e-Commerce Docket Sheet

In an action for common-law fraud and misrepresentation, the sellers' placement of an automobile for sale on eBay establishes the sellers' intention that potential buyers rely on the representations made in the auction listing concerning the condition of the item posted for sale. Groover v. Ogunyemi, No. 2004-11-349, 2006 Del. C.P. LEXIS 65 (Ct. Common Pleas Sept. 5, 2006) (unpublished). The court ruled that the buyer had shown by a preponderance of the evidence that the sellers misrepresented the condition of the item, that they omitted information regarding its actual condition, which they had a duty to disclose, and that the false representations and omissions were made at the least with a reckless indifference to the truth. The court concluded that even though the buyer had been given an opportunity to inspect the vehicle, the buyer's failure to do so 'in no way excuses or permits an individual selling commercial goods to publish an advertisement that purposefully misrepresents or omits information which others are likely to rely on.'

A search engine's sale of a trademark term as an advertising keyword to a competitor of the trademark owner does not constitute an actionable trademark use under the Lanham Act. Rescuecom Corp. v. Google, Inc., No. 5:04-CV-1055, 2006 U.S. Dist. LEXIS 70409 (N.D. N.Y. Sept. 28, 2006). The court dismissed the trademark owner's infringement and dilution claims, noting that under Second Circuit precedent, the element of trademark use may not be based on 'allegations of a likelihood of confusion or commercial use of a mark.' The court concluded that the plaintiff had failed to show actionable use because it failed to allege 'that defendant placed plaintiff's trademark on any goods, displays, containers, or advertisements, or used plaintiff's trademark in any way that indicates source or origin.'

A state alcoholic-beverage control law that prohibits all direct Internet, telephone and mail-order sales to consumers by in-state and out-of-state wineries does not violate the federal Commerce Clause. Hurley v. Minner, No. 05-826-SLR, 2006 U.S. Dist. LEXIS 69090 (D. Del. Sept. 26, 2006). The court dismissed the complaint filed by an out-of-state winery and related parties, ruling that their stated intention in bringing the lawsuit was to directly ship wine to the homes of state residents, a right that even in-state wineries were not afforded under the law. The court concluded that because the law treated in-state and out-of-state wineries equally, there was no unconstitutional discrimination against out-of-state wineries.

A mandatory arbitration requirement in a consumer contract for wireless services is enforceable despite the inclusion of an unconscionable provision precluding a
prevailing consumer from obtaining an award of attorney fees. Chalk v. T-Mobile USA, Inc., No. 06-CV-158-BR, 2006 U.S. Dist. LEXIS 67948 (D. Ore. Sept. 7, 2006). The court denied the consumers' motion to stay arbitration, ruling that even though the arbitration requirement was contrary to Oregon law in that it purported to bar a prevailing consumer from obtaining attorney fees, the attorney-fee limitation could be severed and did not render the entire arbitration provision unconscionable.

The registration of domain names similar to that of a trademark owner and their employment in a scheme to generate commissions for referrals to the trademark owner's Web site constitutes actionable typosquatting under the Anticybersquatting Consumer Protection Act (ACPA). Land's End, Inc. v. Remy, No. 05-C-368-C, 2006 U.S. Dist. 63115 (W.D. Wisc. Sept. 1, 2006). The court denied the defendants' motion for summary judgment dismissing the ACPA claim, noting that the typosquatting scheme involved the creation of Web pages containing hidden code that invisibly directed traffic, first to Web sites that had a contractual affiliate relationship with the trademark owner, and then to the trademark's owner's Web site, in order to generate commissions based on the redirected users' purchasers. The court rejected the defendants' argument that they did not act in bad faith, finding that even though the domains directed traffic to the trademark owner's Web site rather than away from it, the defendants' bad faith was demonstrated by the active steps they took to conceal the scheme from the plaintiff and their failure to disclose their registration of the similar domain names when they entered into affiliate agreements with the trademark owner.

The Cable Privacy Act provision that prohibits cable operators from collecting 'personally identifiable information using [a] cable system' does not apply to the collection of information about the Internet activity of a cable company's broadband subscribers. Klimas v. Comcast Cable Communications, Inc., No. 03-2012, 2006 U.S. App. LEXIS 24366 (6th Cir. Sept. 28, 2006). The appeals court upheld the lower court's dismissal of the plaintiff's complaint but on other grounds, ruling that the cable company's collection of aggregate information concerning uniform resource locators (URLs) accessed by IP addresses assigned to the company's broadband Internet service 'had nothing whatever to do' with the cable company's provision of cable service. The court noted the series of recent cases that have 'made clear that, however uncertain federal regulation of broadband service via cable may still be, the broadband Internet service delivered via cable is not 'cable service.”

Seller Responsible for Online Auction Item's Represented Condition

In an action for common-law fraud and misrepresentation, the sellers' placement of an automobile for sale on eBay establishes the sellers' intention that potential buyers rely on the representations made in the auction listing concerning the condition of the item posted for sale. Groover v. Ogunyemi, No. 2004-11-349, 2006 Del. C.P. LEXIS 65 (Ct. Common Pleas Sept. 5, 2006) (unpublished). The court ruled that the buyer had shown by a preponderance of the evidence that the sellers misrepresented the condition of the item, that they omitted information regarding its actual condition, which they had a duty to disclose, and that the false representations and omissions were made at the least with a reckless indifference to the truth. The court concluded that even though the buyer had been given an opportunity to inspect the vehicle, the buyer's failure to do so 'in no way excuses or permits an individual selling commercial goods to publish an advertisement that purposefully misrepresents or omits information which others are likely to rely on.'

A search engine's sale of a trademark term as an advertising keyword to a competitor of the trademark owner does not constitute an actionable trademark use under the Lanham Act. Rescuecom Corp. v. Google, Inc., No. 5:04-CV-1055, 2006 U.S. Dist. LEXIS 70409 (N.D. N.Y. Sept. 28, 2006). The court dismissed the trademark owner's infringement and dilution claims, noting that under Second Circuit precedent, the element of trademark use may not be based on 'allegations of a likelihood of confusion or commercial use of a mark.' The court concluded that the plaintiff had failed to show actionable use because it failed to allege 'that defendant placed plaintiff's trademark on any goods, displays, containers, or advertisements, or used plaintiff's trademark in any way that indicates source or origin.'

A state alcoholic-beverage control law that prohibits all direct Internet, telephone and mail-order sales to consumers by in-state and out-of-state wineries does not violate the federal Commerce Clause. Hurley v. Minner, No. 05-826-SLR, 2006 U.S. Dist. LEXIS 69090 (D. Del. Sept. 26, 2006). The court dismissed the complaint filed by an out-of-state winery and related parties, ruling that their stated intention in bringing the lawsuit was to directly ship wine to the homes of state residents, a right that even in-state wineries were not afforded under the law. The court concluded that because the law treated in-state and out-of-state wineries equally, there was no unconstitutional discrimination against out-of-state wineries.

A mandatory arbitration requirement in a consumer contract for wireless services is enforceable despite the inclusion of an unconscionable provision precluding a
prevailing consumer from obtaining an award of attorney fees. Chalk v. T-Mobile USA, Inc., No. 06-CV-158-BR, 2006 U.S. Dist. LEXIS 67948 (D. Ore. Sept. 7, 2006). The court denied the consumers' motion to stay arbitration, ruling that even though the arbitration requirement was contrary to Oregon law in that it purported to bar a prevailing consumer from obtaining attorney fees, the attorney-fee limitation could be severed and did not render the entire arbitration provision unconscionable.

The registration of domain names similar to that of a trademark owner and their employment in a scheme to generate commissions for referrals to the trademark owner's Web site constitutes actionable typosquatting under the Anticybersquatting Consumer Protection Act (ACPA). Land's End, Inc. v. Remy , No. 05-C-368-C, 2006 U.S. Dist. 63115 (W.D. Wisc. Sept. 1, 2006). The court denied the defendants' motion for summary judgment dismissing the ACPA claim, noting that the typosquatting scheme involved the creation of Web pages containing hidden code that invisibly directed traffic, first to Web sites that had a contractual affiliate relationship with the trademark owner, and then to the trademark's owner's Web site, in order to generate commissions based on the redirected users' purchasers. The court rejected the defendants' argument that they did not act in bad faith, finding that even though the domains directed traffic to the trademark owner's Web site rather than away from it, the defendants' bad faith was demonstrated by the active steps they took to conceal the scheme from the plaintiff and their failure to disclose their registration of the similar domain names when they entered into affiliate agreements with the trademark owner.

The Cable Privacy Act provision that prohibits cable operators from collecting 'personally identifiable information using [a] cable system' does not apply to the collection of information about the Internet activity of a cable company's broadband subscribers. Klimas v. Comcast Cable Communications, Inc., No. 03-2012, 2006 U.S. App. LEXIS 24366 (6th Cir. Sept. 28, 2006). The appeals court upheld the lower court's dismissal of the plaintiff's complaint but on other grounds, ruling that the cable company's collection of aggregate information concerning uniform resource locators (URLs) accessed by IP addresses assigned to the company's broadband Internet service 'had nothing whatever to do' with the cable company's provision of cable service. The court noted the series of recent cases that have 'made clear that, however uncertain federal regulation of broadband service via cable may still be, the broadband Internet service delivered via cable is not 'cable service.”