Laws of .com

Volume VII, Issue 10: May 21, 2009

Court Reinstates Yahoo Lawsuit Over Fake Profiles

Ontario Court Opens Trial Proceedings To Live Blogging

Washington “Redskins” Trademarks Upheld on Laches

South Carolina Attorney General Investigates Craigslist; Craigslist Sues in Retaliation

Browser Rivals Complain about Windows 7

Labatt Claims Brick’s Red Baron Infringes Trade-marks

Software Piracy on the Rise

Court Reinstates Yahoo Lawsuit Over Fake Profiles

The Ninth U.S. Circuit Court of Appeal recently ruled that an Oregon woman could proceed and sue Yahoo for breach of contract where Yahoo agreed, then failed, to stop a “dangerous, cruel, and highly indecent” use of its site by the woman’s ex-boyfriend. The ruling has significant implications for media clients with web operations, including social networking and blogging features, who should be considering some safeguards. Examples of safeguards include educating customer service representatives, modifying terms of use, and generally ensuring that anything that comes from the publisher of the site cannot be viewed as a promise.

For additional information, visit:
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/08/AR2009050803689.html

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Ontario Court Opens Trial Proceedings To Live Blogging

The judge in the criminal trial of Ottawa Mayor, Larry O’Brien, has permitted journalists and other observers to blog live from the court room in response to an application by the Ottawa Citizen. While TV cameras remain banned during proceedings, electronic text messaging including email, SMS, chat and other Internet messaging services such as Twitter may be used. Justice Cunningham, who is Associate Chief Justice of the Superior Court of Justice of Ontario, clarified that the ruling only applied to the present matter and that new technologies may raise other concerns in a jury trial.

An application to Justice Cunningham by CBC to stream live video and audio failed.

For additional information, visit:
http://tinyurl.com/tweetsfromct1
http://www.thestar.com/news/ontario/article/635335

For an example live-blog, visit:
http://twitter.com/mayortrial

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Washington “Redskins” Trademarks Upheld on Laches

On May 15, 2009, the U.S. Court of Appeals for the District of Columbia (Appeals Court) issued its opinion in Pro Football Inc. v. Harjo, et al., upholding the Washington “Redskins” trademarks and upholding the most recent trial decision of its district court (District Court). The District Court held that the trademarks at issue should not be cancelled because the complaints are prohibited under the doctrine of laches (the common law rule of prohibiting a claim where an unjustifiable delay in bringing the claim has caused undue trial and economic prejudice to the person claiming the defense). While this was the second time the Appeals Court addressed the issue of laches in this dispute, it has yet to address the substantive issue of whether the trademarks were impermissibly disparaging to an ethnic group, and can still be cancelled under the Lanham Trademark Act, § 2, 15 U.S.C. § 1052(a) if a younger complainant comes forward.

Native American rights activists initially petitioned the United States Patent and Trademark Office to cancel the Washington “Redskins” trademarks in 1992. The team owner, Pro Football Inc., has been successful in establishing prejudice during the 8 year period between the youngest petitioner turning 18 and the bringing of the suit (the period of unjustifiable delay).

The President of the Morning Star Institute, a U.S. Native American rights organization, has stated that younger petitioners are ready to challenge the marks, so the issue of whether the trademarks are disparaging may be revisited.

For a copy of the opinion (May 15, 2009, D.C. U.S. Court of Appeals), visit:
http://shorl.com/kyprefykokyfi

For the relevant section of the Lanham Trademark Act, visit:
http://www.bitlaw.com/source/15usc/1052.html.

For addition information, visit:
http://shorl.com/frehunyfruprytu or

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South Carolina Attorney General Investigates Craigslist; Craigslist Sues in Retaliation

What started as a joint effort by Craigslist’s CEO, Jim Buckmaster, and United States Attorney Generals to control unlawful activity and improve public safety, has resulted in a criminal investigation of Craigslist and its executives by Henry McMaster, the Attorney General of South Carolina, and a lawsuit launched by Craigslist against Henry McMaster. Craigslist provides local classifieds and forums for 570 cities in 50 countries, and has more than 20 billion page views and 50 million users each month.

On May 5, 2009, McMaster wrote a letter to Buckmaster claiming that Craigslist had not installed sufficient safeguards to prevent the solicitation of prostitution and the dissemination of pornographic materials, and advising that Craigslist management may be subject to criminal investigation and prosecution. In response to this letter, Craigslist announced that it would remove its “erotic services” category and implement other protective measures, although such measures were not satisfactory to McMaster.

Buckmaster, who believes that Craigslist is operating in full compliance with all applicable laws and has implemented sufficient protective measures to guard against unlawful activity, asked McMaster to retract his remarks, agree not to investigate Craigslist, and apologize at his earliest convenience. With no response from McMaster, Buckmaster sued McMaster in federal court in South Carolina on May 20, 2009, seeking declaratory relief and a restraining order with respect to criminal charges McMaster has repeatedly threatened against Craigslist and its executives. Later that day, McMaster acknowledged that Craigslist has removed the erotic services section from its website and that Craigslist is now taking responsibility for the content of their future advertisements, but that Craigslist will continue to be monitored to ensure compliance with the law.

For additional information, visit:
http://www.scag.gov/
http://blog.craigslist.org/2009/05/striking-a-new-balance/
http://blog.craigslist.org/2009/05/an-apology-is-in-order/
http://blog.craigslist.org/2009/05/cl-sues-sc-ag-for-declaratory-relief/

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Browser Rivals Complain about Windows 7

The makers of the Firefox and Opera web browsers are upset with Microsoft over the way its Windows 7 upgrade process can change a user’s default web browser. When a user upgrades from a previous version of Windows (like XP or Vista), they are given a choice to do an “express” or a “custom” set up. If a user who was using a non-Microsoft browser selects the “express” option, the user’s default web browser is immediately changed to Microsoft’s Internet Explorer browser. Mozilla’s chairwoman has stated that “this is a blatant use of the Windows operating system to change the market dynamics of browser usage.” This comes at a time when Microsoft is under fire from European Union antitrust regulators alleging that it attempted to impede rivals from gaining market share by tying Internet Explorer to the Windows operating system.

For additional information, visit:
http://tech.yahoo.com/news/nm/20090507/tc_nm/us_microsoft_windows7

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Labatt Claims Brick’s Red Baron Infringes Trade-marks

Labatt Brewing Company (“Labatt”), Canada’s largest brewer, has alleged that Brick Brewing Company Limited (“Brick”), an Ontario-based brewing company, has infringed the trade-marks associated with Labatt’s Brava beer through the use of confusingly similar bottles and packaging used with Brick’s Red Baron beer. Brick has maintained that Labatt’s claim is without merit and that consumers are unlikely to be confused between the two beers due to packaging differences and that consumers have normally asked for Red Baron beer by name. Labatt is seeking injunctive relief and undisclosed damages against Brick.

For additional information, visit:
http://tiny.cc/2SV7X

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Software Piracy on the Rise

The Business Software Alliance recently reported that software piracy grew overall last year on a worldwide basis; 41% of all installed software in 2008 was pirated, as compared to 38% the previous year. While there has been some success in reducing piracy in countries such as China (dropped from 90% to 80%) and Russia (dropped 5 percentage points to 68%), the numbers remain relatively high. Seven countries were found to have piracy rates of 90% or higher. The U.S. has the lowest rate of piracy (20%), although this translates into significant dollar losses given that the U.S. sells more software than any other country in the world.

For additional information, visit:
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/12/AR2009051200095.html

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