Free for a Fee

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The content in this post was found at http://arstechnica.com/tech-policy/2015/05/walmart-horse-is-put-out-to-pasture-after-retailer-starts-domain-dispute/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

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The content in this post was found at http://arstechnica.com/tech-policy/2015/05/trademark-lawyer-to-3-man-startup-hand-over-your-domain-or-else/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Keyword advertising using competitors’ trademarks is now so well-accepted, it may be hard to remember that the practice used to generate serious debate among lawyers and ethicists. In particular, the search engines drew substantial legal fire from trademark owners for selling “their” trademarks; at one point around 2010, I believe Google had about a dozen simultaneously pending lawsuits.

Recently, a California appellate court dismissed another competitive keyword advertising lawsuit against Google and Yahoo. As far as I know, it was the last remaining lawsuit of its kind. As a result, for the first time in at least a decade, I believe there are no more pending lawsuits against search engines regarding competitive keyword advertising.

About the Ruling

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Case citation: Ison v. Google, Inc., 2015 WL 3395574 (Cal. Ct. App. May 27, 2015)

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A Swiss Del Monte entity that had a license to use the “DEL MONTE” mark applies to operate the .delmonte generic top level domain (gTLD). Another Del Monte entity, based in Delaware, filed a “legal rights objection” (under WIPO-established procedures) to the Swiss Del Monte’s application. A three member panel sustained the Delaware company’s LRO. (Here’s a .pdf link to the panel decision.) The Swiss entity sued in federal court seeking a declaration that it had sufficient rights in the “DEL MONTE” mark to operate the TLD and that it was not violating the Anti-cybersquatting Consumer Protection Act (ACPA, the cybersquatting statute) in doing so. The Swiss entity further sought an injunction requiring the Delaware entity to withdraw its LRO.

The court says an initial question is whether it has jurisdiction. . . .

Is a gTLD a “Domain Name”?

On the key question of whether plaintiff’s application to operate the .delmonte TLD implicates the ACPA, the court says it’s a matter of first impression. Generally, courts ignore the TLD in the context of the trademark analysis (i.e., acme.com is treated the same as “acme” for trademark purposes). Nevertheless, the case law is largely inconclusive.

The court looks to the text of the ACPA and says it’s equivocal:

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The content in this post was found at http://blog.ericgoldman.org/archives/2014/02/court-declines-to-review-lro-to-saying-gtlds-arent-domain-names-for-cybersquatting-purposes.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

A domain name registrant transferred the petronastower.net and petronastowers.net domain names into GoDaddy and used GoDaddy’s name forwarding service to direct them to (NSFW) canfunchat.com. Petronas asked GoDaddy to turn over the domain names to Petronas. GoDaddy declined. Petronas sued, and after conducting limited discovery, the district court dismissed the case.

On appeal, the Ninth Circuit considered whether the Anti-Cybersquatting Consumer Protection Act (ACPA) provides for a cause of action for contributory cybersquatting. A few district court cases had said such a cause of action is available, albeit in “exceptional circumstances” (see the Shah and Namecheap rulings). The Ninth Circuit flatly says the ACPA does not provide for contributory liability. The court gives two reasons for its conclusion.

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The content in this post was found at http://blog.ericgoldman.org/archives/2013/12/ninth-circuit-kills-contributory-acpa-cybersquatting-doctrine-petronas-v-godaddy.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

By Eric Goldman

Jurin v. Google, Inc., 2012 WL 5011007 (E.D. Cal. October 17, 2012).

Google ($GOOG) makes billions of dollars a year selling AdWords ads triggered by third party trademarks.  Over the past decade, trademark owners have brought about 20 lawsuits against Google challenging these ad sales.  These lawsuits have ranged from high-stakes class action lawsuits (the FPX lawsuit) to well-funded challenges by big  trademark owners (e.g., the Rosetta Stone ($RST) and American Airlines lawsuits) to poorly funded lawsuits by no-name trademark owners like the case I discuss in this post.  In a remarkable litigation tour-de-force, Google has never definitively lost any of these cases in court (though it has occasionally lost intermediate rulings).  At the same time, Google hasn’t definitively won any of its cases in court either.  This makes Google’s recent wi in an AdWords trademark case noteworthy.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/10/google_defeats_1.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Three days ago, Apple was ordered to pay $368.2 million for infringing domain name security and virtual private network patents for its FaceTime service. Now, it turns out the same company that beat Apple in that case—VirnetX—filed a new lawsuit against the iPhone maker on the very same day.

The suit, filed Tuesday in US District Court in Eastern Texas (PDF), repeats the same allegations but updates them to target Apple’s latest products. Those include the iPhone 5, fifth generation iPod Touch, fourth generation iPad, iPad mini, and all Macs using OS X Mountain Lion. FaceTime, iMessage, and Apple’s use of VPN On Demand technology are the culprits, VirnetX says. The plaintiff is demanding monetary damages and a permanent injunction preventing Apple from continuing to infringe its patents.

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The content in this post was found at http://arstechnica.com/tech-policy/2012/11/apple-sued-again-by-company-that-won-368m-judgment-over-facetime/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

[Post by Jake McGowan]

Branca v. Mann, CV 11-00584 (C.D. Cal. Aug. 10, 2012)

When a celebrity goes bankrupt or forgets to pay a bill for his/her physical-space storage locker, opportunists may swoop in and purchase the goods so they can try and turn a profit reselling them. But sometimes, these buyers get a little overzealous–they convince themselves that their interest in the tangible property gives them an interest in some of the celebrity’s underlying intellectual property rights. This leads to poorly designed pay-for-access websites with risqué names like “parisexposed.com.”

A district court in California heard one of these storage locker disputes in Branca v. Mann, where the defendants set up a pay-for-access website relating to the late Michael Jackson. The court lowered the boom on August 10th, granting summary judgment in favor of the plaintiffs for a long list of claims including copyright infringement, false designation of origin, misappropriation of likeness, cybersquatting, and so on.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/09/buyers_of_micha.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

By Eric Goldman

Habush v. Cannon, 2012 WL 2345137 (Wis. App. Ct. June 21, 2012). The case record. My prior blog post on this case.

You may recall this case. Habush Habush & Rottier and Cannon & Dunphy are both leading personal injury law firms in Wisconsin. The Cannon firm bought the names “Habush” and “Rottier” as keywords for its competitive keyword ads. Habush and Rottier then sued the Cannon firm and its principals for violations of Wisconsin’s publicity rights statute. To my knowledge, this is the only pending lawsuit over keyword advertising triggered by a person’s name, and there’s no direct precedent on point. Furthermore, the publicity rights doctrine is so under-theorized that no one really knows how to define its boundaries. Because of the doctrinal morass and the technological underpinnings, this case is giving judges fits. The lower court judge ruled for the defense but wrote an odd opinion, and basically expressed resignation knowing that he was going to be appealed no matter what he ruled.

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The content in this post was found at http://blog.ericgoldman.org/archives/2012/06/appeals_court_d.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

By Eric Goldman

Dwyer Instruments, Inc. v. Sensocon, Inc., 2012 WL 2049921 (N.D. Ind. June 5, 2012)

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