Cases of Note

Eleventh Circuit Sides with Amazon.com in Right of Publicity Suit

The plaintiff, an individual whose mother granted permission for use of plaintiff's photograph when she was a child, sought review of summary judgment awarded in favor of the defendant, an Internet bookseller, in the plaintiff's action asserting claims under Florida's right of publicity and civil theft statutes, Fla. Stat. ”540.08, 772.11. The plaintiff also challenged the attorney fee award under Fla. Stat. '772.11. Almeida v. Amazon.com, Inc., Nos. 04-15341 & 04-15561 (11^th Cir., filed 7/18/2006).

The plaintiff claimed that the defendant improperly displayed her photograph, which was on the cover of a book's second edition, when it displayed the book cover on its Web site in furtherance of its Internet sales. The plaintiff claimed that consent was given only for the book's first edition. Although the court agreed with the plaintiff that the district court should have addressed '230(e)(2) of the Com-munications Decency Act of 1996 (CDA), 47 U.S.C.S. '230, before invoking the CDA's grant of immunity, the court found it unnecessary to address the CDA's application under the facts of the plaintiff's case because the defendant could not be held liable under Fla. Stat. '540.08 for displaying a book's cover image in furtherance of the book's sale.

The court held that the defendant did not use the plaintiff's image for the commercial purpose of 'directly promoting' a product or service in violation of '540.08. As to the claim under Fla. Stat. '772.11, the district court properly found that the plaintiff failed to present any evidence that defendant misappropriated her property with felonious intent.

The court affirmed the district court's grant of summary judgment in favor of the defendant. The court also affirmed the district court's award of attorney fees to the defendant.

A famous California golf course resort sued a British bed and breakfast (B&B) owner under federal and state law, alleging intentional infringement and dilution of its trademark. The United States District Court for the Northern District of California dismissed the complaint for lack of personal jurisdiction, and denied the resort's motion for additional discovery. The resort sought review. Pebble Beach Co. v. Caddy, No. 04-15577 (9^th Cir.; filed 7/12/06).

The defendant B&B owner operated under the same name as the resort and advertised its services, which did not include a golf course, at a non-interactive Web site that included general information about its accommodations and restaurant. The resort contended that the B&B owner was subject to personal jurisdiction in California, or alternatively, in any forum in the U.S., because he expressly aimed tortious conduct at the U.S. and the state. On appeal, the court affirmed.

The court found that the B&B owner did not purposefully avail himself of the privilege of conducting activities in California, or purposefully direct his activities toward the state. The B&B owner's passive Web site and domain name alone did not satisfy the Calder effects test, and there was no other action expressly aimed at California or the U.S. that would have provided the 'something more' that is required for personal jurisdiction. Additionally, the fact that the B&B owner worked in California at some point in his past did not constitute 'individualized targeting' of the state to show purposeful availment.

The court affirmed the district court's judgment.

The plaintiff, a former partner of the defendant, filed suit against the defendant law firm, alleging that the law firm's continued use of a domain name was a violation of federal and state unfair competition and trademark law, the federal Anti-Cybersquatting Consumer Protection Act, and 42 Pa. Cons. Stat. '8316. The plaintiff filed a motion for a preliminary injunction. Tillery v. Leonard & Sciolla, LLP, No. 05-6182 (E.D., Pa.; filed 6/9/06).

The requested injunction would have ordered the firm to disable a Web site and enjoined the firm from using any variation of plaintiff's name in connection with offering or providing legal services, or otherwise acting in such a way as to cause potential clients to believe the plaintiff was associated with the firm or sponsors, or provides any of its services.

The court found that although the plaintiff had used his personal last name all his life, it did not appear from the record that it was ever used in connection with a business or a product, except as part of the name of law firms with which he was associated since his third year of practice. There was no evidence that he commanded a particularly large share of the market, or that he made substantial efforts to advertise his own legal services separately from the law firm's. Next, the court found that it could not determine whether the plaintiff was the senior user of the marks in this case and, if he owned the mark by 1998, on what terms he licensed its use in marks other than the firm name absent his continued consent. Finally, there was no evidence that the plaintiff would be irreparably harmed if the injunction did not issue.

The preliminary injunction was denied.

Eleventh Circuit Sides with Amazon.com in Right of Publicity Suit

The plaintiff, an individual whose mother granted permission for use of plaintiff's photograph when she was a child, sought review of summary judgment awarded in favor of the defendant, an Internet bookseller, in the plaintiff's action asserting claims under Florida's right of publicity and civil theft statutes, Fla. Stat. ”540.08, 772.11. The plaintiff also challenged the attorney fee award under Fla. Stat. '772.11. Almeida v. Amazon.com, Inc ., Nos. 04-15341 & 04-15561 (11 th Cir., filed 7/18/2006).

The plaintiff claimed that the defendant improperly displayed her photograph, which was on the cover of a book's second edition, when it displayed the book cover on its Web site in furtherance of its Internet sales. The plaintiff claimed that consent was given only for the book's first edition. Although the court agreed with the plaintiff that the district court should have addressed '230(e)(2) of the Com-munications Decency Act of 1996 (CDA), 47 U.S.C.S. '230, before invoking the CDA's grant of immunity, the court found it unnecessary to address the CDA's application under the facts of the plaintiff's case because the defendant could not be held liable under Fla. Stat. '540.08 for displaying a book's cover image in furtherance of the book's sale.

The court held that the defendant did not use the plaintiff's image for the commercial purpose of 'directly promoting' a product or service in violation of '540.08. As to the claim under Fla. Stat. '772.11, the district court properly found that the plaintiff failed to present any evidence that defendant misappropriated her property with felonious intent.

The court affirmed the district court's grant of summary judgment in favor of the defendant. The court also affirmed the district court's award of attorney fees to the defendant.

A famous California golf course resort sued a British bed and breakfast (B&B) owner under federal and state law, alleging intentional infringement and dilution of its trademark. The United States District Court for the Northern District of California dismissed the complaint for lack of personal jurisdiction, and denied the resort's motion for additional discovery. The resort sought review. Pebble Beach Co. v. Caddy, No. 04-15577 (9^th Cir.; filed 7/12/06).

The defendant B&B owner operated under the same name as the resort and advertised its services, which did not include a golf course, at a non-interactive Web site that included general information about its accommodations and restaurant. The resort contended that the B&B owner was subject to personal jurisdiction in California, or alternatively, in any forum in the U.S., because he expressly aimed tortious conduct at the U.S. and the state. On appeal, the court affirmed.

The court found that the B&B owner did not purposefully avail himself of the privilege of conducting activities in California, or purposefully direct his activities toward the state. The B&B owner's passive Web site and domain name alone did not satisfy the Calder effects test, and there was no other action expressly aimed at California or the U.S. that would have provided the 'something more' that is required for personal jurisdiction. Additionally, the fact that the B&B owner worked in California at some point in his past did not constitute 'individualized targeting' of the state to show purposeful availment.

The court affirmed the district court's judgment.

The plaintiff, a former partner of the defendant, filed suit against the defendant law firm, alleging that the law firm's continued use of a domain name was a violation of federal and state unfair competition and trademark law, the federal Anti-Cybersquatting Consumer Protection Act, and 42 Pa. Cons. Stat. '8316. The plaintiff filed a motion for a preliminary injunction. Tillery v. Leonard & Sciolla, LLP, No. 05-6182 (E.D., Pa.; filed 6/9/06).

The requested injunction would have ordered the firm to disable a Web site and enjoined the firm from using any variation of plaintiff's name in connection with offering or providing legal services, or otherwise acting in such a way as to cause potential clients to believe the plaintiff was associated with the firm or sponsors, or provides any of its services.

The court found that although the plaintiff had used his personal last name all his life, it did not appear from the record that it was ever used in connection with a business or a product, except as part of the name of law firms with which he was associated since his third year of practice. There was no evidence that he commanded a particularly large share of the market, or that he made substantial efforts to advertise his own legal services separately from the law firm's. Next, the court found that it could not determine whether the plaintiff was the senior user of the marks in this case and, if he owned the mark by 1998, on what terms he licensed its use in marks other than the firm name absent his continued consent. Finally, there was no evidence that the plaintiff would be irreparably harmed if the injunction did not issue.

The preliminary injunction was denied.