Q3 2012 Quick Links, Part 1 (Trademarks/Domain Names, Patents, Trade Secrets)
By Eric Goldman and Jake McGowan
* AdAge: “Consumers Don’t Really Know Who Sponsors the Olympics.” This reminds us that trying to protect against “sponsorship confusion” is futile. For example: 16% believed Google sponsors the Olympics; and of those, 60% feel more positively towards Google because of that (factually faulty) perceived sponsorship.
* Suntree Technologies, Inc. v. Ecosense Intern., Inc., 2012 WL 3832458 (11th Cir. Sept. 5, 2012):
“Because Suntree failed to present evidence of an intent to mislead or confuse, or of actual confusion, we need not reach the question whether initial interest confusion is actionable in the Eleventh Circuit”
You know where I stand on that question!
* Diller v. Barry Driller, Inc. 2012 WL 4044732 (C.D. Cal. Sept. 10, 2012):
Defendants have not successfully parodied Plaintiff and they cannot defeat likelihood of confusion on that basis. First, nothing on Defendants’ website itself sets up the “clear distinction” required by Dr. Seuss between Plaintiff on the one hand and “Barry Driller” on the other to convey to the reasonable viewer that the use of “Barry Driller” is a parody of Plaintiff. Second, even if a parody of Plaintiff, Defendants are using “Barry Driller” purely commercially as a source identifier to sell their internet-streaming television service, and their use therefore falls within the Lanham Act, as in White. Finally, as in Doughney, when a visitor initially sees the “barrydriller.com” domain name, he or she does not see any other information to suggest that the website might be a parody of Plaintiff.”
* Lens.com v. 1-800 Contacts (Fed. Cir. Aug. 3, 2012):
“LENS mark is used only in connection with the sale and transportation of contact lenses via the Internet. Although the ordering service is facilitated through software, the record does not indicate that consumers have any reason to be aware of any connection between the LENS mark and Lens.com’s software.”
* If you’re selling domain names that have been blocked by Google, you really ought to disclose that. Then again, if you’re buying domain names, you really should ask about that.
* More Congressional questions about ICE’s domain name seizures.
* The Saudi government objects to numerous new gTLD proposals on moral grounds.
Patents and Trade Secrets
* Judge Posner: Why There Are Too Many Patents in America
* The proposed SHIELD Act, Saving High-tech Innovators from Egregious Legal Disputes. It’s a proposal to monkey around with fee-shifting in patent law to suppress trolling. One of the many topics at our November conference, Solutions to the Software Patent Problem.
* American Chemical Society v. Leadscope: Ohio Supreme Court Affirms $26.5 Million Award [to the Defendant] for Malicious Trade Secret Litigation.
* Bloomberg BNA (BNA paywall): “A review and analysis of the more than 120 [Economic Espionage Act] prosecutions suggests that neither government, nor industry is doing enough to protect against the theft of trade secrets by foreign entities and unscrupulous competitors. The Department of Justice must substantially increase the number of EEA prosecutions if the EEA is to truly serve as a deterrent against thefts.”
* Protecting American Trade Secrets and Innovation Act of 2012. A proposal to create a federal civil cause of action for trade secret misappropriation, including a provision for ex parte seizures. I don’t know who’s advocating for something as ridiculous as this, but we need vigilantly guard against unneeded and dangerous expansions of trade secret law.
* Wired: Incompetent or Shrewd? 7 Tech Companies That Leaked Their Own Secrets