Vo. v. Opinion Corp (May 22, 2012)
STATUS:
Decision given by New York Superior Court on May 22, 2012.
N.Y.Sup.Ct.: Pissed Consumer Denied Section 230 Immunity and Can't Shake Extortion Claim
Technology & Marketing Law Blog (Eric Goldman)
This adds to a long-simmering split in Section 230 jurisprudence: can a plaintiff defeat a motion to dismiss simply by allegint hat the review website wrote the review in question?
http://blog.ericgoldman.org/archives/2012/06/pissedconsumer.htm
>>Order:
http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1073&context=historical
Showing posts with label Cybersquatting / Trademark. Show all posts
Showing posts with label Cybersquatting / Trademark. Show all posts
Article of the Month: Maryland Federal Court Rejects “Hot News” Misappropriation Claim
In addition to our brief posts on legal actions against bloggers, this blog will also be home to a monthly article exploring one of the cases in more depth. The article will also be published in MLRC's MediaLawLetter, our monthly magazine that covers what's happening in the media world. To see all of the articles from the MediaLawLetter, please consider joining Media Law Resource Center!
A recent decision from the District of Maryland, provides an interesting take on the “hot news” misappropriation tort. Agora Financial LLC v. Samler, No. 09-1200 (D. Md. June 17, 2010). At issue in the case were financial recommendations similar to those at issue in the closely-watched Barclays v. TheFlyOntheWall case currently pending before the Second Circuit. In Agora, the court denied plaintiffs’ motion for a default judgment and dismissed their “hot news” case because, the magistrate judge found, that plaintiffs’ financial recommendations were likely “original works” within the scope of the Copyright Act, and therefore any misappropriation claim involving them was preempted by Section 301. Magistrate Judge Beth Gesner’s findings were adopted in a summary order on July 15 by Judge William Quarles.
Background
Plaintiffs Agora Financial, LLC, Oxford Club, LLC, Taipan Publishing Group, LLC, Stansberry and Associates Investment Research, LLC, and Sovereign Offshore, LLC publish financial investment newsletters, featuring the recommendations of financial analysts for investment strategies, specific investments, and summary lists. The newsletters are only sent to paid subscribers.
Plaintiffs brought suit on Nov. 23, 2009 against defendant Martin Samler, who operates the website Tipstraders.com (which is also only available to paid subscribers). Samler’s website lists a number of different analysts; each analyst’s name links to a page that summarizes the analyst’s latest recommended investments as well as statistical information about the stocks’ performance. The website had a disclaimer that noted that “the picks above are, unless otherwise stated, entered by registered members of TipsTraders.com,” and noted that any analyst may have recommended trades not listed, as well as different entry/exit strategies. The disclaimer also disavowed any affiliation with or endorsement by the analysts.
Samler did not respond to the complaint, and on January 22, 2010, Judge Quarles asked the magistrate to consider entry of default judgment. The magistrate accepted the complaint as true, but questioned whether the plaintiffs had pled a legitimate cause of action.
“Hot News” Claim
Magistrate Judge Gesner studied the history, as well as the current status of the “hot news” misappropriation tort, from International News Service v. Associated Press, 249 U.S. 215 (1918), to the state of the doctrine after the 1976 revisions to the Copyright Act, which explicitly preempted any state cause of action if the state rights are “equivalent to any of the exclusive rights within the general scope of copyright” and the work falls “within the subject matter of copyright.”
She paid particular attention to the 1991 Supreme Court holding that facts are not copyrightable because they are not original to the author. Feist Publ’n Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). The Feist Court expressly noted that it was not overturning the 1918 INS decision. Feist, 499 U.S. at 354. She then came to the 1997 Second Circuit decision that held that hot news claims were not preempted by Section 301. National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). (She also noted that the Fourth Circuit had never recognized the NBA test, and that it had been explicitly rejected by Judge Quarles in Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737 (D. Md. 2003)). The magistrate took particular note of two separate passages in NBA. First, the NBA court defined what it considered to be the essential five elements of an INS claim:
NBA, 105 F.3d at 852. The NBA court noted that INS is not about ethics, but “the protection of property rights in time-sensitive information. The next passage in NBA was the one Magistrate Judge Gesner focused on:
Magistrate Judge Gesner noted that in the three-element test, the work at issue must be facts – and noted that the Agora plaintiffs had not set forth any proof or pleading that the material at issue was “factual information.” “Instead,” she wrote, “this material appears to be ‘original’ works, which are copyrightable, and, therefore, not subject to protection under the NBA court's formulation of the INS doctrine.
She noted that “most courts applying the NBA test have only applied it where the material at issue was ‘factual,’ and therefore not copyrightable, citing Scranton Times, L.P. v. Wilkes-Barre Publ’g Co., No. 3:08-cv-2135, 2009 U.S. Dist. LEXIS 17278 (M.D. Pa. Mar. 6, 2009) (facts from plaintiff’s obituaries), Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000) (time-sensitive concert information); Fred Wehrenberg Circuit of Theatres, Inc. v. Moviefone, Inc., 73 F. Supp. 2d 1044 (E.D. Mo. 1999) (plaintiff’s theaters’ movie listings).
Notable exceptions to this reading of NBA included the recent Barclays Capital, Inc. v. TheFlyOnTheWall.com, No. 06-cv-4908, 2010 U.S. Dist. LEXIS 25728 (S.D.N.Y. Mar. 18, 2010) (stock investment recommendations) and X17, Inc. v. Lavandeira, 563 F. Supp. 2d 1102 (C.D. Cal. 2008) (copyrighted photographs).
The magistrate reviewed the pleadings and found that there was no allegation that the work at issue was “factual,” and accordingly recommended the court deny the motion for default judgment. She also considered a Lanham Act claim, but held plaintiffs had failed to state a claim there as well because the disclaimers on the defendant’s website made clear that the website was in no way affiliated with plaintiffs or their employees, the analysts.
Judge Quarles accepted the magistrate’s recommendations in a summary order on July 15.
The recent Barclays decision only focused on the five-factor NBA test, and did not consider the three-prong test. Although many amicus briefs have been filed in the Barclays dispute – some arguing that Feist overruled INS and obliterated any protection for facts -- not one amicus seems to argue that investment recommendations are within the scope of copyright. (Instead, argues the brief of Google and Twitter: “The state law tort of ‘hot news’ misappropriation is unenforceable because the Copyright Clause has been construed to ban the removal of facts from the public domain, because application of ‘hot news’ misappropriation obstructs this constitutional mandate, and because states are precluded from implementing laws that interfere with constitutional guarantees.” Brief for Amici Curiae Google Inc. and Twitter, Inc. In Support of Reversal at 17, Barclays Capital, Inc. v. TheFlyOntheWall.com, Inc., No. 10-1372-CV (2d Cir. June 22, 2010).) Oral argument for the Barclays case was held on August 6; a decision is still pending.
A recent decision from the District of Maryland, provides an interesting take on the “hot news” misappropriation tort. Agora Financial LLC v. Samler, No. 09-1200 (D. Md. June 17, 2010). At issue in the case were financial recommendations similar to those at issue in the closely-watched Barclays v. TheFlyOntheWall case currently pending before the Second Circuit. In Agora, the court denied plaintiffs’ motion for a default judgment and dismissed their “hot news” case because, the magistrate judge found, that plaintiffs’ financial recommendations were likely “original works” within the scope of the Copyright Act, and therefore any misappropriation claim involving them was preempted by Section 301. Magistrate Judge Beth Gesner’s findings were adopted in a summary order on July 15 by Judge William Quarles.
Background
Plaintiffs Agora Financial, LLC, Oxford Club, LLC, Taipan Publishing Group, LLC, Stansberry and Associates Investment Research, LLC, and Sovereign Offshore, LLC publish financial investment newsletters, featuring the recommendations of financial analysts for investment strategies, specific investments, and summary lists. The newsletters are only sent to paid subscribers.
Plaintiffs brought suit on Nov. 23, 2009 against defendant Martin Samler, who operates the website Tipstraders.com (which is also only available to paid subscribers). Samler’s website lists a number of different analysts; each analyst’s name links to a page that summarizes the analyst’s latest recommended investments as well as statistical information about the stocks’ performance. The website had a disclaimer that noted that “the picks above are, unless otherwise stated, entered by registered members of TipsTraders.com,” and noted that any analyst may have recommended trades not listed, as well as different entry/exit strategies. The disclaimer also disavowed any affiliation with or endorsement by the analysts.
Samler did not respond to the complaint, and on January 22, 2010, Judge Quarles asked the magistrate to consider entry of default judgment. The magistrate accepted the complaint as true, but questioned whether the plaintiffs had pled a legitimate cause of action.
“Hot News” Claim
Magistrate Judge Gesner studied the history, as well as the current status of the “hot news” misappropriation tort, from International News Service v. Associated Press, 249 U.S. 215 (1918), to the state of the doctrine after the 1976 revisions to the Copyright Act, which explicitly preempted any state cause of action if the state rights are “equivalent to any of the exclusive rights within the general scope of copyright” and the work falls “within the subject matter of copyright.”
She paid particular attention to the 1991 Supreme Court holding that facts are not copyrightable because they are not original to the author. Feist Publ’n Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). The Feist Court expressly noted that it was not overturning the 1918 INS decision. Feist, 499 U.S. at 354. She then came to the 1997 Second Circuit decision that held that hot news claims were not preempted by Section 301. National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). (She also noted that the Fourth Circuit had never recognized the NBA test, and that it had been explicitly rejected by Judge Quarles in Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737 (D. Md. 2003)). The magistrate took particular note of two separate passages in NBA. First, the NBA court defined what it considered to be the essential five elements of an INS claim:
(i) the plaintiff generates or collects information at some cost or expense, (ii) the value of the information is highly time-sensitive, (iii), the defendant’s use of the information constitutes free-riding on the plaintiff’s costly efforts to generate or collect it, (iv) the defendant’s use of the information is in direct competition with a product or service offered by the plaintiff, and (v) the ability of other parties to free ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.
NBA, 105 F.3d at 852. The NBA court noted that INS is not about ethics, but “the protection of property rights in time-sensitive information. The next passage in NBA was the one Magistrate Judge Gesner focused on:
We therefore find the extra elements – those in addition to the elements of copyright infringement – that allow a ‘hot news’ claim to survive preemption are: (i) the time-sensitive value of factual information, (ii) the free-riding by a defendant, and (iii) the threat to the very existence of the product or service provided by the plaintiff.NBA, 105 F.3d at 853 (emphasis added).
Magistrate Judge Gesner noted that in the three-element test, the work at issue must be facts – and noted that the Agora plaintiffs had not set forth any proof or pleading that the material at issue was “factual information.” “Instead,” she wrote, “this material appears to be ‘original’ works, which are copyrightable, and, therefore, not subject to protection under the NBA court's formulation of the INS doctrine.
She noted that “most courts applying the NBA test have only applied it where the material at issue was ‘factual,’ and therefore not copyrightable, citing Scranton Times, L.P. v. Wilkes-Barre Publ’g Co., No. 3:08-cv-2135, 2009 U.S. Dist. LEXIS 17278 (M.D. Pa. Mar. 6, 2009) (facts from plaintiff’s obituaries), Pollstar v. Gigmania Ltd., 170 F. Supp. 2d 974 (E.D. Cal. 2000) (time-sensitive concert information); Fred Wehrenberg Circuit of Theatres, Inc. v. Moviefone, Inc., 73 F. Supp. 2d 1044 (E.D. Mo. 1999) (plaintiff’s theaters’ movie listings).
Notable exceptions to this reading of NBA included the recent Barclays Capital, Inc. v. TheFlyOnTheWall.com, No. 06-cv-4908, 2010 U.S. Dist. LEXIS 25728 (S.D.N.Y. Mar. 18, 2010) (stock investment recommendations) and X17, Inc. v. Lavandeira, 563 F. Supp. 2d 1102 (C.D. Cal. 2008) (copyrighted photographs).
The magistrate reviewed the pleadings and found that there was no allegation that the work at issue was “factual,” and accordingly recommended the court deny the motion for default judgment. She also considered a Lanham Act claim, but held plaintiffs had failed to state a claim there as well because the disclaimers on the defendant’s website made clear that the website was in no way affiliated with plaintiffs or their employees, the analysts.
Judge Quarles accepted the magistrate’s recommendations in a summary order on July 15.
The recent Barclays decision only focused on the five-factor NBA test, and did not consider the three-prong test. Although many amicus briefs have been filed in the Barclays dispute – some arguing that Feist overruled INS and obliterated any protection for facts -- not one amicus seems to argue that investment recommendations are within the scope of copyright. (Instead, argues the brief of Google and Twitter: “The state law tort of ‘hot news’ misappropriation is unenforceable because the Copyright Clause has been construed to ban the removal of facts from the public domain, because application of ‘hot news’ misappropriation obstructs this constitutional mandate, and because states are precluded from implementing laws that interfere with constitutional guarantees.” Brief for Amici Curiae Google Inc. and Twitter, Inc. In Support of Reversal at 17, Barclays Capital, Inc. v. TheFlyOntheWall.com, Inc., No. 10-1372-CV (2d Cir. June 22, 2010).) Oral argument for the Barclays case was held on August 6; a decision is still pending.
Buckles v. Brides Club, Inc.
D. Utah: Creation of False Blog and LinkedIn Account Targeting Utah Resident Supports Personal Jurisdiction in Utah -- Buckles v. Brides Club, Inc.
Technology & Marketing Law Blog
A federal district court in Utah recently concluded that several individuals who were allegedly involved in the creation of a false blog and LinkedIn account targeting a Utah resident are properly subject to personal jurisdiction in Utah.
http://blog.ericgoldman.org/archives/2010/08/creation_of_fal.htm
-- Decision, Buckles v. Brides Club, Inc.: http://www.scribd.com/doc/35900821/Buckles-v-Brides-Club-D-Utah-Aug-11-2010
Technology & Marketing Law Blog
A federal district court in Utah recently concluded that several individuals who were allegedly involved in the creation of a false blog and LinkedIn account targeting a Utah resident are properly subject to personal jurisdiction in Utah.
http://blog.ericgoldman.org/archives/2010/08/creation_of_fal.htm
-- Decision, Buckles v. Brides Club, Inc.: http://www.scribd.com/doc/35900821/Buckles-v-Brides-Club-D-Utah-Aug-11-2010
Agora Financial LLC v. Samler
D. Md.: Magistrate Recommends Denial of Default Judgment Against Aggregator Website; Hot News Misappropriation Claimed
Plaintiffs brought suit after the defendant began posting investment recommendations contained in plaintiffs' publications to his subscription-based website, Tipstraders.com. The magistrate, considering the plaintiffs motion for a default judgment, recommended the court dismiss the hot news misappropriation theory, noting that the Fourth Circuit has never adopted the five-factor test from NBA v. Motorola, and found that even if the court were to apply the NBA test, the claim would still fail because plaintiffs failed to allege that the recommendations were "factual information" rather than "original works," the latter of which would be protected by copyright (and thus a misappropriation claim would be preempted under Section 301 of the Copyright Act). The magistrate also recommended the court find that defendant's conduct did not violate Section 43(a) of the Lanham Act, because it was clear from defendant's website that there was no affiliation with plaintiffs.
-- Decision: Agora Financial LLC v. SamlerSee also:
MediaPost
A federal judge in Maryland said recently that stock recommendations should not be considered "hot news," but might deserve copyright protection.
>> Opinion: Agora Financial, LLC v. Samler
http://www.mdd.uscourts.gov/Opinions/Opinions/AgoraFinancial.pdfUpdate:
Order adopting decision:
http://ia360707.us.archive.org/19/items/gov.uscourts.mdd.168309/gov.uscourts.mdd.168309.27.0.pdf
See our Article of the Month post for a more in-depth look at this decision, and where it fits in the recent spate of "hot news" cases: http://mlrcblogsuits.blogspot.com/2010/09/article-of-month-maryland-federal-court.html .
Carl v. BernardJCarl.com, No. 1:07-cv-1128 (D.C. Va., order filed Sept. 30,2009)
STATUS: Pending
The plaintiff, a trained lawyer named Bernard J. Carl, was a founder of a private equity firm called Brazos Europe, Inc. This company attempted to acquire a small luxury brand in France; as part of the acquisition process, Brazos retained a French law firm. Unbeknownst to plaintiff, the French law firm subcontracted some work to Fabrice Marchisio, a partner in the French law firm Cotty Vivant Marchisio & Lauzeral. As a result of this work, Marchisio alleged that he was owed money by the plaintiff. Plaintiff refused to pay, and Marchisio and his firm brought suit in French court to recover the disputed fee; this suit failed.
After the case failed, Marchisio bought the domain name "bernardjcarl.com," and, as the sole content on the site, posted a letter from Marchisio to Carl (and his partner in Brazos, Sharon Fairbanks), asking them to please pay their bill. For example: "You enver complained about the quality of the our input but surprisingly 'disappeared' when invoice payment was due. We have tried to contact you many times since then.... but silence was the only answer. Have you forgotten our phone numbers?"
Carl brought suit in the Eastern District of Virginia, alleging false representation under federal trademark law, cybersquatting, cyberpiracy, and common law libel. The judge dismissed all but the libel claims on September 30.
Links and court documents
Sept. 30 Order
STATUS: Pending
The plaintiff, a trained lawyer named Bernard J. Carl, was a founder of a private equity firm called Brazos Europe, Inc. This company attempted to acquire a small luxury brand in France; as part of the acquisition process, Brazos retained a French law firm. Unbeknownst to plaintiff, the French law firm subcontracted some work to Fabrice Marchisio, a partner in the French law firm Cotty Vivant Marchisio & Lauzeral. As a result of this work, Marchisio alleged that he was owed money by the plaintiff. Plaintiff refused to pay, and Marchisio and his firm brought suit in French court to recover the disputed fee; this suit failed.
After the case failed, Marchisio bought the domain name "bernardjcarl.com," and, as the sole content on the site, posted a letter from Marchisio to Carl (and his partner in Brazos, Sharon Fairbanks), asking them to please pay their bill. For example: "You enver complained about the quality of the our input but surprisingly 'disappeared' when invoice payment was due. We have tried to contact you many times since then.... but silence was the only answer. Have you forgotten our phone numbers?"
Carl brought suit in the Eastern District of Virginia, alleging false representation under federal trademark law, cybersquatting, cyberpiracy, and common law libel. The judge dismissed all but the libel claims on September 30.
Links and court documents
Sept. 30 Order
Macias v. Rivera, No. ____ (Iowa Dist. Ct. filed Oct. 2009).
Status: Pending.
The owner of a television program aimed at Hispanics sued the creator of a soon-to-be-launched competing program for statements on his blog in advance of the show. The parties were originally going to produce the existing show together, but then had a falling out.
The statements at issue were posted on the "Calle Virtual" blog under the headline, "When Your Idea is Stolen."
Spanish-language TV shows involved in court battle
Status: Pending.
The owner of a television program aimed at Hispanics sued the creator of a soon-to-be-launched competing program for statements on his blog in advance of the show. The parties were originally going to produce the existing show together, but then had a falling out.
The statements at issue were posted on the "Calle Virtual" blog under the headline, "When Your Idea is Stolen."
Spanish-language TV shows involved in court battle
New York Times v. Friedland
Status: Cease and desist letter sent
The New York Times sent a cease-and-desist letter to Josh Friedland over the slogan of his The Food Section blog (www.thefoodsection.com), "All the News That's Fit to Eat," which the Times said caused confusion with its "All the News That's Fit to Print" slogan. Friedland removed the slogan, saying he did not have the time or resources for a legal fight.
Links and Court Documents:
http://www.thefoodsection.com/foodsection/2009/04/its-not-fit-to-say-all-the-news-thats-fit-to-print.html
Status: Cease and desist letter sent
The New York Times sent a cease-and-desist letter to Josh Friedland over the slogan of his The Food Section blog (www.thefoodsection.com), "All the News That's Fit to Eat," which the Times said caused confusion with its "All the News That's Fit to Print" slogan. Friedland removed the slogan, saying he did not have the time or resources for a legal fight.
Links and Court Documents:
http://www.thefoodsection.com/foodsection/2009/04/its-not-fit-to-say-all-the-news-thats-fit-to-print.html
Healix Infusion Therapy v. Helix Health, Civil No. H-08-0337 (S.D. Tex. 2008).
Status: Fraud and trademark claims dismissed; cybersquatting claim remains
Blogger Steven Murphy is a medical doctor in Connecticut whose blog, the Gene Sherpa (thegenesherpa.blogspot.com), discusses "personalized medicine," medical care customized to a patient's genetic and environmental background. The blog links to and often discusses Helix Health, a company that provides referrals to physicians who practice personalized medicine, and includes its logo.
Healix Infusion Therapy, an unrelated Texas company, holds the trademark for the term "Healix Health."
In 2007, Murphy, acting on behalf of Helix Health, filed an application for the trademark "Helix Health." Healix Infusion Therapy found out about the application, and filed a notice of opposition that it would be confusingly similar to its "Healix Health" trademark. After negotiations to resolve the dispute failed, Healix sued Murphy and Helix in federal court in Texas.
Regarding the claims against Murphy, the court dismissed the fraud claim for lack of evidence, and dismissed the trademark claim after finding that it did not have personal jurisdiction over Murphy. But it allowed the cybersquatting claim to continue. And it dismissed all the claims against Helix for lack of personal jurisdiction.
Links and Court Documents:
http://blog.ericgoldman.org/archives/2008/05/connecticut_blo.htm
http://www.thelen.com/tlu/HealixInfusionTherapyVHelixHealth.pdf
Status: Fraud and trademark claims dismissed; cybersquatting claim remains
Blogger Steven Murphy is a medical doctor in Connecticut whose blog, the Gene Sherpa (thegenesherpa.blogspot.com), discusses "personalized medicine," medical care customized to a patient's genetic and environmental background. The blog links to and often discusses Helix Health, a company that provides referrals to physicians who practice personalized medicine, and includes its logo.
Healix Infusion Therapy, an unrelated Texas company, holds the trademark for the term "Healix Health."
In 2007, Murphy, acting on behalf of Helix Health, filed an application for the trademark "Helix Health." Healix Infusion Therapy found out about the application, and filed a notice of opposition that it would be confusingly similar to its "Healix Health" trademark. After negotiations to resolve the dispute failed, Healix sued Murphy and Helix in federal court in Texas.
Regarding the claims against Murphy, the court dismissed the fraud claim for lack of evidence, and dismissed the trademark claim after finding that it did not have personal jurisdiction over Murphy. But it allowed the cybersquatting claim to continue. And it dismissed all the claims against Helix for lack of personal jurisdiction.
Links and Court Documents:
http://blog.ericgoldman.org/archives/2008/05/connecticut_blo.htm
http://www.thelen.com/tlu/HealixInfusionTherapyVHelixHealth.pdf
Morgan v. Goldman Sachs & Co., No. 09-14110 (S.D. Fla. filed April 13, 2009).
Status: Settled.
On March 26, 2009, investment advisor (and law school graduate) Michael Morgan began the www.goldmansachs666.com blog (also accessible at www.goldmansachs13.com) as "an open forum for facts and discussion about what part Goldman Sachs and their executives played in the current Global Economic Crisis." On April 8, the company sent Morgan a letter claiming that he was violating its trademark and demanding that he stop using the domains. Five days later Morgan sued, seeking a declaratory judgment that his use of the domains did not violated the Goldman Sachs trademark. In July 2009, the parties settled with an agreement that Morgan would put a disclaimer on his sites.
Links and Court Documents:
http://www.goldmansachs666.com/2009/04/goldman-sachs-v-mike-morgan.html
http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/5137489/Goldman-Sachs-hires-law-firm-to-shut-bloggers-site.html
http://www.huffingtonpost.com/2009/04/14/mike-morgan-florida-blogg_n_186549.html
http://amlawdaily.typepad.com/amlawdaily/2009/04/gripe-site-blogger-bites-back-at-goldman-sachs.html
http://www.dailyfinance.com/2009/04/23/media-world-short-seller-not-unloading-anti-goldman-site/
http://www.law.com/jsp/article.jsp?id=1202432304181&Goldman_Sachs_Backs_Down_in_Legal_Battle_With_Blogger
Complaint: http://www.morganfl.org/assets/mikesblog/GoldmanSachs666_Complaint.PDF
Stipulation and dismissal: http://amlawdaily.typepad.com/files/stipulation-and-dismissal.pdf
Status: Settled.
On March 26, 2009, investment advisor (and law school graduate) Michael Morgan began the www.goldmansachs666.com blog (also accessible at www.goldmansachs13.com) as "an open forum for facts and discussion about what part Goldman Sachs and their executives played in the current Global Economic Crisis." On April 8, the company sent Morgan a letter claiming that he was violating its trademark and demanding that he stop using the domains. Five days later Morgan sued, seeking a declaratory judgment that his use of the domains did not violated the Goldman Sachs trademark. In July 2009, the parties settled with an agreement that Morgan would put a disclaimer on his sites.
Links and Court Documents:
http://www.goldmansachs666.com/2009/04/goldman-sachs-v-mike-morgan.html
http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/5137489/Goldman-Sachs-hires-law-firm-to-shut-bloggers-site.html
http://www.huffingtonpost.com/2009/04/14/mike-morgan-florida-blogg_n_186549.html
http://amlawdaily.typepad.com/amlawdaily/2009/04/gripe-site-blogger-bites-back-at-goldman-sachs.html
http://www.dailyfinance.com/2009/04/23/media-world-short-seller-not-unloading-anti-goldman-site/
http://www.law.com/jsp/article.jsp?id=1202432304181&Goldman_Sachs_Backs_Down_in_Legal_Battle_With_Blogger
Complaint: http://www.morganfl.org/assets/mikesblog/GoldmanSachs666_Complaint.PDF
Stipulation and dismissal: http://amlawdaily.typepad.com/files/stipulation-and-dismissal.pdf
Smith v. Wal-Mart Stores, Inc., Civil No. 06-526 (N.D.
Status: Summary judgment granted to plaintiff, 537 F.Supp.2d 1302 (March 21, 2008).
After Wal-Mart threatened to sue Charles Smith over his use of Wal-Mart’s name, logos and similar-looking logos on his web sites criticizing the company, (www.walocaust.com and www.walqaeda.com), Smith filed suit, seeking a declaratory judgment that his uses did not violate Wal-Mart’s copyrights. Both parties moved for summary judgment, and Wal-Mart sought transfer of the URLs to its control. The court granted summary judgment to Smith, and denied Wal-Mart’s motion, holding that Smith’s use of Wal-Mart’s trademarks were parodies, protected under the “fair use” copyright doctrine, and would not lead to confusion.
Links and Court Documents:
http://insidebusiness.freedomblogging.com/2008/03/21/wal-mart-as-bad-as-al-qaida/
http://www.law.com/jsp/article.jsp?id=1206441810175
http://www.ajc.com/business/content/metro/atlanta/stories/2008/03/25/walmart_0326.html
Decision granting summary judgment: http://www.citizen.org/documents/WalmartDecision.pdf
Complaint and other court documents: http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=206
Virgin America v. Adrants Publishing, No. 3:09-cv-00337-BZ (N.D. Cal. filed Jan. 26, 2009).
Status: Pending.
In response to a fake advertisement for airline Virgin America that appeared on website adrants.com, Virgin brought a six-count complaint alleging, among other things, trademark infringement and defamation. A disclaimer was initially placed on the posting, but was later removed. The fake advertisement featured a photo of the crash of US Airways flight 1549 into the Hudson River and included the caption: “The Hudson Crash: Just One More Reason to Fly Virgin.”
Links and Court Documents
http://www.citmedialaw.org/threats/virgin-america-v-adrants-publishing
Status: Pending.
In response to a fake advertisement for airline Virgin America that appeared on website adrants.com, Virgin brought a six-count complaint alleging, among other things, trademark infringement and defamation. A disclaimer was initially placed on the posting, but was later removed. The fake advertisement featured a photo of the crash of US Airways flight 1549 into the Hudson River and included the caption: “The Hudson Crash: Just One More Reason to Fly Virgin.”
Links and Court Documents
http://www.citmedialaw.org/threats/virgin-america-v-adrants-publishing
Lavandeira v. Infuse, LLC, Civil No. 08-4764 (C.D. Cal. filed July 21, 2008).
Status: Claims against two defendants dismissed by plaintiff; default judgment against remaining defendant entered May 6, 2009).
Blogger Mario Lavandeira, who operates the perezhilton.com celebrity news blog, sued the owners and contributors to the similarly-looking and named perezrevenge.com blog site, for trademark infringement and unfair competition. The blogger behind the perezrevenge.com site, Elizabeth Silver, then filed her own suit in New York. In this California case, the court first issued a default judgment for the plaintiff against two defendants, then withdrew it when the defendants challenged the courts jurisdiction. The plaintiff then agreed to dismiss the case against those defendants rather than litigate the issue. A default judgment against the remaining defendant was issued in May 2009; the court ordered that defendant to stop using the perezrevenge.com name and to turn the site over to Lavandeira. Links and Court Documents:
http://www.citmedialaw.org/threats/lavandeira-v-infuse-llc
http://reporter.blogs.com/thresq/2008/07/perez-hilton-su.html
Complaint: http://reporter.blogs.com/thresq/files/PerezComplaint.pdf
http://reporter.blogs.com/thresq/2009/05/perez-hilton-lawsuit-win-perezrevenge.html
Final default judgment and order: http://reporter.blogs.com/files/judgment.pdf
Status: Claims against two defendants dismissed by plaintiff; default judgment against remaining defendant entered May 6, 2009).
Blogger Mario Lavandeira, who operates the perezhilton.com celebrity news blog, sued the owners and contributors to the similarly-looking and named perezrevenge.com blog site, for trademark infringement and unfair competition. The blogger behind the perezrevenge.com site, Elizabeth Silver, then filed her own suit in New York. In this California case, the court first issued a default judgment for the plaintiff against two defendants, then withdrew it when the defendants challenged the courts jurisdiction. The plaintiff then agreed to dismiss the case against those defendants rather than litigate the issue. A default judgment against the remaining defendant was issued in May 2009; the court ordered that defendant to stop using the perezrevenge.com name and to turn the site over to Lavandeira. Links and Court Documents:
http://www.citmedialaw.org/threats/lavandeira-v-infuse-llc
http://reporter.blogs.com/thresq/2008/07/perez-hilton-su.html
Complaint: http://reporter.blogs.com/thresq/files/PerezComplaint.pdf
http://reporter.blogs.com/thresq/2009/05/perez-hilton-lawsuit-win-perezrevenge.html
Final default judgment and order: http://reporter.blogs.com/files/judgment.pdf
E! Entertainment Television v. De Filippis, Case No. 2008-04355 (C.D. Cal. filed July 2008).
Status: Settled with preliminary injunction
The E! cable network sued the owner of the eNewsBuzz blog (www.enewsbuzz.typepad.com), claiming that the blog’s name infringed on its E! and E!News trademarks. The case was settled in Sept. 2008, with the defendant agreeing to a preliminary injunction barring use of the trademarks.
Links and Court Documents:
http://dockets.justia.com/docket/court-cacdce/case_no-2:2008cv04355/case_id-419763/
http://reporter.blogs.com/thresq/2008/07/hollywood-docke.html
Bosley Medical Institute, Inc. v. Kremer, No. 01-1752, 2004 WL 964163 (S.D. Cal. dismissed April 30, 2004), aff’d in part and rev’d in part, 403 F.3d 672 (9th Cir. 2005).
Status: Settled.
Status: Settled.
Defendant Michael Kremer, dissatisfied with hair restoration services at the Bosley Medical Institute, Inc., created a website (www.BosleyMedical.com; no longer existing) to complain. In 2000, the Institute filed a complaint with the World Intellectual Property Organization over Kremer’s use of an allegedly confusing URL for his site. WIPO ruled for Kremer, finding “legitimate fair use and free speech rights with respect to the use of the Domain Name for a criticism site.” Bosley Medical Group v. Kremer, Case No. D2000-1647 (WIPO Feb. 28, 2001). Then, in Sept. 2001 the company sued over Kremer’s use of its trademark “Bosley Medical” in federal court, and alleged that Kremer was “cybersquatting” (using a famous name as a web site URL in order to sell it to the entity most often associated with that name), which is actionable under Anticybersquatting Consumer Protection Act, 15 U.S.C. S.1125(d). The trial court dismissed all of the Institute’s claims. The Institute appealed, and the appeals court affirmed in part and reversed in part. The appeals court held that while Kremer’s noncommercial use of the trademark as a domain name was not actionable as infringement, but reversed on the cybersquatting claim and on the lower court’s dismissal of claims under state trademark law. In March 2007, the trial court denied Kremer’s motion for summary judgment on the cybersquatting claim and also denied his motion to dismiss the state law claims. 2007 WL 935708 (S.D.Cal. March 17, 2007). In July 2007, the parties settled.
Links and Court Documents:
http://www.internetlibrary.com/cases/lib_case369.cfm
http://www.digestiblelaw.com/cybersquatting/blogQ.aspx?entry=2990
http://copyfight.corante.com/archives/2005/04/05/im_not_only_a_member_of_the_hair_club_for_men_im_also.php
Appeals court decision: http://www.casp.net/cases/bosley.html
Omega World Travel v. Mummagraphics, Inc., Civil No. 05-122 (E.D. Va. jury verdict April 27, 2007).
Status: $110,000 award to plaintiff (reduced from $2.5 million on remittitur)
Mark Mumma operates a web site, www.sueaspammer.com, which tracks lawsuits against alleged spammers under the federal CAN SPAM Act (15 U.S.C. §§ 7701 et seq.). In 2005, he listed Omega World Travel, which operates the web site www.cruises.com, as a spammer after he received several unsolicited e-mails from the company, and his initial requests to be removed from the company’s e-mail lists were not honored. The travel company then sued for defamation, copyright infringement, trademark infringement, and unauthorized use of likeness. All but the defamation claim were dismissed. Mumma’s counterclaims against Omega World Travel, alleging violations of the CAN SPAM Act, were also dismissed by the trial court (51 F.Supp.2d 542, 51 F.Supp.2d 544); this ruling was upheld by the 4th Circuit Court of Appeals (469 F.3d 348 (4th Cir. 2006)). The defamation claim went to trial, resulting in a $2.5 million jury verdict ($500,000 compensatory, $2 million punitive). The court reduced this award to $10,000 compensatory damages and $100,000 punitive damages.
Links and Court Documents:
http://www.citmedialaw.org/omega-world-travel-v-mummagraphics
http://www.circleid.com/posts/oklahoma_spammer_fighter_loses/
http://thespamdiaries.blogspot.com/2007/04/mark-mumma-loses-badly.htm
Status: $110,000 award to plaintiff (reduced from $2.5 million on remittitur)
Mark Mumma operates a web site, www.sueaspammer.com, which tracks lawsuits against alleged spammers under the federal CAN SPAM Act (15 U.S.C. §§ 7701 et seq.). In 2005, he listed Omega World Travel, which operates the web site www.cruises.com, as a spammer after he received several unsolicited e-mails from the company, and his initial requests to be removed from the company’s e-mail lists were not honored. The travel company then sued for defamation, copyright infringement, trademark infringement, and unauthorized use of likeness. All but the defamation claim were dismissed. Mumma’s counterclaims against Omega World Travel, alleging violations of the CAN SPAM Act, were also dismissed by the trial court (51 F.Supp.2d 542, 51 F.Supp.2d 544); this ruling was upheld by the 4th Circuit Court of Appeals (469 F.3d 348 (4th Cir. 2006)). The defamation claim went to trial, resulting in a $2.5 million jury verdict ($500,000 compensatory, $2 million punitive). The court reduced this award to $10,000 compensatory damages and $100,000 punitive damages.
Links and Court Documents:
http://www.citmedialaw.org/omega-world-travel-v-mummagraphics
http://www.circleid.com/posts/oklahoma_spammer_fighter_loses/
http://thespamdiaries.blogspot.com/2007/04/mark-mumma-loses-badly.htm
BidZirk, LLC v. Smith, Civil No. 06-109, 2007 WL 3119445 (D. S.C. summary judgment granted Oct. 22, 2007) (unpublished).
Status: Summary judgment granted to defendant (Oct. 22, 2007).
In March 2005, Philip Smith consigned several items to BidZirk, which places customer’s items for auction on ebay.com. Smith was dissatisfied with the prices he received for some of the items, and in January 2006, began publishing entries on his “Fix Your Thinking” blog (http://jackwhispers.blogspot.com), starting with one titled “You Gotta Be Berserk To Use An eBay Listing Company!,” listing his grievances with BidZirk. The postings included BizZerk’s logo. BidZerk and its owners sued for trademark infringement, defamation and invasion of privacy; Smith countersued for claims based on the BidZerk’s sales of his items. The trial court denied a preliminary injunction against use of the logo, which was affirmed by the 4th Circuit. (Nevertheless, Smith agreed to remove all but one of the logos.) The trial court then dismissed the counterclaims. The lawsuit continued on BidZerk’s original claims against Smith, until the court granted summary judgment to the defendant in Oct. 2007.
Links and Court Documents:
http://www.citmedialaw.org/bidzirk-llc-v-smith
http://blog.ericgoldman.org/archives/2006/11/blog_lawsuit_ov.htm
4th Cir. decision: http://pacer.ca4.uscourts.gov/opinion.pdf/061487.U.pdf
Status: Summary judgment granted to defendant (Oct. 22, 2007).
In March 2005, Philip Smith consigned several items to BidZirk, which places customer’s items for auction on ebay.com. Smith was dissatisfied with the prices he received for some of the items, and in January 2006, began publishing entries on his “Fix Your Thinking” blog (http://jackwhispers.blogspot.com), starting with one titled “You Gotta Be Berserk To Use An eBay Listing Company!,” listing his grievances with BidZirk. The postings included BizZerk’s logo. BidZerk and its owners sued for trademark infringement, defamation and invasion of privacy; Smith countersued for claims based on the BidZerk’s sales of his items. The trial court denied a preliminary injunction against use of the logo, which was affirmed by the 4th Circuit. (Nevertheless, Smith agreed to remove all but one of the logos.) The trial court then dismissed the counterclaims. The lawsuit continued on BidZerk’s original claims against Smith, until the court granted summary judgment to the defendant in Oct. 2007.
Links and Court Documents:
http://www.citmedialaw.org/bidzirk-llc-v-smith
http://blog.ericgoldman.org/archives/2006/11/blog_lawsuit_ov.htm
4th Cir. decision: http://pacer.ca4.uscourts.gov/opinion.pdf/061487.U.pdf
Oklahoma Publishing Company et al v. Conradt, Civil No. 08-00713 (W.D. Ok. filed July 14, 2008).
Status: Settled for undisclosed payment
The publisher of the The Oklahoman newspaper and the newsok.com web site sued James W. Conradt, the creator of a University of Nebraska football fan site (www.darthhusker.com), after he posted a fake news story that mimicked the appearance of the newsok site on an Internet bulletin board, and placed a link to it on his own site. The fake story said that two University of Oklahoma football players, which were named, had been arrested on charges of cocaine distribution. Conradt removed the fake article after the newspaper served him with a cease and desist letter. The paper filed suit a few days later, alleging libel, and copyright and trademark infringement. The parties reached a settlement in Sept. 2008 which included an apology and undisclosed payment from Conradt.
Links and Court Documents:
http://newsok.com/article/keyword/3270140/
http://www.elpasotimes.com/news/ci_9886548
http://www.usatoday.com/sports/college/football/big12/2008-07-10-oklahoma-hoax_N.htm
http://www.newsok.com/article/3295059
http://dockets.justia.com/docket/court-okwdce/case_no-5:2008cv00713/case_id-70011/
Status: Settled for undisclosed payment
The publisher of the The Oklahoman newspaper and the newsok.com web site sued James W. Conradt, the creator of a University of Nebraska football fan site (www.darthhusker.com), after he posted a fake news story that mimicked the appearance of the newsok site on an Internet bulletin board, and placed a link to it on his own site. The fake story said that two University of Oklahoma football players, which were named, had been arrested on charges of cocaine distribution. Conradt removed the fake article after the newspaper served him with a cease and desist letter. The paper filed suit a few days later, alleging libel, and copyright and trademark infringement. The parties reached a settlement in Sept. 2008 which included an apology and undisclosed payment from Conradt.
Links and Court Documents:
http://newsok.com/article/keyword/3270140/
http://www.elpasotimes.com/news/ci_9886548
http://www.usatoday.com/sports/college/football/big12/2008-07-10-oklahoma-hoax_N.htm
http://www.newsok.com/article/3295059
http://dockets.justia.com/docket/court-okwdce/case_no-5:2008cv00713/case_id-70011/
Status: Settled (non-monetary).
The business improvement district for the area surrounding Union Square in New York City sued the creator of parody blog (at both www.unionsquarepartnership.org and www.unionsquarepartnership.com) criticizing the group’s plans for redevelopment of the park, claiming that the blog infringed on its trademarks and copyrights on its site, www.unionsquarenyc.org. Union Square Parnership also filed a claim with the World Intellectual Property Organization, seeking control of the blog’s URL. As part of non-monetary settlement, the blog’s URL was changed to www.weareunionsquare.org.
Links and Court Documents:
Case information: http://www.eff.org/cases/usp-v-durkee
NYP Holdings, Inc. v. LaVandeira, Civil No. 05-4305 (S.D.N.Y.
Status: Settled
The publisher of the New York Post, which features the “Page Six” gossip page (and has a trademark on the term), sued blogger Mario Lavandeira over the name of his blog, www.PageSixSixSix.com (now links to New York Post). Lavandeira agreed to rename his site, and now operates it as perezhilton.com.
Links and Court Documents:
Mentioned in http://www.usnews.com/articles/business/small-business-entrepreneurs/2007/12/11/the-gossip-artist.html
Jews for Jesus v. Google, No. 05-CV-10684 (S.D.N.Y. dismissed July 26, 2006)
Status: Settled; Dismissed with prejudice
Jews for Jesus filed suit against Google for trademark infringement over their refusal to remove the URL jewsforjesus.blogspot.com, which expressed views that were critical to the organization. The parties ended up settling the case and the court dismissed the suit with prejudice. The blogspot URL is now operated by the Jews for Jesus organization.
Links and Court Documents
http://www.circleid.com/posts/google_sued_for_trademark_infringement_on_third_level_subdomain/
http://www.citmedialaw.org/threats/jews-jesus-v-google
Complaint: http://www.scribd.com/doc/2693758/Jews-for-Jesus-v-Google-Inc-Document-No-1
Order dismissing case: http://www.scribd.com/doc/2704031/Jews-for-Jesus-v-Google-Inc-Document-No-15
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