Laws of .com

Volume VII, Issue 11: June 4, 2009

Major Google Trade-mark Policy Change

Consumer Rights Groups and Small ISPs Appeal CRTC Traffic Shaping Decision

Cancer Gene Patents Challenged as Unconstitutional

Blogger Lawsuits on the Rise

Amazon Counters Infringement Suit with an Infringement Suit

Craigslist Drops ‘Erotic Services’ Ads

Microsoft Found Guilty of Patent Infringement

Major Google Trade-mark Policy Change

Google has recently relaxed its restrictions on the use by advertisers of third-party trade-marks in text ads displayed with search results. Previously Google required that advertisers either own the trade-marks used in their ads or have documented permission from a third-party trade-mark owner before its marks could appear in a Google ad. According to a Google blog post, Google was of the view that prohibiting use of trade-marks as it did was equivalent to a supermarket ad in a Sunday newspaper that listed generic products like "discount cola" instead of the actual products for sale.

Already under fire by brand owners for allowing advertisers around the world to bid for search terms that are registered trade-mark, Google’s latest move will likely further worsen relations with trade-mark owners. In Texas, one software company is already attempting to launch a class action lawsuit against Google on behalf of all Texas trade-mark owners.

For additional information, visit:
http://www.reuters.com/article/technologyNews/idUSTRE54B6R020090515

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Consumer Rights Groups and Small ISPs Appeal CRTC Traffic Shaping Decision

On May 21, 2009, the Canadian Association of Internet Providers (“CAIP”), the Consumers’ Association of Canada, Canada Without Poverty and several independent telecommunications service providers filed an application to review and vary Canadian Radio-television and Telecommunications Commission's (“CRTC”) Telecom Decision 2008-108. That decision had denied CAIP’s prior request that Bell Canada cease and desist from throttling its wholesale Asymmetric Digital Subscriber Line (“ADSL”) Access Service, which Bell Canada provides to its own customers and also to the customers of resellers pursuant to Bell Canada’s tariffed Gateway Access Service (“GAS”).

The application questions why the CRTC issued a final decision in respect of CAIP’s prior request, given that new evidence was to be (and now has been) filed in connection with the ongoing “Review of the Internet traffic management practices of Internet Service Providers” (Telecom Public Notice 2008-19). A key argument in the application is that the CRTC has essentially prejudged important issues in the public consultation; such as, that content, application or protocol (“CAP”) based throttling does not violate the Telecommunications Act, as long as the Internet service provider has applied “equivalent” traffic-shaping measures to all retail customers.

Public hearings on these issues pursuant to Telecom Public Notice 2008-19 are set to take place in Ottawa on July 6, 2009.

For additional information, visit:
http://www.cbc.ca/technology/story/2009/05/21/tech-bell-isps-internet-throttling.html

For a copy of the above noted application, visit:
http://www.crtc.gc.ca/PartVII/eng/2009/8662/p8_200907727.htm

For a copy of Telecom Decision 2008-108, visit:
http://www.crtc.gc.ca/eng/archive/2008/dt2008-108.htm

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Cancer Gene Patents Challenged as Unconstitutional

The latest salvo in the fight against gene patents was launched in May, with the American Civil Liberties Union and the Public Patent Foundation filing a suit in the U.S. District Court to challenge the constitutionality and validity of patents which claim two human genes associated with breast cancer known as BRCA1 and BRCA2. The disputed patents are owned by the University of Utah and are licensed to Myriad Genetics for use in a diagnostic test for determining a hereditary risk of developing breast cancer.

In addition to the largely technical assertions in the suit (for example, that the patents at issue improperly claim natural phenomena and abstract ideas), the suit also alleges that these patents stifle clinical practice and scientific research and are therefore an unconstitutional violation of the First Amendment right to freedom of expression. It is believed that this is the first case to challenge gene patents on First Amendment grounds. The plaintiffs’ claims are broad and deliberate, challenging the very notion that anyone should be entitled to claim a human gene. Should the plaintiffs succeed, the impact on gene patenting in the United States is likely to be severe.

For additional information, visit:
http://chronicle.com/news/article/6463/lawsuit-challenges-constitutionality-of-u-of-utahs-patents-on-breast-cancer-genes
http://www.aclu.org/images/asset_upload_file939_39568.pdf
http://www.pubpat.org/brcafiled.htm

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Blogger Lawsuits on the Rise

Too Much Media LLC (“Too Much”), a New Jersey-based software developer, has sued Shellee Hale, a blogger from Bellevue, Washington, for comments made in online forums. In December 2007, Too Much became aware that its computers may have been breached by an unknown intruder, but stated that such breach was “of limited duration and scope” with no harm to consumer data. Ms. Hale, however, subsequently posted comments on Oprano.com, an online forum, alleging that personal information of customers had indeed been compromised. While Too Much has accused Ms. Hale of engaging in “a campaign to defame and malign [them]” through her online posts, Ms. Hale argues that her comments are covered by New Jersey’s journalist shield laws, intended to protect reporters from lawsuits. Ms. Hale claims that she had made such comments to solicit interview subjects for a freelance article she was working on. A New Jersey superior court judge is expected to decide on this case in July.

This lawsuit is only one of a growing number of lawsuits against bloggers. Such lawsuits appear to be on the rise due to the growing number of online bloggers, expansion of social-networking sites such as Facebook, MySpace and Twitter, as well as use of search technology to identify infringing or problematic online content. These lawsuits, which involve claims of defamation, invasion of privacy and intellectual property infringement, are normally thrown out of court or settled before trial, but can still pose an enormous financial burden on defendants. Bloggers, therefore, may wish to consider some form of insurance to protect them against such claims.

For additional information, visit:
http://online.wsj.com/article/SB124287328648142113.html

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Amazon Counters Infringement Suit with an Infringement Suit

In a continuation of the on-going legal battle between Amazon.com and Discovery Communications Inc., Amazon has filed a new infringement suit on May 15, 2009 in U.S. District Court (Seattle). Amazon, the world’s largest Internet retailer, is contending that Discovery (the network operator for Animal Planet TV) infringed four patents that allow consumers to conduct product searches or receive recommendations based on previous online purchases.

This new suit raises the bar in a legal battle that commenced in March wherein Discovery sued Amazon.com, alleging patent infringement. Specifically, Discovery claimed that Amazon had infringed patented technology in making the popular Kindle and Kindle 2 readers.

For additional information, visit:
http://www.financialpost.com/news-sectors/technology/story.html?id=1612447
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/19/AR2009051903622.html

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Craigslist Drops ‘Erotic Services’ Ads

The largest online classified ads site Craigslist is closing the ‘erotic services’ category amidst criticisms from law enforcement officials that the forum fosters prostitution and other crimes. In March, a sheriff in Illinois sued Craigslist for facilitating prostitution and sought a mandatory closure of this section by the court. Pressure to shut down such ads also came from the general public after several high profile criminal cases involving users of these services. Craigslist’s CEO, Jim Buckmaster, stated that in making this decision Craigslist incorporated feedback from all relevant groups including some of the state attorneys general, free speech advocates and legal businesses entitled to advertise.

As an alternative, Craigslist will provide for an “adult services” category and a fee will be charged. Craigslist’s staff will also review all ads in this new section to avoid any illegal content.

For additional information, visit:
http://tech.yahoo.com/news/ap/20090513/ap_on_hi_te/us_craigslist_attorneys_general

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Microsoft Found Guilty of Patent Infringement

A federal jury in Texas has ordered Microsoft to pay $200 million for infringing the patents of Toronto-based company, i4i. The infringement relates to the custom XML tagging features of Word 2003 and Word 2007. The verdict comes one month after Microsoft was ordered to pay $388 million in a separate infringement case brought by Uniloc. Microsoft has said that it will appeal both verdicts.

For additional information, visit:
http://news.cnet.com/8301-13860_3-10245764-56.html

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