Q1 2014 Quick Links, Part 1 (IP)

Photo credit: 3D Quick Link Crossword // ShutterStock

Copyright

* Perfect 10, Inc. v. Giganews, Inc., No. 11-7098 (C.D. Cal. Jan. 29, 2014). Upholding Giganews’ policy of terminating repeat infringers. The ruling also is critical of Perfect 10’s method of sending takedown notices, saying that Perfect 10 may have had to identify each Message-ID for allegedly infringing USENET posts. Prior blog post.

* Swatch Group v. Bloomberg: Republishing a recording of an analyst call is protected by fair use.

* Dow Jones v. Ransquawk complaint. Dow Jones asserts hot news claims against an aggregator.

* TorrentFreak: Washington Attorney General Hits Cyberlocker for “Deceptive Practices.” State AGs are trying to find backdoor ways to pursue alleged copyright infringement. We all know how well that will turn out.

* The Atlantic: How Netflix Reverse Engineered Hollywood

* Digital Music News: No One Wants To Talk Numbers When It Comes To Streaming Revenue. Well, Here Are Mine.

* Cracked: 7 Things a Record Deal Teaches You About the Music Industry

Patent

* BBC: The sleepy town kept busy with $2m-a-day patent cases

* NY Times: Disgraced Scientist Granted U.S. Patent for Work Found to be Fraudulent

Trademarks

* JL Powell Clothing LLC v. Powell, No. 2:13–CV–00160 (D. Me. Jan. 30, 2014):

 The Plaintiffs have produced evidence that The Field’s website included “the sporting life” and “JL Powell” in its meta-tags, but the Plaintiffs have produced no evidence that a search for “JL Powell” and/or “the sporting life” on a search engine will generate The Field’s website among the results, much less that The Field website would appear above J.L. Powell’s website. Had the Plaintiffs produced any evidence that the Defendant’s use of “The Sporting Life” generated search results for thefieldoutfitting.com in proximity to results for J.L. Powell’s website, injunctive relief might be appropriate.

For a discussion of the “logic” of deciding the law based on relative placement of search engine results, see this archive post: “Quityerbitchin: Relative Search Results Placement Doesn’t Support Trademark Injunction–Bitchen Kitchen v. Bitchin’ Kitchen”

* Unity Health Plans Ins. Co. v. Iowa Health System, No. 13-cv-845 (W.D. Wis. Feb. 5, 2014):

Unity Health argues that even if consumers exercise a high degree of care, that does not foreclose the possibility of “initial interest confusion.” Initial interest confusion “occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated.” Promatek, 300 F.3d at 812. For purposes of initial interest confusion, “[w]hat is important is not the duration of the confusion, it is the misappropriation of … goodwill.” Id. at 812–13.

For example, this court considered the possibility of initial interest confusion in Wolf Appliances. In that case, the plaintiff, Wolf Appliance, had trademarked the use of red knobs on ranges and sued Viking Range Corporation for offering ranges with similar red knobs. Though the court found that consumers were likely to use a high level of care in making such an expensive purchase, there were “scenarios in which confusion [was] likely”:

Suppose a potential range customer is at a dinner party and the hostess tells the potential customer how much the hostess enjoys her range. The range happens to be a Wolf range with red knobs. Several weeks or months later, when the potential customer enters a retail store to browse ranges, he or she sees a stainless steel Viking range displayed with red knobs that looks similar to the red-knob range he or she has seen in the past. There are no other ranges displayed with red knobs. The customer does not remember the brand of the hostess’ range, but the customer knows that Viking is a well-known manufacturer in the high-end range market. The red knobs look familiar, so the customer thinks this is the range to which the hostess spoke so highly…. Such a situation could qualify as “initial interest” confusion, because defendant would be reaping the benefit of the goodwill that plaintiff has developed in its mark

Wolf Appliance, Inc., 686 F.Supp.2d at 891–92; see also Promatek, 300 F.3d at 812–13 (placing “Copitrack” metatag in Equitrac website would direct consumers to competitor website, where they would likely “learn more about Equitrac and its products before beginning a new search for Promatek and Copitrak”).

The court is not persuaded that this case presents a comparable situation to Wolf. If a person mentions to a potential health insurance consumer that she has had a good experience with her HMO insurer, “Unity,” when the potential consumer enters the market, that consumer will be faced with a choice between Unity Health Insurance and Physicians Plus, not a choice between Unity Health and UnityPoint. Though the products are similar enough that a person may believe Unity Health and UnityPoint clinics are linked in some way, the two are not direct competitors. Moreover, it seems even more unlikely, as Unity Health argued during the preliminary injunction hearing, that on the basis of Unity Health’s goodwill alone, a customer will enter into an insurance plan through PPIC because he knows that PPIC is affiliated with Meriter, which is in turn affiliated with “UnityPoint.” (See, e.g., Hr’g Tr. (dkt.# 90) 36:17–38:4.)

Another example of how courts are invoking initial interest confusion only to find it doesn’t apply.

Publicity Rights

* Travelers Property Cas. Co. of America v. Cannon & Dunphy, S.C., No. 13-C-877 (E.D. Wis. Jan. 28, 2014): Law firm spent $450k defending its competitive keyword advertising in court against a publicity rights claim. Prior blog post.

* Bilotta v. Citizens Information Associates, LLC, No. 8:13-cv-2811 (M.D. Fla. Jan. 10, 2014): publicity rights lawsuit against mugshot website survives motion to dismiss.

Partially related: Woman behind ‘attractive convict’ mug shot sues for invasion of privacy