2H 2017 & Q1 2018 Quick Links, Part 1: Copyright, Trademarks, Keyword Ads

[As you can tell, my ability to prepare these Quick Links posts has degraded substantially…better late than never?]


* The Executive Corp. v. Oisoon, LLC, 2017 WL 4310113 (M.D. Tenn. Sept. 28, 2017). A default judgment:

“A section 1202(b)(1) violation occurs when a person (i) without authority of the copyright owner or the law (ii) intentionally removes or alters any copyright management information (iii) knowing or having reasonable grounds to know that it will induce, enable, facilitate, or conceal an infringement of the federal copyright laws.” Gordon v. Nextel Commc’ns. & Mullen Advert., Inc., 345 F.3d 922, 927 (6th Cir. 2003). The allegations of TEC’s verified complaint, the Switzer affidavit, and the photographic proof of the information’s removal from the four images as reproduced on Oisoon’s website establish these elements. The complaint alleged, and the court presumes true, that “[Oisoon], without permission or license from TEC, copied TEC’s photographs from its web site [sic], intentionally removed the copyright management information contained on those photographs, and published the altered photographs on its own web site.” In addition, Oisoon was plainly using TEC’s images without permission, as TEC did not discover Oisoon’s activities until “customers began contacting [Switzer] about the disparity in price between the two sites.” The complaint alleged, and Switzer stated in his affidavit, that four photographs on the Oisoon site were identical to TEC’s product photographs, except that the identifying watermark text “The Executive Advertising” had been removed. Examination of the submitted screenshots of both companies’ websites containing those photographs confirms Oisoon’s removal of TEC’s identifying information. Oisoon is liable to TEC under § 1202(b)(1).

* The Leader’s Institute v. Jackson, 3:14-CV-3572-B  (N.D. Tex. Nov. 22, 2017): “The plaintiffs respond simply that framing is not copyright infringement. But the plaintiffs are incorrect; they publicly displayed Magnovo’s copyrighted works. By framing Magnovo’s copyrighted works, the plaintiffs displayed the works by “show[ing] a copy” of the works via a ‘process.’”

* Julia Reda: “A 30 page paper panning the Commission’s copyright plans on press publishers written by JRC never saw the light of the day”:

The draft version of the paper I obtained is a sober analysis of the press landscape and the role of emerging news aggregators. It notes that the available empirical evidence shows that newspapers actually benefit from news aggregation platforms – something that is also supported by the efforts made by publishers to appear in these aggregators in the first place.

The paper then analyses the effects of the Spanish and German copyright change that the European Commission so desperately wants to replicate on a European level. Contrary to what Spain and Germany tried to achieve, the market forces have valued this new copyright at a zero price. This is in line with current economic models for these kinds of markets. The authors of the study suggest that newspaper revenue could instead be increased by more rather than less cooperation between news publishers and news aggregators (something that does not require copyright change).

* Chicago Tribune: Halloween is here with a copyright lawsuit over banana costumes

* Law 360: Cheerleader Uniform IP Case Ends With Unusual Settlement

* Quartz: With no more income from album sales, a 69-year-old rock legend has to go back on tour

* Billboard: Inside the Secretive, Difficult Struggle Between Artists & Labels Over Album Copyrights

* Recode: “Inside Oracle’s cloak-and-dagger political war with Google”

* Techdirt: ‘Six Strikes’ May Be Dead, But ISPs Keep Threatening To Disconnect Accused Pirates Anyway

* NY Times: HuffPost, Breaking From Its Roots, Ends Unpaid Contributions

* Artsy: Copying Other People’s Art Can Boost Creativity, Study Finds

* Washington Post: Meet the sometime-streamer: TV watchers who sign up for one show — then cancel

* WSJ: Millennials Unearth an Amazing Hack to Get Free TV: the Antenna

Trademark and Publicity Rights

* Fischer v. Forrest, 2018 WL 948758 (SDNY Feb. 16, 2018):

As to “initial interest” confusion: Although Fischer only obliquely mentioned this item in opposing summary judgment, he alleged in his Complaint that Brushy sought to create “initial interest” confusion by including Fischer’s name in the URL for Natural Honey Harvester, and he returns to this point in his objections to the Report. Obj. at 12 (“the initial diversion … is the ‘actual confusion’ here.”). Initial interest confusion “arises when a consumer who searches for the plaintiff’s website with the aid of a search engine is directed instead to the defendant’s site because of a similarity in the parties’ website addresses.” Savin Corp. v. Savin Grp., 391 F.3d 439, 462 n.13 (2d Cir. 2004). “Because consumers diverted on the Internet can more readily get back on track than those in actual space, thus minimizing the harm to the owner of the searched-for site from consumers becoming trapped in a competing site, Internet initial interest confusion requires a showing of intentional deception.” Id. But, for the reasons recounted above, Fischer’s claim of initial interest confusion is factually threadbare. He has not come forward with any evidence that consumers were diverted to Brushy’s website when searching for Fischer’s product online, let alone that such diversion resulted from the inclusion of Fischer’s name in the post-domain path of the URL.

* Blue Water International, Inc. v. Hattrick’s Irish Sports Pub LLC, 2017 WL 4182405 (M.D. Fla. Sept. 21, 2017)

A Tampa bar called “Hattrick’s sues in the Middle District of Florida a Missouri bar called “Hattrick’s for trademark infringement and unfair competition. The Missouri bar, which operates a tavern only in O’Fallon, Missouri, maintains no restaurant or office in Florida; employs nobody in Florida; sells nothing in Florida; manufactures nothing in Florida; maintains no website and sells nothing online; purchases no newspaper, radio, magazine, television, Internet advertisement to solicit business from Florida; and maintains no bank account in Florida. The totality of the Missouri bar’s purported “contact” with Florida comprises a Twitter account that follows several Florida sports teams and Facebook, Yelp, and TripAdvisor pages accessible in Florida.

…common sense refutes the suggestion that the Missouri bar’s Twitter activity constitutes an entry into the Florida food-and-alcohol market. More than a thousand miles distant from Tampa, the Missouri bar sells no food or alcohol in Florida for at least the reasons that the bar lacks the licenses necessary to sell food and alcohol in Florida and maintains a presence only in O’Fallon, Missouri. An “attenuated” contact at best, the Missouri bar’s following the Buccaneers, the Lightning, and the Rays on Twitter (by itself or in combination with the accessibility in Florida of the Missouri bar’s Facebook, Yelp, and TripAdvisor pages) fails to establish personal jurisdiction in Florida.

* Slate: Let’s Uber. I’ll Call a Lyft. Why conscientious consumers no longer want to use Uber, except as a verb.

* The Economist: A firm that shares a name with its founder earns higher profits.

* NY Times: Who Is Really Making ‘Chihuly Art’? Bonus: photos from my visit to the Chihuly Museum in Seattle.

* Roe v. Amazon. Sixth Circuit upholds dismissal of Gronking to Remember book cover photograph case. Prior blog post.

Keyword Ads

* Altinex Inc. v. Alibaba.com Hong Kong Ltd:

Altinex argues that Alibaba “used” Altinex’s trademark by “permitting Altinex’s trademarks to be used as search terms, such that typing ‘ALTINEX’ or ‘TILT ‘N PLUG’ in the search window in www.alibaba.com would retrieve counterfeit Altinex products.” Altinex further argues that “Alibaba had control over its www.alibaba.com website and could turn on and off its feature at will.”…

Altinex’s theory of liability is that Alibaba configured its website to provide the capability that when a user searches for the trademarked terms “ALTINEX” and “TILT ‘N PLUG,” Alibaba would retrieve results that were, in fact, infringing products. Altinex’s own propounded evidence does not support its own theory….As is evident from this excerpt, a single search result for the word “altinex” was retrieved. The excerpt further shows that the listing appears to have resulted because the word “Altinex” appears in the listing under “Model Number.” Altinex acknowledges that it is third parties, not Alibaba, that author these listings. Altinex puts forth absolutely no other evidence to argue that Alibaba configured its search engine in a way that would make the search engine retrieve listing of counterfeit products but for the way that third parties author their listings. Altinex has not, for instance, developed any record that this is a case of paid, keyword search advertising. Neither does Altinex put forth any evidence that Alibaba entered the word “Altinex” in the “Model Number” field on its own accord or even suggested it. Cf. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1173–74 (9th Cir. 2008) (In analyzing section 230 immunity, web service provider was not responsible for the development of content that is simply published as written). Altinex also provides no evidence that Alibaba had any prior knowledge that persons added the word “Altinex” to the model number in this listing or any other listing.

On the record before the Court, it is undisputed that Alibaba, just like the search engine in Tiffany, removes product listings that infringe trademark rights that are reported to Alibaba. In fact, Altinex identified only two listings on the Websites that allegedly infringed its asserted trademarks, and those listings have been removed from the Websites. Altinex provides no argument or record to suggest that Alibaba’s methods of handling trademark infringement on its website are insufficient. To conclude, as Altinex suggests the Court can, that Alibaba had an affirmative duty—beyond what it already does through the AliProtect system—to police its search engine algorithm to ensure that its search engine does not retrieve particular results based on third parties’ independent actions in authoring listings, is not supported by any law, any case cited by Altinex, and is contrary to sound policy in this context.

From FN2: ” Network Automation did not concern the sale of a trademarked term as a search engine keyword, but rather the purchase of a search engine keyword by a competitor to the owner of the trademarked term. In fact, the search engine operators were not parties to the Network Automation litigation. Second, there is no Ninth Circuit authority suggesting that the creation and operation of a search engine with a free-text entry ability that does no more than return results based on a 1:1 relationship between the terms entered in the search box and the text of the result—the most that Altinex’s evidence in this case shows—constitutes a “use in commerce” of any of the potentially near-infinite trademarked terms an end user may choose to enter in a freeform search query. The only persons using the mark in commerce in this case, under the rationale of Network Automation, are the authors of the listings”

* Lopez v. BigCommerce, 2017 WL 3278932 (SDNY Aug. 1, 2017). “Lopez specifically alleges that “Defendant Google, Inc. published and exploited a photograph and image of a cap which was a copy of Plaintiff’s registered copyright and which also violates Plaintiff’s trademark….Lopez does not allege that Google has ever offered or sold his mark. Instead, his theory of Google’s alleged infringement is premised on the appearance of his images in organic search results, not paid advertisements. ‘The mere appearance of Plaintiff’s name or image as part of the search results displayed in response to a user-generated query does not mean that the relevant company used Plaintiff’s name for advertising or trade purposes.’ [cites to Obado, Stayart] … because a search engine’s display of thumbnail images in search results is a non-infringing fair use, this theory of copyright infringement fails.”

* Wendy Davis: “Contact Lens Seller Agrees To $7 Million Settlement Over Search Ads”

* SearchInsider: Most Expensive Keywords In The U.S.

* Search Engine Land: Google drops support for meta news keywords tag