Nothing says “economic depression” so much as when scam artists run con-games on the weakest citizens: the infirm, the old, and now, unemployed students and recent graduates without money.

The FTC issued a release last week, suggesting confidence games against unemployed students are back in vogue, in the form of “secret shopper” scams. Sites, similar to this Mystery Shopper site, entice students by touting an hourly wage in excess of $20.00/hour, “just for shopping and dining out” and writing reviews (the foregoing site has not been targeted by the FTC and the author makes no claims as to the legitimacy or illegitimacy of the site; this site serves as example only).

Here’s the catch: in order to start collecting money, students have to either pay a membership fee, or deposit a bogus check sent to them (as “advance”). In the former case, the membership fee is collected, but no money is forthcoming (“No one wants your review. Sorry.”). In the latter scenario, the company’s check bounces, and gets returned with the depositer’s account information on it, and money is removed from the account. The FTC found that Independent Marketing Exchange, Inc. engaged in such fraudulent business practices.

Working as a bone fide “secret shopper” is a legitimate undertaking and some companies are actively seeking — and paying — shoppers for real reviews. The money, however, is typically not of the sort that will net anyone a full time income. Moreover, according to the FTC, legitimate “secret shopper” companies do not ask for money up front and do not ask members to deposit checks prior to conducting any work. While not dispositive of a bogus company seeking to defraud people, these “red flags” should be heeded by those looking into this line of work.

Practice Note: Advise clients who run such a business to steer clear of deceptive business practices such as charging membership for a secret shopper program, even if the business is a legitimate one. Such practices may subject a business to FTC investigation and complaints.

Like Verizon did last year on the same day, Google has announced that it is changing its company name to Topeka. From a trademark law perspective, Google is acutely aware that the public must be educated on proper use of its new mark, so as to lower the risk that TOPEKA might become generic and lose its trademark status as so many marks have before it (such as cellophane, escalator or aspirin). To that end, the Google has posted these helpful trademark usage guidelines:

Further information about the TOPEKA re-branding effort is available here.

Ephemera is by definition written and printed matter that not intended to be retained or preserved. But six years ago the San Francisco couple, Rick and Megan Prelinger, dedicated a new library to ephemera of all kinds and descriptions in the Soma District of their city.

In their webpage, the open handed, unguarded access policy is startling for its clarity and brevity:

“We plan at first to open our library to others when we are there, and develop a model of service based on what we learn of other people’s needs. It will be an appropriation-friendly setting. Scanners, digital cameras, and CD/DVD burners will be available so that visitors can make digital copies of items of interest and take them home. There will be no charge for using the collections, though we are exploring charging for commercial reuse of the materials so as to recover some of our expenses.”

This is an amazing project for many reasons, including the fact that it has such an ‘appropriation friendly’ useable collection.

Rick Prelinger comments that “We have found that the divide between the digital and analog camps is real, but highly exaggerated by the media and by overeager analysts; and that print and electronic materials are evolving in tandem with one another, and that this evolution is retroactive as well.”

Making a home for the unwanted paper text has been the work of Aaron Lansky in salvaging Yiddish language publications at the National Yiddish Book Center in the 1980’s. His book “Outwitting History” is an engaging tale of how the acquisition program was born and evolved.

One wonders if the Google Library Project has plans to help these who are rescuing ephemera print from destruction.

We learned yesterday in the New York TImes written by Miguel Helft that Google is harvesting metadata and data from the Google Library Project to create the largest translation engine in the world. As Google has an edge of pattern recognition software to generate metadata, perhaps we will see the next Google project to expand to these libraries of salvaged analog text.

“Like its rivals in the field, most notably Microsoft and I.B.M.,
Google has fed its translation engine with transcripts of United
Nations proceedings, which are translated by humans into six
languages, and those of the European Parliament, which are translated
into 23. This raw material is used to train systems for the most
common languages.”

Netflix, the web based DVD rental service, launched as contest in 2006 offering a 1 million dollar prize to team that develops a recommendation algorithm that is shown to be 10% better that Netflix’s current recommendation engine. To those in the programming community, the challenge has been compared to scaling Mount Everest. Has the summit been reached?

It seems the two contest front runners, Team Pragmatic Theory and Team Bellkor in BigChaos, have joined forces and submitted an algorithm that was 10.05 percent better than the one Netflix uses to recommend movies to its subscribers. The result was published on the Netflix Prize leader board on June 26, 2009.

From a promotion law point of view, the contest winner must grant to Netflix, an irrevocable, royalty free, worldwide non-exclusive license under the contest entrant’s copyrights, patents or other intellectual property rights in the winning algorithm. In addition, a description of the algorithm, but not the source code, will be published on the Netflix site. I.e., the winners will “describe to the world how [they] did it and why it works.” Like all well conceived contests, the official rules provide a mechanism for determining the contest entrants actually created the entry submitted. It appears however, that the winners are not prohibited patenting their entry and winners are not prohibited from charging others for the use the algorithm.

This contest, where competitive incentives are offered as an alternative to in-house research and development, looks like a new, workable model to foster innovation.

In a long and hard fought battle, the Second Circuit Court of Appeals has given renowned fashion designer, Joseph Abboud, a chance to reclaim his name.

Issuing a sweeping injunction in June 2008, a Southern District of New York court enjoined Abboud from using his name to sell, market or promote his own business, goods and/or services, finding Abboud’s intended use constituted a breach of contract and would constitute trademark infringement. The Second Circuit, in J.A. Apparel Corp. v. Abboud, et al No. 08-3181-cv (Second Cir.) found here reversed and remanded.

J.A. Apparel Corporation (“JA”), a former joint venture of Joseph Abboud, sued the designer in federal court alleging breach of contract, trademark infringement, and related claims over Abboud’s plans to use his name in the marketing and advertising of his then new JAZZ line, which he intended to promote using with such phrases as “a new composition by designer Joseph Abboud.”

Underlying the dispute, in 2000 JA entered into a sales agreement with Abboud, paying Abboud 65 million dollars for the exclusive rights to the ABBOUD label and related JOSEPH ABBOUD trademarks. While Abboud claimed the agreement only transferred rights in the ABBOUD trademarks but not the rights in his name, JA asserted the contract sold both the trademarks and the exclusive rights to use the Joseph Abboud name for commercial purposes. The district court ruled Abboud had unambiguously conveyed to J.A. all of Abboud’s rights to use his personal name, trademarks, and trade names for commercial purposes and also found Abboud’s planned use of his name would constitute trademark infringement, as it was likely to cause consumer confusion.

Vacating the injunction, the Second Circuit remanded the case, ruling the district court: 1) erred in ruling the sales agreement unambiguously conveyed all of Abboud’s rights to use his name commercially; and 2) erred in rejecting Abboud’s fair use claim as a defense to trademark infringement. The appellate court specifically found that given the conflicting interpretations of the sales agreement, the district court should have considered the parties’ extrinsic evidence to more fully understand the parties’ intent and that the district court should have examined Abboud’s actual or proposed use to resolve his fair use defense.

COMMENTARY: This case highlights the risks inherent in licensing or selling a brand name which also happens to be an individual’s name. Because the parties failed to clearly and precisely define the scope of their agreement, Joseph Abboud stands to lose the right to his very valuable name. Granted, he was paid 65 million dollars, which may seem like more than adequate compensation….but how much is your name worth, and what would it take for you to sell it? As some might say, “priceless.” Take the time to get it right.

St. Louis Cardinals manager Tony La Russa has sued Twitter, the popular micro-blogging service in San Francisco Superior Court alleging: Trademark Infringement, False Designation of Origin, Trademark Dilution, Cybersquatting, Misappropriation of Name, and Misappropriation of Likeness. In the Complaint, Mr. La Russa states the defendant owns the domain name twitter.com, and pursuant thereto, twitter.com/TonyLaRussa. Mr. La Russa contends an unknown user, pretending to be La Russa, began posting updates as Mr. La Russa. One line of the “profile” suggested it was all a fake: “Bio Parodies are fun for everyone.”

According to the San Francisco Chronicle, La Russa’s attorney tried to contact Twitter before filing the lawsuit, but got no response. Hours after the lawsuit was filed, Twitter removed the fake La Russa page and its postings. It is being reported that the case has already settled. “La Russa said Friday [6/5/09] that Twitter has agreed to pay legal fees and make a donation to his Animal Rescue Foundation. The organization is likely to take control of the name www.twitter.com/TonyLaRussa. However, the Wall Street Journal is reporting the opposite.

The truth is out there.

Trademark Note: Using a trademark and then simply claiming “parody” is not a “get outta jail free card.” In trademark cases, when a parody defense is raised, the defendant justifies his use on the grounds of humorous social comment. Funny or not, a defendant’s use may still be enjoined if it is likely to cause confusion with plaintiff’s trademark. Courts must balance the public interest in poking fun at trademarks and the institutions they represent, with the trademark owner’s investment and good will. Courts must also protect consumers from likely confusion.

As of last Saturday, Facebook users have been able to register personalized URLs of their choice for their Facebook home page (e.g., facebook.com/myusername). Approximately 5.75 million users signed up for their own URL over the weekend (also called “Vanity URLs”).

These new usernames could potentially be anything, including someone else’s trademark. To help trademark owners prevent hijacking of their marks, Facebook put in place a temporary procedure for trademark owners to “reserve” their registered trademarks with Facebook in advance and prevent the creation of URLs associated with those marks. Facebook has now closed this reservation period.

So what can trademark owners do who did not register their trademarks with Facebook and discover unauthorized URLs? They can request removal by contacting Facebook via this notice form. The procedure is fairly straightforward. You do not need to be registered on Facebook to use it.

So go to Facebook, check possible URLs containing your marks and, if you discover unauthorized uses, take action sooner rather than later.

Linden Labs, the host of the immensely popular site Second Life, an online virtual world, has been sued in an Arizona district court for trademark infringement and unfair competition. The complaint, filed by Taser International, makers of non-lethal (and sometimes lethal) weapons, claims Linden Labs allows third parties to sell TASER guns inside the virtual world.

Just so we’re clear, no one on Second Life is actively selling real TASER guns; rather Taser is suing Linden (who doesn’t sell anything), for letting people sell virtual (digitally created) guns that look like TASER weapons, and that use the TASER brand. The suit also alleges unfair competition, trade dress infringement, and false designation of origin, among other claims.

For those uninitiated few, users of the Second Life world can use their credit card to buy digital currency (“Linden Dollars”). They can then use that currency to make purchases in Second Life. For instance, if a user would like to dress up his/her avatar in a ball gown, s/he can use the Linden Dollars to shop at a virtual prom store. Similarly, if a user wants “protection” (you know, from digital thugs), s/he can buy a virtual weapon. Linden gets its revenue from a small percentage taken during the currency exchange.

It’s not the first time a company has sued Linden; neither is it the first time a company has sued a hosting site for trademark infringement by third parties (think: Google). It may, however, be the first time a company has sued another company for hosting a site where third parties selling products that aren’t even real. Is it time for a Digital Millennium Trademark Act?

Practice Note: Notwithstanding the fact that there is no DMTMA, companies may want to consider adopting a policy that allows them to stay an arms length away from disputes between users when it comes to trademarks. It’s not a fail-safe method of safe harbor protection, but it may make would-be plaintiffs feel they have an option short of filing a lawsuit, for getting hard-to-find users to stop using their marks.

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The Coalinga Recorder and the local namesake high school were vindicated after the Court of Appeals in the Fifth District ruled that the paper’s reprinting of a tirade from a “MySpace” page was not an invasion of the page owner’s privacy. The court found that “the article was available to anyone with Internet access.”

Turns out Cynthia Moreno wanted the world to know how much she despised her home town of Coalinga, a small rural city in the Central Valley area of California. Moreno’s “Ode to Coalinga” was posted on her MySpace page after she graduated high school and was attending UC Berkeley.

Cynthia’s high school principal happened upon it during the Ode’s 6-day reign of terror on her MySpace page and immediately forwarded it to an editor at the Coalinga Recorder. It was subsequently published in the Letters section.

The Ode did not sit well with the local folks who, according to the complaint filed by Moreno and her parents, began their own reign of terror on the Morenos (who still lived in Coalinga), threatening death, and firing shots at the house. Hatred was so fierce, the Moreno family business had to shut down because no one would patronize it. In fact, they had to leave town, and subsequently sued the paper, the parent publisher, and the school district for invasion of privacy and intentional infliction of emotional distress.

In affirming the lower court’s decision to dismiss the “invasion of privacy” portion of the complaint, the Court noted, “Cynthia’s affirmative act made her article available to any person with a computer and, thus, opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material.” The court found unpersuasive Moreno’s argument that the girl never fully identified herself on the MySpace page in question, noting that her photograph and first name were sufficient to identify her as the author.

Practice Note: Increasingly, we are seeing postings on social networking sites being used in various ways in litigation. We are aware of several cases wherein a party has used a witness’ MySpace or FaceBook postings to impeach testimony. Companies may wish to consider policies regarding employee use of social media. As recently as today, according to CNET news an employee was fired for calling in sick (saying she needed to be in a dark room away from her monitor) and subsequently “FaceBooking” on the computer.

Personal Note: Mama, don’t let your babies grow up to be (irresponsible) Tweeters! In addition to litigation, increasingly, college admissions directors are surfing the Internet to see if there are vast distinctions between what they are reading in applications and the actual person. Social networking is a fine way to stay connected and show one’s unique personality, but parents must teach their children to be responsible about what they post and who they befriend. Children should be advised that digital information doesn’t disappear simply because it’s old, or because they remove it. A screen shot can easily be taken of anyone’s public information, without knowledge of the posting party. What happens in cyberspace really does stay there forever.

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The attached is a presentation I gave at the Food Marketing Association Legal Conference in San Antonio.

We had a good time and covered lots of topics. At the end of the day, we hit upon a few important take-away pieces of information:

1. The Social Networking/Social Media (“SM”) boom is not going away. People are going to find more ways to communicate digitally, and as the world’s psychographic changes (younger people start coming into adulthood), vendors who don’t assimilate SM into their plans are going to be left behind.
2. Currently, the legal issues are the same ones we’ve been addressing for the past few years with regard to blogging, domain hosting and user-generated content (third party trademark use; defamatory statements, hijacking of profiles, etc.).
3. In the long run, current law is going to require some tweaks, and we’re beginning to see them (be patient):
— The FTC has already come out with new “affiliate marketing/testimonial” guidelines (clear response to “fake” social networking sites).
– Likely change in SM sites will be clear disclosure of company-sponsored social sites (right now, if you get “busted” for fabricating a site, you’ve just got egg on your face). Legislation likely coming relating to origin.
– Affiliate SM sites likely to have to disclose that they have been paid for their testimonials. This is consistent with existing law regarding testimonials, but not currently enforced.
4. As technology advances, a greater burden will be placed on ISPs to protect against access by children; on the flip-side, parents are going to have to take more responsibility for what their kids are doing online.
The sky is not falling (see my last slide of “babies-booze-betamax”):
– People still (generally) make babies the same way, so online social networking will not replace direct communication.
– Young people will quickly learn how to interact, and in a difficult job market, interpersonal skills will separate out those who don’t have them.
– When new technologies are brought forth, some folks imbibe to excess. Much like the steep rise in alcoholism after prohibition, social mores and legislation over time made most folks use alcohol sensibly; the same thing is true for technology.
– Lawyers out there: relax and take a philosophical view: the fear that everything as we know it will change is unfounded (remember, we thought that the BetaMax would make real-time TV and advertising obsolete). Things will change slowly and over time, but companies will be able to get out their message.

Social Media 1

In a huge victory for U.S. copyright owners (including Warner Bros, Sony Music Entertainment, EMI, and Columbia Pictures) in their longstanding battle against The Pirate Bay, the largest BitTorrent file-sharing web site, a court in Stockholm, on Friday, convicted the four site owners to one year in prison and a fine of about $3.5 million for copyright violations. The Court found that the defendants knew that the content being shared was protected by copyright.

With over 20 million reported users and millions of files exchanged every day, The Pirate Bay is one of the most high-profile facilitators of P2P file-sharing on the internet. The Pirate Bay, based in Sweden, was set up in 2003 by the anti-copyright group Piratbyran (“The Piracy Bureau”). The site does not technically host copyrighted content on its servers, but indexes and links to BitTorrent files (music, movies, TV shows, etc.) on its users’ computers. The site is known for its militant (and sometimes humorous) opposition to copyright laws and the Hollywood industry, and has been involved in many lawsuits. Some countries, like Denmark, have banned access to the site altogether. The site was also blocked by Facebook a few weeks ago after The Pirate Bay tried to create a “Share on Facebook” application.

The U.S. film industry, led by the Motion Picture Association of America (MPAA), has worked tirelessly with Swedish authorities to shut down the site since its creation and filed a criminal complaint against The Pirate Bay’s owners in 2004. In 2006, the Swedish police raided The Pirate Bay offices for copyright violations, ceased their servers and shut down the site for a few days. Last year, the four Pirate Bay owners were charged by a Swedish court with “promoting other people’s infringements of copyright laws.”

The defendants have maintained that the site is not illegal under Swedish laws because they do not store copyrighted material on their servers but instead act as a directory for users who wish to exchange files. The defendants say they plan to appeal; in the meantime, the sentences are suspended. Their response to the sentencing is available here (for now!).

This is big news in the world of internet domain names. Trademark holders have expressed concerns about ICANN’s decision to soon allow custom Top-Level Domains (e.g., .google, .disney, .newyork, .cars, etc.). Companies and other interested parties now have a bit more time to prepare for the change and decide whether to apply for new Top-Level Domains themselves, including domains that may contain their trademarks. The public will also have an opportunity to make further comments to the proposal this Summer.

Top-Level Domains (TLDs) are the portion of a domain name that is to the right of the dot (e.g., .net, .com, etc.). TLDs that are not country codes (e.g., .cn or .uk), are called generic TLDs (gTLDs). ICANN is the body that approves and recommends new gTLDs.

Currently, TLDs are limited to 21 generic top-level domains (like .net, .com, .org or .info). After allowing a few limited expansions (for example, .mobi), ICANN announced last year that it would dramatically expand this system and allow custom gTLD, subject to an elaborate application and evaluation procedure (and, of course, a fee). The new gTLDs can consist of almost anything, including trademarks, geographic locations and generic terms, as well as non-Roman characters. Applicants will have a limited time period to apply for new gTLDs.

The official launch of the program was originally planned for June 2009. After receiving a number of objections and comments from trademark holders and the business community, ICANN just announced that it will delay the program until at least December 2009. A committee is evaluating, and developing solutions in response to the “overreaching issues” with the program. Some of those concerns include: skyrocketing costs for trademark holders, and increased opportunities for malicious behavior and infringement online.

So what’s next? A further report and draft guidebook are scheduled to be published by ICANN in May and June 2009, at which point a new comment period will open. Under the current schedule, it appears that the publication of the “Final Application Guidebook” is planned for December 2009 or the first quarter of 2010. Applications for new gTLDs will be open for 45 days from that date.

Further information is available on the ICANN web site

Blockbuster may not be able to rely on the what I learned in Kindergarten defense when it answers charges it illegally shared a plaintiff’s movie preferences with third parties. In a suit filed in Texas earlier this month, Cathryn Harris sued Blockbuster for sharing her rental history on Facebook.

The suit, which is currently seeking class action status, claims Blockbuster’s actions of feeding renters video choices to a news feed violate the Videotape Privacy Protection Act, (“VPPA”) which states in relevant part that a video tape service provider is liable under the VPPA if that provider knowingly discloses personally identifiable information without the renter’s “informed, written consent.” Harris contends the online “opt out” options she was given did not constitute her informed written consent as intended by the VPPA.

The sharing comes as a result of Blockbuster’s participation in the Beacon advertising program, which has received considerable attention and criticism from consumer activist groups and corporations over the past 18 months. Beacon is a form of “social advertising” that allows Facebook friends to see your purchases (as well as other transactions you make) through news feeds. After considerable controversy, Facebook changed the “opt out” provision to an “opt in” provision, so that users would not inadvertently share their personal information simply by accepting the use agreement. Even so, last year, Coca-Cola announced it would not be participating in the program, as did Overstock.com and several other companies, citing privacy concerns. For instance, research showed that participating companies were sending information to Facebook even for buyers who were not Facebook members. Although Facebook claims it deletes such information if and when it is received, many partner sites determined the program contained too many privacy problems for them to feel comfortable participating.

The VPPA was enacted in 1987. It is rarely cited and was clearly not created with the sort of digital transmission of private information in mind that happens today. In fact, the VPPA was enacted after Robert Bork’s video rental history was published during his Supreme Court nomination hearings.

Practice Note: Privacy policies are tricky things. Clients should be advised to create policies that they can follow. Any updates to a privacy policy, particularly ones that will change the way a user’s information is shared, should be highlighted in bold.

Jacobsen v. Katzer, No. C06-01905 JSW, 2007 U.S. Dist. LEXIS 63568 (N.D. Ca. August 17, 2007)

This little case about model railroad software addresses a debated issue in the open source community: on what basis can open source creators sue people who misuse their work. This case seems to suggest breach of contract is an available remedy, but not copyright infringement. The case also deals with copyright law preemption.

Plaintiff developed model train software made available on this online community. Plaintiff’s work was subject to a standard open source software license permitting members of the public to make copies, distribute and make derivative works, providing they gave credit to the creators. Plaintiff alleged that defendants used plaintiff’s software to develop and fraudulently patent their own software for model train enthusiasts. Plaintiff sued on a number of counts and moved for a preliminary injunction to enjoin defendants from willfully infringing plaintiff’s copyrighted materials.

The court first held that plaintiff’s claims of unfair competition and unjust enrichment were preempted by federal copyright law, as both counts dealt “exclusively” with the misappropriation of plaintiff’s copyrighted files, a subject matter within the Copyright Act. To survive preemption the state claims must protect different rights than copyright rights. The state claims here did not add the required “extra element” to change the nature of the action or the rights secured under copyright law.

The court then denied plaintiff’s injunction, stating that plaintiff’s claims sounded in contract, not copyright. The court held that, implicit in a non-exclusive license like this one was a promise not to sue for copyright infringement. That is not to say that a licensor may never sue for copyright infringement, but they may only do so when the licensee exceeds the scope of the license. In this case, the license, like all open source licenses, was intentionally broad, closing the door to a copyright claim.

The Internet Optimization Bureau, an official sounding organization bearing a government-like seal, has been fowarding invoices to unsuspecting domain name owners, directing them to pay upwards of $300.00 to maintain a service these holders never bought in the first place.

The scam seeks to target people who fear that their domain name will be canceled if they don’t renew. The company has used several unfair business practices, including using a government style seal, not properly disclosing that what they are sending is an advertisement, referring to the ad as an “invoice,” and directing it to accounts payable. According to a spokesperson at the FTC, these phony invoices scam great numbers of consumers. This law firm was recently sent 3 separate “invoices” to pay for domain name maintenance that was never purchased in the first place. To download a copy of the invoice, please click here

Under federal and state law, there are specific provisions that address and proscribe using, distributing, or selling a written communication that simulates or is represented falsely to be a document authorized, issued, or approved by a court, an official, a governmental agency, or any other governmental authority, or that creates a false impression about the communication’s source, authorization, or approval. This document has been forwarded to the state attorney general and to the FTC for possible prosecution.

Interestingly, soon after receiving the invoice, this firm received a second communication, rescinding the “invoice,” most likely because it realized it was trying to scam a law firm. To download a copy of this correspondence, click here.

Practice Pointer: Warn clients that they may receive such phony communications, either in the form of an Internet Renewal/Domain Name Renewal, or in the form of a Trademark Maintenance Service. Our policy is to have clienst forward any and all communications requesting money for trademark work or internet work directly to the firm for review. In 100% of the cases, they have been money scams.

U.S. District Court Judge Amy St. Eve has, at the request of the FTC, frozen the assets of Clevelink Trading and Real World Media after receiving complaints that the companies were driving traffic to their sites in violation of the recently enacted CAN-SPAM Act.

The FTC alleges that the spam sent out by Defendants contained a “date lonely wife” subject line and a brief message containing a hyperlink to Defendants’ website. The methods used by the Defendants to send the messages violated a number of provisions of the CAN-SPAM Act, including a provision requiring marketers to adequately label messages containing adult sexual content.

The FTC alleges that the Defendants operate close to 200 websites, many of which falsely claim to be registered with other entities around the world. In addition, defendants use offshore payment processors, have foreign bank accounts, route the messages through other people’s computers (to throw off enforcers), have false contact email addresses, and don’t allow people to unsubscribe. Perhaps most importantly for some consumers, there were no lonely housewives to date at all. That’s just plain wrong.

Practice Pointer: The CAN-SPAM Act, which went into effect January 1, 2004, covers email transmission where the primary purpose of the email is commercial in nature. Operators of websites should familiarize themselves with the basic provisions of the Act. In its most basic form, the Act bans the use of false or misleading headers, prohibits deceptive subject lines, and requires that commercial emails have an “opt-out” mechanism so consumers do not have to receive future emails.

Google News, one of the more recent additions to the Google family of specialty sites has been sued in the District of Columbia by Agence France Presse (AFP), the French equivalent of the Associated Press. In the suit, AFP claims that Google News is “reproducing and publicly displaying AFP’s photographs, headlines, and story leads on Defendant’s news aggregation Web site.” In addtion, the suit claims that Google also is stripping from the lead stories AFP’s copyright information.

Pivotal to this case will be the question of whether — in the new digital age — publishers of content have any duties beyond those noted in the Copyright Act to keep information on their web sites from being indexed by news web crawlers, like the ones at Google. According to Google, technology is available to block the web crawlers used by Google. AFP claims that a copyright statement is sufficient to ward off would-be infringers, and that it has not responsibility to purchase technology to keep out Google.

Other issues that will no doubt come up in the case include whether the headlines that Google is taking constitute the heart of AFP’s creative authorship. On the one hand, headlines typically constitute only a few words compared to the total article. On the other, many copy editors work very carefully to craft headlines that will attract the reader and accordingly, can come up with some unique presentations. Then again, many news organizations use a technology called Real Simple Syndication, which automatically pushes headlines to users. Such widespread use of this type of technology suggests that the market for purchasing the article may not be depleted by the taking of the headlines.

One hopes that Google’s litigation budget is not yet maxxed out. Google also recently launched a service called Google Books. According to Internetnews.com, Google Books indexes the content entire books such that a search query might trigger a quote from one of them. Shakespeare, perhaps or other books in the public domain may be fair game; still, wethinks we smell something smouldering.

The Sixth Circuit Court of Appeals affirmed a lower court decision that transferred ownership of the domain name foradodge.com to Daimler-Chrysler, finding that the original registrant of the domain had a bad faith intent to profit from the mark, which was confusingly similar to Dodge’s advertised phone number 1-800-4-A-DODGE.

The case, Daimler-Chrysler v. The Net, Inc. Case No. 03-1950, 04a0368 p.06 (6th Cir. Oct 28, 2004), was on appeal from the defendant who challenged the holding of the lower court that 1) plaintiffs had established trademark rights in FORADODGE, and 2) that defendant had acted in bad faith in registering the domain name in the first place.

As to the first point, the defendant argued that the plaintiff merely used the mark 4-a-dodge as a phone number, and not as a trademark, contrasting it with marks such as 1-800-flowers, which is the actual business name. The Sixth Circuit disagreed, finding that the test is not merely whether the mark is used as a trademark, but whether consumers would believe that the 4ADODGE website, which incorporated the DODGE trademark , was related to or sponsored by Daimler-Chrysler. The Court dismissed slight differences in the spelling of the domain as immaterial.

The Court also rejected the defendant’s second claim that he had not registered the domain in bad faith. The defendant claimed that he was planning to use the website to help consumers circumvent or //dodge// certain realities of life, such as paying taxes and parking tickets. The Court didn’t buy it, finding that the defendant qualified for all but one of the nine-factor test for a showing of bad faith.