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e-Commerce Docket Sheet
Court Vacates Injunction Against Using Trade Name
A commercial party's frequent use of a competitor's trade name in its Web pages qualifies as a 'nominative fair use' if the references are not gratuitous and are used to convey information about the competitor. J.K. Harris & Co., LLC v. Kassel, No. 02-0400 (N.D. Cal. Mar. 28, 2003). The district court vacated a portion of an earlier ruling that preliminarily enjoined the defendant from 'using more of Plaintiff's trade name than is reasonably necessary to identify that it is Plaintiff's services being described.' The court modified its analysis to make clear that even frequent and obvious use of a competitor's name on a party's Web pages can be a fair use if done for a legitimate purpose such as criticism ' even if such use affects search engine results.
Use of Web Site “Scraping” Software Enjoined
A company's “web automation” software that collects flight and fare information from an airline's Web site without the airline's consent constitutes a trespass and violates the terms and conditions associated with the Web site. American Airlines, Inc. v. Farechase, Inc., No. 067-194022-02 (Tex. Dist Ct. Tarrant Cty. 67th Dist.
Mar. 8, 2003). The court issued a temporary injunction restraining the defendant software company from “accessing, using or scraping” the airline's Web site for any commercial purpose or by any automated means without the written consent of the airline, and further enjoined the defendant from licensing its software to others.
Third Circuit Strikes COPA Down For a Second Time
The Child Online Protection Act (COPA), which imposes criminal and civil penalties on commercial Web site operators who make pornography available to minors, is an unconstitutional restriction on free speech. American Civil Liberties Union v. Ashcroft, No. 99-1324 (3d Cir. Mar. 6, 2003). Affirming a preliminary injunction against COPA enforcement, the Third Circuit held that the statute was not narrowly tailored to achieve the government's interest in protecting children from harmful content, and would likely deter adults from accessing restricted but legal content. This was the Third Circuit's second decision striking down COPA, after the Supreme Court vacated and remanded an earlier opinion.
Jurisdiction Lacking Where Parody Sites Not Aimed at Forum
A court may not exercise specific personal jurisdiction over a nonresident defendant based on the defendant's parody Web sites that address a national audience rather than one located in the forum state. Falwell v. Cohn, Civ. No. 6:02CV00040 (E.D. Va. Mar. 4, 2003). The district court dismissed an action brought by the Rev. Jerry Falwell against the operator of the Web sites “jerryfalwell.com” and “jerryfallwell.com,” finding that the sites manifested no attempt to target an audience within the forum state. Instead, the sites addressed national matters, such as the plaintiff's reaction to the Sept. 11 attacks.
E-mailed Notice Insufficient Under UDRP To Halt Domain Name Transfer
An e-mail message notifying a domain name registrar that registrant has commenced litigation contesting a domain-name arbitration does not constitute “official documentation” of lawsuit commencement under the Uniform Domain Name Dispute Resolution Policy (UDRP). America Online Latino v. America Online, Inc., 02 Civ. 4796 (S.D.N.Y. Mar. 13, 2003). The district court said losing registrant failed to comply with the UDRP provision authorizing the registrar to transfer the domain name unless the registrar receives within 10 days of receipt of arbitration proceeding results, official documentation indicating a lawsuit has been commenced. Such documentation would include a complaint copy that had been stamped by the court clerk. The court dismissed the registrant's claim alleging improper transfer of the domain name to the prevailing party in the UDRP arbitration proceeding.
Docket Sheet is written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Brown Raysman Millstein Felder & Steiner.
Docket Sheet is written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Brown Raysman Millstein Felder & Steiner.
Court Vacates Injunction Against Using Trade Name
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