In 1-800 Contacts, Inc. v. Lens.com, Inc., et al., Case No: 11-4114, 11-4204, 12-4022 (U.S. Court of Appeals, Tenth Circuit, order entered July 16, 2013), a federal appeals court ruled that an online contact lens business’ use of Google AdWord keyword terms similar to a competitor’s service mark was not infringing where only one and a half percent of consumers clicked the resulting ads.
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Would Your Web Site Terms and Conditions Be Considered Enforceable if a Dispute Arises?
In Zaltz v. JDate, Case No: 12-CV-3475 (U.S. District Court, E.D. New York, order entered July 8, 2013), a federal court in New York held that an online dating service user who registered for the site by checking a box to assent to the terms followed by the ‘accept’ button was bound by the terms even though she did not read them, notwithstanding the fact it was necessary to click a link to access the terms.
Providing Cell Number During Web Transaction Did Not Constitute Express Consent to Receive Marketing Texts
In Lusskin v. Seminole Comedy, Inc., Case No: 12-62173 (U.S. District Court, S.D. Florida, order entered June 19, 2013), a federal court in Florida held that a consumer did not expressly consent to receive marketing texts by providing his cell number as part of an online ticketing transaction with an entertainment venue.
Online Dating Site Immune from User’s Tort Action Under Communications Decency Act § 230
In Beckman v. Match.com, Case No: 2:13-CV-97 (U.S. District Court, D. Nevada, order entered May 29, 2013), a federal court in Nevada held that online dating site Match.com was immune from a user’s claim the site had negligently exposed her to a serial killer. Focusing on the claim as being essentially based on a profile created by another user, the court held the site was protected by CDA §230, which provides immunity to providers and users of interactive computer services for information provided by other users.
Ensure That Your Contracts Are Drafted in a Manner That Protects You from Infringement
In Righthaven LLC v. Hoehn, Case No: 11-16751 (U.S. Court of Appeals, Ninth Circuit, order entered May 9, 2013), the Ninth Circuit held that agreements assigning plaintiff the bare right to sue for copyright infringement of newspaper articles, without the transfer of any associated exclusive rights in the articles, did not confer standing to sue. The lower court therefore lacked jurisdiction to rule in the alternative on the fair use defense. If you need help with internet contract law visit this page.
Use of Competitor’s Mark as Keyword Not Likely to Cause Confusion in Expensive and Complex Sale
In General Steel Domestic Sales, LLC v. Chumley, et al., Civil Action No: 10-cv-01398 (U.S. District Court, D. Colorado, order entered May 7, 2013), a federal judge in Colorado held that a company’s use of a competitor’s trademarked term as a keyword in its Google AdWords campaign did not create a likelihood of confusion or constitute trademark infringement, because the level of care required to make a purchase as expensive and complex as buying a steel building, as was the case, made it unlikely a customer would base his or her decision upon which provider’s Web site he or she first discovered.
Dangers of Secretive Domain Registration
In Entrepreneur Media, Inc. v. Entrepreneursstartup.com, Civil Action No: 1:12cv1375 (U.S. District Court, E.D. Virginia, Alexandria Division, order entered April 15, 2013), a federal judge in Virginia ruled that a Web site registrant’s use of a privacy service in registering a domain name may be interpreted as an attempt to avoid providing accurate contact information and constituted an indicator of bad faith under the Anticybersquatting Consumer Protection Act.
FTC Updates Dot Com Guidance for Digital Advertisers
On March 12, 2013, the Federal Trade Commission (“FTC”) updated its online advertising guidelines (“.com Disclosures”). The update is intended to provide guidance to digital advertisers delivering ads to desktop computers, laptops, net books and mobile devices, in order to help them comply with consumer protection laws regarding deceptive and unfair business practices.
The main theme of the update relates to clarity and conspicuousness. The FTC listed several factors that should be used in determining whether a disclosure is clear and conspicuous. These include proximity and placement, prominence, other distracting factors in the ads, repetition, multimedia messages and campaigns, and understandable language.
The FTC suggested disclosures be as close as possible to the claims to which they relate. Disclosures and claims should appear on the same screen, if possible, and suggestive text or visual cues should be used otherwise to encourage scrolling that leads to the disclosure. Any hyperlinks should be obvious, well-labeled and easy to access.
In light of the guidance, advertisers should ensure their disclosures will appear clearly and conspicuously on all platforms and devices that may be used to view the ad. If an ad would be deceptive or unfair without a disclosure, and the disclosure cannot be made clearly and conspicuously on a particular platform or device, that platform or device should not be used for the ad.
The FTC can bring an enforcement action against an advertiser for deceptive or unfair business practices in violation of the FTC Act. The dot com Disclosures are not intended as a regulation or rule, but rather as guidance to digital advertisers regarding how the FTC interprets the laws it administers.
Court Permits Service Via Publication Against Unidentified Defendant in Cybersquatting Action
In OnNet USA Inc. v. Play9D.com, N.D. Cal., No. 3:12-cv-06282-LB, 1/8/13, the U.S. District Court for the Northern District of California ruled that an internet gaming company could pursue a claim against a domain name pursuant to the “in rem” provisions of the Anti-Cybersquatting Protection Act by serving process by publication in an Australian newspaper where the unknown domain registrant was likely to be found.
The ACPA provides for the filing of an in rem action in the district where the registry for the offending domain name is located if a plaintiff trademark holder is unable to obtain personal jurisdiction over the potential defendant or is unable to find that person. The Act also allows for service of process by “publishing notice of the action as the court may direct” if through due diligence the mark owner was in fact unable to find the defendant, Sections 1125(d)(2)(A) and (B).
The court noted that little guidance exists as to how courts have construed this notice provision, and what guidance does exist, “reveals little consistency.” The court found that jurisdiction was proper given that VeriSign, the registry for the play9d.com domain name that hosted the allegedly pirated game, was located within the district.
OnNet claims to hold the exclusive worldwide rights to publish an English-language version of the 9Dragons martial arts game, a multiplayer online role playing game, on its 9dragons.gamescampus.com website. When it discovered the play9d.com allegely pirated English-language version, OnNet tried to ascertain the identity and location of the domain name holder, but that person or entity used a privacy protection service in setting up the domain. OnNet was able to ascertain that the play9d.com website owner listed its address as a post office box in Nobby Beach, Queensland, Australia, with an email address of contact@privacyprotect.org. OnNet then initiated this in-rem action against play9d.com, and sought leave to serve process by publication, suggesting the text and media outlet to use.
Opt-Out Text Messages Found Not to Violate Telephone Consumer Protection Act
In Ryabyshchuck v. Citibank N.A., S. D. Cal., No. 11-1236, 10/30/12, the Federal District Court ruled that Citibank’s sending of a text message to a customer confirming that it received the customer’s message requesting to opt out of additional text messages did not violate the Federal Telephone Consumer Protection Act (the “TCPA”).
The TCPA makes it unlawful to send unsolicited, auto-dialed calls to cellular telephones. See 47 U.S.C. §227(b)(1)(A)(ii). Text messages are considered “calls” covered by the statute under Satterfield v. Simon & Schuster, Inc., 569 F. 3d 946 (9th Cir. 2009). Courts disagree about whether text messages sent to consumers confirming that the sender will send the consumer no further text messages violate the statute. This issue is currently under review by the Federal Communications Commission.
In Ryabyshchuck, Judge Irma E. Gonzalez held that “common sense renders the second text inactionable under the TCPA,” deferring to the statement in Henrique v. U.S. Marshal, 653 F. 2d 1317 (9th Cir. 1981), that courts must recognize common sense practicalities of situations presented. The statute was intended to shield consumers from the proliferation of intrusive nuisance calls, the court held. A “simple, confirmatory response to plaintiff-initiated contact can hardly be termed an invasion of privacy under the TCPA.”
The court relied upon its above analysis to grant summary judgment to Citibank following a prior denial by the court of Citibank’s motion to dismiss.