Laws of .com

Volume VI, Issue 14: September 18, 2008

One in Five Bosses Screen Applicants' Web Lives

Wisconsin City Sued for Removal of Web Links to its Website

Defamation by Domain Name Misdirection

CIRA Panel Denies Request to Transfer Domain Name

European Court Allows Extradition of British Hacker to U.S.

Metatags Hiding Competitor’s Mark To Boost Search Is Willful Violation Of Lanham Act

Privacy Commissioner Issues PIPEDA Interpretations

One in Five Bosses Screen Applicants' Web Lives

According to a survey performed by CareerBuilder.com, hiring managers are increasingly turning to social networking profiles, including Facebook and MySpace, to screen job candidates. Indeed, the survey found that 22 percent of hiring managers were screening potential candidates through social networking profiles. This is compared with 11 percent in 2006. It appears that this trend will continue to climb in popularity as 9 percent of hiring managers who currently do not employ such screening methods indicated that they plan on doing so in the future. The survey revealed that hiring managers who use social networking profiles as a screening technique found the resource helpful in determining the suitability of candidates. In many cases, the content displayed deterred hiring managers from hiring candidates because of inappropriate content or photographs. In other instances, hiring managers found that the content helped confirm their decision to hire candidates, indicating the information available on the social networking profiles reinforced the candidates’ professional image. Accordingly, 16 percent of job seekers surveyed indicated that they tailor their social networking profiles to convey a professional image.

For additional information, visit:
http://www.washingtonpost.com/wp-dyn/content/article/2008/09/11/AR2008091101374.html

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Wisconsin City Sued for Removal of Web Links to its Website

The City Attorney for Sheboygan, Wisconsin, ordered Jennifer Reisinger to remove a hyperlink from a website she operated to the City Police’s website. With the mayor’s approval, and despite the City Attorney’s advice that it was legal to post links to government websites, the City Attorney threatened Ms. Reisinger with a “cease and desist” order and demanded the link’s removal. Ms. Reisinger, who had been involved in a campaign to recall the City’s mayor, initially complied with this demand. It is her view that the demand was a reprisal for her political views.

Ms. Reisinger subsequently sought legal advice about the City Attorney’s demand and learned then that such a demand could not legitimately be made. She initiated a lawsuit naming the mayor and other city officials, claiming damages for violation of her rights to free speech. She claims that her business has been destroyed by this and a subsequent criminal investigation, and seeks $250,000 in damages, plus punitive damages. This case appears to be a first of its kind in the United States. While it may prove difficult for Ms. Reisinger to prove that she suffered damages, the lawsuit appears to have some merit on its face.

For additional information, visit:
http://www.jsonline.com/story/index.aspx?id=786584

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Defamation by Domain Name Misdirection

In the case of Inform Cycle Ltd. v. Draper, the Alberta Court of Queen’s Bench considered the tort of registering a misleading domain name and directing a company’s business to a competitor and to a pornographic website.

Draper, a former employee of Inform Cycle, registered the domain name InformCycle.com and directed its traffic to a competitor for a period of about three weeks. Following this, Draper then directed the traffic of InformCycle.com to a pornographic website while away on vacation until Inform Cycle was able to interrupt the forward two weeks later. Inform Cycle commenced an action against Draper, claiming damages for passing off, defamation and the intentional tort of “knowingly and deliberately undertaking the registration and forwarding of the misleading domain name”. With regard to “passing off”, although there was no evidence that Inform Cycle actually lost sales, there was a presumption of damages and the judge awarded Inform Cycle $5,000 in damages. With respect to “defamation”, Inform Cycle was awarded an additional $5,000 in damages as a result of InformCycle.com traffic being directed to a pornographic website. With regard to the tort of knowingly and deliberately undertaking the registration and forwarding of the misleading domain name, the judge awarded no damages, holding that he did not understand or recognize the tort. He held that there was nothing objectionable in simply registering a domain name, and that any misuse of the registered name would be subsumed into the passing off and defamation torts. He did, however, order an additional $5,000 in punitive damages.

For a copy of the decision, visit:
Inform Cycle Ltd. v. Draper

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CIRA Panel Denies Request to Transfer Domain Name

A 3-member panel of the Canadian Internet Registration Authority (CIRA) has dismissed a complaint from JUMO GmbH & Co KG (Jumo) requesting the transfer of the domain name www.jumo.ca from the registrant Enercorp Instruments Ltd. to Jumo. Although Jumo was the registered owner of the JUMO trademark in Canada, Jumo was unable to establish that Enercorp’s registration of the domain name was made in bad faith, as required by the CIRA Domain Name Dispute Resolution Policy (CDRP).

Enercorp had been a distributor of Jumo’s products during the period 1979-2001, but the CIRA panel found that there was no evidence as to which party controlled the character and quality of the products and services provided in Canada during that period. Enercorp claimed that it had established the reputation for Jumo products in North America at its own expense through advertising and servicing warranty claims.

The CIRA panel noted that where a manufacturer does not exercise the necessary control over the character and quality of the use of its trademark by a distributor, the distributor may acquire rights to the trademark. Because the parties’ evidence was inconsistent on this issue, the CIRA panel was unable to find on a balance of probabilities that the domain name had been registered by Enercorp in bad faith. The decision highlights the need for trademark owners to properly control the use of their marks when entering into distributorship agreements.

For a copy of the decision, visit:
http://www.cira.ca/en/dpr-decisions/00104-jumo.ca.pdf

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European Court Allows Extradition of British Hacker to U.S.

The European Court of Human Rights has denied the requests of the British High Court and the House of Lords to prevent the extradition of alleged hacker Gary McKinnon to the United States, enabling U.S. authorities to proceed with the extradition process.

McKinnon, an unemployed systems administrator, allegedly hacked into U.S. military computers in 2001 and 2002 using security holes left from the response to the terrorist attacks and military alerts of September 11th, 2001. U.S. prosecutors want to try McKinnon for allegedly hacking into 97 computers belonging to NASA, the Department of Defense, and several branches of the military from a bedroom in a north London home, causing hundreds of thousands of dollars in system damage.

McKinnon’s lawyers plan to appeal to the British Home Office to deny the extradition request on the basis that McKinnon was recently diagnosed with Asperger syndrome, a variant of autism, and would suffer undue hardship if he is not returned to his home country following a trial in the U.S.

For additional information, please visit:
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080828/hacker_court_080828/20080828

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Metatags Hiding Competitor’s Mark To Boost Search Is Willful Violation Of Lanham Act

The U.S. Court of Appeals for the First Circuit has affirmed that the invisible embedding of marks of Venture Tape Corporation in the McGills Glass Warehouse website was a willful infringement of the federal Lanham (Trademark) Act. McGills used Venture’s marks by inserting such marks into its website’s metatags and by displaying them in white lettering on a white background screen. This was done in order to divert people using Internet search engines to the McGills website.

As a remedy, the earlier district court‘s award of McGills’ net profits over the 3.5 year period of infringement was upheld. Also, due to McGills’ willful infringement, the “exceptional” award of reasonable attorney’s fees was also granted.

For a copy of the decision, visit:
http://www.ca1.uscourts.gov/pdf.opinions/07-1186-01A.pdf

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Privacy Commissioner Issues PIPEDA Interpretations

The Office of the Privacy Commissioner (OPC) has recently begun to issue interpretations of key concepts covered by the Personal Information Protection and Electronic Documents Act (PIPEDA). These interpretations cover general principles that have emerged from the findings of the Commissioner, and aim to serve as non-binding guides to PIPEDA that will evolve with new findings and court decisions.

The topic covered in the first interpretation by the OPC is the meaning of “personal information” under PIPEDA. The interpretation begins by noting the two relevant statutory provisions of PIPEDA: subsection 2(1), which defines “personal information”, and subsection 4(1), which sets out the situations in which PIPEDA applies to an organization. It then reviews the general interpretation of “personal information” by the Federal Court and Federal Court of Appeal, summarizing general principles that have emerged from recent case law.

The interpretation concludes with a discussion of the application of the general principles relating to “personal information” in a variety of contexts, including health information and technology. The interpretation identifies several types of technological information that may be categorized as personal information, such as biometric data, video surveillance data, GPS data and IP addresses.

For additional information, visit:
http://www.privcom.gc.ca/leg_c/interpretations_02_e.asp

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