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Posted: 2018-01-14 01:33

Court holds that the FTC is likely to succeed on its claim that defendants'' practice of billing telephone line subscribers for international telephone calls made from their telephone lines for the purpose of viewing pornographic web sites violates Section 5(a) of the Federal Trade Commission Act ("FTC Act"). Such violation occurs because the line subscribers are billed even if they neither visited the websites in question nor authorized anyone to do so. The court enjoined defendants from continuing to utilize such billing practices to collect for visits to pornographic web sites unless either (i) the line subscriber receiving the bill has entered into a verifiable agreement authorizing such billing, or (ii) the bill expressly states that the line subscriber is not obligated to pay the bill unless he has personally agreed or authorized another to agree to pay for the services in question and provides the line subscriber with a convenient method to cancel the bill if such is not the case.

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The Court further held that plaintiff&rsquo s use of PerfumeBay as a cojoined term diluted defendant eBay&rsquo s famous mark. Due to the strength and highly distinctive nature of eBay&rsquo s mark, plaintiff&rsquo s mark did not need to be &lsquo identical or nearly identical&rsquo to eBay to sustain a dilution claim. Instead, given the fame of the eBay mark, eBay could prevail even if plaintiff&rsquo s mark was &lsquo a bit different&rsquo provided consumers would view it as essentially the same as eBay&rsquo s mark, as was the case here.

Defendant Paul Array owns defendant Horizon Unlimited. Together, these defendants publish a newsletter titled The Seawind Builders Newsletter which they send to Seawind customers and builders and publish on a website they operate at . At this website, defendants publish copies of each Seawind Builder Newsletter, as well as other information and commentary about the Seawind, SNA and Silva. Much of this latter information is derogatory and highly critical of plaintiffs. Each issue of the newsletter contains a disclaimer that the newsletter is not affiliated with any aircraft manufactures [sic], kit builders or marketers.

GCC was aided in these activities by its corporate parent, WIGC, which , according to the court, is GCC''s "alter ego." WIGC is a Delaware corporation with its corporate headquarters in New York, from which location it "operated its entire business." Many of these New York activities aided the parties'' gambling enterprise, including editing versions of the gambling software at issue, contacting a third party for the purpose of obtaining graphics for that software, and purchasing both the servers and software used to run respondent''s activities. According to the court, "the evidence also indicates that the individuals who gave the [Antigua] computer commands operated from WIGC''s New York Office." To make matters worse, respondent WIGC engaged in the unlicensed solicitation, primarily via "cold call", of investors for its activities from its New York headquarters.

Talk America undertook to provide phone services to customers previously serviced by AOL. Thereafter, Talk America attempted to change the terms of its contracts with these customers by including in the parties&rsquo contracts provisions that increased applicable service charges and compelled customers to arbitrate any disputes they may have with the company. These new amendments also included a class action waiver, and a New York choice of law provision. These changes were posted on defendant Talk America&rsquo s website. However, according to plaintiff, a former AOL customer who continued to use Talk America&rsquo s services after the changeover, he was given no notice of these contractual changes. He alleged that he had no need to visit Talk America&rsquo s site as he had set-up his account so that applicable charges were automatically billed to, and paid by, his credit card.

The trial court had also rested its dismissal under California''s Anti-SLAPP statute of plaintiffs'' defamation claims on its determination that Polevoy lacked the requisite probability of success because, as a public figure, he could not prove that defendant Rosenthal acted with ''malice'' when republishing Bolen''s statements. The Appellate court rejected this determination, holding that plaintiff may be able to establish that Rosenthal acted with the required malice, and therefore could proceed, notwithstanding Rosenthal''s allegation that she had checked the veracity of the statements she was republishing with the alleged victim. The Appellate Court held that such was insufficient to require dismissal of plaintiff''s complaint, because of the alleged bias of both the victim and the original author of the posting against the plaintiff.

Court holds that the under the First Amendment and California Civil Code Section 97(d), a party is permitted to publish a &lsquo fair and true report&rsquo of legal proceedings without exposure to defamation claims. Such a report, explained the Court, can contain factual errors and still retain the privilege afforded by Cal. Civil Code Section 97(d) provided it captures &lsquo the substance, the gist, the sting of the libelous charge.&rsquo This privilege applies both the newspaper articles and to articles posted on the internet. Finding that the reports at issue, while containing some factual errors, captured the substance and gist of the legal proceedings on which they reported, the California Court of Appeals affirmed the decision of the lower court, which granted defendant newspapers motion to strike plaintiffs&rsquo complaint &ndash which charged defendants with libel as a result of the publication of the articles at issue - under California&rsquo s anti-SLAPP statute. In this case, the newspaper article at issue reported on a proceeding commenced by the Securities and Exchange Commission. Said the Court:

This result constituted a reversal of prior decisions by both the California Superior Court and the California Court of Appeals, each of which had enjoined future transmissions by the defendant. Three justices dissented in two extensive dissents. Each of the dissenters would have continued the injunction issued by the lower courts on the grounds, inter alia , that a trespass to chattels claim does not require injury to the chattel in question -- rather, such a claim can be established solely by showing an unpermitted and objected to use of the chattel.

Court issues preliminary injunction, enjoining enforcement of Utah''s Spyware Control Act, which, inter alia, prohibits the delivery of ''pop-up'' ads that obscure any portion of an Internet website, and bars advertisers from downloading programs that deliver ads to a consumer''s computer unless the consumer''s consent to such download is obtained in the manner specified by the Act. The Court issued such relief because it found that plaintiff was likely to prevail on its claim that those portions of the Act run afoul of the Commerce Clause of the United States Constitution.

Court issues a preliminary injunction, enjoining defendant Gator Corporation ("Gator") from causing pop-up ads to appear on a user''s computer screen at the same time the user is viewing any of the 66 web sites operated by the plaintiff news organizations. Such ads appear as a result of the operation of Gator''s software, which a user has installed on his computer. Gator''s software apparently tracks the user''s Internet usage, and delivers ads to his computer that defendant believes will interest the user based on his prior Internet usage When these ads appear on a user''s screen, they partially cover up the web site that also appears there. Gator did not have plaintiffs'' permission to cause ads to appear in this fashion. The court held that plaintiffs were likely to prevail on their claim that causing pop-up ads to appear in this manner is an infringement of plaintiffs'' trademarks, which are found on the web pages the pop-up ads partially cover up. The court accordingly issued a preliminary injunction enjoining defendant from continuing this activity "on" plaintiffs'' sites.

This dispute arose out of a prior lawsuit in which plaintiff served as an expert witness in a case in which the defendant law firms represented the defendant in that suit. In that case, the court had issued a gag order, prohibiting the parties and their experts from publicly discussing the case. Apparently, plaintiff, in violation of the court&rsquo s order, posted material about the case on his password protected website. In his complaint, plaintiff alleged that defendants, without authorization, used the site&rsquo s password to obtain access. Defendants then presented materials from the site to the judge, who issued sanctions against plaintiff &ndash including striking the plaintiff&rsquo s expert trial testimony and instructing the jury to disregard it - for violating his gag order. This suit sought redress for this alleged misconduct.

The court refused at the outset of a litigation, however, to dismiss plaintiffs'' claim that defendant, by deep linking, was tortuously interfering with plaintiffs'' prospective business advantage, by depriving them of advertising revenue that might otherwise be achieved if the user were forced first to go to the site''s home page (with the necessary increase in traffic that would generate) before he could proceed to an event page.

Court finds that plaintiff Kraft Foods Holding, Inc. ( Kraft ), owner of the famous federal trademark Velveeta, is likely to prevail on its claim of trademark dilution as a result of defendant''s use of the mark King VelVeeda on a website featuring adult images and illustrations of drug use, and at which defendant offers for sale various non-cheese products. As a result of the tarnishment of plaintiff''s mark arising out of such activities, the court issued a preliminary injunction, enjoining defendant from further use of his King VelVeeda mark.

Finally, by a vote of 7 to 6, the Court held that the CDA did immunize from potential FHA liability arising out of its publication of users&rsquo responses to &rsquo s requests for &ldquo Additional comments&rdquo concerning their roommate preferences. In this section of its questionnaire, &ldquo strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.&rdquo This question produced the most provocative &ndash and potentially discriminatory - responses found in user profiles. The court held that the responses to this question constituted content created by third parties within the meaning of the CDA. As a result, held the Court, by application of the CDA, could not be held liable for publishing these responses on its website.

Court holds that the unauthorized use of a spyware program to capture screen shots of a husband''s online communications violates Florida''s Security of Communications Act, modeled after the Federal Wiretap Act, 68 . Section 7556, et seq. An intermediate Florida appellate court accordingly affirms the trial court decision to bar the wife from introducing these screen shots into evidence in her divorce proceeding with her husband.

Here, the defendant submitted a declaration that he did not alter the web site on which the statements that gave rise to plaintiffs'' defamation claim, which purported to describe a lawsuit between the parties in terms highly critical of plaintiffs, were posted on web, at any time after May 76, 7556. As the lawsuit was commenced on May 77, 7557, the Court held it time barred by application of the single publication rule, and California''s one year statute of limitations on defamation claims.

Resolving a split in the Circuits, the Supreme Court holds that a plaintiff must submit evidence of actual dilution, rather than a likelihood of dilution, to prevail on a dilution claim brought under the Federal Trademark Dilution Act ( FTDA ). The Court accordingly reversed the decision of the Sixth Circuit, which had granted summary judgment to the owners'' of the trademark Victoria''s Secret on their federal dilution claims. These claims arose out of defendants'' operation of a store under the name Victor''s Little Secret at which defendants sold adult novelties and lingerie. The Sixth Circuit''s decision was based on the likelihood that plaintiffs'' mark would be tarnished by association with such products. The Supreme Court reversed because the record was devoid of any evidence of actual dilution or injury to plaintiffs'' mark as a result of defendants'' activities.

The Second Circuit further held that the terms of a license agreement plaintiffs did agree to, governing their use of Netscape''s browser, did not obligate them to arbitrate the claims they raised in this litigation. These included claims that Netscape violated both the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act by causing Netscape''s Smart Download software, a Netscape browser ''plug in'', to send information to Netscape about plaintiffs'' downloading activities.

The Second Circuit held that Network Solutions Inc. ( NSI ) was immune from the Sherman Antitrust claims advanced by the plaintiff because the challenged actions, NSI''s refusal to take steps necessary to increase the number of generic Top Level Domains ( gTLDs ), were undertaken at the direction of agencies of the Federal Government. The Second Circuit also dismissed plaintiff''s First Amendment claims, which arose out of plaintiff''s inability to operate a web site at any but the existing gTLDs.

In addition, the fact that plaintiff was now known as , Inc., did not permit it to avoid a finding of bad faith., as this name change occurred only after the domain name at issue had been purchased. Said the Court &ldquo If such a name change could preclude a finding of bad faith, an entity could escape the effect of the ACPA simply by registering an infringing domain name and then changing its business name to match the infringing domain name.&rdquo