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e-Commerce Docket Sheet

By ALM Staff | Law Journal Newsletters |
March 26, 2007

Motorcycle Racing Web casts
Infringed Race Producer's Copyright

A defendant's inclusion of unauthorized inline links to live audio Web casts of motorcycle-racing events on his Web site violated the rights of public display and public performance of the race promoter that streamed the Web casts from its own Web site. Live Nation Motor Sports, Inc. v. Davis, 2007 U.S. Dist. LEXIS 2196 (N.D. Tex. Jan. 9, 2007). Having already issued a preliminary injunction barring the defendant from linking to the plaintiff's live Web casts, the court granted summary judgment in favor of the plaintiff, holding that the defendant's linking to plaintiff's broadcasts constituted an infringing display or performance of the plaintiff's copyrighted works.

Copied 'Look and Feel' May Be Basis
For Trade Dress Infringement

A plaintiff may pursue a novel claim alleging trade dress infringement based on the defendant's alleged copying of the 'overall look and feel' of the plaintiff's commercial Web site. Blue Nile, Inc. v. Ice.com, Inc., 2007 U.S. Dist. LEXIS 3874 (W.D. Wash. Jan. 18, 2007). The court noted that in general, trade dress protection rests in the overall features of a product, including its size, color or color combinations, texture, graphics, packaging, or other visual features. In declining to dismiss the plaintiff's trademark claims based on Copyright Act preemption, the court reasoned that greater factual development of the case was needed for the court to address the overlap between the Lanham Act and the Copyright Act, namely, what elements of the plaintiff's Web site are subject to copyright protection, and what portions of the Web site relate to the 'look and feel' of the plaintiff's trade dress claim.

'Free' Software Offer With Hidden Restrictions
 Likely Deceptive Practice

A software company that advertised 'free' software but imposed hidden restrictions and credit-card charges on consumers engaged in deceptive practices under the FTC Act, 15 U.S.C. '45(a). FTC v. Think All Publishing, 2007 U.S. Dist. LEXIS 4974 (E.D. Tex. Jan 19, 2007). In recommending that a preliminary injunction against the software company be issued in accordance with the terms of a prior temporary restraining order, the magistrate judge found that the defendant engaged in false, misleading, or deceptive practices in promoting and selling its software products to Internet users. The court noted that in marketing free software under terms and conditions that required consumers to order three additional, difficult-to-return CDs, essentially creating a continuous CD-membership plan, the defendant's practices amounted to 'nothing more than a bait and switch scheme.'

e-Commerce Docket Sheet was written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Thelen Reid Brown Raysman & Steiner LLP (www.thelen.com).

Motorcycle Racing Web casts
Infringed Race Producer's Copyright

A defendant's inclusion of unauthorized inline links to live audio Web casts of motorcycle-racing events on his Web site violated the rights of public display and public performance of the race promoter that streamed the Web casts from its own Web site. Live Nation Motor Sports, Inc. v. Davis, 2007 U.S. Dist. LEXIS 2196 (N.D. Tex. Jan. 9, 2007). Having already issued a preliminary injunction barring the defendant from linking to the plaintiff's live Web casts, the court granted summary judgment in favor of the plaintiff, holding that the defendant's linking to plaintiff's broadcasts constituted an infringing display or performance of the plaintiff's copyrighted works.

Copied 'Look and Feel' May Be Basis
For Trade Dress Infringement

A plaintiff may pursue a novel claim alleging trade dress infringement based on the defendant's alleged copying of the 'overall look and feel' of the plaintiff's commercial Web site. Blue Nile, Inc. v. Ice.com, Inc., 2007 U.S. Dist. LEXIS 3874 (W.D. Wash. Jan. 18, 2007). The court noted that in general, trade dress protection rests in the overall features of a product, including its size, color or color combinations, texture, graphics, packaging, or other visual features. In declining to dismiss the plaintiff's trademark claims based on Copyright Act preemption, the court reasoned that greater factual development of the case was needed for the court to address the overlap between the Lanham Act and the Copyright Act, namely, what elements of the plaintiff's Web site are subject to copyright protection, and what portions of the Web site relate to the 'look and feel' of the plaintiff's trade dress claim.

'Free' Software Offer With Hidden Restrictions
 Likely Deceptive Practice

A software company that advertised 'free' software but imposed hidden restrictions and credit-card charges on consumers engaged in deceptive practices under the FTC Act, 15 U.S.C. '45(a). FTC v. Think All Publishing, 2007 U.S. Dist. LEXIS 4974 (E.D. Tex. Jan 19, 2007). In recommending that a preliminary injunction against the software company be issued in accordance with the terms of a prior temporary restraining order, the magistrate judge found that the defendant engaged in false, misleading, or deceptive practices in promoting and selling its software products to Internet users. The court noted that in marketing free software under terms and conditions that required consumers to order three additional, difficult-to-return CDs, essentially creating a continuous CD-membership plan, the defendant's practices amounted to 'nothing more than a bait and switch scheme.'

e-Commerce Docket Sheet was written by Julian S. Millstein, Edward A. Pisacreta and Jeffrey D. Neuburger, partners in the New York office of Thelen Reid Brown Raysman & Steiner LLP (www.thelen.com).
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