bush be subject to damages and/or an injunction for the statement? Should the injunction be against Mr. Bush uttering the word at all, or in subjective contexts? Or would an impeachment proceeding be required?
> We also need to consider whether political uses of marks are beyond
> the scope allowed under the Lanham Act. If this is not done, then any
> use of any mark might be permitted in political contexts...
As intended in the legislative history of the FTDA. "Political advertising and promotion is political speech, and therefore not encompassed by the term 'commercial.' This is true whether what is being promoted is an individual candidacy for public office, or a particular political issue or point of view...." 134 Cong. Rec. H 1297 (daily ed. April 13, 1989) cited in _MasterCard International, Inc. v. Nader 2000, et al._, 70 U.S.P.Q.2d 1046 (S.D.N.Y. 2004) (Candidates use of "priceless" ad parody was political speech, and thus categorically exempted from coverage by the Federal Trademark Dilution Act.)
In the context of political speech, we start with the First Amendment and work down. We do not start with the Lanham Act and work up. The free expression of political discourse in the United States still does, surprisingly to some I am sure, outrank anything which is protected by the Lanham Act, as we labor under a perhaps quaint notion that the United States represents a set of values broader than individual accumulation of wealth.